Nitya Ramakrishnan is a senior lawyer based in New Delhi. She has many terror trial defences to her credit, notably the Parliament Attack Case. Ms Ramakrishnan has authored a new book In Custody: Law, Impunity and Prisoner Abuse in South Asia (Sage), which traces the evolution, practice and politics of custodial abuse and justice in India, Pakistan, Bangladesh, Nepal, Sri Lanka and Afghanistan. She spoke to The Hindu on Wednesday. Excerpts:

You start the book by suggesting that the best test of a nation is the protection its citizens have from custodial abuse. Why is it so important?

Because I think it is the quintessential exposition of power. The notion of freedom is accountability for restrictions of that freedom. No power is more absolute than that being held over a person in custody. You have no access to anything in a custodial cell, and over there if you can ensure accountability, then I would assume that your system is working.

We are having this conversation at a time when there is a public debate about extra-judicial methods, including encounters. And there is a school of thought which is now candidly admitting that things have to be done outside the legal framework. On the grounds of efficacy, do you think some of these actions become important?

The security argument cannot be bypassed. There is a strong, even dominant, view that you cannot have law-enforcement according to the book. This has to be addressed at both the conceptual and practical level.

Why do you want law-enforcement? Why are you opposed to murder, terrorism, drugs? It is because it is a breach of a fundamental norm. That norm is fairness and due process. One is not suggesting that no one should be arrested or tried. The basis for your opposition to anything you consider as crimes against humanity is that you believe in certain principles of humanity. So at a conceptual level, you cannot have this contradiction where you say that principles like fairness, justice, due process and human dignity do not apply to a sub-set of situations.

Second, let us look at the efficacy argument. You cannot escape the possibility that you are wrong in your conjecture that someone is a criminal. It is only by a process of investigation that you come to the conclusion that he is a criminal. That process must be as free from flaws as possible, and the minute you have coercive methods, you compromise your investigations. If you analyse the feeling that you have to use strong-arm methods, though there is no articulation of what these strong-arm methods should be, one can sense there is anger against crime, anger against breaches. At the level of anger, it is justified, but at the level of policy, it cannot be justified because it will destroy precisely what you want to establish.

Three, in extreme situations, not only the police but a private citizen is given the right to use lethal force. Under Indian law, the power of police to use lethal force is no higher than the right of a private citizen. You are pushed against the wall and there is no other way. In those circumstances, there is nevertheless a due process of enquiring into whether the use of lethal force was justified or not. We have fallen into a long spell of having these occurrences without even a question. Once there is an enquiry, several of these incidents have been found to be entirely unjustified. So who are you eliminating?

There was a report in 1855 which saw torture as a structural problem of Indian policing. Have things changed?

Our attitudes to it have not changed. There was colonial politics that went into that judgment. Just as it was easy to relegate torture as the innate uncivilized nature of the natives, today there is an attempt to brush it off as the incurable brutality of the lower constabulary, thereby erasing the responsibility of the higher levels of the police and the political administration and its complicity with this. This has not changed.

You include the political administration as complicit.

I have dealt with torture as a public secret. It is something everybody knows, and we pretend it does not exist because we have some norms which criticise it. Let us recognise it for what it is and not just leave it as police brutality. If it is police brutality, and it is persisting, then somewhere the checks and balances in system are not working. It takes everything out of the victim or the victim’s family to bring it to justice. Somewhere there are forces which suggest this brutality is in fact inevitable and useful to law-enforcement. I will not say it is only the responsibility of the police or judiciary. That only lower constabulary indulges in it is a hypocritical position that must be exposed. That’s why command responsibility is important. Torture is sustained as a routine practice because various institutions turn a blind eye to it.

In the India section, you have six case-studies, which include a Kashmiri, a case from Punjab of the 80s, a refugee, a sexual minority, a low caste woman. What do the different experiences reflect? Are the marginalised more vulnerable to torture?

As a thumb-rule, the short-end of any stick is borne by the marginalised. It is true of all things, and would be true of torture. If someone who is relatively well-off is picked for theft, the likelihood of him being tortured is less than if a poor person is picked up. But the important point is it is not perhaps only limited to them. In the Punjab of the 80s, people across the class range were subjected to extra judicial executions, disappearances. In areas called insurgency-prone, there are greater incidents. The one common factor is lack of accountability, and institutions turning a blind eye. A sense of impunity – the assumption you can get away with it – coupled with an innate brutality in people charged with enforcing law would be common factor.

Why is it such an integral element of operations, even when custodial confession is not admissible in court?

The initial understanding of custodial violence, the way it was framed in 1860 in the Penal Code, was torture would be resorted to extract information. The attempt was to then to do away with the temptation to commit torture, or ensure there would be no benefits accruing from the practice. This is very important. But simultaneously, law permits disclosure and discovery for information, for implicating someone else. So, there is always a certain purposive element to it in the minds of the investigator.

