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Pain over
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Killer
malaria
Towards
N-renaissance
Speaker
of my dreams
The Rajya Sabha has sent the Prevention of Torture
Bill, 2010, to a Select Committee for further examination following
protests from the MPs, the media and human rights bodies. It suffers
from a narrow definition of ‘torture’ and many anomalies which
need to be rectified. An in-depth look Sankar Sen THE Prevention of Torture Bill, 2010, passed by the Lok Sabha on May 6, 2010, has been sent to the Select Committee by the Rajya Sabha for further scrutiny. The Statement of Objects and Reasons of the Bill indicates that India wants to ratify the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) which was adopted by the United Nations General Assembly on October 9, 1975. Though India signed the Convention in 1997, it had not so far ratified it. Ratification of the Convention requires an enabling legislation to reflect the definition and punishment for torture. The Bill
has no connection with terrorism
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Criteria for maintenance
The
Supreme Court ruling that a woman in a live-in relationship is not entitled to maintenance unless she fulfills certain parameters needs a close look. A Bench consisting of Justice Markandey Katju and Justice T.S. Thakur has observed that a woman cannot claim maintenance from a man by merely spending a night or a few weekends with him. It ruled that even if not married, she could claim maintenance only if she fulfills four essential requirements. These are: the couple must hold themselves out to society as being akin to spouses; both must be of legal age to marry; both must be qualified to enter into a legal marriage, including being unmarried; and both must have voluntarily cohabited for a longer time in a “shared household”. Interestingly, these parameters are not the apex court’s creation but principles followed under common law marriages. The apex court had passed the judgment while setting aside the concurrent orders passed by a family court and the Madras High Court awarding Rs 500 maintenance to a woman who claimed to have married the appellant. The Bench’s task was to interpret the phrase “relationship in the nature of marriage” as mentioned in the Protection of Women from Domestic Violence Act, 2005, which expanded the scope of maintenance, till then the exclusive right of a man’s legally wedded wife, children and dependent parents. According to the Bench, the expression, “any relationship in the nature of marriage”, which has not been defined in the 2005 Act, represented a new social phenomenon of live-in relationships recognised by Parliament. Though the trend of live-in relationships is gradually catching on in India, it is common in the US, especially North America and Europe. In India (as also in the US), we have the system of alimony providing for maintenance to a woman by her husband. In the US, there is “palimony” which means grant of maintenance to a woman who has lived for a “substantial period of time” with a man without marrying him and is then deserted by him. Though palimony has no statutory sanction in the US, the courts there grant it on a case-by-case basis. Indeed, while some US courts have insisted on a written or oral agreement between a man and a woman for grant of palimony, others have held that the couple must have cohabited together for longer periods for grant of this benefit. Obviously, the Supreme Court of India has examined these provisions minutely while passing Thursday’s order.
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Killer malaria
For
some time now, India has been living in the smug belief that there is no cause for alarm on malaria control. Now, that belief has been punctured by a study published in the Lancet that puts the deaths due to malaria at a whopping two lakhs annually . More cause for concern is that it includes 55,000 children below five years and 30,000 from five to 14 years. If the new figures according to which one Indian dies every three minutes from malaria are correct, India needs to re-look at its malaria control programmes. Over the years, India has patted itself for its efforts to control malaria, which was once a killer disease, responsible for 10 per cent deaths of working age adults. In 1953 eight lakh deaths were attributed to malaria. With the launch of national eradication programme, both the incidence of the disease and the number of deaths came down dramatically. But the Lancet figures challenge not only the government claim of 1,000 deaths but also are much higher than WHO estimates that put malaria deaths in India at 15,000. While WHO may have refuted the new figures, the government has done well to accept the report and draw lessons from it. Calculating the true burden of the disease is essential if malaria has to be tackled and eliminated. The vaccine against malaria might still be away, the disease is by no means incurable and turns fatal only if untreated. That in the day of scientific advancements, people should be dying of an easily treatable disease is totally unacceptable. Perhaps, the solutions lie in the finding that majority of the people who died were from rural areas and did not have adequate health care facility. Indeed, even in this day and age many in India die undiagnosed. There is an urgent need for health services and disease control programmes to reach out to rural and remote areas. Besides, mosquito control must involve local communities.
