Random musings and observations about the state of human rights and human rights laws, democracy, justice, secularism, peace and, off course, the life and all its paraphernalia with particular reference to Barak valley.
The Hong Kong based rights group Asian Human Rights Commission (AHRC) has expressed concern over a case of illegal arrest, detention and police brutality against Mr Golam Kibria from Murshidabad district, West Bengal, India. Calling it a case of senseless brutality the AHRC said in a release that this is yet another incident in a seemingly infinite number of cases wherein law enforcement agencies due to ingrained malpractices and callous attitudes have committed criminal acts against helpless individuals under their jurisdiction.
The AHRC wrote to the UN Working Group on Arbitrary Arrest and Detention and the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment calling for their intervention in this case.
Citing an inquiry undertaken by MASUM, a West Bengal based human rights organisation, the AHRC said that the victim of illegal arrest, detention and torture was 30-year-old Mr Golam Kibria from the Murshidabad district, who endured physical assault and injury from police officers from Jalangi Police Station led by Mr Manas Maity, the Officer-in-Charge of Jalangi Police Station and the Sub-Divisional Police Officer, Domkal, Murshidabad.
The police encircled the house of Mr Samsul Huda (Golam Kibria's father and a retired school teacher) at 1.30am on 4 May 2012 and began to strike the front door repeatedly, demanding entry. The police then forcibly entered the house and violently laid hands on Mr Golam Kibria, whose hands were tied with a rope and held above his head while the police brutally beat him. The victim was then taken to Jalangi Police Station.
Reports were soon heard that the police had completely removed his clothes and assaulted him again in his naked condition while in their custody. The severely injured victim was released from Jalangi Police Station on 5 May 2012 without any explanation as to his arrest the previous day or for the barbarism that was visited upon him during his unlawful detention.
Medical reports demonstrate the gravity of the assault upon Mr Golam Kibria, who is still being treated. The victim is himself still in shock and greatly traumatised by this unwarranted violence against his person. The victim's family members and some other locals witnessed the incident, but they are unable to seek justice because the police they have to report the case to would be the very same group of men who had themselves tortured the victim. Although these heinous criminal acts against Mr Golam Kibria are in themselves despicable, the criminality of the entire law enforcement agency is equally undeniable and even more troubling. The law has failed to provide back-up avenues through which the individual who was not in the first instance protected, could seek justice and compensation, and through which the perpetrators could be punished.
Mincing no words the rights body said that something is terribly wrong with the justice system in India. When individuals and entire communities live in fear of their own safety because of the arbitrariness and senselessness of violence; when agencies that were designed specifically to protect and uphold rule of law are themselves perpetrators of these acts; when police personnel, logically the moral exemplars for the societies they administer, are able to behave with complete impunity and are not subjected to intense scrutiny from the centre - it is a broken, dysfunctional system, a failure of humanism, a mockery of ideals.
Without intervention by the central government, the people of Murshidabad and all over India face, for the foreseeable future, continued abuse of their freedoms and physical person and no likelihood for justice to be served to those acting with complete impunity.
Along with the UN entities the AHRC also wrote to the Indian authorities demanding impartial and credible investigation into the case and compensation to the victim.
More importantly, the body called on to the Central authorities to take steps to circumscribe such acts of violence and impunity by instituting safeguards (such as external observers or auditors appointed by the centre) at the provincial level to monitor and enforce adherence to the legal procedures stipulated by the state government. The Central authorities should also take steps toward revising their stance toward Article 9 of the International Covenant Civil and Political Rights and toward acceding to the Convention Against Torture and Other Cruel Inhuman and Degrading Treatment and Punishment in order to become even more credible in the commitment to international norms and shared ideals since the Indian state, particularly the central government, should undertake to protect the life, liberty, dignity and personal security of every single person residing in the Indian state under all circumstances through all means possible, demanded the AHRC.
The police in Assam have filed a charge-sheet in the court against a doctor for raping his patient. The charge-sheet under section 376 of the Indian Penal Code, 1860 has been filed by the officer-in-charge of the Dholai police station (PS) on 13 March 2012 at the Court of the Chief Judicial Magistrate in the district of Cachar after investigation of a case filed by a minor girl on 27 November, 2011.
This is disclosed recently by the district superintendent of police (SP) in Cachar in a report (vide No. G/SR/1281 dated 16/03/12) submitted to the Deputy Registrar of the Assam Human Rights Commission (AHRC) in response to a notice of the AHRC.
The report states that the survivor lodged a First Information Report (FIR) at Dholai PS inter alia alleging that on 27 November, 2011 at about 4 PM the complainant being accompanied by her sister in law (name withheld to protect identity) had been to the chamber of Dr Dilip Paul at Sadagram (Dholai Bazar) where he refused to check her up.
Instead, he asked her to be in his residential chamber for her check up and treatment. On her arrival at his residential chamber the accused doctor asked her to go inside while her sister in law was asked to wait outside. As soon as she entered the house, the accused doctor closed the door and window from the outside and forcibly raped her.
The AHRC issued a notice to the SP for a detailed report about the case after it registered a case of human rights violations (vide AHRC Case No. 302/2/11-12.) on the complaint filed by the Barak Human Rights Protection Committee (BHRPC).
The report of the SP, however, mentions that the medical test conducted after the investigation of the case started do not corroborate the allegations of the victim as well as those of the BHRPC against the doctor. It says that (1) evidence of recent sexual intercourse not detected, (II) evidence of violent mark not detected in her private parts and (III) her age is above 18 years and below 20 years.
The BHRC claimed that the victim/survivor is a minor girl studying in class IX.
However, on the examination of the witnesses of the complainant, witnesses of the accused and the place of occurrence the investigating police officer found that charge under section 376 of the IPC which provides punishment for rape is established, states the SP.
When the AHRC asked the BHRPC for its comments on the report of the SP the latter submitted a detailed response pointing out why the medical report can not be relied upon. According to the BHRPC the medical report can not be relied upon because (i) there was inordinate delay in conducting the test; (ii) the report goes against the circumstantial evidences; (iii) the report goes against the accounts of the witnesses as recorded by the police; and (iv) the element of sympathy of the doctors who conducted the test towards the doctor who is the alleged violator creeping in and vitiating the objectivity of the findings can not be ruled out as both of them are colleagues and belong to the same profession.
