INDIA: Ignorance and pretence underscored in the new law

FOR IMMEDIATE RELEASE
ALRC-STM-003-2010
July 28, 2010

A Statement by the Asian Legal Resource Centre

INDIA: Ignorance and pretence underscored in the new law

Over the past two years, India has been attempting to address problems adversely affecting its law enforcementALRC-STM-003-2010 agencies. These efforts, all of them initiated by the government, unfortunately are not capable of tackling the central issue concerning law enforcement — the question of torture.

Use of torture is endemic in India. The police consider torture as an effective and thus essential tool for crime investigation and to maintain control over the people. The appreciation for torture among the rank and file of the law enforcement officers emanate from the ill-conceived notion concerning the concept of law enforcement. A recent statement made by a high-ranking police officer of the Kerala state police department proves the point. The officer, while participating in a discussion concerning police uniforms opined that if the colour of the uniform is changed from traditional khaki to blue, as was the suggestion, it would result in the people’s loss of fear about the force.

This perception of the officer, that the average citizen must fear the police, provides insight into the intellectual framework that draws denominators of engagement for the law enforcement agencies in the country. Most police officers in India have apparently failed to realise that their engagement with the people since 1947 must be from the standpoint of a social service provider, than that of a mere rule enforcer. This however is not the fault of individual police officers, but rather the result of utter failure of the government and its lack of initiatives to improve the state of policing to fit a democracy.

India has one of the largest police forces in the world, though its police-people ratio is one of the lowest in comparison to other democracies. The country does not have a permanent National Police Commission yet. A Commission appointed on 15 November, 1977 seized to exist in May 1981, after having held office for a mere 29 months after holding its first meeting on 22 December, 1978. The Commission had to function without having a formally constituted secretariat or a secretary. In other words the state of policing in India today is an indicator to the reasons for the failing nature of the country’s democratic experiment.

Over the past six decades, modernisation of police in the country has been mostly superfluous, and limited to changes like the increase in the length of trousers, difference in the insignia and the change in the letters ‘IP’ (Imperial Police) to ‘IPS’ (Indian Police Service) on the officers’ epaulettes. Even if one were to argue that there are indeed some changes, though not adequate, introduced into the service, those who are exposed to these changes are officers of the IPS cadre and not the lower ranking officers, with a cadre strength estimated to be at least sixty times more than the IPS officers.

The natural result of this neglect is that policing as a state-run institution has failed to appreciate the change in the nature of responsibility, and in its mandate — from that of a uniformed and armed colonial servant serving an occupying and exploiting master to that of a public servant paid by the public to serve. The day-to-day functioning of the police reflects the truth that the government, despite the passing of 62 years, has failed to consciously inculcate democratic values into policing. The foundation of the country’s policing model has hardly changed from its original construct of 1860. This is one of the reasons why the country’s police lack the professionalism that values and respects equality, and engages in acts that negate the democratic philosophy.

Torture has nothing in common with democracy. Though the country claims itself to be the world’s largest democracy, it still lacks a legal framework where torture is criminalised.

The endeavour by the government of India to introduce a law is half hearted and at the moment appears to be a conscious attempt to draft a law that is unable to prevent torture. The lower house of the Indian Parliament, the Lok Sabha, has passed a Bill, entitled ‘Prevention of Torture Bill, 2010‘ on 6 May 2010 after a short debate. The Bill is now under the consideration of the upper house of the parliament, the Rajya Sabha. The Lok Sabha debate has been reproduced by the Asian Legal Resource Centre (ALRC) and is available here.

A simple reading of the debate will show how ill-informed are the country’s law makers concerning the question of torture, a crime against humanity. The debate about this important Bill, in the lower house of the world’s largest democracy hardly lasted two hours, of which considerable time was spent by the members who mostly repeated opinions already made by others. The triviality with which most members approached one of the most important legislations in independent India is crystallised in a member’s speech who claimed that he is a victim of torture and a lawyer by training, but wasted time lamenting about Guantanamo Bay detainees and American imperialism.

Almost all of the members who participated in the debate were ill-prepared and apparently oblivious about the development in the jurisprudence on the subject that has witnessed an ocean of change, particularly during the last two decades. The Indian legislators evidently competed to reiterate their illiteracy about the subject and the serious adverse impact of the use of torture has upon democracy, democratic institutions and the space democracy provide for dialogues. Most of them viewed the legislative exercise as an unwelcome and superimposed precondition for ratifying the UN Convention Against Torture and Other Inhuman and Degrading Treatment or Punishment (CAT).

