INDIA: A person tortured to death by police for failing to pay bribe in Kerala state

Dear Friends,

The Asian Human Rights Commission (AHRC) has received information from Kerala state, India that a person died from custodial torture since he refused to pay bribes to the police officers. Mr. Saju, a private bus conductor was arrested by the police officers from Kunnathunadu police station. On 8 September 2006 Saju was detained in custody without been produced at the Magistrate court. It is alleged that the police officers demanded bribes for releasing him, which Saju refused to pay. It is alleged that Saju was tortured in custody and he died while in custody.

Facts of the case:

On 8 September 2006 at about 2pm, three police constables from Kunnathunadu police station came to Saju’s house looking for Saju. Of the three police constables one was in uniform while the other two were in civil dress. The police constables informed Saju that they have received a complaint at the station stating that Saju had stolen three telephone posts. The police officers asked Saju to get into the police vehicle in which they had come and took Saju to the police station by about 2.30pm.

Saju resides within the Pallikkara Grama Panchayath area. The Grama Panchayath had a scheme to construct well for the residents of the Panchayath, for which Saju had submitted an application. The Application was allowed and a well was constructed in Saju’s compound. However the well did not have any protective wall. The well was used by the neighbours also. Saju had picked up three telephone posts which he found on the road in front of his house which was abandoned by the telephone department and had kept the three posts as a protective barricade around the well so that children or animals will not fall into the well. Of the three telephone posts one post was protruding into the road and he had cut off the part of the post protruding into the road and sold that small piece of the post at a local shop. At the time of arrest the police officers had informed Saju that he is arrested in response to the complaint filed by the telephone department. However, the Assistant Engineer at the Kunnathunadu Telephone Exchange Mr. Velayudhan affirms that the telephone department has filed no such complaints with the police.

Soon after Saju was taken to the police station Saju’s wife Sherly contacted the Pallikkara Grama Panchayath President and requested him to help her to release Saju from custody. When Sherly found that Saju has not returned by about 4.30pm she went to the police station along with her daughter. At the police station Sherly found Saju seated on a bench in the veranda of the police station. Another person named Mr. Aliyar was also sitting near Saju. When Sherly inquired about whom Aliyar was Saju informed her that he was the person to whom Saju had sold the piece of telephone post. Saju also informed Sherly that Aliyar has paid the police Rupees 3000 [USD 68] as bribe and that the police will soon release Aliyar. Soon a police constable came to the veranda and informed Sherly and Saju that they also must pay similar amount so that Saju also could go home. Hearing this Sherly asked the police officer whether Saju could be released on bail. The officer said that unless the Circle Inspector arrives at the station Saju cannot be released on bail. The officer also informed that the Circle Inspector will come by about 9.30pm and that only then Saju could be released on Bail. Sherly waited at the police station until early next day morning. However, the Circle Inspector did not come and Sherly left the police station. Meanwhile some of Saju’s friends informed Sherly that Saju cannot be bailed out from the police station and that he will have to be bailed out from the court.

On 9 August 2006, at about 10am a police constable contacted Sherly at home over telephone informing her that Saju wanted to talk to her. Saju informed Sherly over phone that the police will be soon producing him at the Magistrate’s court and asked her to make arrangements to get him out on bail. Saju also asked Sherly to contact his cousin Mr. Santhosh to arrange for a lawyer to appear for him in court when he is produced in court.

However the bail could not be arranged on that day since it was a holiday. At about 2pm on the same day another police constable came home and asked Sherly to show the place from where Saju had taken the telephone post. Sherly asked her son to show the place to the officer. Sherly also asked the officer when her husband will be produced at the court. The officer informed that Saju will be soon produced at the court and asked Sherly to report at the police station to sign few documents.

At about 3pm Sherly reported at the police station. There she saw Saju seated on a bench in the veranda of the police station. Sherly alleges that Saju appeared to be very tired and found blood stain on his shirt. Saju hugged his son who accompanied Sherly to the station and cried. Sherly was shocked and asked Saju what had happened. Saju informed Sherly that he was brutally tortured by the police at the station. Saju informed Sherly that the reason why the police tortured Saju was because he refused to pay bribe to the police officers.

Soon a police officer came and asked Sherly to sign a few documents. Sherly went inside the police station and she was handed over a register in which nothing was written. Sherly asked the police officer why she was asked to sign in a register in which nothing was written. The police officer did not reply. When she did not get any reply to her question she asked the police officer why they are not producing her husband in court in spite of the fact that 24 hours have elapsed after he was taken into custody. She also demanded that if the police are not producing her husband in court he must be released. The officer did not appreciate Sherly’s attitude. However Sherly insisited that she would only sign in a document which states the exact time when Saju was arrested. She later returned home.

