7,468 custodial deaths in the last five years
NHRC urged to create a separate prosecution cell
New Delhi: In its report, “Torture in India 2008: A State of Denial" - the first ever nationwide assessment on the use of torture in India – released today, Asian Centre for Human Rights stated that 7,468 persons, at an average of 1,494 persons per year or about four persons per day, have died and/or been killed in prison and police custody during 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’ para-military forces in insurgency affected areas. A large number of these deaths are a result of torture.
A pervasive regime of impunity is the single most important factor for institutionalising widespread use of torture even in areas where there are no armed conflicts. Only 4 police personnel were convicted in 2004 and 3 in 2005 for custodial deaths.
“Hundreds are killed, dozens are paid compensation but only 3 to 4 persons are convicted each year. Nothing more can expose the pervasive impunity.” – stated Mr Suhas Chakma, Director of Asian Centre for Human Rights while describing official figures of 7,468 custodial deaths during 2002 to 2007, award of compensation in 684 cases of custodial violence by the National Human Rights Commission alone from 1994 to 2007 and conviction of only 7 police personnel in 2004 and 2005.
“The requirement of prior permission under Section 197 of the Criminal Procedure Code and Section 6 of the Armed Forces Special Powers Act, 1958 for prosecution of the accused law enforcement personnel promotes impunity. The Executive acts as the Supra-judicial body to decide whether the accused law enforcement personnel should be prosecuted or not by the judiciary.”- further stated Mr Chakma.
Judiciary’s role has been laudable but the Courts are hampered by lack of specific legislation against torture, immunities offered to the law enforcement personnel under the Criminal Procedure Code and national security laws, and the more general problem of judicial delay.
NHRC has been criticised for its preference for interim monetary compensation over recommendation for prosecution. More troublingly, NHRC has been closing complaints after the investigating authorities have concluded that torture took place. NHRC denies the complainants including Asian Centre for Human Rights access to the replies of the authorities, a fair hearing and arbitrarily closes the complaints.
“It is precisely because of the blatant failure to uphold the principles of natural justice that Delhi High Court registered seven writ petitions of Asian Centre for Human Rights against the NHRC in 2007.” – informed Mr Chakma.
India is in a worrying state of denial about torture. Home Minister of India attributed these 7468 custodial deaths to "illness/natural death, escaping from custody, suicides, attacks by other criminals, riots, due to accidents and during treatment or hospitalization”.
“However, the Home Minister failed to clarify as to why so many accused had committed suicide in police detention, what had led them to act in this manner and how they had accessed the means for committing suicide like knives, poisons and open electric cables etc or how the victims could commit suicide with strange objects like shoe laces, underwear etc”- charged ACHR.
Asian Centre for Human Rights appreciated that India has found the will to enact legal protections against torture of persons belonging to vulnerable groups like women (Domestic Violence Act, 2005), children (Juvenile Justice Act, 2000) and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989).
However, ACHR lamented that India refuses to address torture by the law enforcement personnel. It 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 Indian Evidence Act, 1872 (insertion of Section 114B) to provide that “in case of custodial death the onus of proving of innocence may be fixed on the police”.
“At international level, India’s record on combating torture and cooperating with the UN bodies does not commensurate with its claim as the largest democratic country governed by the rule of law and as an aspiring member of the UN Security Council” – stated Mr Chakma.
India’s position has been indefensible. India holds the dubious distinction of holding the record for refusing an invitation to the United Nations Special Rapporteur on Torture for the longest period of time since 1993. Neighbouring Pakistan (1997), Nepal (September 2005), China (November 2005) and Sri Lanka (2007) have all invited the Special Rapporteur.
India has failed to ratify the Convention Against Torture after signing it in 1997. This is despite the fact that neighbouring Nepal and Sri Lanka have already ratified the CAT.
ACHR warned that “unless government of India addresses human rights violations and brings those responsible to justice, the prospects for counter insurgency success will diminish significantly and the space for ever more violent and extreme Armed Opposition Groups (AOGs) will grow ever greater; AOGs that will continue to commit appalling acts of torture with impunity”.
Among India's burgeoning armed opposition groups, the Naxals or Maoists have an appalling human rights record including killing, torture and mutilation. Their targets include: members of anti-Maoist Salwa Judum militia, alleged police informers, 'class enemies' among the impoverished Adivasis, and the Dalits. The Naxalites have increasingly organised para-state institutions notably Jan Adalats, Peoples Court, to impose torture, mutilation.
Cadres of the Kanglei Yaol Kanna Lup (KYKL) of Manipur have also been responsible for widespread torture including deliberately mutilating the victims by bullet wounds to the legs to create chilling fears.
Asian Centre for Human Rights recommended the government of India to enact legislation to criminalise torture and provide compensation to the victims; repeal all laws promoting impunity; further amend the Human Rights Protection Act of 1993 in particular Section 19 in order to bring the armed forces under the purview of the NHRC; ratify the United Nations Convention Against Torture (CAT) and its Optional Protocol; and extend invitation to the UN Special Rappoprteur on Torture.
ACHR also recommended to the NHRC to recognise torture as a crime distinct from custodial death and provide a separate heading for torture under its Annual Report; create a separate Department of Medical Doctors to examine all post mortem reports submitted to the NHRC in all cases of custodial death; and create a separate Prosecution Department which shall take necessary measures for prosecution of the guilty should facts and evidence establish torture.