Bijo Francis, Programme Officer, Asian Legal Resource Centre, Hong Kong
Chief Minister Kumari Mayawati Das of Uttar Pradesh, India’s most populous state, reportedly paid around 260 million rupees (US.2 million) in income tax for the fiscal year 2007-08, making her the highest taxpayer among India’s politicians. However, she is no businesswoman. She is simply a politician, and her capricious rise from rags to riches speaks for the kind of democracy and politics practiced in India.
Since assuming the chief minister’s post on 13 May 2007, Mayawati and her Bahujan Samaj Party have come a long way from humble beginnings. The daughter of a clerk in the telecommunications department, she now aspires to be India’s next prime minister.
The BSP contested state elections by harnessing the votes of Dalits — people traditionally regarded as untouchables, outcastes or of low caste. Mayawati, a Dalit herself, has been claiming that her party and the Uttar Pradesh state government she leads are actively ameliorating the living conditions of the Dalit community.
The BSP, which claims to be working for revolutionary social and economic change to realize “the supreme principles of universal justice, liberty, equality and fraternity enunciated in the Constitution of India” has, however, achieved nothing much on these fronts. Like most of its counterparts in the country, the party is preoccupied more with the welfare of the people who control the party than the welfare of ordinary people.
Uttar Pradesh occupies one-third of India’s highly fertile Gangetic plain. Yet it is one of the most backward states of India and home to an estimated 190 million people. The backwardness of the state owes much to its elected representatives. Individuals having criminal antecedents ranging from charges of corruption, murder, rape and robbery occupy 100 out of the 403 seats in the state assembly.
Mayawati herself is accused of corruption involving US million, in the infamous Taj Corridor case — a scam project undertaken during her tenure as chief minister to upgrade tourist facilities near the Taj Mahal.
The state under-performs on various fronts. For example, the literacy rate is 57 per cent, as opposed to the national average of 65 per cent. India’s population stabilization rests on two states, Uttar Pradesh and Bihar. Yet, Uttar Pradesh has a population growth rate of 25.8 per cent against the national average of 23.8 per cent.
Even according to the state government, in terms of social development indicators like medical facilities, teacher-student ratio in primary schools, death rate, infant mortality rate, literacy, per capita income, electrification of villages and per capita power consumption, the state currently lags behind other parts of the country. Nothing tangible was achieved in the state to change the status quo after Mayawati formed the current government in May 2007.
What is visible, however, is the omnipresence of decorations in urban areas, particularly in cities, where huge statues of Mayawati are erected. Criticism against her or a member of her government is responded to with stiff resentment and allegations that it is one of many rumors spread by the upper caste or the opposition.
The BSP, like many other political parties in the country, is known to demand “donations” from the rich and poor alike. Those who pay big amounts expect to receive favours from the government.
Corruption percolates from the top to the lowest levels of the administration. For example, it is common for the government licensees like Public Distribution System agents to sell food grains on the black market. So food grains supplied to PDS shops for distribution to the poor never reach the intended population.
The effect of this form of corruption is devastating, particularly in rural areas. The state police, an agency mandated to take action against this, are equally or even more corrupt. It is public knowledge that recruitment and promotion in the police, particularly for the lower and middle ranks, is made after paying huge amounts in bribes. It is equally known that the majority of officers soon start recouping the money by demanding and accepting bribes.
Similar inefficiency exists in state-run health centres. Government hospitals are understaffed and ill equipped. In rural areas, public health service centres remain closed mostly throughout the year, denying health services to poor villagers. Schools are equally poorly staffed. Some government schools remain closed or in a nonfunctional state as the infrastructure is not safe to house children.
The poor in villages mostly face the brunt of this administrative neglect. The state has a predominantly rural population, of which an estimated 11 per cent is uncounted due to caste prejudices and errors in census data. The state is home to malnutrition, starvation and high mortality rates. A high per centage of those who face this harsh reality are members of the Dalit community.
Almost 90 per cent of Dalits work as landless agricultural laborers. Yet when the central government initiated discussions on a national land reform policy and law, Mayawati’s BSP was in the forefront to oppose the move.
A national land reform law with statutory limitations on individual and collective land holdings would help to improve the living conditions of the poor. A state like Kerala, where such policies have long been in force, has proved that land reforms not only reduce poverty, but also have the potential to end caste-based discrimination.
Against this backdrop, Mayawati and her government are preparing for a statewide celebration of the government’s third year in office. An estimated one billion rupees (US.9 million) will be spent building white elephants in the coming years. Will these monuments be remembered as the glory of a Dalit leader or the ghosts of her reckless administration?
Police worse than criminals & permission to torture
Describing policing in India does not call for any positive superlatives. The police force is a state entity that is criticized and often treated with contempt. Corruption, ineptitude and the use of arbitrary force are some of its features. Yet in times of extreme necessity it has tried to deliver results. The Mumbai terror attacks were the latest example.