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O wonderful, wonderful, and most wonderful wonderful! and yet again wonderful, and after that, out of all whooping! — William Shakespeare
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Towards N-renaissance Some
decades ago, massive energy released by splitting the uranium atom frightened the world. It appeared to endanger modern civilization — the power of the atom was being diverted to make atomic bombs. Hiroshima and Nagasaki served as a dire warning to mankind. But past this span, the power of the atom is lighting up homes and driving the wheels of industry. There is today an air of global nuclear renaissance, and India is among the leading beneficiaries of nuclear power. A whiff of nuclear renaissance is being felt in India too. Projects set up by using indigenous nuclear technology — pressurised heavy water reactors — are moving fast forward. By November-end, Kaiga 4 will be commissioned and linked to the grid. This will be the 20th reactor operating in India, under the charge of the Nuclear Power Corporation (NPCIL), bringing nuclear power capacity to approximately 4800 MWe. The NPCIL has, meanwhile, launched the next stage of building nuclear power capacity by the indigenous PHW reactor design. Upgrading PHWR design to 700 MWe, construction of four indigenous technology reactors is in full swing - two at Kakrapar in Gujarat (Kakrapar 3 and 4) and two at Rawatbhatta - Rajasthan 7 and 8. Together, these reactors will give an additional nuclear power capacity of 2800 MWe by the year 2015, possibly ahead of schedule. Six more 700 MWe PHWRs are in process of being launched - four at Kumharia in Haryana and two at a site in Madhya Pradesh, both having got environment clearance. They are expected to reinforce the electricity grid by 2016. Alongside is taking shape the fast breeder programme under the aegis of BHAVINI. The 500 MW prototype FBR construction is proceeding satisfactorily, and is expected to be commissioned by December next year. The Kalpakkam prototype FBR is of key import in the second phase of the Indian nuclear programme. It is expected to be the forerunner of a chain of FBRs in the next two decades. The Planning Commission has set nuclear power capacity target at a formidable 63,000 MWe by 2032. This will pitch nuclear power to a sizeable portion of India’s total electricity generation, and will ensure power self-sufficiency. How is this to be achieved? There are two layers of nuclear power plant construction planned. One stream of nuclear power will be provided by indigenous technology — PHWRs and fast breeders following the prototype 500 MW FBR, now under construction at Kalpakkam. The second layer of nuclear power will come from advanced light water reactors, imported from leading nuclear suppliers. Light water reactor imports during the two decades ahead is planned to be of the order of 40,000 MWe. Beyond 2032, nuclear power construction will be led by thorium-fuelled third generation FBRs. Nuclear power is expected to meet the bulk of the power shortfall in the decades after the thirties. At the present stage, it is the imported advanced light water reactors that hold the key. The three leading nuclear suppliers — Russia, France and the United States — are in the forefront. Two Russian advanced VVER design reactors, each of 1000 MWe capacity, are already in an advanced stage of construction at Kudankulam in Tamil Nadu. The first Kudankulam reactor is expected to go critical in January next year and the second is expected to be linked to the southern power grid by May 2011. An agreement with the Russians for two more 1000 MWe capacity VVERs is expected to be finalised by December this year, coinciding with the visit of the Russian President. There is scope for Kudankulam 5 and 6 VVERs as and when construction of the next two VVERs proceeds. There is, however, an important difference in the terms and pattern of construction of Kudankulam 1 and 2 and the Russian-aided VVER reactors that follow, such as the two VVER reactors regarding whom an agreement is about to be clinched. While Kudankulam 1 and 2 are almost turnkey projects, the Indian nuclear establishment has insisted that in Kudankulam 3 and 4 about 60 per cent of the construction will use indigenous equipment that Indian nuclear industries provide. This is essential not only for the growth of the indigenous nuclear industry but also for keeping prices low. This principle will also apply to the light water reactors that France and the US provide. The Indian industry will have a major role to play. This means that advanced foreign technology will be tied to low-cost Indian manufacture - the bulk of it. This approach is dictated not just by nationalism but rather by economics. Quality of technology plus the price — these are the two decisive factors in finalising the contracts for French and American light water reactor imports. “We have told them that if you want to sell (the reactors) at European prices, thank you very much,” says Mr S.K.Jain, the NPCIL chief. The NPCIL, he says, is a commercial body and its product has to match market prices. That means that the per unit cost of electricity generated by these imported reactors must meet