INDIA: Democratic pretentions and administrative follies
— Asian Human Rights Commission
Custodial violence and torture
On 23 May 2010, police officers, including a woman police constable tortured and abused a mother and her 12?year?old son in Rajouri Garden Police Outpost in Delhi. The officers forced Mala (name changed) to strip naked in front of her minor son who was detained at the station, and ordered her to have sex with him. Upon refusal, one of the police officers demanded Mala to have sex with him. Mala, a slum dweller from Delhi’s Mayapuri area had gone to the police outpost with her husband to enquire as to why her two sons were detained at the police station.
The police on May 22 arrested Mala’s two sons, aged 12 and 10, on the accusation that they had stolen Rs. 6,000 from a car. The torture and abuse was reportedly to force the 12?year?old boy to confess the crime and return the money. As the result of a complaint lodged by Mala with the help of a local human rights organisation to Mr. Y. S. Dadwal, the Delhi Police Commissioner, the Commissioner suspended the Woman Head Constable, Amrita Singh, from service, as well as Constables Mr. Pramod Kumar and Mr. Santosh of Rajouri Garden Police Post. The Assistant Sub Inspector who was in?charge of the outpost was transferred.
Mala’s case in essence reflects what policing in India today has become. An analysis ofdetain two children aged 10 and 12 in a police lock?up overnight instead of sending them to a juvenile home or presenting them immediately before a magistrate having jurisdiction to deal with cases involving minors? What authorised the police to extract a confession through torture, instead of investigation? After being approached by the human rights group that took up the matter, the police were compelled to take action against the officers.
Rather than seeing the case as a horrific indication of what the country’s police have become, the superior officers for their own convenience termed the case an instance of ‘not following proper procedure while handling juveniles’. A probe by the Vigilance Department of Delhi Police was ordered to look into the allegations of stripping. What this probe will achieve, as the investigating agency is the same police, is anybody’s guess. The statement of the senior police officer while briefing the media only reaffirms the fear of bias in the probe since he only acknowledged the ‘likelihood’ of ‘extreme verbal abuse’ while refusing any possibility of stripping. By saying ‘we could have hushed the case up, but the fact that we have suspended the officers involved in the case implies that an impartial investigation will be undertaken’, the officer inadvertently shed light on what the establishment could do.
Impartiality in the Indian context means the exact opposite ?? the accused investigating the crime, with the judge being the prosecutor, accused, plaintiff, witness and jury. It is unfortunate to note that at present there is no other process available in India where an iota of imprtiality can be attributed to police investigations of crimes committed by police officers. On deeper level, the case raises serious concerns regarding the rule of law and the notion of democracy. Most importantly and unfortunately, the case is not a standalone incident of some rogue police officer going astray. Indian police and paramilitary units are infamous for sexually assaulting, including stripping and parading women in public spaces, to instil fear among the masses and to quell dissent.
They are also known for looking the other way when locally dominant people, especially from the upper caste and class in rural India, commit crimes.23 After all, if some police officers can do it in Delhi, the national capital, despite the presence of all its media and civil society organisations, who can guarantee the safety and security of women in faraway places where there is no presence of any similar safety mechanisms? The AHRC this yea alone has documented more than 40 such cases, spanning the length and breadth of the country that proves this point.24 25 The case also exposes the culture of silence when the victims belong to the Dalit or tribal communities, who are among the country’s most poor, disadvantaged and vulnerable.
Rather than being actively supported by the government and civil society, including the media, they are in fact abandoned and left to fend forthemselves against all odds. Only a few Indian print media reported Mala’s case in their inner pages among several other articles in the ‘city news’ section. But the ‘news value’ awarded to the incident was not strong enough to carry it beyond the firs day. Apart from the media, there were no women groups or Dalit NGOs interested in the case. Mala and her family experienced this traumatic incident on May 23. The family was so terrified by the events that they kept silent for more than two weeks and could not gather the courage to make any complaints to the authorities. It was only when the story reached a local NGO through neighbourhood whispers that the incident came to light and a complaint was filed.