The Indian police, like many other government institutions, are a product of colonial times. Indians are indebted to the British for many state-run establishments like the railways, postal services and even the basic administrative framework that runs this diverse country. Most of these state institutions have accommodated change and undergone drastic restructuring. Yet the state of affairs within the police force has seen little change in the past 62 years.
It is true that the colonial police were far different in appearance from current policemen. But changes in policing have been largely cosmetic. New uniforms are not real change. The administrative principles and philosophy behind the police force in India are still tainted with distrust — by superior officers towards those of lower rank, and by ordinary people towards the police, and vice versa.
This lack of change is intentional. Politicians who ruled the country for the past six decades and more at no point wanted a police service independent of political interference. So they successfully retained the system whereby police services were subjugated to the political authority of the ruling elite or political parties. While superior officers were rewarded for their political allegiances, lower-ranked officers were left at the mercy of their superiors.
Corruption, nepotism and the use of brute force are inherent evils within the policing system, irrespective of the political colour and ideology of the ruling government. The police are primarily used for social control. It is therefore natural that criminal investigations are given the lowest priority. This is a sentiment dating back to colonial times and is reflected in the current infrastructure deficit in the police services.
Most police officers lack investigative tools and training. Yet they are provided with combat weapons to control people. Police training at the constabulary level is focused on mob control while criminal investigation is ignored. Police officers below the rank of superintendent do not even know the basic legal framework of the criminal law, and no regular academic training is provided for these officers.
In such an environment, criminal investigations are conducted with brute force at the whim of the investigating officer. It is a common story that unless there is political pressure or incentives driven by bribes, police officers refuse to investigate crimes. Those that are investigated begin and end with a confession. Most investigations result in acquittals.
Over the past several years there have been attempts to address the problems within the police service. The National Human Rights Commission, the Supreme Court and its subordinate courts as well as the civil society have spearheaded most such efforts.
Unfortunately, India does not have a functioning National Police Commission. One that came into existence in 1977 was smothered to death by May 1981 and the government largely ignored its reports — eight in number.
Skeptics may argue that it is an irresponsible generalization to say that Indian police rely on torture to conduct investigations. They may think such incidents are rare. But let us examine the story of a 15-year-old Dalit boy named Nitish.
Nitish was taken into custody by police officers from Kodungaloor Police Station on 13 January 2009. Kodungaloor is a temple town in the southern state of Kerala. Nitish was arrested on temple grounds while watching a festival procession with friends.
An officer took Nitish to the police station, where he was brutally tortured by a probationary police sub-inspector and police constables. The officer wanted Nitish to confess that he was a thief responsible for several unresolved cases that had been registered with the police.
The boy’s family soon came to the police station, bringing along a politician for support. The probationary officer summoned Nitish from his cell. The officers had stripped him naked and he was bleeding from his wounds. The officer then caned Nitish in front of his parents and the politician.
The boy’s mother lost consciousness and collapsed inside the station. Later, the officer released Nitish after ‘advising’ his parents that Nitish required “proper grooming”, which he had demonstrated. Before letting Nitish go, the officer filed false charges against the boy.
When the family approached a superior officer to complain about the incident, the officer said they could not expect the police to buy good food for suspects to get them to confess to their crimes.
This attitude is not isolated. The speaker of the Kerala Legislative Assembly, K Radhakrishnan, while inaugurating the 2008 Annual State Conference of police officers, said that police would have to use their “tools” while investigating a crime, for which “third degree” methods were essential. The speaker further clarified his position that human rights were an impediment to criminal investigations, a sentiment shared by police officers and many policymakers in the country.
A few months after Radhakrishnan’s public statement supporting torture as an investigation tool, on February 2 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. A police officer held Komal up by her hair, twisted her ears and rained blows on her, demanding that she confess to an act of theft.
India allows law-enforcement agencies, particularly the police, to practice torture. As one of the most visible representatives of the state, the police can implement its directives in society through fear. Criminal investigations in India often begin and end with a confession. Fair trials have no place in such an environment.
The tendency to brutally abuse the weak is deep-rooted in the minds of the Indian people. In fact, the subcontinent has been the cradle of this practice. The temporal basis for the superiority of Brahmins, or high-caste elites, forms the foundation of the caste system, which justifies the use of brutal force to suppress weaker sections of society. To succeed, ill-conceived notions of divinity require unchallengeable restrictions imposed on those who are expected to remain outside the “divine caucus”, which in the caste hierarchy are those lower than Brahmins.
Torture is not viewed as a criminal act in India, but as a symbol of authority, a means to enforce discipline and retain social control. That is why torture is not carried out in the secrecy of a detention centre, but in full public view.
