Asian Human Rights Commission, Hong Kong
Over the past two years, India has been attempting to address problems adversely affecting its law-enforcement 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 law enforcement officers emanates from an 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 were changed from traditional khaki to blue, as was the suggestion, people would lose their fear of 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 law enforcement agencies in the country. This, however, is not the fault of individual police officers, but rather the result of the 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 ceased to exist in May 1981, 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 of the reasons for the country’s failing democratic experiment.
Over the past six decades, modernisation of police in the country has been mostly superfluous, and limited to changes like increases in the length of trousers, differences in the insignia and the change in the letters ‘IP’ (Imperial Police) to ‘IPS’ (Indian Police Service) on officers’ epaulettes. Even if one were to argue that there are indeed some changes, though not adequate, 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 for 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 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 professionalism and respect for equality, and engage in acts that negate democratic philosophy, in particular, acts of torture.
Torture has nothing in common with democracy. And although India claims to be the world¡¦s largest democracy, it still lacks a legal framework in which torture is criminalised.
The lower house of the Indian Parliament, the Lok Sabha, passed a Bill entitled the Prevention of Torture Bill, 2010 on 6 May 2010 after a short debate. However, a simple reading of the debate shows how ill-informed the country’s law makers are 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 members who mostly repeated opinions already made by others. The triviality with which most members approached one of the most important pieces of legislation in independent India was crystallised in a member¡¦s speech in which he 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 to the developments in jurisprudence on the subject globally during the last two decades. The Indian legislators competed to demonstrate their illiteracy about the subject and the serious adverse impact that the use of torture has upon democracy, democratic institutions and the space democracy provides for dialogue. 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 [against Torture] 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. As discussed further below, 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, threats and other forms of intimidation do 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 is 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, 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 compared to 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. Why should there be a limitation clause fastened to a crime that the world considers a crime against humanity? The proposed law also lacks any provisions for important elements required for the effective implementation of the law, like witness protection and independent investigation.
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 achieved though the attempt is to enact a farcical law, the national media has largely ignored it, since most journalists are also oblivious 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.
Notwithstanding, on 31 August 2010, the upper house of the Indian parliament, the Rajya Sabha, constituted a Parliamentary Select Committee to review the Prevention of Torture Bill, 2010. The committee, chaired by Mr. Ashwini Kumar has Dr. E. M. Sudarsana Natchiappan, Mr. Shantaram Laxman Naik, Ms. Brinda Karat, Mr. Naresh Gujral, Dr. Janardhan Waghmare, Mr. Ahmad Sayeed Malihabadi, Dr. Vijaylaxmi Sadho, Dr. Ashok S. Ganguly, Ms. Maya Singh, Mr. S. S. Ahluwalia, Mr. Kalraj Mishra and Mr. Satish Chandra Misra as its members.
The notification issued by the committee invited suggestions and opinions about the bill to be submitted to the committee on or before 22 September 2010. The following is the review and suggestions of the Asian Human Rights Commission (AHRC) concerning the bill, which it has submitted to the committee for its consideration.
Introduction
The practice of torture is endemic in India. It is believed that torture, in its cognate and express forms, is practiced in every police station in the country. In addition to the state police, other law-enforcing and security agencies like the Border Security Force, Central Reserve Police Force, Forest Guards, and Customs and Central Excise officers also resort to torture in India. We have come across cases where the state agencies have tortured persons for various purposes unrelated to law enforcement or crime investigation, including but not limited to extraction of bribes and the silencing of opposition.
Over the past seven years, the AHRC, along with its local partner organisations, has documented cases of torture from India. On each occasion we have brought the case to the attention of the relevant authorities in the country and have requested the government to undertake an impartial and prompt investigation. From our experience of intervening in these cases, we have understood that the practice of torture has introduced a high degree of fear of state agencies into the psyche of the ordinary population. The AHRC is of the opinion, and is certain that the committee will agree, that this fear of law-enforcement agencies among ordinary citizens has in fact isolated these agencies from the people they are paid to serve and protect.
The AHRC is certain that the committee is aware that in a democratic framework fear must not be the denominator with which law and order is maintained. On the contrary, fear generates mistrust, thereby impeding the establishment of the rule of law in a country. For this very reason the question of torture has remained the key area of the AHRC’s work in Asia.
We are certain that the committee is conscious of the seriousness with which torture is condemned in mature democracies. Torture being a crime committed by state agencies, it has remained and will remain a subject of intense discussion and condemnation internationally. It is a crime considered with such seriousness that today torture is considered as a crime against humanity.
