Fatal investigations: statement by AHRC and Nervazhi

The following is a joint statement issued by the Asian Human Rights Commission, Hong Kong, and Nervazhi, a Kerala-based rights organization:

The suicide of police officer, P G Haridath, on 15 March 2012 brings again to the limelight, issues that adversely affect criminal investigations in India. Haridath was an Additional Superintendent of Police working in the Central Bureau of Investigation. It is reported that the deceased officer was investigating the infamous Sampath murder case in Kerala state in which senior police officers are cited as the accused.

It is reported that a suicide note, allegedly obtained from the room in which the officer's body was found, mentions the name of officers stationed at the CBI office in Thiruvanandapuram, that of a former Chief Judicial Magistrate and of a lawyer, as those responsible for the officer's death. Mr. Vijay Sakhare, a senior police officer who is named as the 15th accused in the custodial murder case investigated by the deceased officer, had in the recent past approached the Kerala High Court seeking the court's intervention to remove references to Sakhare in the case, which the court had refused.

It is alleged that Mr. Mohammad Yasin, the Thrissur Police Range Inspector General at the time of Sampath's death is one of the persons responsible for brutally torturing Sampath that resulted in his immediate death. Yasin is the 16th accused in the CBI case. These senior police officers are not even suspended from active service.

The state police had arrested Sampath in connection with Crime 246/2010 from Gounderpalayam at Coimbatore in Tamilnadu state on 28 March 2010. The police brought Sampath to Kerala after the arrest. Sampath was accused of theft and the murder of a woman named Sheela, the wife of a prominent businessperson in Kerala and seriously injuring her mother, Karthiyayini. It is alleged that the police officers brutally tortured Sampath and the other co-accused in the case at a remote riverside cottage in a place called Malampuzha of Palakkad district, in Kerala.

It is suspected that Sampath died due to the injuries he suffered from brutal torture that the police inflicted upon him, allegedly to extract a confession. The post-mortem examination revealed that Sampath had suffered 63 anti-mortem injuries and that death was due to internal bleeding and blunt trauma brain injuries. The police till today have failed to explain how Sampath suffered these injuries.

Logically it is beyond doubt that the police had a role to play in Sampath's death. To what extent, which officer is involved in the murder and for what reason is for an independent agency to investigate and a court to adjudicate. It is reported that deceased Sheela and her husband had close connections with the then state home minister in Kerala, Mr. Kodiyeri Balakrishnan, who had reportedly misused his authority to force the police complete the investigation of the case in haste. It is also alleged that Sheela's husband is also well connected to high-ranking police officers.

Immediately after Sampath's death the state police worked overtime to protect officers allegedly involved in the custodial death. The manipulated records at Palakkad North Police Station where a case under section 174 of the Criminal Procedure Code, 1973 registered as Crime 251/2010 is the result of this. Sampath's younger brother filed a writ petition in the High Court in which the court transferred the case to the CBI for investigation. In more than two occasions courts have questioned why the CBI is unable to arrest the police officers suspected for the murder. It is at this juncture the investigating officer, accusing his colleagues and other officers of illegally interfering with investigation, has chosen to end his life. The accusations by the officer against his own colleagues are serious and must be investigated.

The so-called 'ultimate criminal investigation agency' in the country, the CBI, itself is not immune to political and otherwise corrupt pressure is not a new concern. There are a series of instances where the CBI has been accused of manipulating investigation to fit illegal demands of power centres, including those from political parties. The CBI also houses officers received on transfer from the state police, a factor that cuts the root of independency of this agency.

That apart, the primary question concerning the entire affair is, what is criminal investigation in India? That a suspect tortured by the investigating agency is nothing new. Extraction of confession by use of force is often considered a legitimate investigative procedure in the country. In most cases investigation of a crime begins and ends with a confession. Sampath's case indicates the two prevalent trends in India that in cases involving powerful persons, the police could be easily influenced by local power structures, which puts into action senior police officers that willingly investigate cases to please these power pockets. And, even for them, scientific investigation of crimes is not an option so that they resort to custodial torture.

