DELHI - A recently released report titled "Torture in India 2008: A State of
Denial" - the first-ever nationwide assessment on the use of torture in the
world's largest democracy - by the Hong Kong-based Asian Center for Human
Rights (ACHR) contains disconcerting facts about the blatant and widespread use
of the practice by Indian authorities in prisons and police custody.
The ACHR report found that 7,468 persons, or an average of 1,494 persons per
year (four persons daily), have died or been killed in Indian prisons and
police custody during the period 2002 to 2007. An equal number of persons, if
not more, have been killed in the custody of the army, central armed forces and
states' paramilitary
forces in insurgency-ravaged areas, according to the report. Worse, a large
number of these deaths are allegedly triggered by torture.
"Hundreds are killed, dozens are paid compensation but only three to four
persons are convicted each year," stated Suhas Chakma, director of ACHR. He
said that only four Indian police personnel were convicted in 2004, and three
in 2005, for custodial deaths despite a whopping 7,468 in-custody fatalities
occurring between 2002 and 2007.
ACHR stated that unless India addresses human rights violations and brings
suspects to court, the prospects for counter-insurgency success will plummet
and the scope for more violent and extreme Armed Opposition Groups (AOGs) will
expand. Existing conditions are facilitating those who commit appalling acts of
torture with impunity.
India, it seems, is in a worrying state of denial about torture. The Indian
Home minister attributed the custodial deaths to "illness/natural death,
escaping from custody, suicides, attacks by other criminals, riots, due to
accidents and during treatment or hospitalization".
It is an open secret, however, that among India's burgeoning armed opposition
groups, the Naxals or Maoists have an appalling human-rights record of killing,
torturing and mutilating ordinary citizens. Cadres of the Kanglei Yaol Kanna
Lup (KYKL) of Manipur have also been accused of widespread torture including
deliberately mutilating victims with bullet wounds to the legs.
The ACHR recommends that the Indian government enact legislation to criminalize
torture, provide compensation to the victims and repeal all laws promoting
impunity. It also recommends that India amend the Human Rights Protection Act
of 1993, in particular Section 19, in order to bring the armed forces under the
purview of the National Human Rights Commission (NHRC); ratify the United
Nations Convention Against Torture (CAT) and its Optional Protocol and extend
invitation to the UN Special Rapporteur on Torture.
While the ACHR appreciates that India has enacted legal protections to protect
vulnerable groups such as women (Domestic Violence Act, 2005), children
(Juvenile Justice Act, 2000) and Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities Act, 1989), it feels the country needs to further
implement stronger legislation to prevent torture from being inflicted on
citizens.
For example, India has not addressed the issue of torture by its law
enforcement personnel. It has also failed to enact a law to provide
compensation for custodial crimes and implement the recommendations of the Law
Commission of India's 152nd Report on "Custodial Crimes" to make consequential
amendments to the Indian Evidence Act of 1872. The Act provides that "in case
of custodial death, the onus of proving of innocence may be fixed on the
police".
India also has the dubious distinction of the longest record of refusing an
invitation to the United Nations Special Rapporteur on Torture as it has done
since 1993. Pakistan (1997), Nepal (September 2005), China (November 2005) and
Sri Lanka (2007) have all invited the Special Rapporteur.
In addition, India has also failed to ratify the Convention Against Torture,
despite signing the document in 1997. To this end, ACHR recommends that NHRC
recognize torture as a crime distinct from custodial death and provide a
separate heading for torture under its annual report. It also recommends that a
separate Department of Medical Doctors be created to examine all post-mortem
reports submitted to the NHRC in cases of custodial death. A distinct
department for prosecution, verifying facts and establishing evidence against
torture, should also be forged.
Before ACHR highlighted the widespread use of custodial torture in India, many
human-rights organizations, including the South Asia Human Rights Documentation
Center, had also highlighted the issue. "India has the highest number of cases
of police torture and custodial deaths among the world's democracies and the
weakest legislation against torture," said Raj Khaneja, a senior lawyer.
