Tuesday, October 25, 2011

Police in India (part VI)

When the common citizens have no rights, and when the powerful have immunity, not in practice, but legally speaking, constitutionally, then the only conclusion is that India is a failed state.

The Independence struggle has merely replaced foreign bullies with regional ones. And since now we are a so-called democracy, there is no hope that the constitution will ever change to reduce the power of the elite. The powerful have no incentive to change the constitution to transfer their power to the citizenry. There cannot be another freedom struggle. There cannot be a coup.

True freedom starts from a constitution which guarantees that freedom. India does not have that. The first freedom is to be free in one's person and property. The constitution of India does not value that freedom. The trial courts of India regard detention as a routine matter (the statutory form for "judicial custody" after one has been detained in "police custody", and which is filled in by the police, does not even have any space for recording the reasons for this request for further detention). The accused in India have to justify to the trial court why they should not be sent behind bars.

The constitution of India is not what should be taught in civics lessons in India. The list of "fundamental rights" and "directive principles of state policy" are fairy tales which made students like me believe that we have rights and the state has duties.

What should be taught is the IPC, the CrPC, the COFEPOSA and the NSA. What they should be taught is what an FIR is, "bail" is, what "custody" means, what "due process of law" is supposed to mean, why jury trials were done away with in India. What should be clarified is the existence of hate speech laws in India, the laws related to "hurting of sentiments", laws related to "obscenity", the existence of warrant-less phone tapping. They should be taught that though the Supreme Court has ruled that the police is BOUND to register your complaint, if it doesn't, and you approach the court, the court will not even whimper or whisper against this illegal conduct of the police, but will instead ask you to prove that you have a valid grievance.

What should be mentioned is that citizens of this country cannot own a hunting knife, by law, but the elites have access to customs-seized automatic weapons. The young students should be taken to police stations and jails and to courts and to scenes of popular protests where feudal methods of baton-charging are still used against the elderly and the weak to make them run away.

Maybe India is not ready for freedom, maybe we are meant to be slaves. Its citizens, mostly, certainly don't seem to care. Many are too busy surviving, and others are too busy enjoying the fruits of this barbaric state of affairs. There are a few who, having had a personal experience of this state of affairs, are horrified, but not being politically organized, can't do much.

The power of a state lies in guns: and in a modern state, with the police and with the military. If these forces are not in service of the citizens, but are instead in the service of the ruling class, then democracy is just a word, it is not an actuality.

The sine qua non of a democratic state is to protect its citizens from harm, not to protect itself from its citizens.

Monday, October 24, 2011

Police in India (part V)

The fundamental right to liberty is violated by the state if a person is imprisoned without conviction. There is an oft-used euphemism for this kind of violation, and it is called "preventive detention".

Preventive Detention is supposedly a tool of feudal powers, or an extraordinary measure in times of war. Not so in India.

From The Hindu:
... the Preventive Detention Act was passed by Parliament in 1950. After the expiry of this Act in 1969, the Maintenance of Internal Security Act (MISA) was enacted in 1971, followed by its economic adjunct the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) in 1974 and the Terrorism and Disruptive Activities (Prevention) Act (TADA) in 1985. Though MISA and TADA have been repealed, COFEPOSA continues to be operative along with other similar laws such as the National Security Act (NSA) 1980, the Prevention of Blackmarketing and Maintenance of Essential Commodities Act 1980 and the draconian Prevention of Terrorism Act (POTA) 2002; not to mention laws with similar provisions enacted by the State governments.
From an article on the HRDC:
In the normal course of the criminal law, a person accused of a crime is guaranteed the rights to a legal counsel, to be informed of charges as soon as possible, to appear before a magistrate within 24 hours, to cross-examine any witnesses and question any evidence presented, and to be presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

The National Security Act, however, does not apply any of these rights to preventive detention cases. It permits the extra-judicial detention of individuals if the Government is subjectively “satisfied” that an individual is a threat to foreign relations, national security, India’s defence, state security, public order, or the maintenance of essential supplies and services.
Since the right to liberty does not exist in India, the article continues
The Supreme Court has consistently ruled that on their face, preventive detention measures such as those in the NSA are wholly constitutional.
The National Security Act of 1984 is still in effect in India. If you thought you cannot be imprisoned without due process in India, and that India is a free country, you are just factually wrong. India may have become a democracy in 1947, but it is certainly not a free country.

