India hurt by torture claims

By Neeta Lal

DELHI - A recently released report titled "Torture in India 2008: A State of Denial" - the first-ever nationwide assessment on the use of torture in the world's largest democracy - by the Hong Kong-based Asian Center for Human Rights (ACHR) contains disconcerting facts about the blatant and widespread use of the practice by Indian authorities in prisons and police custody.

The ACHR report found that 7,468 persons, or an average of 1,494 persons per year (four persons daily), have died or been killed in Indian prisons and police custody during the period 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' paramilitary

forces in insurgency-ravaged areas, according to the report. Worse, a large number of these deaths are allegedly triggered by torture.

"Hundreds are killed, dozens are paid compensation but only three to four persons are convicted each year," stated Suhas Chakma, director of ACHR. He said that only four Indian police personnel were convicted in 2004, and three in 2005, for custodial deaths despite a whopping 7,468 in-custody fatalities occurring between 2002 and 2007.

ACHR stated that unless India addresses human rights violations and brings suspects to court, the prospects for counter-insurgency success will plummet and the scope for more violent and extreme Armed Opposition Groups (AOGs) will expand. Existing conditions are facilitating those who commit appalling acts of torture with impunity.

India, it seems, is in a worrying state of denial about torture. The Indian Home minister attributed the custodial deaths to "illness/natural death, escaping from custody, suicides, attacks by other criminals, riots, due to accidents and during treatment or hospitalization".

It is an open secret, however, that among India's burgeoning armed opposition groups, the Naxals or Maoists have an appalling human-rights record of killing, torturing and mutilating ordinary citizens. Cadres of the Kanglei Yaol Kanna Lup (KYKL) of Manipur have also been accused of widespread torture including deliberately mutilating victims with bullet wounds to the legs.

The ACHR recommends that the Indian government enact legislation to criminalize torture, provide compensation to the victims and repeal all laws promoting impunity. It also recommends that India amend the Human Rights Protection Act of 1993, in particular Section 19, in order to bring the armed forces under the purview of the National Human Rights Commission (NHRC); ratify the United Nations Convention Against Torture (CAT) and its Optional Protocol and extend invitation to the UN Special Rapporteur on Torture.

While the ACHR appreciates that India has enacted legal protections to protect vulnerable groups such as women (Domestic Violence Act, 2005), children (Juvenile Justice Act, 2000) and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989), it feels the country needs to further implement stronger legislation to prevent torture from being inflicted on citizens.

For example, India has not addressed the issue of torture by its law enforcement personnel. It has also 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 the Indian Evidence Act of 1872. The Act provides that "in case of custodial death, the onus of proving of innocence may be fixed on the police".

India also has the dubious distinction of the longest record of refusing an invitation to the United Nations Special Rapporteur on Torture as it has done since 1993. Pakistan (1997), Nepal (September 2005), China (November 2005) and Sri Lanka (2007) have all invited the Special Rapporteur.

In addition, India has also failed to ratify the Convention Against Torture, despite signing the document in 1997. To this end, ACHR recommends that NHRC recognize torture as a crime distinct from custodial death and provide a separate heading for torture under its annual report. It also recommends that a separate Department of Medical Doctors be created to examine all post-mortem reports submitted to the NHRC in cases of custodial death. A distinct department for prosecution, verifying facts and establishing evidence against torture, should also be forged.

Before ACHR highlighted the widespread use of custodial torture in India, many human-rights organizations, including the South Asia Human Rights Documentation Center, had also highlighted the issue. "India has the highest number of cases of police torture and custodial deaths among the world's democracies and the weakest legislation against torture," said Raj Khaneja, a senior lawyer. "Unfortunately, in India, torture is seen as routine police behavior to extract confessions."

According to Khaneja, this practice has its provenance in British colonial rule when laws governing police functions were framed as an oppressive force to keep the population terrorized.

Some senior police officers have justified the use of torture as a means of extracting confessions. A retired police official said, on the condition of anonymity, "The police in India are under tremendous pressure as people need quick results. Also, the proliferation of numerous 24/7 news channels has put us under immense scrutiny. So to hasten proceedings we have to pick up and interrogate a lot of people and sometimes things do get out of control." More succinctly, he said, "confessions have to extracted with strictness to keep alive the fear of the police in people's hearts."

A few years ago, in a written ruling in a case of police misconduct, even the Indian Supreme Court had criticized the use of torture by the police. "The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system," the court said. "The cry for justice becomes louder and warrants immediate remedial measure."

What is also disquieting is that the severity of the torture problem in India is far worse than statistics suggest. This is because victims rarely report cases against the police due to fear of reprisals. "More than half the cases of custodial torture aren't even reported," said Ashok Bajaj, a human rights activist. "I've often encountered cases where custodial torture has triggered hearing/speech loss, permanent disability, loss of limb or psychological trauma amongst individuals. But the families are still not keen to report matters."

In such cases, even if matters are reported to the National Human Rights Commission (NHRC), led by a retired Supreme Court justice, experts reiterate that the outfit is too dependent on the government to enforce power. What hampers the judiciary's role further is India's lack of specific legislation against torture, immunities offered to law enforcement personnel under the Criminal Procedure Code and national security laws.

A group of human-rights activists and lawyers who met in Kerala (south India) a few years ago to discuss torture in India, emphasized the need to launch a separate campaign for the ratification of the Convention against Torture. According to the group, the emergence of a slew of legislation - like the Prevention of Terrorism Act, Terrorism and Destructive Activities Act (Prevention) and Essential Services Maintenance Act - indirectly end up justifying or legalizing torture and enabling the police to resort freely to such measures.

The group, in a joint declaration, also underscored police misconduct by highlighting the use of crude language at police stations. "Torture has also been practiced on women and girls in the form of custodial rape, molestation and other forms of sexual harassment. The police deliberately delay the submitting of First Information Reports (FIR) and unnecessarily harass and torture such persons for no reason," stated the group.

Indian legal experts have long underscored the glaring lack of an impartial mechanism for receiving complaints against torture. Complaints, according to the current law, must be made to the police authorities themselves.

Also, the Convention against Torture requires impartial investigations, and in India many believe the police force is not independent. Even the National and State Human Rights Commissions, and other national institutions of India, have neither the power nor the provisions to deal with torture effectively.

The National Commission for Police Reforms had earlier recommended that police in India should be made independent. The NHRC itself has gone to the Supreme Court with a plea that the recommendations of the National Police Commission be implemented. But, a lack of political will on such matters has doomed all such efforts.

To compound matters further, the law against torture in India is also skewed against international understanding and social jurisprudence. The prosecution system in India only militates against the rights of victims of human rights violations. The prosecutors act in many ways to protect the perpetrators.

As India has not ratified the Convention against Torture, its citizens cannot seek justice through international law. Nor can India's torture cases cannot come under international scrutiny because access to the UN Committee against Torture, and other mechanisms, are effectively denied to Indians. Since India has also not signed the Optional Protocol to the International Covenant on Civil and Political Rights, its citizens also can't exercise the right to make individual complaints to the UN Human Rights Committee.