The BHRPC also said that the filing of charge-sheet by the police will facilitate the criminal court to conduct trial on the criminal aspect of case in order only to fix criminal liability and proportionate penal measure called for under the law. It is not the domain of the trial court to consider human rights liability of the violator and remedies to the victim/survivor. Therefore, it comes under the jurisdiction of the Commission to fix human rights liability and more importantly to provide redress to the victim/survivor in terms of adequate compensation.
The BHRPC in its submission urged the AHRC to recommend to the authorities to provide an adequate amount of compensation to the victim/survivor; and while fixing the quantum of the compensation the AHRC should take into consideration the aggravating factors involved in the case such as (a) that the alleged violator is a government servant paid from the state exchequer for acting as savoir for those who are in physical distress; (b) that the victim/survivor went to the alleged violator in full trust as his position demands; (c) that the alleged violator took benefit of position of custodian of the victim/survivors at the moment of commission of the violating acts; (d) that the case has a clear custodial angle; (e) that the age and social and other circumstances of the victim/survivor are such that the minor girl has had an entire life full of colours but which has been destroyed beyond repair for no faults of hers and her life has become an undesirable and unbearable burden on her fragile shoulders.
Concerns over civil and
political rights in Assam[1]
I am asked to make a brief presentation on issues relating to civil and
political rights in terms of the requirement of ratification of the United
Nations Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment and Punishment (CAT) and its Optional Protocol,
ratification of the International Convention for the Protection of All Persons
from Enforced Disappearance and other challenges relating to civil and
political rights. I will try to present my views on the issues very briefly as
an activist working in Assam
in the field of human rights.
Ratification of the Convention Against Torture and
Its Optional Protocol
Though torture is absolutely
prohibited now, throughout history, it has often been used as a method of
political re-education, interrogation, coercion and punishment. Deliberately
painful methods of execution for severe crimes were taken for granted as part
of justice until the development of Humanism in 17th century philosophy, and
"cruel and unusual punishment" came to be denounced in the English
Bill of Rights of 1689. The Age of Enlightenment in the western world further
developed the idea of universal human rights. The adoption of the Universal
Declaration of Human Rights in 1948 marks the recognition at least nominally of
a general ban of torture by all United Nations member states[2]. Now in the 21st
century the prohibition of torture has been recognized as a peremptory norm of
international law and a number of international, regional and domestic courts
have held the prohibition of cruel, inhuman or degrading treatment or
punishment to be customary international law. [3] Some other legally binding
international treatises, to which India is a state party, prohibits
torture which include Geneva Conventions[4], International Covenant on
Civil and Political Rights.[5]
Though the constitution of India does not
expressly prohibit torture, the constitutional jurisprudence prohibits torture
absolutely. According to the Supreme Court, any form of torture or cruel,
inhuman or degrading treatment fall within the ambit of Article 21[6] of the Constitution – whether
be it during interrogation, investigation or otherwise. A person does not shed
his fundamental right to life when he is arrested. Article 21 cannot be denied
to arrested persons or prisoners in custody (D K Basu v State of West Bengal[7]).
Despite such constitutional and
judicial denunciation of torture, it is routinely practiced by law enforcement
officials and security forces in India. However, there is no
accurate data on the use of torture in the country since the Government does
not have an unambiguous and strong policy against torture. The National Human
Rights Commission (NHRC) gathers figures on custodial deaths. Based on these figures,
the Asian Centre for Human Rights (ACHR) estimated that between 2002 and 2008,
over four people per day died while in police custody, with
"hundreds" of those deaths being due to police use of torture.[8]
Over the days, with the war on
terror, practice of torture is becoming more wide spread and there is no legal
instrument and mechanism to combat it in India. The CAT and its Optional Protocol
provide such mechanism at the international level. The convention was adopted
on 10 December, 1984 and came into force on 26 June, 1987. It has 78
signatories and 149 States Parties.[9] India signed the CAT on 14 October
1997, but is yet to ratify it. Advocacy and lobbying from all quarters
including NHRC has succeeded and India decided to ratify CAT. The
Prevention of Torture Bill, 2010 was introduced in the Lok Sabha on April 26,
2010 and was passed by that house on May 6, 2010 without referring it to the
Standing Committee. It was a misnomer to call it the Prevention Torture Bill.
It appeared to have been designed to promote torture. The definition of torture
(a) was inconsistent with the definition of torture in the Convention against
Torture, (b) it required the intention of the accused to be proved, (c) did not
include mental pain or suffering, and (d) did not include some acts which may
constitute torture. The Bill diluted existing laws by imposing a time limit of
six months and requiring prior government sanction for trying those accused of
torture. Existing laws do not have such requirements. There was no independent
authority to investigate complaints of torture, and no provision for granting
compensation to torture victims has been made.[10] When it was introduced in the Rajya Sabha
fortunately the house referred it to the Select Committee and which came up with
fairly sensible suggestions and submitted its report on 6 December, 2010.[11] It changed the definition of
torture to make it consistent with the definition given in the CAT. The
Committee suggested that the limitation period should be two years and not six
months as it was in the bill. It suggested dilution of requirement of prior
approval for prosecution. The Committee also talked of witness protection which
is very sensible. Overall, it can be said that the suggestions of the
Committee, if incorporated in the bill in toto, will make the law a pragmatic
and preventive tool, though there are much to be desired. For example, 1.
requirement of prior sanction for prosecution is a question mark on the wisdom
of the judiciary. Courts can deal appropriately with malicious, vexatious or
frivolous complaints; 2. persons other than victim and his/her relatives should
also be authorized by law to file complaint on his/her behalf without
authorization by him/her as provided in the Protection of Human Rights Act,
1993;[12] 3. an independent mechanism both at national and
state level should be established to torture cases and situations in detention
places.