On the one hand, the crime statistics in India report to a crime incidence of 5% compared to a developed country like the US (in other words, that 95% of crimes in India are not subject to the rule of law). This is obviously a simplification, since violations of law are, if anything, much more frequent in India (for just one example, drunken driving, traffic and parking violations are flagrantly common in India). On the other hand, far more people are unjustly imprisoned in India for their alleged crimes than in any other country in the world.

From the Human Rights Watch report of 2009
The large scale of crime suppression is suggested by the unrealistically low rate of crime reported by the Indian government: in 2007, a total of 215,613 violent crimes were registered nationwide, or 19 crimes for every 100,000 residents in India. Bangladesh also suffers from under-registration, but has a higher rate of 83.21 reported crimes per 100,000 residents. In developed countries like Japan and the US, the rate is more than 1,000 reported crimes per 100,000 residents.
From The Hindu article above, which references the NHRC report of 2003
... as per the NHRC report released in May last year, out of a total of 3,04,893 prisoners in India, 2,25,817 are awaiting trial. In other words, more than 74 per cent of the total prison population are undertrials.
The latest report available by NHRC on their website is from 2008-2009. It indulges in a lot of chest-thumping for its own accomplishments, but does not mention the all-important statistic of the population imprisoned without conviction. But there are some hints. From the report
The District Jail in Jamui, Bihar had 629 undertrials and 28 convicts on the day of the visit...
That is, 95% of the prisoners in that prison were non-convicts. That might be true for one prison, but the mind boggles if that is true for the country as a whole.

I looked up the National Crime Records Bureau report on Prisons for 2009, available here, and found that the situation is slightly better than 2003, but still extremely alarming: Even in 2009, 67% of the prison population has not been convicted but is under trial. The total prison population in India is 370,000 (which is merely 0.03% of the total population of 1.2 billion, compared to 1% - 33 times higher - in the USA).

These are depressing figures, perhaps for India as well as for the US.

(to be continued)

Sunday, October 23, 2011

Enlightenment Blues

Enlightenment Blues, My Years with an American Guru (Andre van der Braak)

Finished this book today - it was a gift from a thoughtful friend.

The grip of a spiritual mission or of a guru can be remarkably hard to shake off. The sense of mystical purpose that one derives from that association becomes as essential as oxygen. To give up one's guru or religion is easy for people who never really believed in that, but a devotee risks suicidal nihilism if he detaches from a occupation which demanded total surrender.

The seeker gives up everything for his quest. And therefore, a serious seeker giving up his quest itself due to disillusionment needs all the support that his family and friends can provide. There is a very real risk of profound isolation, clinical depression and suicide.

To have one's spiritual teacher fall from grace is to see one's mother, who one loved and admired, whoring around with drug addicts.

Throughout the seeking, if one is serious, one commits massive and radical surgeries on one's intuitive and emotional apparatus, and on one's capacity for intellectual discernment.

To then limp back into the real world is not easy.

I salute people like Andre, who found the courage and conviction to come out of such abusive and unbalanced spiritual groups. He did it pretty much on his own, helped perhaps by one desperate conversation with a psychotherapist. I hope he is doing well.

These words at the end of the book need to be etched in metal to be worn around the neck of every budding seeker:
But I can no longer believe in a perfection that is removed from human decency, from warm and loving personal attention, from kindness and encouragement, from vulnerability and self-deprecating ordinariness. The myth of perfection is too much like the myth of Narcissus. It is cold and heartless.
The world is a cruel place, and sensitive souls will always seek a kinder haven to live in. But for the sake of all that is alive within you, do not surrender yourself.

Spiritual teachers treat students as recalcitrant egos, ripe for chastisement. And seekers start seeing their own self as someone to overcome. To make a human being his own enemy is probably one of the worst things one can do to another.

Yes, you may have certain impulses which may not be healthy, but you are probably just fine. Being an introvert, you may be neurotically exaggerating your mild flaws.

Beware of a teacher who tells you to negate or deny a major and generalized sense of yourself. That major part can be called "ego", "self", "persona", "instincts", "mind", "soul", "intellect", "dark side", and so on and so forth. Such denunciation is an insidious form of control. Once you are no longer sure of what you feel and whether you can trust yourself, the game is over.

You must understand that any human attempt at getting gratification or pleasure or joy can be denounced as "selfish" and "egotistic". Are you willing to live a joyless, unhappy, painful life? Then start waging a war against your own ego.