We have seen enough to show that there is a certain brutality that has come into the system. Someone who is helpless, in your custody, can be mistreated and you will not have to answer for it. Or in your mind, you ‘other’ the person — if the person concerned is supposed to be a terror operative, you become a nationalist. It is projected like that in your movies. Once brutality has entered the system, and you acquire a sense of power over someone who is helpless, then there is no control over what manner, for what purpose – good, bad, indifferent – you use it. It is actually impunity that operates and to impart a purpose to it is to take away from the seriousness of it.

You mentioned popular culture. In Hindi movies, unless the cop hits the suspect, he doesn’t say anything. It is projected as a successful interrogation technique.

Yes, the image of the honest policeman thwarted by the system. The purposive notion of torture must be dispelled. That is why we have spoken to two former senior police officials, D. Karthikeyan and Vikram Sood. Both of them have been honest enough to say actually this could be an impediment to investigation for acute fear may produce a lie just as much as it may produce the truth. More often than not, it is going to tempt the investigator to avoid back-breaking investigation, corroboration, following up on clues and leads. Torture, whether done for extracting confession, information, or for implicating somebody, or for no purpose, makes no difference at all. Torture is a human rights abuse.

To summarise, one, you have to dispel the notion that there is some useful purpose to torture. Two recognise that once impunity has stepped in, torture will become banal, widespread, and absolutely lacking in any purpose- this is, of course, not to suggest that when it is supported by purpose, it is justified.

But there are safeguards at different levels right. Why does it not work? Why has it not served as a deterrent?

The norm is important. It is the peg against which you judge conduct. It is a necessary but not sufficient condition. If the norm does not operate in practice, it could be because of several factors. It could be because there is this fundamental disbelief in the correctness of the norm. If this notion enters the minds of the magistrate, policeman, lawyer, you start looking the other way. Two, if over a period of time, the impunity gets entrenched, then impunity becomes the practice and the assertion of the norm becomes the exception. And that is what is happened.

Can you take us through the Prevention of Torture Bill, which is currently pending in Parliament?

Prevention of Torture Bill says that irrespective of purpose, irrespective of what may prompt the act, if there is violence in custody, it is punishable offence. Two, it has also graded the nature of violence. Hurt is punishable separately. Death in police custody is punishable separately. These have been suggestions incorporated by the Select Committee. It also brings in command responsibility, and applies to public servants. It shows cognizance has been taken of the wide ranging issues that custodial violence throws up. It also goes into issues of threats, intimidation of family members. It has empirically absorbed the kind of things people are reporting of what happens in custody.

Do you think there would be resistance against it from the executive?

Considering the objections to registering cases of encounter, against automatic registration of FIR into encounter killings and its investigation, I am sure there will be strong interests especially within the police force which will not want such a bill to be passed. I sincerely hope that is overcome.

You seem to indicate in the book that the courts have been inconsistent, with principles ‘rarely translated into justice’.

There have been cases where very strong statements have been made about police brutality but an automatic referral that there should be a prosecution has not happened. If police brutality is something so wrong, then there are many components of justice which enter. There must be adequate compensation. There has to be a prosecution. The outrage at the practice has not always translated into specific things that need to be done as a consequence of the recognition of what has happened as an outrage.

India has signed the UN convention against torture, but not ratified it yet. If it does so, what will it be its obligations?

It would have to legislate, there would have to be consequential action, and there would have to be compensation. It would have to allow international monitoring, which it has resisted strongly so far.

You refer to Nepal as having exemplary norms without the political ethos and infrastructure to actualize it. Can you elaborate?

Their Constitution has recognised custodial justice. The 1990 constitution said torture during investigation is barred, and recognised right to compensation. The interim constitution goes a step forward, and recognised there should be prosecution that follows any torture. The constitution recognises the National Human Rights Commission (NHRC), which has the power to call for records and surprise searches, recommend penal action, and declare any official a human rights violator. There are then consequences for the violator. The Attorney General’s Office has the power to receive complaints about ill treatment of anyone in custody. Then the Military Act of 2006 recognises Torture and Enforced Disappearances as offences to be tried by Court martial, and homicide and rape to be tried by civil courts. These will not be considered as offences conducted during course of duty. It contains express disclaimer of immunity. This is a huge leap for Nepal, normatively speaking. But the battle-lines are drawn in the country. And any attempt to recover democratic norms is subjected to severe interference, particularly from entrenched interests.

Both in your sections on Pakistan and Afghanistan, you seems to suggest there is a fight-back happening now, especially by the judiciary and civil society? What form is this taking?

What I find remarkable is the spirit in the most inhospitable situations. The human rights activists in Pakistan have documented what happened in FATA; they fought for accounting of disappearances. The court has actually been able to force the state to come out with figures of disappeared and restore them to their families, at least some of them. That is what I mean by engagement. They have shown an amazing, awesome spirit. In Afghanistan, today, there are no norms at all. But the way RAWA (Revolutionary Association of the Women of Afghanistan) functioned was a display of remarkable spirit. They documented atrocities by both Taliban and Northern Alliance, they organised the women. The greatest safeguard against abuse is the spirit and determination to engage.

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