The Hindu : Ending torture

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Monday, Sep 30, 2002

Opinion

Opinion - Leader Page Articles

Ending torture

By Kuldip Nayar

What the nation has to remember is that every incident of innocents' torture gives birth to more terrorism.

I HAD never imagined that the International Rehabilitation Council for Torture Victims would turn out to be only a handful of people working from a portion of a floor in a non-descript building on a deserted road. But then, even Copenhagen, which houses the Council's offices, looks an empty city. The population of the entire country of Denmark is only five million. No wonder, houses are not allowed to have boundary walls and vehicles are legally required to have headlights on during the daytime. This is probably meant to give the nation a psychological feeling of space and light.

The Council coordinates the rehabilitation of torture victims throughout the world. It admits that the progress is slow even after three decades of its existence. Of course, funds are limited. But its regret is that the international community is reluctant to do its bit. The Council is trying its best to make countries ratify the Convention Against Torture. But it is not making much headway.

New Delhi's approach is that of a policeman. It only knows how to wield the stick, not how to assuage people's fears. Counter-terrorism is important. But the steps the Government takes are against terrorists, not terrorism.

The security forces are embroiled in a situation where terrorists have assistance from foreign elements which are resourceful politically and essentially. In the circumstances, the forces are bound to make some mistakes. Unfamiliar with the local population and the terrain, the mistakes of the security forces can be condoned. But what cannot be condoned is the torture of the innocent. Torture chambers are there both in Kashmir and the Northeast, the two areas where terrorism continues unabated.

What the nation has to remember is that every incident of innocents' torture gives birth to more terrorism. As the hero of a Jean-Paul Sartre play says: violence breeds violence. There is a need for laws and regulations to ensure fundamental freedoms while controlling terrorism in the country. Law and order is essential but being a democratic polity, we have to observe procedures which ensure protection to the common man. It is important to lay down the law on how to identify the suspects, how to prosecute them and how to spot out witnesses and see that no harm comes to them and what kind of rights and defence are available to the defendants.

The crimes committed by state officials and armed personnel are not beyond prosecution. When some policemen were prosecuted in Punjab on charges of alleged human rights violations, the state affirmed its faith in the supremacy of law. Exercise of public power has to be coupled with accountability; otherwise, it would lead to misuse of power. In an era of globalisation where inter-dependency is the hallmark of state systems, use of weapons of mass destruction (as in the case of September 11, 2001, when the twin towers at the World Trade Center in New York and the Pentagon in Washington were bombed by Al-Qaeda terrorists under instructions from Osama bin Laden) which violated the right to life of so many individuals should not be further allowed.

If we were to introspect, we would find ourselves responsible for torture on an individual level. See how we treat our servants. The Attorney-General, Soli Sorabjee, is quite right when he stresses the need for developing a "culture of sincerity" towards human rights violations. All of us have to look within and search our own hearts.

And what about the police who were once called criminals in uniform by a judge? Their excesses are justified on the plea that third degree methods have to be used to extract "the truth", which goes by the name of "confession". Whether such a statement is admissible as evidence is a matter for the courts to decide. But the basic question is whether the use of force is permissible in a civilised society. Whatever dos and don'ts you may prescribe, it is ultimately the police force that has to switch over to methods which do not employ cruelty and torture and unjust detention.

It is the conscience of those men and women in khaki which has to prick when they pounce on suspects or those sentenced. Public opinion is mute because fear guides it. The establishment can use any method to keep the articulate quiet. The usual law and order argument comes to prevail.

Little do we seem to realise that crime cannot be dealt with by third degree methods. It has to be countered through law and accountability. Remember the Emergency when public functionaries themselves became tools of tyranny. They were accountable to none. Although a Commission presided over by a Supreme Court judge brought out their complicity, they were not punished.

It was expected that the authorities both at the Centre and in the States, would look at some of the cases in which aberrations had been pinpointed by the Shah Commission and at many others into which the Commission had got investigations done through its officials after the Emergency. That it would forward the reports to the respective Governments for further necessary action, in a spirit of honest inquiry to determine what went wrong not only in each individual case but also in other spheres. The purpose was to learn how to avert a similar situation in the future. But no follow-up action was taken.

This is what the Shah Commission said about Jagmohan, then Lt. Governor of Delhi: "He cannot escape his direct responsibility for all that had happened and for all the illegalities committed. He has grossly misused his position and abused his authority. All this he was able to do by very skillfully manoeuvring and by confusing the issues with the people who were in authority. The problems that he was handling were complicated and he was in a hurry to get his projects through; in carrying out his projects he neither observed the law and the rules, nor was he interested in acquainting his seniors in the administration or in the Ministry with the legal and administrative requirements of the projects that he had undertaken to put through. Jagmohan, during the Emergency, became a law unto himself and went about doing the biddings of Sanjay Gandhi without care or concern for the miseries of the people affected thereby."

Talking about torture, the detention of a person without a fair trial is no less shameful than the third degree methods employed by the police. My reference is to the case of Abdul Rahman Geelani. He is one of the four accused in the case relating to the attack on Parliament on December 13 last year. No quarter should be given to the guilty. But we should be concerned about the way the accused are denied basic safeguards under the law. Mr. Geelani has not been given the minimum protection offered under POTA.

The prosecution has produced 80 witnesses and closed its case. Not one of the witnesses has even alleged that Mr. Geelani is a member of a banned organisation. The only piece of evidence against him is a conversation over the phone he had with his brother who rang him up from Srinagar on December 14 asking for the Delhi University prospectus. Mr. Geelani's lawyers have been demanding that the court allow them to play the cassette in court but the judge has so far refused to do so. They have also challenged the police's procedure by which they intercepted the telephone conversation without following the rules laid down under the law.

An All-India Defence Committee for Mr. Geelani has been set up. Rajni Kothari is its chairman. I know from my experience that he does not take up any wrong case. I wish the Home Ministry would respect his commitment to democratic values and release Mr. Geelani.

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