Anti- torture initiative in India

•Situation & pattern•Government stand

•Responses from Human Rights organizations

Presented by:PVCHR

Police and torture: colonial legacy

• Under the Indian police Act of 1861,the police were trained to suppress all dissent against British rule, a situation that gave unlimited power to police officers.

• Police received very little training in investing techniques and crime solving.

• As a result, brutal practices and the misuse of force became endemic in the operations of the police across the country.

“Torture is legalized state terrorism”

Custodial torture is widespread in the country. This is closely linked to caste based discrimination. The discrimination of women and the gender-based violence that include domestic violence, dowry linked violence, sexual assault, sexual harassment and sex-selective abortion are the most relevant human rights issues and concerns in India.

Reasons

The main reasons of torture are feudal and colonial structure of police, scarcity of resources in the police department, political intervention and no investigation agency apart from police department which based on the scientific and impartial. Feudal society itself acknowledges the torture.

Situation of torture in India

• Torture is integral part of criminal investigation in India and considered as cheap and easy method in investigation.

• Brutal practices and the misuse of force is very common in the operation of the police across the country.

• It is tool of oppression used by those in the position of authority to threaten and intimidate detainees.

• Torture as a means of suppressing civil dissent.

Impunity• The police and other security forces are given

legal immunity from act of torture and extra-judicial killings under various legal provisions of Armed Forces Special Power Act (AFSPA) and section 197 of Cr.P.C. These immunities play significant role in the prevalence of torture and violence.

• Corruption and court delay• Fear and phobia among society about law

enforcement agencies• Disintegration of individual victim

Estimate

• Considering the data & number of cases withdrawn derived from different initiative in India, we project the annual number of torture cases at 15,24,240 in India (about 10 cases per month in 12,702 police stations).

• The Asian Centre for Human Rights titled Torture in India 2008: A State of Denial which found that 7,468 persons(according NHRC data), at an average of 1,494 persons per year, died in prison and police custody between 2002 to 2007.

Estimate & facts• An equal number of persons, if not more,

were killed by the army and state paramilitary forces custody in insurgency affected areas, a large number of these deaths the result of torture.

• India has the highest number of cases of police torture and custodial deaths among the world's democracies and the weakest law against torture.

• The police force is under constant pressure from the media,politicians,bureaucrates & the public to arrest and prosecute criminals.

Medical professionals and torture• Failure of medical authorities to provide

treatment and medical evidence to torture victims

• Intimidation of medical professional by police• Complicity of medical professionals in police

torture• Breach of medical ethics1. International Code of Medical ethics,19492. The declaration of Tokyo of World Medical

Association,1975

Responsible actors

• Police, prison guards, the military,para-military forces, armed opposition groups like the Naxalites (Indian Maoists), other public officials and non-state actors like upper castes, recovery agents of the Banks, forest department,Panchayats and so-called civil society organizations.

• All mainstream political parties have employed extrajudicial torture and killings at some time or the other.

Method and kind of torture• Beating amounting to torture• Sensory deprivation• Stimulated drowning• Electric shock• Shooting and extra-judicial killing• Lathi charge• Mental torture• Torture inflicted on minors• Sexual assault & Rape as a tool of state repression• Custodial death

TOV and caste• Elitism is deeply rooted in culture and the police

are deliberately made to function in ways that support the interest of the elite class and caste, in the name of order.

• Caste based discrimination still affects the life of a high percentage of Indian population and is practiced in the educational system, in places of work, villages and towns and even in courts of justice.

• The refusal of the police to investigate a case of caste discrimination is common

TOV and caste

Indian Police learnt from practice of caste system of demoralization and community punishment and on the other hand most of the custodial torture, violence and death is committed against marginalized and deprived caste.

TOV ,Poverty and caste system

• Torture linked with poverty which is based on caste, gender, racial and communal discrimination and exclusion.

• A civil and political rights issues linked with social, economic and cultural rights

TOV and patriarchy

• Violence against women is increasing rapidly. Apart from above violence, the women are victim of violence by securities forces and armed opposition groups, traditional justice delivered by panchayat and cruel cultural practices like sati, honor killing and witch hunting.

• Gender and torture• Rape and sexual violence use a tool for

community punishment

Gender and torture

• Gender analysis on TT service by PVCHR:Male: 89(72.35%) and female:34 (27.64%)

• Mostly as secondary victims ,but more psychological distress

• UN recognized the VAW,violence based on caste, race and religion as torture.

• Looking the torture and violence against women as stigma in Patriarchal society.

Communal violence as TOV• India is secular state and person is free to

adopt any religion and act according to the rituals of that religion.

• However concept of secularism is being disturbed many times by extremist group, which outcome is Sikh massacres(1984), Mumbai rioting(1992-93), Gujarat genocide (2002), Dargah rioting (2006) etc.

• The irony is that the police supporting the extremists by targeting innocent people and the politician are playing game in the name of showing sympathy.

Communal violence as TOV

• There is lack of political will to prosecute the perpetrators of the violence.