Optional Protocol
Optional Protocol to the Convention
Against Torture and other Cruel, Inhuman or Degrading Treatment (Optional
Protocol) aims to create a global system of inspection of places of detention
as a way of preventing torture and ill-treatment. A Sub-Committee of the
Committee Against Torture, composed of 10 independent and impartial members
working in their individual capacity, will be empowered to carry out missions
to any State that ratifies the Optional Protocol. On the basis of its visits,
the Sub-Committee will write a confidential report for the State Party,
including practical recommendations. It will initiate a dialogue with the State
Party on measures to improve the conditions of persons in custody with the aim
of preventing torture.
The second important element of the
Protocol is the requirement to put in place national preventive mechanisms.
Article 3 of the Protocol requires ratifying States to “set up, designate or
maintain at the domestic level one or several visiting bodies for the
prevention of torture and other cruel, inhuman or degrading treatment or
punishment.”
The emphasis of the Protocol is on
prevention and being transparent to the world. Refusal to ratify it means
refusal to be transparent which belies India’s claims to democracy and the
primacy of the rule of law.
India should ratify both the CAT
and its Optional Protocol and also extend invitation to the Special Rapporteur
on torture and other cruel inhuman or degrading treatment or
punishment and provide facilities to interact freely with survivors of torture
and human rights defenders from North East.
Ratification of the
Convention on Enforced Disappearance
Enforced Disappearance is abduction
or kidnapping, carried out by State agents, or organized groups and individuals
who act with State support or tolerance, in which the victim
"disappears". Authorities neither accept responsibility for the dead,
nor account for the whereabouts of the victim. Legal recourse including
petitions of habeas corpus, remain ineffective. Enforced Disappearance is a
serious violation of fundamental human rights: the right to security and
dignity of person; the right not to be subjected to torture or other cruel,
inhuman or degrading treatment or punishment; the right to humane conditions of
detention; the right to a legal personality; as well as rights related to fair
trial and family life. Ultimately, it can violate the right to life, as victims
of enforced disappearance are often killed. Increasingly the international
community considers Enforced Involuntary Disappearance as a specific human
rights violation and a crime against humanity. This culminated in the
International Convention for the Protection of All Persons from Enforced
Disappearance. On February 6, 2007 the Convention was opened for signatures and
signed by 57 States. The convention clearly states: - No one shall be subjected
to Enforced Disappearance. - No exceptional circumstances whatsoever, whether a
state of war or a threat of war, internal political instability or any other
public emergency, may be invoked as a justification for Enforced Disappearance.[13]
India signed the International Convention
for Protection of All Persons from Enforced Disappearances in February 2007,
but has failed to ratify the convention. The crime of Enforced Involuntary
Disappearances is not codified as a distinct offence in Indian penal laws. Police
either have to make an entry in the general diary as a missing case or register
a case under provisions for kidnap or abduction.[14] These provision do not
contemplate a situation which is contemplated in the Convention.
Apart from Jammu and Kashmir, the cases of enforced
disappearances are routine in North East India, particularly in Manipur. The
infamous secret killings in Assam
during 1998–2001 also fall within the ambit of enforced disappearances. Barak
Human Rights Protection Committee (BHRPC) also documented cases of enforced
disappearances. BHRPC wrote to the Prime Minister of India on July 18, 2009 about
the disappearance of Paresh Das (55) and Dilip Das (45) of Nandan Kanan Tea
Garden area under Jirighat Police Station in Cachar district, Assam, on May 25,
2009 from Tamenlong in Manipur and the PMO in turn wrote to the Chief secretary
of Assam requesting him to take appropriate actions.[15]
Lack of substantive and procedural
laws as to with the problem is one of the factor that crippled the state in
terms of effective prevention and placing deterrence. Ratification of the
Convention along with incorporation of the provisions in domestic laws is the
need of the hour.
Other Challenges Relating to Civil and Political
Rights
There are so many other challenges in exercising and enjoying civil and
political rights. One of them is the challenge of policing while respecting
rights of the people adhering to the human rights norms.
Policing
The police, in a sense, is the most empowered group of human rights
defenders.[16]
But sadly enough, after 64 years of independence, the institution remains and
functions more or less all over the country as it was designed by the British
colonial rulers in the Police Act of 1861.
After decades of public pressure, lack of political will and continued poor
policing, a police reform process is finally underway in India. On 22 September 2006, the
Supreme Court delivered a historic judgment in Prakash Singh and Others vs.
Union of India and Others[17]
instructing central and state governments to comply with a set of seven
directives laying down practical mechanisms to kick-start reform.[18]
The directives were aimed to ensure functional autonomy of the police and
their accountability to the law. For ensuring functional autonomy the Supreme
Court directed 1. to establish a State Security Commission to i. ensure that
the state government does not exercise unwarranted influence or pressure on the
police; lay down broad policy guidelines aimed at promoting efficient,
effective, responsive and accountable policing, in accordance with the law;
give directions for the performance of the preventive tasks and service
oriented functions of the police; evaluate the performance of the state police
and prepare a report on police performance to be placed before the state
legislature.
2. The second directive was aimed at ensuring fair selection of Director
General of Police (DGP) and guarantee of his tenure.[19]
3. Security of tenure is similarly important for other police officers on
operational duties in the field. In order to help them withstand undue
political interference, have time to properly understand the needs of their
jurisdictions and do justice to their jobs, the Supreme Court provides for a
minimum tenure of two years for the following categories of officers: - Inspector General of Police (in
charge of a Zone)
- Deputy Inspector General of Police (in charge of
a Range)
- Superintendent of Police (in charge of a
District)
- Station House Officer (in charge of a Police
Station)[20]
4. To counter the prevailing practice of subjective appointments, transfers
and promotions, the Supreme Court provides for the creation of a Police
Establishment Board. In effect, the Board brings these crucial service related
matters largely under police control. Notably, a trend in international best
practice is that government has a role in appointing and managing senior police
leadership, but service related matters of other ranks remain internal matters.
Experience in India
shows that this statutory demarcation is absolutely required in order to
decrease corruption and undue patronage, given the prevailing illegitimate
political interference in decisions regarding police appointments, transfers
and promotions.[21]
5. the Supreme Court directed the Central Government to establish a National
Security Commission for Central Police Organisations and Central Cara-Military
Forces.
