Of the 511 Sections in the Indian Penal Code, there is not a single provision to punish a law enforcing officer for engaging in custodial torture. One hundred and forty six years since the original version of the Penal Code was drafted and fifty nine years since independence, the Penal Code has undergone several changes, including provisions for addressing cyber crimes. However, custodial torture is yet to be made a crime in spite of the fact that it is rampant throughout India. Most often it is the poor and the underprivileged who are subjected to torture. Seventy percent of Indians are poor and do not have any reasonable access to justice. Failure to address custodial torture reflects the Government of Indias failure to recognise the plight of its ordinary citizenry.
The International day against torture and other cruel, inhuman or degrading treatment or punishment is held on June 26. Torture, threat and intimidation are rampant practices of Indias police force in their day-to-day law enforcement. A police officer depicts the image of a criminal in uniform who enjoy absolute impunity.
[On 15 May 2006, at about 7pm, Mr. Shukkur and his mother Suhara were going to Suharas mothers house on a motorbike. When they reached a place called Alanchery Mini Road, Sub-Inspector Mr. Vipin Das of Vadakkekad police station flashed a torchlight into Shukkurs face. Shukkur tried to stop the motorcycle, but before he could do this, the Sub-Inspector along with other police officers started beating Shukkur and his mother with sticks. Shukkur lost control of the motorcycle and both he and his mother fell onto the road. The police officers surrounded Shukkur and his mother and continued beating them. Shukkur and Suhara pleaded with the police not to beat them. However, by the time the police stopped the beating both Shukkur and Suhara had suffered serious injuries. On further inquiry it was revealed that the police were conducting a regular vehicle check and in many cases the officers intercepted two wheeler passengers were by beating them down. This case was reported from the Thrissur district of Kerala state. For further details please refer to AHRC
UA 180 2006.]
The Asian Human Rights Commission (AHRC) has received dozens of cases of brutal acts committed by the law enforcement agencies in India since 26 June 2005. The AHRC has presented all these cases before the relevant government authorities in India at both the state and central level. However, the AHRC is yet to learn of a single case that has been followed up by the government or hear of any action that has been taken. The Government of India continues to deny the fact that torture is rampant in India and that there are no effective domestic remedies available in the country to address this situation.
India often relies on various judgments delivered by the Supreme Court to showcase that the existing justice dispensation mechanism is geared up to address custodial torture. However, the courts in India depend on policing for daily work such as the collection of evidence, custody of documents and for summoning witnesses. This dependency has contributed towards the near complete failure of the implementation of these judgments.
[Serious irregularities in judicial proceedings at the Additional Chief Judicial Magistrate Court in Barrackpore, West Bengal speak to how India’s lower judiciary is being run by police. According to Manabadhikar Suraksha Mancha (Masum), a human rights group based in greater Kolkata, Vijay Kumar Jaiswal was violently and illegally arrested in the middle of the night on 14 December 2005. The police apparently detained Vijay to put pressure on his family to produce his brother, the suspect in a theft case. However, the family has maintained that they have not known the whereabouts of the brother for some years. The police also looted the house of electrical items reportedly left by other persons for Vijay to repair. When Vijay was brought to the police cells he found a co-accused in the case, 15-year-old Md. Siraj. He heard from Siraj that he had been kept in the cells for nine days, during which time he was not fed. They were kept in custody for a further four days before being brought to court.
It appears that the judicial orders in Vijay’s case were drafted by the police constables who are stationed at the General Records Office. This is an undesirable posting that is frequently given to constables who have been disciplined. For instance, in a recent case where a human rights defender was bullied at a local police station, the inspector concerned was transferred to a court records office as punishment. Yet officers such as this, who have little schooling and no legal role to play in writing documents for the judge to sign, are preparing orders that are issued by the magistrate with a wave of his pen. At the same time, the magistrate fails to look through the other documents that have been prepared in advance at the police station, with intent to conceal and obscure failures in correct procedure and criminal acts committed by the police.
In Vijay’s case, the documents show two different dates of arrest, do not record the period of illegal detention or full details of arrest, fail to show seized items, and indicate that the court order was drafted by a police officer and issued before the accused was actually brought to the court. There is a four-day discrepancy in dates of arrest between the arrest memo and the forwarding letter. The documents thereby keep the court ignorant of the fact that the two detainees were held illegally in custody for more than 24 hours before they were brought before it. The First Information Report is likewise silent about the place and time of arrest: mandatory and absolute minimum requirements in record keeping. Above all else, the order was drafted and issued before the detainees were ever in the court, evidently by a police constable in the records office, not the magistrate. For further details please see
AS-014-2006]
In addition, the absence of basic elements such as accountability and impartiality within the police department and courts delays, have resulted in a situation where no complaints against the police will be ever properly investigated. Departmental inquires, if they occur at all, are mostly an eyewash. The possibility for a victim of police torture to get redress for grievances during the persons lifetime is nearly impossible. This has resulted in victims resorting to support from political parties to sort out grievances that are often exploited by political parties.
[In the absence of any independent mechanism to investigate cases of custodial torture, the most common reaction by the authorities in India is to order a departmental inquiry into the case, as has happened in the case of Mr. Mohanan, son of Chinna, residing at Anappara House, Maleshamangalam, Thiruvilwamala in Thrissur District, Kerala. Mohanan was taken into custody, beaten up and later asked to eat his own excreta. Mohanan had lodged a complaint at the Office of the Superintendent of Police Palakkad. However, in the departmental inquiry conducted by the senior officer Mohanan was not given an opportunity to advance his case. For further details please see
UA 069 / 2006]
Even though the circumstances appear grim for a victim of custodial torture in India, theoretically a person can still be punished for committing torture. This is by invoking the existing provisions in the Indian Penal Code for causing bodily harm or injury. However, to convict a person under any of the offences in the Indian Penal Code would require qualitative and competent evidence competent to submit before a court of law. Such evidence is not limited to the statements of the victims, but must also include scientific evidence such as a medical report.