Law-enforcement officers also use torture as a tool for extortion. This behavior has distanced law enforcement officers from the ordinary people. In fact, ‘law-enforcement agency’ has become a misnomer in India; public perception is of state-sponsored criminals in uniform.
It is common practice in India that ordinary individuals, if required to interact with law-enforcement agencies, will first seek assistance from politicians to avoid intimidation, abuse or arbitrary detention. Corrupt politicians use 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 a 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, a fair trial is negated.
Currently, there is no law in India that criminalizes 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-recognized definition of torture as envisaged in the UN Convention against Torture 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 to “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 “jus cogens,” a peremptory norm in customary international law.
The condemnation of the crime of torture and its expanding horizon was envisaged as early as 1992 by the United Nations in General Comment 20. The legislative process in the proposed law is seeking to keep all this away from Indians.
The proposed law also prescribes parameters to its operation by limiting the time in 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 possible suspects, a law criminalizing torture must include these.
So far, the government has not initiated any discussion or debate concerning the proposed law. Civil society groups made use of the International Day in Support of Victims of Torture, June 26, as an occasion to do so in its stead. For these discussions to be meaningful, civil society must also analyze 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 quintessence of democracy is governance through consultation. Torture prevents dialogue and discourages consultation. Complaining against torture is complaining against the state. The discouraging of a complaint is demoralizing to the complainant. Complaint is also a form of expression. Freedom of expression and speech cannot coexist with torture.
Yet, the Indian media opted to maintain blissful silence on June 26, by not devoting enough space to speak about the International Day against Torture. The silence exposes the lack of appreciation and understanding of the Indian media of the importance of torture and the destructive role it plays in undermining free speech and expression. It also illuminates the professional neglect the media entrains against people’s concerns.
The government of India has so far denied that torture is 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 fulfill 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.
Attacks on courts and trafficking of women
On 19 February 2009 police stormed into the compound of the Madras High Court, destroying vehicles and assaulting lawyers, their clients, onlookers, court staff and even a judge. They also marched into the courtrooms and offices inside the court building and attacked people.
All of this was done in the name of countering a call to strike by lawyers practicing at the court in Chennai, in the southern state of Tamil Nadu. The Indian police once again showed their true colours.
As expected, there was an immediate response from the judiciary and the Bar Council of India. Two enquiries got underway, one headed by Justice BN Srikrishna as directed by the Supreme Court, and the second by the Central Bureau of Investigation.
The Chennai incident has brought a serious response only because the High Court is involved. If the day-to-day activities of the Indian police are examined, one can see that enforcing the law is their last priority.
For instance, officers of the Uttar Pradesh state police stationed in Varanasi district are actively engaged in human trafficking. This includes officers ranging from ordinary constables to Indian Police Service cadres.
Women, particularly young girls, are trafficked into Varanasi from various parts of India and neighboring countries like Bangladesh and Nepal. In Varanasi they are kept in brothels in and around a place called Shivdaspur, where they are taught the ‘skills’ of the trade. Often this means repeated rape for days.
Those who protest are subdued with other forms of physical violence and food deprivation. After days of starvation and violence, sex is demanded in return for food and as a guarantee to stop the violence. A woman or child in this situation learns in a few short weeks to be compliant.
After undergoing this strict ‘disciplining course’ under a madam or manager, the women and girls are sold to other brothels in India or abroad. Prospective buyers come from cities in India like Mumbai and Kolkata, or if from abroad mostly from the Middle East.
This trade could not survive without the knowledge and connivance of the city police. The human rights organization Guria attempted in the past to work with the city authorities, particularly the district magistrate, who is mandated to prevent human trafficking; however, its efforts were in vain.
On receiving a complaint the magistrate would direct the police to assist Guria in rescuing women and children from brothels the group had identified. However, by the time the activists arrived at a brothel with the police — who often turned up only after hours or days had passed — there would be no women or girls there.
After several such attempts, Guria tried to locate the ‘leak’ in the chain of information. As expected, it was from the police or those associated with them at the district magistrate’s office.
Embarrassed and frustrated, Guria tried to carry out its own rescues, after informing the police but not waiting for them to act. One such operation was carried out in October 2005, with every step documented on video by the media to expose the culprits. Sufficient precautions were taken to safeguard the privacy and anonymity of the women and girls rescued.
The police did arrive at the scene once the operation was over, only to arrest Guria’s volunteers and the rescued women and children. The police registered false cases against the volunteers, which included students, teachers and human rights activists.
While dozens of complaints by Guria went unregistered at the city police station, a single phone call from one of the most notorious pimps in the locality, named Rahmat, fully mobilized the police to arrest Guria’s volunteers. Guria is still fighting the case.
The police came under immense pressure from national and international human rights groups to arrest Rahmat, but he threatened to divulge his links with the police and other “important” people in the state if any action were taken against him. As expected, Rahmat was shot dead within weeks, outside the city.