At about 4.30pm Sherly received a call from the police station informing her that Saju fainted inside the police station and that he was admitted at the Kolenchery Medical College. Sherly rushed to the hospital. At the hospital she was informed that her husband died at the police station. A doctor at the hospital asked Sherly whether Saju had any previous ailments. Sherly informed the doctor that Saju was perfectly healthy and that Saju had complained about the police torturing him while he was held in custody.

Other relevant information:

In the past few months deaths in custody is reported from Kerala in an increasing number. There was a public outcry against this and the state government requested the High Court of Kerala to provide a sitting judge to inquire into cases of custodial death. However, the court declined the request and later directed the state government to appoint a retired High Court Judge Mr. R. Rajendra Babu as an Inquiry Commission to inquire into the cases of custodial deaths in Kerala. The Commission is inquiring into this case also.

Custodial torture is not a crime in India. Custodial death is a direct result of torture while in custody. Cases of custodial deaths are reported very frequently from India. While the government of India takes a foot-dragging attitude in addressing custodial torture, the government of Kerala has at least admitted that custodial death is causing concern to the government. The Chief Minister and the Home Minister has admitted that the government is no more willing to tolerate custodial deaths. However, what the government fails to agree is the basic fact that the issue of custodial deaths cannot be addressed without addressing its root cause – torture in custody. As of now there is no mechanism with which cases of custodial torture could be prevented in India. The Criminal Procedure Code or the Indian Penal Code does not provide for any provisions by which an officer engaged in custodial torture could be punished. There are no independent investigating mechanisms in India that could investigate into cases of torture.

In most cases the victims are not able to lodge even a complaint regarding torture. The only options available now is to either approach a court by way of a private complaint under Section 190 of the Criminal Procedure Code or to approach superior police officers with a complaint expecting that they would take some action against subordinate officers. Even basic requirements like proper medical care and documentation of evidence at an early stage is not possible. In many cases the successful prosecution of a case of custodial torture depends upon the medical evidence. However medical reports are not made available to the complainants in a case since it is handed over to the investigating agency, to be filed in court. In most cases filing of these reports takes years.

The police even if they are forced to investigate a case against one of their colleagues will drag the investigation for years so that the witnesses, and if the victim is alive, the victim also could be forced to keep silent. The prosecution of the cases also fails since the prosecutors are not qualitatively competent to meet the challenge of a good criminal lawyer whom the perpetrators could engage. This observation against the public prosecutors in Kerala was made by none other than the Director General of Prosecutions recently in a public function.

For Sherly and her family their destiny is quite uncertain. Sherly who is currently unemployed is left with two young children, 12 year old Sandeepa and 8 year old Sanjan. Sherly has chronic cardiac and cerebral diseases for which she is under treatment at the Amritha Medical Institute. After Saju’s death the family finds it difficult to meet two ends and she does not know how she could continue with her treatment while her children are left alone at home. The state government thus far has not made any arrangements for paying compensation to the family. The only action initiated by the government is to keep three police officers in suspension pending an inquiry.

Admission in public and statements made to the press that the current issues in policing is due to a failed policing policy by the earlier governments and the intolerance expressed to cases of custodial death do not suffice real and honest action aimed at preventing future cases. Governments and political ideologies upon which the leaders work will keep changing. However, this cannot be considered as an excuse to clear the state’s responsibility for the law enforcement officers breaching law and killing people whom they are bound to protect. The truth in the government’s promise to its people who elected them to power must be through the actions it takes in correcting the errors.

Often cases of police torture and killings receive no much attention other than being considered as a shame for the government, or at the most to be used by the opposition as an immediate issue to rally against the government. When new issues like massive environment pollution or suicides by farmers are taken up by the local media, cardinal issues like custodial torture looses its space in public discourse. Often this sway in general and peripheral public discourse is exploited by the governments. In the recent past custodial deaths was the front page news in most dailies in Kerala. The electronic media also was full of reports of various deaths in custody. However, what remains mystic is what action the government has taken in each of these cases. Neither the media nor the opposition parties are interested in this. It remains the concern of the family or that of the victim who suffered from the police officers. Nobody will ever turn back to them to find out what happened to their cause as the time pass by.

The most common mode adopted by the governments when a case of custodial death or torture is brought to its attention is to immediately suspend the police officers alleged to be responsible for the case. As a continuing tactic the government offers a paltry sum as compensation to the victim or the victim’s family. In some cases the government will also offer a job to someone in the family, particularly in cases of deaths in custody. In a state like Kerala where a job with the state government or its wholly owned subsidiaries is considered as a dream for many educated unemployed these public stunts and short and interim measures means much. However, what the governments fail to recognise is the fact that the root cause of custodial death and a failing situation of rule of law is a fallen police department.

