Increase of custodial deaths in India
Nava Thakuria
April 16, 2010
India presents a grim picture on human rights record in the last few years. The largest democracy in the globe, records the increase of custodial deaths under the present United Progressive Alliance government at New Delhi. On the other hand, the non-state actor like the Maoists (or Naxalites) remained the worst human rights violators in the country.
Releasing its report on April 13 in New Delhi, Asian Centre for Human Rights, a rights group, argues that that impunity is the root cause of increasing torture.
While the government led by Indian National Congress fails to establish accountability for acts of torture perpetrated by the armed groups like the Maoists, both the Central government and the state (province) governments also refuse to provide sanction for prosecution under section 197 of the Criminal Procedure Code, the New Delhi based rights organization asserted.
The Geneva Convention identifies torture meaning ´any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity´.
The ACHR report tiled ´Torture in India 2010´, discloses that with the 2000-2001 as the base year, custodial deaths have increased by 41.66% persons under the UPA government between 2004-2005 and 2007-2008 in India. This includes 70.72% increase of deaths in prison custody and 12.60% increase of deaths in police custody.
Suhas Chakma, director of Asian Centre for Human Rights, while talking to media claimed that the common people in most of the cases had to face the torture or other inhuman treatment. However, Chakma added, the UPA government has failed to address the violations of the rights of the common people (aam aadmi).
The ACHR has however welcomes the fact that the UPA government has taken a number of measures to address the economic rights of the ´aam aadmi´ and problems of the vulnerable groups through enactment of various legislations such as the National Rural Employment Guarantee Act, the ´Unorganised Workers´ Social Security Act 2008, the Right to Education Act, the Domestic Violence Act, the Commission for Protection of Child Rights Act, 2005, the Forest Rights Act and legislation for 50% reservation for women in local bodies the panchayats and the current commitment on the Women´s Reservation Bill and the Food Security Bill.
"But the UPA government has failed to show the same alacrity to legislate against torture. Though the Cabinet approved the decision to introduce the Prevention of Torture Bill, 2010 before the parliament and ratify the UN Convention Against Torture, the Bill is being treated as a state secret," Chakma said.
Speaking to this writer from New Delhi, Chakma questioned, "If the Indian Union government can hold public discussion on the Food Security Bill, why is it treating the Prevention of Torture Bill, 2010 as a secret document?"
He further stated that it proves that New Delhi has more to hide as its earlier draft, Prevention of Torture bill, 2008, contained only three operative paragraphs relating to definition of torture, punishment for torture, and limitations for cognizance of offences.
The ACHR also lamented the responses of the Indian Home Ministry before the parliament that puts the responsibility only on the State governments on custodial deaths. The Central Home Ministry repeatedly states that ´Police and Public Order are state subjects under the Constitution of India. It is for the state governments to take appropriate action in every crime.
The report shows that New Delhi has failed to take action against custodial deaths that took place in the Union Territories which is governed by the Central government directly.
"Further, in the decade 1999-2009, the Congress-National Congress Party ruled Maharashtra had the highest number of deaths (246 cases) in police custody followed by Uttar Pradesh (165), Gujarat (139), West Bengal (112), Andhra Pradesh (99), Tamil Nadu (93), Assam (91), Punjab (71), Karnataka (69), Madhya Pradesh (66), Haryana (45), Bihar (43), Delhi (42), Kerala (41), Rajasthan (38), Jharkhand (31), Orissa (27), Chhattisgarh (23), Meghalaya (17), Uttarakhand (16), Arunachal Pradesh (15), Tripura (9), Goa (5), Himachal Pradesh, Jammu & Kashmir and Chandigarh (4 each), Pondicherry (3) and Mizoram, Sikkim, Dadra & Nagar Haveli, and Andaman & Nicober Islands (1 case each)," the report added.
The Central government also refused to implement the Law Commission of India's recommendations in its 152nd Report on ´Custodial Crimes´ to amend the Indian Evidence Act, 1872 (insertion of section 114b) to provide that in cases of custodial death, the burden of proof must lie with the police.
Among the armed opposition groups, the Naxalites (or Maoists) are the worst human rights violators and regularly resort to ´violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture´ in blatant violation of the International Humanitarian Law.
"The Maoists have been responsible for brutal killing of their hostages after abduction. Often the hostages are killed by slitting their throats or beheading. Often these killings were authorized by Maoist ´people´s courts or Jan Adalats", the report stated.
"On 11 March 2009, the Maoists dragged Kedar Singh Bhotka (45 years) and his brother Ganesh Singh Bhotka from their house at Gurudih village under Katkamsandi police station in Hazaribagh district in Jharkhand. They were allegedly tied to a tree and tortured by the Maoists. Thereafter, while Ganesh was released, his brother Kedar, who was a government school teacher, was killed for being an alleged ´police informer´," the ACHR director claimed.
He further questioned, "Are we to presume that the Central government has no responsibility for the failures that led to the massacre of 76 Central Police Force Personnel in Chhattisgarh? If that is the case why did Home Minister P Chidambaram offered to resign?"
Mentioning about the Indian government´s decision to introduce the Prevention of Torture Bill, 2010 is welcome, the ACHR asserts that unless New Delhi takes lessons learnt from the failure of the Supreme Court judgement (D K Basu judgement) and amendment of the Criminal Procedure Code and addresses these shortcomings, torture and custodial death will continue to rise.
The ACHR recommends New Delhi to hold public discussion on the Prevention of Torture bill, 2010 with all stakeholders including the civil society groups and enact the same in 2010 itself; implement the recommendations of the Law Commission of India to make consequential amendments to the Indian Evidence Act, 1872 (insertion of section 114b) to provide that in case of custodial death the onus of proving of innocence is fixed on the police; and repeal section 197 of the Criminal Procedure Code to uphold the supremacy of the judiciary.