Bringing a suspect to a remote place for questioning is a practice that the police follow routinely. Such illegal detention houses where suspects are brought, tortured and taken back exists throughout the country. For instance in Kerala, one such place exists in Thiruvanandapuram district - also the state capital - at a place called Neyyatinkara. This was video documented by the media and there was no response from the administration.

Such places exist in other parts of the state, which could be either a rented house in a remote location or a government guesthouse away from the public attention. That such illegal interrogation houses exist in every part of the country is a documented, and shocking reality. Despite the fact that in Kerala, a similar incident - destruction of evidence and subsequent exposure - had brought down the then state administration as early as in 1977, the practice still continues, highlights the reality that criminal investigation is synonymous to torture in India.

Even as of today the country does not have a policy of zero tolerance to custodial torture. Police officers complain that they do not know what criminal investigation is other than extracting confession by force. So much so, the practice of torture is accepted as legitimate police procedure. The appalling nature of criminal trials that lack proper evidence and quality prosecution have led to justifying torture as the only punishment a suspect would get in the entire process.

The judiciary largely condones torture and the general public believes that the police are legally entitled to torture suspects. There has never been an attempt by the government to educate the police and the public that torture is not only illegal, but is in fact a crime against humanity, that has the viral potential to undermine the very concept of justice and thus a democratic state.

Judicial officers are required by law to enquire from the accused produced before them whether the person is subjected to torture. However they openly refuse to comply this requirement and consider asking a detainee such a question unnecessary. This often ends up in denying a victim the first chance to complain about police torture to a judge. Training provided to the subordinate judiciary does not include this.

The higher judiciary does not consider such systemic procedural lacunae as an important issue to be addressed. In fact a substantial number of judges in the higher judiciary, including those at the Supreme Court do not have an understanding how serious torture is and why the peremptory norm of ius cogens applies to torture. The appalling nature of criminal trials that lack proper evidence and quality prosecution has led to justifying torture as the only punishment a suspect would get in the entire process.

Such misconceptions regarding criminal investigation negate the very notion of criminal justice in the country. That majority police officers resort to torture demoralises those upright officers who would not want to break the law. When torture is condoned, and police records subjected to manipulations, the very concept of fair trial is undermined.

The negation of fair trial guarantees is not an exception, but a character of the Indian criminal justice system. In such an environment it is farcical to argue that the criminal justice apparatus in the country requires 'correction'. The fact is that there is nothing called justice in the entire process. To bring change into this, what is required is a complete overhaul of the system.

That a police officer has committed suicide due to this fallen system is a tragedy. That the country has lost an officer in whom the people have invested resources is a waste and shame. That an officer did not have means to ventilate his concerns and seek support shows not only how anarchic are conditions within the law enforcement agencies in the country, but also illuminates the alarming fact that the apparatus of criminal investigation is not geared to investigate crime, and help unearth the truth, but is better equipped to cover it up. What is shocking is the banality of it.

Encounter killing and custodial torture a disgrace for the nation, says AHRC

The following is a statement issued by the Asian Human Rights Commission, Hong Kong:

India will celebrate its 62nd year of independence tomorrow. While politicians and national leaders celebrate the Independence Day, delivering speeches and attending dinners, they will have to struggle to explain why often men and women in the country lose their life each year in encounters with the law enforcement agencies. The policy makers of the largest democracy of the world will also find it difficult to explain why the people's confidence about their law enforcement agencies is at an all time low.

This argument is highlighted in an incident that happened in Imphal, the capital of Manipur state on 23 July. On that day, two persons were shot dead by the Manipur Police Commando Unit in Imphal in broad daylight. Of the two persons killed, one was a woman, seven-months pregnant, who was shot in front of her three-year-old son. Five more persons were injured, four of them seriously, when the police indiscriminately fired at the crowd, with total disregard to the safety and life of the civilians they are bound to protect.

The shame of Manipur was brought to an all time high when the Chief Minister of the state, shamelessly readout in the Manipur State Assembly, a statement prepared by his police chief. The Chief Minister said that "there is no other way to deal with terrorists other than killing them", to establish peace in the state.