A press release issued by the government on 8 April 2010 claims that “(r)atification of the Convention (CAT) requires enabling legislation having provisions that would be necessary to give effect to the Articles of the Convention. Although some provisions exist in the Indian Penal Code, they neither define “torture” as clearly as in Article 1 of the Convention nor make it criminal as called for by Article 4.

For ratification of the Convention, therefore, the domestic laws of our country would require to be brought in tune with the provisions of the Convention. This would necessitate either amendment of the existing laws such as Indian Penal Code or bringing in a new piece of legislation. The matter was examined at length in consultation with the Law Commission of India and the then Learned Attorney General of India.

After a lot of deliberation on the issue, it was decided to bring a piece of ‘stand alone’ legislation so that the Convention could be ratified. Accordingly, a draft Bill, namely the ‘Prevention of Torture Bill, 2009’, was drafted.”

The proposed Indian law however does not meet the standard of an enabling legislation. For instance ‘torture’ is defined in Article 1 of the Convention as “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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” The Indian law limits the operation of the definition to “causing grievous hurt” or “danger to life, limb or health (mental or physical)”.

The term ‘grievous hurt’ is defined in Section 320 of the Indian Penal Code 1861. It is limited to emasculation; or acts that cause permanent privation of the sight of either eye; permanent privation of the hearing of either ear; privation of any member or joint; destruction or permanent impairing of the powers of any member or joint; permanent disfiguration of the head or face; fracture or dislocation of a bone or tooth; or any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. In other words beating, oral abuse, threat and other forms of intimidation does not amount to torture in the proposed Indian law. The definitional clause in the Bill ‘danger to life, limb or health’ is a loosely worded construct that will be subject to wild interpretations depending upon the judicial officer called upon to decide a claim. At the moment, the term ‘danger’ does not have a definition in the Penal Code, the basic law from which the proposed law derives explanations.

Section 6 of the proposed law requires prior government sanction to initiate prosecution under the law. This is a redundant provision since a crime, irrespective of the manner in which it is committed must not save the accused from punishment. The rider brought in by Section 6 has to be viewed as a limiting clause to delay or even deny prosecutions. Basic criminal jurisprudence warrants that it is for the court to decide whether a crime has been committed and a punishment to be awarded. This jurisdiction of the court must not be taken away from the court and placed with the discretionary authority of a bureaucrat who acts on behalf of the government. In addition, as reported by the ALRC in the Bikari Paswan case, government sanctions often take more than a decade in India to materialise as they are cost and time intensive. There is nothing to indicate that there has been any improvement in the manner in which the bureaucracy works today than how it functioned a decade before.

The Bill also enforces a period of limitation of six months for prosecution of offenses under the law vide Section 5. Such riders will seriously hamper even the limited scope of the law since often victims of torture require more time to be willing to speak about it. At the very minimum, why should there be a limitation clause fastened to a crime that the world considers a crime against humanity? The proposed law also lack any provisions for important elements required for the effective implementation of the law like witness protection and independent investigation. The ALRC has drafted a model law taking into account of all these defects entitled Torture and Custodial Death (Prohibition) Act, 2010. ALRC has sent a copy of the model law to India’s legislators.

Contrary to the claim in the government’s press release, the proposed law against torture will not enable Indians to initiate any action against torture. Yet, it is lauded in the country as an exceptional piece of legislation by the government and the media have followed suit. While the government is happy with this relatively successful image that it has cleverly garnished though the attempt is to enact a farcical law, the national media has largely ignored it since most of them are also oblivious like the country’s lawmakers as to the importance of criminalising and preventing torture. In fact many of the country’s ‘established’ scribes share views with the bureaucrats that a country like India cannot be administered with meticulous adherence to human rights.

Masquerades are not new to India’s democratic exercises. Some of India’s policies like its support to the Burmese junta and the hosting of Burma’s corrupt generals as state guests underscore it. The Bill against torture is the domestic version of this trickery. If the proposed law is not extensively revised, the national law against torture when enacted will be one more addition in the list of eyewash legislations in India.

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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

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The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.

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