At the moment, there is no functioning legal framework in the country that can adequately address the question of torture. Tackling the question of torture involves creating a respectable and independent mechanism where a complaint of torture can be lodged without fear of repercussions to the complainant; whereupon the complaint will be investigated promptly with the assistance of all modern crime investigation tools and the investigation lead to an impartial prosecution that can render a reasonable sentence as punishment to the perpetrator. There must be also a procedure by which a victim of torture can access and receive redress and adequate rehabilitation to regain the balance in life, which every victim of torture is certain to loose, irrespective of gender, social status, race and nationality.
For this framework to be established in India, what is required is a law that forms the basic legislative outline to deal with torture. As mentioned earlier, such a framework does not exist in India at the moment.
The AHRC is afraid that the current bill under the consideration of the committee is far too inadequate to lay the foundation for such a legislative and/or procedural framework. It is this aspect that the AHRC wishes to highlight to the committee in the following paragraphs and suggest possible ways with which it could be addressed before the bill is enacted.
The purpose of the bill and the definition of ‘torture’
The preamble of the bill states that the purpose of the bill is “… to provide punishment for torture inflicted by public servants or any persons inflicting torture with the consent or acquiescence of any public servant, and for matters connected therewith or incidental thereto…” and “…whereas it is considered necessary to ratify the said Convention and to provide for more effective implementation…” of the United Nations Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (CAT). For this to be realised, the primary requisite is to define what amounts to torture.
Section 3 of the bill defines the ‘act’ of torture. The section, however, qualifies torture to those acts which cause (i) grievous hurt or (ii) danger to life, limb or health (whether mental or physical) of any person. The bill in section 2 draws meanings to words and expressions used in the bill from the Indian Penal Code, 1860.
‘Grievous hurt’ is defined in Section 320 of the Penal Code as:
“[f]irst – Emasculation; Secondly – Permanent privation of the sight of either eye; Thirdly – Permanent privation of the hearing of either ear; Fourthly – Privation of any member or joint; Fifthly – Destruction or permanent impairing of the powers of any member or joint; Sixthly – Permanent disfiguration of the head or face; Seventhly – Fracture or dislocation of a bone or tooth; Eighthly – 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.”
Reading section 3 of the bill with section 320 of the Penal Code excludes several forms of torture that are routinely practiced in India. For instance, some of the most common forms of torture practiced in India at the moment are beating, slapping, punching, sleep deprivation and forcing a person to sit, stand or lie down in uncomfortable positions, often generating pain for prolonged periods. All these methods of torture need not always qualify as ‘grievous hurt’ as envisaged in section 320 of the Penal Code. Yet all of them would be considered as torture according to the CAT.
Additionally, the test of what amounts to torture has to be subjective as well as objective. This has been a settled position in international human rights law since 1978. The AHRC is certain that the committee will agree that Indians deserve equal treatment in law in comparison to anyone else elsewhere in the world.
The bill excludes metal torture. The AHRC is certain that the committee is aware that a person can be tortured mentally, without the perpetrator having to be in physical contact with the victim. Such practices are widely used, particularly against vulnerable communities like religious or racial minorities, children and women. For instance, threatening a woman or girl with rape or forcing a person of any particular religious belief to eat prohibited food–like a Muslim to eat pork or a Brahmin to eat beef–can amount to severe mental torture, which the bill at the moment omits.
The definition of torture in its simplest form is provided in the CAT. The AHRC urges the committee to suggest revision of sections 2, 3 and 4 to incorporate the letter and spirit of article 1 of the CAT in the bill, without which the purpose of the bill will be defeated.
In this context the AHRC wishes to submit and place on record before the committee a UN General Assembly Resolution sponsored by India in 1977. The Resolution requested the then-UN member states to make unilateral declarations of intent to implement and comply with the Principles of the Declaration on Torture.
The AHRC urges the committee to bring this resolution to the attention of the Honourable Members of the Rajya Sabha, and request them to assist the country in fulfilling the promise India made to the global community as early as 1977 in realising the effective prohibition of torture globally, and further, promoting universal respect of human dignity and the right of every human being to be free from torture. A proper law against torture will demonstrate the country’s commitment in letter and spirit to the promise it made in 1977.
On statutory limitation
Section 5 of the bill places a statutory limitation of six months for taking cognisance of an offense punishable under the bill. India acceded to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity on 12 January 1971. It is well settled that torture is a crime against humanity. Being party to the above convention, India is bound by the principle of pacta sunt servanda not to legislate anything that vitiates its treaty obligations.
It is true that ‘torture’ is not explicitly mentioned in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. But it must not be for India to pose a hindrance to the development of customary international law. In fact it cannot.
