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Policing the police

On a chilly winter morning in January this year Vinod Kumar Gupta was picked up from his home in Jaunpur, Uttar Pradesh, as one of the suspects for looting Vicky Gupta, a businessman for whom he worked as a driver. He was kept in police custody for a week and allegedly tortured brutally. Soon after he was released, he was arrested again, this time along with his father Ram Lal Gupta. The latter recounts the ordeal of that second detention, “They not only tortured us physically but also subjected us to inhuman treatment. We were even made to drink urine,” says Ram Lal in a choked voice. “They also tried pouring petrol into my son’s ear. We are still fighting for justice.”

Cut to New Delhi, where Joel Elliot, a freelance US journalist, was detained illegally and battered brutally in police custody in October, 2009, for protesting against a group of policemen beating up a man on the street.

Elliot and Vinod Kumar Gupta are not alone. A recent report, Torture in India 2010, published by the Asian Centre for Human Rights (ACHR), New Delhi, says that between 2004 and 2008, cases of death in police custody went up by as much as 54.92 per cent.

In order to address the shocking rise in the incidence of torture and death in police custody, the government tabled the Prevention of Torture Bill, 2010, in Parliament on April 26 this year. Passed in the Lok Sabha last month, the bill is now pending in the Rajya Sabha. The bill is also in line with the United Nations Convention Against Torture (UNCAT) to which India is a signatory.

The bill’s stated aim is “to provide punishment for torture inflicted by public servants or any person inflicting torture with the consent or acquiescence of any public servant” and to address “matters connected therewith or incidental thereto”.

However, despite its lofty aim of providing justice to victims of torture, human rights activists and legal experts feel that the bill has some critical flaws. Says Prashant Bhushan, a Supreme Court lawyer, “This bill is being mooted purely because India is a signatory to the UNCAT. A closer look at the bill reveals that it has been craftily designed to protect public servants against torture complaints rather than to protect the common man from being tortured.”

Bhushan points out that Sections 5 and 6 of the bill say that no court shall take cognisance of offence under this act if the complaint is made six months after the alleged crime was committed. Moreover, the bill also stipulates that the prosecuting agency — the police or the CBI — will have to secure the sanction of the “appointing authority” in order to begin proceedings against a police officer accused of torturing someone in custody.

“The chances of getting permission from the state or the central government or any person in authority within the stipulated time period seem a bit slim,” says Bhushan.

Agrees Lenin Raghuvanshi, director of the Varanasi-based Peoples’ Vigilance Committee for Human Rights, “More often than not, the provision of getting a sanction will ensure that the public servant manages to get away with his crime. One understands that the bill attempts to preclude the possibility of policemen being harassed on the basis of false charges. But Section 197 of the Indian Penal Code already offers protection from that.”

Indeed, most activists and legal experts feel that the major drawback of the bill is the six months’ time period stipulated for cognisance of the crime. Says Suhas Chakma, director of Asian Centre for Human Rights, “In these sorts of cases, one often finds that there is a time lag between the incident and the reporting of it — either due to social, political or financial reasons or simply due to particular situations.”

Others point out that instead of bringing in new legislation to tackle the issue of custodial death, the government would have been better served had it beefed up the existing laws to stamp out police torture. Says Amjad Ali Sardar, a Calcutta High Court counsel, “Police torture is prohibited under Section 330 and 331 of the Indian Penal Code. Moreover, the amended Section 176 (A) of the Criminal Penal Code has provisions for investigating custodial death. Instead of enacting a new law, the government should have made an effort to implement the existing ones or find out the reason for their failure.”

However, some say that the new law has its plus points, namely a comprehensive definition of torture that will help bring justice to victims. Says Calcutta High Court counsel, Jay Sengupta, “Section 3 (ii) of the bill sets out a definition of ‘torture’. Not only ‘grievous hurt’, but also ‘danger to life or health (whether mental or physical)’ comes within the ambit of ‘torture’. This could make the bill quite effective.”

Joginder Singh, former director of the Central Bureau of Investigation, too agrees that when it comes to human rights, “the bill is a good initiative”. However, he cautions that it could also send a wrong message to anti-social elements or extremists like the Maoists, who might take advantage of such a law.

Predictably, law enforcement personnel are tightlipped about whether or not the new law will succeed in rooting out police torture. When asked about the effectiveness of the bill, IPS officer Pankaj Kamboj from Hazaribagh, Jharkhand, said, “It’s not for us to offer an opinion on this. Why don’t you question the activists about it?”

So will the law be an exercise in futility — a mere eyewash to show the world that the Indian government is committed to the United Nations Convention Against Torture, as some allege? Not quite, says Raghuvanshi, “It may be considered an initiative to make the system function in accordance with human rights laws.”

Amen to that.

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