| TORTURE IN INDIA 2009 Asian Centre for Human Rights, 2009. This report is being published as a part of ACHR's "National Campaign for Prevention of Torture in India" - a project funded by the European Commission under the European Initiative for Human Rights and Democracy (EIDHR) – the European Union's programme that Focus of 2009: Torture and deaths in police custody and failure of the DK Basu judgment Torture in police custody is rampant in India. It is a pervasive problem that predates this report. The State and the police remain in worrying denial. The annual reports, Home Affairs that report very few deaths in police custody reflect this disturbing denial. The evidence presented in this report is under consideration of various courts and the National Human Rights Commission (NHRC). The evidence underlines that torture by the police is rather a serious problem in India. National Human Rights Commission Guidelines In recognition of the scale of the problem of use of torture, on 14 December 1993, the National Human Rights Commission (NHRC) issued guidelines directing all District Magistrates and Superintendents of Police in every district to report to the Secretary General of the NHRC about custodial deaths/rapes within 24 hours. The NHRC warned that: "Failure to report promptly would give rise to presumption that there was an attempt to suppress the incident". Supreme Court Ruling in Moreover in a landmark judgment in 1996 in the case of Bengal, while making arrests with the aim to eliminate violations of human rights in police custody. The principles laid down by the Supreme Court are given hereunder: "1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register; 2. That the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest; 3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to 1. S ee various annual reports, TORTURE IN INDIA 2009 2 ACHR have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee; 4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest; 5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained; 6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is; 7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The 'Inspection Memo' must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee; 8. The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well; 9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record; 10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation; and 11. A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board." Death in police custody statistics The preventative actions of the Supreme Court and the NHRC have not ended deaths in police custody due to torture. TORTURE IN INDIA 2009 ACHR 3 From 1 April 2001 to 31 March 2009, the deaths of 1,184 persons in police custody were reported to the NHRC. An overwhelming number of these deaths had taken place as a result of torture. Most of these deaths took place within 48 hours of the victims being taken into custody by the police. During this period (1 April 2001 to 31 March 2009), the highest number of custodial deaths was reported in Maharashtra (192 cases) followed by Uttar Pradesh (128), Gujarat (113), Andhra Pradesh (85), West Bengal (83), Tamil Nadu (76), Assam (74), Karnataka (55), Punjab (41), Madhya Pradesh (38), Bihar and Rajasthan (32 each), Haryana (31), Kerala (30), Jharkhand (29), Delhi (25), Orissa (24), Chhattisgarh (23), Uttarakhand and Meghalaya (16 each), Arunachal Pradesh (11), Jammu and Kashmir and Tripura (9 each), Puducherry and Chandigarh (3 each), Himachal Pradesh (2) while Manipur, Goa, Sikkim, and Dadra & Nagar Haveli recorded one case each. The above figures do not represent the actual number of deaths in police custody in India. A number of cases of custodial death taken up by Asian Centre for Human Rights (ACHR) with the NHRC show that the NHRC was not informed by the police about these custodial deaths by the police. Some of these cases include custodial deaths of Tsering Tondup of Leh in Jammu and Kashmir (NHRC File No. 27/9/9/07-08-AD); Boya Venkatanna of Andhra Pradesh (NHRC No. 6/1/2003- 2004-AD); Harilal Yadav of Uttar Pradesh (NHRC No. 704/24/2003-2004-CD); Jarupula Srinu of Andhra Pradesh (NHRC No. 60/1/2005-2006- AD-SCN); and Dwipen Bayan of Assam (NHRC No.133/3/2004-2005-AD). The NHRC has expressed its anguish against the failure to report these cases of custodial death to the NHRC but the NHRC's guidelines continue to be flouted. The above cases of deaths in police custody also do not include deaths in the custody of the armed forces and the Indian Army under the control of the Central government. The NHRC directions for reporting incidents of custodial deaths were issued to the police only as the NHRC does not have jurisdiction to investigate violations committed by the armed forces under Section 19 of the Human Rights Protection Act, 1993. However, there have been regular reports of deaths in the custody of the armed forces and the Indian Army. Asian Centre for Human Rights itself has filed 50 complaints of extrajudicial killings with the NHRC from 2003 to 2009. Many of these alleged extrajudicial killings were indeed deaths in the custody of the Manipur Commandos under the Manipur Police. Since the Manipur Commandos claim to be conducting operations jointly with the central armed forces, the deaths in the custody of the Manipur Commandos are not reported to the NHRC. Not surprisingly, the NHRC has recorded only one custodial death case in the last eight years from Manipur. Nonetheless, the high incidence of deaths in police custody also expose that the guidelines of the DK Basu Judgment do not appear to be working. Further, one of the key failures of the DK Basu guidelines is that its compliance is confined only to cases of arrests made under Sections 41 ( TORTURE IN INDIA 2009 4 ACHR arrest without warrant) and 74 ( of Criminal Procedure, 1973 (as amended up to date). The DK Basu Guidelines effectively come to play only during and from the time of arrest. In India numerous suspects are detained daily on summons as provided under Section 175 (Power to summon persons) or without a formal summon by sending a message to the person to appear before a police officer. The latter is illegal but nonetheless a regular practice. Interrogations conducted by the police under these circumstances are not arrests, in the legal sense, and therefore, do not require compliance with the D K Basu guidelines. These provide legal loopholes for abuse as is highlighted in the cases stated below. A number of persons who are summoned or detained illegally are subjected to torture and killed in police custody. Asian Centre for Human Rights highlights the following cases of custodial deaths in which the victims died after being taken into custody without being formally arrested. The victims were summoned by the police or held in illegal detention. |
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