For ensuring accountability the Supreme Court directed the governments to
set up:
7. To separate investigation and law and order function of police.[23]
The Government of Assam passed the Assam Police Act, 2007 purportedly to
comply with the Supreme Court directives. But in reality it does not comply
with the judgment fully. The Commonwealth Initiative for Human Rights (CHRI), a
regional human rights organization which was also one of the interveners in the
Prakash Shingh case, after an analysis of the Act says that the Act only
partially complies with the directives:
State Security
Commission was established but the composition is not as per the Supreme
Court directive.[24]
The Act has also weakened the mandate of the commission and has made its
recommendation non-binding.
The second
directive regarding selection process of the DGP and guarantee of his
tenure not complied.
Directive
regarding guarantee of tenure of the police officers on the field are also
not complied. Only one year of tenure is guaranteed to the Superintendent
of Police in charge of a district and Officer-in-Charge of a police
station with vague grounds for premature
removal.[25]
Police
Establishment Board was set up but the mandate was not adhered to.[26]
DGP
has also been given the power to transfer any officer up to the rank of
Inspector “asdeemed appropriate to meetany
contingency", contrary to the directive.
The Central Government did not establish National Security Commission
in utter contempt of the judgment.
The Assam Police Act, 2007 establishes Police Accountability
Commission to
enquire into public complaints supported by sworn statement against the
police personnel for serious misconduct and perform such other functions[27].
But the Chairperson and members of the Commission are appointed directly
by the government.[28]
This can, at best, be called partial compliance.
Half hearted
attempts can also be seen regarding separation of investigation from law
and order function of the police. Special Crime Investigation Unit has
been set up in urban police stations but there is no specific section on
separation of between law and order and crime investigation.
This deliberate attempt to bypass the Supreme Court directives prompted the
petitioner in the case former Assam director-general of police
Prakash Singh to describe the Assam Police Act, 2007, as a fraud on the people
of the state. He was speaking at a seminar
jointly organised by the commission and the Assam State Legal Services
Authority at the Assam
Administrative Staff
College, Guwahati.
According to him, the government had violated the letter and spirit of the apex
court guidelines by passing the act without conforming to these guidelines.[29]
The Act needs drastic amendment
to be brought in conformity with the Supreme Court guidelines and to be
compatible with International Human Rights Standards. More importantly the role
of the police needs to be redefined "taking into account the emerging
challenges of policing and security of the State, the imperatives of good
governance, and respect for human rights".[30]
Implementation of the Laws
Another huge challenge to the
civil and political rights is the no-adherence and non-implementation of laws
and other instruments that are meant to protect such rights. The Supreme Court
guidelines in DK Basu, and NHRPC guidelines regarding arrest, custodial deaths
have the potential to drastically reduce the number of torture and
disappearance cases if implemented properly. The DK Basu guidelines are only
implemented in papers. In rural police stations the guidelines are not even
hung in a language eligible to the public at a conspicuous place.
BHRPC has documented many cases of
fake encounters and custodial deaths where no magisterial inquiry was conducted
in contravention of the statutory mandate of section 176, of the Code of
Criminal Procedure, 1973[31].
In other two cases where the executive magistrates conducted the inquiry the
accused police personnel have been found guilty of murder. [32]
The reports are dated 28 March 2007 and 9 April 2008 but till the date neither
prosecution has been started nor has any compensation been provided to the kins
of the deceased. Apart from legal immunity provided by security legislations
such as the Armed Forces (Special Power) Act, 1958, the Assam Disturbed Areas
Act, 1955 there is a regime of de facto impunity guaranteed to the violators
which responsible for the increase of the incidents of torture, custodial
deaths and other extrajudicial killings.
Anomalies in the Legal Regime
Such gap between good laws on papers and their implementation on the ground
may have been facilitated by the mindset that has been created among the law
enforcement officials and security forces by the blanket power that has been
given them to carry out their operations, once an area is declared
disturbed under the AFSPA and ADAA. Even a non-commissioned officer in case
AFSPA and a Havildar in case ADAA is granted the right to torture and to shoot
to kill based on mere suspicion that it is necessary to do so in order to
"maintain the public order" with full guarantee that he will never be
required to answer in a court of law. If they are exempted from answering in a
regular court of law, one may wonder, what the use of a magisterial inquiry is
whether by judicial magistrate or executive magistrate.
Repeal Draconian Laws
Passing of the Prevention of Torture Bill, enactment of laws incorporating
provisions of the Convention on Enforced Disappearance, carrying out the police
reform as per the Supreme Court directives, ratification of CAT and its
Optional Protocol and ratification of the Convention on Enforced Disappearance
envisage a sea change in the human rights regime in the country. As a logical
corollary to these steps repeal of the AFSPA, ADAA, repeal or amendment to the
National Security Act, 1980, the Assam Preventive Detention Act, 1980 and other
such laws must be carried out to bring the entire human rights regime in India
in conformity with the international human rights standards.
Waliullah Ahmed Laskar
Barak Human Rights Protection Committee (BHRPC)
Silchar, Assam
[1]
This is a little modified version of the presentation made in the North East
Consultation for Universal Periodic
Review of India at the UN Human Rights Council in 2012 held at NEDFi House
Dispur, Guwahati on 23 September, 2011.
[2]
Article 5 states, "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment."
[3] The United Nations Human Rights Council
Resolution 8/8 on Torture and other cruel, inhuman or degrading treatment or
punishment.
[4]
The four Geneva Conventions provide protection for people who fall into enemy
hands.
The third (GCIII) and
fourth (GCIV) Geneva Conventions are the two most relevant for the treatment of
the victims of conflicts. Both treaties state in Article 3, in similar wording,
that in a non-international armed conflict, "Persons taking no active part
in the hostilities, including members of armed forces who have laid down their
arms... shall in all circumstances be treated humanely." The treaty also
states that there must not be any "violence to life and person, in
particular murder of all kinds, mutilation, cruel treatment and torture"
or "outrages upon personal dignity, in particular humiliating and
degrading treatment".
GCIV covers most civilians
in an international armed conflict, and says they are usually "Protected
Persons" (see exemptions section immediately after this for those who are
not). Under Article 32, protected persons have the right to protection from
"murder, torture, corporal punishments, mutilation and medical or
scientific experiments...but also to any other measures of brutality whether
applied by non-combatant or military agents".
