Two years and five months have passed after the Prime Minister, Dr. Manmohan Singh, promised the nation that India will soon ratify the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. While nothing is heard about the ratification of the Convention anymore in New Delhi, the Government of India, after protracted discussions in the Union Cabinet has drafted a Bill to criminalise torture. The lack of conceptual clarity and seriousness in approaching the issue is evident in the two-page and 466 worded text of the Bill, which the government proposes as a law to deal with one of the most serious issues plaguing India today.
June 26 is the International Day against torture. Torture is one of the most heinous crimes conceivable against humanity and is condemned world over. Marking the day, the Asian Human Rights Commission (AHRC) has drafted a model law entitled ‘Torture and Custodial Death (Prohibition) Act, 2010’ for the consideration of Government of India to be debated and enacted as a law against torture and custodial death. The AHRC has sent the model law to all parliamentarians in the country and other civil society organisations for their knowledge and consideration.
The AHRC‘s model law attempts to address not only the defects in the Bill proposed by the government, but also provides a comprehensive legal framework to criminalise torture and custodial death, and for the effective investigations and prosecutions of the crime. The law is drafted bearing in mind the consistent and widespread patterns of torture and custodial deaths reported from the country over the past ten years; the nature and the mindset of the perpetrators; and the legislative and procedural impediments existing in the current legal framework of the country that makes it impossible an independent investigation and successful prosecution of the crime.
While the Bill proposed by the government was debated by the Union Cabinet in 2008, one of the objections raised by the ministers for enacting a comprehensive law against torture was that such a law, if enacted, will 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 view against criminalising torture only suggests 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 the 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 excuses are criticised worldwide. India has little excuse as of now, for not being included in this list.
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 setup.
Attempts are made to rewrite the law in India and the Kerala Police Bill, 2010 is an example. However, in the pretext of modernising the law, the endeavour is to award unprecedented arbitrary powers to the police in the name of crime control. For instance, the Kerala Police Bill, 2010 if enacted into a law without drastic changes will become a statutory framework to create a police state.
The newly proposed law is draconian in nature that it awards the state police authority to infringe almost every fundamental right of a citizen with statutory impunity. The proposed law allows even a police constable to infringe personal privacy at will, arrest and detain persons arbitrarily, interfere in civil disputes and creates a statutory framework that require the perpetrator police officer to agree to investigate a complaint against him, a proposition unheard so far in the legislative history of the country or even during the colonial times.
The AHRC has sent a study with comments and recommendations concerning the Kerala Police Bill, 2010 to the Government of Kerala. The AHRC expects that its study entitled ‘Kerala, a Police State in the Making Act Now!’, conducted in conjunction with Nervazhi, a Kerala based human rights group to be considered by the state’s legislators so that the Bill will not be enacted as it is proposed now.
Unfortunately not many human rights organisations or other civil society groups in India are concerned about police torture and the impact torture has upon the democratic norms the country decided to practice 62 years before. India has 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, the same is used to divide the population and gain control over them based on caste and religious prejudices in some other states like Chhattisgargh.
The only difference is this civil militia in the making in Kerala is coloured as community policing whereas in Chhattisgargh it is known as Salwa Judum, in Manipur as special police officers and in Assam as Surrendered United Liberation Front of Asom (SULFA).
Even the mainstream media regularly publish articles often 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 every 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, who form more than 70 percent of the country’s population. Most of the so called experts on policing in India have thus far failed to communicate to the poor with a view to understand what they think as the change that need to be brought into a state institution, the police, that influences the life of millions of Indians.
As of now, the country’s worst enemy is its own police. The continuing practice of torture and the possibilities that exist in India for a torturer police officer to carry on committing the offense with relative impunity is the central deficit in realising the true standards of democracy in the country.
So far no attempt has been made to change this unacceptable status quo. Unless the government changes its policies on policing, India will continue to remain a pseudo democracy ruled by the whims of its elite. This, for millions of Indians means only that the British were replaced by brown skinned Sahibs.