Clearly, for every such case that reaches the doors of law, there would be many pushed under the carpet.26 And with them would be shattered dreams, disbelief in government institutions and perhaps democracy itself. The case clearly spotlights the ideologies of violence, caste and gender based discrimination that rule India, despite its many claims of being the world’s largest democracy.27 It also reveals that these prejudices are as strong today as they were hundreds of years ago. Even worse is the fact that the caste based value system has emained internalised even amongst educated elites, who are primarily responsible for the constitutional mandate of eradicating it.28 What operates in these cases is neither the free and fair implementation of the rule of law, nor even a critical engagement with the issues. When it comes to justice for the poor and the downtrodden ?? belonging to the lower castes in most cases as the boundaries between lower caste and lower class in India are very thin ?? the reactions often make up two extremes. One is utter disregard and contempt for the idea of justice, while seeing the victims as dehumanised creatures bereft of any dignity. The other is highly patronising benevolence offered in response to qualified inclusion by various ways like Sanskritisation. Even this patronising attitude is mising however, when the victim is a Dalit, tribal or a minority woman suffering with the double burden of two underprivileged identities.
The Mathura rape case shows how gender discrimination in India is superimposed on and organised along the skeleton of caste. The basis of the Supreme Court’s decision was that the complainant ?? an illiterate, orphaned tribal girl ?? was of loose character because she had eloped with her boyfriend and was brought to the police station only because of her brother’s complaint, and that she was lying about rape. The conditions of 1979 have not changed though the decision caused enormous outrage and led to strong movements for gender justice culminating in a reform of the laws relating to rape in 1983. Unfortunately, the amendment in the law meant little positive change on the ground. Even today the first defence offered by theaccused in rape and other cases of sexual assault is the ‘loose’ character of the woman. In 1995, in the Bhanwari Devi rape case, a trial judge observed that because Hindu scriptures do not allow upper caste men to touch a low caste
woman, the accused could not have raped the Dalit victim. Close to 30 years later, there is little substantial change in the position and practices facing India’s downtrodden, particularly the women. This is so in spite of India having a Dalit Chief Justice.29 To complicate matters further, Justice K. G. Balakrishnan, after retiring as the Chief Justice of India is now serving as the Chairperson of the National Human Rights Commission. In one of his statements soon after assuming office at the NHRC, Justice Balakrishnan justified capital punishment.
According to his opinion, in countries like India, law and order cannot be enforced without severe penalties like capital punishment. It is a pity that India’s topjudge was unaware of the basic principles of criminal law jurisprudence; it is not the severity of punishment that deters crime, but the certainty of it.30 Mala’s case, together with thousands of other similar ones, is evidence that the project of nation building through democratisation of society has failed. The India today is not what Dr. B. R. Ambedkar envisioned it to be. The idea of nation to him, and to every rational individual, was not just of political sovereignty but one where the people feel socially bound as a group, not divided by a regressive and pre?modern mode of social organisation. India today is a democracy where any police officer can strip any woman, more so those from the disadvantaged backgrounds wit impunity; knowing well that the officer would get the support of the superior officers. The officers accused in Mala’s case knew that in most cases the victim, terrorised and traumatised, would never knock at the doors of law. And even if she does, the case would not get anywhere since the systems of investigation and prosecution are so much biased and rigged in favour of the police. And there are no efforts to change this. As for Mala’s case, it is certain that the case would be buried under the files, to be dismissed after a decade or so, because of the lack of evidence.
The so called reforms
In 2007 the Prime Minister, Dr. Manmohan Singh, promised the nation that India would soon ratify the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.32 While nothing is heard about the ratification of the Convention any more in New Delhi, the Government of India, after protracted discussions in the Union Cabinet has drafted a Bill, the Torture and Custodial Death (Prohibition) Act, 2010 to criminalise torture.
The lack ofconceptual clarity and seriousness in approaching the issue is evident in the twopage and 466 worded text of the Bill, which the government proposes as a comprehensive law to deal with one of the most serious issues plaguing India today. When the Union Cabinet debated the Bill in 2008, one of the objections raised by the ministers for enacting a comprehensive law against torture was that such a law, if enacted, would discourage the law enforcement agencies. The ministers argued that criminalising torture will pose an obstruction to law enforcement, particularly in the context of the state agencies fighting Naxalism and other violent insurgent movements.