GCIII covers the treatment
of prisoners of war (POWs) in an international armed conflict. In particular,
Article 17 says that "No physical or mental torture, nor any other form of
coercion, may be inflicted on prisoners of war to secure from them information
of any kind whatever. Prisoners of war who refuse to answer may not be
threatened, insulted or exposed to unpleasant or disadvantageous treatment of
any kind." POW status under GCIII has far fewer exemptions than
"Protected Person" status under GCIV. Captured enemy combatants in an
international armed conflict automatically have the protection of GCIII and are
POWs under GCIII unless they are determined by a competent tribunal to not be a
POW (GCIII Article 5).
[5]
Article 7: "No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation."
[6]
Article 21 of the Constitution of India provides that “[n]o person shall be
deprived of his life and liberty except according to procedure established by
law”. The right to life in Article 21 of the Constitution of India does not
mean mere survival or existence. It encompasses the right to live with dignity.
Torture is inflicted with the aim of degrading a person and involves the
violation of dignity. It therefore falls within the ambit of Article 21.
Further safeguards are
provided under other articles of the Constitution. Under Article 20(3), no
person accused of any offence can be compelled to be a witness against himself.
Article 22 (1) and (2) provide that a person who is arrested must be informed
as soon as may be of the grounds of his arrest. The person also has the right
to consult a lawyer of his choice. An arrested person must be produced before
the nearest magistrate within 24 hours of his arrest.
The Code of Criminal
Procedure (CrPC) also requires the production of accused before court within 24
hours. Section 54 of the CrPC gives the arrestee the right to be medically
examined. No statement of a witness recorded by a police officer, according to
Section 162 of the CrPC, can be used for any purpose other than contradicting
such a statement. Thus admission of guilt before a police officer is not
admissible in a court of law. Section 164 of the CrPC requires that the
magistrate must ensure that a confession by the accused is voluntary. Sections
330 and 331 of the Indian Penal Code (IPC) make it a penal offence to cause
hurt to a person in order to extract a confession. (Human Rights Feature (Voice
of the Asia Pacific Human Rights Network), Optional Protocol to CAT: India
can’t see the consensus accessed at http://www.hrdc.net/sahrdc/hrfeatures/HRF59.htm
on 22 September, 2011.
[10]
PRS Legislative Research, Legislative Brief: The Prevention of Torture Bill,
2010
[11]
The Report is summarized as: 1. The Bill seeks to provide punishment for
torture committed by public servants or with their consent. It was introduced
to enable India
to ratify the UN Convention against Torture and Other Cruel, Inhuman, Degrading
Treatment or Punishment. The Committee added a number of amendments to the
Bill.
2. The Bill defines
“torture” as grievous hurt or danger to life, limb and health. It adds that an
act is torture only if it is done intentionally and with the purpose of getting
information or confession. The Committee recommended that the definition of
torture should be suitably expanded so as to make it consistent with the UN
Convention and include offences under the Indian Penal Code. Torture of women
and children should be given special consideration and attempt to torture
should also be made an offence. The definition of public servant should include
any government companies or institutions.
3. The Bill states that a
person shall be liable to a maximum of 10 years’ imprisonment and a fine. The
Committee suggested that a minimum punishment of three years be given to make
the law more of a deterrent. Also, the torturer should be fined a minimum of Rs
1 lakh.
4. The Committee was of the
opinion that the Bill should include guidelines for arriving at a fair
compensation to the victim or to his dependents on his death.
5. The Committee stated
that the limitation period for filing a complaint should be two years so that
complainants have sufficient time to initiate proceedings. It added that there
should be a specific provision in the Bill to ensure that complaints of
disadvantaged victims are registered according to the law.
6. The Bill states that
approval of the central or state government is required before courts can admit
complaints against a public servant. While there is a need to protect honest
officials, the Committee was of the view that this provision should not be used
to shield guilty officials and deny justice to victims. Therefore, it suggested
that if requested sanction is not given within three months, it would be deemed
to have been granted. Trial for every offence under this law should be
concluded within one year.
7. Since victims and
witnesses face threats from accused persons, the Committee recommended that
adequate provisions for the protection of victims and witnesses should be
included in the Bill. A medical examination of the victim should be mandatory
while he is lodged in jail. The report should be sent to the trial court.
8. The Committee observed
that this law should be in addition to and not in derogation of any other law
in force.
9. The Committee stated
that the appropriate government would need to frame Rules for implementation of
the Bill. Such a provision should be included in the Bill.
10. In view of the
importance of the Bill, the Committee recommended that the period of
notification be specified in the Bill itself. It suggested that the Bill should
be notified within 120th day of its enactment.
[12]
Section 12 reads "Functions of the
Commission: The Commission shall perform all or any of the following functions,
namely : (a) inquire, suo motu or on a petition presented to it by a victim or
any person on his behalf, into complaint of (i) violation of human rights or
abetment thereof or (ii) negligence in the prevention of such violation, by a
public servant; "
[14]
The sections of the Indian Penal Code that deal with kidnap and abduction are
:359. Kidnapping; 360. Kidnapping from India; 361. Kidnapping from lawful
guardianship; 362. Abduction 363. Punishment
for kidnapping; 363A. Kidnapping or maiming a minor for purposes of begging;
364. Kidnapping or abducting in order to murder; 364A. Kidnapping for ransom, etc.; 365. Kidnapping
or abducting with intent secretly and wrongfully to confine person; 366.
Kidnapping, abducting or inducing woman to compel her marriage, etc.; 366A.
Procreation of minor girl; 366B. Importation
of girl from foreign country; 367. Kidnapping or abducting in order to subject
person to grievous hurt, slavery, etc.; 368. Wrongfully
concealing or keeping in confinement, kidnapped or abducted person.