Law is not static. By virtue of the developments in international human rights jurisprudence post-1947, culminating in the drafting of the Rome Statute that established the International Criminal Court, torture can now be safely considered as a crime against humanity. Indeed, India has neither ratified nor acceded to the Rome Statute. However, India¡¦s refusal to accede to the Rome Statute and to submit to the jurisdiction of the International Criminal Court was not because–at least not on record–torture is considered a crime against humanity.
The principal objections by India against ratifying the Rome Statute are mentioned in an explanatory statement on the vote on the adoption of the Statute of the International Criminal Court issued by India’s then-Additional Secretary to the UN, Mr. Dilip Lahiri, on 17 July 1998. While enumerating India’s position against the Rome Statute, Lahiri did not argue against the inclusion of crimes like torture as a crime against humanity, triable by the ICC.
To substantiate further, the settled position of law in India is that the right not to be tortured has attained the status of a fundamental right by virtue of the interpretation of article 21 by the Supreme Court of India. However, the constitutional provision to have a ‘procedure prescribed by law’, which the current bill is, should not be a procedure to proscribe the scope of a victim to pursue remedies against torture.
The purpose of the legislation must be to criminalise torture, encourage complaints of torture, prescribe a reasonable procedure for investigation and prosecution and provide punishment for the crime. All this must be conceived as aiming towards ending the practice of torture.
At the moment, India is not a country where a victim of torture has congenial circumstances to lodge a complaint. Most victims of torture are from the poorest of the poor and from marginalised communities. This stratum of the Indian population itself makes up an estimated 60 per cent of the total population, amounting to hundreds of millions.
The expectation that everyone who is otherwise marginalised or having limited or even no resources at all can lodge complaints and pursue them within a short window of time defeats the very purpose of this law. This defeat implies that a victim¡¦s right to prosecute a torture perpetrator must be circumscribed by the operation of limitations built into an enabling law.
Requirement of prior sanction
No Indian statute condones the commission of a crime in the course of employment. Neither is torture an act that could be committed ‘in the course of employment’, since it is expressly barred by existing departmental orders and by virtue of judicial decrees.
Requiring prior sanction from the government to take cognizance of a crime of torture implies that in cases where the government denies the sanction, torture is condoned. It could also mean that if the bill is enacted, the right against torture and that of a victim to seek redress will be at the mercy of an executive decision. This is a proposition that will defeat the purpose of the law and further, go against the CAT.
Moreover, section 6 will be used as an excuse not to initiate investigations upon complaint. This will end in the destruction or erosion of evidence, which will adversely affect the rights of the victim.
Torture can be part of a state’s clandestine policies, particularly those to silence political opposition. Should section 6 be enacted, it implies the outright denial of prosecution of perpetrators in states where torture is widely used as state policy. No Indian state is an exception to this practice at the moment.
Additionally, the right not to be tortured being interpreted as a fundamental right, requiring a prior sanction to initiate prosecution of the case, would imply that section 6 of the bill is worded to restrict the realisation of a right. Further, section 6 will only contribute to the existing delays in the prosecution of cases, increasing the number of cases before the High Courts and the Supreme Court. At a minimum, taking a cue from Bikari Paswan¡¦s case in West Bengal and many thousands more, section 6 of the bill is destined to defeat the victim and protect the perpetrators.
The settled position of law in India at the moment is that public servants can face prosecution without prior sanction of the appropriate authorities, as all their acts in the purported discharge of official duties cannot be brought under the protective umbrella of section 197 of the Criminal Procedure Code, 1973 (CrPC).
The Supreme Court of India in January 2009 settled the law concerning the requirement of prior sanction while deciding once again in a case involving a police officer from West Bengal, Deputy Superintendent of Police Mr. Sahabul Hussain, who had been protected from prosecution by the state government. The court said:
“…all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 CrPC. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him”.
Justice Kabir, a judge in the Sahabul Hussain¡¦s case, perusing an earlier ruling of the apex court said:
“… the underlying object of Section 197 CrPC is to enable the authorities to scrutinise the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the concerned official.
“However, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 CrPC and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned.”
At the minimum, section 6 of the bill under review by the committee is a reintroduction of the ‘ruled out’ protection of section 197 of the CrPC, which must not be permitted.
Aspects missing in the bill relevant to torture and the CAT
The bill falls short of specifying a mechanism to investigate torture, and lacks any witness protection arrangements. Given the nature of the crime, it is imperative that torture must be investigated by an investigating agency independent of the police and having no officers on deputation from any other law enforcement agencies.
One of the reasons for the failure of successful prosecution of complaints against police is that the investigation is conducted either by police officers directly or indirectly involved in the crime or by their superiors. There is no need to enumerate why a victim or witness having a complaint against a government servant like a police officer in India requires protection. In countries where the practice of torture has been reasonably contained, both these requirements are met. In jurisdictions where these basic requirements are not followed, like in Sri Lanka, the corresponding law has become useless.