Unwarranted pride or an excessive ego (normally called a superiority complex) is a neurotic condition, but usually just an amusing one. A healthy sense of oneself, and having an ego and indulging in human appetites, is perfectly fine. If anybody tells you otherwise, he is a misanthrope.

I hope the era of these gurus is over. Humanity didn't need to worry about another major organized religion in the 20th century. And I hope there won't be any "enlightened" being in the 21st century.

We can certainly thank Tim Berners Lee for that.

Friday, October 14, 2011

Police in India (Part IV)

If a policeman (rather, any public servant) abuses his authority or indulges in torture or worse, you have no recourse under normal law.

This is what immunity in India, a relic of colonial times, looks like:

Section 197, Criminal Procedure Code of India
1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no court shall take cognizance of such offence except with the previous sanction-

(a) In the case of it person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

This is not sufficient for the judges (for some reason), so the judges protect themselves by this additional immunity:

Section 77 of the Indian Penal Code:
Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.

Even this is not sufficient (for some reason), so the courts further immunize themselves thus:

K.Veeraswami vs Union of India (Supreme Court of India, 1991)
"No criminal case shall be registered u/s 154 Cr.P.C. against a Judge of the High court, Chief Justice of the High Court or a Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter."

Thursday, October 13, 2011

Police in India (part III)

"I say it with all sense of responsibility that there is not a single lawless group in the whole country whose record of crime is anywhere near the record of that organized unit which is known as the Indian Police Force." (Justice A N Mulla, Allahabad High Court, 1961)

"In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all." (National Police Commission, third report)

The 2009 Human Rights Watch report on Police in India

Wikileaks cables (here and here) on police brutality and extra-judicial killings in India

The Bhagalpur Blindings case

Forbesganj Police Firing

The Hashimpura massacre

The Jaswant Singh Khalra case

The curious case of Sumedh Singh Saini

The Malimath Committee Report

(to be continued)

Police in India (part II)

Police is a state subject in India, thought, interestingly the penal code (IPC), the code of criminal procedure (CrPC), and the the various acts which mandate police action are under the purview of the Parliament. What this, in effect, means is that the though the laws which the police is supposed to enforce are drafted in London (the IPC dates back to 1860 AD) or in Delhi, the rank and file of police is controlled by state level politicians and bureaucrats.

What this also means is that if you are well connected with your local politicians, you need not fear the police. If there is a truly horrendous crime, since it is commonly understood that the police will not prosecute a state big-wig, the central police (CBI) is involved. The matter doesn't end there. CBI is influenced and controlled by the central government. So, if you wish to proceed against someone who is directly or indirectly in power at the Centre, you have to petition the Supreme Court to form a "Special Investigative Team", which reports directly to the court. God help you if you want to prosecute an officer of the court. Prosecuting a judge is impossible, but try prosecuting a lawyer and see how far you go.

In India, lawyers and the police make a pretense of arguing against each other in the court, but they make love to each other in the chambers and in the police stations. Both of these are mafias, whose members gleefully rub their palms whenever a harassed person comes to them for help. The more people suffer, the more money these people make. A decent policeman or a decent lawyer is rarer than a thousand rupee note lying uncollected on a public street.

Since, in criminal trials in India, fair and impartial investigation, prosecution and conviction are at least a few centuries away, what does the state do?

The trend is: it washes its hands off the investigation, and asks the accused to prove they are innocent. With an increasing failure of police and the criminal justice system to punish the guilty, protection of the innocent (which is a higher duty of the law) is being accorded lower and lower priority.

The Malimath Committee report of 1994, which otherwise contains some valuable suggestions, irresponsibly suggests that proving a crime "beyond reasonable doubt" is an unreasonable expectation in India. It recommends instead that, given the (lack of) investigative environment in India, the principle of conviction must be adjusted to be more lax.

More and more laws are being drafted where presumption of innocence is being done away with.

The Dowry Prohibition Act says:

"Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he had not committed an offence under those sections shall be on him."

A news item on the proposed law on honour killings says:

"When a death of a member of a family occurs and a person or a group of persons is accused of acts falling within the fifth clause of section 300 of IPC, then, the burden of proving that case does not fall within that section shall be upon such person or persons."

If the state is helpless to investigate and prosecute properly, then the state of affairs is nothing but anarchy.

It is not that the state is somehow inept while the rest of India is gloriously efficient. The state is an amplified version of the Indian ethos, and of an underdeveloped intellect which abhors clear definitions and processes.

