In Custody: Law, Impunity and Prisoner Abuse in South Asia [First ed.] 9788132109464, 8132109465

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In Custody

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In Custody Law, Impunity and Prisoner Abuse in South Asia

Nitya Ramakrishnan

www.sagepublications.com Los Angles • London • New Delhi • Singapore • Washington DC

Copyright © South Asians for Human Rights, 2013 All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without permission in writing from the publisher.

Jointly published in 2013 by

SAGE Publications India Pvt Ltd B1/I-1 Mohan Cooperative Industrial Area Mathura Road, New Delhi 110 044, India www.sagepub.in SAGE Publications Inc 2455 Teller Road Thousand Oaks, California 91320, USA SAGE Publications Ltd 1 Oliver’s Yard, 55 City Road London EC1Y 1SP, United Kingdom SAGE Publications Asia-Pacific Pte Ltd 33 Pekin Street #02-01 Far East Square Singapore 048763 South Asians for Human Rights (SAHR) 345/18 Kuruppu Road (17/7 Kuruppu Lane) Colombo 08 Sri Lanka

Published by Vivek Mehra for SAGE Publications India Pvt Ltd, typeset in 10/12pt Adobe Garamond by RECTO Graphics, Delhi, and printed at Saurabh Printers Pvt Ltd., New Delhi. Library of Congress Cataloging-in-Publication Data Ramakrishnan, Nitya. In custody: law, impunity and prisoner abuse in South Asia/Nitya Ramakrishnan pages cm Includes bibliographical references and index. 1. Detention of persons—South Asia. 2. Prisoners—Abuse of—South Asia. 3. Human rights— South Asia. I. Title KNC991. R36 344.5403’56—dc23 2013 2012049739 ISBN: 978-81-321-0946-4 (HB) The Sage Team: Rudra Narayan, Archa Bhatnagar, Vijay Sah and Rajinder Kaur

Contents

List of Tables List of Cases and Statutes List of Abbreviations Preface Acknowledgements Torture as a Public Secret…An Introduction The International Regime on Torture Section One: India 1. India’s Public Secret 2. Rights Discourse: Rhetoric and Reality 3. 4. 5. 6. 7.

The Constitution and Custodial Rights The Penal Code and the Law of Evidence Due Process: CrPC, Police Acts and Prison Manuals State of Custodial Justice Judicial Trends

8. Perspectives on Torture 9. Six Case Studies Section Two: Pakistan

10. Pakistan’s Regimes 11. Subverting Due Process: The Force of Religion and the Force of Necessity 12. The Judiciary 13. International and Statutory Commitments 14. Correcting the Custodians Section Three: Bangladesh 15. Martial Law and Other Regimes: 1971–2010 16. International Commitments and Domestic Legal Framework 17. Court Directives and Recommendations of Judicial Commissions 18. Case Studies Section Four: Sri Lanka 19. History and Politics 20. The Constitution and Emergency Legislation 21. Criminal Law and Custodial Justice 22. International Law: Obligations and Compliance 23. Enforced Disappearances Section Five: Nepal 24. An Overview 25. The 1990 Constitution 26. Accountability under the Interim Constitution 27. The Army 28. Nepal’s Legal Framework 29. 30. 31. 32.

The Torture Compensation Act, 1996 The Courts and Custodial Justice Five Case Studies Two Interviews with Law Enforcers

Section Six: Afghanistan 33. 34. 35. 36. 37. 38. 39.

The Land and the People The Afghan Nation State and the great game 1920–1978: Challenges to Constitutionalism Human Rights and the Soviet Occupation (1978–1992) Terror and Counter Terror Afghanistan’s Human Rights Norms Criminal Justice and the State of Human Rights

Epilogue Bibliography Index About the Author

List of Tables

Nepal 27.1 Sanctions Imposed on Military Personnel for Custodial Deaths 30.1 People Arrested/Tortured by State Authorities 30.2 Categories of Perpetrators as Reported by the Torture Survivors

List of Cases and Statutes

Cases India A.K. Gopalan v. State of Madras, AIR 1950 SC 27; p. 17 Additional District Magistrate, Jabalpore v. Shivakant Shukla, (1976) 2 SCC 521; p. 11n3 Ajab Singh v. State of Uttar Pradesh, (2000) 3 SCC 521; p. 22n19 Akhtar Parvez v. State, MANU/DE/2722/2005; p. 97 Anup Singh and Others v. State of Himachal Pradesh, AIR 1995 SC 1941; p. 73 Arvinder Singh Bagga v. State of U.P., (1994) 6 SCC 565; p. 22n18 Ashok Kumar Jain v. State of Madhya Pradesh, 2008 (3) MPHT 176; p. 105 Bachan Singh v. State, (1982) 3 SCC 24; p. 18n4 Bachiben Naranbha v. State of Gujarat and Others, (2007) 3 GLR 1918; p. 102 Balbir Singh v. Kadian, AIR 1986 SC 345; p. 52n25 Bhagwan Singh v. State of Punjab, AIR 1992 SC 1689; pp. 33n29, 81 Bheru Singh v. State of Rajasthan, (1994) 2 SCC 467; p. 34n31 Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677; p. 21n15 Bimla Devi v. Ishwar Singh, 68 (1997) DLT 306; p. 87 C.K. Janu D/O. Karian v. Director, Central Bureau of Investigation (CBI), 2008 WP(C). No. 32732 of 2003(V); p. 106 CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141; p. 26n3

CBI v. Dharampal Singh and Another, 2005 (84) DRJ 284; p. 94 Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465; p. 11n5 Charan Lal Sahu v. Union of India, (1990) 1 SCC 613; p. 11n3 D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; pp. 12, 18, 86 Dalbir Singh v. State of U.P., (2009) 11 SCC 376; p. 107 Dalpatsinh Gambhirsinh Barad v. State of Gujarat, (2008) 2 GLR 1301; p. 105 Death of Sawinder Singh Grower, 1995 Supp (4) SCC 450; p. 22n19 Dev Kala and Others v. State of Himachal Pradesh and Others, (1998) ACJ 632; p. 88 Devender Pal Singh v. State, (2002) 5 SCC 234; p. 55 Dilip V. Parmar and others v. State of Maharashtra, 2000 (5) Bom CR 410; p. 49n13 D.J. Vaghela and Others v. Kantibhaiu Jethalai and Another, 1985 Cri LJ 974; pp. 71, 79 Dulari Devi v. State of Bihar and Others, (1998) ACJ 1981; pp. 67, 87 Emperor v. Maula Baksh, AIR 1917 Lahore 342; p. 50 Emperor v. Sanjiv Ratnappa, (1932) 34 BOM LR 1090; pp. 65, 74 Forum for Fact Finding v. State of Chhattisgarh, 2006 Cri LJ 4372, p. 101 Francis Coralie Mullin v. Administrator, UT of Delhi, (1981) 1 SCC 608; pp. 11n3, 11n4, 12 Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749; pp. 33, 66 Gauri Shanker Sharma v. State of U.P., AIR 1990 SC 709; p. 80 Geeta and Another v. Lt. Governer and Others, (2000) ACJ 109; p. 89 Government of NCT of Delhi v. Nasiruddin, (2002) ACI 1530; p. 91 Govindbhai Shivabhai Jadav v. State of Gujarat, MANU/GJ/0889/2007; p. 104 Gowtham v. Senior Inspector of Police, W.P.No.2933 of 1997; p. 86 Gurbaksh Singh Sibbia v. State of Punjab, 1980 (3) SCR 383; p. 41n43 Gurdeep Singh @ Deep v. The State (Delhi Admn.), (2000) 1 SCC 498; p. 55 Harbans Kaur v. Union of India and Others, (1995) 1 SCC 623; pp. 66, 67, 83 Inder Singh v. State of Punjab, (1995) 3 SCC 702; p. 22n20 Jayalakshmi v. State of Tamil Nadu, (2007) 4 MLJ 849; pp. 22n20, 25, 85

Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360; pp. 68–69, 103 K.H. Shekarappa and State of Karnataka, 2010 (3) SCALE 681; p. 11n4 K.P. Raghavan and Another v. M.H. Abbas and Another, AIR 1967 SC 740; p. 108 Kamalanantha v State of T.N., (2005) 5 SCC 194z; p. 77 Kamla Devi v. Govt. of NCT of Delhi, 2000 Cri LJ 4867; p. 95 Kanshi Ram v. O.P. Chopra and Others, 1995 Cri LJ 2620; pp. 23, 89 Kartar Singh v. State of Punjab, (1994) 3 SCC 569; pp. 34n31, 55–57 Kashmira Singh v. State of Punjab, (1999) 1 SCC 130; p. 35 Kaushalya v. State of Punjab, (1999) 6 SCC 754; p. 22n19 Khadat Mazdoor Chetna Sangath v. State of M.P. and Others, (1994) 6 SCC 260; p. 8 Khatri v. State of Bihar, AIR 1981 SC 928; p. 24 Kubic Darusz v. Union of India, (1990) 1 SCC 568; p. 11n4 Lal Mohammad and Anr. v. Emperor, AIR 1936 Lah 471; p. 48n6 Maneka Gandhi v. Union of India, AIR 1978 SC 583; p. 17 Masooda Parveen v. Union of India and Others, AIR 2007 SC 1840; pp. 23, 66, 71, 102 Matajob Dobey v. H.C. Bihari, AIR 1956 SC 44; p. 75 Maula Bakhsh v. The Crown, AIR 1924 Lahore 167; p. 74 Mistra v. State of Uttar Pradesh, AIR 1997 SC 2102; p. 52n27 Mohd. Khalid v. State of W.B., (2002) 7 SCC 334; p. 35n37 Mr. Henri Tiphagne v. State of T.N., Crl.O.P.No.3715/2004; p. 93 Mullin v. Union Territory of Delhi, (1981) 1 SCC 608; p. 18 Munrti Devi v. State of Delhi and Others, (1998) 9 SCC 604; p. 88 Munshi Singh Gautam and Others v. State of M.P., (2005) 9 SCC 631; pp. 71–72 Murukeshan S/o Raman v. State of Kerala, 2010 (2) KLJ 361; p. 111 N.M.T Joy Immaculate v. State, MANU/TN/0715/2002; p. 91 Nagaraj v. State of Mysore, AIR 1964 SC 269; p. 52n25 Nagwant Sahay v. D.W. Ife, AIR 1946 Pat 432; pp. 72, 75 Nandini Satpathy v. P.L. Dani and Another, AIR 1978 SC 1025; pp. 65, 78 Neelam Katara v. Union of India, 14 October 2003, Crl. W. No. 247 of 2002; p. 39n30 Nilabati Behra v. State of Orissa, AIR 1993 SC 2366; pp. 18, 33

Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 785; p. 26n1 P. Rathinam v. State of Gujarat, (1994) SCC (Cri) 1163; p. 22n17 P. Rathinam v. Union of India, 1989 Supp (2) SCC 716; p. 22n17 P. Viswanathan v. Deputy Inspector General of Police and Superintendent of Police, MANU/TN/2785/2009; p. 107 Parbatabhai Sakharam Taram v. State of Maharashtra, 2006 Cri LJ 2202; p. 99 Patel v. State of Gujarat, Crim App 485 (2000) SOL; p. 54 People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301; p. 11n5 People’s Union for Civil Liberties v. Union of India, (1997) 3 SCC 433; p. 11n5 People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580; pp. 19n7, 56n38, 56n39, 57n40 Peoples’ Union for Democratic Rights Through Its Secretary v. Police Commissioner, Delhi Police Headquarters, (1989) 4 SCC 730; p. 79 Postsangbam Ningol Thokchom v. General Officer Commanding, (1997) 7 SCC 725; p. 22n21 Prabavathy v. The State of T.N. rep. by its Secretary to Government, Home Department, The Inspector of Police and the Superintendent, MANU/TN/0425/2010; p. 109 Prakash Singh and Others v. Union of India and Others, (2006) 8 SCC 1; p. 101 Prem Chand v. State of Haryana, AIR 1989 SC 937; pp. 29, 29n17 Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526; pp. 12, 18n4, 38n21, 78 Prithipal Singh v. CBI, Crl Appeals Nos. 523/2009(SC); p. 112 Public Prosecutor v. Shaik Ibrahim and Others, AIR 1964 AP 548; pp. 69, 76 Punjab and Haryana High Court Bar Association v. State of Punjab and Others, (1996) 4 SCC 742; pp. 24–25, 25n27 Queen Empress v. Babulal, ILR 6 All 509; p. 34 R.C. Cooper v. Union of India, AIR 1970 SC 564; p. 17 R.U. Babbudin Sheikh v. State of Gujarat and Others, (2007) 4 SCC 404; p. 103 Raja Ram Jaiswal v. State of Bihar, (1964) 2 SCR 752; p. 34n33

Rajammal v. State of T.N., (2008) 3 MLJ 167; p. 104 Rajasthan Kisan Sangthan v. State, AIR 1989 Raj 10; p. 22n16 Ram Nath v. Saligram Sharma, AIR 1967 All 519; p. 77 Ram Sakhi Devi v. State of Bihar and Others, (2000) 1 BLJR 753; p. 90 Rama Murthy v. State of Karnataka, (1997) 2 SCC 642; pp. 45, 45n55 Ratilal Raghavjibhai v. State of Gujarat, Crim. Misc. Application No. 14649 of 2010; p. 112 Roshan Lal and Others v. State of Punjab, AIR 1965 SC 1413; pp. 49, 77 Rudul Shah v. State of Bihar, (1983) 4 SCC 141; p. 21n15 S. Chandrasekharan v. The Secretary to Govt, Mad HC, W.P. No. 12599 of 2009 and M.P. Nos. 1 and 2 of 2009; p. 108 Sadashio Mundaji Bhalerao v. State of Maharashtra, AIR 2007 SC 1028; p. 98 Sahadevan v. State, (2003) 1 SCC 534; pp. 33n29, 92 Saheli, a Women’s Resource Centre v. Commissioner of Police, Delhi, AIR 1990 SC 513; p. 80 Sangaiyya v. State of T.N., Mad HC, 2010, W.P. (MD), No. 5272 of 2006; p. 110 Sanganagouda A. Veeranagouda and Others v. State of Karnataka, 2005 (2) ALD (Cri) 949; p. 94 Sanjay Suri v. Delhi Administration, AIR 1988 SC 414; p. 46 Sankaran Moitra v. Sadhna Das and Another, AIR 2006 SC 1599; pp. 73, 98 Saroj Rani v. Govt of NCT of Delhi, MANU/DE/1530/2010; p. 112 Sebastian M. Hongray v. Union of India, (1984) 1 SCC 339; pp. 24n25, 25 Secretary, Hailakandi Bar Association v. State of Assam and Another, 1994 Cri LJ 2197; p. 82 Selvi and Others v. State of Karnataka, (2010) 7 SCC 263; p. 63n47 Shakila Abdul Gaffar Khan v. Vasant Raghunath Dhoble and Another, (2003) 7 SCC 749; p. 92 Sham Kant v. State of Maharashtra, AIR 1992 SC 1879; p. 81 Shamboo Nath Mistra v. State of U.P., AIR 1997 SC 2102; p. 52n27 Sheela Barse v. Secretary, Children’s Aid Society, (1987) 3 SCC 50; p. 11n4 Sheela Barse v. State of Maharashtra, AIR 1983 SC 378; pp. 67, 70, 79 Sheela S. Yerpude v. Home Department, 2005 Cri LJ 2224; p. 95 Shiv Dev Singh v. Senior Supdt of Police, Batala (2000) 9 SCC 426; p. 90

Shri Dino D.G. Dympep and Another v. State of Meghalaya and Others, AIR 2007 Gau 155; p. 103 Somchand Sanghvi v. Bibhuti Bhushan, AIR 1965 SC 588; p. 76 State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 State of Andhra Pradesh v. N. Venugopal and Others, AIR 1964 SC 33; pp. 65, 69, 75 State of Gujarat v. Anirudhsing, (1997) 6 SCC 514; p. 34n31 State of Haryana v. Prem Chand and Others, (1990) 1 SCC 249; p. 29 State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262; pp. 22n19, 84, 107 State of Madhya Pradesh v. Shyamsunder Trivedi and Others, (1995) 4 SCC 262; pp. 22n19, 84 State of Maharashtra v. Chandraprakash Kewelchand Jain, (1990) 1 SCC 550; p. 30 State of Maharashtra v. Christian Community Welfare Council of India and Another, (2003) 8 SCC 546; p. 93 State of MP v. Sewa Singh, AIR 2007 SC 2263; p. 104 State of Punjab v. Barkat Ram, AIR 1962 SC 276; p. 34n31 State of Punjab v. Vinod Kumar, (2000) 9 SCC 742; pp. 22n20, 25 State of UP v. Mundrika and Others, (2001) 9 SCC 346; p. 90 State v. B.L. Verma and Another, (1997) 10 SCC 772; p. 52n27 State v. Navjot Sandhu, (2005) 11 SCC 600; p. 41n42 State v. R.P. Tyagi, 153 (2008) DLT 693; p. 105 State v. Ranbir Singh, MANU/DE/0029/2010; p. 109 Suba Singh v. State of Haryana and Others, (2006) 3 SCC 178; p. 100 Sunil Batra v Delhi Administration, (1980) 3 SCC 488; pp. 13, 18n4, 45, 78 Tasleema v. State (NCT of Delhi), 161 (2009) DLT 660; pp. 22n22, 108 Tukaram v. State of Maharashtra, AIR 1979 SC 185; p. 29n14 Union of India v. Luithukla, (1999) 9 SCC 273; p. 22n20 Unnikrishnan v. Alikutty, Crim App 747 (2000) SOL; p. 54 V. Shekar and Others v. State of Karnataka, 1991 Cri LJ 1100; p. 49n12 Vinesh Pundir v. State of U.P. and Others, (2002) 9 SCC 563; p. 92 Vishaka v. State of Rajasthan, (1997) 6 SCC 241; p. 11n5 Watch Dogs International v. Union of India, (1998) 8 SCC 338; pp. 46, 88

Pakistan

Abdur Rashid Butt v. The State, PLD 1997 Lah. 394; p. 167n13 Allah Rakhi v. State, as cited in Law and Justice Commission of Pakistan, Examination of Sections 54 & 167 of the Code of Criminal Procedure 1898; p. 196 Amir Ullah v. The State, (2004) PCrLJ 821; p. 167n15 Begum Tahira Masood v. Fariduddin Masood, PLD 1974 Lah. 120; p. 167n17 Benazir Bhutto v. President of Pakistan, PLD 1998 SC 388; p. 167n14 Bhutto v. Chief of Army Staff, PLD 1977 SC 657; p. 186 Ch Zahur Elahi MNA v. State, PLD 1977 SC 273; p. 184n3 Darwesh Arbey v. Federation of Pakistan, PLD 1980 Lah. 206; p. 185n8 F.B. Anli v. The State, PLD 1975 SC 506; p. 184n2 Fida Mohammed v. Province of NWFP, PLD 1973 Peshawar 156; p. 185 Ghulam Abbas v. The State, PLD 1968 Lah. 101 Haji Abdullah v. Presiding officer Summary Military Tribunal, PLD 1980 Karachi 498; p. 187n16 Karamat Ali v. The State, PLD 1976 SC 476; pp. 184n2, 186n13 Khizer Hayat v. The State, PLD 2005 Lah. 470; p. 195n12 Liaquat Hussain v. Federation of Pakistan, PLD 1999 SC 504; pp. 191, 191n34 Mehram Ali v. Federation, PLD 1998 SC 1445; p. 190 Mohd.Riaz v. State, PLD 1989 SC 633; p. 176n3 Mr. Zulfiqar Ali Bhutto v. The State, PLD 1978 SC 40; p. 186n11 Muhammad Afzal v. Home Secretary, PLD 1996 Lah. 325 Muhammad Ismail Qureshi v. Pakistan, PLD 1991 FSC-10; p. 176n5 Niaz Ahmed v. Province of Sind, PLD 1977 Karachi 604; p. 184n4 Nusrat Bhutto v. Chief of Army Staff, PLD 1977 SC 657; p. 186n10 Province of Punjab v. Gulzar Hassan, PLD 1978 Lahore 1298; p. 187n14 Saifuddin Saif v. Federation of Pakistan, PLD 1977 Lah. 1174; p. 167n16 Sher Ali and others v. Sheikh Zahoor Ahmed, PLD 1977 SC 545; p. 185n6 State v. Dosso, PLD 1958 SC 533; pp. 173n43, 179n19 State v. Muhammad Yusuf, PLD 1965 Lah. 324; p. 195n14 Zafar Ali Shah v. General Parvez Musharraf, PLD 2000 SC 869; p. 173n42

Bangladesh

Alhaj Mohd.Yusuf Ali v. The State, 22 BLD (2002) 231; p. 222n15 Blast v. Bangladesh, 55 DLR (2003) 363; pp. 222n14, 223n23, 229, 232 Hafizuddin v. State, 42 DLR (HCD) (1990) 397; p. 223n18 Khondker Hossain v. Bangladesh Italian Marble Works Ltd, Appeal No. 1044 of 2009; p. 218n9 Moinul Haque (Md.) and Others v. State, 56 DLR (AD) (2004) 81; p. 227 Munshi Kabir v. Bangladesh Italian Marble Works Ltd, Appeal No. 1045 of 2009; p. 218n9 Nurul Islam v. State, 45 DLR (1993) 152; p. 223n18 Saifuzzaman v. State, 56 DLR (2004) 324; p. 222n14 Shaikh Baharul Islam v. State, 43 DLR (HCD) (1991) Siddique Ahmed v. State of Bangladesh, W.P. No. 696 of 2010; p. 218n9 Zillur Rehman v. State, 6 MLR (HCD) (2001) 99; p. 223n22

Sri Lanka Democratic Socialist Republic of Sri Lanka v. Madiliyawatte Jayalathge Thilakarathna Jayalath, Colombo High Court, HCM 1901 (2004); pp. 279, 279n13 Democratic Socialist Republic of Sri Lanka v. Suresh Gunasena & others, HC Case No. 326/2003, Negombo High Court, HCM 02.04.2008; pp. 258n17, 278n7 Faiz v. Attorney-General, 1995 (1) SLR 372; pp. 254, 254n11 Government of Democratic Socialist Republic of Sri Lanka v. Selvin Salle and another HC Case No. 966/2002, Colombo High Court, HCM 20.07.2007; p. 280 Government of Sri Lanka v. Sub Inspector of Police, Warnakulasuriya Mahavaduge Rohan Prasanka Peris Case No. H.C.259/2003, High Court, Negombo, 9.10.2008; p. 280 J.A. Yasapala v. Ranil Wickramasinghe, (1980) 1 Fundamental Rights Decisions 143; pp. 260, 261n26 Janatha Finance v. Liyanayage, SCA 127/1982; p. 261 Jayakody v. Karunanayake, 1994 (2) SLR 264; p. 255n13 K. Velmurugu v. The Attorney-General and Another, 1 Sri Lanka Law Reports (SLLR) 406 (1981); pp. 254, 254n9

Kanapathipillai Machchavallavan v. OIC, Army Camp, Plantain Point, Trincomalee and Others, (SC Appeal No. 90/2003, SC (Spl) L.A. No. 177/2003, SCM 31.03.2005); p. 253n7 Kodeeswaran v. The Attorney General of Ceylon, (1969) 72 NLR 337 Kotabadu Durage Sriyani Silva (wife of Jagath Kumara—deceased) v. Iddamalgoda, (2003) 2 Sri LR, 63 Nalika Kumdii, Attorney-at-Law (On Behalf of Malsha Kumari) v. Nihal Mahinda, O.I.C. Hungama Police and Others SCA 615/1996, 30 October 1996; p. 258 Pelawattage v. O.I.C. Wadduwa, SC Appn. No. 433/93, SC Minutes, 31 August 1994; pp. 258, 259n20 Pradeep Kumar Dharmaratne v. Inspector of Police Dharmaratne and Others, SC Appn. No. 163/98, SCM 17. 12. 1998; p. 270n7 Republic of Sri Lanka v. Edirisinghe, HC Case No. 1392/2003, Colombo High Court, HC Minutes 20.08.2004; pp. 279, 279n14 Republic of Sri Lanka v. Madiliyawatte Jayalathge Thilakarathna Jayalath, HC Case No. H.C 9775/99; pp. 279, 279n13 Republic of Sri Lanka v. Selvin Selle and Another, HC No. 966/2002, Colombo High Court HC Minutes 20.07.2007; pp. 279, 279n14, 279n15 Republic of Sri Lanka v. Suresh Gunasena and Others, Negombo High Court, HC Minutes 02.04.2008; pp. 258n17, 278n7 Saman v. Leeladasa and Another, (1989) I Sri SLR 44; p. 254 Sanjeewa, Attorney-at-Law (on behalf of Gerald Mervin Perera) v. Suraweera, Officer-in-Charge, Police Station, Wattala and others, (2003) 1 SLR 317; p. 256n15 Weragama vs Indran and others, SC Appns. 396-397/93, SC Minutes, 24/02/1995; p. 259n20 Wijeratne v. Vijitha Perera, 2002 (3) SLR 319; p. 255n13

Nepal Prabhujee Pant v. HMG Nepal, NeKaPa (1992) BS: 298; p. 304n12

Miscellaneous

Ireland v. United Kingdom (1978), European Court of Human Rights, Series A, No. 25; p. xxxvii

Constitutions Constitution of Afghanistan, 2004; pp. 404–406 Constitution of Bangladesh, 1972; pp. 216n1, 216n4, 216n5 Constitution of India, 1950; p. 44n52 Constitution of Pakistan, 1973; pp. 166–170, 175n1 Constitution of Sri Lanka, 1972; pp. 249–250 Constitution of the Kingdom of Nepal, 1990; pp. 298, 299–302, 323, 327n5 Draft Constitution of Sri Lanka; pp. 250, 252n2, 261 Interim Constitution of Nepal, 2007; pp. 303–307, 327n5

Legislations India All India Services (Discipline and Appeal) Rules, 1969; p. 44n52 Anti Terrorism Act, 1997; pp. 189–192, 202 Anti Terrorism Ordinance, 1999; p. 191n37 Anti-Terrorism (Amendment) Act, 2001; p. 191 Armed Forces (Jammu and Kashmir) Special Powers Act, 1990; p. 53n30 Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983; p. 53n30 Armed Forces Special Powers Act, 1958; pp. 13–14, 47 Army Act, 1950; p. 53n29 Border Security Force Act, 1968; p. 28n13 Children Act, 1960 Code of Criminal Procedure, 1898; pp. 194–195, 196n15, 198n18, 221– 223, 234 Code of Criminal Procedure, 1973; pp. 14, 25, 36, 51, 70 Geneva Conventions Act (India), 1960 Indian Evidence Act, 1872; pp. xli, 29, 30, 32, 34, 35, 57, 59, 165

Indian Independence Act, 1947; p. 165n1 Indian Penal Code, 1860; xli, 9n1, 26, 38, 48, 69, 156, 165 Narcotic Drugs and Psychotropic Substances Act, 1985; p. 59 Police Act, 1861; pp. 44, 65 Prevention of Terrorism Act, 2002; pp. 6, 55–59, 124 Prisons Act, 1894; pp. 44–46 Protection of Civil Rights Act, 1955; p. 9n1 Protection of Human Rights Act, 1993; pp. 10, 13 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; pp. 9n1, 99, 100 Terrorist and Disruptive Activities (Prevention) Act, 1987; pp. 6, 55, 99 Unlawful Activities (Prevention) Amendment Act, 2008; p. 58 Unlawful Activities Prevention Act, 1967; p. 53

Pakistan Army (Amendment) Act, 1977; pp. 172, 180 Constitution (Amendment) Order, 1979; p. 171n30 Constitution (Fifth Amendment) Act, 1976; p. 170n26 Constitution (First Amendment) Act, 1974; p. 169n22 Constitution (Fourth Amendment) Act, 1975; p. 169n25 Constitution (Second Amendment) Act, 1974; p. 169n23 Constitution (Second Amendment) Order, 1979; p. 171n31 Constitution (Seventh Amendment) Act, 1977; p. 170n27 Constitution (Twelfth Amendment) Act, 1991; p. 173n40 Constitution Amendment Order, 1980; p. 171n32 Criminal Law (Amendment) Act, 2004; p. 176n7 Juvenile Justice System Ordinance, 2000; pp. 201–205 Laws (Continuance in Force) Order, 1977; p. 171n29 Legal Framework Order, 2002; p. 174 Offence of Zina (Enforcement of Hudood) Ordinance, 1979; p. 176, 176n8, 176n9, 179 Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998; pp. 190, 190n33 Pakistan Army (Amendment) Act, 1977; p. 180n20

Pakistan Penal Code, 1860; pp. 165, 167n18, 175, 191, 194–195, 195n10 Police Order, 2002; p. 207 Police Rules, 1934; pp. 195, 195n13 Protection of Women (Criminal Laws Amendment) Act, 2006; p. 178 Provisional Constitutional Order 1 of 2007; p. 174 Provisional Constitutional Order, 1981; p. 187 Qanoon-e-Shahadat Order, 1984; pp. 194, 194n7, 194n8 Revival of the Constitution of 1973 Order, 1985; p. 172n38 The Anti-Terrorism Act, 1997; pp. 189–192, 202

Bangladesh Dacca Metropolitan Police Act, 1976 Emergency Power Ordinance, 2007; pp. 228, 228n44 Emergency Power Ordinance, 2007; pp. 217, 224, 225, 239 Emergency Power Rules, Bangladesh, 2007 Joint-drive Indemnity Act, 2003; pp. 217, 217n6, 217n7, 225, 239 Joint-drive Indemnity Act, 2003; pp. 228, 239 Prevention of Oppression of Women and Children Act, 2000; pp. 219, 220, 226–227, 227n38, 227n39, 227n40, 227n42

Afghanistan Afghan Interim Criminal Procedure Code, 2004; pp. 411–413 Afghan Penal Code, 1976; pp. 411–413 Law on Organisation and Jurisdiction of Courts of the Islamic Republic of Afghanistan, 2005; p. 406n23

Sri Lanka Human Rights Commission Act, 1996; p. 290 International Covenant on Civil and Political Rights Act, 2007; p. 276 Prevention of Terrorism Act, 1979; pp. 263, 264–267 Regulations Amending the Emergency (Miscellaneous Provisions and Powers) Regulation No. 1 of 2005, 2010; pp. 279, 288

Sri Lankan Code of Criminal Procedure (Amendment) Act, 2005; pp. 269, 269n4, 269n5 Sri Lankan Code of Criminal Procedure (Special Provisions) Act, 2007; pp. 270n13, 272, 272n21 Sri Lankan Public Security Ordinance, 1947; pp. 260, 260n24, 262

Nepal Compensation for Torture Act, 1996; pp. 300n11, 300n12, 300n13 Disappearances of Persons (Crime and Punishment) Bill, 2006; p. 306 Human Rights Commission Act, 1997; pp. 300, 328, 328n9, 329n10, 329n11 The Military Act, 1959; pp. 308, 308n2, 309, 326 The Military Act, 2006; pp. 308–311, 321, 321n11, 331 Muluki Ain (National Code 1854); pp. 295, 296 Muluki Ain (National Code 1964); pp. 297, 315, 315n1 The Prevention of Corruption Act, 2002; pp. 318, 318n6 The State Cases Act, 1992; 317–318

International Conventions and Resolutions Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 16 December 2005; pp. 219n1, 275n1 Civil and Political Rights, including the Questions of Torture and Detention, United Nations Commission on Human Rights, 30 March 2005; pp. xlv, 6, 47, 193, 236, 297, 389, 409, 419 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984; pp. xxv, xlv, 8, 60, 193, 219, 236, 275, 276, 297, 305, 324, 409, 419 Convention on the Rights of the Child, 2 September 1990, A/RES/44/25; pp. 193, 202n38, 275, 297, 409 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, 9 December 1975, A/RES/30/3452; p. 13n13 Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims (Fourth Geneva Convention), 12 August 1949; p. xlvn1 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, A/RES/61/177; pp. xlv, xlviii, 8, 193, 306, 419 International Covenant on Civil and Political Rights, 16 December 1966; pp. xlv, 6, 8, 47, 193, 236, 275, 297, 389, 409, 419 Standard Minimum Rules for the Treatment of Prisoners, 1955, Office of the United Nations High Commissioner for Human Rights, available at http://www2.ohchr.org/english/law/treatmentprisoners.htm (last accessed on 11 December 2012); p. 273 The Universal Declaration of Human Rights, 10 December 1948; pp. xxv, xlvi, 8

List of Abbreviations ACHR ACLU ACP AD ADG AFSPA AHRC AI AIG AIHRC ALEP ANSF AP ASDP ASI ASJ ASP ATA ATC BLAST BNP

Asian Centre for Human Rights American Civil Liberties Union Additional Commissioner of Police Anno Domini Additional Director-General of Police Armed Forces (Special Powers) Act Asian Human Rights Commission Amnesty International Additional Inspector General of Police Afghanistan Independent Human Rights Commission Afghanistan Legal Education Project Afghan National Security Forces Andhra Pradesh Afghan Social Democratic Party Assistant Sub-Inspector of Police Additional District and Sessions Judge Assistant Superintendent of Police Anti-Terrorism (Amendment) Act, 2001 Anti-Terrorist Courts Bangladesh Legal Aid and Services Trust Bangladesh Nationalist Party

BNS Bangladesh Naval Ship BOM LR Bombay Law Reporter BP Blood Pressure BPC Bangladesh Penal Code BSF Border Security Force CAP/NaLAN Consortium for Assisting Prisoners/National Legal Aid Network CAT UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CBCID Crime Branch Criminal Investigation Department CBI Central Bureau of Investigation CBM Confidence Building Measures CCTV Closed-Circuit Television CCWCI Christian Community Welfare Council of India CEDAW Convention on the Elimination of All Forms of Discrimination against Women CeLRRd Centre for Legal Research and Resource Development CERD Convention on Elimination of All Forms of Racial Discrimination CFA Ceasefire Agreement CIA Central Investigation Authority/Crime Investigation Agency/Central Intelligence Agency CID Criminal Investigation Department CMC Civil Monitoring Commission CNN Cable News Network CPI (IW) Consumer Price Index of Industrial Workers CPMF Central Paramilitary Forces CPN–M Communist Party of Nepal–Maoist CPN–UML Communist Party of Nepal (Unified Marxist Leninist) CRC Convention on the Rights of the Child CrPC Code of Criminal Procedure, 1973 CRPF Central Reserve Police Force