"Unfortunately, in India, torture is seen as routine police behavior to extract
confessions."
According to Khaneja, this practice has its provenance in British colonial rule
when laws governing police functions were framed as an oppressive force to keep
the population terrorized.
Some senior police officers have justified the use of torture as a means of
extracting confessions. A retired police official said, on the condition of
anonymity, "The police in India are under tremendous pressure as people need
quick results. Also, the proliferation of numerous 24/7 news channels has put
us under immense scrutiny. So to hasten proceedings we have to pick up and
interrogate a lot of people and sometimes things do get out of control." More
succinctly, he said, "confessions have to extracted with strictness to keep
alive the fear of the police in people's hearts."
A few years ago, in a written ruling in a case of police misconduct, even the
Indian Supreme Court had criticized the use of torture by the police. "The
dehumanizing torture, assault and death in custody which have assumed alarming
proportions raise serious questions about the credibility of the rule of law
and administration of the criminal justice system," the court said. "The cry
for justice becomes louder and warrants immediate remedial measure."
What is also disquieting is that the severity of the torture problem in India
is far worse than statistics suggest. This is because victims rarely report
cases against the police due to fear of reprisals. "More than half the cases of
custodial torture aren't even reported," said Ashok Bajaj, a human rights
activist. "I've often encountered cases where custodial torture has triggered
hearing/speech loss, permanent disability, loss of limb or psychological trauma
amongst individuals. But the families are still not keen to report matters."
In such cases, even if matters are reported to the National Human Rights
Commission (NHRC), led by a retired Supreme Court justice, experts reiterate
that the outfit is too dependent on the government to enforce power. What
hampers the judiciary's role further is India's lack of specific legislation
against torture, immunities offered to law enforcement personnel under the
Criminal Procedure Code and national security laws.
A group of human-rights activists and lawyers who met in Kerala (south India) a
few years ago to discuss torture in India, emphasized the need to launch a
separate campaign for the ratification of the Convention against Torture.
According to the group, the emergence of a slew of legislation - like the
Prevention of Terrorism Act, Terrorism and Destructive Activities Act
(Prevention) and Essential Services Maintenance Act - indirectly end up
justifying or legalizing torture and enabling the police to resort freely to
such measures.
The group, in a joint declaration, also underscored police misconduct by
highlighting the use of crude language at police stations. "Torture has also
been practiced on women and girls in the form of custodial rape, molestation
and other forms of sexual harassment. The police deliberately delay the
submitting of First Information Reports (FIR) and unnecessarily harass and
torture such persons for no reason," stated the group.
Indian legal experts have long underscored the glaring lack of an impartial
mechanism for receiving complaints against torture. Complaints, according to
the current law, must be made to the police authorities themselves.
Also, the Convention against Torture requires impartial investigations, and in
India many believe the police force is not independent. Even the National and
State Human Rights Commissions, and other national institutions of India, have
neither the power nor the provisions to deal with torture effectively.
The National Commission for Police Reforms had earlier recommended that police
in India should be made independent. The NHRC itself has gone to the Supreme
Court with a plea that the recommendations of the National Police Commission be
implemented. But, a lack of political will on such matters has doomed all such
efforts.
To compound matters further, the law against torture in India is also skewed
against international understanding and social jurisprudence. The prosecution
system in India only militates against the rights of victims of human rights
violations. The prosecutors act in many ways to protect the perpetrators.
As India has not ratified the Convention against Torture, its citizens cannot
seek justice through international law. Nor can India's torture cases cannot
come under international scrutiny because access to the UN Committee against
Torture, and other mechanisms, are effectively denied to Indians. Since India
has also not signed the Optional Protocol to the International Covenant on
Civil and Political Rights, its citizens also can't exercise the right to make
individual complaints to the UN Human Rights Committee.
Neeta Lal is a widely published writer/commentator who contributes to
many reputed national and international print and Internet publications.
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