The Prime Minister of India declared in a public speech early this year that India would soon ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Since then, nothing has been heard about Indias preparation to ratify this convention.
Instances of custodial torture in the meanwhile are reported from all over the country. Most of these cases have several common characters. In most cases the victims were persons arrested on mere suspicion. The arrest is often followed by prolonged periods of illegal detention during which the detainees are tortured as part of questioning. The detainee is finally produced in the court often framed with false charges.
Cases of alleged encounter killing and disappearances are also reported in alarming numbers from India. But for a few cases that were taken up by the local media, the government did not care to investigate those cases where the law enforcement agents were allegedly engaged in brutal torture.
In India, the government tolerates the misuse of authority by the law enforcement agencies. This is because the government, often the political parties that form governments in India, require the law enforcement agencies to be exploited according to their whims. For example, the recent cases of custodial killings reported from the state of Gujarat shows a consistent and alarming pattern of tolerance of the use of torture by the government and promotion of it as if it is an essential element of law enforcement and investigation of crime. Custodial torture and encounter killings — often known as extra-judicial executions — is closely related.
In Gujarat, the interrogation centres — often torture chambers — of the state police are functioning in full public view. The suspects are brought in, kept in illegal detention and tortured as part of questioning and later killed and declared as killed in encounter. This procedure is public knowledge, yet no one dared to challenge it. Officers, right from the top are involved in this endeavour.
In a proceeding in the Supreme Court regarding this, the state government admitted in court that it was aware of the existence of the interrogation and torture centres. The government also admitted that in several cases the officers might have also killed the witnesses of arrest and detention in order to avoid questions at a later stage. The Gujarat experience, while being a shocking revelation of the state of policing in that state is also the proof that the public could be forced to silence, if the state so requires, by imparting fear.
Interrogation centers in India are run in the cover of prevention of terrorist activities. Interrogation centers are not limited to the state of Gujarat. In several other states like Uttar Pradesh, Madhya Pradesh, Uttaranchal, Chhattisgarh, Andhra Pradesh and Rajasthan the state governments run similar centres. In some states these centres are run in the name of anti-naxalite action.
In the state of Chhattisgarh for example, the naxalite and anti-naxalite activity has killed hundreds of innocent people. Use of brute force by the state and non-state actors irreparably destroys the social fabric. In Chhattisgarh thousands have been forcefully removed from their villages to camps set-up by the government or other private armed groups.
Large scale killing and imparting fear through brutal use of force has not reduced the anti-state violence in that state. The number of persons who have enrolled in the anti-state activities or are now empathizing with these groups in fact have increased. To counter this, the state has adopted a divide and rule policy by introducing a private armed militia called the Salwa Judum. The Salwa Judum is a group of armed civilians who are provided impunity to attack, injure and kill ordinary people on mere suspicion.
In addition to promoting private armed groups the state has also pressed into use questionable legislations like the Chhattisgarh Special Public Security Act, 2005. This statute is so loosely worded that anyone could be charged for a crime in this law. Many accepted legal norms in criminal law like non-retroactivity is negated in this statute. This law is worse than the infamous Armed Forces Special Powers Act, 1958.
Violence is used widely with impunity in the North-Eastern states. The state of Manipur in particular, is completely militarised. The paramilitary and the army detachments stationed in that state is notorious for the use of torture and violence as the only tool for investigation. Cases reported from Manipur, are mostly involving the armed forces, the Assam Rifles in particular.
Violence is the most commonly used tool for investigation of crimes in India. Investigation of cases often begin with a confession statement and ends with it. Though the method is considered as a worst form of crime investigation, it is widely practiced in India. This is because even as of today the concept of law and order in India is based on the principle of imparting fear. The state police and other divisions of the law enforcement agencies are some of the most ignored state government services.
Administrative neglect promoting the use of torture is misused by the police and other law enforcement agencies as an excuse for demanding bribe and for not doing their job according to the law. Continuing neglect by the government has also considerably reduced the morale of the law enforcement agencies. Rather than being considered as an essential state service police and other law enforcement agencies are viewed as state sponsored terror agencies mostly filled with criminals.
Widespread use of custodial torture in India is not the result of government neglect alone. It is also the result of the lack of seriousness in approaching this issue by the justice mechanisms in India. Even in the absence of specific laws preventing torture, the courts in India, particularly the Supreme Court, has ordered compensation to victims of torture. However the compensation awarded is much less and cannot also be treated as a form of punishment compared to the seriousness of the act. To punish a law enforcement officer who has engaged in torture, as of now, there is no law in India.
Torture is not a crime in India. To convict a law enforcement officer for torture, the act has to qualify all the requirements like any other crimes in the Indian Penal Code, 1890. To prove a crime, meeting all standards, to be punished under the Indian Penal Code, is difficult because of the absence of independent investigating agencies in India. The absence of an independent agency to investigate cases of custodial torture is exploited by the offenders since they know that even if a complaint is made regarding torture it would not be properly investigated.
The widespread use of custodial torture has taken its toll upon the law enforcement agencies in India and is reflected in the overall state of rule of law in India. As of today, the ordinary people have isolated themselves from the law enforcement agencies. The people do not trust the law enforcement agencies. The use of torture has also considerably reduced the morale of the law enforcement agencies. For example cases that are brought to a court based exclusively on the evidence gathered by use of torture often results in acquittal. The loss of morale of the law enforcement agencies is exploited by corrupt elements in the society who would like to use the local police as their militia, paid from the state exchequer.
Inspite of all these, the government of India or its state governments have no declared policy of non-tolerance to custodial violence. Instead of preventing the use of torture the attempt by the government is to provide further impunity to the law enforcement agencies by proposing changes in the procedural law. The legislative changes have not been implemented yet, but the proposal by the government is to implement these changes in the recent future.
To remove possible internal resistance in implementing these proposals the government has roped in several non-government organisations under the banner of the UNDP — India office, in an allegedly consultative process on this issue in the name Strengthened Access to Justice Programme. Many organisations in India have inadvertently jointed this lopsided programme, currently executed through the Department of Justice.
The direction towards which India is headed as of now is imminent chaos and lawlessness. The widespread use of violence and the continuing neglect of the government to prevent it have also isolated the ordinary people from the government. In the remote villages of India government means the local police constable. The atrocities committed by these uniformed state agents create a fertile ground for anti-social and anti-state elements to propagate and advocate violence as a means of communication. This has also resulted in the loss of a middle ground for those who do not support violence.
For the central government in Delhi and the mutually opposing state administrations, governance is only an affair of five years. This congenital defect of myopic vision is a shocking feature of all governments in India and is reflected in their policies. A failed policing system and a justice mechanism that depends on such a police is what these governments covet for. Prevention of torture and reformation of law enforcement agencies is the last priority in these circumstances for any government.
As of today, various state governments in India and their law enforcement agencies have lost control of law and order within considerable parts of their jurisdictions a backwash of erratic policies. The spread of anti-state activities covering considerable parts of India must be an alarming wakeup call for the government. This shocking situation of chaos in law and order is certainly the result of the failure of police as an institution in India.
Addiction to torture and use of violence is no means to address this.
