— KG Kannabiran

Torture is routine in India. It is the principal forensic tool of the police; in many cases its only tool. In the name of fighting terrorism, torture by the police has spread to every corner of this country. It is a far greater danger to the constitutional fabric of this country than terrorism. People are brutalised, often without any reason, and frequently for petty crimes. The various decisions of the Supreme Court refusing to punish policemen and instead ordering payment of compensation in cases of torture, executions, disappearances and the like, have made the police force believe that they can get away with anything through the payment of money.

Testimonies of Muslims at this Public Hearing show that the torture can take very extreme forms where prejudices against the religion and culture of the person work to completely degrade and demonise him or her. In all instances of torture, executions and disappearances, where a prima facie case is established, the court ought to have the power to direct the removal of the policemen responsible from service forthwith in exercise of power granted by Article 311(2) of the Constitution of India. These orders ought to be made in addition to the sentences imposed under the Criminal Procedure Code.

Police and paramilitary forces operating under special laws like POTA and the Armed Forces (Special Powers) Act are under the impression that they are immune from the reach of the law. They must be systematically disabused of this impression. It is, of course, essential that individual politicians are not permitted to interfere with routine police work. But at the same time, civilian control over the police must be clearly established and maintained. We therefore recommend that a high-level board of civilians be established, inter alia, to look into all issues relating to police misconduct and further, that a special mechanism be established to receive, and inquire into, complaints of police misconduct in such a manner that the complainant is protected and the inquiry proceeds in an impartial fashion.

The criminal justice system has broken down in the Northeast and Jammu & Kashmir. So too has the rule of law. The police are afraid to register FIRs against the armed forces. Very few who suffer these atrocities approach the courts. The public has little faith in them. Those who attempt to file a case find the armed forces menacing them once again. The Do’s and Don’ts set out by the Supreme Court while reviewing the Constitutionality of the Armed Forces (Special Powers) Act have been forgotten. Civilian control over the police and the armed forces must be re-established. The high courts of the Northeastern states must strive to regain their pre-eminent position in the constitutional scheme of things and uphold the rule of law. Only then will the faith of the people in the judiciary be restored. Disappearances in Jammu & Kashmir have been neglected for too long. A high-powered independent investigation by persons in whom the people of Jammu & Kashmir have confidence ought to be initiated.

In Gujarat, POTA has been used against Muslims alone (barring one Sikh). POTA charges have not been levelled against any person involved in the far more serious and destructive post-Godhra carnage. This is a clear case of discrimination on grounds of religion. POTA charges must be dropped in all cases. Trials should proceed under normal criminal law, not relying upon any confessional statement obtained under POTA.

Testimonies disclose that the use of POTA is so indiscriminate and wanton that even totally innocent juveniles were victimised. All juveniles ought to be charged in accordance with the provisions of the Juvenile Justice Act alone. Accordingly, no juvenile ought to be kept even for a single day in a jail with undertrials and convict prisoners.

The widespread police practice of employing ‘surrendered militants’, and of giving them guns and money, and permission to operate on behalf of the police as vigilantes, is creating serious law and order problems in many states. These criminal elements operate unchecked, committing dacoity, rape and murder. While they may eliminate a few people who the police may consider undesirable, they legitimise extra-judicial killings and in the process of doing so undermine the rule of law. Secret funds immune from normal accounting procedures and audit fuel such criminal activities and egregious corruption. A terrible underground system based on ‘surrendered militants’ has been set up and operated by the police to perpetuate violence, which is unaccountable to the judiciary. The government and the judiciary ought to review this practice of funding and recruiting ‘surrendered militants’ and discontinue this practice forthwith.

Every testimony before the Tribunal confirmed the routine violation of the DK Basu guidelines approved by the Supreme Court. For instance, many people spoke of how they were not informed of the charges levelled against them. Their relatives were not informed of their arrest and the place of detention. Medical examinations were rarely done and legal aid was hardly ever provided. The Supreme Court is currently reviewing the implementation of the DK Basu Guidelines. It is imperative that it issues further guidelines so that the services of policemen who violate the guidelines can be terminated on the spot in exercise of power under Article 311(2) of the Constitution. This ought to be in addition to the Court’s already existing order that breaches of the guidelines constitute Contempt of Court and may be punished as such.

No court, least of all the Supreme Court of India, ought to permit any security legislation, even remotely and indirectly, to impact the freedom of speech of an individual with respect to the legislation itself or to the conduct of the government in its campaign against terrorism. It is inherent in a vibrant democracy that citizens will complain publicly, and often correctly, that a statute to combat terrorism is being misused for a collateral purpose, or that in the guise of combating terrorism, the State is arming itself to inflict terror on its people. Others may, with varying degrees of justification, attack the very classification of groups as terrorist organisations. Why do most of them relate to minority groups? Why are groups representing the majority community, which are openly communal and advocate violence, not on the list of banned organisations? Why are left wing organisations that advocate for armed struggle but represent the poorest of the poor not treated in a different fashion by the State through an understanding of the history and the social roots of the rebellion? Surely, they don’t seek to overthrow the State but merely attempt to redistribute the nation’s wealth in favour of the dispossessed.