CVICT DB DG DGFI DGP DIG DM DMCH DPO DRA DSP EMPPR EPDP EPO EPR FATA FCA FCR FIR FOHRID GoSL HC HIV/AIDS NHRC HRCP HRCSL HRO HRTMCC IA IB

Centre for Victims of Torture Division Bench Director General Directorate General Forces Intelligence Director General of Police Deputy Inspector General of Police District Magistrate Dhaka Medical College and Hospital District Police Officer Democratic Republic of Afghanistan Deputy Superintendent of Police Emergency (Miscellaneous Provisions and Powers) Regulations, 2005 Eelam People’s Democratic Party Emergency Powers Ordinance Emergency Powers Rules Federally Administered Tribal Areas Federal Court of Australia Frontier Crimes Regulation First Information Report Human Rights and Democratic Forum Government of Sri Lanka High Court Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome National Human Rights Commission Human Rights Commission of Pakistan Human Rights Commission of Sri Lanka Human Rights Officer Human Rights Treaty Monitoring Coordination Committee Islamic Association Intelligence Bureau

ICC ICCPR ICERD ICESCR ICJ ICOIC ICPPED ICRC ICU IG IIGEP IO INSEC IPC IPKF ISAF ISI JJSO JMO JSAB JSC JSDB KHAD LGBT LST LTTE MHA MJ

International Criminal Court International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Commission of Jurists Independent Commission for Oversight of the Implementation of the Constitution International Convention for the Protection of all Persons from Enforced Disappearance International Committee of the Red Cross Intensive Care Unit Inspector General of Police International Independent Group of Eminent Persons Investigating Officer Informal Sector Service Centre Indian Penal Code Indian Peace Keeping Force International Security Assistance Force Inter Services Intelligence Juvenile Justice System Ordinance Judicial Medical Officer Judicial Services Advisory Board Judicial Service Commission Judicial Services Disciplinary Board Khadamat-e Etela’at-e Dawlati Lesbian, Gay, Bisexual and Transgender Law & Society Trust Liberation Tigers of Tamil Eelam Ministry of Home Affairs Meshrano Jirga

MLA MoU MP MRRD MVA NATO NCT NCW NDC NGO NHRC NIMHANS NPR NSG NWFP OEF OGA OIC PCO PIL PDPA PLA PM POK POTA POTO PPC PTA PTSD PUCL PUDR

Member of Legislative Assembly Memorandum of Understanding Member of Parliament Ministry of Rural Rehabilitation and Development Motor Vehicles Act North Atlantic Treaty Organisation National Capital Territory of Delhi National Commission for Women New Democratic Current Non-governmental Organization National Human Rights Commission National Institute of Mental Health and Neurological Sciences Nepalese Rupee National Security Guard North-West Frontier Province Operation Enduring Freedom Other Governmental Agency Officer-in-charge Provisional Constitutional Order Public Interest Litigation People’s Democratic Party of Afghanistan People’s Liberation Army Prime Minister Pak-occupied Kashmir Prevention of Terrorism Act Prevention of Terrorism Ordinance Pakistan Penal Code Prevention of Terrorism Act Post Traumatic Stress Disorder People’s Union for Civil Liberties Peoples Union for Democratic Rights

R&AW RAB RAWA RCCC RNA RSF SAARC SAHR SAHRDC SCC SERE SHO SHRC SI SIT SIU SLC SLMM SLR SP SPA SPC SSP TADA TADO TCA UAPA UDHR UK UN UNDP UNHCR

Research and Analysis Wing Rapid Action Battalion Revolutionary Association of Women of Afghanistan Royal Commission for Corruption Control Royal Nepalese Army Reporters Sans Frontières South Asian Association for Regional Cooperation South Asians for Human Rights South Asia Human Rights Documentation Centre Supreme Court Cases Survival, Evasion, Resistance and Escape Station House Officer State Human Rights Commission Sub-Inspector Special Investigations Team Special Investigation Unit School Leaving Certificate Sri Lanka Monitoring Mission Sri Lanka Law Report Superintendent of Police Seven Party Alliance Sri Lanka Penal Code Senior Superintendent of Police Terrorist and Disruptive Activities (Prevention) Act Terrorist and Disruptive Activities (Prevention) Ordinance Torture Compensation Act Unlawful Activities (Prevention) Act Universal Declaration of Human Rights United Kingdom United Nations United Nations Development Programme United Nations High Commissioner for Refugees

UNICEF UNPO UNTS USA USSR VOC VDC VIP WHO

United Nations Children’s Fund Unrepresented Nations and Peoples Organization United Nations Treaty Series United States of America Union of Soviet Socialist Republics Vereenigde Oost-Indische Compagnie Village Development Committee Very Important Person World Health Organization

Preface Real Swaraj will come, not by the acquisition of authority by a few but with the acquisition of the capacity by all to resist authority when it is abused. —Mohandas Karamchand Gandhi

The best test of a free nation is the protection its citizens have from custodial abuse. And, no power is more prone to abuse than that wielded over a person in custody. This book reviews how six South Asian countries have equipped their systems to tackle custodial torture. India, Pakistan, Bangladesh, Sri Lanka, Afghanistan and Nepal are heir as much to the ideals of regional democratic movements as they are to the universal principles of human rights. They have all witnessed, if not lived through, anti-colonial movements and anti-majoritarian struggles. History should have taught them to temper state power by enabling the common people to access justice. Yet, 60 years after the Universal Declaration of Human Rights (UDHR) and after repeated affirmations of these and like principles in various national charters, custodial torture is rampant in all six countries. India has seen a colonial past that had inquired into and outlawed custodial torture nearly a century before Independence. Yet, as a free nation, India has failed to even ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture, or CAT).

On the other hand, Nepal, Sri Lanka, Bangladesh and Afghanistan have ratified CAT. However, despite a Compensation for Torture Act, Nepal’s courts have been hesitant to award meaningful compensation even in proven cases of torture. Pakistan, Bangladesh and Sri Lanka have even permitted UN Special Rapporteurs on Torture to visit their countries. Yet, undisclosed locations seem to abound on their soil where torture is carried out by security agencies just as much as it is in police lock-ups and jails. Custodial abuse persists despite declarations against it in national and international law. It persists and thrives, not in the absence of condemnation, but upon the irrelevance of it. The cold truth is that custodial torture does not stir the collective’s conscience though it may outrage many of us as individuals. All the six South Asian countries have directly or geopolitically felt the impact of colonialism. Western condemnation of torture was not the product of a uniformly progressive ideology, but one geared to aid expansionist ambitions and strategic pursuits in Asia. Contradictions, inherent in the civilising mission of the West, have worked in some common and in some diverse ways on these six nations. Events in 19th-century Europe, often uncritically called a transition to modernity, affected all of South Asia. The ugly part of policing was left to the natives, also condemned as barbarians who needed to be disciplined. Does a similar mindset characterise these now sovereign nations, where custodial torture is brushed aside as the incurable crudeness of the junior constabulary? The political and constitutional history of these nations provides an important context to locate the response of institutions to custodial torture. This book draws upon the research of Delhi-based lawyer and researcher Shrimoyee Nandini ghosh that exposes the hegemonic validation of torture and its modern acceptance as a ‘public secret’. The protest against torture is founded on a rhetoric of platitudes but does not engage with the deeper hypocrisy that allows the rhetoric to co-exist amiably with what it opposes. This doublespeak is demonstrated in the chart of Indian court decisions spanning seven decades. Meticulously compiled by Anahita Rao Patwardhan, then a 20-year-old graduate student of jurisprudence at Oxford, the chart maps the twists and turns of Indian judicial engagement with the

issue of custodial torture. Anahita’s chart brings out the lurking hesitation to haul up the state despite genuine despair over custodial lawlessness. India, Pakistan and Bangladesh have criminal statutes with similarities. Sri Lankan law is comparable and even more detailed. The right to life and due process, penalisation of homicide, rape and hurt and the bar on confessions made in police custody are features common to these systems. Some have special laws to penalise torture or enable compensation; others have developed this by judicial decisions. Sri Lanka’s Supreme Court has culled out far-reaching principles of vicarious liability and command responsibility. In time, these principles should have led to more accessible justice through mechanisms like the Human Rights Commission, but are thwarted by executive interference in their functioning. Afghanistan has seen tumultuous times. Excesses of the worst kind are committed by non-state actors in Afghanistan. Institution building has been seriously hampered in that country by uninterrupted Western interference of different hues, cycles of extremist violence and the current strategic operations from that soil. However, the country’s ratification of CAT as well as the International Criminal Court (ICC) should signal hope. The Supreme Court of Bangladesh has probed what really would constitute ‘reasonable cause for arrest’, a critical question that many have stopped asking. Progressive developments in Bangladesh include court decisions that have given exemplary punishment for custodial rape and the recommendation of its Law Commission that the burden of proof be shifted to the custodial official when custodial injury or death is established. Yet, even well-known journalists are held in illegal detention and tortured with impunity in Bangladesh. Pakistan has been destabilised by military dictatorship and religious fundamentalism. The effect on custodial rights has been devastating. State brutality is upheld by the sanction of bodily mutilation as punishment. There are telling statistics of custodial crimes in Pakistan. The Human Rights Commission of Pakistan (HRCP), an independent non-governmental organization (NgO), has taken commendable initiatives and the Supreme Court has supported some recent ones by directing the state and its intelligence agencies to trace enforced disappearances.

The UN CAT is an important norm, ratification of which obliges a nation to enact laws to penalise custodial torture and to provide reparation. It also obliges a nation to allow inspection by international monitoring agencies. The use of the Convention as an international norm enabled a recent judgment of the Court of Appeal of the United Kingdom (UK),1 which held Saudi officials liable for the torture of British citizens. The UK has recognised the provisions of the Convention in its Criminal Justice Act, and the court granted damages by invoking the principle of a norm ratified by both Saudi Arabia and the UK, namely CAT. This was an extension of the principle relied upon by the House of Lords in ex parte Pinochet. A different view has, however, been taken by the Federal Court of Australia (FCA). In Nulyarimma v. Thompson,2 it held that local courts could not take cognizance of extra-territorial offences simply on the basis of the Convention without an enacted local statute on the subject. All the narratives describe the imperviousness of systems to norms of justice. Remedy, though acknowledged, is neither certain nor easy to access. This impunity is fed by the notion that there is a public purpose to custodial torture. Conditions of prior sanction and other statutes of limitation protect perpetrators. Invariably, it is the superior courts that respond with sensitivity to the victims of torture. But very few can reach these courts, and Human Rights Commissions have failed to live up to their promise. Then, there is the discursive management of national security, which posits any charge against the law enforcement agencies as a threat to order, if not security. A serious study on custodial torture cannot be a story of numbers, though numbers would indicate how widespread the practice is. There are no reliable statistics on custodial torture, which only shows that there is no mechanism to check the occurrences. A law penalising torture and providing for compensation is a necessary, though not sufficient, condition for controlling custodial crimes. The system must ensure that victims are not driven to bear the burden of prosecuting cases of torture, and that the perpetrators are not shielded by the state. Custodial torture is an aggravated crime. It is not better but worse for being done by state agents. This truth would be acknowledged only if ‘prior sanction’ and ‘immunity provisions’ are dismantled. Command

responsibility must be built into the law. As recommended by India’s Law Commission and also Bangladesh’s, there must be a presumption of guilt on the part of the custodial officer once injury or death in custody is established. Also, there should be an independent investigating agency to prosecute custodial crimes. The darkest truth about a custodial cell is that within its confines the officer is all-powerful and no law may override the officer’s will. As in all crimes, it is the certainty of penalty more than its distant severity that works as a deterrent, and prevention of torture is not possible unless the administration accepts this fact. Magistrates and medical examiners have been known to look the other way even when they notice marks of torture. The campaign against torture cannot afford to become complacent merely because systems are theoretically in place. Scientific methods of investigation are important and need to be thought through better. Systematic tracking of information and analysing corroborative material is essential. But, chemical-induced truth testing is deeply problematic. The Supreme Court of India has held narco-analysis and chemical testing to be unconstitutional on the ground that subjecting a prisoner to a test with a predetermined truth-value would, in effect, destroy the presumption of innocence and negate the purpose of trial and inquiry. Here, an explanation is in order. A friend from Sri Lanka had posed a query on how this view of chemical testing is relevant to the topic of custodial torture. Fairly obvious, one would have thought. First, to be subjected to a ‘truth test’ while in custody is, by itself, custodial excess. Pulling out nails is not the only form of torture. Second, the occasion to be subjected to or to agree to a chemical test presents an occasion for torture. Third, these ‘scientific’ methods are falsely touted as investigative tools that obviate the need for custodial torture, which is far from being the case. Therefore, even while addressing the issue of custodial torture, it is important to see through notions of ‘better’, ‘other’ scientific methods of investigation. The campaign against torture must be an informed engagement with the criminal justice system. It would also occasion an ideological confrontation with those who work the system. Rights activists should document how magistrates deal with prisoners and record how hospitals conduct medical

examinations. The challenge is to see how victims’ access to justice can be made easier, surer and less dependent on lawyers and superior courts. Rigorous documentation of all the attendant processes and of the actual judicial trends must be carried out and kept up to date. Administrative heads of security and police establishments need to be regularly called to account on disciplinary steps taken against officials accused of custodial abuse. The campaign’s aim should be to keep up a public debate on the subject. The quality of engagement with the system—or the lack of it—would have a bearing on impunity, which is the result of complex factors. The myth of a ‘good side to torture’ stands exposed as senior law enforcement officers deny even its usefulness in investigation. Despite this, there is a call for strong-arm methods ‘in these trying times’. The psychology professional speaks of how the prisoner is alienated in one’s consciousness as the ‘enemy’. The three interviews—of a former intelligence chief, a former police chief and of a psychology expert— recorded by Shrimoyee offer insights on the nature of advocacy needed in the campaign for custodial justice. Courts that are ready, even eager, to go the extra mile to protect individual rights hold themselves back when security is seen to be an issue. As a policy, courts tend to uphold emergency laws. They are also slow to grant bail, compensation or other relief to citizens when the state cites security exigencies. The security argument has overwhelmed all other discourse and due process is increasingly viewed as an impediment. One cannot, therefore, bypass the security argument and it must be met by demonstrating that state lawlessness corrodes the system no less than terrorism. Towards facilitating effective advocacy against custodial torture, this book sets each nation within its constitutional history and explores in the case of each international commitments, legal provisions, judicial and institutional trends, and case studies to illustrate the gap between norm and practice. At the end, there is a campaign plan suggesting measures legislative, administrative and persuasive. Nitya Ramakrishnan

New Delhi November 2012 _________________ 1

Law Quarterly Review 121 (2005), p. 353.

2

(1999) FCA 1192.

Acknowledgements First and foremost I wish to thank South Asians for Human Rights (SAHR) for sponsoring this study, which gave me an opportunity to learn about the South Asian neighbourhood. I had excellent help. Shrimoyee Nandini ghosh has a talent for tracing the politics of law. She is a skilful chronicler of the subtext and her perspectives on legal history have been vital to this work. Anahita Rao Patwardhan, who was, at the time, reading Jurisprudence at Oxford, did meticulous research on Indian case law spanning eight decades. I am very grateful to Kishalie Pinto Jayawardane, human rights lawyer, columnist and author for reviewing the section on Sri Lanka. The surveys, interviews and case studies done by SAHR’s national researchers Rabia Chowdhry (Research Fellow, Centre for Law and Policy, University of Management and Technology, Lahore) of Pakistan, Dr Abdulla Farouque (Associate Professor and former Head of Department of Law, University of Chittagong) of Bangladesh, Priyantha gamage (Attorney-at-Law) of Sri Lanka, Mr Ajmal Hodman (Advocate) of Afghanistan and Human Rights and Democratic Forum (FOHIRD) of Nepal were of great use. Many young lawyers and students assisted with the research. Delhibased lawyers Sarim Naved, Pia Singh D’Mello and Apoorva Kothari took time out from their practice to help me. Sarim did a comparative analysis of the statutes of the six countries covered in this study. Pia and Apoorva compiled case studies from Pakistan and summarised the relevant Pakistani statutes. Anjali Anchayil, a student of National Law School of India

University (NLSIU), Bangalore, found excellent sources on Afghanistan and Bangladesh and updated the chart of Indian court decisions, along with Varun Rajiv, a graduate of NLSIU, and Suksham Chauhan, Faculty of Law, University of Delhi. Anjali also proofread the manuscript and prepared the list of authorities and the bibliography. Akanksha Singh and Nishita Vasan, at that time third-year students of NLSIU, did a detailed study of Sri Lanka and Nepal. Akanksha, Anjali and Nishita carefully checked the footnotes and references. Payal Kumari and K. Kiran Mayee, at that time third-year students at the Chanakya National Law University, worked on Bangladeshi law and cases. Ria Singh Sawhney of the Faculty of Law, University of Delhi, prepared two sets of excellent working notes. One was on the Afghan Constitution and another on a recent jurisdictional dispute between the Afghan Parliament and the Karzai government. With Anjali and Ria, Vishrut Aggarwal, a student, copy-edited the victim narratives from Nepal. Anindita Mukherjee, a third-year student of National Academy for Legal Studies and Research, exhibited a competence beyond her years. With her excellent English and thorough reading, she was of invaluable assistance, and with her sense of humour, a great pleasure to work with. Three experts from diverse fields spared the time to talk to us. They are D.R. Kaarthikeyan, a former Director of the Central Bureau of Investigation (CBI) and also a former Director-general of the National Human Rights Commission of India; Vikram Sood, a former Director of the Research and Analysis Wing (RAW), government of India, and now a well-regarded columnist on security affairs; and Dr Alok Sarin, a well-known practising psychiatrist of Delhi, with a sustained involvement in public issues. I appreciate their thoughtful engagement with the subject of this book. Justice (retired) Jawaad Khwaja of Pakistan was most informative on police practices in that country, and I am very grateful to him for talking to Rabia, SAHR’s national researcher for Pakistan. Under Nepal’s Interim Constitution, the Attorney general’s Office is entrusted with the power and the duty to protect custodial rights. I thank the Deputy Attorney general of Nepal, Mr Kumar Chudal, for the interview given to Human Rights and Democratic Forum (FOHRID) as SAHR’s national researcher for Nepal.

I have drawn freely from the published work of many human rights organisations such as South Asia Human Rights Documentation Centre (SAHRDC), Asian Centre for Human Rights (ACHR), REDRESS UK, Centre for Victims of Torture (CVICT), Informal Sector Service Centre (INSEC), Odhikar, Ain-o-Salish Kendra (ASK), besides other academic and legal research sources. They are duly acknowledged wherever referred to in this book. Victims of torture, prison inmates, their families and others have spoken of their experiences. Many of them remain unnamed in the book. My heartfelt thanks to them for their cooperation. Professor S.A.R. geelani ungrudgingly spent hours describing his time in police custody. I cannot thank him enough for talking in detail about what must surely be a stressful phase to relive for his family and himself. Veteran Indian journalist Shastri Ramachandaran patiently read through the manuscript and made valuable suggestions. My versatile friend, Chitra Padmanabhan, helped in many, many ways. So did my old comrade-in-arms Ravi Nair of SAHRDC, a formidable mine of information. Suhasini Sen, Rahul Kripalani and Pooran Singh, my everconsiderate colleagues, deserve my gratitude for their patience with me. I thank Hameeda Hossain for her cool and persistent focus on the end result. I hope and trust it is to her satisfaction. Last, but not the least, I must mention the gracious Shiranthi of SAHR who remained a veritable pillar of strength. None of this would have been possible without her. It is likely that the study has missed out important things, for even as this was being written, developments in law and policy were taking place in the six countries that are the subject of this work. The responsibility for errors of omission and commission in the study is mine alone. Nitya Ramakrishnan

New Delhi November 2012

Torture as a Public Secret…An Introduction [T]he modern history of ‘torture’ is not only a record of the progressive prohibition of cruel, inhuman and degrading practices. It is also part of a more complex story of the modern secular concept of what it means to be truly human. —Talal Asad1

Enlightenment Europe and the ‘Disappearance’ of Torture In his seminal work, Discipline and Punish, Michel Foucault writes that the 19th century saw a redistribution in the economy of punishment. It was a time of great ‘scandals’ for traditional justice, a time of innumerable reform projects. Modern codes were planned or drawn up ushering in a new age of penal justice. Amidst so many changes, Foucault focuses on two—the disappearance of torture as public spectacle and the slackening of the sovereign’s hold on the physical body of the condemned person. Punishment of a less immediately physical kind, a discretion in inflicting pain, a combination of more subtle, more subdued sufferings, deprived of their visible display, came to replace older kinds. One no longer touched the body or at least did so as little as possible, and then only to reach something other than the body itself. If it still be necessary for the law to touch the body, then it must be at a distance, in the proper way, according to strict rules.

In the mythology of the universal history of torture, the 19th century is seen as a period when torture disappeared in Europe, and thanks to European influence, declined even in the colonies. Indeed, from 1750 onwards, the provisions for torture were gradually removed from the criminal codes of Europe.2 The abolition of torture was a major landmark in the evolutionary path of progress that Europe perceived to be underway by the late 19th century. The end of torture became a powerful symbol of the new modern Europe and was used to contrast contemporary Europe with the Middle Ages, making it an important aspect of the self-definition of 19th-century Europe. The new moral sensibility thus gained a central role in the historiography of the abolition of torture. In the work of 19th-century European and American historians, the process of illegalisation of torture was explained solely by a particular kind of progressivist narrative. Indeed, this history often describes these changes in terms of an ‘abolition movement’ that parallels, for instance, the movement for the eradication of slavery. It is in this context then that penal torture disappeared as a legitimate and judicially sanctioned mode of ‘inquiry’ and ‘punishment’ and entered the zone of the illegitimate and unspeakable. Darius Rejali argues against the very notion of ‘abolition’ of torture and thereby contests the linkage of the move from torture to punishment with the transition to modernity. He contends that far from being a barbaric remnant of the past, torture is in fact integral to the modern state.3 In his study of the history of torture in Iran since the late 18th century, Rejali shows that torture has been essential for and widely employed by successive regimes. Taking a Foucaultian approach,4 he argues that there was a gradual shift away from ceremonial torture in the 19th century. The colonialists considered this change a sign of progress.5 The new form of torture that replaced it was different. It was carried out outside the public domain, in the context of policing operations and prison discipline, the inseparable components of modern disciplinary society. The public rituals of torture were replaced by a new secretiveness. As Talal Asad explains, ‘modern torture as part of policing is typically secret partly because inflicting physical pain on a prisoner to extract information, or for any purpose whatsoever, is “uncivilized” and therefore illegal’. This new

sensibility about physical pain necessitated that the modern state practice torture alongside a ‘rhetoric of denial’.6 The links between modern torture techniques, both in the West and elsewhere in the world, and the history of colonialism are beyond the scope of this work, and have been extensively documented. One example would perhaps suffice to make the case: the ‘five techniques’ that were at issue in the Ireland v. United Kingdom case before the European Court of Human Rights7 (wall-standing for hours, hooding, continuous loud and hissing noise, sleep deprivation, and restricted food and water) were not innovations developed specifically for that conflict. As Antonio Vercher explains, they were widely employed by the British authorities to cope with situations involving internal security problems in Palestine, Malaya, Kenya, Cyprus, British Cameroon, Brunei, British Guiana, Aden, Borneo/Malaysia, and the Persian Gulf, and were standard procedures authorised by the Joint Directive on Military Interrogation in Internal Security Operations Overseas.8 In short, they were standard procedure for intimidating and interrogating ‘unruly’ colonial subjects. The Joint Directive, in turn, offered a state of emergency rationale for these practices: ‘Persons arrested or detained during Internal Security operations or in near emergency are likely to be valuable sources of intelligence.’9

The Subcontinental Context Douglas Peers holds that the growing intrusiveness of the state provided the context to the increased cases of police torture in Madras Presidency in the mid-19th century. New crimes of a ‘moral’ nature were added to crimes against the person and property as behaviour that militated against British sensibilities. These, which were brought under state monitoring and invited criminal sanctions, included begging, gambling, selling obscene books, ‘wantonly destroying trees’, disobedience of orders (based on Britain’s

master– servant laws), ‘pretending to witchcraft’, ‘bartering spirits for grain’, ‘riding or driving furiously’, ‘exciting charity by exhibiting bodily deformities’ and refusing to pay a promised dowry. Also, vagrancy was meant to be punished and the activities of ‘idle’ people monitored. Thus, people’s activities were being disciplined in hitherto unknown ways.10 This period, when debates on torture were taking place in Europe, was also the heyday of the colonial encounter in the Indian subcontinent. As the British set about ruling their colonies, they envisioned the subcontinent’s past and future in self-serving ways. Thomas Metcalf argued that, throughout the Raj, the ideas that most powerfully informed British conceptions of the subcontinent and its people were those of the region’s ‘difference’. Among the most widely accepted of such ideas was the notion of ‘Oriental Despotism’.11 The voices that had consigned torture to the ancien régime in Europe, when faced with ‘torture’ in societies like those in the Indian subcontinent, came up with a similar explanation. In this progressivist model, the ‘primitive’ pre-modernised Asian state simply replaced the powers of the ancient regime and the allegedly primitive nature of early European culture. Torture became something that existed either in the ‘European past’ or in the ‘Oriental present’. Attributing torture to the ‘innate propensity of the natives’ placed torture in the same league as other ‘horrible practices’ such as hookswinging, infanticide, sati, thuggee and human sacrifice—all forms of cruelty that seemed to characterise Indian society in particular.12 Paradoxically, the enterprise of eradicating these manifestations of Indian ‘barbarism’ deepened notions of racial difference. Talal Asad argues that in their attempts to eradicate such ‘cruel practices’, what really motivated the Europeans was ‘the desire to impose what they considered civilised standards of justice and humanity on a subject population—that is, the desire to create new human subjects’.13 By placing police torture alongside these assorted acts of ‘barbarity’, the use of violence to extract confessions was normalised in British minds and the colonial context erased. The Europeans emerged as civilising saviours, braving all odds to humanise the subcontinental race, somehow, to save them from themselves.

‘Very Wicked Children’: The Madras Torture Commission of 1855 It is not the torture of the high European sort […] Indian torture is ready, impromptu, ingenious, cheap, annoying, disgusting, revolting and petty in the extreme […] It is the torture of very wicked children. (The Times, 3 September 1855) In 1854, the House of Commons was rocked by allegations of torture levelled against the Honourable East India Company. During a debate, based on information from the Madras Presidency, it was said that torture was frequently employed by native officers to compel the ryots to pay the demands of Government. Mr. Danby Seymore, MP, accused the Company of using torture and coercion to get ten shillings from a man when he only had eight. Soon the British press took over and The Times wrote of the ‘Indian Inquisition’ while Punch carried a satirical piece. The Court of Directors directed the Madras Government to set up ‘a “most searching inquiry” and to furnish them a full report on the subject’. Accordingly, on 9th of September 1854, a three-member Commission was appointed to enquire into the ‘use of torture by the native servants of the state, for the purpose of realising the Government revenue’. However, the scope of the enquiry was soon enlarged to include ‘the alleged use of torture in extracting confessions in police cases’. The Commissioners were informed that [t]he instructions of Government were at first confined to the Revenue Department, because the imputation of the use of torture solely referred to the collection of the public revenue; but the Governor in Council is desirous of taking this opportunity of ascertaining the extent to which similar practices are resorted to in police matters, in which they have long been admitted to prevail, and the Commission will therefore be requested to extend their investigation to the Police

Department, and in fact, go fully into the whole subject in all its bearings.14 The Report, in anthropologist Anupama Rao’s words, ‘drew attention to torture as a structural problem of policing, rather than an aberrant and extraordinary instance’.15 The Report was not an inquiry into the practices of British officials but an exposé of the actions of the native police whom they oversaw. In the colonial setting, torture was outsourced to the natives, who comprised the bulk of the police forces. This allowed colonial authorities to dismiss any abuse as a native practice that deviated from civilised norms. Ultimately, the Report blamed most of the torture on traditional practices of the native police and distinguished those practices from ‘the upright morality of their British superiors’.16 According to the Report, ‘the whole cry of the people … is to save them from the cruelties of their fellow Natives’.17 The systematic use of torture in India became associated with other ‘cruel or inhumane’ traditional practices that had to be eradicated as part of societal reform through imposition of a homogenous rule of law that characterised the colonial project. Thus, ‘it was the presence of native policemen, rather than the role of the police in a colonial regime, that came to be problematised’.18 Indeed, the 1855 Report became a justification for the colonial regime to claim that it would result in reform of the police and the criminal law. Legal historian Radhika Singha says that the question of torture was merely one area in which this dynamic played out. The principle of European supervision over Indian subordinates also served a rhetorical function, that of associating the former with an avowedly transcendent, rule-governed public legality, through which the Oriental excesses of the latter were monitored. The issue of torture in revenue and police work provided one such ideological terrain for claims to protecting Indians against despotic native functionaries. Rao’s assessment of the Report, and of the way in which British administrators managed other complaints about torture—that they are examples of ‘discourses of improvement [that] masked the attempts to impose more coercive forms of rule over citizen-subjects’— thus, appears accurate.19

The Report putting the blame almost entirely on the native police and their ‘propensity to torture’ must be viewed in the context of prevalent ideological trends. The uncanny parallel between the burden of that report, and the present-day elites’ propensity to blame the ‘lower ranks’ of the police for the persistence of ‘uncivilized’ and ‘barbaric’ practices is central to undertaking analysis of torture today. On the outrage following the release of the infamous Abu Ghraib photographs, Anupama Rao observes that though one cannot draw exact parallels with the scandal in Iraq, there are startling resemblances to the racial arguments about despotic violence and natives’ capacity for bearing pain that were used to justify the colonial brutality which resulted in the Madras Torture Commission.20 Although the Report primarily served to ‘manage’ the issue of torture by erasing the complicity of the colonial state in its practice, its legacy of reforms are to be found in the present-day structure and functioning of the police in the subcontinent. The entire structure of the Madras Police was overhauled, broadly in tune with the Commission’s recommendations. The Madras model became the basis for police reforms throughout British India and, the structure endures till today. The reforms it suggested resulted in the institutionalisation of a specifically colonial model in the restructuring of the Indian police. The 1855 Madras Torture Commission was followed by the enactment of the Indian Penal Code (IPC) in 1860, the Indian Evidence Act in 1872, and the Criminal Procedure Code (CrPC) in 1898. The Indian Evidence Act, 1872, ruled all confessions made to the police or by a person in police custody to be out of the stream of evidence.21 The only custodial confessions permitted were those recorded by a magistrate. The IPC, 1860, classified as aggravated offences ‘hurt’, ‘grievous hurt’ and ‘wrongful confinement’ when done to extract confessions or information.22 The CrPC, 1898, excluded from evidence all statements recorded by the police including those of witnesses.23 Only testimony recorded in court by the judge counted as evidence. The CrPC also specified with reasonable clarity the powers of arrest and judicial procedure. Distrust of the police and recognition of their brutality is evident in the laws enacted. The constabulary is a violent arm of the state with enormous powers of arrest and detention, but whose every action must be

overseen and supervised by the magistracy (which in the colonial period enjoyed both executive and judicial powers, and was controlled by governing elites). These are the ways in which torture is rendered scandalous and aberrant even while evidence suggests that it is routine and organised. What people do to each other, the forms that degradation and brutality take, suggests a repertoire of violent acts that are neither accidental nor spontaneous. Throughout this book, particularly in the Chapter 9, the attempt would be to show that torture is neither extreme nor extraordinary, but enmeshed in local inequalities and hegemonic ideologies of caste, gender, sexuality and nationalism.

