Torture In Custody
By ACHR
24 June, 2004
Asian Centre For Human RightsOn 26 June 2004 – as the world speaks up against the unspeakable and for those who have endured the unimaginable on the United Nations International Day in Support of Victims of Torture, the sanction of torture in Guantanamo Bay and Abu Ghraib prisons by the highest authorities of the United States has brought the scourge of torture to the fore. Across the world, the authorities provide covert and overt sanction of torture in the name of security, especially in armed conflict situations or while suppressing political dissents.
Torture is not confined to armed conflict situations. Torture has been a part of administration of justice in India since colonial times. Police use torture to extract confessions, for extortions or just to settle personal disputes. Torture has been variously described - as a cancer, as a sub-culture – in India but each of these allegories is outstripped by the bare evidence. The Annual Reports of the National Human Rights Commission of India are instructive. According to NHRC' Annual Reports, it received complaints of 34 custodial deaths in 1993-94; 635 custodial deaths/custodial rapes in 1994-95, 444 custodial deaths in 1995-96, 888 custodial deaths in 1996-97, 1012 custodial deaths in 1997-98 and 1297 custodial deaths in 1998-99, 1093 custodial death and rape in 1999-2000 and 1305 custodial deaths in 2000-2001. These custodial deaths are in addition to disappearances, illegal detention and other police excesses and violations by armed forces where innocent people, accused or suspects are subjected to torture but not necessarily killed.
Torture in Punjab
The Punjab Police and the para military forces were notoriously famous for torture, executions and disappearances during the insurgency in the State from 1985 to 1995. Torture was rampant and thousands of people have disappeared. Although insurgency virtually ended in 1995, torture remains endemic in Punjab. A few selected case studies during 2003 testify the use of torture in Punjab which does not face any insurgency at present.
On 11 January 2003, Makhan Singh, an alleged narcotics smuggler was produced before the Court in Ludhiana. He could barely walk and broke down before the judge. When he showed the injuries he had suffered due to the police torture, every one was reportedly stunned. The judge ordered an immediate medical examination that confirmed torture. The Station House Officer (SHO) was merely transferred to police lines.
On 11 February 2003, Sanjiv Kumar, Vippan Kumar and Roshan Lal were picked up by Inspector Balkar Singh and two constables of Sadar police station of Chandigarh. They had reportedly protested against some Jalandhar police officials who had allegedly kidnapped two children from outside a marriage palace and tortured one of them to death in the first week of January 2003. They were tied upside down and beaten up with iron rods and sticks till they lost consciousness. Once they regained consciousness, they were subjected to same brutal torture. The victims were admitted in the Government Hospital in Chandigarh in the night of 12 February 2003 in critical conditions. On 13 February 2003, the Punjab and Haryana High Court issued a notice to the State of Punjab on the issue.
On 18 March 2003, a truck driver Bhupinder Singh of Phase I Sas Nagar, Mohali was tortured to death by the police of the Police Station at Phase I. The police took his truck and kept with them for over five days. The police also deflated the tyres of the truck. But when the police realised that Bhupinder Singh had died, they shifted the truck back to the Union’s parking area. The police then claimed that he committed suicide as a result of family problems! The punishment given to SHO, Mr Rajinder Singh Sohal, was mere transfer to Ropar as the In-Charge of the anti-fraud staff.
On 15 April 2003, SHO Bhupinder Singh and constable Ajit Singh of Nangal police station beat up 82 years old, Raja Ram and his 80 years old wife, Parkasho Devi of Bass village. The policemen reportedly came to their house searching for their son Vijay Kumar. The policemen kept trashing them even when the victims stated that Vijay Kumar did not stay with them, as they had disowned him. The policemen also ransacked household goods and took away their gas cylinder, television set and clothes.
On 3 May 2003, Surinder Jindal, a physically challenged person, was allegedly picked up from his house in Phase VII, Sas Nagar. During his illegal confinement in the police station, he was tortured including application of electric shocks, following which he was suffering from muscular dystrophy. Jindal was released on 9 May 2003 following direction from the Punjab and Haryana High Court.
