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Custodial Violence | A history of violence

This bill is a crucial ethical and practical statement against the widespread use of torture in police custody
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First Published: Fri, Nov 02 2012. 04 10 PM IST
The family of a missing crime suspect in Gadchiroli, Maharashtra. Satish Bate/Hindustan Times
The family of a missing crime suspect in Gadchiroli, Maharashtra. Satish Bate/Hindustan Times
Updated: Fri, Nov 02 2012. 04 42 PM IST
Golam Mujtaba, 19, isn’t answering his phone.
Mujtaba, a college student, is currently seeking justice for what happened to him in March on a trip home to his village, Uttarchar Majherdiar in West Bengal, not far from the border with Bangladesh. Out for a walk with friends, he was stopped by policemen asking for directions to the house of a suspected cattle smuggler. Unable to find the person they were looking for, the policemen forced Mujtaba and his friends to board the van, and beat them with lathis when they resisted.
“My son was put in a lock-up inside Raninagar police station and mentally tortured,” says Nazrul Islam, Mujtaba’s father. “They were denied essentials like warm clothes. Much later in the night, after a group of villagers turned up at the police station and attested to the good moral character of the boys, the police let them go after making them sign some papers.”
Mujtaba and his family are currently seeking redressal for this apparently senseless violence, with the help of human rights organization Banglar Manabadhikar Suraksha Mancha (Masum). Nazrul Islam worries about his son’s security, though. “Even when they (the police) came, one of the officers kept insisting that the issue should be mutually settled,” he says. “Otherwise the police can frame false charges against my son.”
Mujtaba “has gone into a shell”, as his father says, but he lives to fight. There are others who have not. In July 2010, a teacher, Tamirul Haq of West Bengal, reportedly stopped policemen dragging two men towards the Kotar police camp in West Bengal to ask why they were doing so. Haq was beaten, taken to the camp, and tortured until he lost consciousness. He was declared dead on arrival at Raiganj district hospital. Swapna Salvi, 25, died at Mumbai’s Goregaon (East) police station in April 2010, having hanged herself with her dupatta in the ladies’ room, according to the police. In November 2010, P. Kishtaiah, a labourer in Andhra Pradesh, was reported dead in the Dharur police station, having hanged himself “with a shoelace”, according to the police.
These are three names among scores recorded in the Asian Centre for Human Rights’ (ACHR’s) chilling report, Torture in India 2011, which states that between 2001 and 2010, 14,231 deaths have occurred in police and judicial custody. A United Nations report this year states that 43 people die in police custody in India every day. Amnesty International calls torture in police custody in India “endemic”.
The Prevention of Torture Bill, 2010, passed by the Lok Sabha that year and currently waiting for a select committee report on it to be tabled in the Rajya Sabha, is the State’s most emphatic step to address this ubiquity. Rights groups point out that the law is vital not only because it can protect vulnerable detainees from harm, but also because it is an ethical declaration against custodial violence in a country where violence committed by public servants tends to be seen as normal and inevitable.
Moral responsibility
“There’s the moral reason,” says Meenakshi Ganguly, South Asia director of Human Rights Watch (HRW). “Do we want a police force that engages in torture? Then there’s the practical reason, which is the Convention against Torture.”
India signed the 1975 UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Uncat) in 1997. To ratify the convention, however, India is required to pass laws which “reflect the definition and punishment for ‘torture’”—a phrase used in the Bill’s statement of objects and reasons.
In 2010, decades after Uncat was adopted by the UN general assembly, the ministry of home affairs, then headed by P. Chidambaram, appeared ready to improve on its legislative record on human rights.
It was Chidambaram who introduced the Bill in the Lok Sabha in April 2010. Speaking in favour of it, Shashi Tharoor, Congress member of Parliament for Thiruvananthapuram, said, “Our failure to ratify our own signature for as long as 13 years has been a cause of some dismay... We were all so excited around the world about the huge success of Slumdog Millionaire (...) There was no public uproar about the fact that this film opens with a scene of astonishing police brutality.”
The Bill was passed in the lower House after a brief late-night debate. It immediately came in for criticism from rights groups. Its stated aim, to define torture as “grievous hurt”, or risk to “life, limb and health”, fell disappointingly short of covering the extent of harm—physical, mental and sexual, among others—that torture can inflict on a victim.