Bordering the Colonies: Afghanistan and Nepal Though not British colonies, the bordering lands of Afghanistan and Nepal were important to colonial operations. Afghanistan was crucial to the Great Game played then between Britain and Russia. The arbitrary division of the Pashtun territory between Afghanistan and British India (now Pakistan’s western border) was devised to neutralise a ‘tribes-people’ who were not susceptible, as mainland India seemed be, to rule by co-option and intellectual subjugation. Western encouragement of obscurantism, gender injustice and religious extremism, as evidenced in the frontier regions, is in sharp contrast to the ‘social reforms’ carried out to ‘civilise’ the natives of the Indian heartland. The Frontier Crimes Regulations (FCR), 1901 (which reference occurs in the Pakistan Section), kept alive the tribal codes within, and left the sovereign with overwhelming powers of control over the frontier regions—powers to detain without trial, to order embargoes and to impose collective punishments. The British followed a policy of selective non-interference in Afghanistan and the North Atlantic Treaty Organisation’s (NATO) politics in the region today is similarly strategic in purpose. Russian intervention and the US reaction have left Afghanistan in a state of confusing turbulence and greatly impaired the country’s capacity for institution building. The Rana prime ministers of Nepal found it profitable to be allies of the British. Nepali soldiers were sent to help the British crush the Indian revolt

of 1857. Protection was extended to Nepal, as reward for its supply of manpower to the British Army. As the section on Nepal notes, the Ranas were impressed with continental codes and sought to incorporate some of those elements into the local law of Nepal. Codification of laws came thus to Nepal, where early political stirrings were influenced by India’s freedom movement, but remained for the most part a tussle between an absolute monarchy and a more benevolent one. In the process, institution building and rights jurisprudence became casualties. Today, Nepal is a stark example of exemplary norms, without the political ethos and infrastructure required to actualise these. The British set up elaborate administrative and legal systems in their colonies but did not concern themselves with the internal administration of either Afghanistan or Nepal. Though affected by the geopolitics of imperialism, Afghanistan and Nepal developed as systems in ways as different from the colonies as from each other. British codification is, therefore, not a defining point of reference for these two countries. One needs to go deeper into their pasts to understand how their codes developed. Afghanistan’s troubled past has much to do with its current state of human rights. Likewise, the long-standing tussle between entrenched oligarchies and nascent democratic alternatives in Nepal may explain why the rule of law is hard to uphold in that country today. The discussion of history is more detailed in the sections on Afghanistan and Nepal. Even the erstwhile colonies—India, Pakistan, Bangladesh and Sri Lanka —have widely differing contemporary histories. India has maintained a surface stability for the six decades that have gone by after Independence. While the ‘stability’ of formal democracy has led to a greater recognition of human rights, its ‘superficiality’ has led to their erosion in practice. Subversion of the rights discourse in India is glossed over with systemic doublespeak, though at times the veneer cracks. This happened when the Emergency was imposed in 1975, and is the case even today in places like Jammu and Kashmir, the north-east and tribal areas where the State is at war with its own people. In Pakistan, the situation is vitiated by the subversion of the constitutional process by military and fundamentalist forces. The same codes, which Pakistan inherited along with India, have played out

differently in the wake of this subversion. Today, Pakistan is caught between its own fundamentalism and the games of the West, its democratic aspirations kept alive by a vibrant intelligentsia and groups of rights activists. Bangladesh was born of an identity struggle against West Pakistani domination but it also inherited a tradition of military dictatorships and violent changes in government. Repression under successive regimes is only feebly countered by the higher judiciary’s recent attempts to curb police excesses. In Sri Lanka, a perennial ‘state of exception’,24 majoritarianism has overwhelmed other political processes. It has seen civil strife without let or hindrance and security has become an obsessive cult. Every country in the present study has a distinct context of engagement with custodial justice. Accordingly, the section on each country is differently structured. 24 Carl Schmidtt’s construct, which simply put, is the arrogation of power by the ruling dispensation on the pretext of ‘praxis’. _________________ 1

Talal Asad, ‘On Torture, or Cruel, Inhuman, and Degrading Treatment’ in Arthur Kleinman, Veena Das and Margaret Lock (eds) Social Suffering (Berkeley: University of California Press, 1998), p. 293. 2

D.M. Peers, ‘Torture, the Police and the Colonial State in Madras Presidency, 1816–1855’, Criminal Justice History 12 (1991), pp. 29, 74. 3

Darius Rejali, Torture and Modernity: Self, Society, and State in Modern Iran (Boulder, 1994).

4

Michel Foucault, Discipline and Punish: The Birth of the Prison (New York, 1995).

5

Rejali, op. cit.

6

Peers, op. cit.

7

Series A, No. 25, Before the European Court of Human Rights, 18 January 1978.

8

Antonio Vercher, Terrorism in Europe: An International Comparative Legal Analysis (Oxford: Clarendon Press, 1992). 9

Ibid.

10

Peers, op. cit., 43.

11

T. Metcalf, Ideologies of the Raj (Cambridge: Cambridge University Press, 1994), 4.

12

Anupama Rao, ‘Problems of Violence, States of Terror’, Economic and Political Weekly 36, no. 43, (2001), pp. 4125–4133. 13

Asad, op. cit., pp. 285–308.

14

Anuj Bhuwania, “Very Wicked Children”: “Indian Torture” and the Madras Torture Commission Report of 1855’, available at http://www.scielo.br/scielo.php?pid=S180664452009000100002&script=sci_arttext&tlng=en (last accessed on 17 December 2012; italics in the original). 15

Rao, op. cit.

16

Ibid.

17

Ibid.

18

Ibid.

19

Ibid.

20

Ibid.

21

Sections 24, 25 and 26, Indian Evidence Act.

22

Sections 330, 331 and 348, IPC.

23

Section 162, CrPC.

24

Carl Schmidtt’s construct, which simply put, is the arrogation of power by the ruling dispensation on the pretext of ‘praxis’.

The International Regime on Torture Torture is a crime under international law, and its prohibition falls within the ambit jus cogens or the peremptory norm. International law allows no justification for the use of torture, on grounds of emergency or otherwise. The basic international law norms on the subject of torture are the Geneva Conventions, the International Covenant on Civil and Political Rights (ICCPR), the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT or the ‘Torture Convention’) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). The Geneva Convention on the Treatment of Prisoners of War1 specifically prohibits the use of torture through the following provisions: Article 32 relating to armed conflict not of an international character, Article 173 relating to the treatment of prisoners of war and Article 874 relating to permissible penal and disciplinary sanctions against prisoners of war. The Universal Declaration of Human Rights, 19485 (UDHR), recognises that all persons are guaranteed the right to life, liberty and security,6 freedom from torture and cruel, inhuman or degrading punishment,7 equality before the law8 and freedom from arbitrary arrest and detention.9 Similarly, the ICCPR, 1976,10 guarantees the right to life,11 the right against arbitrary detention, security of person and due process12 and the right, if deprived of liberty, to be treated with humanity and dignity.13 Article 7 of the ICCPR specifically provides that

[n]o one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. Unlike the Geneva Conventions, the ICCPR’s ban on torture applies to government conduct in general, not just during armed conflicts, and so would universally apply to law enforcement and military/paramilitary state actions within national borders. Article 9 further mandates that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. The most specific and significant international law document on torture is CAT, 1985.14 It defines torture as [a]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person …. [b]y or at the instigation of or with the consent or acquiescence of state actors as part of interrogation, punishment, intimidation, or discrimination.15 Torture, so defined, is banned absolutely. No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.16 The Torture Convention also takes into account, as does the ICCPR, another category of state violence: ‘other cruel, inhuman or degrading treatment or punishment’ that states must ‘undertake to prevent’. The Torture Convention enjoins States to take effective legislative, judicial and administrative steps to prevent torture;17 to ensure that acts of torture are criminal offences;18 to prevent the use of torture in detention and arrests;19 and to prevent torture-induced statements from being used as evidence.20 Article 14 of the Convention makes it obligatory for the State to ensure that in its legal system, the victim of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full a rehabilitation as possible. In the event of the death of the victim

as a result of an act of torture, his dependants shall be entitled to compensation. The UN Committee on the Convention against Torture (CAT Committee) says: By defining the offence of torture as distinct from common assault or other crimes, the Committee considers that States parties will directly advance the Convention’s overarching aim of preventing torture and ill treatment. Naming and defining this crime will promote the Convention’s aim, inter alia, by alerting everyone, including perpetrators, victims, and the public, to the special gravity of the crime of torture. Codifying this crime will also (a) emphasise the need for appropriate punishment that takes into account the gravity of the offence, (b) strengthen the deterrent effect of the prohibition itself, (c) enhance the ability of responsible officials to track the specific crime of torture and (d) enable and empower the public to monitor and, when required, to challenge State action as well as State inaction that violates the Convention.21 The first of the Updated Set of Principles22 is in these words: Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations. The ICPPED, containing 45 Articles, was opened for signature on 20 December 2006 during the 61st session of the General Assembly by resolution A/RES/61/177.23 It entered into force on 23 December 2010.24

The ICPPED operates as an international criminal law treaty. It enjoins States to criminalise enforced disappearances and enact measures to investigate, prosecute or extradite to another treaty country a person who may be implicated in this heinous crime. ‘Enforced disappearance’ is defined as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such a person outside the protection of the law.25 Victims of enforced disappearances have the right to obtain reparation and compensation.26 The right to reparation covers damages and, where appropriate, also other forms of reparation such as (a) restitution, (b) rehabilitation, (c) satisfication, including restoration of dignity and (d) guarantee of non-repetition.27 Those deprived of liberty may only be kept in an official place of detention and any person with a legitimate interest shall be provided access to the authority that ordered the deprivation of liberty, as also information of the date, time and place when the person was detained; the whereabouts of the detainee; the date, time and place of release; the state of the detainee’s health; and in the event of the detainee’s death, details of the circumstances under which the death occurred. The procedural safeguards in Article 18 are the most significant. They prescribe that any person with a legitimate interest shall be provided access to the authority that ordered the deprivation, date, time and place when the person was detained; the whereabouts of the person, date, time and place of release; his/her state of health; and in the event of death of the person, the circumstances under which the death occurred. The Convention includes an optional complaints system whereby citizens of parties may appeal to the Committee for assistance in locating a disappeared person. State Parties may join this complaints system at any time, but may only opt out of it upon signature. To be operative, the complaints system requires at least 10 State Parties at any given time. _________________

1

Adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in geneva from 21 April to 12 August 1949. 2

Article 3:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions: 1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular, humiliating and degrading treatment; […] 3

Article 17:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. 4

Article 87:

Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts […] Collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden. 5

Adopted and proclaimed by UN general Assembly resolution 217 A (III) of 10 December 1948.

6

Article 3.

7

Article 5.

8

Article 7.

9

Article 9.

10

GA res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force 23 March 1976. 11

Article 6(1).

12

Article 9(1).

13

Article 10(1).

14

Adopted and opened for signature, ratification and accession by UN General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with Article 27(1).

15

Article 1(1).

16

Article 2(2).

17

Article 2.

18

Article 4.

19

Article 11.

20

Article 15.

21

General Comment 2, CAT/C/GC/2, 2008, para 11.

22

Principle 1, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, Report of the independent expert to update the set of principles to combat impunity, Diane Orentlicher, E/CN.4/2005/102/Add.1, 08 February 2005. 23

As per Article 38, the Convention shall be open for signature by all Member States of the UN.

24

In accordance with article 39(1), which reads as follows: ‘This Convention shall enter into force on the thirtieth day after the date of deposit with the Secretary-general of the United Nations of the twentieth instrument of ratification or accession.’ 25

Article 2 of the ICPPED adopted on 29 June 2006. The Convention reflected settled international law in this regard. See the assertion that enforced disappearances ‘constitutes an offence to human dignity, a grave and flagrant violation of human rights and fundamental freedoms […] and a violation of the rules of international law’ in Resolution 49/193 of the General Assembly, adopted 23 December 1994, and also resolutions 51/94 of 12 December 1996 and 53/150 of 9 December 1998. See Article 1, paragraph 2 of the UN Declaration on the Protection of All Persons from Enforced Disappearances, g.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992). Adopted by General Assembly resolution 47/133 of 18 December 1992. 26

(Article 24.4) ICPPED.

27

(Article 24.5) ICPPED.

SECTION ONE

INDIA

1 India’s Public Secret The public secret masks an oscillation between denial and amazement —amazement that such atrocities are ‘still’ possible and denial of that which is apparently impossible to address. The injustices of the justice system, the existence of the prison industrial complex—its pervasive network of monopolies and its human rights abuses—are extremely well documented yet wholly submerged and repressed. Everyone knows, and knows they know. —Michael Taussig1

Taussig points out that the public perception of justice is largely a refusal to acknowledge that which is generally known. This is true not only of torture. When faced with racism, poverty, addiction or abuse, it is easy to slip into denial. It allows us to avoid the ethical by relying on the juridical. The trick to the public secret is in knowing what not to know. This is the most powerful form of social knowledge. Such shared secrets sustain social and political institutions. ‘[K]nowing what not to know lies at the heart of a vast range of social powers.… [T]he clumsy hybrid of power/knowledge comes at last into meaningful focus, it being not that knowledge is power but rather that active not-knowing makes it so.’2

We are troubled by our own complicity, but we do not speak because we know that ‘without such shared secrets any and all social institutions— work-place, marketplace, state and family—would founder…. Wherever there is power there is secrecy, except it is not only secrecy that lies at the core of power, but public secrecy.’3

***** A large section of people strongly believe that the police cannot deliver and cannot be effective if it does not use strong-arm methods against the criminals and anti-social elements of society. And these people include India’s political class, the bureaucracy, and large sections of the upper and middle class.4 An eminent scholar on law and society, Upendra Baxi argues that torture is, in fact, institutionalised. As he puts it, ‘custodial violence or torture is an integral part of police operations in India’.5 He notes, however, the difficulty in assessing the magnitude of this phenomenon because of the lack of any authoritative government-backed study of the practice. Ironically, he says, ‘when one looks back a little, one finds that the British governing elite was more explicitly concerned with use of torture by the native police, than the governing elite of independent India’.6 Baxi’s statement probably derives from the fact that the only comprehensive study of this kind in the history of modern India is the Torture Commission Report of 1855. The Commission was set up by the then Madras Government, under orders from the Court of Directors of the East India Company.7 Baxi notes that the Commission’s conclusions regarding the plight of the victims are still valid today. Police torture is as much a reality now as it was then.8 As human rights activist and researcher, Ravi Nair, South Asia Human Rights Documentation Centre (SAHRDC), summarised: 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 often operate in a climate of impunity, where

torture is seen as routine police behaviour to extract confessions from small pickpockets to political suspects. The laws governing police functions were framed under colonial rule in 1861 as an oppressive force designed to keep the population under control. In 2006–2007, the National Human Rights Commission (NHRC) received a total of 1,597 custodial death cases of which 118 deaths were in police custody, 1,477 in judicial custody and 2 in the custody of defence and paramilitary forces. In 2005–2006, the NHRC received 1,575 custodial death cases 124 of which were in police custody and 1,451 in judicial custody.9 These figures represent only a fraction of the actual number. They also do not differentiate between deaths in custody resulting from legitimate causes, for example, old age, and those due to the use of torture. Cases of torture not resulting in death are often not recorded. The NHRC has no mandate to investigate or record violations by military and paramilitary forces. Most credible human rights groups, however, observe the following trends in India: torture is routine against armed opposition groups; torture is integral to counter-insurgency operations conducted by the military; and torture is used routinely in police detention. While prison officials apply torture less systematically, their complicity in prisoner gang violence and the ill treatment implicit in appalling prison conditions are serious violations.10 Popular culture is rife with instances of the hypocrisy we employ when addressing police brutality. Perhaps we are content to look the other way while our government does what we think, or are told, it must do. We are not overly bothered if torture is hidden or is at most an open secret, and torture remains hidden because we push it down and out of sight rather than confront and discuss it. Popular culture plays an important role in the formation or reinforcement of this attitude. Generally, media reports, which tend to buttress the state’s claims of being in a war against terrorism, do not meaningfully discuss the political issues underlying terrorism, and instead suggest that Islam or Naxalism is conducive to spawning rabid ideologies and willing martyrs that can only be tackled with extreme measures. Mainstream media continues to portray coercive interrogation as a necessary, if deplorable, tool in the fight against terrorist threats generally

painted as Pakistani or Muslim. Thus, torture is seen as extraordinary and exceptional rather than institutionalised, systemic and banal. Inevitably then, torture prevails as a public secret. We may condemn it publicly, yet, deep within, we hold it indispensable to law enforcement. This duplicitous denial takes myriad forms. In our films, torture is shown to be the ultimate weapon of the honest policeman, thwarted by the rich and the powerful, and most of all by the courts. Torture then becomes a fantasy of justice. In a parlance where ‘remand’11 and ‘encounter’12 make for cynical insider jokes, torture is, at the same time, also the fantasy of realism. It is seen as a patriotic assertion against imposition of alien standards by the West and is evident in our support for draconian laws like Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA). Torture is, then, pragmatism. The unspoken impunity offered by the system is seen in the struggle waged by victim families in court and in processes which assert the norm but deny the consequence. In this study, we propose to use Taussig’s formulation of the ‘public secret’ to understand the instabilities and contradictions inherent in the practice and policy of custodial torture in India. There is enough documentation of the graphic typologies and instances of torture. Here, we attempt to understand torture as embedded within a mesh of discursive and institutional practices, social relations and histories that allow torture to attain the status of a ‘public secret’, which is both known and denied. Chapter 2 of this section looks at the schism between the jurisprudence in India on international covenants and India’s continued reservations against the International Covenant on Civil and Political Rights (ICCPR) and failure to ratify the Convention against Torture. Chapters 3, 4, 5 and 6 foreground another paradox—a legal regime that acknowledges the terrible nature of torture and criminalises it, but in the same breath creates and perpetuates the systemic conditions for keeping it alive. These chapters look at the law of evidence relating to confessions, a law born out of colonial distrust of the native policeman. Today, this law is a safeguard against police excess, but in the age of the ‘global war on terror’, it runs the risk of being dismantled.

Chapter 7 undertakes an analysis of judicial trends based on a selection of cases dealing with torture and highlights the fraught relationship between legality and the practice of torture. Appendix 7A is a chart of court decisions spanning 80 years on the subject of custodial rights and violations. Chapter 8 presents three interviews of professionals who, in different capacities, have had occasion to deal with issues of torture. They must be read as embedded narratives, where other social discourses around policing, terrorism, security, human rights and human subjectivity play out in complicated ways. Finally, Chapter 9 discusses six case studies. The aim of this study is not to recount incidents or record the number of custodial excesses. It is to probe and expose the hegemony of impunity— the impunity which operates through semantic condemnation and systemic tolerance. It is the object of this book to bare this dualism and show it as being inexpedient and deeply destructive. Unless we can develop more nuanced and culturally specific understandings of torture, we run the risk again today of singling out the perpetrators of torture as our ‘others’, much as did the Commissioners of the Madras Commission, while ignoring the structural brutality and the redefinition of humanity that such violence masks. _________________ 1

Michael Taussig, Defacement: Public Secrecy and the Labor of the Negative (Stanford University Press, 1999). 2

Ibid.

3

Ibid.

4

Padmanabhaiah, Committee on Police Reforms (October 2000).

5

Upendra Baxi, The Crisis of the Indian Legal System (New Delhi: Vikas Publishing House, 1981), p. 123. 6

Ibid.

7

Commissioners for the Investigation of Alleged Cases of Torture at Madras, Report of the Commissioners for the Investigation of Alleged Cases of Torture at Madras (Madras, 1855). 8 9

Ibid., note 10.

See, Asian Centre for Human Rights (ACHR), Torture in India 2008: A State of Denial (New Delhi: Asian Centre for Human Rights, 2008), available at www.achrweb.org/reports/india/torture2008.pdf (last accessed on 2 September 2008).

10

Ibid.

11

In popular parlance, ‘remand lena’ (from the ordering into police remand by magistrate on first production) means to be thoroughly physically or verbally abused, to the point of humiliation. 12

An ‘encounter’ is an extra-judicial killing by the police or armed forces. The term is euphemistically used by state agencies and media when ‘militants’ or criminals are killed in alleged ‘cross fire’ or ‘ambushes’, which are publicly known to be stage managed by the police. There is widespread approbation of such resort to lethal force in the popular media, with particular ‘encounter specialists’ (police officers who have a history of such killings) being hailed as ‘heroes’.

2 Rights Discourse: Rhetoric and Reality This chapter discusses the recognition of international human rights principles in Indian law and their incorporation into domestic law by legislation and judicial pronouncements. The Universal Declaration of Human Rights (UDHR) and various other international covenants are the normative underpinning of the human rights discourse and condemnation of torture across domestic jurisdictions. India has ratified the following international human rights and humanitarian law treaties relating to torture: • Geneva Conventions, 1949 (9 November 1950) • Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (27 August 1959) • International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1965 (3 December 1968) • International Covenant on Civil and Political Rights (ICCPR), 1966 (10 April 1979) • International Covenant on Economic Social and Cultural Rights (ICESCR),1966 (10 April 1979)

• Convention on the Rights of the Child (CRC), 1989 (11 December 1992) • Convention on the Elimination of all forms of Discrimination against Women (CEDAW), 1979 (9 July 1993) Further, India has signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1975, on 14 October 1997 but not yet ratified it. India has also signed but not ratified the Convention for the Protection of all Persons from Enforced Disappearance (CPAPED), 2006. Despite these important and commendable steps, India’s commitment to human rights norms seems questionable because of its recalcitrance in subjecting itself to monitoring or enforceable obligations.

Incorporation of International Law Obligations into India’s Domestic Law Legislative Enactments The use of torture and other cruel, inhuman or degrading treatment or punishment against certain vulnerable groups (such as women or scheduled castes) has been proscribed in a number of Indian legislations, without any explicit reference to international human rights principles.1 The present chapter, however, will deal with legislations that specifically enact international human rights obligations or employ the language of international covenants in the domestic Indian context. THE GENEVA CONVENTIONS ACT, 1960 Universal jurisdiction can be exercised over perpetrators of grave breaches of the Geneva Conventions under Indian law. Section 3(1) of the Geneva Conventions Act, 1960, provides: (1) If any person within or without India commits or attempts to commit, or abets or procures the commission by any other person of a

grave breach of any of the Conventions he shall be punished, (a) where the offence involves the wilful killing of a person protected by any of the Conventions, with death or with imprisonment for life; and (b) in any other case, with imprisonment for a term which may extend to fourteen years. This section applies to persons regardless of their citizenship. Such offences are only tried by a court equal or superior to that of a Chief Presidency Magistrate or a Court of Session. Courts cannot take cognizance of any offence under the Act except on complaint by the government. The Act does not give a specific right to anyone to approach the court. Finally, if the government or an authorised officer makes a complaint, questions relating to the application of the Convention to a conflict are to be determined by a government official, not the court. THE PROTECTION OF HUMAN RIGHTS ACT, 1993 The Protection of Human Rights Act, 1993, established the National Human Rights Commission (NHRC), which is the main body entrusted with promoting and protecting ‘human rights’. The Act defines ‘human rights’ as [t]he rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.2 The international covenants, namely ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR), signed and ratified by India are accorded explicit legislative recognition by Section 2(f). The Act provides for the establishment of State Human Rights Commissions (SHRCs) and Human Rights Courts (HRCs) at the district level in each State. The NHRC may inquire, suo motu or on petition presented by or on behalf of a victim, into complaints of (a) violation of human rights or abetment thereof or (b) negligence in the prevention of such violation, by a public servant. It can investigate allegations of human

rights violations that have occurred within a year preceding the filing of the complaint. It may call for a report from the police, monitor the police investigations in other ways or conduct an inquiry itself. Where the inquiry discloses violation of human rights or negligence in the prevention of a violation, the Commission may recommend prosecution or other appropriate action. The concerned government or authority must, within one month, report to the NHRC on the action taken. The NHRC publishes the results of its investigations and decisions along with any action taken by the concerned government or authority in this regard. The Protection of Human Rights Act, 1993, thus, vests the NHRC with a broad mandate and gives it investigative powers with regard to human rights violations; however, it only has the power to issue recommendations and does not have any effective enforcement mechanism at its disposal.

Judicial Recognition of India’s International Law Obligations The traditional view of the Indian judiciary on the application of the general norms of international law and India’s treaty obligations was that unless specifically incorporated by local statute, treaties do not create rights in municipal or domestic law. However, the law in this regard has been substantially altered by the Supreme Court. It is now well settled that (a) international law norms, which are not contrary to Indian law, are legally enforceable and (b) treaty obligations which are rights-enhancing are to be read as part of the life, liberty and due process provision of the Constitution. There are a number of instances where the Supreme Court has read the provisions of the UDHR into the Fundamental Rights chapter of the Indian Constitution.3 Similarly, the ICCPR has also found application in the interpretation of the Fundamental Rights.4 Even where India has signed but not ratified or incorporated into domestic legislation the international instruments recognising human rights, the Supreme Court has been willing to read the provisions of these instruments into the Fundamental Rights chapter of the Indian Constitution, as long they do not conflict with domestic law.5

In People’s Union of Civil Liberties v. Union of India & Anr,6 a case concerning the custodial death of two young men after a faked encounter, the Supreme Court held: For the present, it would suffice to state that the provisions of the covenant, which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by courts as facets of those fundamental rights and hence, enforceable as such. Remarkably, the Supreme Court relied on Article 9(5), ICCPR, to award compensation even though India had entered a specific reservation to Article 9(5), ICCPR, claiming that the Indian legal system did not recognise a right to compensation for victims of unlawful arrest or detention. International instruments relating to torture have been used to expansively interpret the scope of the life, liberty and due process clause of the Indian Constitution in a long line of judicial precedents. In fact, the right against torture is so well recognised in Indian constitutional jurisprudence that the National Committee to Review the Working of the Constitution (2002) set up by the Law Ministry specifically recommended ‘Prohibition of torture and cruel, inhuman or degrading treatment or punishment’ as one of the additions to the Fundamental Rights chapter as Article 21(2), on the basis of the dicta laid down in various Supreme Court judgments.7 In Francis Coralie Mullin v. Administrator of Delhi,8 a judgment on the arrest and detention of a foreign national, the Supreme Court read Article 5 of the UDHR and Article 7 of the ICCPR to judicially declare a right to be protected from torture or cruel inhuman and degrading treatment. In D.K. Basu v. State of West Bengal,9 the court again read Article 5 of the UDHR to guarantee a right against torture. The court issued specific guidelines on custodial procedures, and cautioned that any violation of these would be treated as contempt of the Supreme Court. Other precedents relying on international norms against torture include the following: • Bachan Singh v. State,10 which considered the constitutionality of the death penalty and held that the right against torture and cruel and

degrading punishment was a right deriving from the UDHR and the ICCPR. • Prem Shankar Shukla v. Delhi Administration,11 which discussed Article 5 of the UDHR and Article 10 of the ICCPR in the context of forcible handcuffing of prisoners. • Sunil Batra v. Delhi Administration,12 which referred to Articles 8 and 9 of the General Assembly Resolution 3452 of 1975.13

Beyond the Rhetoric: A Critique of India’s Responses to International Human Rights Norms The above seemingly progressive account would be incomplete unless these legal developments are located within their wider sphere of operation. The institutional doublespeak that characterises many of India’s responses to torture perhaps accounts for its persistent and routine occurrence. While the enactment of special legislations by the Indian state, and the ‘constitutionalisation’ of human rights standards by the Supreme Court are laudable, these steps can hardly be meaningful so long as torture remains an acceptable operational practice. India is one of the few countries whose constitution allows for peacetime preventive detention without the safeguards that are generally considered basic. The ICCPR permits derogation from certain personal liberties during a state of emergency. The Indian government, however, has not invoked this privilege, nor could it, as the current internal situation does not meet the standards set forth in Article 4 of the ICCPR to justify such a deviation. India’s unjustified deviation is well demonstrated by the continued application of the ‘extraordinary’ Armed Forces (Special Powers) Act (AFSPA), 1958, for the last 50 years in the north-east and elsewhere. The two legislative devices relating to the domestic enforcement of international humanitarian and human rights law suffer from serious and debilitating flaws. The Geneva Convention Act, 1960, has a distinct bias towards state-centric, rather than victim-centric, redress. The NHRC, set up under the Protection of Human Rights Act, 1993, has a mere recommendatory role and no mandate to investigate violations by the armed

forces. Of late, the NHRC has also earned disapprobation for its uncritical and positive report to the Universal Periodic Review Committee of the UN Human Rights Council on the state of human rights in India. In spite of its proactive role in the Gujarat violence cases of 2002, concerns have been expressed about the NHRC’s independence. Another area of concern is its proneness to do little more than award interim monetary relief, despite having the power to investigate and recommend prosecution of human rights violators, and its tendency to dismiss even clear cases of torture.14 In the international sphere, despite signing and ratifying several human rights treaties, India has been reluctant to allow external scrutiny of its performance. It has neither ratified the Torture Convention nor the Optional Protocol to the ICCPR. India signed the Convention against Torture on 14 October 1997. The Government of India had stated then that ratification of the Convention would follow. A decade and a half have gone by since then but despite international and domestic pressure and the recommendations of the NHRC, India has failed to act upon its commitment.15 In 2010, a Prevention of Torture Bill was introduced in Parliament that spoke of ratifying the Torture Convention. The Bill’s deeply unsatisfactory provisions and the Select Committee’s recommendations for its improvement are dealt with in Chapter 6. Without formal ratification, the Torture Convention remains a dead letter in terms of its mandate for independent inquiry, monitoring and scrutiny. While the Supreme Court has expansively read several of the Convention’s obligations into domestic law, India continues to escape the obligation to enact a specific legislation on torture, enabling mandatory reparation payments. Monetary compensation to torture victims has not become a statutory right, but is dependent on the generous disposition and whims of judges, and available only on the intervention of the appellate or apex court. Analysis of judicial trends indicates that the payment of compensation in torture cases is erratic, and often so delayed as to be meaningless. (See Chapter 7 and Appendix 7A of the section titled ‘India’). To take another instance, prosecution of armed forces deployed in conflict situations and the police requires the government’s prior permission (under Section 197 of the Code of Criminal Procedure (CrPC), 1973, and Section 6 of the AFSPA, 1958, as well as various other laws). Such immunity provisions which

protect state actors at the expense of victims would have to go if the Torture Convention were ratified. India has also filed reservations that nullify important provisions of both the ICCPR and the Torture Convention. These reservations effectively reject even a basic level of international scrutiny as envisaged by the Torture Convention. The Convention will have little meaning if the government does not withdraw the reservations it has expressed about Article 20 (relating to inquiry by the CAT Committee), Article 21 (relating to state complaints) and Article 22 (relating to individual complaints). The position on Article 9(5) of the ICCPR highlights the contradictions inherent in India’s position. India has made a declaration under Article 9(5) to the effect that Indian law does not recognise a right to compensation for victims of unlawful arrest or detention.16 In May 2007, the Special Rapporteur on Torture renewed a request pending since 1993 to visit the country. India holds the dubious record for consistently refusing to invite the UN Special Rapporteur on Torture. In the region, Pakistan (1997), Nepal (September 2005), China (November 2005) and Sri Lanka (2007) have all invited the Special Rapporteur. Nevertheless, the Special Rapporteur has commented on India, on the basis of information received over the years, as follows: While the size and diversity of the country make it difficult to characterise the intensity of the problems all over, it certainly appears that there is a tradition of police brutality and arbitrariness in much of the country, the degree of brutality frequently being sufficiently unrestrained to amount to torture, often with fatal consequences. The brutality is sometimes linked to corruption and extortion and is often deployed in the service of local vested interests, be they economic or official. The use of excessive and indeed unprovoked and unjustified force is common, especially in response to protests demanding rights. The persecution of those pursuing complaints against the police is a not infrequent phenomenon. In areas characterised by armed resistance, the security forces seem notably prone to resort to extreme

and often lethal violence, even if individual abuses not carried out as part of organised military operations may be sanctioned.17 The Human Rights Committee in its scrutiny of India’s country report (1997) took serious note of allegations that police and other security forces do not always respect the rule of law and that, in particular, court orders for habeas corpus are not always complied with, in particular in disturbed areas. It also expresses concern about the incidence of custodial deaths, rape and torture. Concerns have also been raised by the Special Rapporteur on violence against women over the large number of reported cases of rape in custody.18 _________________ 1

See for instance provisions criminalising rape in custodial situations (sections 376(2)(a), (b), (c), (d) of the Indian Penal Code [IPC], 1860) and those concerning ‘caste atrocities’ against the Scheduled Castes (SCs) (Dalits) and Scheduled Tribes (STs) under the Civil Rights Act, 1955 and Prevention of Atrocities Act, 1989. 2

Section 2(d).

3

See generally ADM v. Shivakant Shukla, (1976) 2 SCC 521 (on the right to file for issue of a writ of habeas corpus during a general emergency) at paras 542–543; Francis Coralie Mullin v. Administrator, UT of Delhi, (1981) 1 SCC 608 (on the right of a detainee to have access to legal counsel) at para 8; Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 (on the constitutionality of a law enacted to deal with compensation claims of victims of the 1984 Bhopal Gas Tragedy). 4

See generally Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360 (on arrest for default of contractual agreement) at para 2; Francis Coralie Mullin v. Administrator, UT of Delhi, (1981) 1 SCC 608 (on the right of a detainee to have access to legal counsel) at para 8; Sheela Barse v. Secretary, Children’s Aid Society, (1987) 3 SCC 50 (on the welfare of children in a government-run children’s home) at para 5; Kubic Darusz v. Union of India, (1990) 1 SCC 568 (on language of communication to a detainee and detention of a foreigner) at para 20; Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 (on compensation for custodial death) at para 21. 5

Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 (on compensation for custodial death) at para 21; Vishaka v. State of Rajasthan, (1997) 6 SCC 241 (a case involving sexual harassment at the workplace) at para 7; People’s Union for Civil Liberties v. Union of India, (1997) 3 SCC 433 (a petition for appropriate orders against the State for the killing of two people by security forces in a ‘faked’ encounter) at para 13; People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301 (a petition asserting the right to privacy against the government’s practice of indiscriminately tapping telephones) at paras 23–25; Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465 (on the basic human right of a woman to not be raped).

6

(1997) 3 SCC 433.

7

‘Fundamental Rights, Directive Principles and Fundamental Duties’, para 3.9, available at http://lawmin.nic.in/ncrwc/finalreport/v1ch3.htm (last accessed on 30 November 2012). 8

(1981) 1 SCC 608 at para 8.

9

(1997) 1 SCC 416 at para 13.

10

(1982) 3 SCC 24 at para 5.

11

(1980) 3 SCC 526 at para 3.

12

(1980) 3 SCC 488 at para 81.

13

Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. 14

ACHR, Torture in India 2008: A State of Denial (New Delhi: Asian Centre for Human Rights, 2008). 15

Ibid.

16

Human Rights Documentation Centre, ‘Impunity and World Torture Day’, 26 June 1999, available at http://www.hrdc.net/sahrdc/hrfeatures/HRF02.htm (last accessed on 30 November 2012). 17

UN Doc. CCCPR/C/79/Add.81, 4 August 1997, para 23.

18

UN Doc. E/CN.4/2002/83/Add.1, paras 27–39.