(to be continued)

Police in India (part I)

In India, the basic rights of liberty, equality before law, and free speech do not exist. The state is the aggressor, by far, in violating these rights of common citizens.

Let me start with the absence of liberty in India.

The right to liberty is fundamentally this: The right to be free in one's person and property.

When the other side is the state, this means: no incarceration without conviction.

Since in India, trials take decades to complete, justice is frequently seen to have been served by pre-trial detentions and by the very process of making someone go through the tribulation of the trial. That is a mockery of justice. As much as I am appalled at the scale of the 2G scam, the state should have a right to imprison the accused only if it is able to prove its case in a court of law. We, as citizens of India, don't care about the human rights of the accused in the 2G case, just as we don't care about the human rights of millions of under-trial detainees in India. We are too busy watching television and gloating over these extra-judicial punishments.

Prosecutors oppose bail as a matter of course, citing vague concerns in every case that the accused may influence witnesses or destroy evidence. I have a simple question for the prosecutors: if the accused is powerful enough to influence witnesses, can't one of his acquaintances (or more usually, his lawyers) influence the witnesses while he himself languishes in jail? That is what usually happens anyway and therefore this excuse to keep somebody who is presumed innocent is an entirely lame one.

"Destroying evidence"? I am amazed the judges don't critically examine this phrase. The onus is on the police and the prosecution to collect evidence in an expeditious manner, and not put this burden of delay on the accused.

The only good reason to keep someone in pre-trial detention is the possibility that he or she may evade the jurisdiction of the court. That is why the concept of bail was invented to begin with, and that is what bail guarantors are for, in case you are wondering. Hence, once suitable guarantors are found, there is no further excuse to keep the person in jail.

The police routinely arrests Indian citizens accused of a crime. This is despite a landmark Supreme Court judgment (in 1994) that the power of arrest is not the same as the justification of arrest. Since the police openly spits at the highest court of the land, the state hurries to restrain this lawless arm of itself (the CrPC amendments limiting the power of arrest by police), but the lawyers who make money from bail cases oppose the change and the government, not unsurprisingly, backs down.

Since the police has the arbitrary discretion to arrest a common citizen, the privilege to lodge a complaint with the police is a rather powerful one. No points for guessing that this privilege is not available to common citizens. This is, once again, despite a clear judgment of the Supreme Court of India. Police in India does not register your complaint, unless it stands to gain either the favor of the bosses or unless some bribe is given. They are not your servants, they are your oppressors.

In fact, they are permitted by law to treat certain complaints (a very large category, as it turns out) as "non-cognizable". That is, they will ask you to prosecute the criminal yourself by engaging an advocate and filing a complaint in a court of law. The Malimath committee report, in 2004, advocated abolishing of this distinction between cognizable and non-cognizable crimes, but who listens?

There are many interesting consequences of this arbitrary power of the Indian police. Since the harassment starts right at the start, when the police registers someone's complaint, there must be a way the powerful can evade this harassment. One doesn't have to look far. There are hundreds of rules in place for powerful state functionaries not to be complained against, prosecuted or jailed without "approval" from the state itself.

A second interesting consequence is that it is the police which decides, on its discretion, what you should be accused of. Since the Indian Penal Code (IPC) is hopelessly vague, if you punch someone, you can be accused of anything from abetment to suicide all the way to attempt to murder. The decision of which "sections" (of IPC) to include when accusing someone is such an arbitrary and unpunished violation of human rights in India that the mind boggles. Frequently, a man who loves a woman and marries her without her family's consent, is hounded with active involvement of the police. He is accused of everything from rape of a minor, kidnapping, to criminal intimidation. Sometimes, even his family members are arrested (after all, how difficult is it to include them as co-conspirators?). No wonder lovers frequently commit suicide rather than face this harassment.

A third consequence is that since the police is acting on discretion, and not in the service of citizens, the citizens when they find a petty criminal, routinely thrash or lynch him/her. Nobody protests or complains against these acts of violence, since the petty criminal doesn't (or so the thought goes) have any right to expect decency.

People in government jobs have to be, by law, suspended from their duties if they are in police detention beyond 48 hours. Presumption of innocence? One must be kidding.

A fourth consequence, or cause, of this travesty is that investigation and prosecution are thoroughly shoddy affairs in a criminal trial in India. Since the accused is already being punished by the process itself, why bother with an actual judgment?

(to be continued)