However, for medical evidence to be accurate it must be recorded at the earliest possible time. Since the police officers will not produce a detainee for medical examination at the detainees request, medical examinations are carried out only in cases where there is a court order. To obtain such an order, the court should be addressed at the earliest possible occasion. However, in a country where most often detainees are never produced before courts, this is a near impossibility. Orders extending remand and continuation of custody of the detainees are often made in their absence and often on the advice of the police officers. This denies the opportunity for the detainees to lodge a complaint in court about the treatment they receive in custody.
An exception to this is by lodging a representation to the court through a lawyer. However, most detainees are incapable of securing legal representation owing to financial limitations. Additionally, owing to the complete absence of a witness protection mechanism, victims are afraid to speak against their perpetrators in cases of police brutality.
In cases of custodial death, often post mortem reports are prepared by inexperienced and under-qualified persons with qualified medical doctors merely signing reports without ever having examined the person. In many states mortuaries are controlled by the local police, providing enough opportunity for the police to manipulate records as well as tamper with evidence.
[In August 2005 the Basirhat Hospital morgue in West Bengal, India was holding more than 150 bodies, the majority of which are unclaimed and unidentified, some having been there for more than three years. Mainly decomposed and rotten, the bodies are kept in a room with no door or windows; the morgue’s deep fridge and air conditioner have been dysfunctional for a long time. Stray dogs, vultures and kites feast on the remnants of bodies in the compound. Information reveals that this is not the only hospital morgue in which dead bodies are handled in this fashion. It is the general practice in all government morgues. For instance, please see the following photos of bodies discarded after post mortems at the Srirampur Government Hospital, Hooghly, West Bengal (Photo 1, Photo 2).
When government authorities were approached regarding the conditions at the Basirhat Hospital morgue, they attempted to avoid responsibility by citing a lack of funds or pointing fingers at other government agencies. The AHRC has constantly pointed out that the terrible conditions of morgues and defective post mortem procedures in West Bengal are linked to the faulty criminal justice system. A defective post mortem system encourages custodial deaths and extra-judicial killings. There is thus no excuse for state authorities to ignore the terrible conditions of the Basirhat morgue. If in fact there is a lack of funds, this speaks to the low priority processes essential to the prevention of crime and protection of human rights by the state government. For further information please see UG 04 / 2005]
The situation is not much different in the case of a convict. It is mandatory for every prison to have a medical officer, who visits the prisoners and medically examines them. However, proper facilities for this are often absent in jails owing to the governments failure to appoint medical officers. Apart from this, to make a complaint about a prison officer is effectively exposing oneself to probable danger. This is because there is no functioning mechanism that could ensure the safety of a prisoner who complains against a prison officer. In a country where habitual offenders serving jail terms are let out to commit offenses and return so that the officers can share in the profit, it can be assumed that complaining would render the witnesses in jeopardy.
In the existing circumstances the only possible recourse available for an Indian in a case of torture is still to approach the court. One may prefer to file a civil case for compensation as well as a private criminal complaint against the perpetrator. While the criminal case will soon be terminated owing to a lack of evidence and the failure of the police to investigate, the civil case will then go on for years without result. In short, victims of custodial torture, with the exception to a few rare cases, will never get redress for the crimes committed against them.
This situation has guaranteed impunity for police officers in India and has resulted in an alarmingly low level of discipline within the law enforcement agencies in India. Considering the role of law enforcement agencies in guaranteeing rule of law in any country, a law enforcement agency with poor discipline will in no way be an asset for a country, and India is no exception. This is particularly so given Indias attempt in projecting itself as a regional player in Asia.
[It is common for anyone in India to inquire about the rates, a euphemism for a bribe, of the police officer or those prevailing at the police station or outpost if a person needs to lodge a complaint. It is taken for granted that torturing people, no matter whether the person is a suspect, witness or an onlooker, is unquestionable in India and is often a matter of normal police procedure. It is also taken for granted that the local police primarily serve the representatives of political parties and other influential people. These are a few of the policing problems in India today, and the list is not all inclusive of the possible adjectives which could be attributed to the current state of policing in the country. For further details please see
AS-095-2006]
As of today the rule of law in India is in a downward spiral. India is a nation with a population of 1.2 billion and lags behind its significantly smaller neighbours in regards to international law and its domestic application. Both Sri Lanka and Nepal have taken greater steps than India and have both signed laws specific to custodial torture. Though this has not guaranteed a perfect system, it could be viewed at the very least as a step in the right direction to having perpetrators of custodial torture properly punished. In Sri Lanka for example, cases of custodial torture are investigated are carried out by specialised agencies and cases tried at various high courts. If convicted, the officers will be sentenced to seven years of imprisonment. This is a reality that India cannot boast.
To remedy this situation India must ratify the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India must also implement the convention at the domestic level. Time and again, it has been proven that Constitutional provisions and a handful of judgments will not raise the standard of the rule of law in India. It is therefore necessary for India to acknowledge this and to make the changes that are so urgently required.
It is hard to believe that a country which cannot provide for its own people by improving the standards of rule of law can assist its neighbours. At this juncture the criticism about India as a regional player is justified and the model India is for its neighbours is questionable.