3 The Constitution and Custodial Rights This chapter presents the various constitutional guarantees as interpreted by courts. The Constitution’s Part III (Article 12 to Article 35) contains the nonderogable Fundamental Rights, framing the relationship between the individual and the state and determining the limits of state action. No act of the state can override the guarantee of Fundamental Rights. The right to life, which has many attributes including custodial rights, and the right to equality are available alike to foreigners and citizens. Other Fundamental Rights are available to citizens alone. Part III is a composite code binding state or state-like action to law and legitimacy. The Supreme Court can issue writs to protect Fundamental Rights. The right to move the Supreme Court for their protection is itself a Fundamental Right. High courts may also issue prerogative writs and directions to uphold Fundamental Rights and for any other purpose. Although the Supreme Court initially gave a restricted interpretation in A.K. Gopalan v. State of Madras1 to the life, liberty and due process clause in Article 21, this was overruled by the 11-judge bench in R.C. Cooper v. UOI2 and the 7-judge bench in Maneka Gandhi v. UOI.3 The later judgments interpreted the Fundamental Rights chapter to be a composite code consisting of the principles of equality (Article 14), liberty (Article 21)

and fundamental freedoms (Article 19). The phrase ‘procedure established by law’ was read as including guarantees of procedural fairness and due process. Indian courts have expansively interpreted Article 21 requiring all state action to be just, fair and reasonable. This wide-ranging interpretation has been applied to administrative procedure as well as criminal due process. Article 21 has been read as an injunction against torture and inhumane treatment. In Mullin v. Union Territory of Delhi,4 the Supreme Court declared: Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. In the landmark case of D.K. Basu v. State of West Bengal,5 involving a widely publicised death in police custody, the Supreme Court observed that using torture to extract information would neither be ‘right nor just nor fair’ and, therefore, would be impermissible and offensive to Article 21. Such a crime-suspect must be interrogated—indeed subjected to sustained and scientific interrogation determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc. The court noted the ubiquity of torture and third-degree methods in police investigations and lamented the ‘growing incidence of torture and deaths in police custody’.

In Nilabati Behra v. State of Orissa,6 a case of custodial death resulting from torture, the Supreme Court ruled that the burden of explaining a custodial death lay on the police, rather than the victim petitioner. This is considered to be the leading case on the constitutional basis for compensation in public law for the infringement of Fundamental Rights. The court referred to its duty to enforce Fundamental Rights under Articles 14, 21 and 32 of the Constitution and the need to make the guaranteed remedies effective and to provide complete justice. Article 20(3) is another important safeguard against custodial torture. This article guarantees a right against self-incrimination. While the immunity under Article 20(3) does not extend to compulsory production of material objects or compulsion to give specimen writings, signatures, finger impressions or blood specimens as held by an 11-judge bench of the Supreme Court7 the right does give immunity from prosecution on the basis of compelled oral evidence. Only voluntary statements made by the accused to the court are admissible. A discussion of the judiciary’s commitment to Fundamental Rights would be incomplete without reference to the infamous Supreme Court decision in the Habeas Corpus Case, delivered during the Emergency of 1975. The internal emergency lasted some 19 months when the Constitution was amended many times to perpetuate the absolute authority of the then Prime Minister and to suspend all fundamental freedoms, including freedom of the press. Nevertheless, various high courts had upheld the right of habeas corpus, against whose verdicts the state appealed to the Supreme Court. On appeal, the Supreme Court held that if a Presidential Proclamation suspended Fundamental Rights in the course of a declared emergency or during martial law, there would remain no effective right to habeas corpus. Courts would be powerless in that situation to call the executive to account. There was a solitary note of courageous dissent in the case—the minority view—holding that Article 21 was not the sole repository of the right to life. Even if the right to life is suspended during a state of emergency, the state inherently lacked the power to take life without the authority of law. Courts would retain the power to see whether the deprivation of life or liberty was within the scope of the executive order or in keeping with the purpose of the proclamation.8

Subsequently, the 44th Amendment to the Constitution somewhat lessened the terrible sweep of the emergency provision. The amendment provided that the rights under Articles 20 and 21 and, therefore, the right to habeas corpus could not be suspended even during a declared emergency. Today, several judges are publicly critical of the judicial pusillanimity displayed by the majority in the Habeas Corpus Case. So much so that some of those who delivered the majority judgment have, in retrospect, expressed remorse. The 44th Amendment ruled out the suspension of the right of habeas corpus and the right to life and due process. This, however, did not prevent the Indian state from amending the Constitution a decade later to suspend all Fundamental Rights, including the right to life and habeas corpus, in the troubled State of Punjab.9 The 59th Amendment, by which this was done, was preceded by an executive ordinance of 1987 to the same effect. Brought as a temporary amendment to operate for two years, it was repealed in 198010 only to be immediately restored, to operate for another four years,11 after which it lapsed. The people of Punjab formally remained without the constitutional right to life for as long as five years. The above goes to show that words in the Constitution alone cannot guard against the state’s constant endeavour to curtail individual liberty by using the rhetoric of security. It is no doubt true that unlike most other South Asian countries where emergency provisions have remained a nearpermanent feature, India has shown the resilience and the will to reverse such deviations, at least in the text of the law. Such resilience, unfortunately, has not been shown uniformly. In the north-east and in Kashmir and now in tribal areas like Chhattisgarh, there are all kinds of special security laws even without a declared emergency.12 The right to judicial remedy, especially habeas corpus, remains illusory.13 The superficiality of Indian democracy is demonstrated by the state’s proneness to resort to security measures rather than political solutions in regions where people have been alienated, largely on account of the state’s own policies. The Supreme Court has invariably upheld extraordinary security legislations. Neither the expansive interpretation of Fundamental Rights post the Gopalan case nor the Emergency experience has stood in the way

of a judicial ratification of laws like the AFSPA, the terror statutes and the very many laws of preventive detention. Legislations deviating from standard due process have found judicial approval on grounds of legislative competence, executive wisdom and the ubiquitous fear of ‘disruption’. The plain fact that extreme measures have always worsened the situation seems to elude policymakers.

Right to Compensation The Constitution does not contain an express right to reparation. However, it is settled now that a violation of the rule against torture would entitle the victim to compensation as a public law remedy. Victims of custodial deaths can be compensated under the writ jurisdiction of Articles 32 and 226 for contravention of their Fundamental Rights and the doctrine of sovereign immunity has been held to be no defence in such circumstances. The Supreme Court and the high courts have the discretion to award both interim and final compensations. Both courts have awarded compensation for the infringement of Fundamental Rights in the form of exemplary damages. Recognising the ‘public law’ nature of the right to reparation in Nilabati Behera v. State of Orissa,14 the court held: When the Court moulds the relief of ‘compensation’ in proceedings under Article 32 and 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. The payment of compensation in such cases is not to be understood asa civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public

law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. Since 1993, the Supreme Court and the high courts have awarded compensation under Article 21 in cases of illegal detention,15 mistreatment in ‘legal’ custody,16 rape,17 other forms of torture,18 death in custody,19 ‘disappearances’20 and detention by the armed forces.21 On the subject of compensation, a recent decision of the Delhi High Court22 is of far-reaching importance. Recognising that in matters of personal liberty, every citizen, rich or poor, is equal and entitled to compensation as a public law remedy, the court calculated the compensation after factoring in the erosion in the value of the Indian currency. Before the court was a petition for a writ of habeas corpus by the mother of a 13-year-old boy who was picked up from Delhi for no rhyme or reason by policemen from Gujarat. The lawless Gujarat police were proposing to deport the boy to Bangladesh from Gujarat. He was brought back by a timely direction of the Delhi High Court. As a result of the proceedings, the Delhi Police registered a case of kidnapping against the Gujarat police officials, but the Gujarat Government is thwarting prosecution by withholding the sanction to prosecute. So blatantly unwarranted was the arrest of the child and his proposed deportation that there was no question of this having been in the ‘discharge’ of any ‘duty’ or requiring sanction to prosecute. The State of Gujarat’s conduct in this case is a textbook example of impunity. The Delhi High Court restored the child to his family and awarded exemplary damages. After finding the State of Gujarat liable to pay compensation to the victim, the court dwelt on the question of computation of compensation and held: 63. Now comes the question of how to calculate the amount of compensation that should be awarded to the petitioner and her son Shamim. In Bhim Singh (supra), a case decided in 1985, the Supreme

Court had awarded a sum of 50,000/- by way of compensation for the deprivation of personal liberty of Mr. Bhim Singh by the police officials of the J & K Government. We see no reason to award anything less, particularly, as, in the present case we are concerned with the deprivation of the personal liberty of a minor. But, as explained by one of us (Badar Durrez Ahmed, J) in Kamla Devi v Government of NCT of Delhi 114(2004)DLT57 the amount of compensation has to be corrected for the erosion in its real value due to inflation. A sum of 50,000/- may have been just and fair in 1985 but, a sum of 50,000/- in the year 2008 would be worth much less because of inflation in the intervening years. As pointed out in Kamla Devi (supra), the figure of 50,000/- as on 1985, as awarded in Bhim Singh WP(C) No.11079/2006 Page 26 of 31 (supra), has to be enhanced to correct for inflation and consequent decline of the real value of the rupee in the intervening years. A good index to work with is the consumer price index of industrial workers [CPI(IW)]. 64. With the base year 1982 (= 100), the CPI (IW) for June, 1985 was 606 and for June 1982 was 470. Hence, the inflation corrected value of 50,000/-in 1985 would work out to approximately 38,779/- in 1982. Taking 1982 as the base year (= 100), the said index for 2001 is 457. In other words, the value of 38,779/- in 1982 which we derive from 50,000/- in 1985, would bè1,77,220/- in 2001 (38,779 × 457/100). Now, taking the base year to be 2001 (= 100), the CPI (IW) for April, 2009 was 150. Consequently, the sum of 1,77,220/- as of 2001 would translate, in real terms, to 2,65,830/- in April, 2009. The sum and substance is that 50,000/- in 1985 as awarded in Bhim Singh (supra) would, in real terms, be equivalent to 2,65,830/- in April 2009. This figure can be rounded to 2,70,000/-.23 Given the development of reparative jurisprudence, a decision of the Supreme Court which is hard to understand is the one in Masooda Parveen v. Union of India.24 Masooda was seeking compensation for the death of her

husband while in military custody in Kashmir. Neither the death nor the custody was denied by the state. The court, however, cited lack of convincing proof to decline her prayer, ignoring a slew of judgments that squarely place the onus on the state to explain any death in its custody. The state did not produce the original record despite several opportunities. Yet, the court did not draw an inference against the state, but instead held that Masooda had shown no proof of her allegations. Even believing, as the Supreme Court did, the bare assertion of the state that Masooda’s husband was a militant who knew where arms were hidden, his life was hardly some personal preserve of the army that should have disentitled her to compensation for his death in their custody. They did not deny the death but claimed that he died because of an explosion in a heap of arms that he was uncovering at the behest of the army after he was taken into custody. This thin story his widow was expected to disprove, though the army itself failed to bring the material record to prove it. No wrongdoing on his part could alter the fact that his death was an extra-judicial execution by military officials. Or, at any rate, it was a death that the army failed to prevent, of a man for whom they were responsible as he was in their custody. Would the imperatives of statehood not require that reparative justice be done to the family of a person who has died by the act of the state?

Other Writ Directions One writ power frequently exercised by the court in dealing with petitions alleging illegal detention, custodial torture and disappearance is naturally the writ of habeas corpus.25 Exercising its powers to issue writs directing state authorities to take certain steps, the Supreme Court has also issued other directions for disciplinary action against police officers, directing that sanction to prosecute be granted, to ensure that victims’ rights are protected. In 1981, in the case of Khatri v. State of Bihar,26 also known as the Bhagalpur Blinding case involving the forcible blinding of detainees by pouring acid into their eyes, the Supreme Court failed to order compensation because the responsibility of the police officers concerned was still under investigation, but the court ordered medical treatment for the seven blinded prisoners to be paid for by the state. In Punjab & Haryana

High Court Bar Association v. State of Punjab and Ors,27 a case concerning the abduction and murder of an advocate, his wife and their child of two years, for which the police appeared to be responsible, the Supreme Court held that [t]he police officers in question must be suspended by the State and the trial is transferred to the Designated Court at Chandigarh. The Court is to direct the trial expeditiously within six months of its commencement. In accordance with the requirements of the Criminal Procedure Code the State of Punjab is to sanction the prosecution of the police officers immediately, within one month of receiving this order. In Sebastian M. Hongray v. Union of India,28 the Supreme Court issued a writ of mandamus to the Superintendent of Police (SP) directing him to take its judgment ‘as information of cognizable offence and to commence investigation as prescribed by the relevant provisions of the Code of Criminal Procedure’. In State of Punjab v. Vinod Kumar,29 a case of enforced disappearance by the Punjab police, the High Court had directed the State Government to sanction prosecution of the officials involved. The Supreme Court read the direction down to mean that the State Government must ‘consider’ grant of sanction to prosecute. Although ‘command responsibility’ is not recognised in the law, police officials who failed to check their subordinates despite complaints against them of abduction and elimination were made to face disciplinary proceedings by the Supreme Court’s directions in Inder Singh v. State of Punjab.30 Inder Singh’s case is also significant for the reason that from the ‘disappearance’ of three suspected militants, whom the Punjab police had picked up and detained illegally, the Supreme Court drew the inference of extra-judicial killing by the policemen. _________________ 1

AIR 1950 SC 27.

2

AIR 1970 SC 564.

3

AIR 1978 SC 583.

4

(1981) 1 SCC 608. For other instances of such judicial interpretation, see Bachan Singh v. State, (1982) 3 SCC 24 on the issue of whether the death penalty was constitutional, which held that the right against torture and cruel and degrading punishment was a right deriving from the UDHR and the ICCPR in the Indian context; Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526, discussing Article 5 of the UDHR and Article 10 of the ICCPR in the context of forcible handcuffing of prisoners and Sunil Batra v. Delhi Administration, (1980) 3 SCC 488 on the rights of prisoners and detainees not to be subject to extended periods of solitary confinement. 5

(1997) 1 SCC 416.

6

AIR 1993 SC 2366.

7

People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 at paras 52 and 53 upholding the constitutional validity of Section 27 of the POTA, 2002, which allowed the police officer to acquire samples of handwriting, fingerprints, saliva, semen, blood, and so on, from the accused. 8

ADM v. Shivakant Shukla, (1976) 2 SCC 521 (on the right to file for issue of a writ of habeas corpus during a general Emergency) at paras 542–543. 9

By the Constitution (59th Amendment Act 1988) which inserted Article 359A.

10

The Constitution (63rd Amendment Act) 1989 repealed Article 359A.

11

The Constitution (64th Amendment Act) 1989 repealed Article 359A.

12

See also the reference to AFSPA in Chapter 6.

13

See Ashok Agrwaal, ‘In Search of Vanished Blood: The Writ of Habeas Corpus in Jammu and Kashmir 1990–2004’ (SAFHR paper series 17, Kathmandu, Nepal, 2008). 14

AIR 1993 SC 2366.

15

Rudul Shah v. State of Bihar, (1983) 4 SCC 141 (on compensation for illegal detention for 14 years despite acquittal by the Trial Court); Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677 (on compensation for the illegal detention of a Member of Legislative Assembly [MLA]). 16

Rajasthan Kisan Sangthan v. State (a person who was mistreated by the police in custody was entitled to monetary compensation irrespective of the ‘legality’ or ‘illegality’ of the detention). 17

P. Rathinam v. State of Gujarat, (1994) SCC (Cri) 1163 (interim compensation for custodial rape victim); P. Rathinam v. Union of India, 1989 Supp(2) SCC 716 (compensation for a victim of custodial rape). 18

Arvinder Singh Bagga v. State of U.P., (1994) 6 SCC 565 (illegal detention and torture of family in police station). 19

Death of Sawinder Singh Grower In re, 1995 Supp(4) SCC 450 (compensation for custodial death after defence of suicide in the police station not accepted); State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262 (compensation for custodial death due to torture during interrogation); People’s Union for Civil Liberties v. Union of India, (1997) 3 SCC 433 (compensation for relatives of two persons killed in a ‘faked’ encounter with the police); Kaushalya v. State of Punjab, (1999) 6 SCC 754 (compensation for custodial death after defence of suicide in the police station not accepted), Ajab Singh v. State of Uttar Pradesh, (2000) 3 SCC 521 (unimpressed with the ‘concocted’ stories of the police, the Supreme Court ordered 500,000 as compensation for a person who died in custody of grievous hurt). 20

Inder Singh v. State of Punjab, (1995) 3 SCC 702 (compensation to the victims after abduction and elimination of persons by the police in an insurgency-affected area); Union of India v. Luithukla,

(1999) 9 SCC 273; State of Punjab v. Vinod Kumar, (2000) 9 SCC 742. 21

Postsangbam Ningol Thokchom v. General Officer Commanding, (1997) 7 SCC 725 (compensation following detention by the army). 22

Tasleema v. State (National Capital Territory [NCT] of Delhi), (2009) 161 DLT 660.

23

Ibid.

24

AIR 2007 SC 1840.

25

In the case of Sebastian M. Hongray v. Union of India, (1984) 1 SCC 339 disappearance case, the Supreme Court issued a writ of habeas corpus for the production of the two missing persons, and, when the army failed to do so, it directed the State to pay exemplary costs of 100,000 each to the dependants of the disappeared persons for contempt of court. 26

AIR 1981 SC 928.

27

(1996) 4 SCC 742.

28

(1984) 1 SCC 339.

29

(2000) 9 SCC 742.

30

(1995) 3 SCC 702.

4 The Penal Code and the Law of Evidence This chapter notes the legal connotations of the term ‘custody’ and examines penal laws and evidentiary safeguards that are meant to deter torture in custody. The general criminal law relating to murder, rape, assault and criminal intimidation applies equally to custodial situations. The Indian Penal Code (IPC) also criminalises certain acts that are tantamount to custodial torture by classifying them as aggravated forms of the general offences of rape, hurt and intimidation. The law does not, however, classify custodial killing as a separate or aggravated offence.

Meaning of ‘Custody’ When a person is in duress either because he is held by the investigating agency or other Police or allied authority or is under the control of the court having been remanded by Judicial Orders, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence…. This word is of elastic semantics but its core meaning is that the law has taken control of the person.1 Pre-conviction ‘custody’, also called ‘under-trial’ custody, is chiefly of two kinds—police and judicial. Police custody is the detention of a suspect in a

lock-up by the investigative agency during investigation. The police may not hold a suspect beyond 24 hours of arrest. Any custody beyond 24 hours may only be by the order of a magistrate. On the whole, police custody may not exceed 15 days,2 and is permissible only during the first 15 days after arrest.3 Judicial custody is a suspect’s incarceration, authorised by a magistrate pending investigation or trial, in a jail as distinct from a police lock-up. The investigative agency does not have access to the suspect in judicial custody, although on occasion, by a court’s special orders, interrogation may be permitted within the jail premises. There is no statutory upper limit to under-trial judicial custody save a provision that is commonly known as ‘default bail’. If the completed investigation report (called charge sheet) is not submitted within a stipulated time period,4 the detainee has a right to be released on bail.5 If the charge sheet is submitted within the time specified, under-trial custody can continue for months and years, despite several Supreme Court judgments calling for speedy trial. Post investigation and pending trial, a suspect’s custody is governed by Section 309 of the CrPC. An amendment of 2005 enables the release on bail of an under-trial who has completed half the maximum term for the offence charged, if that offence be not one punishable with death.6 Some special laws allow a longer period of investigation and restrict the court’s power to order release on bail.7 Post-conviction custody is a sentence of imprisonment served out in a jail. Some agencies other than the police have powers of arrest and investigation. The Narcotics Control Bureau, the Directorate of Enforcement and the Central Board of Excise and Customs are some of the agencies that have been empowered in this way. These agencies would be bound by the general criminal procedure and stipulations as to custody unless there is any other special legal provision in that regard. India also permits preventive detention. This is executive detention without trial, enabled by various statutes and recognised by the Constitution. Most preventive detention statutes allow two years as the maximum period of detention. Those arrested are not produced before a magistrate. Instead, an Advisory Board reviews their cases within a

prescribed period. Detainees may, of course, be released by a writ of habeas corpus. Those held in preventive detention are also housed in jails. There are other kinds of custody such as protective custody, deportation camps for foreigners (whose presence has been declared illegal) and military custody. Juveniles may be housed by a special order in protection homes. There are also protection homes for destitute women. Persons may be committed to mental hospitals under the Mental Health Act, which is a controversial piece of legislation.8 Military custody of military personnel is subject to the law of the armed forces. Indian law does not permit civilians to be held in military custody. The paramilitary forces, when they exercise powers of arrest, are required (by law) to hand over those arrested to the local police.9 Until recently—as per various Central Government notifications—the Border Security Force (BSF) had fairly narrow police powers; it could conduct arrests along India’s border but was bound to immediately hand over those arrested to the local police. In November 2010, the Central Government assigned to the Central Paramilitary Forces (CPMF), which includes the BSF, powers of arrest, search and seizure under the Arms Act10 and is now proposing to grant the BSF full police powers in areas facing Naxalite ‘insurgency’.11 The Constitution permits the Central Government to deploy within a State’s territory armed forces or ‘other force’ ‘in aid of civil power’.12 The Border Security Forces Act allows the Central Government, with the concurrence of a State Government, to give members of the BSF policing powers if they are of an equivalent or higher rank as those who hold policing powers in that State.13 The protection against abuse would, however, extend to all custodial situations flowing as it does from the constitutional right to life and due process. Lawful custody apart, there is the perennial problem of illegal detention in lock-ups and in undisclosed locations or ‘safe houses’.

Custodial Rape

In 1983, a sustained public campaign was waged against the acquittal of two police constables, Tukaram and Ganpat, who were accused of raping a 17-year-old girl inside their police station. The Supreme Court recorded the acquittal by disbelieving the victim’s testimony on grounds of her ‘loose moral character’.14 Public campaigns led to the Criminal Law (Amendment) Act of 1983 which introduced custodial rape15 as an aggravated offence of rape, carrying a minimum penal term of 10 years. Also introduced by this amendment was a presumption clause, Section 114(A), in the Indian Evidence Act, 1872, to the effect that in a trial of custodial rape, the court shall presume lack of consent once sexual intercourse in custody is proved and the victim asserts that it occurred without her consent. Custodial rape is regarded as an aggravated offence, but oddly enough, the law also makes an exceptional provision of a sub-minimum sentence for this offence in these terms: ‘Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of either description of less than ten years.’16 In general, penal law does not permit a reduction of the prescribed minimum. To provide such an exception for rape, that too custodial rape, is completely unjustified. A controversial decision of the Supreme Court in this regard is the case of Prem Chand v. State of Haryana.17 Though both the Trial Court and the High Court had confirmed that a rape had taken place in the police station and imposed the minimum sentence of 10 years’ imprisonment, the Supreme Court reduced the sentence to a very minimal term of five years citing the rape victim’s ‘conduct’ as a mitigating factor. The conduct of the victim that worked to mitigate the crime of her rapists was chiefly the fact that she had a ‘loose character’, that she was well known to the rapist policemen and that she had delayed her complaint by five days! A review petition against the judgment was argued with great vigour by various human rights and women’s rights groups. It was dismissed18 on the ground that the stipulated preconditions for reviewing a criminal case were not met, for there was no error apparent on the face of the record. However, while dismissing the review petition, the Supreme Court now clarified that the term ‘conduct’ in its original decision implied no aspersion on the

victim’s character, and that ‘conduct’ only meant her five-day ‘delay’ in reporting the violation. The court also made it plain that its judgment should not be construed as suggesting that the victim’s sexual past had any bearing on the sentence to be awarded in a case of rape. As a matter of fact, until the year 2003, in any rape trial, the defence could discredit the complainant by adverting to her sexual past. Section 155(4) of the Indian Evidence Act enabled a man prosecuted for rape to show that ‘the prosecutrix was of generally immoral character’. But, even so, there is hardly any scope for such a defence in a case of custodial rape, given the statutory presumption (in Section 114A of the Indian Evidence Act) in favour of the woman’s statement that the intercourse was without her consent. Even less could it have any bearing on the sentence once guilt was established. In the event, Section 155(4) of the Indian Evidence Act was deleted by an amending Act (Amendment Act No. 4 of 2003). In no case of rape is the past or the ‘character’ of the woman any longer a relevant factor. Judgments after Prem Chand’s case have consistently held that no leniency is warranted when custodial rape is committed. In State of Maharashtra v. Chandraprakash Kewelchand Jain,19 the Supreme Court declared that ‘when a person in uniform commits such a serious crime of rape on a young girl in her late teens, there is no room for sympathy or pity. The punishment must in such cases be exemplary’.

Other Forms of Custodial Violence Voluntarily causing hurt20 to extort a confession or to compel restoration of property may fetch up to a seven-year term and a fine.21 If the hurt caused is grievous in nature,22 the maximum punishment is 10 years of imprisonment and liability to pay a fine.23 Wrongful confinement to extort a confession or compel restoration of property carries a maximum term of three years and a liability to pay a fine.24 A public servant disobeying the law, with intent to cause injury25 to any person, is liable to face a one-year jail term and/or the imposition of a fine. A public servant concealing the design to commit an offence that it is

his/her duty to prevent, commits an offence, the punishment of which depends on the imprisonment or fine provided for the concerned offence.26 Chapter 7 on ‘judicial trends’ examines in greater detail the relationship between the prosecution of ordinary criminal law offences and special categories of torture-related crimes enacted by the IPC, 1860.

Burden of Proof in Custodial Offences Except in the case of custodial rape,27 there is no relaxation of evidentiary rules in trials of custodial violence. No statutory presumption operates against the custodial official in these cases. The Law Commission of India recommends that a presumption be drawn against the concerned custodial official when injury or death in custody is established. In its 113th Report, Injuries in Police Custody, dated 29 July 1985, the Law Commission has suggested inserting the following section in the Indian Evidence Act, 1872: 114B(1) In a prosecution (of a police officer) for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the court may presume that the injury was caused by the police officer having custody of that person during that period. (2) The Court, in deciding whether or not it should draw a presumption under subsection (1), shall have regard to all the relevant circumstances, including, in particular, (a) the period of custody, (b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence, (c) the evidence of any medical practitioner who might have examined the victim, and (d) evidence of any magistrate who might have recorded the victim’s statement or attempted to record it.

This recommendation has not yet been codified, although the Rajya Sabha’s Select Committee has also suggested adding such a clause to the proposed Prevention of Torture Bill, 2010. Courts have, however, held that strict proof is unrealistic to expect in custodial crimes. Having regard to the circumstances in which custodial crimes are committed, where witnesses and direct evidence would hardly come forth, the Supreme Court in Gafar Khan v. Vasant Raghunath Dhoble28 advised subordinate courts to deal with such cases in a realistic manner without insisting on direct ocular proof beyond reasonable doubt. The same view has been taken in some cases of ‘disappearance’ in custody, where the court declined to apply the strict standard of proof beyond all reasonable doubt, and ruled in favour of victims.29 Following Nilabati Behra,30 courts, while exercising their writ jurisdiction, must cast the onus of explaining a custodial death on the state agency in whose custody the victim was. While this rule has at times been adopted, it has not been uniformly applied, as shown in Chapter 7 (‘Judicial Trends’).

Bar against Confessions The connection between the extraction of confessions and custodial torture is well documented and almost self-evident. The introduction to this book traces the history of the legal regime on confessions. Regardless of its colonial history, the evidentiary rule shutting out confessions made in police custody provides an important safeguard against coerced confessions. Under the normal rule of criminal law, no confessional statement made under any circumstance to any police officer is admissible in evidence. Since such confessions are excluded at the threshold, it is not necessary for courts to go into whether the confession was made under coercion. The ban on the admissibility of confessions to the police is necessary to protect crime suspects from the coercive tactics of the police.31 All confessions must be voluntary—this was the legislative intent that courts have consistently upheld. The purpose behind Section 25 of the Indian Evidence Act was explained in Queen Empress v. Babulal,32 which the Supreme Court cited with approval:

[T]he legislature had in view the malpractices of police officers in extorting confessions from accused persons in order to gain credit by securing convictions, and that those malpractices went to the length of positive torture; nor do I doubt that the legislature, in laying down such stringent rules, regarded the evidence of police officers as untrustworthy, and the object of the rules was to put a stop to the extortion of confession, by taking away from the police officers the advantage of proving such extorted confessions during the trial of accused persons.33 The statutory regime in relation to confessions and the admissibility of such evidence is to be found in the CrPC, 1973, and the Indian Evidence Act, 1872. Broadly summarised, the law under the CrPC and the Indian Evidence Act (a) makes inadmissible all confessions made to a police officer (Section 25, Indian Evidence Act and Section 162 CrPC); (b) makes admissible only those confessions of any person in police custody which are made before a magistrate (Section 26, Indian Evidence Act); (c) provides that although confessional statements are not admissible, any material object discovered as a consequence of such confessions is admissible along with that distinct part of the confession relating to such discovery (Section 27, Indian Evidence Act); (d) provides that where an admissible confession made by one person is proved, it may be considered against such other persons who are jointly being tried for the same offence (Section 30, Indian Evidence Act) but will not be substantive evidence against anyone other than the maker and (e) allows police officers to orally examine any person while investigating an offence but exempts such persons from selfincriminatory answers (Section 161, CrPC). Thus, no statement made to a police officer is admissible.34 No confession made by the accused to any police officer is admissible.35 No statement made in police custody is admissible unless it was in the immediate presence of a magistrate.36 Even a confession made before a magistrate is not substantive evidence against the co-accused, nor can a conviction be based solely on the confession of a co-accused.37 An accused who informs the magistrate that he or she does not wish to make a

confession can thereafter not be sent to police custody.38 A retracted confession has very little evidentiary value. _________________ 1

Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 785, 787.

2

Proviso to Section 167(2), CrPC.

3

CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141.

4

Ninety days in case the offence is punishable with death, imprisonment for life or imprisonment for a term of 10 years and 60 days in other cases (Proviso [a] to Section 167[2], CrPC). 5

Proviso to Section 167(2), CrPC.

6

Section 436A of the CrPC.

7

Notably, the narcotics law and anti-terror statutes.

8

The Act is deeply intrusive of individual freedom and makes illness a pretext for deprivation of liberty, which lends itself to abuse by unscrupulous relatives. It affords the State the power to interfere with life, liberty and property on account of a ‘perceived’ cerebral inability. 9

Statutes such as the Armed Forces (Special Powers) Act (AFSPA) (Section 5) contain this requirement. 10

‘Paramilitary Forces Get Powers of Search Seizure, Arrest under Arms Act’, Indian Express, 31 December 2010, Lucknow edition, available at http://www.indianexpress.com/news/paramilitaryforces-get-powers-of-search-se/731497/ (last accessed on 30 November 2012). 11

Ibid.

12

Constitution of India, 7th Schedule, List I entry 2-A.

13

Section 139(2), Border Security Force Act.

14

Tukaram & Anr v. State of Maharashtra, (1979) 2 SCC 143.

15

Custodial Rape (Section 376 of the IPC, Sub-Section 2 a, b, c, d):

Rape committed on a woman in their or their subordinate’s custody by

a. police officer (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to, which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or b. being a public servant, takes advantage of an official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or being on the management or on the staff of a jail, remand home, or other place of custody established by or under any law for the time being in force or

of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or being on the management or on the staff of a hospital, takes advantage of an official position and commits rape on a woman in that hospital; or … shall be punished with rigorous imprisonment which shall not be less than ten years but which may be for life and shall also be liable to fine: provided that the court may, for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment of either description for a term of less than ten years. 16

Proviso to Section 376(2).

17

AIR 1989 SC 937; 1989 Supp (1) SCC 286.

18

(1990) 1 SCC 249.

19

(1990) 1 SCC 550.

20

Section 319, IPC: ‘Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.’ 21

Section 330, IPC:

Whosoever voluntarily causes hurt for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any confession or any information which may lead to the detention of any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 22

Section 320, Grievous hurt. The following kinds of hurt only are designated as ‘grievous’: First–Emasculation; Secondly–Permanent privation of the sight of either eye; Thirdly–Permanent privation of the hearing of either ear; Fourthly–Privation of any member or joint; Fifthly–Destruction or permanent impairing of the powers of any member or joint; Sixthly–Permanent disfiguration of the head or face; Seventhly–Fracture or dislocation of a bone or tooth; Eighthly–Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

23

Section 331, IPC: Voluntarily causing grievous hurt to extort confession or compel restoration of property. 24

Section 348, IPC:

Whoever wrongfully confines any person for the purpose of extorting from the person confined, or any person interested in the person confined, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the person confined or any person interested in the person confined or restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to three years, and shall be liable to fine. 25

The word injury denotes, according to Section 44 of the IPC, ‘any harm whatever illegally caused to any person, in body, mind, reputation or property’. 26

Section 166, IPC:

Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. 27

Section 114A, Indian Evidence Act: ‘In a trial of custodial rape, if intercourse with the suspect is proven, the presumption shall be that it was without the victim’s consent, if the victim denies consent.’ 28

(2003) 7 SCC 749 at para 7.

29

See Bhagwan Singh v. State of Punjab, (1992) 3 SCC 249; Sahadevan v. State, (2003) 1 SCC 534, the body of the deceased not found but the accused policemen still convicted on the basis of circumstantial evidence. 30

(1993) AIR SC 2366.

31

See the following cases for the proposition that the intention to bar admissibility of confessions to police is to exclude from evidence confessions made under threat, force or coercion, on which the police have a bad record: State of Punjab v. Barkat Ram, AIR 1962 SC 276 (on whether a customs officer is a police officer) at para 18; Bheru Singh v. State of Rajasthan, (1994) 2 SCC 467; State of Gujarat v. Anirudhsing, (1997) 6 SCC 514 (on the murder of a government official) at para 17; the minority opinion of Ramaswamy, J. in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (a case on the constitutionality of TADA, an anti-terrorism legislation, which made an exception to the rule of inadmissibility of confessions to the police) at para 383. 32

ILR 6 All 509.

33

Raja Ram Jaiswal v. State of Bihar, (1964) 2 SCR 752 at para 12.

34

Section 162, CrPC.

35

Section 25, Indian Evidence Act.

36

Section 26, Indian Evidence Act.

37

Section 30, Indian Evidence Act, Kashmira Singh v. State of Punjab, AIR 1952 SC 159; Mohd. Khalid v. West Bengal, (2002) 7 SCC 334. 38

Section 164(3), CrPC.