Such parochial views against criminalising torture only suggest the paucity of knowledge of the Indian legislators and further the colonial mindset of India’s elite. There is not a single country in the world that has effectively prevented crime or succeeded in containing armed insurgency by the sheer use of force and allowing state agencies to engage in torture. On the contrary, polices followed by countries like Iran, Israel and Burma that allow systematic use of torture upon suspects on various pretexts are criticised worldwide. India has at least half a dozen reasons beyond its despicable records in Kashmir, Manipur and Chhattisgarh to be included in this exclusive club.34 35 The outlook of condoning torture illuminates the drastic changes required in the policing policy in India.
The Indian Police Act, 1861, by all means a colonial law, and its existing state law variants like the Kerala Police Act, 1960 are legislations that need to be scrapped and rewritten with a view to enable a legislative framework suitable for the police to function within a democratic set up.However, under the pretext of modernising the law, the endeavour is to award unprecedented arbitrary powers to the police in the name of crime control. The Kerala Police Bill, 2010 if enacted into a law will become a statutory framework to create a police state. This newly proposed law awards the state police authority to infringe almost all fundamental rights of a citizen with statutory impunity. It allows even a police constable to infringe personal privacy at will, arrest and detain persons arbitrarily and interfere in civil disputes, and creates a statutory framework that requires the prior agreement of an accused police officer if a complaint against the officer is to be investigated. This is a proposition unheard so far in the legislative history of the country, even during colonial times. Not a single human rights organisation, opposition political parties or the media were interested in this new law.
The only study on the Kerala Police Bill, 2010, with comments and recommendations, was made by the AHRC.36 Unfortunately, not many human rights organisations or other civil society groups in India are concerned about police torture and the impact it has upon the democratic norms the country decided to practice 64 years before. India has however an influx of self?proclaimed policing experts who lobby for changes in Indian laws. Short?sighted and ill?informed attempts like introducing community policing into a system that has not evolved beyond baton charging everyone in the vicinity to gain control or extra?judicially executing suspects to create a fear psychosis in the community has not benefited anyone other than those who are the proponents of cosmetic police reforms. While such shoddy reforms are referred to with marketable titles in states like Kerala (‘community policing’), they are also used to divide the population and gain control based on caste and religious prejudices in states like Chhattisgarh (‘Salwa Judum’).
Even the mainstream media regularly publish articles justifying the practice of torture. Articles like Speak Up to Be Silent, written by a self?proclaimed expert on the subject, lobbying for the relaxation of fundamental principles like the right to remain silent and the presumption of innocence of the accused, will have drastic effects upon the fundamental rights of evey citizen.These articles portray the impression that Indian police require more impunity to combat terrorism than their counterparts in the US or the UK. Each failure by the police affects mostly the poor ?? more than 60 percent of the country’s population. Most of the so called experts on policing in India have failed to understand what this segment of society sees as necessary changes to be brought into the policing institution.
The proposed law against torture
On 31 August 2010, the upper house of the Indian parliament, the Rajya Sabha, constituted a Parliamentary Select Committee to review the Prevention of Torture Bill, 2010.39 The Committee, chaired by Mr. Ashwini Kumar has Dr. E. M. Sudarsana Natchiappan, Mr. Shantaram Laxman Naik, Ms. Brinda Karat, Mr. Naresh Gujral, Dr. Janardhan Waghmare, Mr. Ahmad Sayeed Malihabadi, Dr. Vijaylaxmi Sadho, Dr. Ashok S. Ganguly, Ms. Maya Singh, Mr. S. S. Ahluwalia, Mr. Kalraj Mishra and Mr. Sa40A notification issued by the Committee invited suggestions and opinions about the Bill to be submitted to the Committee on or before 22 September 2010. The following is the review and suggestions concerning the Bill submitted to the Committee by (1) Nervazhi; (2) the AHRC and (3) the Asian Legal Resource Centre (ALRC), AHRC’s sister organisation. Nervazhi is a registered NGO operating in Kerala, India, registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955.