Of course, the police claimed that he was trying to escape and they had to shoot him in self-defense, a story Indians have heard thousands of times. There was no enquiry into the incident. After all, Rahmat was a notorious pimp, and many persons — particularly some police officers — wanted him to stay silent.
Similar incidents happen throughout India every day, though only those that involve “high-profile” characters are reported.
The protest by the Tamil Nadu police in not bringing detainees to the court will have little impact, as extension of remand and other court proceedings are often carried out in the absence of detainees, even though the law mandates otherwise.
In many parts of India it is common practice for local police not to present detainees before the judicial officer, who also fails to follow the law. Procedural inconveniences are cited as excuses for breaching this right of the accused. In Tamil Nadu it is common for the police to bring detainees to the court compound but keep them in the police vehicle till evening, while their cases are discussed in court.
Relatives of detainees surround vehicles in which accused are kept and bribe police constables to get the detainees brought before a judicial officer, or at least to give some food. Those who protest are not brought to the court at all.
Ordinary Indians are forced to put up with the behavior of the police. Now that the judiciary and rich lawyers in Madras have been their victims, it remains to be seen how far they will go in handling them, and whether they have the will to fight them without compromise.
Violence against police no surprise
An angry mob beat up a police constable in Kanpur town of Uttar Pradesh this February, accusing the police of causing the death of a poultry farmer named Gajraj Singh.
Singh was taken into custody by the police for questioning on Saturday and was found dead the next morning. Reportedly, his crime was refusing to provide free chickens to the police.
As a crowd gathered around the dead body of Singh, police constable Ram Kumar Patel and his fellow officers tried to ward off the people. The crowd lost their temper and attacked Patel, while his colleagues fled.
Law-enforcement agencies, particularly the police, enjoy an unenviable position in Indian society. The public see the police as criminals in uniform, paid from the state exchequer. The police alone are responsible for this shoddy image. From top to bottom, from recruitment to retirement, the police service is corrupt, irrespective of region.
It is common knowledge that recruitment into the police force is based on bribes rather than merit. In theory, the State Public Service Commission makes appointments to the police. In practice however, only those who bribe the political party controlling the state home ministry or the minister are appointed.
In addition to the bribe paid to political parties and to the members of the commission, the candidate is also expected to bribe senior police officers involved in the recruitment process.
The standard bribe paid for an appointment to the police service ranges between a million and 10 million rupees (US,000 to 0,000). This amount could be double if the appointment is to a higher rank. This means that a police officer, irrespective of rank, is corrupt from his first day of service.
Bribes are also expected for promotions and transfers. Postings in cities and ‘lucrative’ positions like airports are ‘sold’ for higher bribes. The bribe is fixed according to the amount a police officer can expect to extort from persons while serving in the post.
Promotions are based on similar criteria. Police officers in India are thus experts at extortion. It would be hard to find anybody in India who is not aware of this reality. Honest police officers are an exception in the country.
To make matters worse, police officers receive very little training to prepare them for duty as a law enforcement officer. Most officers receive no physical training beyond their induction training, which focuses on using brute force. The syllabus for intellectual training is often limited to certain aspects of law. Officers are often unaware of developments in law and practice.
Most often, the training focuses on how to circumvent the law. Training in human rights and procedural laws, for instance, is given from the standpoint that such laws are an occupational hazard, rather than laws and regulations an officer is mandated to follow. Once the induction training is completed and the officer is commissioned into service, that’s the end of his training.
The very appearance of the police officers tells much. A recent survey conducted by the Union Home Ministry concluded that more than 40 per cent of police officers in India are obese and suffer from ailments induced by being overweight. Denial of appropriate physical and intellectual training is intentional.
Politicians perceive the police as a state agency that is expected to serve its political masters. This means being available at the whim of the ruling political party, which reduces the police service to a role similar to a housemaid. In every state there are at least two-dozen senior police officers that perform this task most obediently.
According to changes in the state’s political power equations, these officers change their allegiances. As the most senior officers in the state, they drag the entire police force with them. This results in loss of morale.
Shifting political alliances is not the only reason for lost morale. In addition to being the housemaids of political masters, the police are also expected to ‘clean up’ the mess that politicians create. They are often required to destroy evidence in criminal cases, to provide cover for corrupt practices and to arrest or release persons at the will of their political masters.
Often, petty politicians in a locality make such decisions. The local police in West Bengal and Kerala, for instance, are directly under the illegal command of the local party secretaries. It is common practice for police stations to receive telephone calls from the representative of a local political party directing the detention or release of persons. To ensure such manipulation, it is essential that the police force be denied training and exposure.
Those who face the maximum brunt of all this are the poor, since the middle class and the rich can ‘buy’ their way out of the police grip. When pressure mounts on a police station to solve a case, the most common tactic is to arrest a poor person and torture that person to confess to the crime.