the market requirements just as the indigenous reactors are doing. Negotiations are on with the French nuclear company AREVA for the supply of its advanced light water reactor - European Pressurized Water Reactor (EPR) - each of 1650 MWe capacity. The French reactors are to be installed at Jaitapur in Maharashtra, where a nuclear park, approved on environment considerations, has been set up by the NPCIL. The Jaitapur site is capable of maintaining 10,000 MWe capacity reactors. Talks are in progress with AREVA initially for installing two EPRs of 3200 MWe capacity. These can be followed by two more EPR projects - depending on the experience of the first EPR project. Eventually, AREVA is offering approximately 10,000 MWe capacity EPR reactors. An initial agreement is likely by December. The negotiations are complex — not only because of the price factor but even more on account of the technology offered. The EPR technology has yet to be proven, although it joins two advanced and tested reactor technologies — French reactor experience of three decades as well as German reactor technology. EPRs are already under construction in France, Finland and China, and Britain is to begin their construction. As for the Americans, GE-Hitachi and Westinghouse are in the forefront, both offering advanced tested technologies, although the price factor will be tough to negotiate. Here, too, the same formula will apply to keep the cost low — foreign reactor technology tied to low-cost Indian manufactures. Together, the two companies may provide reactors of 10,000 MWe capacity and upwards. The GE-Hitachi reactors may be constructed at a site in Andhra Pradesh - cleared for environment — while the Westinghouse reactors may be installed in Gujarat. Japanese companies are major stakeholders in the two US-incorporated companies — Toshiba, in fact, owns as much as a 65 per cent stake in Westinghouse while Hitachi has a 40 per cent stake in GE-Hitachi
tie-up.
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Speaker of my dreams MY friend Vasant Karmakar (not his real name, of course) has always been a worldly wise, upwardly mobile, ever-smiling politician. Not any longer. Nowadays, he has a permanent scowl on his face, as if he has lost the security deposit in an election. That was intriguing for me, because actually he had not only become an MLA for the third time but had also been elected the Assembly Speaker. When I asked him the reason for his sorrow, he almost started crying: “You just cannot understand how difficult it is to conduct the proceedings of the House. At times I feel as if I am a helpless referee in a no-holds-barred wrestling arena”. “Think out of the box, Vasant,” I said, “you can surely come on top of the situation. You have been through worse. Remember the time when you had won a corruption case against you by bribing the inquiry officer?” “That was a different scenario altogether. How do I curb the unabashed use of unparliamentary language by many of them? It’s a shame, indeed.” “Simple. You out-abuse them. Listen, I can give you a crash course in choice Punjabi gaalis right away, which will come in very handy in your state.” “Come on. How can a Speaker use foul language in public?” “If some Speakers can act as paid agents of the ruling party, what is wrong in using colourful words? It is all for the sake of proper conduct of the proceedings, after all.” “But they can also out-shout me.” “My dear Speaker, learn to be a Loudspeaker. In fact, you should be the only one to have the right to use a mike. That will also solve the problem of some unruly members throwing mikes and other stuff at each other”. “They rush to the well of the House every now and then.” “Dig a real well there and see what happens. Either the members will mend their ways or the public will be grateful to you for this innovative method of getting rid of some of those johnies. You can do it, honest. You are the lord and master of the House and your predecessors have gotten away with even more outlandish acts, like expelling members for no rhyme or reason.” “Quite a few of them stage a walkout at the drop of a hat.” “You are so close to the government. Use your connections to bring in an ordinance that anybody who walks out of the House will also have to walk out of the official house allotted to him. Mark my words. Not one of them will stir out then.” “Can you imagine, some of them take money from vested interests for asking questions in the House!” “How very innovative of them! Why don’t you start charging them money for asking questions? That will be the ideal way to take care of the budgetary deficit — of the government and your household.” “And what to do with those who pick up chairs, tables, paperweights, mikes and wastepaper baskets and throw them at their rivals and me?” “Dismantle the benches. Install cages instead. Till that futuristic seating arrangement is in place, make sure that the TV cameras are switched off when they are up to their usual antics. Some of them turn violent only to impress their Bahubali mentors back home.” “You do not know how many criminals themselves get elected these days.” “So what? Move with the times. Start employing surrendered dacoits and terrorists as
marshals.”
