Victim of the system

Print edition : December 05, 2008

Witnesses at the National Peoples Tribunal on Torture in New Delhi on October 17.-PICTURES: SHIV KUMAR PUSHPAKAR

A national project seeks to raise awareness on torture and ultimately influence policies relating to the misuse of official power.

ARUN KUMAR, 20, simply hugged his father, Thankachen, who was in tears while describing his sons ordeal. He could not speak a word, not because he was choked with emotion, but because he was on an artificial ventilator system with which he moved around. Arun lost his power of speech after he consumed poison in desperation at the harassment, illegal detentions and torture by the police since February. Now he cannot even stand properly; the torture has damaged his spinal cord.

Thankachen told a 14-member jury at the National Peoples Tribunal on Torture in New Delhi on October 17: I am only a taxi driver and have spent more than Rs.9 lakh for my sons treatment. I could get him out on a conditional bail three days after he was arrested only by selling off my wifes gold chain.

Thankachen said the police torture began after the owner of the driving school, where Arun was employed, accused him of having an illicit relationship with his wife. The police now say they have a theft case registered against him. Affidavits filed in the District Magistrates court and the State Human Rights Commission (SHRC) about the torture have not yielded results.

Magudeeswaran of Chinnakaratupatti village in Tamil Nadus Dindigul district lived a normal life before July 7, 2007, when he bought himself a second-hand motorbike. He trusted the person who sold him the motorbike when he promised to give him the vehicles papers sometime later. The next day, the police picked him up saying that he had stolen the vehicle. Accusing Magudeeswaran of theft and pickpocketing, a sub-inspector allegedly asked him for a bribe of Rs.500. He refused to give the money. Subsequently, the police arrested his cousin Siva, too.

Magudeeswaran said his mother complained about this to the Deputy Superintendent of Police, but the officials who came to inquire about the incident apparently asked him to sign on a sheet of paper stating that the police officer had not asked for a bribe. He said threats from the local police allegedly increased after that and he was asked to sign a statement saying that he had taken back all the charges against the police.

When I refused, they hung me upside down for an hour, punched and caned me for hours with my feet apart, he said weeping. What was worse, Magudeeswaran alleged, medical officers at the government hospital where he was treated refused to give him his medical reports, with which he hoped to make his case strong. With deformed legs and a few skull injuries still to be treated properly, he was out on conditional bail when he appeared before the tribunal.

Ram Chander is a compounder in a dispensary at Gohpur village in Varanasi, Uttar Pradesh. On December 16 last year, the police picked up Ram Chander and two others on a charge of murdering a fellow compounder, Dharmendra. According to Ram Chander, Dharmendra died when a few people attacked the dispensary. He said he and two others were beaten up in the police lock-up until they became unconscious. The police wanted a confessional statement from them.

HENRI TIPHAGNE, EXECUTIVE director of People's Watch.-

The beating continued throughout the night. My genitals were tied to an iron pillar with a string, which led to profuse bleeding. I was then tied to a pillar and beaten on my buttocks, he told the tribunal. He was then taken to the village chowk, stripped in front of the villagers and hit on the genitals, he said. Complaints have been sent to the Senior Superintendent of Police, the National Human Rights Commission (NHRC), the Uttar Pradesh Home Secretary and the SHRC, but the alleged perpetrators are yet to be arrested.

The police have many excuses such as the ticking bomb theory to justify their behaviour. But the case of Kurva Madanna of Mahbubnagar, Andhra Pradesh, defies even that logic. On October 5, 2007, the police beat up the farmer and his son following a dispute over water between Madanna and his brother.

Such a dispute constitutes a civil case. Despite complaints to the higher authorities, no action was taken against the assistant sub-inspector or against Madannas brother at whose behest the police allegedly tortured them.

Instead, Madanna continued to get threats from the police. The torture damaged his legs permanently.

The NHRC has sent a notice to the districts Superintendent of Police asking for his response in the case.

To think of these cases as mere exceptions would be grossly misleading. The National Project on Preventing Torture in India (NPPT), supported by the European Union and the Friedrich Naumann-Stiftung fur die Freiheit (Friedrich Naumann Foundation), has studied more than 6,000 such cases. It seeks to raise awareness on torture and ultimately influence policies relating to the misuse of official power, and has been operating in 47 districts across nine States in India Andhra Pradesh, Bihar, Karnataka, Kerala, Orissa, Rajasthan, Tamil Nadu, Uttar Pradesh and West Bengal.

The national tribunal, which heard 17 such victims of torture, was organised by Peoples Watch, a human rights organisation based in Madurai, and followed a series of State-level tribunals held from April to August. A report of the tribunal, with the observations of the jury, will be sent to the NHRC, the Union Home Ministry and the State governments concerned.