5 Due Process: CrPC, Police Acts and Prison Manuals Procedural justice is critical to the prevention of custodial torture. The main statutory basis of criminal due process is the Code of Criminal Procedure (CrPC), 1973. This chapter reviews procedural safeguards against abuse in custody. But procedure also protects state agents and makes it hard to bring them to justice. This immunity is discussed in Chapter 6.

The Safeguards The Supreme Court’s guidelines in D.K. Basu’s case1 and the CrPC provide some safeguards against custodial abuse: 1. While making an arrest, the police officers must identify themselves and must bear clear identification of their names and designations.2 2. The person arrested must be immediately informed about the following: (a) Grounds for arrest3 (b) Right to bail (in a bailable offence)4

(c) Right to nominate a person to be informed of the arrest and place of detention,5 who shall be informed without delay6 and whose details should be entered in a diary kept in the police station7 3. An arrest memo should be prepared at the time of arrest containing the time and date of arrest, signed by an independent witness and countersigned by the detainee.8 The arrested person shall be taken before the magistrate or officer in charge of police station without unnecessary delay.9 4. If the offence is bailable, the detainee should be released immediately upon furnishing bail.10 5. Even if the offence is non-bailable, the police officer should endeavour to complete investigation within 24 hours and must have sufficient justification for seeking custody beyond 24 hours. 6. At the time of arrest, there should be a physical examination of the detainee and any injuries found should be noted in an inspection memo to be signed by the detainee and the officer effecting the arrest.11 7. Every 48 hours, the detainee should be examined by a doctor from an approved panel of doctors; copies of all the aforesaid documents should be sent to the concerned magistrates.12 The National Human Rights Commission (NHRC) has also suggested that at the time of release from police custody, there must be a medical certificate indicating the state of the prisoner with a record of injuries, if any. 8. All arrests made without a judicial warrant shall be reported to the District Magistrate by the officer in charge of each police station, along with information whether bail has been granted.13

Police Powers and Its Limits Powers

1. The police may arrest without a warrant in cognizable cases and in some other circumstances14 and may enter into any place where they have reason to believe that a person sought to be arrested has entered15 including places outside their station limits.16 2. The police may search the arrested person17 and seize offensive weapons.18 While investigating cognizable offences, they may also search any premises.19 3. A police officer can order a medical examination of the accused under certain circumstances.20

Restrictions on Police Power 1. The police must not confine the body of the person arrested unless there is refusal to submit to custody. Handcuffing may only be done in the most exceptional circumstances.21 2. The police must not use excessive force during or after arrest. ‘All means necessary’22 may be used if the person resists arrest; this, however, does not imply a right to kill (especially if the person is not accused of an offence punishable with either the death penalty or imprisonment for life).23 The aim of the police is to render the accused to the system of criminal justice. Killing or otherwise injuring an accused does not further this aim. Lethal force can only be justified as an exercise of the right to private defence, available alike to the police and other individuals under the Indian Penal Code (IPC).24 3. The police cannot arrest a woman after sundown or before sunrise except in exceptional circumstances—in which case permission has to be sought from a judicial magistrate. Even then, the arrest may only be made by a female police officer.25 4. A woman or a child under 15 may be questioned as a witness only at their residence.26

The Magistracy

Courts have been given extensive powers under the CrPC to arrive at the truth, to call as a witness anyone who is relevant,27 to put all relevant queries28 and to enable relevant persons to depose.29 Though there is no clear provision for witness protection in the general law, there are many directives of the Supreme Court and the high courts that criminal courts should follow in this regard.30 Courts are also empowered to penalise wrongful prosecution, fabrication of evidence, unlawful detention and forced confession.31 The CrPC entrusts the magistrate with the task of checking arbitrary and excessive use of force by the police. Since Indian law permits arrest on suspicion and without a warrant, the requirement to produce every detainee before a magistrate within 24 hours is not only statutorily enacted by Section 57 of the CrPC but also constitutionally enshrined in Article 22(2).

Mandatory Magisterial Functions 1. The magistrate has a duty to inspect the arrest memo and all the other documents forwarded to him by the police and satisfy himself that they are proper.32 The magistrate must also scrutinise the case diary33 and may direct the arrestee to be identified in an appropriate manner in cases where the same appears necessary.34 2. The magistrate shall order a physical examination of the accused by a registered medical practitioner if so requested, unless the request appears to be vexatious.35

Magistrate’s Enabling Powers 1. The magistrate may inspect the case diaries36 and see whether the allegations really make out a non-bailable offence, and even if they do, whether there is justification for continued detention. The very purpose of production before a magistrate is for a judicial assessment of the need to detain any individual. The role of the magistrate at this stage calls for an exercise of discretion stemming from more than one provision of the code.37 Since the magistrate is called upon to decide

2.

3.

4.

5.

whether or not to authorise any further detention of the accused,38 there must be a serious application of mind to the question. The magistrate cannot automatically extend custody. The magistrate has been granted the power to release a person on bail.39 In fact, at any stage in the investigation, inquiry or trial, the magistrate may form the opinion that ‘there are no reasonable grounds for believing that the accused has committed a non-bailable offence’. In that event, the magistrate is bound to release the accused on bail.40 If the accused is charged with an offence punishable with imprisonment for seven years or less, the magistrate should apply the known and accepted rule of bail, not jail. Two things follow from the above. One, the accused is not required to move for his release on bail—the magistrate may exercise judicial discretion suo motu not to authorise further custody or to grant release on bail or bond when a detainee is produced. The bail amount should not be excessive.41 Two, the magistrate is under a duty to peruse the case diary and scrutinise the arrest memo. The norms of arrest laid down by the Supreme Court bind all authorities including magistrates. They are meant to know the seriousness with which the Supreme Court and the high courts regard the increasing instances of custodial atrocities. The Supreme Court has noted many times that the fear of going back into police custody makes it likely that the detainee will not speak out. Before adjudging the need and nature of future detention, the magistrate must have a detailed interaction with the detainee and assess the conditions in police custody. The Supreme Court has noted in a different context (of confirmation proceedings before a magistrate following a purported custodial confession made to the police under the ‘terror law’) that it is only the assurance of not being sent to police custody that will embolden the detainee to speak out.42 It must be the magistrate’s purpose to let the detainee speak freely and take due care that the detainee does not face police reprisal.

6. The magistrate should guard against granting extended police custody. The notion that custody is essential for disclosure is absurd.43 Though the observation of the Constitution Bench to this effect was made in the case of anticipatory bail, the rationale applies to every investigation where custody is invariably sought as a necessity for ‘discovery’ and interrogation. The assumption implicit in this erroneous notion is that torture or coercion is the only means to arrive at the truth. The magistrate must do everything to discourage this tacit approval of torture.

Checking the Police Record The magistrate is entitled to regularly check the records of investigation. The magistrate would, therefore, be within his powers to call for any report sent by the police to the District Magistrate on an arrest made without a warrant, and also check the records of any weapons said to have been seized from the person arrested. A list of things seized upon a search conducted by the police is simultaneously to be sent to the magistrate.44 Keeping the above in mind, the magistrate should assess whether the record bears out the circumstances of arrest as claimed by the police and whether they had been submitted contemporaneously. In the absence of such contemporaneous record or in case the record is contrary to the claim of the police regarding the date and manner of arrest, the authenticity of the alleged seizures and other things asserted by the police would be affected. This would have a bearing on whether to extend custody and the nature of such custody. The magistrate should take care to note all such relevant facts on the record, as this would also, eventually, be useful for the court that will try the case. This will also help in ascertaining whether the police officials are in any manner culpable or guilty of custodial abuse. An unwarranted delay in forwarding the accused to a magistrate, abuse of power by way of illegal custody, fabrication of evidence or other forms of misuse of power can be detected and checked by the magistrate’s prompt and relevant notings. A vigilant magistracy can act as an effective check on the police. If a magistrate notes misdemeanour or passes strictures against the investigating officer, appropriate administrative action can follow.

Regular correctional measures would help put in place a culture of accountability.

Limits of Magisterial Powers 1. The magistrate cannot authorise police custody for a period exceeding 15 days on the whole.45 The magistrate must also ensure that the police do not try and circumvent this rule by splitting the same or connected cases into seemingly different ones by registering multiple First Information Reports (FIRs) touching upon a single transaction, simply to claim extended police custody. 2. No detention or custody shall be authorised unless the accused is physically produced before the magistrate.46 3. The magistrate may not release a person if there are reasonable grounds to believe that such person is guilty of an offence punishable with death, or imprisonment for life.47 Bail may also be denied if there have been previous convictions.48

Magisterial Inquiry into Custodial Torture Every incident of custodial violence is a crime and should be prosecuted as all crimes are. In addition to this penal process, a special inquiry is prescribed for various forms of custodial violence. 1. Upon death, disappearance or alleged rape in police custody, judicial custody or any other custody authorised by the magistrate, an inquiry by a judicial magistrate is mandatory. This is in addition to, and not in derogation of, the police investigation and prosecution that should inevitably follow, as all these are cognizable offences.49 2. While conducting an inquiry into a custodial death, rape or disappearance, the magistrate shall record evidence and go into every circumstance of the case. This includes the power to examine the dead body or disinter it if has already been interred. Where

practicable, relatives shall be informed and permitted to be present at the inquiry. 3. In addition to these, NHRC has issued the following directions regarding custodial deaths and custodial rapes: the Superintendent of Police or the District Magistrate shall report every custodial death and custodial rape, whether in police or judicial custody, to the NHRC within 24 hours of the occurrence or of these officers having come to know of such incidents.50 In fact, failure to report promptly would give rise to a presumption that there was an attempt to suppress the incidents. The magistrate, while conducting the inquiry, should act on the rule of presumption noted by the NHRC. In cases of custodial deaths, the post-mortem should be filmed and the autopsy report shall be prepared as per the Model Autopsy form that NHRC has drawn up.

Police Statutes ‘Police’ is a State subject in India, which means that every State in the Indian Union is entitled to legislate upon and regulate its police force. States have their own police statutes but there are features common to all of them. The various Police Acts recognise dereliction of duty as being a type of service misconduct. Even though many do not separately define ‘misconduct’, gross misbehaviour with members of the public would undoubtedly count as such.51 Officers in whose custody prisoners have received injuries or died or officers who are charged with a prima facie case of custodial rape would invite disciplinary action under most police statutes.52 All the Police Acts require a report to be sent to the District Magistrate or Inspector General of Police about the conduct and character of subordinate officers. It would be a good practice if such reports by superior officers were to contain assessments based on the manner in which a subordinate officer has recorded complaints (FIRs) and other steps such as:

• Time within which action was taken • Promptness with which arrested accused were produced before magistrate • The justification for custody given by the officer53 • The quality of statements recorded (under Section 161 of CrPC) during investigation • Time period within which the charge sheet was submitted • Maintenance of records If these become matters in respect of which the performance of police officers is routinely assessed, it would go some way towards controlling custodial abuse.

Prison Acts and Jail Manuals Whilst it is well recorded that police systematically use torture as a tool of interrogation in India, the practice of torture and other cruel and inhuman treatment as a form of summary punishment against prisoners is less well known and rarely publicised. The prison system in India is governed by the colonial Prisons Act, 1894, and the Prisoners Act, 1900. However, the Supreme Court has, through a series of judgments, expanded the horizon of prisoner’s rights and prison jurisprudence. The Prisons Act, 1894, provides for corporal punishment in cases where a prison offence has been committed. As per Section 46(12) of the Act, the jail superintendent may punish a prison offence with whipping, among other alternatives. The choice of punishment is left to the discretion of the jail superintendent. Section 38 of the Delhi Jail Manual specifically grants the jail superintendent the power to deal with prison offences or other offences under the IPC himself/herself, or to move a magistrate. Wilful disobedience of prison regulations, use of threatening or intimidating language, ‘immoral or indecent’ behaviour, and feigning illness, among others, constitute prison offences under the Act. But it specifies no procedure for the examination of offences.

Sunil Batra v. Delhi Administration54 was the case of a convict under a death sentence, who challenged his punishment of solitary confinement imposed under Section 30(2) of the Prisons Act, 1894. The convict contended that Section 56 of the Prisons Act, which confers arbitrary powers on the superintendent to confine a prisoner in irons, violates Articles 14 and 21 of the Constitution. While the Supreme Court upheld Section 30(2) and Section 56 of the Act, it emphasised the need for prison reform and a ‘reorientation of the outlook towards prisoners’ in these words: Jail Manuals are largely a hangover of the past, still retailing anachronistic provisions like whipping and the ban on the use of the Gandhi cap. Barbaric treatment of a prisoner from the point of view of his rehabilitation and acceptance and retention in the mainstream of social life, becomes counterproductive in the long run. In Rama Murthy v. State of Karnataka55 in 1997, the Supreme Court pointed to the need for a fresh look at the Indian Prisons Act and suggested an All India Jail Manual to serve as a model for the entire country. The All India Committee on Jail Reforms (1980–1983), headed by Justice A.N. Mulla, made the obvious point that ‘if prisoners are treated humanely according to set rules and are provided with incentives for showing good conduct and discipline, the need for enforcing prison discipline through prison punishments shall reduce.’ The Committee recommended that prison offences be more clearly defined and noted that ‘some of the prison punishments as prescribed by Section 46 of the Prisons Act, 1894 were not in conformity with standards of humanitarian treatment of offenders and should be abolished, for example, corporal punishment in the form of whipping’. The Committee found the nature of hearings conducted by the jail superintendent unsatisfactory. It recommended provisions to ensure the prisoner a proper opportunity of defence and a right of appeal to the Inspector General of Prisons. In 1996, the NHRC circulated ‘An Outline of the Indian Prison Bill, 1996’ to all States and Union Territories, incorporating the core provisions of the Jail Reform Committee’s recommendations. However, the reference

to the home ministry for circulation raised the ire of many States, as it overlooked the fact that prison regulation is a State subject and thus cannot be dictated by the Central Government. It seems that it may have been better had the NHRC directly sent its recommendations to every State. Conditions in jails continue to be abysmal. Watch Dogs International v. Union of India56 brought to light the inhumane practice of Munshi Kedis, convicted criminals authorised to supervise the movements of other prisoners in the jail, which resulted in the death of a prisoner in Tihar Jail. The court directed the Inspector General of the jail to file an affidavit giving full details of these Munshi Kedis and passed interim orders for review of the system of Munshi Kedis by a magistrate. A recent fact-finding team of lawyers and activists of the Peoples Union for Democratic Rights (PUDR) investigated conditions in Nagpur Jail, following a prolonged hunger strike by political prisoners against torture and harassment. The team found that long periods in solitary confinement and verbal and physical abuse were routine. In Sanjay Suri v. Delhi Administration,57 the Supreme Court entertained a writ petition by two journalists who had investigated homosexual assaults on juvenile prisoners in Delhi’s Tihar Jail. The court first ordered an inquiry by the official visitor to the jail, the District and Sessions Judge and also directed examination of the prisoners by a team of doctors from India’s premier medical institution, the All India Institute of Medical Sciences. In its final judgment, the court directed a broad-based Visitors’ Committee consisting of public-spirited people from varied fields to bring transparency and accountability to custodial institutions. The Supreme Court and the high courts have also entertained petitions relating to abuse in mental health institutions and remand homes. _________________ 1

D.K. Basu v. West Bengal, (1997) 1 SCC 416.

2

Ibid; Section 41B (a), CrPC.

3

Section 50(1), CrPC.

4

Section 50(2), CrPC.

5

Section 50A(2), CrPC.

6

Section 50A(1), CrPC.

7

Section 50A(3), CrPC.

8

D.K. Basu v. West Bengal, (1997) 1 SCC 416; Section 41B (b), CrPC.

9

Section 56, CrPC.

10

Section 436, CrPC.

11

D.K. Basu v. West Bengal, op. cit.

12

Ibid.

13

Section 58, CrPC.

14

See Section 41, CrPC and sections 107, 150 and 151, CrPC. The Supreme Court has held that power to arrest does not imply that an arrest must necessarily be made in all cases. 15

Section 47. This section excepts search of the residence of a parda nashin woman, in which case they are required to give notice to allow them to withdraw. 16

Section 48, CrPC.

17

Section 51, CrPC.

18

Section 52, CrPC.

19

Sections 100 and 165, CrPC.

20

Section 53, CrPC.

21

Section 49, CrPC; Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526.

22

Section 46 (2), CrPC.

23

Section 46 (3), CrPC.

24

See Chapter IV, especially Sections 96–106. See also, NHRC guidelines on this point.

25

Section 46(4), CrPC.

26

Proviso to Section 160(1), CrPC.

27

Sections 310, 311, 311A, Indian Evidence Act.

28

Section 165, Indian Evidence Act.

29

Sections 284, 306, Indian Evidence Act.

30

See, for instance, Neelam Katara v. Union of India Crl. W. No. 247 of 2002 decided on 14 October 2003 by the Delhi High Court. 31

IPC, Sections 195, 195A, 196 and other offences in Chapter XI, IPC; Sections 330, 331, 342, IPC read with Section 195 and sections 340, 358 of the CrPC. 32

Section 50A(4), CrPC.

33

Section 167 (1).

34

Section 54A, CrPC.

35

Section 54, CrPC.

36

Section 167(1).

37

Sections 167 and 437, CrPC.

38

Section 167(2), CrPC.

39

Section 437(1), CrPC.

40

Section 437(2), CrPC.

41

Section 440.

42

State v. Navjot Sandhu, (2005) 11 SCC 600.

43

Gurbaksh Singh Sibbia v. State of Punjab, (1980) 3 SCR 383.

44

Section 102(3), CrPC.

45

Proviso (a) to Section 167(2).

46

Proviso (b) to Section 167(2).

47

Section 437(1), CrPC.

48

Section 437, CrPC.

49

Even granting that the death may be a suicide, investigation and prosecution would lie for abetment. 50

NHRC guidelines on custodial death and rapes, available at http://nhrc.nic.in (last accessed on 30 November 2012). 51

Judgment of Central Administrative Tribunal on 8A Delhi Police (Punishment and Appeal)

Rules. 52

See Article 311 of the Constitution of India, 1950, and the All India Services (Discipline and Appeal) Rules, 1969, as well as the Central Service Rules of India and the individual States, the Police Act, 1861, and the provisions of the Police Acts of the individual union states. 53

See Section 57.

54

AIR 1978 SC 1675.

55

Rama Murthy v. State of Karnataka, (1997) 2 SCC 642.

56

(1998) 8 SCC 338.

57

AIR 1988 SC 414.

6 State of Custodial Justice This chapter looks at immunities to state agents and other devices that sustain torture as a key policing tool. Statutory and judge-made safeguards notwithstanding, torture remains an openly routine part of police work. For decades, the system has fostered impunity through its doublespeak. Would the Prevention of Torture Bill, 2010, change things if it becomes law? Is chemical truth testing an answer? In conclusion, this chapter presents a brief discussion on these topics. As previous chapters in this section have noted, India is among the few countries which permit preventive detention in peacetime. Without satisfying the emergency standards set forth in Article 4 of the International Covenant on Civil and Political Rights (ICCPR), the Indian state has armed itself with all manner of emergency powers. An example is the Armed Forces (Special Powers) Act (AFSPA), 1958, which has been in place for over 50 years in the north-east and has been introduced in other places as well despite strong public opposition and well-documented instances of abuse. The Central or State Government may declare any area a ‘disturbed area’1 whereupon the armed forces2 may, on a mere suspicion of wrongdoing, shoot, kill, arrest or search civilians and enter their homes.3 This power of life and death over the common people is near absolute, for

without the permission of the Central Government,4 the armed forces cannot be called to account for anything done under AFSPA. Emergency and security laws are not the only ones that encourage impunity. Normal laws too make it hard to bring errant state actors to justice.

Unwitting Consequences of Criminalising Torture under Sections 330, 331, 348 of the IPC Ordinarily simple hurt and grievous hurt carry a one-year and seven-year maximum sentence, respectively,5 but if done to extort a confession (or to compel restoration of property), the maximum terms would become seven and ten. By creating these specific categories of hurt and grievous hurt and enhancing the penalty, the Indian Penal Code (IPC) seemingly recognises the heinous nature of torture. In 1936, the Lahore High Court noted that violence inflicted upon suspects by responsible police officers during investigation is one of the most serious offences known to the law, the result of which would be the conviction of the innocent on the strength of false confessions that are forced out of them. It is clearly the duty of the courts when a case of this kind is proved, to pass sentences, which have deterrent effect.6 In another judgment, a sentence of three months, awarded by a lower court for causing hurt for the purpose of extorting a confession, was enhanced to rigorous imprisonment of two years. The reason for enhancement was ‘that the offence found to have been committed was of the gravest character, and such as to shake judicial confidence in a most important portion of the evidence … namely the genuineness and trustworthiness of early confession.’7 Torture by the police has been viewed not merely as harmful to the suspect but also as a serious threat to justice. Some early cases reveal a wisdom, which seems to elude present-day administrators. But, by its very

nature, positivistic classification tends to exempt even as it classifies. The actus reus of ‘causing hurt’ or ‘grievous hurt’ is in practice interpreted to exclude other criminal liability. The very presence of Sections 330, 331 and 348 of the IPC has wordlessly worked to bring all manner of police brutality within the fold of these sections and to exclude such deeds from any other offence. Even though no law exempts the police from the more serious charges of homicide or attempt to commit the same, courts tend to charge policemen under the ‘hurt’ sections alone even when death has resulted from the torture. The gruesome but logical outcome of this paradox is the case of Roshan Lal and Ors. v. State of Punjab8 where some policemen beat a prisoner to death, burnt his body and crushed his bones and threw the remains into the canal. The chief villain, the Sub-Inspector (SI), was only convicted under Sections 330 and 348 of the IPC and his accomplices under the ancillary charge of ‘destroying evidence’ under Section 201 of the IPC where the ‘evidence’ in question was actually the dead body of the victim they had tortured to death.9 The D.K. Basu10 judgment recognised that the IPC provisions were inadequate as remedies for custodial torture, though this was more to say that reparation should include monetary compensation in addition to prosecution. Judicial understanding of the gravity of custodial violence is not consistent. The only penal clauses that deal in terms with custodial violence are Sections 330 and 331 of the IPC, but these refer only to ‘hurt’. Deaths in custody have been prosecuted as mere instances of ‘hurt’ under these sections, even post D.K. Basu. As the Simla High Court observed, to treat lethal torture as entailing no higher culpability is to grant the police a special privilege against citizens that would fall foul of the fundamental right to life and to equal protection.11 The same view was taken by the Karnataka High Court.12 But for torture so severe that it resulted in the prisoner’s death, the Bombay and the Jabalpur High Courts have only recorded convictions under Sections 330 and 331 of the IPC.13 Morgan and McPherson’s famous commentary has this to say about the mens rea (intention) required under Sections 330 and 331 of the IPC:

The hurt or grievous hurt in these sections is supposed to be committed by way of torture, but for purposes differing from those mentioned in the two preceding sections. The illustrations show the operation of these provisions. The information sought may be required for the advancement of justice—nay more, it may be such information as cannot be withheld without offending against public justice….14 The mens rea to extort a confession or information relating to an ‘offence’ has also enabled an exemption from criminal liability in its own way. One early decision illustrates this point. Torture in custody to extort confessions on the practice of witchcraft, was not covered by Section 330, as, technically, witchcraft was not an ‘offence’.15 This view led to acquittals, thereby missing the point that the issue was really of violence in custody, and not whether it was inflicted for an offence or non-offence. In fact, it is worse if a man was arrested and beaten up for confessing to what was not even an offence. In Emperor v. Maula Baksh,16 the High Court of Lahore held that the grievous hurt caused by policemen to compel the restoration of an abducted woman was not covered by Section 331 as it was not, technically, done to restore ‘property’. As recently as in 1978, the Rajasthan High Court said that in the absence of proof that the violence was inflicted for the purpose specified in Section 330, no offence would be made out.17 The mens rea also imported a purpose to police brutality, the effect of which has been to breed an unspoken but persistent teleological justification for torture. Even post-Independence, the quest for information by the police has been called admirable, though the method of torture is often deprecated. In a recent case, police beating given to young girls in order to make them testify against horrendous rapes by a ‘swami’ was condoned by the Supreme Court as a necessary means adopted to ‘shake them out of the fear psychosis’.18 Growing public consciousness has perhaps changed the trend a little.19 In recent years, police officials have faced prosecutions and punishments for culpable homicide or even murder when prisoners have died or

disappeared. In a verdict of November 2011,20 the Supreme Court has pronounced guilty of murder the police officials responsible for the disappearance of a human rights activist. This was the enforced disappearance of an outstanding and fearless human rights activist of Punjab—Jaswant Singh Khalra.21 The Trial Court had originally charged the policemen only with abduction. Evidence came on record to reveal that Khalra had been severely tortured in custody and his body taken away to be dumped in a canal. The Trial Court then added the charge of murder. In the event, two policemen were convicted of murder and the rest were given seven-year terms for kidnapping which the High Court eventually enhanced to life imprisonment. The Supreme Court held that the High Court was right in doing so and also maintained the two convictions on the count of murder. The Select Committee of the Rajya Sabha (the upper house of Parliament) has, fortunately, kept some of these facts in mind while reviewing the new Prevention of Torture Bill, 2010, and has suggested a definition of torture that is not limited to custodial violence ‘done to extort a confession’. The Committee was also, evidently, alive to the dangers of classifying different orders of custodial violence under one head, which may lead to trivial sentences for even a death caused by torture. The Bill of 2010 is dealt with later in this chapter.

Sanctions and Immunity Provisions Perhaps the most objectionable of the institutional and legal mechanisms that allow state actors accused of torture to escape liability are the various sanction and immunity provisions, which require prior permission to register cases against state functionaries for acts done in the ‘discharge of duty’, or impose time limitations for the lodging of such complaints. There are High Court judgments that say that torture is no part of ‘official duty’, and there are Supreme Court judgments implying this (see Chapter 7). The contradictory precedents on the issue and the very existence of these provisions prove to be a hurdle to effective prosecution and redress. They provide a ready-made preliminary objection and defence to the officials in every such case that is filed, leading to delays and acquittals. They also serve a symbolic function in indicating that acts of the police are in some

way above the ordinary law of the land, and state actors must be ‘protected’. Judges, magistrates and some public servants are covered by the immunity if some conditions are fulfilled. The term ‘public servant’ is defined in the IPC22 and means the same thing for purposes of the Code of Criminal Procedure (CrPC).23 Only a small class of public servants are entitled to the cover of sanction under the Code when the prosecution is on account of acts purported to be done in discharge of official duty. The class is of those officers whose removal from office needs the prior permission of the government that employs them.24 As the CrPC stands, officers of the rank of inspector and below would not be covered in view of the fact that the permission of the government is not required for their removal from office.25 However, the CrPC empowers the State Government to extend the protection of sanction to other classes of officials charged with the maintenance of public order.26 Most State Governments have issued notifications covering virtually the whole class of police officers. Chapter 7 presents a more detailed analysis of the interpretation of these sanctionrelated sections. While there has been a spate of positive judgments of High Courts to the effect that prior sanction is not required for the prosecution of custodial torture, the view of the Supreme Court is more ambiguous.27 The provisions mandating such sanction make every case a matter of determination on facts of whether such acts were in the ‘course of duty’ and thus cast a presumptive, protective cloak around the actions of police personnel.

Immunity from Prosecution Indian legislation contains various provisions providing immunity from prosecution to certain groups of public officials such as members of the armed forces of the Union. Members of the armed forces are also expressly protected from arrest without the consent of the Central Government28 for anything done or purported to be done in the discharge of official duties. Moreover, no prosecution may be instituted except with the sanction of the Central or State Governments for the use of armed force or civil force to disperse an assembly.29 The AFSPA operating in Jammu and Kashmir, and

in the north-east and similar laws elsewhere also contain provisions of immunity from prosecution.30 The current law on terrorist offences, the Unlawful Activities Prevention Act (UAPA), stipulates that no prosecution or other legal proceedings shall lie against any serving member or retired member of the armed forces or other para-military forces in respect of any action taken or forces in respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism.31

Statutes of Limitation and Other Legislative Exceptions The CrPC stipulates limitation periods or time bars for the cognizance of offences carrying a punishment of up to three years’ imprisonment. There is no time bar for offences carrying heavier punishments. However, most local laws bar actions against police officers unless the complaint is brought within a specified time limit no matter how serious the offence. In Patel v. State of Gujarat,32 the Supreme Court considered a statute from that State, which barred the prosecution of police officers unless initiated within one year of the alleged offence. The Supreme Court upheld the validity of the provision as it construed the statute as applying to acts that could be committed only by virtue of the offender’s official position. The same court came to a different decision in Unnikrishnan v. Alikutty33 where criminal proceedings against police officers for acts of torture would have been barred by the statute of the concerned State, unless filed within six months of the date of the offence. The court in this case held that abuse of authority would not fall within the concept of discharge of duty. The IPC makes a specific exemption: If the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by committing an act which he, in good

faith, believes to be lawful and necessary for the due discharge of his duty, then the offence is culpable homicide not amounting to murder.34 (Emphasis added.) While the minimum punishment for murder under Section 302 of the IPC is life imprisonment, culpable homicide not amounting to murder can be punished with imprisonment for 10 years or even a lesser term under Section 304 of the IPC.

Confessions in the Age of Terror Since the late 1980s, the perception of terrorism as the single greatest threat to the nation state, the international discourse of ‘war on terror’ and the emergence of the ‘security state’ are developments that have led to sharp changes in the regime of the law. This period has seen various anti-terror legislations changing the rules of investigation, detention and trial and conferring extraordinary powers on law enforcement agencies. While a closer study of such legislation is beyond the scope of this effort, common to these statutes, in the Indian context, is removal of the bar on admissibility of confessions made to police officers. This has undone one of the most crucial protections against coercive practices and torture in custody, and has a direct bearing on the custodial safety of terrorist suspects. These antiterror statutes are widely seen as facilitating the use of torture against those who are either suspected of being terrorists or are simply labelled as terrorists by the police and the army. The Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, permitted confessions made to a police officer of a particular rank to be used against the accused or a co-accused or conspirator tried in the same case (Section 15, TADA). A five-judge Constitution Bench of the Supreme Court in the Kartar Singh case35 (by a slender majority of 3 against 2) upheld the validity of Section 15. The majority decision rationalised this distinction by holding that ‘terrorists’ and ‘disruptionists’ were a separate class of offenders, distinct from ordinary criminals. The three-judge majority did lament the rising police lawlessness and so framed guidelines for the police to follow when recording confessions.

However, with time, the non-negotiable preconditions for a valid confession laid down in the Kartar Singh judgment slackened in operation. In Devender Pal Singh v. State,36 a case where the confession was contradicted in material particulars by incontrovertible facts, it was held by the majority that despite such contradictions a confession was true if it was voluntary. Thus, the two distinct and time-honoured conditions of truth and voluntariness collapsed into one, as one implying the other, and the test became far less rigorous. In Gurdeep Singh case,37 the bar was lowered further and a confession was accepted as voluntary even though it had been recorded when the accused was handcuffed and surrounded by armed guards. The court went on to say that if an accused had confessed it would be in the fitness of things to show some leniency in punishment, as a token of appreciation for the confession. TADA, 1987, lapsed in 1995 amidst widespread protests against its misuse. The controversy surrounding confessions to the police resumed following the enactment of Prevention of Terrorism Act (POTA), 2002. Section 32 of POTA made confessions to the police under certain conditions admissible in evidence. POTA made some departures from its predecessor TADA’s scheme of police confessions. Under POTA, a police confession could only be used against the maker and not against others tried as co-accused or conspirators. Also, the guidelines given by the Supreme Court in the aforementioned Kartar Singh case were statutorily drafted into POTA. The Supreme Court upheld the constitutionality of this section38 in People’s Union for Civil Liberties v. Union of India,39 reiterating the guidelines laid down in Kartar Singh. However, in the case commonly referred to as the Parliament Attack Case, the Supreme Court voiced fundamental doubts on the wisdom of letting into evidence confessions recorded by the police. The court’s observations are pertinent to extract here: But as we see Section 32, a formidable doubt lingers in our minds despite the pronouncement in Kartar Singh case. That pertains to the rationale and reason behind the drastic provision, making the confession to a police officer admissible in evidence in a trial for the POTA offences. Many questions do arise and we are unable to find satisfactory or even plausible answers to them. If a person volunteers to make a confession, why should he be not produced before the Judicial Magistrate at the earliest and have the confession recorded by a Magistrate? The Magistrate could be reached within the same time within which the empowered police

officer could be approached. The doubt becomes more puzzling when we notice that in practical terms, a greater degree of credibility is attached to a confession made before the judicial officer. Then, why should not the investigating officer adopt the straightforward course of having resort to the ordinary and age-old law? If there is any specific advantage of conferring power on a police officer to record the confession receivable in evidence, if the intendment and desideratum of the provision indisputably remains to be to ensure an atmosphere free from threats and psychological pressures? Why the circuitous provision of having confession recorded by the police officer of the rank of SP (even if he be the immediate superior of the IO who oversees the investigation) and then requiring the production of the accused before the Chief Metropolitan or Judicial Magistrate within 48 hours? We can understand if the accused is in a remote area with no easy means of communication and the Magistrate is not easily accessible. Otherwise, is there real expediency or good reason for allowing an option to the IO to have the confession recorded either by the superior police officer or a Judicial Magistrate? We do not think that the comparative ease with which the confession could be extracted from the accused could be pleaded as justification. If it is so, should the end justify the means? Should the police officer be better trusted than a Magistrate? Does the magnitude and severity of the offence justify the entrustment of the job of recording confession to a police officer? Does it imply that it is easier to make an accused confess the guilt before a police officer so that it could pave the way for conviction in a serious offence? We find no direct answer to these questions either in Kartar Singh case or the latest case of People’s Union for Civil Liberties v. Union of India.40 ….It is an undeniable fact that the police in our country still resort to crude methods of investigation, especially in mofussil and rural areas and they suffer many handicaps, such as lack of adequate personnel, training, equipment and professional independence. These features, by and large, are not so rampant in those advanced countries. Considered from the standpoint of scientific investigation, intensity of training and measure of objectivity, the standards and approaches of police personnel are much different in those countries. The evils which the framers of the Evidence Act had in mind to exclude confessions to the police are still prevalent though not in the same degree. ….Complaints of violation of human rights by resorting to dubious methods of investigation, politicisation of the police establishment and victimisation of the straightforward and honest officers are some of the criticisms that are being heard day in and day out. Even many amongst the public tacitly endorse the use of violence by the police against criminals. In this scenario, we have serious doubts whether it would be safe to concede the power of recording confessions to the police officers to be used in evidence against the accused making the confession and the co-accused.41

The Supreme Court then went on to rule out of reckoning the two confessions recorded by the police in this case. The confessions were found unreliable, on the important ground that when produced before the magistrate, neither of the prisoners in police custody were given the assurance that they would only be sent to judicial custody and there was nothing to show that the magistrate had read out the text of so-called

confessions or even their gist to them. Making a marked departure from the trend of the 1980s and 1990s, of accepting confessions made by terror suspects to the police on the mere saying of the police officer that he had gone through all the motions, the Supreme Court said that the tone and tenor of the confession should be carefully tested by the courts. It remarked that no husband would willingly implicate his pregnant wife as was suggested by one of the ‘confessions’ in that case. The court was alive to the custodial pressures that are exerted in extracting a ‘confession’. POTA was repealed in 2004. The ordinance repealing POTA was accompanied by another ordinance amending the provisions of the extant UAPA, 1967. While classifying terrorism as a distinct offence, the procedure for trying terrorist offences was normalised. This change was not to last. After what has come to be known as the Mumbai attacks of 26 November 2008, Parliament amended the UAPA42 to bring back all the provisions of POTA43 except the provision permitting confessions to police officers. Simultaneously, the National Investigation Agency Act, 2008, was passed that set up a central agency with the power to take over from the local police the investigation of any terrorist offence anywhere in India. Offences investigated by the National Investigation Agency would be tried by special courts.