[15]
Vide PMO Letter No. vide No. 13/3/2009-PMP3/75979 dated August 6, 2009
[16]
The Preamble of the Assam Police Act, 2007 says that "it is expedient to
redefine the role of the police taking into account the emerging challenges of
policing and security of the State, the imperatives of good governance, and
respect for human rights"
[18]
Commonwealth Human Rights Initiative (CHRI),
Prakash Singh and Others vs. Union of India and Others: Analysis of the
Supreme Court Directives on Police Reforms
[19]
The Supreme court says, the Director General of Police of the State shall be
selected by the State Government from amongst the three senior-most officers of
the Department who have been empanelled for promotion to that rank by the Union
Public Service Commission on the basis of their length of service, very good
record and range of experience for heading the police force. And, once he has
been selected for the job, he should have a minimum tenure of at least two
years irrespective of his date of superannuation. The DGP may, however, be
relieved of his responsibilities by the State Government acting in consultation
with the State Security Commission consequent upon any action taken against him
under the All India Services (Discipline and Appeal) Rules or following his
conviction in a court of law in a criminal offence or in a case of corruption,
or if he is otherwise incapacitated from discharging his duties.”
[20]
The Supreme Court says, Police Officers on operational duties in the field like
the Inspector General of Police incharge Zone, Deputy Inspector General of
Police in-charge Range, Superintendent of Police in-charge district and Station
House Officer in-charge of a Police Station shall also have a prescribed
minimum tenure of two years unless it is found necessary to remove them
prematurely following disciplinary proceedings against them or their conviction
in a criminal offence or in a case of corruption or if the incumbent is
otherwise incapacitated from discharging his responsibilities. This would be
subject to promotion and retirement of the officer.”
[22]
There shall be a Police Complaints Authority at the district level to look into
complaints against police officers of and up to the rank of Deputy
Superintendent of Police. Similarly, there should be another Police Complaints
Authority at the State level to look into complaints against officers of the
rank of Superintendent of Police and above. The district level Authority may be
headed by a retired District Judge while the State level Authority may be
headed by a retired Judge of the High
Court/Supreme Court. The head of the State level
Complaints Authority shall be chosen by the State Government out of a panel of
names proposed by the Chief Justice; the head of the district level Complaints
Authority may also be chosen out of a panel of names proposed by the Chief
Justice or a Judge of the High Court nominated by him. These Authorities may be
assisted by three to five members depending upon the volume of complaints in
different States/districts, and they shall be selected by the State Government
from a panel prepared by the State Human Rights Commission/Lok Ayukta/State
Public Service Commission. The panel may include members from amongst retired
civil servants, police officers or officers from any other department, or from
the civil society. They would work whole time for the Authority and would have
to be suitably remunerated for the services rendered by them.
The Authority may also need
the services of regular staff to conduct field inquiries. For this purpose,
they may utilize the services of retired investigators from the CID,
Intelligence, Vigilance or any other organization. The State level Complaints Authority
would take cognizance of only allegations of serious misconduct by the police
personnel, which would include incidents involving death, grievous hurt or rape
in police custody. The district level Complaints Authority would, apart from
above cases, may also inquire into allegations of extortion, land/house
grabbing or any incident involving serious abuse of authority. The
recommendations of the Complaints Authority, both at the district and State
levels, for any action, departmental or criminal, against a delinquent police
officer shall be binding on the concerned authority.”
[23]
The investigating police shall be separated from the law and order police to
ensure speedier investigation, better expertise and improved rapport with the
people. It must, however, be ensured that there is full coordination between
the two wings. The separation, to start with, may be effected in towns/urban
areas which have a population of ten lakhs or more, and gradually extended to
smaller towns/urban areas also.”
[24]
Section 35 lays down the composition :(1) The State Security Commission shall
have as its members :-
(a) the Chief minister as
the Chairperson;
(b) a retired high Court
judge;
(c) the Chief Secretary;
(d) the Secretary in charge
of the Home Department as its Member
Secretary;
(e) the Director General of
Police of the State; and
(f) three non-political
persons (hereinafter referred to as Independent Members”) of high integrity,
expertise and competence in administration, law enforcement and security
related matters nominated by the State Government. Out of these one shall be
police officer superannuated in the rank not below Director general of Police,
another a retired civil service officer not below the rank of Commissioner and
Secretary to the State Government with experience in public administration, and
the third member will be from the fields of public service, legal profession or
social organization with at least fifteen years experience in the field.
Where as the Supreme Court
approved Model Police Act in addition to the Chair and the Secretary, provides
for the following composition:
(a) Leader of the
Opposition in the state assembly
(b) Retired High Court
Judge nominated by the Chief Justice of the High Court
(c) Home Secretary3
(d) Five non-political
persons of proven reputation for integrity and competence from the fields of
academia, law, public administration, media or non-government organisations to
be appointed on the recommendation of a Selection Panel composed of:
(i) A retired Chief Justice
of a High Court to be nominated by the Chief Justice of the High Court;
(ii) The Chairperson of the
State Human Rights Commission; in the absence of a state Commission, a person
nominated by the Chairperson of the National Human Rights Commission; and
(iii) The Chairperson of
the State Public Service Commission.
[25]
Sub-section 3 of section 12 provides: (3) Following officers on operational
duties in the field shall have a term of minimum one year --
(i) Superintendent of
Police in charge of District;
(ii) Officer in charge of
Police Station :
Provided that such officer
may be transferred from his post before the expiry of the minimum tenure of one
year consequent upon,--
(a) promotion to a higher
post; or
(b) conviction or charges
having been framed, by a court of law in a criminal offence; or
(c) punishment of
dismissal, removal, discharge or compulsory retirement from service or of
reduction to a lower rank, or imposition of any other penalty other than
censure awarded the relevant Acts and Rules; or
(d) suspension from service
in accordance with the provisions of the Rules; or
(e) incapacitation by
physical or mental illness or otherwise becoming unable to discharge his
functions and duties; or
(f) the need to fill up a
vacancy caused by promotion, transfer, or retirement; or
(g) on deputation with the
consent of the officer concerned; or
(h) inefficiency or
negligence or misdemeanor prima facie establishment after preliminary enquiry :
Provided that in the public
interest the State Government may transfer the Superintendent of Police of the
District as may be deemed appropriate to meet any contingency :
Provided further that in
the public interest the Director General of Police of the State may transfer
Officers in charge of Police Station of the rank of Inspector and District
Superintendent of Police may transfer the Officer in charge of Police Station
of the rank of Sub-Inspector of Police within the district as deemed
appropriate to meet any contingency.
