Neoliberalism etc.

Frontline's latest issue on the price-rise makes a substantial contribution to the field reports on neoliberalism across the country. Neoliberalism, as an academic subject, has attracted considerable literature in recent past. It may be of interest to readers, who wish to understand the subject, to consider India's experience in this regard.

My contributions to this issue include two pieces, one on the Income Tax Appellate Tribunal's order on why Bofors' then representative in India is liable to pay income tax on the commissions received by him, and the other on redefining torture, a comparison of the Rajya Sabha report and PLBS report on the anti-torture Bill, approved by Lok Sabha.

Rajya Sabha Committee Report on Torture Bill

The Rajya Sabha Select Committee on the Torture Bill has recommended significant amendments to the Prevention of Torture Bill passed by the Lok Sabha. These recommendations include widening the definitions of 'torture' and of 'public servant', increasing the limitation period for filing a complaint to up to 2 years, provision for judicial review of a governmental decision to refuse sanction to prosecute, and a provision to clarify that torture shall not be justifiable even in the context of war, threat of war, or on orders of a superior. The full report is available here.

[For past coverage of the Bill on this blog, please click here.]

Guest Post: The Curious Case of the Anti-torture Bill

I am pleased to publish another guest post from Arghya Sengupta, on the Prevention of Torture Bill 2010 - a topic that has been previously discussed on this blog.
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I.K. Gujral, the former Prime Minister, being the internationalist that he was, thought that signing the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was a good idea. Subsequent Prime Ministers evidently did not share his view, as despite its accession to the Convention in 1997, India remains one of the few countries, and certainly one of the few significant ones, to have not ratified the Convention. Thus when it was mentioned during the course of the Monsoon Session of Parliament that the government was readying an anti-torture legislation as ratification to the Convention requires, most, including myself, assumed that the government had had a change of heart. That is, till the legislation became public. Not only had Messrs Chidambaram and G. K. Pillai not had a change of heart, on the contrary, in the guise of an anti-torture legislation, the Bill sought to be passed legitimised torture to the greatest extent possible politically. The hardline credentials of the Home Ministry thus remained intact and the bill itself was referred to a Rajya Sabha Select Committee for recommendations.

This turn of events raises the following questions: Why was the Anti-Torture Bill sought to be passed at a time when clearly the Home Minister responsible for passing it and implementing its provisions has shown little intention of doing so? What could the Ministry have been thinking when it stated in the Preamble that the Bill was in pursuance of the necessity ‘to ratify the (said) Convention (UN Convention against Torture) and to provide for more effective implementation’ when the Bill itself failed to comply with both the letter and spirit of the Convention? Was it an attempt to hoodwink the Parliament and consequently the population into believing that this was an anti-torture legislation which would weed out the most commonly used instrument of state atrocity?

These are questions, answers to which we may never get. To understand however the curious nature of the legislation and why it is so egregiously violative of international law, a closer scrutiny of its provisions is warranted. The Pre-Legislative Briefing Service Report titled “The Prevention of Torture Bill, 2010: A Briefing Document” which we presented before the Parliamentary Select Committee yesterday, does precisely this. In this Report, we examine clauses 3, 4, 5, and 6 of the Bill on two metrics – their compliance with the Convention and their coherence with existing domestic law and Supreme Court jurisprudence. On both counts we find the Bill has fallen short. We thus suggest appropriate amendments to ensure that the anti-torture legislation is what it purports to be- a legislation prohibiting torture, adopts CAT standards in this regard and irons out inconsistencies with contrary statutory provisions, while at the same time ensuring that the provisions proscribing torture are not liable to rampant misuse. In sum, our effort in this report has been to reshape the legislation in a manner which is theoretically justified, practically efficacious and avoids taking a myopic view of India’s international law commitments, privileging short term symbolic conformity over actual substantive compliance as the present legislation does. Any comments or suggestions on our Report would be greatly appreciated and may be mailed to prelegislativebriefingservice@gmail.com.

Bill Watch: Rajya Sabha is discussing Torture Bill

The Rajya Sabha is likely to take up the Torture Bill for consideration and passing sometime early next week. We have documented the various flaws in this Bill previously on this blog (see also, here and Siddharth Varadarajan's piece in the Hindu yesterday). Although one hopes that the Rajya Sabha sends this seriously flawed Bill to a parliamentary committee, it does not seem to be high priority for most political parties. Why is the Opposition not making any noise on an attempt to effectively grant impunity to torturers?

Update: There appears to have been some movement in the Opposition benches, with 10 MPs serving notice for amendments.

Prevention of Torture Bill

Readers who have been following the debate on the Prevention of Torture Bill with us will be interested in Arun Ferreira's recent article in the EPW, which, reflecting the concerns already highlighted on this blog, suggests that the Bill 'is nothing but a mere eyewash. The proposed legislation is not only a climbdown from the standards set by the UN Convention against Torture, but, in many ways, is in direct opposition to the basic norm of adherence to at least the minimum standards set down with respect to the right to freedom from torture.'

Prevention of Torture Bill 2010: Designed to Fail

This blog has, in an earlier post, discussed the draft Prevention of Torture Bill 2008 [See the Asian Centre for Human Rights Report on this draft Bill]. In the last session of Parliament, the government has finally introduced the Prevention of Torture Bill 2010 in Lok Sabha. Although the Bill has invited some optimistic comments, I have argued in this opinion piece in The Hindu that the Bill is an example of cynical law making at its worst. An analysis of its provisions suggests that it is highly unlikely there will be a successful prosecution under it. Routine conviction of torturers can most certainly be ruled out. As I have argued in the article, the sole motivation of the Bill appears to be to polish India's international image and get over the embarrassment that its non-ratification of the UN Convention Against Torture and Other Cruel, Inhuman And Degrading Treatment and Punishment causes. Indeed, enabling the ratification of the Convention is the primary reason mentioned in the official 'Statement of Objects and Reasons' appended to the Bill: there is not even an acknowledgment of the scale of the problem of torture in India. Parliament will do well to reject the proposal which does worse than pay lip-service to an important human rights concern.

Update: A reader has just alerted me that the Prevention of Torture Bill 2010 was indeed passed by Lok Sabha after a brief, late-evening debate in which not a single member of the main opposition parties (BJP, RJD, BSP, CPI, NC, Shiv Sena) said anything. Noteworthy are Shashi Tharoor's introductory and concluding remarks in his speech:

I have often felt that the issues here go to two fundamental problems in our country. The first is, how we treat our own people; and the second is the image of our country in the world at large.
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Indeed, the next time if somebody wants to make an Oscar-winning movie showing an Indian policeman behaving in that way [i.e. torturing a citizen, as in SlumDog Millionnnaire], we can surely hope that they will also show him being punished and sentenced for his actions. That is indeed what India should stand for and be seen as standing for around the world.

The Bill, sadly, caters only to one of these two objectives. It remains for Rajya Sabha to emphasise the importance of the other.