The statement of the Chief Minister vouch for the fact that after 62 years of independent existence, Indians are engaged in murdering themselves for a multitude of reasons, including that of safety and security. The number of people losing their life to law enforcement agencies each year in the country is higher than the statistics during the British rule. In the past eight months alone an estimated 463 persons have lost their life to state agencies in 'encounter killings'.

The sentiment expressed by the Chief Minister of Manipur after the July 23 incident echo the 'official' position regarding dealing with crime and maintaining law and order throughout the country. Murder with impunity has become so common that it is no more of 'news value' to the media. In fact the country's media have even started using terms like 'encounter specialist' for murderer police officers, in an attempt to glorify their misdeeds.

Each case of encounter killing is a further dent to democracy and the rule of law. The existing legal framework, as envisaged in the Constitution, does not allow encounter killings. Such a concept cannot coexist with constitutionalism, the rule of law and the principles of democracy.

Every case of murder at the hands of the law enforcement agencies is an act of crime committed by the state and a negation of the principles of natural justice. Encounter killing or in whatever euphemist way such murders are referred to, is a denial of justice to a suspect. It is a violation of the fundamental right to be presumed innocent and until tried by an impartial court. Encounter killing is a denial of the fundamental right to life.

Often such murders leave a traumatised family who would never have an opportunity to prove the guilt of a murderer police officer and the innocence of the deceased. The murder encourages violence and creates psychopaths within the law enforcement agencies. Yet, state and central governments in the country encourages their law enforcement agencies to commit murder with statutory impunity. The Armed Forces (Special Powers) Act, 1958 is one such law.

Encounter killing is the cancer that has grown into the organisational psyche of the law enforcement agencies. It is the product of the long practice of custodial torture, as cancer is to smoking.

Custodial torture is viewed as the only tool for law enforcement in the country. Like in the case of murder, torture too is a crime committed by the law enforcement agencies. Yet, police officers of all ranks and the politicians justify torture as an essential tool for law enforcement in India. These arguments date back to the period of Spanish inquisition and have no place in a democracy. On those terms, the 2009 India is administered by mindsets that predate independence.

Neither murder nor the practice of torture has been attempted to be prevented in India. Instead, the governments so far have denied the existence of these state sponsored evil and further promoted it, both openly and clandestinely.

Absoluteness of arbitrary authority, to kill or torture persons with impunity, has been retained and preserved with the law enforcement agencies, so that politicians and bureaucrats could continue using the law enforcement agencies to silence the populace. The resistance to root-out this cancer need no further reference other than the proposed legislation against torture. The draft bill could be viewed here.

The practice of torture and the alarming number of extrajudicial executions remain the central deficit affecting the rule of law and democracy in India. Each day ahead, failing to address this cancer that has isolated the populace from the government will, in the coming years, result in a complete failure of law and order in the country.

August 15 must be an occasion for the government and the civil society to revisit the promises the founding fathers of the nation have resolved to realise 62 years before. Failing to do so will not only push the nation into chaos, but will also water the seeds of disintegration of a country that has paid a heavy price for its freedom six decades ago.


About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Custodial torture by law-enforcing agencies in India

N.M. SALIH
Countercurrents.org

Former United States Attorney General Ramsey Clark once said, ‘A right is not what someone gives you; it’s what no one can take from you’. But here things turn different, ‘right is not something what we can give you; it will be taken from you’, so is the state of affairs when it comes to the torture in police custody in India. In the wake June 26, which marked the International Day against Torture, the Asian Centre for Human Rights (ACHR) released a report named ‘Torture in India 2009’, compiling the true facts of ill-treated human rights in India. This report has zeroed in on custodial tortures especially by the police, armed forces and armed opposition groups etc. It reveals several accounts of atrocities by the so-called law enforcement officers from all over India. The panoptic narrative of deaths in the police custody with detailed state wise account of such incidents rules the roost in this report.

