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Defining right and wrong is, to a large extent, what many cultures do. What is right in one place may be wrong in another. Custodial torture by state agents is considered wrong in many functioning democracies. The offenders are investigated, tried and punished. There are established and reasonably well-oiled, state-sponsored mechanisms that perform this task. But in India, torture is accepted as a common practice. Widely used by law enforcement agencies, even before 1947, it continues unabated today.
Torture is exercised to extract information, force confessions and to coerce a third person to report to a police station. Investigation of a crime begins and ends with torture. If a widespread, consistent and unchallenged practice is a way of defining a particular act as "cultural," then torture has met these standards in India. Thus, the practice of torture is an "acceptable" act in India.
In all cultures, there is always a minority who try to argue against the accepted norms. However, many fail in their attempt due to their own weakness and the overwhelming presence of the opposing majority around them. In India, some critics of torture are a few judges. They argue that custodial violence is unacceptable, and they have tried to set out new rules and have offered assistance to those who subscribe to this principle. Many thought that this was a new path to freedom, but those who attempted to follow it soon realized that it was non-attainable because the path was never ending.
Those who have sought help in India's courts have quickly realized that to get a verdict takes years. This has been the scenario ever since the judiciary was established in independent India. Litigation in India is like the expanse of the universe: there is no predictable end to it. It is also a costly affair which few can afford. Delay and judiciary are two words in India that have become synonymous, i.e., the culture of delay.
What happens when delay becomes the judicial culture? People lose faith in it, which results in impunity for criminals. Today it is practically impossible to punish an erring law enforcement officer in India. For instance, every day a law enforcement officer in some part of India kills a person. Simple mathematics thus indicates that 365 people are killed each year. A more factual statistic might place the number even higher. How many officers though are punished in India for murder each year? In all probability, none, or perhaps one or two. Even so, in which year was the crime committed? This reality has existed for the past 60 years -- long enough to safely say that India has yet another culture, i.e., the culture of impunity.
However, the protection of impunity often comes at a price for the criminal that takes the form of bribing investigators, lawyers, judges, prosecutors and witnesses. It is a well-known fact that corruption is commonplace in all areas of public life in India. The only difference is that the bribe a person claims is proportionate to the position he or she holds. Corruption is such an accepted practice in India that it even decides the status of brides and bridegrooms in marriages. The more the possibility of getting bribes, the better the chance of marrying into a rich family. To hear of an incorruptible state agent in India would astonish many Indians. Consequently, another culture can be added to the list of cultures above, i.e., the well-accepted culture of corruption.
What impact have all these cultures had on India? They have destroyed the criminal justice system as well as many other state institutions and mechanisms. For example, look at the caste system that prevails in India. It continues to exist even after hundreds of years, compelling a vast number of Indians to live in circumstances worse than slavery. The number of black Americans was less compared to their white counterparts, yet the anti-slavery movement in the United States succeeded in eradicating the use of slaves perhaps because, by then, they were seeking to put into practice the culture of mutual respect and guaranteed freedom and rights in the U.S. Constitution.
Where though is India now? Look at Nandigram in West Bengal. The perennial foes of capitalism, the communists and a state government led by them, killed at least a dozen people and injured and displaced hundreds. What happened? Many human rights organizations protested, the media carried the incident as front-page news for a few days, and the state government and their political think-tanks were obliged to express their false concern. Moreover, the judiciary intervened and ordered an inquiry, reports and counter-reports were submitted and now the case has been adjourned -- the predictable outcome to any such issue in India. History is replete with examples -- for example, the industrial accident in Bhopal, the displacement of people by the Narmada Dam, the riots in Gujarat and Bombay, among others.
What happened to the victims in Nandigram? Will there be any justice delivered to them in the near future? Where are those who have been displaced and injured by the incident? What happened to the officers and criminals responsible for the incident? Will they be punished? Are there any mechanisms in West Bengal that could cater to all these questions and fundamental issues? Is there a functioning criminal investigation mechanism in that state to investigate this case? What are the reports that have been submitted to the court? Why are they kept secret and not published? Why is the case being adjourned from days to weeks? One could ask even more questions. Sadly, the very same questions that were asked of past incidents and are now being asked of the present incident are met with deafening silence while the victims live in fear, i.e., the culture of silence caused by fear -- the sum total of the culture of modern India and its failing democracy.
If there is an honest attempt to alter this context, it must begin with changes in the existing state of the criminal justice mechanisms in India. The law enforcement agencies must cease to be agents of terror. The criminals within the government must be punished. For these positive developments to take place, the courts must have a minimum infrastructure to function. Furthermore, the appointments of prosecutors must not be made on the basis of their political allegiance but on their merits. Anyone practicing torture must be punished. Corruption and corrupt practices must be rooted out. Crime-investigating agencies must investigate crimes, not generate them. Can the guardians of Indian culture take up this challenge? Have the supporters of Indian morals even thought of it?
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(Bijo Francis is a human rights lawyer currently working for the Asian Human Rights Commission in Hong Kong.)