In this environment, the incident reported from Kanpur comes as no surprise. It is natural for people to lose their temper and fear the police. Unfortunately however, the response by the police to such incidents is one of immediate suppression.
Until the Kanpur incident is understood as a manifestation of a deep-rooted distrust between the police and the people, similar incidents can be expected and might even increase in India. Only if this situation is set straight will there be a change in the status quo.
Ineffective and corrupt courts
Late last week, miscreants from the Communist Party of India (Marxist), which is the ruling party in Kerala, attacked a police station there. An hour before the attack, a few ‘comrades’ were taken into custody by the officers for causing a public nuisance under the influence of alcohol. They were obstructing traffic on a public road near the police station.
As news of the arrests spread, friends of the miscreants marched into the police station. Along with those in custody, they shouted at the police, asking how officers dared to arrest members of the ruling party, and started assaulting them. Hearing this news, the sub-inspector arrived at the police station. However, he was severely assaulted and was rushed to a hospital.
The state police association, citing this incident and 1294 other similar incidents that have happened in the past four years, has since requested the state government to take strict action against those who assault police officers.
The fact that the police are seeking government assistance to take action against those who assault them illuminates the hopeless situation of the state police and the control that politicians exercise over them. It also raises questions about those who are assaulted by the police.
India’s Supreme Court has attempted to address these issues in a series of judgments. As early as 1978, the Nandini Satpathy case raised the issue of an accused person’s right to remain silent under investigation. The Charles Shobraj and Sunil Batra cases discussed and confirmed the rights of prisoners.
The Raghbir Singh case dealt with the issue of torture, where the court condemned not only its practice, but held the government responsible for the acts of state agents. The Francis Coralie Mullin case dealt with the issue of preventive detention and laid down the rights of a detainee in preventive custody. In the Sheela Barse case, the court said that a citizen has a right to know the living conditions of prisoners inside a prison.
The jurisprudence laid down by these cases not only affirmed the fundamental rights of the accused and convicts, but further reiterated that custodial torture is unacceptable in law.
In the DK Basu case the court went one step further by detailing the procedures to be followed during the arrest, detention and questioning of a person. The court did not stop there. It directed the government to publish its directives in every police station and detention centre in the country as a permanent public notice. Yet, day after day, people are tortured, raped or murdered in police custody.
Meanwhile, in the Prakash Singh case the court addressed yet another issue, that of unwarranted political control of the police. This time too the judges literally stepped out of the Supreme Court building asking the government to come up with measures to meet the court’s directives to replace malicious political control with laws and procedures. The court fixed a time limit for the government to fulfill the directives, which included setting up a Police Complaints Authority to receive complaints about erring police officers.
The government responded, first by dragging its feet and resorting to delaying tactics, including a review petition, which the court dismissed with certain contempt. Left with no other option, the state governments drafted laws that if practiced would have no purpose.
Now in many states there are such authorities. But two years after they came into existence, not many in India, including police officers and judges, are aware of these institutions. This explains why there aren’t any cases registered in the country on the basis of complaints received by these institutions.
The negation of the court’s directives by the government and the police is proof that India¡¦s courts cannot solve deep-rooted problems. The impunity and the utter lack of accountability associated with policing also prove that politicians in the country are not interested in improving the state of policing.
A country where one-third of elected representatives, irrespective of their political allegiances, face charges from murder to rape cannot expect to have a legislative assembly that would enact and implement laws to curtail the “freedom” of corrupt politicians. Neither can a police force that has benefited from corruption be expected to press for any change in the status quo.
To make matters worse, within the judiciary and related agencies too corruption and other bad practices are omnipresent. Lawyers accepting money from both sides in a case are no longer news. Often, lawyers prefer adjournments of cases since each additional day of hearings fetches them money. They can stall cases by paying court staff. Officers ranging from the court registrar to the process server demand and accept bribes. It is almost impossible for papers to be processed in the court registry unless court staff are paid bribes.
The chief justice has said that the judiciary requires judges who are committed to social values, and has emphasized training for judges. However, a value system cannot be inculcated into a person by mere training, to be applied while in the judge’s chamber, if it differs from his practice outside the chamber.
Some practices within the judiciary are alien to the concepts of decency and human and professional dignity. Some would shame feudal lords. For instance, if a senior judge visits the jurisdiction of a subordinate judicial officer, even on a visit with his family, it is common practice for him to require the subordinate officer to serve as his orderly during the visit. Such showy and egotistical practices cannot be changed by training, but could be stopped if members of the judiciary would treat a judge’s office as higher than that of a corrupt politician on public show.
A judge’s dignity is not based on his “social value,” but on his knowledge and skill in applying the law. A judge who is morally degraded by his superior officers cannot be expected to be fair and impartial in applying the law.