This is based on a nationwide campaign against torture and the study of a plethora of cases of last eight years. From April 2001 to March 2009 an estimated 1,184 persons were killed in police custody in India. Overwhelmingly, most of the victims were killed as a result of torture within the first 48 hours after being taken into custody, so rampant are the police in handling the people in custody. Torture in police custody is a pervasive problem that predates this report. The State and the police remain in worrying denial. The annual reports, Crime in India, of the National Crime Records Bureau of the Ministry of Home Affairs that report very few deaths in police custody reflect this disturbing denial.

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. National Crime Records Bureau’s statistics says that over 31 persons died by committing suicide in police custody in 2007, 24 persons in 2006 and 30 persons in 2005. This report highlights that the National Human right commission has failed to effectively address torture and other human rights violation. According to a statement by Suhas Chakma, Director of ACHR, these deaths in custody do not however represent the actual number of deaths in police custody in India. A number of cases of custodial death taken up by ACHR with the National Human Rights Commission show that the NHRC was not informed by the police about these custodial deaths, while the NHRC has expressed its anguish against the failure to report these cases of custodial deaths but the NHRC's guidelines on reporting custodial deaths within 24 hours continue to be flouted. According to a senior lawyer, India has the highest number of cases of police torture and custodial deaths among the world's democracies and the weakest legislation against torture. Unfortunately, in the country, torture is seen as routine police behaviour to extract confessions.

The case of 22 years old Md Qudus Ali from Urup, Imphal East district of Mnipur is a strange one. On 7 February 2008, he was allegedly tortured to death in the custody of state police commandos at Thambalkhong in Imphal East district. The victim was allegedly picked up from the premises of the Office of the District Commissioner, Imphal East where he had gone in connection with his electoral photo identity card. The police, however, claimed that the victim was a “militant” and that he was killed in an encounter. A large number of reported cases of torture and custodial death are a result of attempts to extract a confession relating to theft or other petty offences. This implies that suspects belonging to the lower economic and social strata are particularly vulnerable. The police routinely cite “suicide” as a cause of death in custody. In a reply to the Rajya Sabha on 12 March 2008, then Home Minister of India, Shivraj Patil cited suicide as one of the primary causes of custodial death. But 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 like knives, poisons and open electric cables etc as they are in custody.

Suicide does of course occur. However, examination of number cases by ACHR suggests that the causes of deaths are often a cause for concern. There are frequent allegations by the families of the victims of torture; torture that either impacted the victims actions or resulted in a death that was subsequently covered up. The explanations of the police are also often inadequate. The police regularly claim that people have committed suicide by using handkerchiefs or by consuming poison while in police custody. This seems fabricated when they repeat the same for many cases. The question of the access of the means to suicide still remains unanswered.

Further, deaths in the custody of the armed forces and the Indian Army under the control of the Central government are not reported to the NHRC as it does not have jurisdiction to investigate violations committed by the armed forces. ACHR itself has filed 50 complaints of extrajudicial killings from 2003 to 2009 from Manipur alone. Many of these alleged extrajudicial killings were indeed deaths in the custody of the Manipur Police Commandos but since the Manipur Police Commandos claim to be conducting operations jointly with the central armed forces, the deaths in the custody of the Manipur Police Commandos are not reported to the NHRC.

The disturbing finding of the report points the finger at the Government as India has not ratified the Unite Nations Convention Against Torture, although it has been a signatory since October 1997. Ratification is necessary for appropriate changes to be made in the prevailing laws, and to enable institutions and executing authorities in India to be committed and accountable to address the practice of torture. Fighting torture has been a long standing campaign of many human rights organizations in India, – be it in the case of Jammu and Kashmir, the North East, Gujarat or as recently in the case from Nandigram and Singur. But the thousands of such victims who were forcefully removed from their villages and pulled to camps still suffer for no cause. In fact these blameworthy and reproachful facts marked a blot on the world’s largest democracy.

N.M. Salih is a Delhi based journalist working with The Milli Gazette, a fortnightly English newspaper. He can be contacted at nmsalih@gmail.com