LAL KRISHNA Advani has belled the cat by criticising the Maharashtra Anti-Terrorist Squad for torturing Sadhvi Pragya Singh and illegally detaining her. Torture and illegal detention have no place in a civilized society, and the voice of the former Home Minister, Deputy Prime Minister and our possible future Prime Minister, is an important one on this issue.
I only wish that Mr Advani’s expression of “shock and outrage” at the treatment of the sadhvi would have extended to all Indians, and indeed anyone who is arrested or detained in India. Torture and illegal detention are themselves illegal, but have been widely practiced in this country with little or no check from the government or the judiciary.
Torture is the start point of other atrocities we should be ashamed of — custodial deaths, disappearances and fake encounters. Torture dehumanizes the person who is at its receiving end, but not many realise that it cannot but fail to do the same for the person who is inflicting it, and the system that is allowing the state of affairs to continue.
There is scarcely a day in which we do not hear about custodial violence in the country. People are rightly outraged by this and sometimes react violently. But the onset of terrorism has led to a problem. The ruthless manner in which terrorists operate — blowing up or killing men, women and children without the slightest pity — ensures that there is no sympathy for terrorists arrested or killed.
That is fair enough, there should be no sympathy for the purveyors of mindless violence. But this has a dangerous edge. It has led to a situation where the society is ready to condone illegal acts against terrorist suspects, including torture or their summary execution by the police.
If all those tortured and killed had actually been guilty, this could at a pinch be justified, though not be legally or morally tenable. The fact is that many innocent people end up tortured, detained and killed as well. And this is unacceptable to a society based on the primacy of the rule of law, and which calls itself civilised.
Take the case that made the headlines last week when it was announced that the Andhra Pradesh government would offer compensatory loans of Rs 30- 80,000 each to 15 young men who had been among 70 picked up after the two terror attacks in Hyderabad last year.
They had been in custody for six to nine months and in this period they had been stripped, subjected to electric shocks, hung upside down and beaten. All of them were innocent. But the detention and torture were only one aspect of their suffering. They have been released, but they will bear the trauma all their lives.
Earlier this year, another case made the headlines. In January, Aftab Alam Ansari, an electrician from Kolkata, spent twenty horrific days in custody in Lucknow because of a police blunder that made him out to be a suspected explosive courier. In a bid to make him acknowledge his role in various terrorist incidents, he was beaten black and blue. He was one of the lucky ones — he got away after the police were convinced of his innocence.
In my book, everyone, even those accused of heinous terrorist acts have the right to be dealt with under the laws of the land, which most certainly do not give sanction to the kind of pre-arrest detention that Pragya says she has undergone, leave alone the beatings and abuse she alleges that the ATS has inflicted on her.
India has made great advances as a democratic country. From the outset, it set out to assist the erstwhile untouchable castes to get education and government jobs. The spread of democracy expanded to the point where many of the previously ostracized groups have become important political actors thus empowering themselves and their communities. The need to empower backward classes forms an important basis of our politics and constitution.
But one extremely important area has been impervious to governmental or judicial reform — the manner in which India’s police handles its citizens, especially those who have been taken into custody on suspicion of having committed a crime. In Mr. Advani’s own words, the system is “barbaric”.
Beating of prisoners is routine as are the more “refined” means of torture such as the roller treatment and electric shocks. Some have argued that the current trend towards narco-tests — themselves of questionable value — are a means of lessening the brutality of torture.
One of the important negative consequences of the routine use of torture by the police is that it discourages the use of forensics and scientific investigation by the police. After all it is much easier to beat a confession out of a suspect than to painstakingly build up a fool proof case that will result in the conviction of a suspect. This is why, Mr Advani, right-thinking people oppose the key provision of POTA— the recognition of the legitimacy of a confession before the police.
India’s political class, bureaucracy or judiciary have made no effort to do something about this. The judiciary understands well what “police custody” usually means. Through a 1997 observation, the Supreme Court directed the government to take all steps necessary to prevent torture in the country. But little has changed. We also have wonderful laws about the need for warrants to enter someone’s house, or the right to a lawyer and so on. Neither courts, nor the national and state human rights commissions have intervened to set the situation right.
India has very reluctantly signed the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) but has not ratified it on the claim that the domestic mechanisms — the independent judiciary, the Criminal procedure code and Indian penal code — are sufficient for preventing brutality and inhuman treatment. But this is a patent untruth.
What we need is the creation of independent groups and commissions that can investigate charges of police high-handedness and violence and obtain judicial redress. Only a zero-tolerance regime, policed by the people themselves can end this tyranny.
Terrorism is a fundamental challenge to liberal democracy. Just how much of a challenge is borne out by what happened to the US in the wake of Nine-Eleven when it created the Guantanamo prison, tortured suspects or ensured their torture at the hands of allies. If the citadel of liberal democracy crumbled with the speed that it did, you can imagine the challenge that India faces.
Yet when the Abu Ghraib scandal exploded there was outrage across the US. Guantanamo has become a bad word in the country.
In the US and other liberal democracies, there is a public abhorrence of torture and such degrading punishment. Most actions are seen as being an aberration from the norm.
Unfortunately, in India we are yet to see a consensus around the idea that torture is inhuman and has no place in a democratic and civilised society which we assume we live in.
Leaders like Mr Advani can do signal service by sensitising the people to the illegalities being done in the name of fighting terrorism.
But he can make a difference only if he demands that all Indians — Hindu, Muslim or Christian — be treated equally before the law and with the assumption that they are innocent until proved guilty in
a court of law, not the police station.
This article was first published in Mail Today November 21, 2008