Addressing custodial violence:
Recommendations to the NHRC



Presentation of Mr Suhas Chakma, Director of Asian Centre for Human Rights (ACHR) on Custodial Justice at the Seminar onRole of NGO's in support of NHRC in better promotion and protection of Human Rights” organised by National Human Rights Commission at the Karnataka Judicial Academy, Bangalore on 28-29th April 2007

 

Justice is too sacrosanct to be associated with violations of rights in custody – irrespective of whether it is in judicial custody or in the custody of the law enforcement personnel. Certainly, the excesses perpetrated in custody are not part of justice.

 

I. Skewed perceptions on custody in India

 

Custody is often narrowly construed in common parlance. The NGOs usually construe custody as “police custody” given the custodial violence they address in their work. Lawyers usually construe as “judicial and police custody” given the standard practice.

 

Such skewed perceptions excluded a large number of persons who are taken into custody by the armed forces under the command of the Central government of India. The Border Security Force personnel or Seema Suraksha Bal – the first law enforcement personnel met by the asylum seekers, refugees, illegal immigrants. These law enforcement personnel do not have the power to arrest and they are required to handover those arrested to the police. However, it is seldom complied with.

 

At present, 21 out of 28 States face internal armed conflicts. In these internal armed conflict situations, central armed forces like the Central Reserve Police Personnel, Rashtriya Rifles, Assam Rifles etc have been deployed. Recently, battalions from one State are deployed in other States. For example, the personnel of the Naga Battalions and Mizo Battalions are deployed in Chhattisgarh. These security forces often take people into custody without any legal sanction, detain them for long periods and subject them to custodial violence.  The NHRC has statutory limitations under the Human Rights Protection Act of 1993 to investigate violations by these central armed forces.

 

The direction of the NHRC to the District Magistrates to report to NHRC the incidents of custodial deaths within 24 hours has helped to understand the pattern of custodial deaths in the country. It brought the intensity and scale of custodial violence to spotlight given the fact that the National Crime Records Bureau of the Government of India miserably failed to highlight custodial violence.

 

But, the NHRC must not only be a “documentation centre” or “statistical department” office recording custodial deaths. The NHRC is not meant to and cannot replace the judiciary. But it can play the catalytic role in cooperation with NGOs to ensure justice for the victims of custodial violence.

 

II. Recommendations

 

In this context, Asian Centre for Human Rights makes the following recommendations:

 

First, though NHRC is not mandated to inquire into human rights violations by the armed forces, the NHRC must explore the possibility of taking measures or adopting a law to ensure application of the guidelines issued  by the Supreme Court in the D K Basu case whenever the armed forces/battalions from other States take persons into their custody. The registration of the record of arrest of such persons must be made mandatory. It is precisely because the central security forces are not required to maintain the record of their arrests that gross human rights violations have been taking place in the peripheries of India. Whenever a person is taken into custody, the procedures for arrest under the Criminal Procedure Code must be made mandatory.

 

Second, central to administration of justice in case of violations of human rights in custody is the need to collect evidence. The role of the medical professionals is crucial. The way many doctors perform autopsies and doctor the autopsy findings under duress do not require any introduction. The NHRC needs to work in a more pro-active manner with Indian Medical Association (IMA) to raise awareness and ensure accountability of the medical professionals. The IMA must take action in cases of violations of the medical ethics by the medical professionals. At the same time, NHRC must also create specific protection mechanisms for the medical professionals whenever they are threatened by the police.

 

Third, the NHRC needs to create a prosecution department to act as deterrent against custodial violence. This would obviously require further strengthening of its investigation department and the NHRC and its representatives exercising the powers of a civil court accorded to it under the Protection of Human Rights Act of 1993 more strictly. The NHRC prides itself for awarding compensation to many family members or relatives of hundreds of victims of custodial deaths. But the question remains as to in how many cases it had taken steps for prosecution of the guilty. There are many cases of custodial violence where the NHRC has the evidence that can withstand any judicial scrutiny to prosecute the guilty. If NHRC takes up such cases, it will raise necessary awareness to address custodial violence.

 

But such prosecution alone cannot raise necessary awareness. Otherwise, the arrest of three senior Indian Police Service Officers in Gujarat for the extrajudicial execution of Soharabuddin Sheikh and his wife Kaushur Bi after taking them into custody would have raised sufficient awareness. Undoubtedly, the government of India is right to demand for investigations by the Central Bureau of Investigation and no one can justify the extrajudicial execution on the ground that Soharabuddin had many cases pending against him. At the same time, the Central government had not shown such alacrity with regard to extrajudicial executions in the peripheries. The report of the Justice Upendra Commission of Inquiry into the killing of Thangjang Manorama Devi after being taken into custody in Manipur in July 2004 has still not been made public. Gurajat riots divided the country and the positions of the political parties have been polarized, and this polarisation at times create the necessary space for activism, not available in the peripheries on which all the political parties irrespective of their ideologies have the same view.

 

It brings us to the final recommendation. The only way to address the custodial violence is to adopt a law to address the issues of custodial violence in conformity with the United Nations Convention Against Torture and its Optional Protocol. The law will create its own awareness that no judgement can create. The NHRC must learn from its experiences. The biggest contribution of the NHRC is not its intervention with the courts such as NHRC Vs State of Arunachal Pradesh or its intervention in Gujarat riots but the creation of NHRC to a large extent raised awareness on human rights and dispelled the perceptions in the officialdom that human rights are not instruments of the western governments to interfere in internal affairs. It is another matter that in the post September 11 th period, all governments have become the same. Nonetheless, when a Commission created by the government through a parliamentary act intervenes, it raises necessary awareness.

 

Therefore, the NHRC must urge the government of India to establish a law as promised by Home Minister Shivraj Patil on 30 March 2006 to begin elaboration of a new law against torture. The NHRC must ensure that accountability remains the central focus of such a law. Accountability is neither revenge nor retribution but assertion of the civilised society that lawless law enforcement will be dealt with the full force of the law. Custodial justice remains the key yardstick to measure the level of civilization of any society.

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