[26]
See section 44 and 45 of the Assam Police Act, 2007
[31]
The Code of Criminal Procedure (Amendment) Act, 2005 [NO. 25 OF 2005]
incorporates sub-section (1-A) to the section 176 which reads
“(1-A) Where,—
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any
woman,
while such person or woman
is in the custody of the police or in any other custody authorised by the
Magistrate or the court, under this Code in addition to the inquiry or
investigation held by the police, an inquiry shall be held by the Judicial
Magistrate or the Metropolitan Magistrate, as the case may be, within whose
local jurisdiction the offence has been committed.”;
[32]
See Magisterial Inquiry Report vide NO. MISC. CASE. 1/2007/28 Dated Silchar,
the 9th April, 2008 and Memo No. KCL22/2007-08/242 dated Katigorah, 28 March
2007.
In a statement jointly issued issued on
18 August, 2011 by AHRC, REDRESS and HRA it is claimed that a draconian
legislation like the Armed Forces (Special Powers) Act, 1958 and the
concept of democracy do not go together. While democracy nurture values
of justice, equality and fraternity, laws like the AFSPA are synonymous
with injustice, discrimination and hatred. A report that analyses the
legislation’s complete incompatibility with India’s domestic and
international human rights obligations is released today in India, Hong
Kong and London. Human Rights Alert, a human rights organisation working
in Manipur, India; REDRESS Trust, a human rights group based in London,
UK; and the AHRC, a regional human rights body based in Hong Kong have
jointly authored the report.
It is also stated that the report while analysing the Act draws
extensively upon international and domestic human rights jurisprudence,
that India is mandated to follow. The report exposes the visibly
different standards even the Supreme Court of India has adopted while
deciding the constitutionality and thus the compatibility of the law
with India’s international and domestic human rights obligations.
Despite repeated calls to repeal the law immediately by
government-sponsored Committees that have studied the law, the
Government of India is yet to take any steps in that direction.
International human rights bodies like the Human Rights Committee and
the Committee on Racial Discrimination have expressed concern about the
law and its implementation in India, suggesting that the law should be
repealed.
The law has attracted, repeatedly, wide-ranging criticisms from
jurists, human rights activists, and even politicians within India and
abroad. Organisations like the AHRC and Human Rights Alert have
documented more than two hundred cases, over the past eight years, where
the state agencies operating under the statutory impunity provided by
the Act has committed serious human rights violations in states like
Manipur. Most of these cases has been reported by the AHRC through its
Urgent Appeals Programme and brought to the attention of authorities in
India and within the United Nations. Yet, so far not a single military
or police officer has been prosecuted for the human rights abuses they
have committed under the cover of impunity provided by this law.
The report also places emphasis upon the unique form of protest by
Ms. Irom Chanu Sharmila, through her decade-long hunger strike, which
has been largely ignored by the national media in India.
Barak Human Rights Protection Committee (BHRPC) is pleased to forward the following Urgent Appeal issued by Asian Human Rights Commission (AHRC)regarding an incident of severe torture of a human rights defender by the police in Imphal, Manipur, India. It is reported that the police arrested and tortured the victim, Oinam Bikramjit, in custody. The victim fears that he will be re-arrested and tortured if he takes any actions against the police officers.
AHRC states “Oinam Bikramjit is a human rights activist in Manipur. He is an active campaigner in the state-wide movement calling for the withdrawal of the draconian laws like the Armed Forces (Special Powers) Act, 1958 from the state. He has also been vocal against the extrajudicial executions carried out by the security forces in Manipur. He is the General Secretary of the United People Front of Manipur. He is part of the Apunba Lup, an umbrella body of different organisations in Manipur. It is believed that Bikramjit's arrest was a kneejerk reaction by the state government against the mass protest organised by Apunba Lup and other human rights organisations against the 23 July killings in Manipur.”
You are urged to send appeals to the concerned authorities and disseminate it widely.
The Asian Human Rights Commission (AHRC) has received information about the case of a human rights defender tortured by the police in Imphal, Manipur state. It is reported that the police arrested and tortured the victim, Oinam Bikramjit, in custody. The victim fears that he will be re-arrested and tortured if he takes any actions against the police officers.
CASE DETAILS:
According to the information received by the AHRC, the Manipur State Police Commando Unit arrested Mr. Oinam Bikramjit on September 1, 2009, along with three other human rights defenders namely: Ms. Mutum Ibemhal, Ms. Mayanglambam Radhesana and Ms. Oinam Amuthoi.
At about 5pm on that day, police officers surrounded the house of Mrs. Ibemhal, in Imphal West District. Ibemhal along with Bikramjit, Radhesana and Amuthoi were having tea. The officers searched the house but found nothing incriminating. Soon, a team of women police officers arrived and arrested Ibemhal, Bikramjit, Radhesana and Amuthoi. It is reported that the police violated all legal procedures regarding arrest of persons.
The police produced the four detainees at the Imphal Chief Judicial Magistrate court, on the next day. The Court released Radhesana and Amuthoi on bail but remanded Bikramjit and Ibemhal into custody. The Court allowed the police to keep Bikramjit and Ibemhal in police custody instead of judicial custody till 4 September. On 4 September the police produced Bikramjit and Ibemhal again in court, and the court remanded them into judicial custody till 17 September.
At this point the officers from Nambol Police Station approached the court with a prayer to allow them to arrest Bikramjit in connection with a case concerning the burning of Nambol Sub Divisional Office that happened on August 20, 2009. The court ordered to produce Bikramjit before the court and allowed the Nambol police to record their arrest of Bikramjit. Then they produced Brikamjit in the court of Chief Judicial Magistrate in
Bishnupur with a prayer for police remand. The Court allowed the application and remanded Bikramjit into police custody till September 7, 2009.
In the meanwhile, the District Magistrate, Imphal West District issued an order on September 5, 2009 to detain Bikramjit under the National Security Act, 1980 (NSA). The NSA allows preventive detention of a citizen for prolonged periods with limited possibilities of bail. Bikramjit was not brought before the Bishnupur court on 7 September.