Command Irresponsibility Indian law makes no provision for action against superior officials for wrong-doing within their administrative domain. Vicarious liability in criminal law is by way of conspiracy, abetment, common object or common intention. In other words, direct complicity or knowledge is essential to fasten vicarious criminal liability. Although extending criminal liability by a common law principle is always unwise, custody by its nature requires special devices to ensure accountability. There is no administrative provision either, for ensuring that senior officers take responsibility for the treatment of prisoners in their institutions. On occasion, the Supreme Court has directed action against superior officials for violations that have taken place within their district command, but this has by no means become the practice.

Unless command responsibility, which is now an accepted concept in international human rights law, is built into the system, impunity can never be tackled. The Select Committee of the Rajya Sabha has recommended the inclusion of command responsibility in the Prevention of Torture Bill, 2010.

Legislating Impunity and Excepting the State Deviation from time-honoured safeguards against investigative coercion, whether it be legislative or judicial, in effect brings about an ‘exceptional’ situation, which then becomes the norm in practice. Such ‘exceptional’ measures tend to dilute due process requirements and thus operate as a direct invitation for custodial excesses. For example, they may allow use of extra-judicial confessions recorded by the police against a suspect. They invariably permit a longer period of pre-charge custody and restrict release on bail. Many security legislations also restrict judicial scrutiny. The AFSPA contains a blanket protection from prosecution without executive sanction to the paramilitary and military personnel in many parts of India. Besides abridging due process by their express provisions, there is a more insidious way in which special laws affect custodial accountability. This is by a discursive management of ‘security’, by projecting the spectre of a nation in peril. The discourse operates to brutalise the police and also to numb institutional checks on custodial power. Institutional agencies are desensitised as they all become crusaders in the ‘national interest’. Medical officers meant to report on the condition of detainees deliberately hide obvious signs of custodial violence. S.A.R. Geelani, who was tried in the Parliament attack case and eventually acquitted, has spoken of how the medical officer refused to note his severely bleeding palms and soles and the fact that he could barely stand (see interview with S.A.R. Geelani in Chapter 9). The routine fabrication of confessional statements in terror prosecutions, and their use in the targeting of the Muslim community by way of the discourse on ‘Islamic terrorism’, has been exhaustively documented by a news magazine.44 The large number of cases where such TADA or POTA confessions are later retracted also seems to indicate that these are obtained through coercive means. In Navjot Sadhu v. Union of India (the Parliament

attack case), the Supreme Court itself observed that a vast majority of confessions obtained under these ‘anti-terror’ laws are in fact later withdrawn. Though confessions to the police are excluded from the present terror law, other statutes permit the use in evidence of statements made to investigative officers, for example, Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Law Commission, in its 152nd Report, submitted in 1994, has recommended that the ban in Sections 25 and 26 of the Indian Evidence Act on the use of confessions to the police, be extended to ‘confessions’ recorded by any public servant, other than a judicial magistrate. These ‘exceptions’, whether constitutional, legislative or administrative, reveal a contradiction inherent in the law’s attitude to torture. The complete ban on torture is, thus, illusory. The truth about torture is that it is not an exception to the rule; it is sustained and tolerated within the rule itself.

The Prevention of Torture Bill, 2010 Described in its Statement of Objects and Reasons as a measure to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) of 1975, the Prevention of Torture Bill 2010 was introduced in the Lok Sabha (lower house of Parliament) and seems to have been passed by that house in the normal course of business and without much discussion. The Bill seeks to classify custodial torture as a punishable offence and defines torture as ‘grievous hurt’, or danger to life, limb and health. It provides that complaints of torture must be made within six months of the occurrence and that courts may take cognizance of such complaints ‘only with the prior sanction’ of the executive government. Though well intentioned, the Bill has drawn criticism on many counts. The definition of torture in the Bill is inconsistent with the definition of torture in the UN Convention and is limited to custodial violence done in order to ‘extract a confession’. Also, the definition does not include mental pain or suffering, and many other acts which would, by any reckoning, constitute torture. Among its many failings is the fact that it does not prescribe a statutory minimum as penalty for custodial torture and does not

deal separately with deaths in police custody. Penalty provided for by the Bill is not graded as per the nature and gravity of the violence inflicted. The Bill does not enable compensation to the victims. There is no independent authority to investigate complaints of torture.45 Fortunately, the Rajya Sabha thought fit to refer the Bill to a Select Committee for comments and suggested amendments. The Report of the Select Committee of the Rajya Sabha, submitted in December 2010, makes several important suggestions for addressing the shortcomings of the draft bill. The Select Committee has recommended that the definition of ‘torture’ be expanded to bring it in conformity with the definition under the UN CAT. The Committee suggests that the definition of ‘torture’ should include a whole range of violent acts to which a prisoner may be subject, acts in which violence may be for purposes other than the extraction of a confession alone; custodial violence inflicted by way of punishment, intimidation or as hostile discrimination must also figure within the definition. The Committee has added an ‘Explanation Clause’ to the definition, enumerating several acts that would constitute ‘torture’. The list is illustrative and does not limit the term ‘torture’. Among the acts specified by the Committee is the ‘threat of rape’ as well as ‘intimidation of family members’. This is a crucial recommendation as is the inclusion of ‘command responsibility’, in order to hold the superior officers responsible for acts of torture done within their departments. The Bill, as it stands, applies to custodial abuse by any public servant, and not only police or prison officials. But the Select Committee has suggested an even wider definition which would bind public sector institutions such as educational institutions. In keeping with the recommendations of the Law Commission’s 113th Report, the Select Committee has inserted a clause to shift the burden of proof onto the officials once the fact of torture in custody is established. Other important additions to the Bill made by the Select Committee are a statutory minimum penalty and inclusion of the attempt to torture as an offence. Death resulting from custodial torture is to be treated as a separate category of crime and must carry a penalty of either death or imprisonment for life. This is a perceptive suggestion, for the last many years have shown

how custodial officials have managed to get away with trivial sentences even if they are convicted for causing the death of prisoners in their custody. The Select Committee has added many victim-centric provisions. A fine is to be compulsorily levied on the guilty public servant and paid out to the victim. Interim compensation as well as final compensation may be granted to the victim. Victim and witness protection and time-bound investigation and trial are provided for in the Committee’s recommendations. The Select Committee has suggested certain safeguards against the executive’s usual practice of refusing to grant sanction in such cases, and often by resort to the simple expedient of not conveying a decision at all. The alternative suggested by the Select Committee is a ‘deeming provision’. In other words, if no response comes from a sanctioning authority for a period of three months, sanction will be deemed to have been granted. Any refusal to grant sanction must be recorded in writing and such a decision is subject to an appeal to the High Court. The Select Committee has recommended that the limitation period for complaints of torture be increased to two years rather than the six months in the draft bill. Neither a state of war nor a proclamation of emergency may derogate from the mandate of this law. All these suggestions are laudable.46 The Select Committee has laid out a detailed framework for the making of rules under the Bill on topics such as training in investigative procedures, monitoring of custody and enabling civil society participation in such measures. While the Select Committee’s recommendations address many of the Bill’s shortcomings, they omit to note a few critical things. An independent investigating mechanism for custodial offences is generally accepted as necessary to an honest prosecution. Leaving the ordinary police to investigate and prosecute on their own will more likely than not result in the exoneration of the guilty. Then, there is no self-executing mechanism for the registration of complaints, and the burden of following up a complaint is left to the victims or their kin. There must an additional avenue for processing of complaints. For example, the magistrate before whom a detainee is produced must have suo motu powers to refer a complaint of

custodial torture for investigation. The magistrate must also be bound to refer any complaint received by him directly from a detainee. There must be a mandatory grant of an interim compensation once death or injury in custody is prima facie established, akin to a ‘no fault’ interim compensation in motor accident cases. Evidence of torture often rests on medical reports, and medical officers have been known to aid cover-ups, by preparing inaccurate medical reports. There must be a provision for independent monitoring of the medical examination of detainees. Now that the Select Committee’s recommendations have come, it is hoped that the Rajya Sabha will seriously work on the Bill. It remains to be seen when the Bill becomes law and in what form. Many judgments and policy experts suggest that torture persists in the Indian system because police personnel are untrained in scientific methods of investigation. The police and intelligence officials interviewed (see Chapter 8) have also said that torture is more likely than not to impede investigations, as an acute fear of harm may impel a suspect to confess to things which are untrue. If what is meant by the scientific method is systematic collation of information and meticulous cross-checking, then there is no doubt that if such trained methods are consistently followed, the urge to resort to torture can be minimised. Chemical-induced truth testing of a suspect is, however, deeply problematic. Chemical truth testing has been touted as a measure that will reduce the temptation for investigators to resort to torture. Aside from the fact that the efficacy of these methods is open to serious doubt, the very thought of attributing a pre-determined truth value to a confession of guilt even before the trial begins, a truth-value that will operate as a presumption for the court to follow, can only be viewed as incompatible with due process. It is interesting that nobody has thought of subjecting witnesses, particularly prosecution witnesses and police witnesses, to any such test. In fact, there would be a strong temptation to pressurise a suspect to agree to undergo such a test. Therefore, the suggestion that such a test, whatever be its scientific basis, would be an anti-dote to torture can never be taken seriously. In Chapter 8, Dr Alok Sarin, a psychiatry specialist, questions the scientific basis of such tests. That apart, such a practice frontally offends the

rule against self-incrimination. If one looks at it closely, it is little better than police assertions of ‘voluntary confessions’. Fortunately, the Supreme Court has conclusively held that narcoanalysis, polygraph (lie detector) test, and Brain Electrical Activation Profile violate the right against selfincrimination.47 _________________ 1

Section 3, AFSPA.

2

Section 2(a), AFSPA: ‘Armed forces’ mean the military forces and the air forces operating as land forces, and includes other armed forces of the union so operating. 3

See Section 4, AFSPA.

4

See Section 6, AFSPA.

5

Sections 323, 324 and 325, IPC.

6

AIR 1936 Lah. 471.

7

40 IC 610 (a report of cases from 1890 to 1896).

8

AIR 1965 SC 1413.

9

Ibid.

10

D.K. Basu v. West Bengal, (1997) 1 SCC 416.

11

1988 CrLJ (NOC).

12

V. Shekar and Others v. State of Karnataka, 1991 CrLJ 1100.

13

Dilip V. Parmar and Others v. State of Maharashtra, 2000 (5) Bom CR 410; Ashok Kumar Jain v. State of Madhya Pradesh, 2008 (3) MPHT 176. 14

W. Morgan and A.G. Macpherson, IPC (Act XIV of 1860) (GC Hay & Co, 1863).

15

A.W.N. (1893) 105, (1870) Suth WR 23.

16

AIR 1924 Lah. 167.

17

1978 (WLN) UC 364.

18

Kamalanatha v. State of Tamil Nadu, (2005) 5 SCC 194.

19

See also Chapter 7, ‘Judicial Trends’.

20

In Prithpal v. State, Criminal Appeals, 523–527 with Criminal Appeal 528 of 2009.

21

Khalra brought to light the infamous mass cremations in Punjab during the insurgency years. As a reprisal the state police abducted him and there has been no trace of him since 1995. The Supreme Court directed a Central Bureau of Investigation (CBI) inquiry into his disappearance, resulting in prosecution of the policemen responsible for it. 22

Section 21, IPC.

23

Section 2(y), CrPC.

24

Section 197, CrPC.

25

Nagaraj v. State of Mysore, AIR 1964 SC 269; Balbir Singh v. Kadian, AIR 1986 SC 345.

26

Section 197(3), CrPC.

27

See, for instance, Shamboo Nath Mistra v. State of Uttar Pradesh, AIR 1997 SC 2102; State v. BL Verma and another, (1997) 10 SCC 772. 28

Section 197 of the CrPC:

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction: (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.… (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression ‘Central Government’ occurring therein, the expression ‘State Government’ where substituted.… (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 29

See sections 71–79 and 80, 83 and 84, Army Act 46 of 1950.

30

See identical Section 7 of the Armed Forces (Jammu and Kashmir) (Special Powers) Act, 1990 and the Armed Forces (Punjab and Chandigarh) (Special Powers) Act, 1983: ‘No prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.’ 31

Section 49, UAPA.

32

(2000) 6 SCC 195.

33

(2000) 8 SCC 131.

34

Exception 3 to Section 300, IPC.

35

(1994) 3 SCC 569.

36

(2002) 5 SCC 234.

37

(2000) 1 SCC 498.

38

(2004) 9 SCC 580.

39

(2004) 9 SCC 580 at para 62.

40

(2004) 9 SCC 580.

41

(2005) 11 SCC 600.

42

UAPA Act 2008 (Act No. 35 of 2008).

43

This included longer pre-trial detention periods and near impossible pre-conditions on grant of bail. Under the CrPC, there can be no police custody exceeding 15 days on the whole. Under POTA (Section 49) and amended UAPA of 2008 (Section 43D), this stands increased to 30 days. Release on bail is forbidden unless the court is satisfied on a reasonable ground to believe the accused innocent of the offence at that stage [Section 49 (6 and 7 of POTA) and Section 43D(5) (6) and (7) of UAPA as amended in 2008]. 44

Tehelka, 5(32), 16 August 2008.

45

For a critique of the Bill by PRS Legislative Research, an independent research initiative on legislative and policy issues: http://www.prsindia.org/index.php? name=Sections&action=bill_details&id=6&bill_id=1129&category=46&parent_category=1 (last accessed on 30 November 2012). 46

See Tarunabh Khaitan, ‘Dealing with issues of impunity’, Hindu, 8 February 2011.

47

Selvi and Others v. State of Karnataka, (2010) 7 SCC 263.

7 Judicial Trends This chapter analyses a selection of Supreme Court and High Court decisions. We have attempted to include a representative range of cases that come before the courts, both in the writ or constitutional jurisdiction and the criminal appellate jurisdiction.1 Though the cases are from the higher judiciary, they are a useful guide for the other tiers of the judicial process. The attempt has been to cover cases that have not been analysed already in the earlier chapters in this section, though landmark cases have been included. Ten broad themes have been identified, which emerge through a reading of the case law. A disturbing pattern noticed is that of the disjuncture between normative human rights principles laid down in public law and the actual course of criminal prosecutions of officials accused of custodial torture. Further details of the cases considered here may be found in Appendix 7A. All cases mentioned in the chapter are labelled with the number as they appear as in the Appendix.2 The 10 trends dealt with are: • Principles discussed • Technicality over justice • Burden on the victim

• • • • • • •

Provision of victim-centric relief Offences charged Operative directions issued/not issued Problems with the judicial/investigative system Evidence Protection of the police Abetment

Principles Discussed In an important 1978 judgment, the Supreme Court made many normative assertions condemning torture and concerning the importance of the right against self-incrimination (Nandini Satpathy3). This is a common trend, and indeed a significant number of cases mention broad and axiomatic statements of international law (such as in People’s Union for Civil Liberties v. Union of India and Another4), and even literary allusions. The courts may unhesitatingly hold forth on the terrible nature of torture, but they seem not to take these formulations into account while deciding actual criminal liability. While in 1997 the Supreme Court took into account these principles by shifting the burden of explanation to the police in cases of custodial death, in 2007, the same court ruled that there was no proof to justify Masooda Parveen’s claim of compensation for her husband’s death in military custody though he had admittedly died in military custody. In the Masooda5 judgment the court reiterates the state’s duty to honour Fundamental Rights, but in conclusion the court exonerates the state. Courts do not always translate principles into practice while sentencing, ordering compensation or even when pronouncing on the liability of public officials.

Triumph of Technicality Regardless of the broad axiomatic principles, courts often defer to technicalities in the law to the detriment of justice. Although in 1932, the High Court of Bombay set a good example for future courts to follow in

Emperor v. Sanjiv Ratnappa,6 thereafter, courts seem to have gone the other way. For instance, in the case of State of Andhra Pradesh v. N. Venugopal and Others,7 the High Court ruled that due to an unjustly short period of limitation under the Madras District Police Act, a case of custodial death could not be agitated. Although the Supreme Court did correct this, the High Court ruling reveals a flaw in the system, as not every person may be able to appeal up to the Supreme Court level. This danger is underscored by the case Gauri Shanker Sharma v. State of UP8 wherein, on account of some minor contradictions in the testimonies, the High Court completely acquitted the accused in a case of custodial death. Most shocking, perhaps, is the case, Harbans Kaur v. Union of India and Others.9 In this case, the petitioner filed a habeas corpus petition as three of her sons were kept in illegal detention. It transpired that one had died in police custody. The police produced the remaining sons before the magistrate following her habeas corpus petition. Although the Supreme Court directed an inquiry into the matter, it gave no other relief to the mother on the pretext that, as the remaining two sons had already been produced, nothing further could be done. This, despite the established fact of the death of one of her sons in police custody. In Shakila Gafar Khan v. Vasant Raghunath Dhoble,10 the Supreme Court advised subordinate courts dealing with custodial offences to proceed without insisting on direct ocular proof beyond reasonable doubt, as such proof was almost impossible to come by when offences took place in the confines of the police station or in police custody. Following the Nilabati Behera case,11 it ruled that in exercise of its writ jurisdiction, courts must cast the onus of explanation of a custodial death on the state agency in whose custody the victim was; this burden of explanation has, in a few cases, been judicially extended to criminal cases of ‘disappearances’ in custody, where the court has refused to apply the strict standard of proof beyond all reasonable doubt and ruled in favour of the victims. However, a majority of the cases reveal the fact that, while courts have laid down commendable norms, these rarely translate into real justice for victims, especially at the Trial Court level, where a case of custodial death is treated much like any other criminal trial, with the additional obstacle of the prosecuting state agency’s affinity with those implicated in the offence.

It is also extremely disturbing that in cases where the victims are accused of ‘terrorist’ crimes or in ‘insurgency affected’ areas, as in the Harbans Kaur case (a case from the insurgency era in Punjab) and the Masooda Parveen case (a case from Kashmir), the court appears to disregard its dicta on laying the burden of explanation on the state agency and fails to hold the state agencies accountable even where death due to custodial abuse is proven.

Burden on the Victim Despite the explicit recognition in the D.K. Basu case12 of the State’s obligation to investigate and prosecute instances of illegal detention and custodial violence, and of the fact that the burden of such prosecution should not fall on victims, a disturbing fact that emerges from the cases analysed is that action—claims for compensation, petitions for habeas corpus or seeking directions for an investigation—is invariably brought to the higher judiciary by either the victim or the victim’s family, or by a civil society organisation (see, for instance, K.P. Raghavan v. State,13 Vaghela v. State,14 Harbans Kaur v. State,15 Saheli v. Delhi Administration16). About 80 per cent of the cases analysed were of deaths in custody. Legal recourse to the higher courts is beyond the resources of most victims of such violence, and thus reparation is meaningless unless available at the Trial Court level. Besides, in the absence of a well-articulated judicial norm on interim compensation payment, families often have to wait for years before their case is heard and decided by the over-burdened appellate courts or the Supreme Court. In Dulari Devi v. State17 and Dev Kala v. State,18 the High Court ordered that the complaint of death in custody be investigated and criminal prosecution initiated. The very fact that victims’ families have to approach the higher courts for directions that a case be registered and investigation initiated is a telling reminder of the near impossibility of initiating such processes at a local level—even though cognizable offences like murder may have taken place. In these circumstances, victims often have to seek the help of social activists (for example, Sheela Barse v. State,19 PUCL v.

UOI,20 Saheli v. State,21 Watchdog International v. Union of India22) even to realise the simplest of legal rights. In Shiv Dev v. State23 where the son of a person who died due to custodial torture approached the Supreme Court, the court declined to grant relief leaving the family to approach the civil courts for compensation, and the magistrate for the registration of a criminal complaint. This is in total contradiction of the norms laid down in D.K. Basu and indicates the inherent instability and unpredictability of the law in such matters.

Provision of Victim-centric Relief While the right to compensation is available under the exercise of writ jurisdiction, especially after the Nilabati Behera case, and has been frequently ordered, it is not a statutory remedy. It remains entirely a matter of judicial discretion with few regulating norms. Compensation amounts ranged from as little as 50,000 to 500,000 ( Jayalakshmi v. State of TN24). Compensation amounts are frequently appealed against by the state and are reduced by the Supreme Court as was the case in Govt of NCT of Delhi v. Nasiruddin25 where the court made several statements about the inadequacy of monetary amounts as recompense for the loss of a loved one, but reduced the compensation awarded. Many of the cases analysed are writ petitions. Hence it is unclear whether the state had discharged its responsibility to criminally prosecute the accused. In the Shakila Gafar Khan case which laid down an important principle of not being over-technical on evidentiary aspects, it was the wife of the deceased victim who was forced to make a private criminal complaint for judicial cognizance to be taken of her husband’s death in custody. In Shiv Dev v. SSP, Batala26 where the petitioner, the father of a deceased victim, appealed against the High Court’s order of compensation without a direction to prosecute, the Supreme Court, instead of directing initiation of criminal proceedings, rejected the appeal, stating that the petitioner was free to pursue his rights for compensation in a civil court, and could also institute a private criminal complaint. In another glaring instance, Justice A.P. Shah, who had awarded exemplary damages in the

Jayalakshmi case, which concerned the suicide of a transgendered person due to her torture in custody, orally observed during the hearing of another case27—on the rights of Lesbian, Gay, Bisexual and Transgendered (LGBT) persons—that the accused policemen in the Jayalakshmi case had been sentenced to only ‘time already served’ (a few months) by a Lok Adalat (a special alternative disputes tribunal set up for speedy disposal of cases). It seems shocking that the accused in such serious criminal offences escape a full trial and the proper penal consequences of their actions. The Delhi High Court judgment in Tasleema v. State of Gujarat28 is an important and positive precedent for victim-centric relief where the compensation for illegal detention of a poor boy was deliberately made on par with that awarded to a Member of Legislative Assembly (MLA), computed by factoring the devaluation of the rupee in the years that separated the two cases. So the boy was awarded 300,000 in the year 2009, as the equivalent of what had been awarded to the MLA in 1985.

Offences Charged As already described in the previous chapter, the creation of specific categories of aggravated criminal offences of hurt and grievous hurt in the Indian Penal code (IPC) has resulted in an anomalous situation. Policemen are often charged with only these specific offences, even though their actions would warrant a far more serious offence of murder, or culpable homicide not amounting to murder (where a victim dies due to custodial torture), simply because this section of the IPC applies exclusively to custodial torture. In cases of this kind, there was very little explanation given as to why higher charges were not brought, and this silence itself is revealing. Further, the implication of creating the special offence is that the prosecution has to establish an additional mens rea (of extracting confession), which would place an additional burden on them. In Maula Baksh v. The Crown,29 an early case reported from Lahore, when torture could not be linked to a confession of ‘offence’ committed by the victim, the judge refused to convict the accused policemen. In postIndependence cases too (for instance, State of AP v. Venugopal30 and Public

Prosecutor v. Shaikh Ibrahim31), the trend of charging the police only with aggravated bodily harm persists and is reified by the tendency to award lenient sentences to police officers, displaying the teleological understanding of these offences, as being done for ‘the good’ of the citizenry. This trend is completely contrary to the Law Commission’s recommendation32 that in such cases of custodial injuries the burden of proof must be shifted and a presumption drawn against policemen. Fortunately, this trend has seen a change in recent years. Delhi High Court judgments reflect this change. The High Court and Supreme Court judgments in Prithipal v. CBI33 recognise that custody implies the criminal responsibility for an unnatural death occurring in its wake and the guilt of murder would be established even if no direct evidence of murder was available.

Operative Directions Issued/Not Issued While in several of the Public Interest Litigation (PIL) cases analysed, general directions or guidelines were issued to prevent custodial abuses, the lack of an enforcement mechanism behind such judicial directions has made the judgments irrelevant to the everyday realities of citizens. In Prakash Singh v. Union of India,34 the Supreme Court took into account the recommendations of various committees and commissions on police reforms, and issued a set of directions including the setting up of internal and independent accountability mechanisms. Yet, without the political will to change the existing power hierarchies, these guidelines remain a dead letter. In the case of State of Maharashtra v. CCWCI,35 the Bombay High Court’s directions on the procedures to be adopted while arresting females were diluted by the Supreme Court on grounds of ‘practicality’. However, the directions in the Sheela Barse case, which placed a specific and enforceable duty upon the magistrate to inquire about custodial treatment of persons produced before him and to inform them of their right to medical examination, have been incorporated in the Code of Criminal Procedure (CrPC) and National Human Rights Commission (NHRC) guidelines. This case and the D.K. Basu case, whose operative directions are widely

publicised (though seldom followed), are useful checklists of custodial rights.

Problems with the Investigative/Judicial Machinery A study of these cases shows the dismal failure of the supervisory mechanisms at the Trial Court level, and the perfunctory manner in which officials—magistrates, police and medical establishment—deal with issues of custodial violence. It provides a useful insight into why, despite having a strong system of legal checks on police power, torture is ubiquitous. Thus, in D.J. Vaghela v. Kantibhai and Anr,36 the magistrate records that there were no visible marks of injury, although medical record clearly showed that such marks existed. While the High Court made adverse remarks about the laxness, it did not institute an inquiry or investigate the petitioner’s allegations of mala fides on the part of the magistrate. In Bimla Devi v. State37 involving custodial rape of a detainee’s family member, the High Court found that the Sessions Judge had failed to read the complaint carefully. In another shocking case, Secy Haliakandi Bar Association v. State of Assam,38 it emerged late into the writ proceedings that the police had falsified reports and the medical examiner admitted that the postmortem report given by him was not correct. Similarly, in the Munshi Singh Gautam v. State,39 the Supreme Court entered a finding that the police had falsified and forged records and attempted to hide the death of the accused, and it was only after a huge public outcry that a police complaint was registered. Masooda Parveen was a case involving an ‘alleged militant’ who was killed by the army, which had clearly violated the procedural norms of the Armed Forces (Special Powers) Act (AFSPA). The police did not produce the record of the magisterial inquiry, or the post-mortem report despite repeated orders of the Supreme Court. Instead of seeing this as aggravating their culpability, the court dismissed the writ petition, citing insufficient evidence and the exigencies of controlling ‘militancy’. Along with problems of access to appellate courts, another difficulty that petitioners often face is that of inordinate delay. Even when exemplary compensation amounts are ordered, the sums are often quite insignificant

when contrasted with the length of time taken to achieve the symbolic victory. In Dino v. State,40 despite it being an exemplary judgment laying the burden of proof for custodial death on police, it was nine long years before the family of the deceased received 300,000.

Evidence Cases of custodial torture create peculiar evidentiary issues, since the only likely witnesses—especially in the case of a custodial death—within the confines of a police station are policemen themselves, who have a vested interest in thwarting the truth. It was in recognition of this problem and the inherent inequality of power between a detainee and a policeman in whose custody he/she is that the onus of proof of consent (once sexual intercourse was established) was shifted to the police in alleged rapes in police custody. The Supreme Court has endorsed this principle in State v. Shyam Sunder Trivedi41 and ruled that subordinate judges should not insist on ocular proof and direct evidence in such cases. While this normative principle is reiterated in almost every judgment on custodial deaths, it has been reduced to a cliché, where the actual reasoning of the judge continues to be technical and insists on high standards. A case in point is the Munshi Singh Gautam case, where despite citing the Shyam Sunder Trivedi rationale and relaxing the rules on identification parade, the Supreme Court acquitted four of the six accused without recording any reason for their acquittal other than that the ‘prosecution had failed to bring home the case’.

Protection of Police One of the main obstacles to effective prosecution of police officers is the sanction provision in the CrPC and various local statutes. Unless there is a clear legislative enactment removing the requirement of sanction, or reworking it (as suggested by the Rajya Sabha Select Committee) where there are allegations of custodial torture, every case must necessarily be determined on facts as to whether the acts complained of are in the course of the police officer’s duty. It is extremely disturbing that while the early

judgments (Nagwant Sahay v. D.W.I.42 and Matajob Dubey v. H.C. Bihari43) reflect a progressive trend of ruling that acts of torture/illegal detention do not fall in the ambit of official duties, later judgments of the Supreme Court are far more ambiguous. While in Somachand Sanghvi v. Bibhuti Bhushan,44 it was held that prosecution for illegal detention if occurring in the course of a ‘valid investigation’, required sanction, in Sankaran Moitra v. Sadhna Das,45 a case involving the death of a man due to use of excessive force during a lathi charge, the court held that prior sanction was a condition precedent to prosecution, and that the policeman had acted in pursuance of his duty to uphold law and order. It is, however, heartening to note that the Delhi High Court in two strongly worded judgments, Kanshi Ram v. O.P. Chopra46 and CBI v. Dharampal,47 has ruled that acts of illegality, especially torture, do not require prior sanction to prosecute.

Abetment and Command Responsibility Prosecutions for abetment are concerned with the question of the criminal responsibility of superior officers or officers under whose supervisory positions acts of torture occur. In Anup Singh and Others v. State of Himachal Pradesh,48 it was authoritatively laid down that the police officer in charge has a duty to examine what is happening under his command and does not necessarily have to be proven to be directly involved, or physically present in the events leading to, or in the commission of the torture. Bimala Devi, a case involving custodial rape of the wife of a detainee, reiterates that it is the duty of superior police officers to know and be responsible for what is happening within their jurisdiction, and holds the Station House Officer liable for the acts of his subordinate. The cases analysed suggest that a fairly robust jurisprudence on command responsibility of senior officers has developed. However, it must be pointed out that in all the cases under study, the vicarious responsibility of the senior officer was specifically pleaded by the complainant and not automatically presumed, as should really be the case. _________________

1

Appendix 7A and much of the research and analysis of this chapter is done by Anahita Patwardhan, 1st year, Oxford University. 2

Some of the cases will find a mention under more than one head.

3

(1978), 12.

4

(1997), 32.

5

(2007), 63.

6

(1932), 3

7

(1964), 6.

8

(1990), 18.

9

(1995), 26.

10

(2003), 48.

11

(1993), 23.

12

(1997), 30.

13

(1967), 10.

14

(1985), 16.

15

(1995), 26.

16

(1990), 19.

17

(1998), 34.

18

(1998), 37.

19

(1983), 15.

20

(1997), 32.

21

(1990), 19.

22

(1998), 35.

23

(2000), 41.

24

(2007), 65.

25

(2002), 44.

26

(2000), 41.

27

Mentioned during the hearing of the Naz Foundation v. Government of NCT of Delhi.

28

(2009), 77.

29

(1924), 2.

30

(1964), 6.

31

(1964), 7.

32

Law Commission of India, 113th Report (1985).

33

(2011), 86.

34

(2006), 61.

35

(2003), 49.

36

(1985), 16.

37

(1997), 33.

38

(1994), 24.

39

(2005), 55.

40

(2007), 66.

41

(1995), 27.

42

(1946), 4.

43

(1956), 5.

44

(1965), 8.

45

(2006), 58.

46

(1995), 28.

47

(2005), 51.

48

(1995), 29.

Appendix 7A No. Name/Citation 1.

2.

3.

High Court of Lahore, 1917 Emperor v. Miran Bakhsh AIR 1917 Lahore 342

Facts

Remarks

A police head constable and his juniors The State took the tortured a suspect in custody to death. custodial killing seriously The head constable then tampered with and appealed against an the records and disposed of the body to acquittal by the Trial hide the fact of death. The Trial Court Court, a positive sign, acquitted them and the State appealed the although the exoneration acquittal. The Lahore High Court held from culpable homicide that though death was undoubtedly on on the grounds of account of torture, the policemen could intoxication is not have intended to kill, as they were inexplicable. It is inebriated at the time. The High Court noteworthy that the concluded that the only intention maximum possible attributable to them was that of sentence was given. voluntarily causing grievous hurt. The head constable was convicted under Section 331 of the Indian Penal Court (IPC) (grievous hurt) and sentenced to 10 years imprisonment, the maximum prescribed for the offence. The junior officer was convicted for abetting the offence and was sentenced to five years imprisonment. High Court of Lahore, Conviction under Section 331 of the IPC The purposeless 1924 for torture to extort a promise of difference between Maula Bakhsh v. The restoration of the woman that prisoner committing torture for Crown was said to have abducted. The Trial seeking a promise and AIR 1924 Lahore 167 Court recorded guilt. The High Court committing torture for ruled that the accused were not extorting seeking a confession has a ‘confession’ but were merely seeking a created a loophole. promise and terms of Section 331 were not met. High Court of Bombay, Torture in police custody to extract a 1932 confession. Emperor v. Sanjiv The Sessions Judge convicted the Ratnappa accused policemen under Section 330 and (1932) 34 BOM LR 1090 Section 348 of the IPC. The charge was challenged under a technicality but the High Court affirmed the Sessions Judge’s ruling and stated the policemen’s actions warranted a charge under Section 330 of the IPC.

