Encouraging law enforcers to be lawbreakers
IN INDIA the prohibition against torture is absolute — at least in theory. However, the everyday use of torture in police stations and by the armed forces is too well documented to need sordid retellings. Its use is indiscriminate victimising everyone from the hardened militant to the petty thief and innocent bystander with its ferociousness. Even while the Supreme Court lays down more and more guidelines to protect the citizen from torture, the government fails to accept the fact that torture is used routinely by the law enforcers. Even the cases that do get established in courts are regarded as aberration and not practice.
The government continues to make public statements against torture and yet its conduct leaves much to be desired. It steadfastly refuses to ratify the international Convention Against Torture, as this would require it to address the widespread problem of torture much more seriously and report on it to the international community. Interestingly, the government even at the time of ratification of the International Convention on Civil and Political Rights in 1979 made a specific reservation to the effect that the Indian legal system does not recognise right to compensation for victims of unlawful arrest or detention.
Repressive laws
To add to the woes of the citizens, the government continues to enact and justify the existence of repressive anti-terror and anti-insurgency laws. The POTA and its predecessor TADA have both amply demonstrated how these laws can be abused with impunity. These laws give extremely wide powers to the law enforcement agencies without establishing effective accountability mechanisms. In fact, even the existing checks and balances on the powers of the law enforcement agencies are diluted under these laws. Wide powers are given to arrest, detain and search. Confessions before police are made admissible resulting in widespread use of torture. Certainly it is easier to torture suspects and obtain `information' than investigate, especially when the law bars prosecution and even civil proceedings without the prior permission of the government. Impunity reigns and getting away with murder becomes easy.
In the atmosphere of fear that grips everyone, citizens and courts alike are coerced to believe that such regressive laws are the only way of responding to anti-national elements and terrorists. So the Supreme Court of India upholds the constitutional validity of provisions of the POTA without addressing the implementation of the Act. Agreed, there is no harm in allowing confessions before police officers if there is no torture and this is what the legal provision says. But is any one of us naοve enough to believe that police will not torture the suspects to make them `confess'? Do we have enough faith in our police that they will not implicate innocents and procure their `confessions' in order to give `results' when incidents like the Parliament attack occur? If not, can we have constitutionally valid laws that allow the law enforcement agencies to torture, rape and kill with impunity?
Impressively, the present government has taken the initial steps towards repealing the dreaded POTA and hopefully the proposed amendments to the Unlawful Activities (Prevention) Act will not result in reenactment of this law under a different name. However, in the meantime, the Armed Forces (Special Powers) Act reigns in the Northeastern States and Manipur burns. Police open fire on demonstrators demanding repeal of this Act and injure one civilian on our Independence Day. A young student immolates himself in protest and the entire State goes on strike. If the implementation of this law has resulted in alienating the people residing in the State from the Indian government and India, then this law has certainly failed and what is the point in retaining it? The entire civilian population does not come on the roads and demand repeal of laws for no reason. There is no point in denying excesses by law enforcement agencies and protecting the perpetrators.
It is laws such as the POTA and the Armed Forces (Special Powers) Act that reinforce the belief of the law enforcement agencies, established and still governed by the colonial laws, that they are above the law. These laws send a message to the perpetrators that they can do what they want with impunity and they cannot be hauled up even before the courts unless the government gives sanction for this. In the absence of witness protection programmes, it is also possible to silence any demand for justice through torture and `disappearance' of the complainants and witnesses.
The government must recognise the futility of these repressive and regressive laws and explore other means of resolving the political situation in the conflict areas. If the government is serious about its intention to "keep promises," due respect must be given to transparency and accountability. Opening up channels of communication and addressing genuine grievances of the citizens could be the first step. Taking firm action against state agents who have abused and violated the laws of the land, and sending a clear message that law enforcers are not above the law can be a beginning for encouraging the citizens to believe in the rule of law.
SWATI MEHTA
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