On 2 February 2009, India’s electronic media aired a short video displaying the shocking brutality practiced by the country’s law enforcement agencies. The video showed eight-year-old Komal, a Dalit girl, being publicly tortured in Kailokhar village, Uttar Pradesh. The police officer torturing Komal held her up by her hair, twisted her ears and rained blows on her, demanding that she confess to an act of theft. Expressing outrage at the incident, Congress party chief Sonia Gandhi noted, such acts ‘make our heads hang in shame’.
Unfortunately, such acts of torture–and worse–are widely practiced in India by police, paramilitary units and other law enforcement agencies. They perceive the practice as standard operative procedure for criminal investigation. The investigation of crimes therefore usually begins and ends with a confession statement obtained through torture or intimidation. Torture is not viewed as a criminal act, but a symbol of authority, a means to enforce discipline and for social control. This is why torture is not carried out in the secrecy of a detention centre, but in full public view.
Torture is also used by law enforcement officers as a tool for extortion. This behaviour has distanced law enforcement officers from the ordinary people. In fact, ‘law enforcement agency’ has become a misnomer in India; public perception sees these agencies as state sponsored criminals in uniform. It is common practice in India for ordinary individuals required to interact with law enforcement agencies to first seek assistance from politicians, to avoid intimidation, abuse or arbitrary detention. Corrupt politicians make use of this as an opportunity to demand bribes. In this way, torture facilitates corruption not only among law enforcement agencies, but also among other public servants.
Similarly, torture corrupts the country’s justice delivery mechanisms. Even though torture and fair trial cannot coexist, criminal charges based upon evidence gathered by the use of torture continue to be brought to court, and result in acquittals. On the other hand, when there are possibilities for persons to be convicted through such evidence, fair trial is negated.
As of now there is no law in India criminalising torture. For the past several months, a law to this effect has been under the consideration of the government; however, it would require considerable revision to meet international standards that conceive torture as a crime against humanity. The internationally recognised definition of torture as envisaged in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
The proposed Indian law however, limits the definition of torture as “any act which causes:- (i) grievous hurt to any person; or (ii) danger to life or health (whether mental or physical) of any person”. Limitations like the requirement of ‘grievous hurt’ not only circumscribe the concept of torture from its normative definition, but also put additional burden upon the victim to prove that the injury was grievous in nature. The law is also silent about the burden of proof, which according to existing provisions of the Indian Evidence Act, 1872, is upon the victim.
The introduction of the concepts of ‘hurt’ and ‘danger’ in the law as qualifiers to the Convention’s broad definition of torture can only be viewed as an intentional attempt to dilute the state’s responsibility in preventing torture. It is also an attempt to dilute the gravity of torture, the right to be free from which has attained the status of ius cogens, a peremptory norm in customary international law. The condemnation of the crime of torture and its expanding horizon, envisaged as early as 1992 by the United Nations in General Comment 20, is sought to be kept away from Indians through this legislative process.
The law’s bypassing of key aspects such as the investigation and prosecution of torture further lessens its use for torture victims. Without exception, no one in India would expect the police to impartially and promptly investigate an act of torture allegedly committed by their peers.
The proposed law also prescribes perimeters to its operation by limiting the time period within which a complaint has to be filed to six months from the date of incident. The law makes no mention of any complaint filing mechanism however, or provisions for witness protection. Considering the gravity of the crime and the possible suspects, a law criminalising torture must include measures for witness protection.
So far, the government has not initiated any discussion or debate concerning the proposed law. Civil society groups however, are planning to make use of the International Day in Support of Victims of Torture, June 26, as an occasion to discuss the brutal practice of torture in the country. For these discussions to be meaningful, civil society must also analyse the proposed law and devise means to make the necessary revisions for it to meet the standards prescribed in the Convention against Torture, which India signed as early as 1997.
The Asian Human Rights Commission is launching a year long international campaign aimed at criminalising torture in Asian jurisdictions. The campaign site has a detailed profile of India, illuminating alarming patterns of torture in the country.
The Government of India has thus far denied torture to be a problem affecting the country’s rule of law. This denial challenges the constitutional mandate of any government that assumes office promising to protect democracy, promote the rule of law and fulfil constitutional guarantees. Torture is the mother of all human rights violations, undermining the concept of justice and democracy. Trying to negate state responsibility for preventing torture is not only a self-defeating exercise for the government, but also an act of deceit played upon the citizens.