On 7 June 2003, Mukesh of Mauli Jagran was allegedly beaten up by cops at the Mauli Jagran police post, Chandigarh. He was admitted in the Government Medical College and Hospital, Chandigarh and later referred to the Neurosurgery Department at the Post Graduate Institute Chandigarh, where he vomited blood because of the torture.
On 12 July 2003, one Suresh Kumar of Bharatpur Ding of Rajasthan was allegedly arrested with 500 gm of opium by the Lambi police from near by Tarajwala village under Muktsar district of Punjab. He was remanded to a day’s police custody by the court of Judicial Magistrate, Gidderbaha. He died after being subjected to third degree torture at Lambi police station. The Lambi police claimed that the accused died after consuming a poisonous substance. But police had no reply as to how did the victim get the poisonous substance inside the police custody.
On 17 August 2003, Anil Kumar and Uday Kant of Sunder Nagar locality of Ludhiana were arrested by the police of Sunder Nagar Police station on suspicion of a burglary in the locality. They were brutally tortured and admitted in the Civil Hospital, Ludhiana. The medical examination reportedly confirmed that they sustained injuries of torture.
On 25 September 2003, five persons namely Karamjit Kaur, Tirath Kaur, Sahib Singh, Gurdev Singh and Gurmit Singh were rescued from the clutches of Punjab Police by the Warrant Officer of the Punjab and Haryana High Court. The police had reportedly arrested them on suspicion of having involvement in a murder Case. They were allegedly subjected to inhuman treatment by the police for several days in custody. Showing torture marks on her body before scribes in Chandigarh on 26 September 2003, 20-year-old Karamjit Kaur alleged that she was detained at Nabha police station for several days and been tortured. She was ordered to remove her clothes by police constables. Drunken police constables usually interrogated her in the midnight. Even if a woman constable was called most of the time she stayed outside the room during her interrogation. She alleged that she was subjected to inhuman third degree torture twice by pulling her legs apart in 180 degree and also beaten up with an iron rod in between her legs and two policemen putting pressure on that rod.
On 10 November 2003, a 14 year old Dalit boy Sanjeev Kumar Singh was handed over to the Julkan Police Station in Patiala for interrogation in a case of stealing a box of sweets and two suit pieces. He was detained for one day and was inhumanly tortured by the police. He was later admitted at a hospital. The boy’s family claimed that police personnel walked on his body and forcibly parted his legs to inflict injuries.
Torture and Impunity
The government of India legitimises torture by encouraging its use in the administration of justice and by providing impunity to the law enforcement personnel.
Under Section 31 of the Prevention of Terrorism Act (POTA) of 2002, a confession made by a person before a police officer not lower in rank than a Superintendent of Police is admissible as evidence in the trial of such person for an offence. This is a clear violation of Section 25 of the Indian Evidence Act and gives "License to Torture" to extract confessions. Under the Terrorist and Disruptive Activities (Prevention) Act, precursor to the POTA, out of over 76,000 persons detained from 1985 to 1995, less than 1% of the detainees were convicted and out of these 1% convicted, about 80% of the conviction took place on the basis of the confessions made by the accused. In majority of the cases, confessions were extracted after being subjected to torture.
The police and armed forces enjoy virtual impunity under section 197(2) of the Criminal Procedure Code. It states "No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government." Most State governments have adopted similar provisions under Section 197(3) of the CrPC. Section 6 of the Armed Forces Special Powers Act, 1958, which is applicable in most insurgency prone States, also provides that "no prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act." In addition, under Section 19 of the Human Rights Protection Act of 1993, National Human Rights Commission cannot intervene in the allegations of human violations by the armed forces.
It took over two months for the Central Bureau of Investigation of the government of India to obtain sanction from the Gujarat government on 15 June 2004 under Section 197 of Criminal Procedure Code for prosecuting six police officers and two doctors, who were charge sheeted along with 12 others in the Bilkis Yakub mass rape and murder case during the Gujarat carnage of 2002. It is hard to believe that a victim of torture, especially from internal armed conflict situations, can obtain such permissions from the government agencies. Not surprisingly, the Government of India has failed both to ratify the UN Convention Against Torture after its signing in 1997 and extend invitation to the United Nations Special Rapportuer on Torture to visit the country. The government has little seriousness to eradicate torture.