The report of the New  York City Bar association concludes that the sweeping powers given to the authorities by such enactments as TADA (Terrorist and Disruptive Activities (Prevention) Act), POTA (Prevention of Terrorism Act) and UAPA (Unlawful Activities (Prevention) Act) have not been used predominantly to prosecute and punish actual terrorists: these legislated powers have, rather, enabled a pervasive use of preventive detention, and a variety of abuses by the police, including extortion and torture.

The Armed Forces (Special Powers) Act has been sharply criticized for its ‘oppression and high-handedness’ by the Justice Jeevan Reddy Committee: which has asked for the scrapping of this draconian law. This act was the rallying point of widespread protests in Manipur and in other parts of North East as it offered immunity to the army personnel guilty of indiscriminately killing innocent people.

The wide prevalence of encounter deaths or extra-judicial killings at the hands of the police has been documented by human rights organizations and remains a part of the history of post independent India. A study conducted by the Asia Pacific Human Rights Network noted that encounter killings were not isolated incidents but occurred throughout India. They are part of a “deliberate and conscious state administrative practice” for which successive Indian governments must bear responsibility. Indeed, successive Indian governments have adopted a de facto policy sanctioning extra-judicial killings by members of the police forces, army and security personnel.

The complicity of State and Central governments in encounter killings can be gathered from the fact that they do not vigorously conduct prosecution of the guilty nor is the investigation thorough to bring the guilty to book. The National Human Rights Commission has proved ineffective in checking encounter killings, as its recommendations are not implemented by the State and Central governments. The long delay in prosecuting the guilty police personnel creates a climate of impunity for such crimes to flourish. Governments also reward policemen or paramilitary personnel, which actually encourages encounter killing. The compensation paid to the surviving members of the victims murdered by the police personnel is small.

The most striking examples include the operations against Naxalite movements in West Bengal, Andhra Pradesh and the operations against Punjab extremists. Tamil Nadu and Kerala committed the excesses of encounter killing during the days of Emergency. The Vimadlal Commission exposed so-called encounters in Andhra Pradesh during the mid-1970s. Uttar Pradesh is noted for its encounter deaths and this has assumed alarming proportions in recent times. The paramilitary operations in Jammu & Kashmir, Manipur and Assam cause grave concern as human rights activists report wide spread instances of encounter killings, besides the rape and torture of militant suspects.

India has signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) but there has been no ratification on the pretext that, in addition to constitutional safeguards, existing laws have adequate provisions to prevent torture. But the use of torture and third degree methods against suspects remains the ‘standard operating procedure’ of the police. Human Rights organizations note that torture is used against secessionist groups, against suspects belonging to the poorer sections of our society for extracting confessions and bribes; and also used as extra-legal punishment or deterrence. Beating of suspects with belts and lathis is standard practice in most police lockups. Human Rights groups have recorded cases involving rape and sexual humiliation of woman suspects.

The methods of torture vary. In Jammu & Kashmir, there are detention cells where suspected militants are beaten, and electric torture, with a cattle prod for instance, is meted out as routine punishment to extract confessions or information. In Assam, and in Punjab, particularly in areas where the Punjab police or Punjab paramilitary units operate, dislocating the ball-and-socket joints of the suspect appears to be common. Elsewhere it is the ‘airplane treatment’: tying the hands of the suspect behind his back and suspending him over a beam, leading to shoulder dislocation. Another common practice is the roller treatment: crushing the muscles of the suspect with a wooden log being rolled on his legs.

While the reported cases of custodial deaths are increasing, statistics are difficult to come by, as there is government apathy to transparency. However, on 12th May 2006, The Indian Evidence (Amendment) Bill, 2006 was introduced in the Rajya Sabha with a view to curb custodial deaths. The amendment makes explicit that, when a suspect dies in police custody, it may be presumed the police have caused the death; and the onus of proof rests on the policemen to prove their innocence. While the amendment is certainly welcome, it remains to be seen whether it would be effectively implemented in the courts.

Legislation to eradicate torture, encounter killings and custodial deaths may be effective up to a point, and may decrease human rights abuse marginally. But laws need the backing of robust public opinion to be fully effective: and there seems to be a wide acceptance of ‘tough police tactics’ by the middle and upper classes. We note that human rights violations by the police occur both in communist and non-communist states in India: both the states of West Bengal and Kerala have witnessed police brutality with the Left parties in power; so it would be a mistake to associate the abuse of human rights with any particular ideology.

The Amnesty International in its report dated 10-08-2001 on torture in West Bengal observed that the “police are being urged to use whatever means necessary to deal with crime, and are often allowed to use torture as a substitute for investigations; while action is rarely taken against the perpetrators. This system of policing is having little if any impact on crime.”

The CPI (M) leader Benoy Konar, defending police brutality, once said: “It must be viewed whether police is carrying out torture with a correct aim or an incorrect aim...In a class divided society, the police have the duty of carrying out repression.... You [journalists] have the pen in you hands; the police have the stick.