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09/05/2010: "India's 'torture' Bill is a mockery of democratic values Subir Gosh"

India's 'torture' Bill is a mockery of democratic values Subir Gosh

THE OTHER FACE OF TERROR: On an average, over 1000 policemen have been sent to trial for torture violations every year since 2004.The year 2006 was the worst with as many as 3,062 cases all over the country. So who now is going to rein in the police?
The Manmohan Singh government is always in a rush when it comes to legislations and actions over which doubts are raised. Democracy, for it, is only about mustering enough numbers to bulldoze them through the two houses of Parliament. Democratic values, civil liberties, and all allied terms and phrases are thrown into the dustbins of history. All shamelessly done in the name of national fervour and security.
Among other things on its twisted mind is the Prevention of Torture Bill, 2010, a deeply flawed piece of legislation. The Bill, passed by Lok Sabha in May, has been recently referred to the Select Committee of Parliament following demands from some members in the Rajya Sabha. A 13-member committee has been formed to scrutinise this Bill. But given the background of this government, it is not difficult to guess what the outcome will be.
Reports in the media say that the Bill provides up to ten years of imprisonment to public servants responsible for torturing any person to get information or other purposes. It Bill is a stand-alone legislation which defines "torture" and provides for punishment to those involved. On the face of it, it seems a good enough measure. India is a signatory to the UN Convention Against Torture (CAT) since 1997, which requires the country to enable a legislation to be adopted to reflect the definition and punishment for torture.
The fact that the CAT was passed by the UN Assembly in 1975 shows how much interest Indian lawmakers have taken in subject. Now that they have put something on the anvil, a closer look at it tells us that it is well below international standards. The Bill has shied away from defining "torture" precisely to make all its forms actionable under the law. While CAT has a wide definition, our Bill limits torture to grievous hurt that causes damage to life and limbs. There are many forms of torture that lie outside the scope of this definition.
According to the Prevention of Torture Bill, a public servant or any person with a public servant’s consent commits torture if all three conditions are met:
1. An act results in (i) Grievous hurt to any person (Grievous hurt as defined in the Indian Penal Code – includes damage to limbs or organs); or (ii) danger to life, limb or health (mental pr physical) of any person, and
2. The act is done intentionally, and
3. The act is done with the purpose of getting information or a confession.
The Bill is lax on the issue of punishment. An errant public servant can be punished for torture only when:
1. When it is committed for gaining a confession or other information for detecting an offence, and
2. The torture is committed on certain grounds such as religion, race, language, caste, or ‘any other ground’.
There are a number of problems with the very definition of torture, according to PRS Legislative Research, a unit of the Centre for Policy Research (CPR) New Delhi. The definition of torture, it says, raises the following issues:
• It is inconsistent with the definition of torture in the Convention against Torture which India seeks to ratify;
• It does not include many acts amounting to torture which are punishable under the Indian Penal Code;
• It adds a requirement of proving the intention of the accused person to commit torture. Current provisions in the IPC do not have this requirement.
• Grievous hurt does not include mental suffering or pain.
The Bill, says PRS Legislative Research, makes it difficult for those accused of torture to be tried. This is because complaints against acts of torture have to be made within six months, and (the previous sanction of the appropriate government has to be sought before a court can entertain a complaint. Here is where the UPA government has placed convenient hurdles to those seeking justice.
As per the Criminal Procedure Code, such a sanction needed if a public servant is not removable except with the sanction of the appropriate government, and when the public servant was acting in the course of his duties. But according to this Bill, prior sanction of the appropriate government will be needed in all cases.
Any jingoistic argument that India does not need the world to tell it about standards would fall flat because the Statement of Objects and Reasons clearly says that one of the reasons for introducing the Bill is to ratify the UN Convention against Torture. There you are. Not, take a closer look at this:
A comparative look at the definitions
Topic Definition in Convention Definition in the Bill
Nature of injury/ threat Any physical or mental “severe pain or suffering”. (a) Grievous hurt, and (b) danger to life, limb, or mental or physical health.
Intention The accused has to be committing torture intentionally. Same as the Convention.
Purpose(s) for which inflicting pain amounts to torture. No exhaustive list. Reasons include (a) obtaining information, (b) punishment for an act, (c) intimidation. The only purpose should be obtaining information or a confession.
When torture is punishable No additional requirements. Torture is punishable only when (a) extorting information leading to detection of offences, and (b) on the ground of religion, race, place of birth, residence, caste, community, language or any other ground.
Sources: UN Convention against Torture, 1975; Prevention of Torture Bill, 2010; PRS.
There's more. There is no independent mechanism/ authority to investigate complaints of torture. The investigating agency in most cases of torture would be the police. So it becomes a case of the cat belling the cat. Investigations by the police against violations by the police are bound to be rigged in a country where the people do not have much faith in them, except when it comes to rhetoric about serving the nation in its equally diabolical Green Hunt.
On an average, over 1000 policemen have been sent to trial for torture violations every year since 2004.The year 2006 was the worst with as many as 3,062 cases all over the country. The conviction rate, not surprisingly, has been abysmal — less than 40 per year by the average. Instances of torture do not make headlines. But if you still want to be shocked, see the search results on Google. Mind you, that would only be the tip of the torture iceberg.
What makes all this talk a scary proposition is that the Bill will well become an Act. Only one in four Indians is against all forms of torture. The rest either advocate it, or are blissfully ignorant of everything. That's what was found by a survey carried out for the BBC World Service by polling firm Globescan and the Program on International Policy Attitudes (PIPA) in 2006. The survey was carried out in 25 countries and India, not surprisingly, fared the worst.
WORLDWIDE Views on torturing prisoners
Country Against all torture * Some degree permissible * Neither/Don't Know
Australia 75% 22% 3%
Brazil 61% 32% 8%
Canada 74% 22% 4%
Chile 62% 22% 16%
China 49% 37% 13%
Egypt 65% 25% 9%
France 75% 19% 6%
Germany 71% 21% 7%
Gt Britain 72% 24% 4%
India 23% 32% 45%
Indonesia 51% 40% 8%
Iraq 55% 42% 1%
Israel 48% 43% 9%
Italy 81% 14% 6%
Kenya 53% 38% 9%
Mexico 50% 24% 27%
Nigeria 49% 39% 12%
Philippines 56% 40% 5%
Poland 62% 27% 12%
Russia 43% 37% 19%
S Korea 66% 31% 3%
Spain 65% 16% 19%
Turkey 62% 24% 14%
Ukraine 54% 29% 18%
US 58% 36% 7%
Average 59% 29% 12%
*27,000 respondents in 25 countries were asked which position was closer to their own views:
• Clear rules against torture should be maintained because any use of torture is immoral and will weaken international human rights standards against torture.
• Terrorists pose such an extreme threat that governments should now be allowed to use some degree of torture if it may gain information that saves innocent lives.
Source: BBC/Globescan/PIPA

So, who will bell the CAT? In India, only the cat has the right to bell itself. You can take a hike.