Every aspect of governance is in one way or other related to policing. Whether it is direct issues like maintenance of law and order or criminal investigation or to remote issues like corruption within the bureaucracy to environmental concerns have a relationship with the policing in the state or the country. The police is often used as a loose pack of government officers left at the disposal of the politicians. The service of the police is more and more made available to the rich and influential which forms a minority in any state.

The politicians in power conceive the police as an instrument they could use for a limitted period – the period in which they remain in power. Once they are removed from office they still could use the police since they belong to the earlier category of being influential within the limitted scope of policing. However what is always forgotten and ignored and often considered as a menace is the need of the common person to have a police of their choice. A police they need not fear, but could trust. Those who defend the existing policing system in Kerala and in India must first ask themselves how much they trust their police officers to do a good job and how many within the police as of today in India are capable of discharging their duty with the true sense and honestly.

The Chief Minister of Kerala claims that he was subjected to police torture in the past. However what happened to his approach to the police – the difference from what he conceived as police in the past and now. Probably the answer is in the understanding what the current Chief Minister was some thirty years before and what he is now. Thirty years before Mr. V. S. Achuthanandan was a communist party activist without much political clout. But now he is the Chief Minister of the state. This change has probably made him to approach the state police much softer than in the past. It is this change that what the ordinary people in the state and in India must try to understand when they listen to the speeches of their leaders. The AHRC is not of the opinion that one political party is correct while the other is wrong. The AHRC however is concerned about the absolute lack of action on the part of the government when hundreds of cases of custodial violence is brought to the notice of the government in India and no action is taken whatsoever on these cases.

The courts in India have tried to address this issue to a considerable extent. The judgment often quoted, delivered in the D. K. Basu case is one of the most recent examples. In this judgment the court try to address the concerns regarding custodial violence by issuing guidelines that the law enforcement agencies must follow while arresting, detaining and questioning a person. The court also directed the government to widely publicize its directives and to enforce them without failure. As of now none of these guidelines are followed by the law enforcement agencies in India. The implementation of the judgment remains limitted to pasting a cyclostyled copy of the court’s directives in a corner in the police stations hidden behind several other notices and police union blowups.

Ironically the government of India highlights this judgment as the living example of the action it has taken to address custodial torture in India. The AHRC has brought to the notice of the government of India and also to the very Supreme Court which passed the judgment in 1996, at least a few hundred cases in the past few years where the directives of the court has been publicly flouted. For further information please search for “India” at the search menu available at www.ahrchk.net/ua Sadly none of these cases were taken up by either the government of India or by the Supreme Court. In a few cases where there was international pressure from agencies like the United Nations the government of India responded by way of their response to the United Nations that they are inquiring into these cases. The result of these inquiries however was not reflected at the grass-root at least by providing any assistance to the victims or the relatives of the victims. It is only the National Human Rights Commission of India which has initiated some action in these cases. Most of these cases have been notified to the relevant State Human Rights Commission. However most State Human Rights Commissions have failed to entertain any case brought to their attention.

The West Bengal State Human Rights Commission is unfortunately a notorious example to this attitude. Almost all the cases brought to the notice of the West Bengal State Human Rights Commission by the AHRC has been conveniently ignored by the Commission. This probably must be justifying the reasonable allegation that many State Human Rights Commissions in India are nothing other than positions filled by retired judges and politicians whom without shame fish for appointments at highly placed offices. The difference from a government officer to that of a member at the State Human Rights Commission is that the people expect the Commission to work independently than from a government officer or at least adjudicate cases independently. However, the AHRC’s experience at least with the West Bengal Human Rights Commission is quite disappointing.

The AHRC is aware that it is not the AHRC alone which has brought these issues to the notice of the government. It is when the ordinary people loose faith in their government that they approach international organisations like the AHRC seeking redress to their grievances. The role of organisations like the AHRC is that of a loudspeaker to voice the concern of the ordinary people and to bring it to the attention of the governments responsible for initiating actions. When such calls are ignored and the people cheated by the governments by empty rhetoric and soft Commissions the term democracy means nothing, but a bluff and India is probably not an exception no matter however long it claims to be functioning as a democracy and how big it is geographically.

SUGGESTED ACTION:
Please send a letter to the relevant authorities mentioned below urging for an immediate and thorough investigation into this case in particular and also into the aspects of general policing in India so that disciplinary actions are taken against the police officers if they are found responsible for breach of duty.

 

 

 

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