Four years have passed since the Government of India mooted the idea of drafting a legislation criminalising torture. The Prevention of Torture Act, 2010, after being passed by the lower house of the Indian Parliament, was discussed in the upper house.
The upper house constituted a Parliamentary Select Committee to review the law, a process undertaken with active civil society participation. The report of the Committee suggested a comprehensive review of the proposed law, and since then nothing has been heard about the law.
Today, June 26, the UN International Day in support of victims of torture, rather than push for an Anti-torture Act, it is more important that India introspect on whether a law, however strong it may appear on paper, will be of any use.
Torture is a crime. It is a serious crime, which, in international law, is considered a crime against humanity. Yet, acts of torture are committed in India daily. The crime is endemic in the country and it goes unreported and unpunished.
Just as in any other crime, the complaint, investigation, and prosecution require a functional criminal justice system. And, this is precisely what India lacks.
The country’s criminal justice system is a farce. Investigation agencies lack resources and adequate skill to undertake crime investigation. The country’s police service is no place for a self-respecting officer. India’s policing has not progressed beyond the colonial construct that was used for social control in the colony. And this control was achieved through the use of brute force with impunity. Torture, amongst other forms of violence committed by the uniformed officer in the colony and post-colony, is the most terrifying tool used. Investigations in India begin and end with torture.
The state of affairs in the prosecution department is equally appalling. It is of such nature that police officers on court duty often refer to the prosecutors’ office as their public toilet, since this is what the officers find the prosecutors’ office most convenient for. State prosecutors in India are not appointed on merit, but on the assessment of their political allegiance.
These officers are underpaid, ill trained, and, like their counterparts in the police, are deeply corrupt. Prosecutors who receive both state salaries and bribe money – from streams of accused seeking bail and for weakening the prosecution – is common in India’s crowded court verandas. Anyone in India who has had to pay a fine in court for a petty traffic offense knows that the money paid, in addition to fulfilling the petty fine, has been split as a bribe for the prosecutor, the court clerk, and the relevant police officer. Often, this money includes a bribe for the magistrate as well.
In addition to the general concern of delay and overcrowding in courts, India’s judiciary is corrupt to the core. Indians pay tax to employ corrupt judges, from the Magistrate’s Court to the Supreme Court. Every Chief Justice who has thus far served the country has agreed to this shameful fact.
With the criminal justice apparatus of the country in such an appalling state, what use is there in a law against torture? India doesn’t lack laws. Good and bad, convoluted and archaic, the country has all forms of it in place. What is absent in India is respect for the concept of justice.
A culture of justice cannot be instilled via a new law. It has to be taught by establishing institutions that can deliver justice without fail. In India this is unfortunately not a priority.