Releasing its report on April 13 in New Delhi, Asian Centre for Human Rights, a rights group, argues that that impunity is the root cause of increasing torture.
While the government led by Indian National Congress fails to establish accountability for acts of torture perpetrated by the armed groups like the Maoists, both the Central government and the state (province) governments also refuse to provide sanction for prosecution under section 197 of the Criminal Procedure Code, the New Delhi based rights organization asserted.
The Geneva Convention identifies torture meaning ´any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity´.
The ACHR report tiled ´Torture in India 2010´, discloses that with the 2000-2001 as the base year, custodial deaths have increased by 41.66% persons under the UPA government between 2004-2005 and 2007-2008 in India. This includes 70.72% increase of deaths in prison custody and 12.60% increase of deaths in police custody.
Suhas Chakma, director of Asian Centre for Human Rights, while talking to media claimed that the common people in most of the cases had to face the torture or other inhuman treatment. However, Chakma added, the UPA government has failed to address the violations of the rights of the common people (aam aadmi).
The ACHR has however welcomes the fact that the UPA government has taken a number of measures to address the economic rights of the ´aam aadmi´ and problems of the vulnerable groups through enactment of various legislations such as the National Rural Employment Guarantee Act, the ´Unorganised Workers´ Social Security Act 2008, the Right to Education Act, the Domestic Violence Act, the Commission for Protection of Child Rights Act, 2005, the Forest Rights Act and legislation for 50% reservation for women in local bodies the panchayats and the current commitment on the Women´s Reservation Bill and the Food Security Bill.
"But the UPA government has failed to show the same alacrity to legislate against torture. Though the Cabinet approved the decision to introduce the Prevention of Torture Bill, 2010 before the parliament and ratify the UN Convention Against Torture, the Bill is being treated as a state secret," Chakma said.
Speaking to this writer from New Delhi, Chakma questioned, "If the Indian Union government can hold public discussion on the Food Security Bill, why is it treating the Prevention of Torture Bill, 2010 as a secret document?"
He further stated that it proves that New Delhi has more to hide as its earlier draft, Prevention of Torture bill, 2008, contained only three operative paragraphs relating to definition of torture, punishment for torture, and limitations for cognizance of offences.
The ACHR also lamented the responses of the Indian Home Ministry before the parliament that puts the responsibility only on the State governments on custodial deaths. The Central Home Ministry repeatedly states that ´Police and Public Order are state subjects under the Constitution of India. It is for the state governments to take appropriate action in every crime.
The report shows that New Delhi has failed to take action against custodial deaths that took place in the Union Territories which is governed by the Central government directly.
"Further, in the decade 1999-2009, the Congress-National Congress Party ruled Maharashtra had the highest number of deaths (246 cases) in police custody followed by Uttar Pradesh (165), Gujarat (139), West Bengal (112), Andhra Pradesh (99), Tamil Nadu (93), Assam (91), Punjab (71), Karnataka (69), Madhya Pradesh (66), Haryana (45), Bihar (43), Delhi (42), Kerala (41), Rajasthan (38), Jharkhand (31), Orissa (27), Chhattisgarh (23), Meghalaya (17), Uttarakhand (16), Arunachal Pradesh (15), Tripura (9), Goa (5), Himachal Pradesh, Jammu & Kashmir and Chandigarh (4 each), Pondicherry (3) and Mizoram, Sikkim, Dadra & Nagar Haveli, and Andaman & Nicober Islands (1 case each)," the report added.
The Central government also refused to implement the Law Commission of India's recommendations in its 152nd Report on ´Custodial Crimes´ to amend the Indian Evidence Act, 1872 (insertion of section 114b) to provide that in cases of custodial death, the burden of proof must lie with the police.
Among the armed opposition groups, the Naxalites (or Maoists) are the worst human rights violators and regularly resort to ´violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture´ in blatant violation of the International Humanitarian Law.
"The Maoists have been responsible for brutal killing of their hostages after abduction. Often the hostages are killed by slitting their throats or beheading. Often these killings were authorized by Maoist ´people´s courts or Jan Adalats", the report stated.
"On 11 March 2009, the Maoists dragged Kedar Singh Bhotka (45 years) and his brother Ganesh Singh Bhotka from their house at Gurudih village under Katkamsandi police station in Hazaribagh district in Jharkhand. They were allegedly tied to a tree and tortured by the Maoists. Thereafter, while Ganesh was released, his brother Kedar, who was a government school teacher, was killed for being an alleged ´police informer´," the ACHR director claimed.
He further questioned, "Are we to presume that the Central government has no responsibility for the failures that led to the massacre of 76 Central Police Force Personnel in Chhattisgarh? If that is the case why did Home Minister P Chidambaram offered to resign?"
Mentioning about the Indian government´s decision to introduce the Prevention of Torture Bill, 2010 is welcome, the ACHR asserts that unless New Delhi takes lessons learnt from the failure of the Supreme Court judgement (D K Basu judgement) and amendment of the Criminal Procedure Code and addresses these shortcomings, torture and custodial death will continue to rise.
The ACHR recommends New Delhi to hold public discussion on the Prevention of Torture bill, 2010 with all stakeholders including the civil society groups and enact the same in 2010 itself; implement the recommendations of the Law Commission of India to make consequential amendments to the Indian Evidence Act, 1872 (insertion of section 114b) to provide that in case of custodial death the onus of proving of innocence is fixed on the police; and repeal section 197 of the Criminal Procedure Code to uphold the supremacy of the judiciary.