Immunity, Floating Of Norms Encourages High Rate of HR
Abuse In Jammu And KashmirBy Syed Junaid Hashmi
26 June, 2007
Countercurrents.orgIn a state where impunity rules the roost, procedural safeguards designed to prevent torture and other mistreatment of persons in custody are allegedly being routinely floated by security forces. Those arrested merely on suspicious grounds are allegedly tortured, humiliated and abused.
Annual report of an international human rights organization Human Rights Watch maintains that the law requires that everyone taken into custody must be produced before a magistrate within twenty-four hours. It adds that this rule is usually ignored. The report further says that Sections 330 and 331 of the Indian Penal Code (IPC) forbids causing of "hurt" or "grievous hurt" to extract a confession.
It says that law prescribes prison terms and fines for officers found guilty of torture. The report stresses that the Criminal Procedure Code also has clauses to protect detainees from torture. According to Criminal Procedure Code (CrPC), Section 54 provides the right to a medical examination, Section 162 bars the use of written confessions at trial, Section 164 requires a magistrate to ensure that a confession is voluntary, and Section 176 requires a magisterial inquiry into any death in custody.
Interestingly, Supreme Court of India has stated resolutely that Article 21 of the Indian Constitution protects individuals from any form of torture or cruel, inhuman, or degrading treatment. The report says that all these norms are routinely ignored. Being signatory to several major international human rights treaties that prohibit torture, including the International Covenant on Civil and Political Rights (ICCPR), onus lies on the state to ensure that rule of law is respected.
Various Human rights organizations which include Amnesty International (AI) and Human Rights Watch (HRW) have also long complained that Indian law and jurisprudence does not have an express definition of torture. These organizations have repeatedly asked the central and state government to strengthen and enforce laws and policies that protect detainees from torture and other mistreatment.
They have also recommended strict implementation of requirements that all detainees be brought before a magistrate or other judicial authority empowered to review the legality of an arrest within twenty-four hours. HRW in its report has gone to the extent of assaying that a centralized register of detainees, accessible to lawyers and family members, should be established.
The report has further asked the central government to establish a civilian review board to oversee the detention of surrendered militants. It says that the review board should ensure that alleged militants are not arbitrarily detained, tortured or otherwise mistreated, or compelled to serve in the state security forces, including paramilitary forces.
Repots further indicate that not only suspects are tortured; relatives of militants are also taken into custody and tortured, either to discover the whereabouts of a suspect, or as a way of forcing the militant to surrender. According to the report of Human Rights Watch (HRW) One man, the brother of a militant told Human Rights Watch that he was beaten and given electric shocks in custody so that his brother would be forced to surrender.
The report adds that the torture finally stopped when his brother was killed in an armed encounter in 1998. Reports maintain that in various militancy infested areas across the state, individuals are stopped for routine interrogation by security forces without taking into account whether he is a suspect or not and are usually subjected to rude and intimidating questioning.
Additionally there is such a strong international consensus on the prohibition against torture that it is considered to be binding customary international law on all states, including those that have not ratified the Convention against Torture.
Those tortured when asked if they are willing to lodge police complaints and pursue a legal battle to secure justice in the case of torture or death of a loved one, their response is "No." They say that they fear further harassment. Human Rights activists say that a conviction has gone deep into the soles of the people in Jammu and Kashmir that government will protect its security forces anyhow.
A senior Supreme Court lawyer on the condition of anonymity said that torture at the hands of security forces is worst form of human rights abuse. "I have seen innocent people coming to me with bruised bodies, broken bones and crippled ribs coming to me and narrating horrifying tales of torture and inhuman treatment," said the lawyer. He added that he has been witness to the judgments where those tortured badly have turned out to be innocents.
"I admit that it is the draconian laws like AFSPA, PSA and Enemy Agents Ordinance (EAO) which are applicable to the state which have increased the immunity of the security forces," added the senior Supreme Court lawyer. He stressed that torture is routine in the interrogations of alleged militants and their sympathizers yet it is not reported.
"Once a person is arrested and thereafter interrogated, if he proves to be an innocent and is released, he does not really complain about the torture nor would he appear before any commission or human rights organization because for him and his relatives, coming alive out of the interrogation is the highest form of justice he can expect in this atmosphere of impunity," added the lawyer.
When contacted, a senior police officer said that torture is a term coined by so-called human rights activists. "Has ever a suspect or an accused accepted whatever charges are labeled against him? A criminal after committing a crime never accepts that he has committed it, similarly suspects of militancy do no speak out until compelled to do so, we have to extract information which is vital and important," said the police officer.
He maintained that militants and suspects are not expected to share information over a cup of tea. "For hardcore militants, tough hands have to be used, otherwise they would never speak out," added the senior police officer.
Writer is a journalist presently associated with Jammu and Kashmir's highly reputed and largest circulated newspaper "The Kashmir Times". He can be reached at [email protected]
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