India has strong claims to being the world’s largest democracy. It has genuinely free elections and these have twice turned the once-dominant Congress party out of office. Its press is exceptionally outspoken and its judiciary, especially in the higher courts, is aggressively independent. Moreover, a variety of private and government agencies promote social welfare not only through traditional relief activities but by bringing lawsuits on behalf of the poor.
Nevertheless, if one believes that a democracy should include a system of checks and balances, formal or informal, that would prevent the government from acting lawlessly, India fails. This failure has become apparent in the government’s response to the separatist agitation in the Punjab and Kashmir. By official count, 3,212 civilians—apart from armed militants and the troops fighting them—were killed in 1990 during the government’s campaign to crush these movements. Many believe the totals are much higher and that at least in Kashmir most of the victims died at the hands of the armed forces and the police. In Punjab, the militant Sikhs and government forces opposing them were probably equally responsible for the killing that took place. But the government’s behavior in Kashmir and Punjab is not so much a departure from a general rule of law as a highly dramatic demonstration of how the government fails to exercise restraint in enforcing the law. In a recent investigation of the Indian criminal justice system on behalf of Asia Watch we found that abuses by officials are flagrant and commonplace.
In the major cities anyone unlucky enough to be arrested and jailed faces a far greater likelihood of torture and physical abuse than in many other countries that lack India’s democratic institutions. We expected to find that detainees and prisoners would be badly treated to some degree, if only because life is harsh for many law-abiding Indians. What surprised us, however, was the extent of the brutality and corruption to which most prisoners were subjected.
In India an official commitment to egalitarianism is taken for granted, and the intense and often violent debate over civil rights mainly concerns the extent to which special benefits should be given to untouchables and other “backward castes.” But the criminal justice system itself is explicitly biased in favor of the more prosperous classes. Prisons, for example, give special privileges to virtually all upper-and middle-class inmates, even if they have committed extremely violent crimes. In some respects, moreover, prisoners who are guilty of violent political offenses are treated as an elite group; they have a more varied and ample diet than other prisoners and they can read books and articles that are denied to the others.
What accounts for such extensive police lawlessness in a working democracy? According to Indian law, every person who is arrested and held in custody must be brought before a magistrate within twenty-four hours of arrest. If the magistrate does not issue an order authorizing a prisoner to be held for up to fourteen days, he or she must be…
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