4.

5.

6.

7.

High Court of Patna, 1946 Nagwant Sahay v. D. W.I. AIR 1946 Pat 432

Students were caned by the Deputy An early case recognising Superintendent of Police (DSP). The that torture was no part of rejected the complaints lodged before him public duty. De-linking on the ground that sanction for the use of unlawful force prosecution had not been obtained per from the course of duty is Section 197 of the CrPC. The High Court an important and positive held that it was no part of the duty of a step. deputy commissioner or of a police officer to physically assault persons who have committed or have allegedly committed offences even if they have confessed to the same. Supreme Court, 1956 Torture in custody by the police. Police Another early case Matajob Dobey v. H.C. officers resisted the prosecution on the recognising that torture or Bihari ground that there was no sanction to custodial violence can AIR 1956 SC 44 prosecute them under Section 197 of the never be part of public Code of Criminal Procedure (CrPC). duty, warranting the The Supreme Court eventually held requirement of an that for an act of a public servant to fall executive sanction to within the protection granted by Section prosecute the officials. 197 of the CrPC, there must be a ‘reasonable connection’ between the act and the official duty but assaulting a witness or unlawfully extorting a confession from an accused does not form any part of the duty of a police officer. Supreme Court, 1964 A prisoner died in police custody. The The Supreme Court State of Andhra Pradesh Sessions Judge convicted the respondents corrected the injustice v. N. Venugopal and under Sections 348, 331 and 201 read occasioned by the High Others AIR 1964 SC 33 with Section 109 of the IPC (illegal Court’s interpretation of confinement and hurt to extort a official duty. However, confession and destruction of evidence). the case is a glaring The High Court upheld the plea of the example of how despite policemen that they were protected by death resulting from the Section 53 of the Madras District Police torture, no charge of Act which imposed a time bar on homicide were brought prosecution for offences done in the and only the lesser course of duty and acquitted them. charges of hurt to extort a The Supreme Court overturned the confession were pressed. High Court and held that torture and killing of prisoners was no part of duty, hence no time bar would protect policemen accused of custodial killing. High Court of Andhra Death resulted from torture in police If it is established that Pradesh, 1964 custody. Though the concerned policemen they subjected the victim Public Prosecutor v. were tried for murder, the Trial Court to torture and in doing so, Shaik Ibrahim and ors acquitted them of the charge of murder had voluntarily caused

AIR 1964 AP 548

8.

Supreme Court, 1965 Somchand Sanghvi v. Bibhuti Bhushan AIR 1965 SC 588

9.

Supreme Court, 1965 Roshan Lal and Ors. v. State of Punjab AIR 1965 SC 1413

10. Supreme Court, 1967

and only convicted them under section hurt to him which resulted 330, IPC, that is, of causing hurt to extort in death, why were they a confession. not convicted even of The High Court upheld some of the culpable homicide under convictions, but held, like the trial that Section 304? neither the death nor the intention to cause the same was conclusively proven. The victim was arrested and his premises This is a clear reversal of were searched without a warrant. The earlier decisions on the police then dragged him around the town. point, and one that will Charges were framed against the accused not aid the jurisprudence under Section 348 (wrongful confinement against impunity. to extort a confession) and Section 220 IPC (malicious prosecution). Before the High Court, the accused policemen succeeded in their contention that prosecution was barred as sanction under Section 197 of the CrPC had not been obtained. On the victim’s appeal, the Supreme Court affirmed the High Court ruling and held that even illegal exercise of discretionary power would require a sanction to prosecute. Thus, illegality committed by the police during a valid investigation would be covered cannot be proceeded against without a sanction. The victim was beaten, killed and his Again a case where a body burnt, bones ground to powder and custodial killing is thrown into the river. Conviction by the exempted from the High Court under Section 330 read with category of ‘homicide’ by Section 34 of the IPC and under Section the process, and not by 348 for hurt and wrongful confinement, any reasoning. That two with a view to extort a confession. Junior deaths resulting from police officers only convicted for the police beating should lead disposal of the body as destruction of the only to a conviction of evidence of the offences committed under destruction of ‘evidence’ Section 201 of the Code. where the evidence is the The Supreme Court only dealt with the body of a human being question of whether the three years deliberately killed, and imprisonment given for Section 201 was that even the sentence for too long. It gave the answer in affirmative that should be considered and reduced the term of imprisonment. ‘excessive’ implies that the police have the license to kill. The magistrate dismissed a complaint of The magistracy is the hurt in custody under Section 330 IPC on agency most immediately

K.P. Raghavan and Another v. MH Abbas and Another AIR 1967 SC 740

the ground that the evidence was weak. responsible for custodial Sessions Judge, the High Court and the justice. The concurrent Supreme Court held that the magistrate rulings of the higher was wrong. courts in this case are both correct and positive. 11. High Court of Students and teachers of a college were The High Court omitted Allahabad, 1967 beaten by the police to confess to crimes to recognise the basic Ram Nath v. Saligram before the magistrate. Magistrate point that torture does not Sharma dismissed the complaint of the victims fall within the ambit of AIR 1967 All 519 against the police on the ground that the official duty under acts complained of were done in the Section 197 of the CrPC, discharge of official duty. And as per the ‘Matajog prosecution would not lie in the absence Dobey’ judgment. This of sanction under Section 197 of the indicates that even where CrPC. the superior courts may The High Court held that the lay down a principled magistrate was in error in dismissing the ratio, there is no case at the threshold, as, the necessity of guarantee that lower sanction to prosecute was a question that courts will follow it in could be determined even at a later stage spirit. of the case. 12. Supreme Court, 1978 The Supreme Court made many A landmark judgment on Nandini Satpathy v. P.L. normative statements as obiter dicta the safeguards for Dani and Anr. condemning torture in principle. They custodial justice and the AIR 1978 SC 1025 further discuss the importance of right against selfprotecting a person’s right against self- incrimination. incrimination. 13. Supreme Court, 1978 This case brought to light the plight of In the court’s obiter dicta, Sunil Batra v. Delhi two prisoners who were subjected to many statements were Administration and solitary confinement while their appeal made against torture. The Others against the death sentence was pending. court emphasised that the AIR 1978 SC 1675 They contended that solitary confinement goal of punishment is is contrary to the provisions of Articles rehabilitation. 14, 19 and 21 of the Constitution as also the provisions of the Penal Code, CrPC and the Prisons Act. The challenge was also to Section 56 of the Prisons Act 1894 which permits confinement of prisoners in irons. Though the provision for solitary confinement and confinement in irons were not struck down as ultra vires, many important principles on prisoner’s rights were enunciated. The imposition of iron fetters and solitary confinement in the petitioners’ cases was held to be

14. Supreme Court, 1980 Prem Shankar Shukla v. Delhi Administration AIR 1980 SC 1535

15. Supreme Court, 1983 Sheela Barse v. State of Maharashtra AIR 1983 SC 378

16. High Court of Gujarat, 1985 D.J. Vaghela and Others v. Kantibhaiu Jethalai and Another 1985 Cri LJ 974

17. Supreme Court, 1989 PUDR through its Secretary v. Police Commissioner, Delhi Police Headquarters (1989) 4 SCC 730

unwarranted, but compensation for the violation was declined. The practice of handcuffing of prisoners was impugned as violating Fundamental Rights and also the Punjab Police Rules and various High Court Rules and Orders. The High Court had declined relief on this count. The Supreme Court held that the issue of handcuffs should be dealt with on a case-by-case basis, but there should be judicial supervision over the exercise of the power. The court ruled in the case of particular petitioners before the court handcuffing was not warranted. Public Interest Petition before Supreme An important directive Court under Article 32, regarding which is observed more in custodial violence upon women prisoners the breach. This ruling of in the custody of the Bombay police. the Court has now been The Supreme Court enhanced the incorporated into some purview of Section 54 of the CrPC. The statutory provisions. Court placed a burden on the magistrate before whom an arrested person is produced to inquire whether the arrested person had any complaint of torture or maltreatment in custody and to inform such a person of the right under Section 54 to be medically examined. Policemen abused a father and son after The disjuncture between they protested the demand of a bribe. The norm and practice cannot enraged policemen took them into be revealed more clearly. custody and implicated them in a The burden of litigating gambling case. The prisoners complained was borne by the victims, to the magistrate. The magistrate made a another facet of impunity. noting that there were no external marks of injury; the medical report, however, showed otherwise. The High Court made many normative assertions against torture and the responsibility of magistrates, but took no corrective action. Police officers collected some villagers to do work in the police station and when they demanded labour charges, they were beaten. One person died of the injuries. Another woman was stripped naked and beaten in the police station. Eight others

were beaten up. The Deputy Commissioner of Police initiated investigation against the guilty police officers. In the interim, the Court directed compensation to be paid to the legal heirs of the deceased, to the woman who was stripped naked and to the other eight persons who were beaten up and the compensation paid was to be deducted from the salaries of the errant police officers. 18. Supreme Court, 1990 The prisoner was arrested on the At the High Court level, Gauri Shanker Sharma confession of another and beaten to death. technicalities allowed for v. State of UP. When the family tried to intervene, one of the policemen to AIR 1990 SC 709 money was demanded by the police, but be completely acquitted. they were unable to give any. While the Supreme Court Trial Court convicted two policemen did eventually correct under Sections 304, 330 and 201–218 of this, this is still a problem the IPC. as not every person will But the High Court, expressing doubts be willing and able to about the testimonies available, it appeal up to Supreme acquitted one and reduced the punishment Court. of another. The Supreme Court restored the Trial Court’s conviction of the one that was acquitted by the High Court, but continued with the reduced punishment prescribed by the High Court of another. 19. Supreme Court, 1990 Public Interest Litigation (PIL) under Saheli, A Women’s Article 32 on a matter of custodial death. Resource Centre v. Praying for independent judicial Comm of Police, Delhi inquiry and compensation. Compensation AIR 1990 SC 513 was awarded by the Supreme Court. 20. High Court of Anticipatory bail sought by policemen in An important conceptual Karnataka, 1991 a case of custodial killing covered up by step, recognising that all Shekar & Ors. v. State of the police by faking a road accident. custodial violence Karnataka The Sessions Court rejected bail for all including homicide was 1991 CriLJ 1100 but one—the driver who had a minimal not encompassed by role—on the ground that they were Sections 330 and 331, custodians of citizens’ safety, but instead IPC. had taken the law into their own hands and committed brutal acts. The policemen had argued that their acts fell under Sections 330 and 331 (hurt to extort a confession), and not under

Section 302 of the IPC and, hence, anticipatory bail can be awarded. The High Court ruled that tentatively the offence would fall under Section 302 of the IPC and anticipatory bail should be refused. 21. Supreme Court, 1992 Deceased had been interrogated by the Bhagwan Singh v. State policemen regarding smuggling of of Punjab narcotic powder. He was tortured during AIR 1992 SC 1689 interrogation. As a result, he became unconscious, and on the way to the hospital, he died. The body was disposed of by throwing it into a river. The Supreme Court held that:

22. Supreme Court, 1992 Sham Kant v. State of Maharashtra AIR 1992 SC 1879

Here, the Court seems to invoke Section 106, Indian Evidence Act, to lay the burden of proof on the police to explain circumstances relating to the custodial death of the person. An important step towards fixing liability despite attempts to destroy evidence.

1. The accused had no explanation regarding the whereabouts of the deceased after he was taken away, unconscious. 2. Consequently, the inference to be drawn is that the deceased died as result of injuries caused to him during interrogation and the accused must have caused disappearance of his body. 3. ‘If a person is in police custody, then what happens to him is within the special knowledge of the police.’ 4. If the evidence on hand establishes that the police officers were responsible for the death, then there is an irresistible inference that they must have disposed of the body. 5. ‘While it is the right of a police officer to interrogate or arrest any person on the basis of any credible material, it does not extend to inflicting injuries and the arrest must be in accordance with law.’ Motiram and Ratiram were suspected of a This trial shows the lack theft and taken into custody where they of protection that the were tortured. The police tried to conceal system affords to the fact that they had been tortured by prisoners. Both prisoners taking them to a magistrate so that it had two opportunities to would appear as if they were arrested in be examined for signs of this state. torture, but no action was Although Ratiram was brought in front taken until it was too late. of a medical officer as well as a It is all very well for the

23. Supreme Court, 1993 Nilabati Behera v. State of Orissa AIR 1993 SC 2366

24. Supreme Court, 1994 Secretary, Hailakandi Bar Association v. State of Assam and Another 1994 Cri LJ 2197

25. Supreme Court, 1994 Khadat Mazdoor Chetna Sangath v. State of MP and Others (1994) 6 SCC 260

26. Supreme Court, 1995 Harbans Kaur v. Union of India and Others (1995) 1 SCC 623

magistrate, when he was eventually sent legal system to step in and to the hospital, it was too late. punish after the event, but His death resulted in a riot. Much of the protection of prisoners the evidence given was impassioned and is also important. difficult to verify. The Trial Court acquitted the policemen completely of homicide and there was no charge under Section 330 of the IPC. The High Court convicted them under Section 330 of the IPC. The Supreme Court rejected the argument that the High Court had no power to bring Section 330 into play and confirmed the judgment. Death in police custody. The Supreme A landmark judgment. Court held that the onus was on the police to give an explanation in cases in which death occurs in police custody. The Court also relied on international conventions and general human rights for compensation as a public law remedy and ordered initiation of proceedings in trial against police officer and awarded compensation to the tune of 150,000. Custodial torture resulting in death. The police claimed that the accused had been beaten up by the public, but the postmortem report indicated otherwise. The Supreme Court transferred further investigation of the death to the Central Bureau of Investigation (CBI) from the State Police. Members of a trade union were arrested by the police and tortured. Writ Petition seeking punishment of responsible officials, compensation and inquiry. The Supreme Court ordered CBI to investigate and register cases and ordered the State to prosecute the officers. No compensation was awarded. Habeas corpus petition filed by the How can a habeas corpus mother against the illegal detention of her petition be simply sons and one of them died in police disposed of by bringing custody due to torture. The Supreme the prisoners quickly Court recorded the finding that after the before a magistrate? If filing of the petition, the remaining sons permitted, this would were produced before the local allow policemen to

magistrate. Hence, the Court stated that no writ of habeas corpus could be granted. Director General (DG) of Police was directed by the Court to make an inquiry into the matter and give a report within a period of eight weeks from the date.

27. Supreme Court, 1995 State of M.P. v. Shyamsunder Trivedi and Others (1995) 4 SCC 262

28. High Court of Delhi,

Policemen who were responsible for custodial death were all acquitted by the Trial Court. The High Court convicted them under Sections 218, 201 and 342 of the IPC, but acquitted him under Sections 302, 149 and 147 of the IPC. Both the state and victim’s family State of Madhya Pradesh filed a Special Leave Petition in the Supreme Court challenging the acquittal of Respondent 1 for offences of murder. The case went to the Supreme Court by special leave, filed by the State of MP challenging the acquittal of Shyam Sunder Trivedi for the offence of murder. Noting that it is almost impossible to acquire direct evidence of torture and death in police custody, the Supreme Court convicted four of the accused police officers for the crime of culpable homicide. This was a prosecution for hurt and

illegally detain persons as long as they were quickly brought before the magistrate when a habeas corpus case was filed. This is a gross violation of Fundamental Rights. The Supreme Court ‘chose’ not to do anything further even when confronted with the fact that one of her sons had been killed in custody. The victim’s family was again not provided with any sort of compensation. And again the onus was on the victim or the victim’s family to pursue the suit. And no prosecution was ordered. Shouldn’t this be undertaken by the public law system? The Supreme Court commented that the lower courts exhibited a total lack of sensitivity. An important recognition that evidentiary rules for custodial crimes must factor in the opaque nature of custody. Some inferences must be drawn in those circumstances.

1995 Kanshi Ram v. O.P. Chopra and Others 1995 CriLJ 2620

torture of victim a prisoner in custody of the customs officials. The magistrate discharged the officials on the ground that sanction under Section 197 of the CrPC had not been obtained. The High Court ruled that the power to interrogate does not encompass physical torture, and hence sanction was not required, as torture was a grave violation of human rights. 29. Supreme Court, 1995 A case of custodial torture and An important recognition Anup Singh and Others disappearance of the victim. The Trial of command v. State of Himachal Court convicted the accused, but did not responsibility. But the Pradesh sentence them, instead it released them on question that arises is that AIR 1995 SC 1941 probation under Section 360 of the CrPC. why, even after the dead The body of the deceased was body was found, were subsequently found which confirmed there no additional death by torture. charges framed under The Sessions Court sentenced the Sections 302 or 304 of the accused under Sections 217, 330 and IPC for murder and 348/34 of the IPC, but acquitted the culpable homicide? officer in charge of the police post on the basis that there was no positive evidence of his having taken part in confining the victim or torturing him. The High Court reversed the acquittal of the officer-incharge. The Supreme Court ruled that it was not necessary that the officer-in-charge be physically present at the time when the victim was being tortured, but since he was in charge, he was supposed to have come to the police post to check on the victim. Hence, he is also guilty. The Court also observed that the operations were deemed to be committed with his tacit consent. Thus, he too was convicted along with the others. 29A. Supreme Court, 1995 The case involved the abduction, A case significant for Inder Singh v. State of unlawful detention and disappearance of recognising the liability of Punjab seven persons, caused by a police party superior officers on the (1994) 6 SCC 275 led by DSP Baldev Singh. On account of count of not taking action (1995) 3 SCC 702 the Punjab police taking little to no action on complaints by victims despite numerous complaints lodged by against junior officers the family of the victims, they filed a writ involved in liability. An petition before the Supreme Court early case recognising seeking an independent investigation and

the prosecution of police officers ‘disappearance’ as a involved. violation. The Supreme Court ordered that the Director of the CBI himself conduct the inquiry expeditiously and, on receiving a report from him, ordered that the mentioned police personnel be prosecuted. It sought disciplinary inquiries against the errant officials, including those who did not take action on the complaints. Further, it ordered a compensatory amount of 1.5 lakh to be paid to each of the seven persons’ representatives by the State, recoverable from the guilty, when their identities are determined. 30. Supreme Court, 1997 Two writ petitions were heard together in A landmark judgment. D.K. Basu v. State of this case. One was a PIL, filed regarding West Bengal certain news items published in several AIR 1997 SC 610 newspapers. The other was writ petition regarding a death in police custody. It recognized that it is an obligation of the State to prosecute and should not come to the victims to file writ petitions. 31. High Court of Madras, Writ petition claiming compensation of An interesting judgment, 1997 5 lakh for the custodial death. It is not a showing sensitivity and Gowtham v. Senior case of custodial death as the postunderstanding of the Inspector of Police mortem report indicates that death was nature of custody. W.P. No. 2933 of 1997 natural. However, for the illegal detention of the deceased, non-production before magistrate within 24 hours, no intimation to family members—all contributed to the award of compensation of 2.5 lakh. 32. Supreme Court, 1997 PIL in a fake encounter case. District and People’s Union for Civil Sessions Judge had found that there was Liberties v. Union of no encounter and the person was shot India and Another dead by police in custody. The Supreme (1997) SCC 433 Court discussed the importance of fighting terrorism, but categorically said that the same must be done in accordance with law. The Court directed initiation of proceedings against the accused police officers.

Compensation of 1 lakh was awarded to families of each deceased along with costs of litigation. 33. High Court of Delhi, A woman was illegally confined and Recognition of command 1997 raped in custody when she went to visit responsibility and the Bimla Devi v. Ishwar her brother in custody. She was nature of abetment by Singh threatened and forced not to disclose the superiors that allows (1997) 68 DLT 306 incident. custodial crimes to occur. She, nonetheless, made a complaint under Sections 343, 354, 357, 506 and 120B of the IPC. The magistrate charged the Station House Officer (SHO), under Sections 330, 348 and 354 of the IPC. The Trial Court held that there was no specific incriminating evidence against the SHO and since the complainant had not specifically narrated any incident in the complaint involving him and discharged him. The High Court held that the Sessions Judge was careless and had omitted to read the complaint which specifically referred to a list of acts done by the ‘accused persons’ which included the accused. The court further held that even otherwise he was in charge of the police station and was hence expected to know what was happening within it and was responsible for the same. There was evidence to show that the complainant was raped and the accused had abetted the same. 34. High Court of Patna, The case involved the death of the 1998 petitioner’s husband in police custody. Dulari Devi v. State of Brought by the widow of the victim to Bihar and Others order criminal proceedings against the (1998) ACJ 1981 police officials and grant adequate compensation. The High Court ordered the initiation of criminal proceedings and awarded compensation to the tune of 1.5 lakh. 35. Supreme Court, 1998 In this case, a death had been caused in Watch Dogs Tihar Jail by ‘Munshi Kedis’, that is, International v. Union of criminals authorised to supervise the India movements of other prisoners in the jail. (1998) 8 SCC 338

The Supreme Court directed Inspector General of Tihar Jail to file an affidavit containing full details on ‘Munshi Kedis’. The Court also ordered a review of the system of ‘Munshi Kedis’ by the magistrate. The Court held that the matter of compensation is to be considered at a later stage. 36. Supreme Court, 1998 Death in jail custody. Munrti Devi v. State of The jail authorities created various Delhi and Others stories to explain the death. The Supreme (1998) 9 SCC 604 Court ordered the initiation of a criminal case against the accused, which is still pending. The Court also stated that, as the death of the deceased occurred inside the prison, this amounts to gross negligence, and hence awarded 2.5 lakh to the petitioner. 37. High Court of Himachal A case of enforced disappearance. The Pradesh, 1998 High Court made over-arching Dev Kala and Others v. constitutional arguments on the State of Himachal importance of monitoring police custody Pradesh and Others as it affects the credibility of the rule of (1998) ACJ 632 law. The Court also ordered initiation of proceedings against the accused in the Trial Court and awarded a compensation of 1 lakh to the victim’s family. 38. High Court of Delhi, A writ petition for compensation by a The Court however, does 2000 mother for the death of her son in police not seem to have directed Kamla Devi v. Govt. of custody. The Court found out that there prosecution. NCT of Delhi had been an attempt on the part of the 2000 CriLJ 4867 Del accused together with the doctor who HC. conducted the postmortem report to conceal the fact of custodial torture. The Court looked at various decisions on the aspect of victim compensation and held that the right of parents, wife and children to receive compensation in the case of death of a person due to unlawful act in custody by a state official is a right arising from Article 21 and it is exclusive of any civil law remedy which is available to the victim or heirs. Thus, the interim compensation awarded by the

National Human Rights Commission (NHRC) to the mother does not prejudicially affect her right to claim compensation. 39. High Court of Delhi, A case of custodial death. 2000 The sub-divisional magistrate Geeta and Anr v. Lt. conducted an inquiry and held the police Governer & Ors officials responsible for death of (2000) ACJ 109 deceased. A First Information Report (FIR) was filed under Section 304 IPC (culpable homicide). The High Court discussed the law on custodial torture. The Court awarded compensation to the tune of 5.5 lakh but did not interfere with the charge of culpable homicide and enhance it to murder as sought by the victim’s family. 40. High Court of Bombay, Case of death due to the injuries sustained But the question which 2000 in police custody. Policemen charged with arises is, why was there Dilip V. Parmar and causing hurt to extort confession and no charge of murder Others v. State of convicted of that. The High Court under Section 302 or of at Maharashtra confirmed and upheld the judgment of least culpable homicide (2000) 5 Bom CR 410 conviction and sentence of the lower under Section 304 of the Court. IPC? Since no compensation had been prayed for, none was granted. 41. Supreme Court, 2000 The father of a boy tortured to death by A judgment that goes Shiv Dev Singh v. Senior the police first approached the High Court back of evolved public Supdt of Police, Batala under Article 226 and was awarded law jurisprudence. A case (2000) 9 SCC 426 compensation of 1.5 lakh by the Court. from insurgency affected Appeal to Supreme Court for Punjab. There is a trend enhancement of compensation. And for of abandoning public law criminal proceedings to be initiated principles in such cases. against the accused. The Supreme Court held that it was open for the victim to institute a civil suit for compensation. The Court also said that it was open to the petitioner to approach the magistrate’s court with a complaint against the police. 42. High Court of Patna Claim was for compensation for death Though recognised as a Ram Sakhi Devi v. State resulting from torture by excise officials. public law remedy, the of Bihar and Others Directed CBI to make a thorough inquiry quantum of compensation (2000) 1 BLJR 753. and investigation and to initiate criminal awarded follows an proceedings. erratic pattern in various Awarded a compensation of 50,000 cases. 43. Supreme Court, 2001 A fight had broken out between the

State of UP v. Mundrika deceased and three accused persons. The and Others story given by the police was that as the (2001) 9 SCC 346 police was transporting both groups to the station, the accused beat the deceased to death. The Trial Court held one accused guilty under Section 302 and the others guilty under Section 304 and awarded life imprisonment to all. The High Court discovered many contradictions in the story and found that the testimonies of the witnesses were not reliable. The Court refused to buy the police story and acquitted the accused. It felt that the death probably occurred at the hands of police and that there was manipulation of the records. The court asked for an examination to be made through a departmental inquiry against the policeman. The inquiry would make it clear whether the said officers were guilty of misconduct or negligence or dereliction of duty or not. The Supreme Court upheld the High Court’s decision. 44. High Court of Delhi, A case pertaining to custodial death. A 2002 single judge of the High Court directed Government of NCT of the State to pay 2.5 lakh, as Delhi v. Nasiruddin compensation to the father of the (2002) ACI 1530 deceased. The police officer appealed to the Division Bench claiming that the conclusion about the custodial death was erroneous and the compensation was too high. The High Court held that the appellant was liable for the death of the deceased. The Division Bench stated that any amount of compensation is not enough as it is unable to renew a physique frame that has been battered and shattered. However, it still reduced the amount of compensation to 2 lakh. 45. High Court of Madras, Petitioner was arraigned as a suspect in a When the Court 2002 murder case and was illegally detained in condemns custodial N. M. T. Joy Immaculate the police station and subjected to torture repeatedly and v. State harassment and attempts to outrage her vigorously, why does it MANU/TN/0715/2002 modesty. allow only a paltry sum in cases like this where the

She surrendered to a Magistrate as she victim is falsely apprehended further harassment at the implicated, illegally hands of male officers; ignoring the detained and sexually complaint, the Magistrate chose to harassed? remand her to their custody. There was No criminal prosecution falsification of records to indicate that she was ordered though voluntarily confessed to the offence by clearly the police had police officers. committed offences under The Court held that procedure the IPC. prescribed by Section 51 and 160, CrPC, have not been followed since she was detained in a police interrogated in the absence of a lady police officer. Court directed the initiation of departmental proceedings against the police officers responsible for the acts of torture. In addition, compensation of 1 lakh was granted to the petitioner. The Court also gave a direction to the State Government to issue circulars instructing that women accused/witness were not to be brought to the police station and were to be interrogated by women police at their residence only. 46. Supreme Court, 2002 A writ petition was filed under wife of the Inexplicable. Vinesh Pundir v. State of victim who had suffered injuries due to UP and Others torture in police custody. The Supreme (2002) 9 SCC 563 Court held that it would be for the government to initiate appropriate departmental proceedings against the policemen and that it was open for the husband to claim damages in the civil court or through the Human Rights Commission. 47. Supreme Court, 2003 Case of death in police custody. The This is one of the rare Sahadevan v. State Rep police claimed that the deceased had judgments in which the by Inspector of Police escaped but the dead body of the accused policemen were charged AIR 2003 SC 215 was found. with murder under Trial Court confirmed the fact that Section 302 for a death death of took place while he was in occurred in police custody. The judge held the two police custody. The Courts at all officials guilty and convicted them under levels held them guilty. Sections 330, 348 and 302 read with Sections 34 and 201 of the IPC. The High Court confirmed the judgment of the Sessions Judge. The Supreme Court made many observations on justice and the

48. Supreme Court, 2003 Shakila Abdul Gaffar Khan v. Vasant Raghunath Dhoble and Another (2003) 7 SCC 749

49. Supreme Court, 2003 State of Maharashtra v. Christian Community Welfare Council of India and Another (2003) 8 SCC 546

50. High Court of Madras, 2004

boundaries of police powers and upheld the conviction. The wife of a man who died in custody made a private complaint to the metropolitan magistrate. She had witnessed the police beating husband with stick which lead to his death. Trial court convicted all the policemen but the High Court reversed the judgment and acquitted all of them. The Supreme Court did not interfere with the High Court’s order of acquittals but noted problems in the same and ordered an inquiry into the matter. The Court also awarded compensation of 10 lakh to the widow. Husband was killed in police custody and wife detained illegally. Criminal proceedings against 10 police officers were initiated and they were charged with Sections 302, 342, 330 and 354 read with Section 34 of the IPC. Trial Court discharged them under Section 302, IPC, but kept the rest of the charges. The accused were awarded only three years of rigorous imprisonment and a fine. When the appeal against this conviction was pending, a nongovernmental organisation (NGO) filed a writ petition seeking compensation for the widow. The High Court gave general directions for protection of women and awarded the widow 1.5 lakhs as compensation. The State appealed to the Supreme Court. The Supreme Court amended the general directions of the High Court, with a view to making them more practical. The order of compensation was maintained. The question whether the State could recover the amount from the errant officials was left for after the determination of their guilt by the appellant forum. PIL in case of the custodial death of a An important judgment. It domestic help, a woman, in police has become all too custody held and beaten on suspicion that common for the well to

Mr. Henri Tiphagne v. State of TN Crl.O.P.No. 3715/2004

she had stolen some jewels from her do to have the police employer’s house. torture domestic servants She was found hanging from a on such suspicion. wireless tower behind the Town Police Station, Parmakudi. The police claim it was suicide. The court found many gaps in the police version, including the manner in which she reached the wireless tower. Based on the post-mortem report, it was clear that there were many antemortem injuries suffered by the victim. The court chastised the authorities for not investigating whether the hanging was suicidal or homicidal. Court ruled for a competent official nominated by the Crime Branch Criminal Investigation Department (CBCID) to investigate the matter vis-à-vis the officers involved, and to submit a report. The Court also directed a compensation of 2 lakh to be paid to the victim’s family. 51. High Court of Delhi, A case of custodial torture and death. The 2005 CBI registered the case and charged one CBI v. Dharampal Singh accused under Sections 302, 304, 342 and and Anr 201, IPC, and the remaining were charged (2005) 84 DRJ 284 under Sections 304, 342, 330 and 201, after obtaining sanction from the Lt. Governor of Delhi under Section 197, CrPC. The magistrate took cognizance of the offences under Sections 304, 342, 365, 323, 330 and 201, IPC. The accused filed a successful revision petition on the ground of a technical requirement under Delhi Police Act. It was contended by the CBI that no sanction was required as the acts were not protected under the Delhi Police Act. The High Court ruled that the beating/torture was no part of official duty. The Court went on to discuss the dangers inherent in too wide a construction of the term of ‘official duty’. 52. Supreme Court, 2005 A case of death in police custody, the In spite of growing Sanganagouda A. Trial Court acquitted the accused. The jurisprudence on police Veeranagouda & Ors. v. High Court kept one acquittal and accountability, the entire

State of Karnataka convicted the remaining five under process seems geared (2005) 2 ALD (Cri) 949 Section 330 of the IPC sentencing them to towards exempting State six months rigorous imprisonment. The agents from the more High Court also found all accused guilty serious consequences of under Section 348 of the IPC and their lawlessness. There is sentenced them to three months no conceivable concurrently. explanation for why, An appeal was filed against the despite death having been judgment of the High Court by the caused, there was no policemen. The Supreme Court affirmed prosecution for homicide. High Court’s decision. Even in recording a punishment under Section 330, there is no explanation why a more deterrent punishment was not given. 53. Supreme Court, 2005 The accused was the owner of an ashram There are glaring Kamalanantha and who had allegedly raped 13 girls. Some problems with this Others v. State of Tamil of the girls were arrested and kept in decision. How can the Nadu custody. As they were in shock, they court justify the torturing (2005) 5 SCC 194 could not disclose any information on the of girls who were the misdeeds of the accused; they were victims of rape? beaten by the police. Habeas corpus petitions were filed by a few of the girls. The High Court said that it was meant to shake their inhibition and fear and to make them free to say what they wanted to say. The Supreme Court, in its obiter, while dealing with the criminal appeal of the ashram owner concurred with the High Court’s observations. 54. High Court of Bombay, Writ petition claiming compensation for A very good precedent for 2005 wrongful confinement, custodial torture viewing exemplary Sheela S. Yerpude v. and custodial death of petitioner’s damages for violation of Home Department husband. human rights on a 2005 CriLJ 2224 Bom The deceased had been illegally different footing. HC. detained twice in the police station without any offence being registered against him. He was asked to pay an exorbitant amount to secure his release and he was subjected to torture. This was in violation of the guidelines laid down in D.K. Basu. The Court held that the state should pay compensation which is fair and commensurate with the wrong suffered.