The Bill sought to qualify torture as an act committed to extort confessions, and implied that further grounds, of religious, racial or other identity-based discrimination against the victim, would be required. As a critique published by the Delhi-based Commonwealth Human Rights Initiative (CHRI) shows, Uncat clearly admits much less exacting grounds for torture: The act might hypothetically be committed to extract information, or as punishment, or to intimidate or coerce a victim for any discriminatory reasons.
“This means that the new law provides no great stride to (sic) curbing torture,” wrote Navaz Kotwal, coordinator—police reforms programme, CHRI, in a critique. “(B)ut (it) does provide the cosmetic (change) of having passed a law against torture for purposes of international optics.”
Kotwal points out that there are several protections already available against custodial violence. These are “both written within the law and found in various high court and Supreme Court judgements”, she says. Safeguards like medical examinations and the requirement that the accused be produced before a magistrate within 24 hours, the Supreme Court’s DK Basu guidelines for making arrests and the NHRC guidelines all exist.
Suhas Chakma, ACHR director, was one of many critics of the Bill in 2010. However, he says a new draft of the Bill prepared by the select committee, headed by Ashwani Kumar (now law and justice minister) and due to be tabled in a future Parliamentary session, is a much-improved version. The draft specifically addresses forms of mental and sexual torture, in addition to bodily harm; the period during which a complaint remains valid has been extended to two years; and it requires that investigations be completed in six months. Appeals against decisions can be filed in a high court within 90 days. “From an Indian perspective, it is as close to the Uncat as we can get,” says Chakma.
But until the Bill comes back for discussion to Parliament, both the moral and pragmatic aspects of a vital piece of human rights legislation hang in the balance.
“Police brutality features heavily in the whole ongoing debate on police reform and torture,” says Kotwal. “But when you see cosmetic changes, or half-hearted attempts at reform, then one is forced to believe that the people in power are happy with the status quo.”
“I don’t have a clear understanding of the Prevention of Torture Bill, but I do know that physical and mental torture cannot be resorted to in custody,” says Nazrul Islam, “and a person can be found guilty only in the court.”
• • • • • • • • • •
THE PREVENTION OF TORTURE BILL, 2010
Why it is important
While broader reform of police and security agencies will be the most effective way to end custodial violence, an anti-torture law is a clear statement of intent from the government against torture.
Status quo
The Prevention of Torture Bill was passed in the Lok Sabha in 2010. The Rajya Sabha referred it to a select committee; its report has not yet been tabled for discussion.
What will change
The Prevention of Torture Bill is the government’s first and most important step towards ratifying Uncat. According to Suhas Chakma, if a suggested amendment to the current draft Bill is made, and the authorities are legally bound to investigate claims of torture within 90 days, “it could clean up the entire system”.
Potential issues in the Bill
u Its definition of torture focuses on physical harm, and does not include mental “pain or suffering” (which Uncat does), or sexual violence.
u The Bill imposed a time limit of six months between an act of torture and a complaint, which experts say considerably weakens its efficacy.
u It requires that the intent of the accused be proven; while this is consistent with Uncat’s requirement, the existing provisions of the Indian Penal Code (Sections 330 and 331) do not require that proof of intent.
u The Bill doesn’t address gaps like the lack of an independent body to investigate torture claims.
• • • • • • • • • •
HOW YOU CAN CONTRIBUTE
THE COMMONWEALTH HUMAN RIGHTS INITIATIVE
The CHRI is an international organization, with headquarters in New Delhi, which works for human rights in Commonwealth countries. In India, it raises public awareness, educates and researches on issues like police reforms, prison reform and the Right to Information Act, among others.
What it needs
CHRI’s Delhi office runs internship programmes through which you can volunteer to work on specific projects. It also accepts donations through its London office, a UK-registered charity.
Contact
ASIAN CENTRE FOR HUMAN RIGHTS
The ACHR, based in New Delhi, focuses on human rights issues, providing research and information to national human rights bodies, lobbying for specific cases, and legal and political advice to individuals and groups.
What it needs
Volunteers and donations
Contact
Mail secretariat@achrweb.org
Shamik Bag contributed to this story.
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First Published: Fri, Nov 02 2012. 04 10 PM IST
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