INDIA: Five youth illegally detained and tortured for more than 10 hours in Kerala

Dear Friends,

The AHRC has received information from its partner organization Nervazhi that five youngsters have been tortured and harassed at a police station in Kerala. They were riding their motorbikes when the Anthikkad police stopped them. The police proceeded to harass and torture them for 10 hours. They were questioned about whether they had smoked ‘ganja’ and asked to provide the name of their supplier. They have been released on bail, but no proper and scientific investigation has been carried out. 

CASE NARRATIVE:

In the early hours of 17 February 2016, an Anthikkad police vehicle stopped five young men who were travelling on two motorbikes. The youth comprised four students – Yadu (20), Abhilash (19), Rahul (19), and Jyothi (23) – and their friend, an electrician, Srihari (19). They were on their way to the Aayiramkanni Pooram, a local festival, when the policemen stopped them near the Muttichura Bridge. 

The Sub Inspector (S.I.) got out of the police jeep and asked Yadu his name. Following Yadu’s reply, the S.I asked him whether he had smoked any ganja (marijuana). When Yadu replied in the negative, the S.I. hit him on his neck. His friend Jyothi was asked the same questions by the driver of the jeep, and when he too answered in the negative, he was beaten up in a similar manner, and his mobile phone was confiscated and tossed into the back of the jeep. 

At this time, the police constable asked Srihari to blow into a breathalyzer and just when he was about to do so, the S.I. beat him on his back and stomach. Srihari’s mobile phone was also confiscated. 

In the same way, all the youth were questioned and beaten up. They were then taken to the Anthikkad Police Station at around 3:30 a.m. In this process, they were also subject to filthy verbal abuse by the S.I. and his men.

At the Police Station, the five young men were taken straight to the S.I.’s room. The S.I. proceeded to beat them up with a broom, one by one. He asked them to remove their clothes. The youngsters were severely beaten up and repeatedly questioned about where they accessed marijuana from and the name of the supplier. One by one, they were questioned and tortured. They were coerced to confess and threatened with more torture if they did not acquiesce. Each of their mobile phones was confiscated and the S.I. went through all the photos on the phones, pointedly asking questions about the identity of the people in the photos. The torture and questioning by the S.I. and his men continued for about 2 hours, till 5:30 a.m. 

The 5 young men pleaded with the police officers to be allowed to telephone their homes and inform their family members regarding their plight, but their entreaties fell on deaf ears. Only at around 10:30 a.m., did the policemen finally heed to their pleas and Yadu’s friend, Amit, was informed about their situation. 

That afternoon, at around 1:30 p.m., the five were informed that they were being charged under S.118 (a) of the Kerala Police Act, 2011, and were released on bail. 

Their mobile phones were not returned to them. No first information report (FIR) was filed. And, due to the torture, Jyothi’s left hand was broken; all the five suffered serious injuries. They were admitted to ‘Alapatt Hospital’ and were 
discharged only after a week, on 24 February 2016. 

Furthermore, the five boys were subject to blood tests; the results showed that there was no trace of marijuana or any other illicit substance in their blood. And, the policemen had found no marijuana or any other illegal substance on their person. 

ADDITIONAL INFORMATION:

The AHRC calls for an urgent investigation into the matter. Prima facie, there appears to be enough evidence for a criminal case to be filed against the S.I., his driver, and the police constable involved in the alleged torture of the five young men. An investigation must be conducted into the alleged torture, and the police officers must be placed on suspension pending enquiry. The boys were booked under S.118(a) of the Kerala Police Act which reads as under, 
“118. Penalty for causing grave violation of public order or danger — Any person who,— (a) is found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself”

Whether the boys had smoked marijuana or not could have been settled with medical investigation, which later showed the blood to have no trace of illegal substances.The rudimentary investigation techniques of the police officers involving brute force and torture in order to coerce and elicit a false confession from the suspects is not only illegal and in violation of human rights norms, but also ineffective, inefficient and a waste of time. It is clear that the boys were wrongly booked under S.118 (a) as there was no evidence of their being found in an ‘intoxicated manner’ or in a rioting condition, incapable of looking after themselves. This case will go to trial and will, in all probability, be dismissed for lack of evidence. 

Apart from scarring the young men, and giving them reason to mistrust state authority in the future, such a case can only further burden an already overburdened judiciary that is gasping under the weight of tens of thousands of cases in backlog, and cause further delay and waste more precious resources. 

The targeting of vulnerable boys with violence, instead of using modern investigative techniques to successfully prosecute and punish any supplier of marijuana in the precinct, only showcases the corrupt power-hungry machismo that is characteristic of police functioning in India. 

