Font size: 
The mere existence of a Constitution and the possibility to cast a vote once in awhile is not what democracy means. Democracy involves and demands good governance. Good governance must be reflected in every aspect of public life where state agencies are respected and considered as instruments and institutions of service, not as sources of suspicion and fear.
One of the best indicators of good governance is the perception of the ordinary person about his state institutions. The failure of any single state institution suggests defects in governance. When the law enforcement agency becomes a failed institution, and there is no credible attempt to address this, the situation is much worse.
In India, the institution that is primarily responsible for law enforcement is the state police. There are serious concerns about policing in India -- which is not much different from in neighboring countries.
Instances of custodial torture are reported all over India. It appears that in general, investigation of a crime begins and ends with a confession. In most cases the arrest of a suspect precedes the investigation of a case. The arrest is often followed by a prolonged period of illegal detention during which the detainee is tortured. If the police are certain, according to their "conviction," that the suspect in custody was involved in a serious crime, often the suspect is killed, allegedly in an "encounter." In fact, "encounter killings" are reported in alarming numbers in India.
It appears that the government is increasingly tolerating the misuse of authority by law enforcement agencies. The cases of "encounter killings" reported from the states of Gujarat, Uttar Pradesh, Karnataka, Chhattisgarh and Andhra Pradesh show a consistent and alarming pattern of tolerance for the use of violence by state agencies.
After each reported "encounter killing" the government launches a smear campaign against the murdered suspect, justifying the act of the state agencies as if the murder were inevitable and is in fact an achievement. Custodial torture and encounter killings are closely related.
State-sponsored interrogation centers -- often torture chambers -- function in most states in full public view. The suspects are brought in, kept in illegal detention and tortured as part of questioning. Later they are killed and declared as "killed in an encounter." Such centers are run under the guise of protecting ordinary citizens from anti-social and anti-national elements. These centers are the Indian version of Guantanamo Bay camps.
In a proceeding in the Supreme Court regarding a case from the state of Gujarat, the state government admitted in court that it was aware of the existence of the interrogation and torture centers. The government also admitted that in several cases the officers might have killed witnesses to an arrest and detention in order to avoid questions at a later stage.
The Gujarat experience, while a shocking revelation of the state of policing in that state, is also proof that the public could be forced into silence through fear, if the state so requires. The alleged war against terror -- in its Indian version -- serves as a good excuse for allowing state agencies to resort to extrajudicial means of punishment.
Even though the use of violence and imparting fear among the populace are considered among the worst methods of crime prevention in many countries, they are widely practiced in India. This is because even today the concept of law and order is based on the principle of imparting fear. The state has neglected the need to modernize and humanize the police. The state police are often under extreme pressure to control crime. When pushed beyond their capacity and capability, the law enforcement agencies resort to crude forms of policing, which is often the use of brute force.
Widespread use of custodial torture in India is not the result of government neglect alone. It is also the result of the lack of seriousness in approaching this issue by the other justice mechanisms in India. Meager compensations awarded after decades long court cases serves no better deterrent than a scarecrow. To punish a law enforcement officer who has engaged in torture, as of now, there is no law in India.
The widespread use of custodial torture has also taken its toll upon the law enforcement agencies and is reflected in the overall state of the rule of law in India. Ordinary people isolate themselves from the law enforcement agencies, not trusting them. The use of torture has considerably reduced the morale of the law enforcement agencies. For example, cases that are brought to court based on evidence gathered by the use of torture often result in acquittal. The loss of morale of the law enforcement agencies is also exploited by corrupt elements in the society.
In spite of all this, neither the government of India nor its state governments have declared a policy of non-tolerance to custodial violence. In the remote villages of India, government means the local police constable. The atrocities committed by these uniformed state agents create a fertile ground for anti-social and anti-state elements to propagate and advocate violence. The increase of violence in society has resulted in the loss of a middle ground for those who do not support violence.
Various state governments in India and their law enforcement agencies have lost control of law and order over considerable parts of their jurisdictions -- a backwash of erratic policies. The spread of anti-state activities covering considerable parts of India must be an alarming wakeup call for the government.
Good governance is reflected in good policing. Mere misleading statistical indexes do not suggest a balanced growth promoted by a stable democracy. Stable and sustainable progress is when the persons and property in a state are safe. India lacks this as of today, but unfortunately it is the least discussed issue within and outside the country.
--
(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)
