During the short-lived V.P. Singh government, its Law Minister Dinesh Goswami tried to amend the colonial-era Official Secrets Act. After putting it through the bureaucratic mill, he had to admit defeat. Goswami, who died in a motor accident later, admitted candidly that he had to abandon the bill because the draft the Home and Law Ministries put before him had even more clauses than the original Act.
Something similar seems to have happened with the Prevention of Torture Bill. The bureaucracy has made monkeys of their political masters. They have brazenly put forward a bill before Parliament which waters down existing laws against torture, and adds qualifiers that make it more difficult, if not impossible, to convict anyone of the heinous act. The new Bill, promoted so assiduously by the Manmohan Singh government, is a masterpiece of dissembling and starkly exposes the moral vacuum in which our police and bureaucratic leaders function.
A person being hung and beaten by policemen who can easily be recognised in their plain clothes.
Officially the Bill’s aim is to enable India to ratify the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment which we had signed in 1997. In practical terms it cynically props up the medieval practices used by our police for criminal investigation in this country.
The National Human Rights Commission has recorded nearly 17,000 custodial deaths in the 1994-2008 period. You can be sure that this is a severely understated figure. And these are only of people who actually died. The number of those who were inflicted with severe mental and physical pain is probably several times that number. This is pain, suffering and deprivation deliberately inflicted by Indian public servants on the citizens of the country, in violation of the law of the land and its Constitution.
The intentions behind the Bill were positive. It was aimed at bringing the Indian law enforcement machinery to the 21st century instead of remaining in the medieval era that it has been stuck in. Several activist organisations have detailed the weaknesses of the proposed Bill. The PRS Legislative Research paper points out that its definition of torture itself does not conform to that of the UN Convention.
The definition offered, “grievous hurt…or danger to life, limb or health (whether mental or physical) of any person” does not take into account mental pain which could be inflicted by sleep deprivation, compelling people to stand for long periods of time, mock executions, threats to the loved ones of a person as a means of torture. These are the “modern” methods that have taken the place of the old torture. Curiously enough, the only purpose for which the inflicting of pain amounts to torture according to the Bill is obtaining information or a confession. But torture can also be inflicted for revenge and punishment.
The second issue is the lenient punishment for torture. The Bill provides for a maximum of ten years for those convicted. The consequences of torture— being physically and psychologically crippled for life— surely merits a higher sentence. Ten years is what you get for having 15 grams of hashish.
If you take into account the fact that torture is inflicted by those who are supposed to uphold the law, there is need to enhance the punishment, rather than make it more lenient. An act as heinous as torture, carried out by the custodians of the law, cannot be equated with ordinary crime.
The Bill actually goes out of its way to make it difficult to prosecute someone accused of torture, more difficult than what the Criminal Procedure Code would make it. Under Section 197 of the CrPC, prior sanction is needed to prosecute any government official because he or she may have done what they did as part of their official duty. But by definition no one should be torturing anyone, especially as part of their official duty, so why this shield?
The second way in which it protects the guilty is by insisting that cognisance of the offence be restricted to a period of six months. There are thousands of people in Indian jails who have been there without trial or bail for years, leave alone months. Many of these are people who face the worst of the brutality of policemen and jailers. But as per the law, they will have no recourse since they are unlikely to be able to file a complaint from behind bars. Here again the CrPC has been diluted. The limit on cognisance under the CrPC is 6 months for crimes that attract sentences up to three years and less. But the Torture Bill’s maximum sentence is ten years.
The country’s ethically challenged polity allowed the Bill to sail through the Lok Sabha unchallenged. It was only in the Rajya Sabha that the Left and the BJP objected to the weak nature of the Bill. Then the BJP leaders L.K. Advani and Arun Jaitley did a somersault and declared that the Bill was too strong and would demoralise the police. The Bill has now been placed before a parliamentary committee.
This is a strange attitude indeed. Advani’s first ever reference to the arrest of Sadhvi Pragya Singh, accused of the Malegaon blasts, was to protest her barbaric treatment. In a statement in November 2008, he said he had been shocked at the Sadhvi’s charge that she had been “physically and psychologically” tortured. The same Advani is, today, unable to connect the ethical dots. Torture is bad and immoral, whether Pragya or Amit Shah is at the receiving end, or some Muslim accused of a terrorist act.
The most definitive case against the use of torture and for the need to outlaw it comes from practical experience. Through World War II, as the British counter-intelligence agency MI 5’s official history notes, no violence was used against suspect spies. The result— through the war the British were running all the German agents operating in UK.
Interrogators like Lt Col Oreste Pinto and Lt Col Robert Stephens shunned violence, yet got spectacular results. As Stephens, who ran the specialised camp where spies were interrogated, wrote in a classified memo, “Violence is taboo, for not only does it produce answers to please, but it lowers the standard of information.”
Equally compelling is the story of Nguyen Van Tai, the senior-most North Vietnamese intelligence officer caught in South Vietnam during the Vietnam War. An American case-study reveals that while physical torture by the South Vietnamese succeeded in breaking his cover story, more useable intelligence was collected by his American interrogators through psychological ploys and skilful questions.
In our case we are not talking about enemy nationals or spies, but our own people, the biggest victims of torture in the country.
Through history some form of coercion has been used to elicit information and will continue to be used in the foreseeable future, but just like the UN Charter, the Convention Against Torture represents the positive impulse of humankind, a benchmark to be reached.
For a democratic country with the self-image of being a great civilisation, the need to act correctly is vital, regardless of the immediate threats we confront. Where that impulse ought to come from was best put across by the Israeli Supreme Court which ruled against the interrogation practices of the country’s security services.
“This is the destiny of democracy—it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.”
This article appeared in Mail Today September 9, 2010