What can the committee do?
Contrary to common belief that the committee can only file a report to the parliament concerning the bill under review, the committee is empowered to engage in the following acts.
By virtue of articles 300 and 301 of the Constitution, the committee can call for, or other members of the parliament can propose to the committee, amendments to the bill under review by the committee. The proposals however need to be presented in the committee through a member of the committee. Needless to say, any member of the committee can also propose such amendments on his or her own for the consideration of the committee. There are no restrictions whatsoever in law that limits the scope of such proposals for amendments.
Article 302 of the Constitution empowers the committee to hear expert opinions about the bill. The committee is urged therefore to facilitate such a process, involving the members of the civil society, the National Human Rights Commission as well as jurists.
Article 303 (3) empowers the committee to furnish to the parliament, along with its report a recommendation to the member in charge of the bill, that his next motion should be a motion for circulation, or where the bill has already been circulated, for recirculation.
Last but not least, all or any member of the committee can record a minute of dissent on any matter connected with the bill.
Conclusion
Torture is practiced by law enforcement agencies in India as a crude shortcut for crime investigation. Investigating agencies justify the use of torture arguing that they often lack advanced training and equipment for crime investigation. The concept of modern policing is still a mirage in India, where the police are expected to function as a tool for social control rather than to serve citizens.
It can be argued that a large number of law-enforcement officers in the country believe that the deterrence quotient against a crime is the possibility of being tortured, rather than the crime being detected, prosecuted and punished in the legal process. Extensive delays in court proceedings and the repeatedly demonstrated professional and intellectual paucity of the country’s prosecutors appear to offer a layperson’s excuse for the widespread belief among law enforcement officers that the only punishment a criminal might get in India is the torture at the hands of the investigator.
This has led into a situation where torture is widely practiced, particularly in the police stations, throughout the country. Police officers and other law enforcement officers generally consider torture as an essential investigative tool for investigation. Policy makers and bureaucrats believe that there is nothing wrong in punishing a criminal in custody, not realising the fact that a person under investigation is only an accused, not a convict and further, that even a convict must not be tortured. This is due to the lack of awareness about the crime, its nature and seriousness.
As early as in 1981 the Supreme Court of India said, “…[n]othing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts deeper wound on our constitutional culture than a state official running berserk regardless of human rights¡¨ (Kishore Singh v. State of Rajasthan, AIR 1981 SC 625). Internationally, torture is considered as one among the most heinous crimes like slavery, genocide and maritime piracy, against which there is an absolute prohibition and the principle of ius cogens applies.
When torture is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, torture can also be treated as a crime against humanity under the Rome Statute.
The National Human Rights Commission of India has repeatedly recommended that the government criminalise torture. The commission once said “[d]aily the Commission receives petitions alleging the use of torture, and even of deaths in custody as a result of the acts of those who are sworn to uphold the laws and the Constitution and to ensure the security of its citizens. Such a situation must end, through the united efforts of the Government…”
The UN Human Rights Committee as early as 1997 has expressed its concern about the widespread use of torture by the law enforcement agencies in India. (CCPR/C/79/Add.81). The Committee on Elimination of Racial Discrimination has expressed similar concerns (CERD/C/IND/CO/19) in 2007 and the Committee on Economic Social and Cultural Rights (E/C.12/IND/CO/5) in 2008.
In a democratic framework, torture undermines democracy and the rule of law. Its open or clandestine use undermines the fundamentals of democratic governance. A law enforcement agency, particularly the police, practicing torture reduces itself into an instrument of fear.
This image and torture often reduce criminal investigation into the business of laying a charge based on confession. Fair trial, an important part of the rule of law framework, has no place in such an environment.
The practice of torture is not limited to policing. Paramilitary and military units also resort to torture, often brutal. Whether torture is practised by a military detachment or by the local police, the possibility for a victim of torture to complain is very limited in India.
The absence of witness protection laws, proper investigation mechanisms, including medico-legal facilities, and prosecution mechanisms, render complaint making suicidal for a victim. This allows torture to also be used for blackmailing, as a form of revenge and for monetary gain.
A domestic law against torture is thus required to deal with the central deficit in India¡¦s policing.
Indeed the committee need not redraft a new law in lieu of the bill the committee is requested to review. The committee could instead recommend in its report that the bill need to be re-examined, taking into account the concerns raised by the AHRC, and similar concerns expressed by other civil society groups and jurists in the country.
In this context, to guide the committee and to suggest to the committee as to what should be incorporated in a model bill to criminalise torture, we wish to present before the committee a Model Bill on the Torture and Custodial Death (Prohibition) Act, 2010.