Freedom of speech and expression in such circumstances is paramount. No statute should have a chilling effect on the exercise of that right in any manner. POTA and kindred laws have had just that effect. Therefore, when POTA is repealed it should not be replaced with any other similar legislation. The Tribunal noted with concern that the Madras high court has contributed to this chilling effect through its ‘gag orders’ — which prevent the accused, including political leaders, from addressing any public meeting (barring election meetings during the Lok Sabha poll campaign) or commenting in public, in writing or orally, on POTA and its merits or demerits. Such ‘gag orders’ are legally untenable.

POTA has sometimes been used as a tool of political vendetta. This is clear in the case of Tamil Nadu chief minister J. Jayalalitha’s treatment of her political opponents. Security legislations should never be allowed to be used for such purposes. When a court finds that the statute has in fact been used for a collateral purpose, the individuals concerned ought to be immediately punished and the victims compensated.

Terrorism is indeed a matter of grave concern. There is no doubt that the nation must face the terrorist threat firmly. It is, however, necessary to note the different categories and distinguishing features of what is usually branded as ‘terrorism.’ One kind of terrorism is that of the fanatic who will use force to intimidate the general population. Strong security measures, prompt and efficient police investigation and competent prosecution are necessary to ensure that such fanatics are punished.

But there is another kind of militancy, which is carried out, in a crusade-like fashion on behalf of Adivasis, Dalits and the dispossessed. The roots of such militancy lie in the exclusion of a large part of the poor from democratic processes and systems. To treat this kind of militancy on a par with terrorism of the first type is a grave error, but one that has been committed by the State for decades. The answer to this kind of terrorism has traditionally been the arming of the police and paramilitary forces and the use of terror against the people and their armed representatives. This is a mistake of the gravest kind. The solution lies in large-scale radical reforms, including land reforms. Politically, despite the extreme levels of hostility between the State and these groups, democracy requires that space be created for all points of view to be heard and sympathetically considered. Branding such organisations as terrorist and putting them on the banned list has not helped in the slightest to curb their activities; if anything, the exclusion of the poor has been exacerbated.

A third category of militancy branded as terrorism relates to parts of the country such as the Northeast, where the armed resistance may not have anything to do with externally funded militancy. These are areas where introspection by the armed forces and the paramilitary forces with respect to their way of functioning is long overdue. The Indian army and the paramilitary forces are not supposed to turn their weapons against ordinary citizens. They are there to defend the nation against external aggression. The excesses committed by certain sections of these forces have carried on for so long that they have now almost become a way of life. It is therefore necessary that political and civilian control is re-established, and that the army and paramilitary forces be assigned only legitimate tasks of national defence against external aggression. Instances of abuse brought to the notice of the authorities over the last decade ought to be investigated by an impartial, high-level, civilian body. It is only when the general population sees that justice is being done in a transparent fashion that their faith in Indian democracy will be restored.

The notion that militancy should only be met with, and can be effectively countered by, force is only partially valid. Benevolence, understanding and a welfare approach are equally effective against militancy and can neutralise it. The poor, working people, slum-dwellers, Dalits and Adivasis have begun to strongly resent the strong-arm tactics of the functionaries of the State. They angrily rebel against torture, corruption and severe deprivation in respect of food, education and health services. The State must therefore re-orient its policies and uphold the rights of the poor to food, free public education, free health services, etc. Torture by the police, which people experience in their everyday life, must be quickly ended. Only then will there be a permanent solution to social discontent and strife, and lasting internal peace.

The forensic investigation capabilities of the police have degenerated over the last decade because they place overwhelming reliance on torture. Serious cases relating to terrorism are handled in such a slip-shod fashion that they fail the standards of a fair criminal trial in any civilised society. The recording of coerced confessions, the fabrication of evidence, lying on oath, production of false witnesses and the like result in such trials being reduced to a farce. The police need to be converted into a professional force. The quality of persons recruited must be reviewed and modern techniques of investigation learnt. Most important, as in South Africa after the Apartheid regime, the police must be told that torture is simply unacceptable. The setting up of an alternative method of investigation, coupled with a prohibition on torture, will see a new and professional approach by a police force that will be respected by the general population. Only then will the people co-operate with the police in the investigation of crimes. Only then will people come forward as witnesses in a criminal trial. Radical police reform is a prerequisite of a successful fight against terrorism.

Thousands of innocent people have been traumatised and may have languished in jail because of the indiscriminate and often malafide use of POTA and other security legislation. Even while repealing these laws, the State must recognise that it owes the victims monetary compensation and other reparation for their brutalisation and the disruption of their lives by the State.

What has been said above in respect of POTA, the Armed Forces (Special Powers) Act and TADA applies in principle to the various security legislations enacted both by the Centre and the states. The observations made above, therefore, apply in respect of these security legislations as well.

If there is any single factor that has continued to cause the degeneration of the criminal justice system, it is the judgement of the Supreme Court in Kartar Singh’s case. If there is any single aspect of this case that has reinforced the police’s inclination to torture, it is the finding that the clause relating to confessions made to the police is constitutionally valid. This renders all refined forensic tools and proper investigation processes totally redundant. The police can simply proceed to use brute force and barbaric methods. What is the need for scientific investigation when the end can be achieved with a baton and electric shocks?

The recommendations of the Malimath Committee show that there is an inclination at the highest levels to negate the fundamental principle of ‘innocent until proved guilty’ and introduce coercive methods even in normal criminal law. Nothing could be more dangerous for this nation. The courageous dissent of Justice Ramaswamy in this case sets out the law correctly. The Kartar Singh judgement must be reviewed and the majority decision overruled.