• The minorities are facing from three fold like: attack by majority community, attack by police and charging innocent under POTA.

State terror through Anti-terrorism legislation

• The Armed Forces (Special Power) Act of 1958 in N&E,Kashmir

• The Chhattisgarh Special Public Security Act 2006, the Maharashtra Control of Organised Crime Act 1999, the Madhya Pradesh Special Areas Security Act 2001 and the Uttar Pradesh Control of Organised Crime Bill 2007 are a few examples.

• Salawa-Judum

Governments’ attitude

India has been a signatory to various international treaties but sad to say, enforcement and actual implementation remain a challenge for the current administration. The UN Convention against Torture is a case in point. India signed the treaty in 1997 but for more than a decade already, said treaty has not been ratified yet including its concomitant protocols such as the OPCAT.

no domestic law

There is no domestic law yet within the framework of the CAT. On a positive note, the Supreme Court of India had taken measures in relation to torture by developing jurisprudence that presents the best practices for police and other state actors. However, the country’s legislature has not taken yet steps to codify these practices into law.

The Prevention of Torture Bill 2008

• It provides narrow and restrictive definition of torture with no reference to death as a result of torture.

• It provides for lenient punishment for torture, contrary to the punishments provided under the Indian Penal Code for similar offences.

• The government has not initiated any discussion or debate concerning the proposed law.

Prime Minister Dr. Manmohan Singh verdict

“Today, police forces have to serve the interests of the people, not rulers. In a democratic framework as we are in today, there is a need to have in the police forces a managerial philosophy, a value system and an ethos in tune with the times. I had emphasized the need to ensure that police forces at all levels change from a feudal force to a democratic service. The spirit of public service, of respect for the rights of individuals, of being just and humane in one’s actions must permeate the entire police force”.

Laws against torture

• Police torture is prohibited under section 330 -331 of Indian Penal Code (IPC).

• Forceful approbation of crime by police under section 161 C.r.P.C. that is not evidence under section 26 of evidence act; if the statement is not given before the magistrate, then question arise why police is taking the hold of torture?

• Amended section 176 (A) of C.r.P.C. have provision for the investigation in the each case of custodial death.

Guidelines, directive

• Article 21 of Indian Constitution gave rights to live with dignity, which is against the basic principle of torture.

• Under section 97 of C.r.P.C. magistrate may issue search –warrant if any person is illegally taken in the custody.

• Honorable Supreme Court issues essential guideline for the detention in the case of D.K Basu Vs West Bengal, which is mandatory for police to follow.

Guidelines,directive

• In the encounter killing, National Human Rights Commission (NHRC,www.nhrc.nic.in) directed for the FIR on the police also and the fair investigation by independent agency.

• NHRC also directed to send the videography of post mortem report in case of custodial death.

• There is a provision of interim relief as compensation under section 19 of Human Right Act.

Police reform

• Model police Act 2006• Supreme Court directive on police reform in

2006 in case of Prakash Singh v/s Government of India.

• Recommendations of police commission, law commission,NHRC

• Independence of Crime investigation • Second administrative Reform Commission

and 5th report titled “Public order’ contains its recommendations on police administration.

Response from HR organizations in India

• Initiative against AFSPA,Torture and organized violence at grass root intervention and advocacy.

• Very few organization involve in rehabilitation and healing of survivors

• HRLN,ACHR,PWTN,SICHREM,PVCHR,PUCL,PUDR,PUCHR,Human Rights Alert, Wide Angel,MASUM and etc from India

• AHRC,Human Rights watch,Amenesty International,OMCT,Frontline and others as regional and international organizations

Campaign against Torture in India: Where does it stand ?

Where does it stand ?• NHRC favours Domestic law on Torture and

ratification of CAT.• Data on torture have been documented by

several NGOs .• The Government of India is working on a

domestic law on torture.• The security agencies have started admitting

torture and excesses committed by them and are following compensation mechanism to address the issue.

Where does it stand ?

• NATT has added a campaign for systemic change by Civil society groups to empowerment of the survivors and their psychological rehabilitation.

• Some CSOs consider TT as a great initiative while others are apprehensive about its processes.

Where does it stand ?

• The campaign led primarily under the lawyers and former policemen for the Supreme Court directed Police Reform programmes is moving nowhere.

• The CSOs are caught between the need to look at short term gains(in terms compensation) and long term plans(bringing in systemic changes in the CJS) partly due to pressure from the funders.

Where does it stand ?

• State understands the non long term commitment of the external funding for campaign for systemic changes, so prefers to have time bound engagement with big NGOs without having grass root presence .

What to do now ?

• Effort by every sections of the society is must be encouraged to fight torture.

• It should be fought mainly, politically in every village, rather than inside the conference rooms in Delhi.

• Demand for an anti torture environment must be created.

What to do now ?

• Survivors of torture must be an integral part of the campaign and strategies for changes must be built around them.

• Political parties, mainly, the regional parties in the states must be shown the benefit of making torture as an electoral agenda

• Need for funding agencies to understand the social and cultural dynamics of India.