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.
[Ends]