Bill on the anvil
The Prevention of Torture Bill, 2010
A BILL to provide punishment for torture inflicted by public servants or any person inflicting torture with the consent or acquiescence of any public servant, and for matters connected therewith or incidental thereto.
WHEREAS India is a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
AND WHEREAS it is considered necessary to ratify the said Convention and to provide for more effective implementation
Be it enacted by Parliament in the Sixtyfirst Year of the Republic of India as follows:
1. (1) This Act may be called the Prevention of Torture Act, 2010.
It extends to the whole of India.
It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
In this Act, unless the context otherwise requires,
(a) words and expressions used in this Act shall have the same meanings respectively assigned to them in the Indian Penal Code; and
(b) any reference in this Act to any enactment or any provision thereof shall in any area in which such enactment or provision is not in force be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
3. Whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act for the purposes to obtain from him or a third person such information or a confession which causes,
(i) grievous hurt to any person; or
(ii) danger to life, limb or health (whether mental or physical) of any person, is said to inflict torture:
Provided that nothing contained in this section shall apply to any pain, hurt or danger as aforementioned caused by any act, which is inflicted in accordance with any procedure established by law or justified by law.
Explanation. For the purposes of this section, ‘public servant’ shall, without prejudice to section 21 of the Indian Penal Code, also include any person acting in his official capacity under the Central Government or the State Government.
4. Where the public servant referred to in section 3 or any person abetted by or with the consent or acquiescence of such public servant, tortures any person
(a) for the purpose of extorting from him or from any other person interested in him, any confession or any information which may lead to the detection of an offence or misconduct; and
(b) on the ground of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, shall be punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
5. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no court shall take cognizance of an offence under this Act unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
6. No court shall take cognizance of an offence punishable under this Act, alleged to have been committed by a public servant during the course of his employment, except with the previous sanction,
(a) in the case of a person, who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person, who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
Statement of objects and reasons:
The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment was adopted by the United Nations General Assembly on 9th December, 1975 [Resolution 3452(XXX)]. India signed the Convention on 14th October, 1997. Ratification of the Convention requires enabling legislation to reflect the definition and punishment for “torture”. Although some provisions relating to the matter exist in the Indian Penal Code yet they neither define “torture” as clearly as in Article 1 of the said Convention nor make it a criminal offence as called for by Article 4 of the said Convention. In the circumstances, it is necessary for the ratification of the Convention
that domestic laws of our country are brought in conformity with the Convention. This would necessitate either amendment of the existing laws such as Indian Penal Code or bringing in a new legislation.
2. The matter was examined at length in consultation with the Law Commission of India and the then Learned Attorney General of India. After considerable deliberations on the issue, it was decided to bring in a stand alone legislation so that the aforesaid Convention can be ratified. The proposed legislation, inter alia, defines the expression “torture”, provides for punishment to those involved in the incidents of torture and specifies the time limit for taking cognizance of the offence of torture.
The Bill seeks to achieve the above objects.
P. Chidambaram
New Delhi
19 April 2010
Comments on the Bill
Torture being a crime committed by state agencies, it has remained and will remain a subject of intense discussion and condemnation, internationally. It is a crime considered with such seriousness that today, torture is considered as a crime against humanity. At the moment, there is no functioning legal framework in the country that can adequately address the question of torture. Tackling the question of torture involves creating a respectable and independent mechanism where a complaint of torture can be lodged without fear of repercussions to the complainant; whereupon the complaint will be investigated promptly with the assistance of all modern crime investigation tools and the investigation leading into an impartial prosecution that could render a reasonable sentence as punishment to the perpetrator. There must be also a procedure by which a victim of torture can access and receive redress and adequate rehabilitation to regain the balance in life, which every victim of torture is certain to lose, irrespective of gender, social status,
race and nationality. For this framework to be established in India, what is required is a law that forms the basic legislative outline to deal with torture. As mentioned earlier, such a framework does not exist in India at the moment. The Bill under consideration is far too inadequate to pave the foundation for such a legislative and/or procedural framework.
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COURTESY:Asian Human Rights Commision
