On torture in India and China
Guest post by FAHAD MUSTAFA
On 31st May, the Chinese government released guidelines that banned the admissibility of evidence obtained under torture in criminal convictions. This came a few weeks after the revelation of the seemingly bizarre, yet not completely uncommon, case of Zhou Zuohai. Zhuo was released after being imprisoned for 11 years in Shanqqi, on charges of murder, when his alleged victim was found alive in his village. He was imprisoned on the basis of his confession of the crime. A couple of days after he was released the authorities admitted that the confession was obtained under torture. Zhuo described his beatings: the pouring of chilli water in his eyes, the bursting of firecrackers over his head, and how he thought he would not survive. When he said what he was expected to say, the torture stopped, and he was convicted.
Lawyers, police, and governments in most countries, including China, understand that torture is counterproductive in extracting evidence. Indeed, China has issued several directives earlier to say that evidence under torture is unacceptable. As in the case of Zuohai, most confessions of this sort are false or misleading, and are given only to make the immediate suffering stop. Why then do police forces continue to use torture or the threat of it as a means to extract evidence?
Torture is a largely a systemic problem that has much to do with the nature of policing, and governance. In China, for example, the police operate heavily under the control of the government, and in a culture of impunity. This means that police are almost always more focused on satisfying the demands of politicians and party leaders, rather than serving the society. The attitude of the government that police are a means to control society leads to a derogation of individual and human rights of citizens in the eyes of the police officers, who are then wont to torture and degrade them, with impunity.
Further, the conditions under which police operates heavily influences their effectiveness and commitment. Underpaid and overworked police officers, as is common in China, are more willing to employ torture and ill-treatment to clear their workloads. Pressure to show results often leads to police resorting torture to extract confessions, rather than using forensic and detective skills to resolve a case. Indeed, a majority of convictions in China are on the basis of confessions, a lot of which could be presumed to have been extracted under torture or threat of the same.
India is in the process of enacting a legislation to combat torture. In April, the cabinet approved of a bill that would enforce a ban on torture, and in the process ratify the United Nations Convention Against Torture. While this is a welcome move which would send a clear message from the government to law-enforcement personnel, the legislation itself reflects little progress in the mindset of the authorities.
Shortly before the bill was approved by the Lok Sabha, the Asian Council on Human Rights (ACHR), a human-rights NGO, released a report on torture in India. The group said that the Indian government had proposed a similar bill in 2008 which was highly unpopular with civil rights groups. According to the ACHR, no consultation with civil society or public debate went into the drafting of the present bill. Even after being approved by the cabinet in April, the Bill was not released for public scrutiny until much later, by which time it was already an Act.
The bill was released to public after it was passed by the Lok Sabha as the Prevention of Torture Act 2010, and is now pending in the Rajya Sabha. The Act defines torture as ‘grevious hurt’ or ‘danger to life limb or health (mental or physical)’, specifically bars the admissibility of evidence under torture, and prescribes a punishment of 10 years for offenders. However, it goes onto establish that any prosecution under this Act would require previous sanction of the government, entrenching the impunity provided by Section 197 of the Code of Criminal Procedure. It also raises the possibility that any action under this bill would target the lowest levels of law enforcement, whereas the superior officers who authorized such practices remain immune due to some contacts within the government.
Further, it offers no redressal mechanisms, investigation or monitoring bodies, or complaints procedures. Neither does it address the AFSPA areas, where torture is most widespread and systematic.
The current Act seems to be only lip service to international conventions, continuing to propagate impunity for torture.
Many of the factors that I mentioned with respect to China earlier, would also apply to India. Indian police has a reputation of being the handmaiden of politicians and bureaucrats. Officers are overworked, one police to every 1037 residents, according to a Human Rights Watch report, as opposed to one to every 333 residents, which is the global norm. Salaries remain static as workload rises, leading to demands for bribes and non-registration of FIRs. Occasionally, officers take the law into their own hands meting out beatings and abuse as immediate punishment for a crime.
Established by Indian Police Act of 1862, shortly after the 1857 uprising, Indian police were instruments with which the British controlled their subjects. The ethos of controlling the populace instead of serving them seems to have been retained, along with other aspects of organization. It is this ethos which serves as the biggest challenge in the fight against torture in India.
To successfully address systematic torture, India needs an overhaul of its police system. The judiciary and the central government have been attempting to implement such reforms for a number of years. In 2006, the Supreme Court has issued several directives to state governments to set up independent oversight and complaints mechanisms. A committee had also been set up under Soli Sorabjee to investigate a new Model Police Act. However, with a few exceptions, these measures met from strong resistance from the State Governments, where politicians were unwilling to cede control of the police.
Combating systematic torture requires states to stand by values that reaffirm human rights and democratic principles, and reject a culture of impunity and non-accountability. Theoretically, being a democracy, such measures ought to come easier to India than China, which has a history of brutal repression of human rights and civil society activists. However, as evidenced by the veil of secrecy and lack of public debate around the Prevention of Torture Bill, promoting accountability and transparency are still rather large challenges in India.
(Fahad Mustafa was until recently a research assistant with the United Nations Special Rapporteur for Torture in Vienna. The views expressed here are his own. He blogs at Globalistan.)