Fundamental procedural safeguards not followed S.50 of the Code of Criminal Procedure, 1973, mandates that the person arrested must be informed of the grounds of arrest and of his right to bail. Furthermore, S.50A (1) mandates that the officers making the arrest have an obligation to inform someone else nominated by the person arrested about the arrest and the place where the person arrested is being detained. The police officer must inform the arrested person of his rights under S.50A (1) as soon as he is brought to the police station. 

Also, under S.50A (3) the police are mandated to document the name and details of the person who has been informed about the arrest. Under S.51, whenever an article is seized from an arrested person, a receipt showing the articles that have been taken must be given to the arrested person. 

These mandates flow from the constitutional guarantees in Part III of the Indian Constitution, namely Articles 20 (Protection in respect of conviction of offences) and 21 (Protection of Life and Personal Liberty), and, most importantly, 22 (Protection against Arrest and Detention in certain cases), which details the fundamental procedural safeguards to be followed. 

In the present case, the police officers brazenly flouted every safeguard mandated by the law, as detailed above. The victims were not allowed to inform their nominated persons till much later and no receipt was issued to them when their mobile phones were confiscated. At the time, when they were detained, neither were they informed about the grounds for their arrest nor were they told about their right to bail. 

The landmark case of D.K. Basu vs. State of West Bengal (AIR 1997 SC 610) lists 11 guidelines for arrest. One of the most important guidelines is number 10: the right of the person arrested to have a lawyer present during interrogation (although not for the whole period). 

Justice D. Anand, in the aforesaid case, wrote:
“Efforts must be made to change the attitude and approach of the police personnel handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable form of interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogation may deter the police from using third degree methods during interrogation.”

The framing of the D.K. Basu guidelines was a seminal juncture for Indian jurisprudence, and in the present case none of the 11 guidelines listed out by the Supreme Court of India have been followed. The victims were subject to brutal methods of interrogation, all in the effort to elicit a confession. 

As far back as 2003, a Times of India news report (‘Police torture is rising, warn civil libertarians’ – Somit Sen, 15 July 2003) detailed torture methods used by police officers to obtain information and coerce confessions from suspects, noting that the victims are usually the poor and vulnerable, the most powerless sections of society. In August 2004, the Washington Post (‘In India, Torture by Police Is Frequent and Often Deadly’ – Rama Lakshmi, 5 August 2004) reported on the frequent use of torture and force by police stations across India and that “Some police officers justify the use of torture to extract confessions and instill fear”. 

Not much has changed. The August 2014 cover story in the India Today magazine (‘Human rights: Terror through torture’ – C. Joshi, 14 August 2014) details the various methods of torture used as tools of interrogation in India. It also reiterates the vulnerability and powerlessness of victims of torture. 

The report details an important aspect of torture in India: 
‘An interesting phenomenon is that in many cases where torture was employed at the level of the sub-inspector, and Deputy Superintendent of Police, case histories show that they had been promoted from the ranks and had a strong attachment to hierarchy and believed in “exercising their power” through the “infliction of pain”. This psychologically enabled them to ensure that the victim could actually and physically feel their power and in essence overcome their sense of inferiority.’

The current case involving the five Kerala youth shows the same behavior pattern. Torture is being used as a tool to control, inflict pain, and to keep people in fear of police authority.

The AHRC is of the opinion that the authorities must mandate more scientific and effective methods of interrogation that will provide police authorities with a viable alternative to torture and other coercive methods that are being employed across the country. 

The non-efficacy of torture as a tool of interrogation has once again gained ground worldwide, with the release of the executive summary of the report of the Senate Select Committee on Intelligence on the Central Intelligence Agency’s (CIA) Detention and Interrogation Program in December 2014. 

This report, with the help of documented cases in the post 9/11 period, unequivocally states that torture was not an effective means of acquiring intelligence and was, in many cases, counter-productive. 

There are numerous other reports and studies that have detailed the same, and the Indian state would be wise to pay heed to the scholarship and evidence and encourage police authorities to use humane, scientific, and far more effective methods of interrogation. This turn towards a more effective and humane investigative system country-wide will not only better protect the human rights of the most vulnerable Indian citizens but also reduce the burden on our overworked judicial system by introducing greater efficiency and more attention to detail in the gathering of evidence. 

SUGGESTED ACTION:

The facts of the case make it clear that the charging of the youth under S.118 (a) is wrong and deserves to be scrutinized closely. 

Please write letters to the following authorities calling on them to take the necessary action against the rogue police officials in this case. 

The AHRC is writing a separate letter to the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, for its intervention into this matter.

To support this case, please click here: SEND APPEAL LETTER