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The Rajya Sabha has sent the Prevention of Torture Bill, 2010, to a Select Committee for further examination following protests from the MPs, the media and human rights bodies. It suffers from a narrow definition of ‘torture’ and many anomalies which need to be rectified. An in-depth look Sankar Sen Torture is a crime under international law. International standards such as the Geneva Convention, the UN Convention against Torture and the International Covenant on Civil and Political Rights ban torture or any kind of cruel, inhuman, degrading treatment even in times of war. The ban is absolute. The UN Convention against torture provides that each state shall take effective legal, administrative, judicial and other measures to prevent acts of torture and no exceptional circumstances, whether a state of war, internal political instability or any public emergency may be invoked as justification of torture. Though India signed the Convention Against Torture, it has not so far ratified it, despite repeated reminders of the National Human Rights Commission (NHRC) and other human rights groups. India thus has been in the distinguished company of countries like Sudan, North Korea, Zimbabwe and Myanmar that have not so far ratified the Convention. Many enlightened persons and human rights groups have viewed the Prevention of Torture Bill in its present form as a disappointment. They feel that the present provisions of the Bill are inadequate and insufficient to address the problem of torture and adequately punish its perpetrators. The Bill, according to them, dilutes some of the important provisions of UNCAT and betrays lack of earnestness in tackling the problem. The definition of torture under Section 3 of the Bill is narrow and restrictive. There is no reference to other cruel, inhuman, or degrading treatment or punishment any where in the Bill. The definition in the Bill also excludes purely mental torture which is included in the UNCAT definition. Section 2(a) of the Bill provides that words and expression used in the Act shall have the same meaning as in the Indian Penal Code. Section 3 defines “torture” as an intentional act which causes grievous hurt danger to life, limb and health. According to Section 320 IPC, “grievous hurt” is limited to permanent disability and disfigurement, fracture or dislocation of bones and severe physical pain. This test is much stricter and narrower than that of the UNCAT. Some practices, for example, water boarding, beating, making a threat to torture may not in all cases endanger life, limb, or health. Clause 4 of the Bill does not lay down any minimum sentence for a person found guilty of torture. This may result in imposition of light sentences vitiating the spirit of legislation. To firmly discourage torture, an absolute minimum punishment is crucial. This will indicate strong governmental disapproval and send the signal that certain types of criminal behaviour will not be tolerated. Section 5 of the Bill provides that no court shall take cognisance of an offence punishable under the Act unless the complaint is made within six months from the date on which the offence is alleged to have been committed. The limitation of six months has been criticised because it is less than for other crimes under India’s Criminal Procedure Code. Critics say, the time-limit provides an unjustifiable layer of protection for the perpetrators. Sometimes the victims of torture are physically and psychologically traumatised and are unable to lodge complaints. The obligation of state parties to the UNCAT to apply criminal law to all acts of torture is unlimited in time and so no limitation period should apply to the serious crime of torture. However, the fact remains that investigation of cases of torture becomes difficult unless complaints are lodged quickly, and an unlimited period of time will encourage flow of motivated complaints. The limitation period can be extended to one year as is the practice in respect of complaints before the NHRC. But some limitation period is necessary. Section 6 of the Bill prohibits prosecution of a public servant without explicit sanction from the government or authority that employees him. Section 197 of the Criminal Procedure Code provides public servants with protection against prosecution in the form of executive sanction. The Supreme Court of India has laid down that the sanction of discretion is a limited power of the government and can be invoked only when an act has been done in the course of legitimate performance of duties of a public servant. The NGOs’ plea to delete the provision for sanction for public servants who have allegedly committed acts of torture is somewhat impractical in the prevailing circumstances in the country. Interested groups and criminal elements will expose police officers and public servants to many frivolous and vexatious prosecutions and demoralise them. Allegations of torture can be easily and mischievously made against public servants and they can be dragged in courts of law. The Bill also does not incorporate offences like custodial violence and torture by public servants. The NHRC, in its reports, has highlighted the alarming dimensions of violence in police custody. The incidence of custodial deaths has not diminished. Annually, about 180 deaths take place in police custody despite the NHRC’s frequent admonitions and stern rulings of the apex court (D.K. Basu v. State of West Bengal). Condign punishment of the guilty officers and men will have a salutary and cathartic impact. Article 14 of the UNCAT provides that “each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible”. The Bill in question fails to include any such provision. It provides for an enforceable right to reparations for the victims. At present the NHRC as well as the courts provide interim relief in the form of compensation to victims of torture. But for elimination of torture mere legal ban will be insufficient. Torture flourishes because authorities in many countries have not taken a tough and unambiguous stand against it. Besides extraction of information, torture is also motivated, as Canadian author Michael Ignatief, says by baser instincts of inflicting pain, and exacting revenge and even for fun. This seems to be happening in many prisons and torture camps. The writer is Senior Fellow, Institute of Social Sciences, New Delhi. He is a former Director-General, National Human Rights Commission, and Director, Sardar Vallabhbhai Patel National Police Academy, Hyderabad