The standard of the Indian judiciary has degenerated in the past three decades and the degradation process has been especially rapid in the past 10 years. This contradicts the fact that in the past 10 years judges’ conditions have improved considerably. An Indian judge is no longer a poorly paid public servant. Yet cases implicating members of the judiciary in corruption and other scandals are on the increase.
The fact that judges are increasingly prone to corruption is an indicator of its prevalence in the broader society. For instance, some judges allegedly turn a blind eye to accusations that their relatives accept bribes, in the judge’s name, for fixing cases.
The government is also not committed to developing the justice system. The judiciary receives negligible financial support from the government. Vacancies are left unfilled and infrastructure is minimal. During the past 60 years, government spending on judicial institutions has been negligible compared to ministerial projects or defence. This neglect is intentional. Smothering the judiciary creates better prospects for corrupt politicians.
The worst dent is in the criminal justice administration. Public prosecutors serve under poor conditions that cannot attract high-quality professionals. Appointments are publicly auctioned, where the highest bidder is offered the post. Such payments are no longer made in secrecy. It is a common practice among public prosecutors and government lawyers to demand bribes from litigants. When appointments to these important offices are determined by political affinities and the size of bribes, it is natural that merit and skill will decline within the entire criminal justice machinery.
Internal instability is India’s worst threat
Seven-year-old Juni Kumari was found missing from her house in Ghagni village in Bihar on 12 August 2009. Three days later her body, with head shaven and sandalwood paste on her forehead, was found abandoned in a sugarcane field near her village.
Finding her daughter murdered, Juni’s mother filed a complaint with the local police. Investigations revealed that the girl was a victim of human sacrifice conducted by some Hindu priests in the village. The police reportedly arrested a priest, the prime suspect in the case.
On August 17, in Ahmedabad district of Gujarat, Muslim and Hindu communities started an armed riot over the petty issue of a religious procession passing by a Muslim school. The police had to resort to firing guns to disperse the fighting mob, which in a matter of hours destroyed buildings and looted properties and business establishments.
On July 23, in a fabricated ‘encounter” — an incident in which police intentionally shoot a suspect or accused person under the guise of self-defense — police commandos in the city of Imphal, capital of Manipur, killed Chungkham Sanjit, a 27-year-old youth. In the same incident a woman, seven-months pregnant, was killed, while five other civilians were seriously injured.
Justifying this atrocious incident in the state legislature later that day, Chief Minister Okram Ibobi Singh informed the state and fellow legislators that terrorism could only be controlled by firm police action. In a single statement Singh not only justified the irresponsible police action, but also declared the two innocent civilians killed were terrorists, denying their families even a simple apology.
Despite the many internal threats like those cited above, Indian Prime Minister Manmohan Singh in his Independence Day address to the nation on August 15 said, ‘Terrorism and border infiltration from the neighboring countries is the greatest threat the nation faces.’
External threats have been and will remain a threat to India’s internal security. However, such threats are not unique to India or for that matter to any particular state. Threats from outside the nation’s borders gain seriousness in a country where internal stability is weak.
It is similar to the human condition: a person becomes more vulnerable to infection when his or her internal defensive mechanism is compromised. In such a condition, any sensible physician would first attend to the patient¡¦s immune system rather than focusing on removing external pathogens over which neither the patient nor the physician have much control.
The prime minister of India plays a role similar to that of a physician. If the focus is merely on external threats over which the country or its government has no effective control, it cannot improve the country’s security.
The biggest threat to India’s internal security is its own law-enforcement agencies. Atrocious acts involving serious violations of policing standards — like what happened in Imphal — have isolated law-enforcement agencies from the people. A law-enforcement agency that lacks the support and confidence of the people can neither enforce the law nor be of any help to them.
There is no legislative or normative framework in the country to control its law-enforcement agencies. Accountability and transparency are unheard of within India’s law-enforcement community. Officers are notorious for corruption and the use of arbitrary force on suspects rather than seeking real solutions to crime.
In India, the use of torture and the practice of extrajudicial execution are so rampant among the police that the term ‘law enforcement’ has become a misnomer when referring to them. But neither politicians like Singh nor other policymakers in India are interested in addressing this issue. Instead, the rhetoric is about threats from outside the country.
In reality, focusing on external security threats is like placing a scarecrow in a paddy field where worms left unattended have already eaten the grain.
Lethargy promotes corruption
India’s former Home Minister Buta Singh was once again in the news this July, but for the wrong reason. Singh, who is chairman of the National Commission of Scheduled Castes and Scheduled Tribes, was in the news after his son, Sarbhoj Singh, was arrested and charged with corruption.
The Central Bureau of Investigation arrested Sarbhoj, accusing him of having approached the accused in a criminal case, offering him a compromise over alleged crimes against members of a ‘scheduled’, or low caste. The case falls under the mandate of the commission his father heads.