Henri Tiphagne, the executive director of Peoples Watch and the national director of the project, said that in India, torture was entrenched and was often a routine law-enforcement strategy. In the name of investigating crimes, extracting confessions and punishing perpetrators, torture is inflicted not only upon the accused, but also upon bona fide petitioners, complainants and informants. Torture in the form of custodial death; custodial rape; threats; psychological humiliation; and deprivation of food, water, sleep and medical attention is rampant in our country, he said.

Call it coincidence or systematic victimisation, it has been proved once again that the equations of power both legal and sociological act against the marginalised sections of society. During fact-finding surveys, project officials found that more than 60 per cent of the victims of torture either belonged to religious minorities or were Dalits. An extrapolation of the NPPT data suggests that 1.8 million people in India fall victim to police torture every year.

Meanwhile, India boasts of a staggering 125 statutorily created human rights institutions. But, as seen in the 17 cases heard by the tribunal, even apex institutions meant to protect human rights and redress grievances sometimes fail to respond promptly.

The question that often comes to mind at this stage is how the Indian state looks at torture as a method of investigation. Justice Shivraj Patil, chairperson of the tribunal and a former acting chair of the NHRC, made a definitive statement that torture was completely illegal. Validating this, Sankar Sen, former Director-General (Investigation) in the NHRC and a jury member, said that Article 21 of the Constitution, which granted the citizen protection of life and personal liberty, as interpreted by the Supreme Court, immunised one against torture.

Usha Ramanathan, another jury member and an independent law researcher, pointed out that the Indian Penal Code did not define torture except for a small reference in Section 330. Two precedents in court D.K. Basu vs the State of West Bengal (1996), which is generally seen as a watershed case, and Sube Singh vs the State of Haryana and others in 2006 discuss the matter of compensation for the victims but do not discuss punishment for the perpetrators.

All the jury members agreed that the tradition of officials of the state acting with impunity should not be allowed to continue. It was decided to draft a recommendation report for the promulgation of a domestic law that both defines and condemns torture as a crime. With this, the jury also recommended that India should fill its legal void against torture by ratifying the United Nations Convention Against Torture, which it signed in 1997.

THE JURY AT the tribunal. The jury suggested more accountability from state officials, a protective mechanism for victims and witnesses, and rehabilitation of victims.-

Along with these demands, the jury suggested more accountability from state officials, a protective mechanism for victims and witnesses, and rehabilitation of victims.

K.R. Venugopal, former special rapporteur of the NHRC, recommended that the membership of bodies overseeing human rights should be increased and activists from civil society organisations should be allowed into them. More openness of the statutory bodies is the need of the hour.

However, there were also some differences among the jury members regarding the efficiency of statutory bodies concerned with human rights in India. While those who had worked with the NHRC earlier defended its actions in many cases, critics suggested that mere laws and bodies would not solve the problem of torture if the procedures to follow up torture cases did not change.

For instance, some jury members highlighted the fact that the SHRC and the NHRC referred the affidavits filed by torture victims back to the district and village officials, sometimes even to those who have been accused by a victim of having tortured him/her. Usha Ramanathan said that though policemen are tried for custodial deaths, the torture that went into such deaths was ignored by the courts. She argued that the charge of torture should also be filed separately along with murder charge in such cases.

The cases heard in the tribunal, perhaps, reflect a scenario that would emerge with the state machinery fighting to bring in draconian laws. Indira Jaising, member of the United Nations Committee on the Elimination of all forms of Discrimination Against Women (CEDAW), aptly said that the issue of torture could be dealt with only politically.

No one has forgotten the rape case of 1974 [following which the Evidence Act was amended]. Today, it is not just the poor people in India but the human rights defenders who have been under attack of torture. Instances in Kashmir, Manipur and Chhattisgarh have proved it all over again. A vigilant media and an aware civil society should take it upon themselves to highlight such kind of injustices, she said.

The 1974 case relates to that of a 16-year-old tribal girl who had gone to the police to file a complaint regarding her missing husband. She was allegedly raped by two policemen in the compound of the Desai Ganj Police Station in Chandrapur district of Maharashtra. Acquitting the accused, the sessions court held that because the girl was habituated to sexual intercourse her consent was voluntary. (The court arrived at this conclusion perhaps because she had premarital sexual relations with the boy she had eloped with.)

The Nagpur Bench of the Bombay High Court set aside the judgment, saying that passive submission due to fear induced by serious threats could not be construed as consent. However, the Supreme Court held that the girl had raised no alarm and that there were no visible marks of injury on her person thereby suggesting no struggle and therefore no rape, and acquitted the accused. The case sparked off a whole new movement for reform in the Evidence Act.

If torture, even in the most minor form, is allowed, it will violate democratic principles and eventually lead to the worst forms of state violence, said the jury members. In such circumstances, Godless Justice, the title of the documentary film on torture by Sunita Thakur which was screened at the tribunal, might just otherwise become perpetual.

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