According to our information, the police tortured Bikramjit in custody. Bikramjit along with others were released from custody on January 7, 2010. But he is suffering from physical as well as mental trauma from the severe torture inflicted upon him while in custody. It is reported that the police resorted to brutal forms of torture upon Bikramjit, including electrocuting him. Bikramjit is afraid that the police will detain him again if he initiated any action against the officers. He requires immediate expert medical assistance and counseling for trauma.
BACKGROUND INFORMATION:
Oinam Bikramjit is a human rights activist in Manipur. He is an active campaigner in the state-wide movement calling for the withdrawal of the draconian laws like the Armed Forces (Special Powers) Act, 1958 from the state. He has also been vocal against the extrajudicial executions carried out by the security forces in Manipur. He is the General Secretary of the United People Front of Manipur. He is part of the Apunba Lup, an umbrella body of different organisations in Manipur. It is believed that Bikramjit's arrest was a kneejerk reaction by the state government against the mass protest organised by Apunba Lup and other human rights organisations against the 23 July killings in Manipur. For further reading about the 23 July murder, please see AHRC-UAC-098-2009; AHRC-UAC-122-2009 and The state of the republic is showcased in Manipur.
The NSA allows detention of persons considered as security risk anywhere in India. Under its provisions, the authorities could detain a suspect without charge or trial for a period up to one year. The state government must confirm the detention order, which is reviewed by an advisory board within seven weeks of the arrest. The process however is non-transparent. The NSA limits the power of the lower courts like the magistrate courts to review detention orders and thus deprive the persons detained under this law from obtaining any immediate legal redress. Declaration of a state of emergency is no precondition to charge a person under the NSA. For these reasons the NSA has been misused by authorities in India. In particular, the NSA is used against human rights and other political activists to silence opposition.
In February 2009, the UN Working Group on arbitrary detention released a joint study along with other Special Rapporteurs on the practice of arbitrary detention in countering terrorism. It stated that 'arbitrary detentions and disappearances have been a long-
standing concern in India, particularly in the states in which the Armed Forces Special Powers Act, 1958 applies'. During the 2008 Universal Periodic Review of India, the Human Rights Council also remarked that the continuing reliance on special powers under legislations such as the Armed Forces (Special Powers) Act, 1958 the Public Safety Act, 1978 and the National Security Act, 1980 in areas declared to be disturbed is cause for serious human rights violations.
SUGGESTED ACTION:
Please write to the authorities named below demanding an investigation into the case of torture. The circumstances under which Bikramjit was arrested must be investigated and if the investigation reveals breach of law, the concerned officers must be punished.
The AHRC is writing a separate letter to the Rapporteur on the situation of human rights defenders calling for his intervention in this case.
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To support this appeal, please click here:
SAMPLE LETTER:
Dear …………….,
INDIA: The case of torture of Oinam Bikramjit must be investigated
Name of the victim: Oinam Bikramjit, 34, General Secretary of United People's Front, resident of Oinam Mamang Leikai, Bishunupur District, Manipur, India
Date of incident: September 1, 2009
I am writing to express my concern regarding the case of Mr. Oinam Bikramjit who was arrested and reportedly tortured in custody in Manipur.
According to the information I have received, the Manipur State Police Commando Unit arrested Bikramjit from the house of Ms. Mutum Ibemhal on September 1, 2009. The police have reportedly arrested Bikramjit along with three other persons, Ms.
Mayanglambam Radhesana, Ms. Oinam Amuthoi and Ms. Mutum Ibemhal. I am informed that at the time of arrest, the police officers failed to follow the procedures stipulated in the Criminal Procedure Code, 1973.
I am aware that the police released Bikramjit from custody on 7 January. I am however concerned to know that the police tortured him in custody and even electrocuted him. I am informed that he is afraid to speak about the incident due to fear for re-arrest, even though he is outside the police custody. I am also informed that Bikramjit requires immediate medical care and trauma counseling to recover from the mental and physical trauma he has suffered at the hands of the police.
I am aware that torture is not permitted under Indian law. I am however concerned to know that torture is widely practiced in India. I suspect that the lack of appropriate investigations and prosecutions of officers is one of the reasons for the widespread use of torture in the country.
I am further informed that draconian laws like the Armed Forces (Special Powers) Act, 1958 and the National Security Act, 1980 are misused by the police as well as other state agencies in India.
I therefore urge you to review the implementation of these laws in India. I am aware that entities like the United Nations and its several mandate holders like, the UN Working Group on arbitrary detention have urged the government of India to review the operation of these laws. I am also informed that a similar opinion was made by the Human Rights Council during India's Universal Periodic Review and that the same opinion is shared by India's National Human Rights Commission.
I therefore urge you to ensure that:
1. The statement of the victim is recorded;
2. The victim is provided immediate security and medical treatment;
3. A judicial inquiry is held into the entire incident and the records of the inquiry transferred to the Central Bureau of Investigation, investigating the July 23 murder;
4. If the judicial inquiry reveals a crime committed by the police officers against the victim, that the officers are immediately prosecuted in a separate trial;
5. The officers accused in the case of having tortured the victim are immediately placed under suspension and removed from active duty;
6. To review the operation of draconian laws like the Armed Forces (Special Powers) Act, 1958 and the National Security Act, 1980 are reviewed.
Yours faithfully,
PLEASE SEND YOUR LETTERS TO:
1. Pratibha Patil Devi,
President
Office of the President
Rashtrapati Bhawan,
New Delhi 110004
INDIA
Fax: +91 11 23017290
E-mail: presidentofindia@rb.nic.in
2. Dr. P. Chidambaram
Minister, Ministry of Home Affairs
Griha Mantralaya Room
No. 104, North Block Central Secretariat
New Delhi 110001
INDIA
Fax: +91 11 2301 5750, 2309 3750, 2309 2763
E-mail: hm@nic.in
3. Mr. Okram Ibobi
Chief Minister & Home Minister of Manipur,
Chief Minister's Secretariat, Babupara
Imphal 795001, Manipur
INDIA
Fax: + 91 385 2221817
Email: cmmani@man.nic.in
4. Chairperson
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Fax: +91 11 23340016
E-mail: chairnhrc@nic.in
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
Posted on 2010-03-01
The AHRC link to the document: http://www.ahrchk.net/ua/mainfile.php/2010/3379/