Singh and his sons are no strangers to controversy. Before his current appointment, Singh was governor of Bihar, a state notorious for underdevelopment, corruption and crime. Buta’s two sons, Sarbhoj and Arvinder, were accused of corruption and using their father’s office, connections and influence for illegal profits.
Corruption is not new in the Buta household. Singh himself was convicted, along with his co-accused former Indian Prime Minister Pamulaparthi Venkata Narasimha Rao, in the Jharkhand Mukti Morcha bribery case in 2000. The Delhi High Court acquitted both Rao and Singh in an appeal in 2002, as it found the testimony of one of the prime witnesses in the case, Shailendra Mahato, unreliable. Cleared of these charges, Singh soon regained his lost position and titles.
The chairman’s office at the National Commission of Scheduled Castes and Scheduled Tribes is a relatively low-profile job compared to other highly influential positions available in New Delhi. Yet, as circumstances and events prove, this office has become yet another card for a corrupt mind to mint illegal profits.
Given his track record, Singh is not the right choice to occupy the office of a national institution. Yet the question remains why such shady characters find their political seats assured in the corridors of power in India. The reason is that, although corruption and nepotism are a curse for the average Indian, they are a blessing for corrupt politicians in the country.
Appointments to important offices are made on the basis of the political, religious and financial influence of the candidates. Appointments ranging from key positions in various state and central government ministries to relatively unimportant offices at the state and national commissions are based on nepotism.
The example of Buta Singh is just one straw in a large haystack.
Corruption prevails in India because the perception about what amounts to corruption is very weak in the country. While direct and indirect instances of corruption are prosecutable crimes in the existing legal framework, an independent agency to investigate corruption does not exist.
The CBI, a central agency originally created to investigate allegations of corruption, is burdened with investigating and prosecuting many other cases besides corruption. The trust in local police by ordinary citizens is so low that for every other issue assistance of the CBI is sought, and in many instances allowed.
At the core of the issue is the inability of the country to deal with corruption. Lawmakers and lawbreakers equally depend on corruption for their survival. Even the courts are not immune to this curse. In addition, the direct engagement of some suspicious characters in corrupt practices within the Indian judiciary causes enormous delays in the justice process and facilitates still more corruption.
Corruption hurts the rich and poor alike. Yet it is often the poor that face its brunt. At the end of the day, the question remains whether India is able to deal with this problem.
India has the largest network of Dalit, or low-caste “untouchables,” human rights organizations in the world that are the direct beneficiaries of national institutions like the National Commission of Scheduled Castes and Scheduled Tribes.
The failure of the Dalit movement to take up the case of Singh, a shady politician accused of having worked against the interests of the community, is just one example of the lethargy that exists in the country to deal with corruption.
Political violence and India’s challenge
The government of India banned the Communist Party of India (Maoist) on 22 June 2009, following a series of violent incidents orchestrated by the party. Such violence had intensified in the past few months.
Violence is never justified as a political tool, and it is worse when it results in the loss of life and property of innocent civilians. On those grounds alone, the prohibition against the CPI (Maoist) is justifiable. However, it is not the only organization that relies on violence ¡V most political parties in India use violence with impunity to meet their ends.
Two factors make the CPI (Maoist) different, however. First, it has increasingly gained popularity in India’s rural villages. Second, it has not yet attained the political clout of its counterparts, like the Vishva Hindu Parishad, in national politics.
It is an anomaly that organizations like the People’s Democratic Party, a fundamentalist group responsible for horrendous crimes, are allowed to be part of state governments while the CPI (Maoist) is proscribed. The PDP and the CPI (Maoist) are equally bad. However, decisions in India are often not based on equity.
Apart from the indiscriminate use of violence, which in itself is despicable, the CPI (Maoist) is a victim of its lack of political influence and the senselessness of its leadership in choosing to wage an armed insurrection against the might of the Indian state.
Soon after the prohibition order was issued the CPI (Maoist) issued a statement, allegedly by its top leadership, threatening death to Indian Prime Minister Manmohan Singh, chairwoman of the ruling United Progressive Alliance, Sonia Gandhi, and Union Home Minister P Chidambaram. The statement illuminates the party’s intellectual paucity.
The CPI (Maoist) has its roots among the rural populace in India, like in West Bengal. The Communist Party of India (Marxist) has ruled the state for more than three decades, and its massive voter bank has been the state’s rural population.
For decades under the CPI (Marxist) rule, the needs of villages and their populations were ignored by the state administration. The writ of the state was absent beyond the clamor of its deteriorating cities. The CPI (Maoist) occupied this administrative vacuum. The state administration was not even aware of the increasing hold of the CPI (Maoist) in their villages. Eventually, when the administration responded with force, the CPI (Maoist) was able to keep at least one district under siege for days.
