Custodial torture: It’s a shame that so much that is shameful thrives

Can one be proud to be an Indian and ashamed to be an Indian?

One cannot be one without the other.

This reflection has been occasioned by two recent court judgments.

The first of these is the extraordinary judgment of Madras high court’s chief Justice Sanjay Kishan Kaul and Justice Pushpa Sathyanarayana in the writ petitions pertaining to the right of free thought and expression. Occasioned by the psychological tormenting of the Tamil novelist Perumal Murugan for his story One Part Woman, the order says “Surprisingly, on the issue of a liberal ethos on the relationship of man and woman, sex and religious mores, the ancient scriptures seemed to be more liberal than at times what appears to be the current norm”. And affirming the right to free speech, it says: “The author…should be able to write and advance the canvas of his writings”. In a final sentence that has an ‘all-time and everywhere’ resonance to it, Justice Kaul and Justice Sathyanarayana observe: “Let the author be resurrected to what he is best at: Write.”The judgment recalls the words of Milton in Areopagitica: “Lords and Commons of England, consider what Nation it is whereof ye are, and whereof ye are the governors: a Nation not slow and dull, but of a quick, ingenious, and piercing spirit, acute to invent, suttle and sinewy to discours, not beneath the reach of any point the highest that human capacity can soar to….Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

The second is the judgment of the Supreme Court of India in which Justice Madan Lokur and Justice Uday Lalit have ruled that the armed forces cannot escape investigation for excesses in the discharge of their duties even in “disturbed areas”. Hearing a PIL demanding an inquiry into 1,528 deaths in counter-insurgency operations and related incidents in Manipur, the court said the provisions of the Armed Forces (Special Powers) Act have to yield to the larger principles of human rights. Responding to the arguments of the government, the judges said: “The submission of the learned attorney general is nothing but a play on words and we reject it and hold that an internal disturbance is not equivalent to or akin to a war-like situation and proceed on the basis that there is no war or war-like situation in Manipur but only an internal disturbance, within the meaning of that expression in the Constitution – nothing more and nothing less.” The 85-page order makes it clear that action against terrorists cannot be indistinguishable with disappearances and extra-judicial killings.The judgment recalls the words of Milton in Areopagitica: “Lords and Commons of England, consider what Nation it is whereof ye are, and whereof ye are the governors: a Nation not slow and dull, but of a quick, ingenious, and piercing spirit, acute to invent, suttle and sinewy to discours, not beneath the reach of any point the highest that human capacity can soar to….Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

It is a matter of pride that our courts can call the shameful to account. It is a shame that so much that is shameful thrives in India.

Our criminal investigative system has some truly remarkable achievements to its credit. The rule of law owes a great deal to our police. Bravehearts among their ranks keep us from personal and collective harm. The martyrdom of Hemant Karkare in Mumbai on November 26, 2008, places him in the world’s annals of duty performed in the face of death. The recent killing of two police officers in Mathura at the hands of a violent cult whose unauthorised headquarters they were sent to break up, is another example of policemen courting death for the security of the State and society. The loss suffered by their bereaved families is no different from that of soldiers killed in war. These instances can and should make us proud of them, honour them.

But India does not permit pride to stay where it is.

We have had earlier this year a masterpiece of a research document placed in our hands by the Centre on the death penalty set up by the National Law University (NLU), Delhi. The product of direct interviews with persons on death row in different states, Death Penalty India Report 2016 gives hard evidence to tell us that India is home to some of the grossest of criminal investigative malpractices. The report tells us: “Of the 270 (Death Row) prisoners who spoke about their experience in police custody, 216 (80%) admitted to have suffered custodial violence”. The report is about convicts on death row but there is no reason to doubt that what is true of them is also true, more or less, of other prisoners as well, many if not most of who will be found later to have been innocent. Custodial torture degrades not just the system within which it operates but all of us. From needles inserted into fingernails, heads crashed against walls/glass, water-boarding, being forced to sit on a slab of ice, have electric current passed through the wet body, we have them all in India, the India that is asking the world to visit India, Incredible India! with its upside down exclamation mark, to Make In India, Trust India, Adore India.

That it is possible in India to investigate shaming truths, as the NLU has done, reassures us. That torture, custodial torture, is rampant in India, shames us.

The government should tell us why India, which signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture) in October 1997, has yet not ratified it. Why has the Prevention of Torture Bill, which will pave the way for ratification, not yet been passed? Is India afraid that the world will castigate it, call it hypocritical? Or is one part of the State unwilling to shake off this ‘secret weapon’ in its investigative armoury?

We, as a people, are not asking these questions. But do we really care about custodial torture? Do we look upon it as a national shame? In truth, we do not. And there lies the bigger shame.

Gopalkrishna Gandhi is distinguished professor of history and politics, Ashoka University . The views expressed by the author are personal.

Source: The Hindu, 4-09-2016