A License to Torture under Indian Counter-terrorism Law

Guest blogger Aisha Maniar of the London Guantánamo Campaign writes about a controversial counter-terrorism bill in India that, if passed, could increase the risk of torture and other ill-treatment of prisoners.

On 31 March, the government of the state of Gujarat, in Western India, passed a controversial counter-terrorism bill for the fourth time in 12 years.

First passed in 2003 under the auspices of the current Prime Minister, Narendra Modi, when he was Chief Minister of the state, the Gujarat government now hopes that Modi’s current status will help the bill acquire the presidential assent required for it to become law – something that has been denied three times already.

Narendra Modi (Courtesy of narendramodiofficial, used via Flickr creative commons license).

Narendra Modi (Courtesy of narendramodiofficial, used via Flickr creative commons license).

One of the most controversial provisions of this latest amendment of the bill, now called the Gujarat Control of Terrorism and Organised Crime Bill (previously, only organised crime was mentioned in the title), is clause 16, which would allow confessions made to a police officer at or above the rank of superintendent admissible evidence in court.

Clause 16 does not contain any safeguards against fears that it may be used to obtain confessions coerced through torture or other inhumane treatment. The last time the bill was approved and sent for presidential assent in 2009, the president’s office asked for this clause to be removed.

According to Amnesty International India, the lack of adequate safeguards in clause 16 “will almost certainly increase the risk of torture and other ill-treatment of detainees.”

In addition to clause 16, the Gujarat bill includes a very broad definition of torture and affords immunity against prosecution of police or government officials acting in “good faith”. It is modelled on a similar law from the neighbouring state of Maharashtra on organised crime, which contains the same provision. However, this bill differs in its widening of the scope to include counter-terrorism, harking back to controversial old counter-terrorism laws. According to journalist Manoj Mitta, this clause “threatens to serve as a legal cover for torture”.

India is still to ratify the UN Convention against Torture (CAT) and the use of torture in Indian prisons is rife, particularly where prisoners are accused of or convicted of terrorism-related offences. A 2011 Human Rights Watch report on the treatment of terrorism suspects in India states that “much of the worst abuse” was committed by the Gujarat police. In the first decade of this century, more than 100 people died in custody in Gujarat, usually as a result of torture.

Just weeks after the Gujarat government passed the bill in mid-April, the Gujarat police sought to prevent the release of a book detailing the torture suffered by a man who had been arrested under the earlier repealed counter-terrorism law. Tortured into confessing, along with five others, the man was convicted and sentenced to death in 2006; he was acquitted of all charges in 2014 by the Indian Supreme Court and released from prison after 11 years.

An Amnesty International survey from 2014 found that 74% of respondents in India – the highest rate along with China – believe “torture can sometimes be justified to gain information that may protect the public.” Both widespread and widely accepted in India, such a law would only further sanction its use and could lead to an increase of the practice. Amnesty International India has called for similar existing laws in other states to be repealed immediately.

Speaking of the Gujarat bill, Shemeer Babu, Programmes Director at Amnesty International India, said, “Instead of weakening criminal procedure safeguards, authorities should be giving state police the training, resources and autonomy they need to prevent and solve crimes.”

And besides prevention, the government should do more to treat those who have fallen victims to torture in the country, which has one of the highest incidences of torture in the world. Torture is a complex problem that requires comprehensive solutions.

On 23 April, the state governor of Gujarat sent the bill to the Indian President Pranab Mukherjee for his assent. The opposition party in the state has said it will ask the President not to approve it. A decision is likely in May.

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