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The Bill has no connection with terrorism FOOD deprivation or forcible feeding with spoiled food, animal or human excreta or other food not normally eaten by the victim...burning by electrically heated rods, hot oil, acid, by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wounds...submersion of the victim's head in water or water polluted with excrement, urine, vomit and/or blood...” Be assured, gentle reader: the quote is not aimed at ruining your breakfast. It is a small excerpt from Schedule I of the Prevention of Torture Bill, 2010, sent to a Select Committee of the Rajya Sabha on August 31. The Schedule lists actions by official investigative agencies that “torture” includes for purposes of this Act. The quote only serves to throw light on the mindset of a section of the legislation’s strong critics. To those who see such an enactment as wanton encouragement of “terrorism”, the Schedule would only seem to enumerate effective and essential anti-terrorist techniques. To these critics, the legislation only marks yet another attempt to reduce India to a ludicrously soft state. There is nothing in the text of the Bill to suggest its connection to the subject of terrorism. Its provisions deal with widely prevalent and known practices of “investigation” in police stations across the country, with the very poor as mostly the victims. None of the monstrous “investigative” methods has been employed only against alleged enemies of the nation. No such purpose can be claimed for putatively investigative perversions including, to cite the Schedule again, “rape and sexual abuse, including the insertion of foreign bodies into the sex organs or rectum or electrical torture of the genitals” and “mutilation, such as amputation of the essential parts of the body such as the genitalia, ears, tongue, etc.” A connection of sorts to “terrorism”, however, can be seen in the Bill's recognition of “other forms of aggravated and deliberate cruel, inhuman or degrading physical treatment or punishment such as forcing him or her (the person under investigation) to strip or to engage in acts reprehensible to his or her religion or belief system.” The allusion, obviously, is not to investigation of anyone associated with what Union Home Minister P. Chidambaram has characterised so controversially as “saffron terror”. The Bill also contains a cruel joke in its provision giving a torture victim just six months to file his complaint. This flies in the face of a mountain of evidence about the illegal detention of such victims for alleged investigation for indefinite periods running into many years. Way back in the nineties, we heard very few apologias for torture in the name of fighting terrorism. What assailed our ears after the Bill was introduced in Parliament was an echo of what the world heard from the George W. Bush Administration of the US and its allies for eight long years. Soon after 9/11 and the launch of the Global War on Terror, the Administration’s Departments of Justice and Defence came out with a number of reports, arguing that “aggressive detainee interrogation” practices were justified in the new context. Suspension of the Geneva Conventions of 1949, prohibiting torture of prisoners of war, was specifically advocated. The grisly investigation procedures at the Guantanamo Bay, as reported in those days, bear a striking resemblance to those listed in Schedule I of India’s Bill. Captives there, for one example, were “chained hand and foot in a foetal position to the floor for 18 hours or more, urinating and defecating on themselves”, according to a report by the Federal Bureau of Investigation (FBI). We are also told that “female interrogators would sometimes wet their hands and touch detainees’ faces to disrupt their prayers” — an example of what the Schedule calls “acts reprehensible to ...the religious faith” of the victim. Torture became an explosive issue again in 2004, when reports and pictures of physical, psychological, and sexual abuse of prisoners held in the Abu Ghraib prison in Iraq caused worldwide revulsion. The reactions from the “anti-terrorist” quarters in the US were revealing — and resembled the response from their Indian counterparts to the anti-torture Bill. US radio host Rush Limbaugh sneered: “...we’re going to hamper our military effort, and then we are going to really hammer them because they had a good time. You know, these people are being fired at every day. I’m talking about people having a good time,...you ever heard of emotional release?” A talk show host, Michael Savage, said: “Instead of putting joysticks, I would have liked to have seen dynamite put in their orifices...We need more of the humiliation tactics, not less.” The “anti-terrorist” critics of the Bill, keeping the Bush legacy alive in India, are not squeamish about opposing a law to prevent and punish torture of even common people. The writer is a senior journalist
based in Chennai
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THE Prevention of Torture Bill, 2010, passed by the Lok Sabha on May 6, 2010, has been sent to the Select Committee by the Rajya Sabha for further scrutiny. The Statement of Objects and Reasons of the Bill indicates that India wants to ratify the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) which was adopted by the United Nations General Assembly on October 9, 1975. Though India signed the Convention in 1997, it had not so far ratified it. Ratification of the Convention requires an enabling legislation to reflect the definition and punishment for torture.