When the state administration failed to reclaim its authority, it had to request help from the central government for additional force. By the time the district was freed from the clutches of the CPI (Maoist), a number of lives had been lost.
Parallels of this situation can be found in the Swat Valley of Pakistan. The only difference is that in Pakistan it is the religious fundamentalists, whereas in India it was the CPI (Maoist).
The CPI (Maoist) and Naxalites, or communist groups that belong to various schools of Maoism, could find root only in rural villages. A cursory glance at these villages, irrespective of region and language, shows that they are in some of the most neglected regions in the country.
Malnutrition and extreme forms of exploitation of villagers and their resources are common under the feudal, upper-caste landlords that replace the administration in these villages. For a villager in these places, joining an armed movement is the only way to fight exploitation. It is natural thus for an armed movement like the CPI (Maoist) to take root in these villages.
Yet, some people in India are of the view that in order to establish the rule of law in these villages, extremist movements like the CPI (Maoist) must be wiped out. For this, they advocate the use of arbitrary and brute force with impunity. A recent column published in Frontline magazine by Bhaskar Ghose is an example. According to Ghose, once the rule of law is established by the use of brute force, development programs could follow to “win over” the population.
This proposition underlines the fact that these so-called intellectuals do not know what the ‘rule of law’ means. Nowhere is the rule of law established by allowing law-enforcement agencies to work with impunity. Arbitrary killings, extrajudicial executions and impunity for law-enforcement agencies are not compatible with the concept of the rule of law.
The experience of other Indian states — Manipur, Assam, and Jammu and Kashmir, where the same philosophy has been in force for the past few decades — has proved that this is a wrong approach. The current state of affairs in these states provides a living example that the arbitrary use of force undermines the rule of law and alienates people from the state.
The analytical dishonesty of these supposed intellectuals requires no further proof than the contradictory positions they take on issues outside India, like the US intervention in Iraq and the Israeli action against Palestinians. What is their logic in thinking Indians and their fundamental rights are less important?
Why no debate over appointees in India?
In June the United States media was full of news and articles concerning the president’s nomination of Judge Sonia Maria Sotomayor to the Supreme Court. Both print and electronic media were full of opinions and reviews.
Jurists, politicians, scribes and ordinary citizens were competing in providing analysis, information and sometimes gossip about Sotomayor. Dominating the discussions were citizens’ expectations concerning the candidate and to what extent she met those expectations.
In short, there is an ongoing public debate in the United States about the appointment.
During the same time, a similar discussion was under way in India, the world’s largest democracy, about the appointment of ministers to the central Cabinet. However, the discussions in the Indian media mostly focused on the personal details of these individuals — to which family they belonged, their religion, their favorite foods and their clothing choices. Not many were interested in the qualifications of these individuals who were appointed as ministers to serve the country.
Thanks to the thorough media analysis, the general public now knows which of the new ministers prefers spicy food and which likes boiled vegetables. But not many people are aware if any of them are experienced enough to lead the country.
The media, particularly newspapers, have a prominent role to play within a democracy. If the media provides access to information and the skills to analyze it, it can augment the intellectual growth of a community.
There are media in India that play this role. In the past five years they have exposed some of the most notorious incidents of public corruption. Some of the scandals even exposed corruption within the judiciary, an institution that many are afraid to criticize. But in the larger picture, media outlets with good financial resources have downgraded themselves to mere advertisement space for multinational or private companies, or political parties.
In the past decade there has been an influx of private television channels in the country that compete with each other for viewers. The access of the ordinary person to the electronic media has also increased considerably during this period. In the competition to attract viewers, most of these channels broadcast soap operas and TV series, with the intervening space filled with advertisements. Dissemination of news has become one of the last priorities.
Even when the news is broadcast, most of the mainstream outlets use jargon and phrases that convey the wrong message to the people. One such term is “encounter.” It is common to find this word in the Indian media, in expressions like ‘encounter specialist’, or ‘encounter killing’.
“Encounter” is a term used by Indian law-enforcement agencies to justify the use of force. Encounter killings are nothing but murder. But in India, the law-enforcement agencies make use of the term “encounter” to justify such murders.
Seldom do the Indian media try to find out what an “encounter” actually entailed, or even who was killed. The use of such terms can give the average reader or viewer a message that is the exact opposite of the reality.
It is difficult for citizens to be rightly informed about their surroundings. In a country that suffers from a relatively high degree of illiteracy and poverty, the choices available are limited. In its current role, the majority of the mainstream Indian media — the fourth estate in a democracy — offers very little by way of informed choice, even to those who can both understand and afford access to it.
Footnote: This article consists of the edited text from a series of weekly commentaries, entitled Incredible India and written for UPI Asia during 2009. The column can be read online at: www.upiasia.com/columnist/Bijo_Francis.