55. Supreme Court, 2005 Munshi Singh Gautum and Others v. State of MP (2005) 9 SCC 631

56. High Court of Delhi, 2005

It had already been established that it was a case of custodial torture causing death as a consequence. The only issue before the court was regarding the compensation. The Court states that Articles 21 and 22 provide a guarantee not against the violation of Fundamental Rights of a person but also the violation of human rights of a person. The Court makes a distinction between cases where the state gives compensation for natural disasters, riots, and others, and the case of custodial torture by stating that in this case there is a wilful act on the part of state officials in violating the Fundamental Rights guaranteed by the Constitution as well as his human rights. The Court considered both the instances of illegal detention and ordered the payment of 8 lakh in addition to the 2 lakh which had already been paid taking into account the loss suffered by the petitioner and her children as well as the mental agony, loneliness, loss of company and care and welfare of children. Custodial torture and death in police custody. Police forged the record and attempted to conceal it. It was eventually investigated only because of a public outcry. Superintendent of Police wrote a letter to Inspector General and District Magistrate for investigation by CID. Trial court convicted all the accused under Sections 304, 330 and 201 of the IPC sentencing each to 7 years, 3 years and 2 years concurrently. The High Court and the Supreme Court maintained the conviction of the main accused but acquitted the others. The Supreme Court in its judgment mentioned international law, constitutional provisions, Law Commission reports, and made many general statements decrying custodial torture. Petitioner was arrested by the police and The Court ordered both tortured. A writ petition was issued compensation and

Akhtar Parvez v. State MANU/DE/2722/2005

seeking relief from harassment by the prosecution. An excellent police. The writ petition was disposed of precedent. with a direction to the Additional Commissioner of Police (ACP) to ensure that the petitioner and his family were not harassed was not acted upon. The petitioner was arrested again and tortured. Consequently, the petitioner filed the second writ petition. Pursuant to this, notice was issued by the Court to file a status report. The status report indicated the following: 1. The arrest of the petitioner was made without any sufficient reason for the same. 2. Medical examination of the petitioner was not undertaken after he was put in the lock-up. 3. The Body Inspection Memo prepared by the Sub-Inspector (SI) indicated that there was no injury on the body of the petitioner whereas the MLC indicated that the petitioner had been beaten in police custody.

57. Supreme Court, 2006 Sadashio Mundaji Bhalerao v. State of Maharashtra Appeal (Crl.) 478 of 2005

From this, the Court concluded that a prima facie case was made out of custodial torture. The Court therefore directed the registration of an FIR and an investigation into the matter. The petitioner was also to be paid an interim compensation of 50,000 by the state. Deceased was arrested along with seven Raises the question of others on charges of a dacoity case. The evidence in cases of police were granted custody remand of custodial violence, as the accused, and during this period the eyewitnesses are either deceased was subjected to beatings and connected to the accused succumbed to his injuries. The police —police—and thus could filed a case of escape under Section 224 have vested interests or IPC, to cover up the death. A body was detainees whose evidence found two years later in jurisdiction of the is disregarded on the basis Adilabad police station, AP, and after of them being implicated fingerprints were taken the body was in crimes. cremated. Trial court acquitted the Last seen in police accused policemen for lack of evidence. custody will have to be

This finding was reversed by the High taken as a relevant fact. Court. The Supreme Court ruled that the Otherwise, it will be evidence of the eyewitnesses was impossible to book the unreliable as they were all charged with police who will have a crimes. Further, ruled that the body found vested interest in in Adilabad was not conclusively proved obliterating record or to be that of Dilip as witnesses had turned proof of custody on hostile. account of them being Regarding the attempt made to cover implicated in crimes. up the death by the police, by registering a case under Section 224, IPC, the court held that it there was insufficient data to draw the inference of guilt from these circumstances since it was closed shortly thereafter (two years later). Finally, the court ruled that the presumption arising from the fact of the deceased having last been seen in the custody of the police was insufficient to pin culpability on the police. 58. Supreme Court, 2006 There was fracas at an election booth Sankaran Moitra v. leading to a lathi charge that resulted in Sadhna Das and Anr the death of the victim. The magistrate AIR 2006 SC 1599 took cognizance of the complaint of the victim’s wife without insisting on a sanction under Section 197 of the CrPC. The High Court of Calcutta held that beating resulting in death could not fall within the ambit of the official duties. The Supreme Court held that, in this particular case, the police officer had acted in pursuance of his duty to uphold law and order. The dissenting judgment, however, upholds the High Court judgment and takes the same approach as in the ‘Matajog Dobey’ case. 59. High Court of Bombay, In 1990, the petitioner, a tribal girl, barely Precedent to show that in 2006 13 years old, was taken away by the writ proceedings both Parbatabhai Sakharam police at midnight without there being a compensation and Tarant v. State of lady constable present. The police officers prosecution of errant Maharashtra tortured her by hanging her from a tree officials may be ordered, 2006 CriLJ 2202 Bom and beating her with a belt continuously. thereby calling the State No records of arrest/detention were to account, and reducing maintained and the petitioner was the strain on the victim illegally detained for years in the police family. lock-up. After three years, her case was

brought on record and she was implicated in three cases under the IPC and Terrorist and Disruptive Activities (Prevention) Act (TADA).

The emergent trend is to award damages for rights violations in keeping with the nature of violation and not as a measure of the 1. Writ petition was filed seeking inquiry victim’s social status. against the police officers responsible for her illegal detention, false implication, custodial torture as well as violation of her Fundamental Rights and statutory rights under Juvenile Justice Act, 1986, Juvenile Justice (Care and Protection of Children) Act, 2000, and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, as well as compensation. From the copy of letters sent by the NGO to the Maharashtra State Women’s Commission, internal correspondence of police authorities, petitioner’s birth certificate issued by the head master of the school etc. indicate that the petitioner was not just a minor but also a juvenile even when she was shown for the first time in the official records as arrested. 2. One of the cases in which the petitioner was implicated occurred in 1990. This, according to the Court, corroborated the petitioner’s contention that she was arrested in 1990 itself and illegally detained. The petitioner was acquitted in all the three cases by the Juvenile Court. Therefore, the Court held that the petitioner’s case was completely substantiated. The Court held that the police officers would have realised that the petitioner was only 13 years of age and in school at the time of commission of offence and they should have brought it to the notice of the magistrate who would have remanded her to custody; however, they did not do so and misrepresented her age as 18, and so the petitioner was entitled to compensation. Consequently, as there was

a violation of Articles 21 and 22 as well as Juvenile Act of 1986 and Juvenile Justice (Care and Protection of Children) Act, 2000, and the state officials had committed offences punishable under Scheduled Castes and the Scheduled Tribes Act, and Tribes (Prevention of Atrocities) Act, 1989; the State was held liable to pay compensation. The Court held that the petitioner’s rights under Articles 21 and 22 were violated and that she was not given any legal assistance till an NGO took up her case in 1996 with the State Government as well as the National and State Human Rights Commissions. The Court also directed the State Government to prosecute all the officers responsible for the offence. Considering that the petitioner was arrested at a tender age and detained illegally from 1990 onwards, and that she had suffered torture at the hands of police the Court decided to award her compensation of 5 lakh. 60. Supreme Court, 2006 The petitioner along with his family was Suba Singh v. State of handcuffed, beaten and harassed in police Haryana and Others custody. A writ petition seeking an (2006) 3 SCC 178 inquiry into the matter and compensation. The Supreme Court directed CBI prosecution but did not grant compensation to the petitioner as there was no medical evidence, no marks and scars of injury, most of the allegations were exaggerated, and petitioner did not note that he had filed a writ petition in High Court previously. 61. Supreme Court, 2006 A writ petition to implement the Prakash Singh and recommendations of the National Police Others v. Union of India Commission and seeking a direction to and Others the government to frame a new Police Act (2006) 8 SCC 1 on the lines of the model Act. The Supreme Court issued various directions with immediate effect, but which would be subject to any eventual statutory enactment. The Court directed the separation of the investigative aspects of policing from the others.

62. High Court of Chhattisgarh, 2006 Forum for Fact Finding v. State of Chhattisgarh (2006) CriLJ 4372

63. Supreme Court, 2007 Masooda Parveen v. Union of India and Others AIR 2007 SC 1840

PIL regarding the death of a person as a A thoughtful decision and result of custodial violence. The deceased important directives were was illegally detained on an allegation of given to reach the truth. theft. He was found dead hanging from The court could, however, the wall of the police station toilet. Police have directed prosecution attempted to pass off the death as suicide for homicide. and pressurised the wife to hurriedly bury the body as against the normal practice of burial. The body was buried with huge police protection. Post-mortem report indicated suicide. Later, on a writ petition filed before the Court, directions were issued to exhume the body, conduct a fresh post-mortem. The second report showed that the person had been subject to brutal torture and assault. The Court also noted that the person had been illegally detained. He was not produced before the magistrate even though he was detained for a period beyond 24 hours. His arrest was not recorded. He was subjected to cruel beating and died as a result of injuries sustained. In addition, a false post-mortem report had been prepared. The second report showed clearly that death was due to custodial violence. ‘In granting compensation, the High Court took into account not just the interests of the person seeking the relief but also the general public interest’ in ensuring that institutions and officials act lawful, especially where Article 21 is in issue. An advocate was suspected of being a Again, a case where the militant and arrested by the army in rhetoric of security has Jammu and Kashmir. He died while in overcome rights. There army custody. has to be a better and His wife sought compensation and action more accountable against the accused. The army and police investigative process. produced no material to substantiate their Once custody and death case that he had died while trying to in custody was admitted, uncover a heap of arms. The Supreme the onus shifted to the Court stated that there was no evidence to State to explain the death. confirm any of the petitioner’s claims and This well settled principle relied instead on the bare assertions of the was ignored. Even police and the army, even though the granting that the State agencies failed to produce any petitioner’s husband was

record, despite repeated orders. The court a militant, the State was did not bother to conduct further liable for his unnatural investigations. It declined compensation. death in its custody and his wife, entitled to compensation. As per the law and NHRC guidelines, the State should have conducted a magisterial inquiry as well as a criminal investigation into the matter. 64. High Court of Gujarat, A young girl was beaten and raped by the This was a good judgment 2007 police, and as a result, she committed which sought to remedy a Bachiben Naranbha v. suicide. The original petition was in a terrible situation. Here State of Gujarat and 4 form of a letter from the mother, but later again the family of the Ors. due to the delay in proceedings, an victim had to come to the (2007) 3 GLR 1918 advocate took over: court instead of the State The High Court awarded interim taking up the obligation to compensation to the victim from the State prosecute the accused. Government to the tune of 1.5 lakh. The State Government was also asked to pay the costs of the advocate. The State Government was required to investigate the offences and submit a report to the High Court by 16 March 2007. The Court further asked its judgment to be served upon the Secretary of the Home Department of the State Government and upon the State Human Rights Commission. 65. High Court of Madras, A transgender person was arrested by the Here again the family of 2007 police and severely tortured and sexually the victim had to bring the Jayalakshmi v. State of assaulted for a long period of time. The suit before the court as the Tamil Nadu victim hence immolated herself when the State had failed to fulfil (2007) 4 MLJ 849 pain became unbearable. its obligation. The police tried to conceal the fact that the immolation had taken place just outside the police station. This was a writ petition by her sister asking for compensation and appropriate disciplinary charges. The High Court awarded a compensation of 5 lakh to the petitioner. The Court further directed initiation of disciplinary action against the personnel

involved. 66. High Court of Gauhati, A case of torture and death in police Here again the family of 2007 custody. the deceased had to bring Shri Dino D. G. Dympep Relatives of the victim approached the action against the accused and Another v. State of High Court for adequate compensation, as the State did not Meghalaya and Others inquiry by an independent and impartial prosecute the accused. AIR 2007 Gau 155 agency and for constituting the State The compensation was Human Rights Commission. The High given nine years after the Court directed the State respondents to incident which is a pay a compensation of 3 lakh to the wife significant delay in of the deceased. The Court also directed justice. the State respondents to hold an inquiry. The Court placed the onus The Court also affirmed that in writ is on the police as it is the proceedings, reading in Section 106 of the only party having special Indian Evidence Act, once proof of death knowledge of the facts. and police custody has been established, This is the line of the burden is on the police to explain the reasoning which should circumstances of the death. be followed in such cases. 67. Supreme Court, 2007 A writ petition by the brother of a man Rubabbudin Sheikh v. who was admittedly killed in a fake State of Gujarat and encounter. Sohrabbudin was killed by Others senior officials of the Gujarat police, and (2007) 4 SCC 404 later his wife, Kauser Bi, who had witnessed this, was also killed. A CBI inquiry was ordered by the Supreme Court. The charge sheet submitted by the CBI implicates senior political, bureaucratic and police functionaries of the Gujarat administration. 68. Supreme Court, 2007 In the present case, the deceased was Why was there no followState of MP v. Sewn abused in custody leading to his death. up investigation to Singh The post-mortem showed no external or ascertain the cause of AIR 2007 SC 2263 internal injuries and the cause of the death death? In custodial was unknown. deaths, the records are The Trial Court convicted the accused entirely in the hands of policeman under Section 304 of the IPC police personnel. and sentenced him to five years rigorous Keeping the Shyam imprisonment with a fine of 50,000. Sunder Trivedi ratio in The High Court acquitted him as the mind, some culpability witness evidence was inconsistent with should have been fastened the medical evidence. The Supreme Court on the officials. noted that there were contradictions in the Contradictions alone evidence of the witnesses and hence the should not suffice to Court upheld the acquittal of the High exonerate officials in Court. whose custody an The Court stated that where there are unnatural death occurs. no signs of injury on the body and where

69.

70.

71.

72.

no cause of death is known, there cannot be a conviction. High Court of Gujarat, Custodial death. 2007 Policeman was initially charged under Govindbhai Shivabhai Section 302 read with Section 114 of IPC. Jadav v. State of Gujarat The Trial Court held the accused guilty Appeal (Crl) 1301 of under Sections 304 and 331 of the IPC. 1999 The accused appealed to the High Court. The High Court confirmed the conviction. High Court of Madras, Wife sought to a direction for appropriate 2008 action to be taken against the policemen Rajammal v. State of involved in her husband’s custodial death Tamil Nadu and an award of compensation of 5 lakh. (2008) 3 MLJ 167 A single judge of the High Court held the accused police officers responsible for the death of the husband and awarded a compensation of 3 lakh. The Division Bench increased the compensation to 5 lakh given the large size of the victim’s family. A criminal prosecution was also underway. High Court of Gujarat, Death in police custody due to torture. 2008 Nine policemen were charged under Dalpatsinh Gambhirsinh Sections 302, 304, 201, 204, 293 and 234 Barad v. State of Gujarat of the IPC. The Trial Court convicted one (2008) 2 GLR 1301 and acquitted eight. The convicted policeman filed an appeal as also the State against the acquittals. Conviction reduced by the High Court to culpable homicide not amounting to murder, the other acquittals maintained. High Court of Madhya The deceased died in the police custody If the Court held that both Pradesh, 2008 due to the torture inflicted upon him. the appellants were Ashok Kumar Jain v. The Trial Court acquitted all three responsible for the death State of Madhya Pradesh accused policemen of the charge of of the victim while he was (2008) 3 MPHT 176 murder under Section 302 of the IPC but in custody, then why were convicted them under Section 330 and they not charged for a 201, holding that they were responsible greater offence than that for causing the death by subjecting him to under Section 330 and custodial torture to elicit confession. 201? The High Court discussed the issue of custodial violence and torture and concluded that in the face of

overwhelming incriminating evidence, the convictions were to be maintained. The Court also maintained the length of the sentences stating that the delay in the disposal of the appeal should not serve as a mitigating factor for the length of the sentence. 73. High Court of Delhi, Custodial death of a person apprehended 2008 for the murder of a police officer. State v. R.P. Tyagi First inquest proceedings inculpated (2008) 153 DLT 693 the appellant and other police officers whereas the second inquest proceedings showed that the deceased and the others responsible for the murder of the police officer were beaten by the public and it was on account of the injuries sustained by the deceased then that he died. Also contended by appellant that since he was a public servant, sanction of the government was required for prosecuting him. Custodial death or torture does not fall within the scope of official duties as mentioned in Section 197, CrPC, and hence official sanction is not required. Also held that when a person dies in police custody as a result of injuries caused while he was not in police custody, it is upon the police to establish that the injuries were not caused by them. The charge of murder under Section 302, IPC, could not be sustained since there was no sufficient evidence to satisfy the ingredients of the section; but, charge under Section 304 (part II) was established on evidence. The court adopted a deterrent stand when it came to sentencing and sentenced the accused to eight years rigorous imprisonment as well as a fine of 2 lakh to be paid to the deceased’s mother by him. 74. High Court of Kerala, In the course of a tribal agitation in Misses the point that 2008 Kerala, a group of tribals under the aegis police high-handedness C.K. Janu DIO. Karian, of the Adivasi Morcha Maha Sabha calls for public law Aged 32 v. Director, occupied reserve forestland belonging to remedies. Central Bureau the government within the Wayanad Wild Life Sanctuary.

WP(C) No. 32732/2003(V)

75. Supreme Court, 2009 Dalbir Singh v. State of Uttar Pradesh (2009) 11 SCC 376

After a peaceful period of such occupation, a fire was started in the forest on 17 March 2002. Rival versions were advanced as to who had started it, with the police alleging that it was the protestors and the protestors alleging it was the police and certain miscreants at the behest of the police. In the course of the skirmish between the two parties, some officials were taken hostage by the protestors. As a result of this, the police commenced an operation to evict the protestors, in the course of which one protestor, Jogi, died in police firing. Two leaders of the movement, C.K. Janu and Geethanandan, surrendered to the local police and were arrested. The first writ petition raises the question of the torture allegedly suffered by Janu whilst in custody of the same, and her pleas for compensation of 10 lakh for the same. The court restricted its order to the question of whether the petitioner was eligible to extraordinary constitutional remedy under proceedings under Article 226. And held that the petitioner must choose the ordinary civil process. Death of a 17-year-old boy due to custodial torture. Police tried to suppress the facts by stating that it was a suicide. Petitioner, boy’s father, lodged an FIR. Police threatened him and tried to pressurise him into accepting the theory of suicide. The accused were charge sheeted under Sections 330, 342 and 306 of the IPC. Cognizance of offence was taken. It was contended by petitioner that there was a clear case of custodial torture and by charging it under Section 306. There was an attempt to protect the concerned officers while the State contended that there was no evidence of murder and hence charge sheet could not be filed for other offences.

However, Section 306, IPC, is singularly inapposite. Death in custody is prima facie murder. This case brings out the lurking hesitation to make the police face the full consequences of their actions.

Since the charge sheet had already been filed and cognizance of the offence was taken, no further direction was given. The Court stated that if evidence of any other offence was shown at a later stage, then necessary orders can be given. Largely follows the language of previous decisions, particularly, D.K. Basu and Shyamsunder Trivedi. The Court discussed constitutional safeguards in Article 21 as well as safeguards in Chapter V of the CrPC. 76. High Court of Madras, Custodial torture of three eighth-standard Illustrates the difficulties 2009 students by the police personnel. Inquiry in obtaining evidence. P. Viswanathan v. Deputy conducted by the sub-collector held one Sometimes, prosecution is Inspector General of guilty and disciplinary action was frustrated because of Police and recommended to be taken against him. powerful policemen Superintendent of Police Departmental inquiry was conducted threatening victims, thus MANU/TN/2785/2009 which exonerated him as the persons preventing them from (including victims) who deposed in front deposing. of the sub-collector denied their original statements. However, the inquiry report was discarded by the administration. After issuance of show cause notice to petitioner, a penalty was imposed on him. The petitioner policeman challenged the penalty imposed upon him. Court looked at the original evidence recorded by the sub-collector in this case and finds that thereafter, the petitioner had succeeded in suborning the students and parents and dismissed writ petition. 77. High Court of Delhi, Minor boy taken away by the Gujarat 2009 police from Delhi to Ahmedabad without Tasleema v. State (NCT informing anyone. The boy was slapped of Delhi) and threatened and was going to be MANU/DE/0870/2009 deported to Bangladesh—an outrageous case! He was restored to his family by a writ of habeas corpus, and exemplary damages of 3 lakh awarded to him on par with that awarded to a Member of Legislative Assembly (MLA) in 1985 after factoring in the inflation. 78. Madras High Court, Case of custodial torture and death. 2009 In the criminal case for custodial death, the policeman was acquitted. The

S. Chandrasekharan v. Court, however, awarded compensation The Secretary to Govt based upon the finding that it was a W.P. No. 12599 of 2009 custodial death. The Court also directed and M.P. Nos. 1 and 2 of the recovery of the amount from the 2009. guilty police officers. 79. Supreme Court, 2010 A High Court judgment setting aside the A killing is worse and not KM. Shekarappa and Trial Court judgment which convicted the the better for being done Ors. v. State of policemen of murder under 302 r/w by agents of the law. A Karnataka Section 149, IPC, for custodial death and one-year term even for 2010 (3) SCR 883 instead convicting them u/s. 304 part II culpable homicide not r/w s. 34 (culpable homicide not amounting to murder is a amounting to murder) as well as u/s. 324 tenth of what can be r/w s. 34, IPC for causing grievous hurt to given. An order like this another person in their custody. indicates that the life of The High Court was divided in its the citizenry is not serious opinion on whether the prosecution had enough to merit a serious proved its case beyond reasonable doubt sentence. and hence, the matter was referred to another judge. The judge came to the conclusion that though the guilt of the accused was proved, they had committed offences under Section 304 and 324 both read with Section 34, IPC, but not murder. The High Court drastically reduced the sentence of life imprisonment to a sentence of a year of rigorous imprisonment and fine of 5,000 on each of the accused. Despite reciting strongly the grossness of custodial killings and the burden being on the police to explain the same the Supreme Court maintained the High Court’s order and sentence of one year. 80. High Court of Madras, Writ petition by widow asking for a 2010 direction to the respondents for Prabavathy v. State of compensation for the death of her Tamil Nadu rep. by its husband in judicial custody. Post-mortem Secretary to Government report said that death was due to natural Home Department, The causes. The Court found that there was Inspector of Police and illegal detention and subsequent custodial The Superintendent torture as the accident register revealed MANU/TN/0425/2010 injuries indicative of assault and the certificate of the Jail Medical Officer showed that his hands had contusions which were not mentioned in the postmortem report. In addition, the history sheet of the hospital to which the

81. High Court of Delhi, 2010 State v. Ranbir Singh MANU/DE/0029/2010

deceased went showed that he had blunt injuries on his chest. The Court also found that there was no compliance with the guidelines laid down in D.K. Basu. Since there was evidence to show custodial torture, compensation of 5 lakh was given for illegal detention and torture in the police lock-up. Deceased arrested on a suspicion of theft. Excellent judgment on the It was alleged that he was tortured in question of executive police custody and he subsequently died. sanction. One of the issues in this case was regarding the sanction required to prosecute under Section 197, CrPC. It was the contention of the defence that the sanction was for prosecution under Section 304, IPC and not for Section 302 under which the accused was charged. The Court held that such sanction was not required in view of the settled law that custodial torture or assault is not a part of duties of a policeman and cannot be said to be in the course of his duties. Post-mortem report indicated that death was caused due to a head injury caused by use of blunt force. The injury was sufficient to cause death in the ordinary course of nature as required under Section 300, IPC. On the basis of evidence including testimony of doctors, post-mortem examination, and so on, the Court held that there had been no injuries on the person of the deceased when he was arrested by the police and that the injuries were sustained when he was in police custody. The Court held the accused guilty for custodial death under Section 304 (part II) since it was not clear whether the accused had intention to cause the death or to cause bodily injuries which he knew were likely to result in death. The appellant was sentenced to 10 years rigorous imprisonment considering the fact that he was a police officer who was supposed to look after the welfare of the

deceased who was in his custody deceased and a fine of 55,000 out of which 50,000 was to be paid to the nearest relative of the deceased. 82. High Court of Madras, This petition was filed under Article 226 2010 in the Madras High Court asking for a Sangaiyya v. State of direction to the respondents to pay 5 Tamil Nadu lakh as compensation as well as a W.P. (MD) No. direction to prosecute the concerned 5272/2006 & M.P. (MD) police officers for the custodial torture Nos. 1 and 2/2006) and murder of the petitioner’s son. The petitioner also stated that though he had lodged a complaint with the police station, the sub-inspector did not charge the police officers under the appropriate IPC sections. He had also sent complaints to the Chief Secretary, Chennai; Director General of Police (DGP), Chennai; Additional DGP, Chennai and other superior police officers. In the meantime, there was a government order—pursuant to examination of records, an inquiry conducted by the Revenue Divisional Officer, Madurai, as well as the District Collector’s reports on the same—which ordered prosecution as well as departmental action against the police officers responsible for the death of the deceased. Therefore, the only issue was regarding compensation. The Court held that a prima facie case of culpable homicide was established against the police officers. The Court ruled that public law proceedings are by way of fixing liability for the violation of Fundamental Rights of the citizen. The relief given in such proceedings is not by way of damages as understood in civil proceedings but as a means of making amends for the harm caused due to the State’s failure to protect citizens’ rights. It is in the nature of exemplary damages and is without prejudice to the rights of the aggrieved person to claim damages under private

The Court uses the same method used in motor vehicle claims cases of awarding just compensation. The Court cites several custodial death cases where the Court had previously applied that method. The Court considered the income which the deceased would have earned had he been alive, the fact that the deceased’s young children had the love and affection of their father, the wife’s loss of consortium of her husband particularly when she was pregnant, age of the father of the deceased and the age of the children and wife and used the multiplier given in the schedule to the Motor Vehicles Act to arrive at a compensation of 5 lakh. This judgment discusses most of the Supreme Court judgments relating to custodial torture. It also gives an idea of the method of computation used by courts in awarding compensation as well as the factors taken into consideration by them. An income- or classbased computation, however, is problematic as a public law remedy. A poor person’s

law. In awarding compensation, it is not Fundamental Rights are in just the interest of the applicant that is no way less than anyone taken into account; the court considers the else and compensation public interest to ensure that public ought to be based on the bodies perform their duties lawfully and nature of violation rather properly, especially when it involves the than economic status. right to life of a citizen. 83. High Court of Kerala, Writ petition seeking a direction to order This case is positive 2010 the CBI to investigate the custodial death insofar as it recognises Murukeshan S/o Raman of the petitioner’s brother. While the fact command responsibility. v. State of Kerala of custodial death is admitted, there are It also reveals the need for (2010) 2 KLJ 361 attempts to shield high-ranking police independent investigation officials while only implicating lower in cases of custodial level officials. Direction issued ordering violence. CBI to investigate the case. 84. High Court of Gujarat, Application for bail by the accused 2010 charged under Sections 302, 331, 344, Ratilal Raghavjibhai v. 323, 504 and 34, IPC, in a case of State of Gujarat custodial death of the deceased and Criminal Misc. torture of his son. Application No. 14649 The Court found a prima facie case of 2010 and refused bail, noting that the physical and mental agony inflicted on the deceased and his son does not warrant any relief. 85. High Court of Delhi, Writ petition seeking compensation, filed No steps were taken by 2010 by wife of a person who died while in jail authorities to find out Saroj Rani v. Govt of judicial custody in Tihar Jail from the who was responsible for NCT of Delhi police as well as the jail authorities. The the custodial death. W.P. (C) No. 5520 of death occurred due to an assault upon him What is the rationale 2007 in jail. The High Court held that the State for using the multiplier was liable to pay compensation. The method given in the quantum of compensation using the Motor Vehicles Act? Why multiplier given in the Motor Vehicles aren’t custodial death Act and a total amount of 654,584 was cases considered as awarded as compensation. aggravated crimes and exemplary damages awarded? Is there not reason to view violations by custodial institutions on a different basis? 86. Supreme Court, 2011 Human rights activist Jaswant Singh Even though the body Prithipal Singh Etc. v. Khalra was abducted from his house in was not found, from the State Of Punjab & Anr. Amritsar on 6 September 1995. He never fact that the body was last Etc. returned and his body was never found. seen in the custody of the As a result of the habeas corpus petition police, the Court

Appeal (Crl) 523– 527/2009

filed by his wife, investigation was concluded that his entrusted to the CBI, which revealed that disappearance would be several police officers and their treated as homicide subordinates in the Punjab Police were attributable to the responsible for the abduction and death. policemen. The Trial Court convicted two accused —the DSP and an Additional SubInspector (ASI)—under Sections 302/34, 120B and 201/34 of the IPC and sentenced them to life imprisonment. Four other accused were convicted under Sections 120B and 364/34 of the IPC and sentenced to terms of five and seven years’ rigorous imprisonment, respectively. The High Court maintained the conviction of the DSP, acquitted the ASI and suo motu enhanced the convictions of the four others to life imprisonment. An appeal to the Supreme Court was preferred by the four other accused whose conviction had been suo motu enhanced to life imprisonment by the High Court. The Supreme Court confirmed the High Court’s order.

8 Perspectives on Torture Torture’s place in public imagination and its persistence as ‘public scandal’ and ‘public secret’ cannot be analysed outside institutional histories, and the discourses surrounding them. Legal categories and human rights languages, after all, do not remain in judicial ivory towers and dusty law reports but circulate and travel through a variety of societal and institutional contexts— popular culture, media, state agencies and medical, scientific and therapeutic establishments. Each of these sites and engagements produce new meanings, which relate back and constitute new notions of legality and illegality, citizenship and the human subject in the eyes of the law. This chapter explores these engagements, meanings, notions and perceptions through interviews with actors identified with particular sites that play an important role in the understanding of torture. The three narratives chosen are that of policing, intelligence and the psychological/therapeutic. Each narrative frames the question of torture slightly differently; the subject of study and the object of analysis are different. Each displays its own anxieties and faultlines. Broadly, the intelligence officer is concerned with national security, and his primary object of attention is the nation state of India. The figure of the tortured body in his gaze would be, one surmises, that of the alien terrorist or spy. The police officer is concerned with keeping law and order, and the detection and investigation of crime, and in his narrative the tortured body

is often the accused. The psychiatrist seeks to look at the psyche and subjectivity of the torturer and the victim. In each of these narratives, the concept and role of law and the understanding of justice or human rights is very different. While theoretical discourse analyses of these different yet sometimes overlapping fields may tell us something about torture, we have chosen to preserve the subjective voice and experience of each speaker, by keeping to an interview format. We find that using the personal narrative voice allows insights into the ways in which ideas play out in lived reality, which a theoretical analysis often obscures. This does not claim to be a presentation of authoritative or representative account of the field, but the narratives of three persons, who have a particular area of expertise, and are interested in the tortured body in different ways.

***** Interview 1 Interview with D.R. Kaarthikeyan (Former Director, Central Bureau of Investigation [CBI]; Former Director General, National Human Rights Commission [NHRC]; Former Special Director General, Central Reserve Police Force [CRPF], who headed the Special Investigation Team of the CBI into the Rajiv Gandhi assassination) conducted on 26 July 2008 at his residence. The interviewer gave a brief introduction to the project and the scope of the study. Mr Kaarthikeyan explained his role in the Rajiv Gandhi assassination case. He referred to his book (a copy of which was given to us) where the events relating to that day (21 May 1991) have been detailed. He emphasised the fact that it was a ‘blind case’, unlike the Indira Gandhi or the Mahatma Gandhi assassinations where the murderer had been caught red-handed. The likelihood of it remaining unsolved—like the Kennedy assassination—was very strong. The highest authorities in the country had specifically chosen him to lead the Special Investigation Team (SIT).

Mr Kaarthikeyan stated that on being persuaded by very high functionaries, he agreed on specific conditions: 1. That he would not allow any political interference in the investigation. 2. That he will not permit any unethical or third-degree methods in the investigation (Rajiv Gandhi was a popular leader, and he was aware that the pressure for getting results by using any means would be high). Q: Can you tell us about the investigative methods you used during the Rajiv Gandhi case? Mr Kaarthikeyan (hereafter DRK): I told my team that there were to be no third-degree methods. We’ll keep all lines of communication open. We must go from the crime to the criminal. If you follow scientific methods, then like in science there is only one truth, one answer. You have to gather evidence and then confront the person with it; without investigating the crime, you will have no evidence, no leads. I made a public announcement in the papers asking for leads; it was printed in all the papers. He was a popular leader so people came forward. When Nalini (one of the accused) was arrested, we found out she was pregnant during the medical examination; I had a lady doctor nominated to take care of her. She was always in the custody of lady constables. I made sure of this. They were asked to give food of her choice as in our tradition pregnant women were always given their favourite foods to eat. Q: How does one ensure that these rules against third-degree methods are not broken by subordinates? DRK: Well, let me tell you about Murugan, one of the key accused. I had a system in place to meet the accused every day. Just the accused and I in my room. At one of these meetings Murugan informed me that a senior officer of the level of SP [Superintendent of Police] had hit him. So I pressed the bell and called in that officer, and asked him in front of Murugan, ‘Did you beat him?’ The SP at first denied it, but later admitted; he said, ‘Sir, he is a liar. He calls black as white and white as black. He will not accept the truth even when it is obvious. These people are incorrigible.’ Even after that I

told the SP that my policy is very clear—there shall not be any third degree —and I am responsible to the nation. ‘You shouldn’t have hit him.’ The SP apologised in front of the accused Murugan and left. A few days later, during another meeting, Murugan told me, ‘I could have killed an NSG [National Security Guard] officer and escaped today. That officer had been carrying his loaded pistol in his hip pocket, and I could easily have removed it and aimed at him. I could have shot him and the other officers in the room and made good my escape. I did not do that because you had treated us with humanity.’ To that, I told Murugan that while I appreciated his acting responsibly, he could not have escaped and would have been shot before reaching the outer gate by the LMG [light machine gun] man positioned at the top of the building. We in the SIT did not have even a proper lock-up or properly secured building to securely keep high-security prisoners, when we had to keep them in our custody for purposes of investigation. The army units refused to lend their premises even temporarily to keep the arrested accused, in spite of directions from the highest levels in the government as, after the IPKF [Indian Peace-keeping Force] experience in Sri Lanka, they did not want to have anything to do with the LTTE [Liberation Tigers of Tamil Eelam] personnel. Let me tell you another incident, much earlier in my career, when I had just begun my career as ASP [Assistant Superintendent of Police] in Gulbarga district of Karnataka. A few muskets [fire arms] were found stolen from the treasury guard at an outlying station called Afzalpur. It was a dacoit-infested area. I took it up as a challenge to authority. Very intensive investigation and search operations were conducted. One day the muskets were found thrown near the place, from where they had been stolen. I came to know later that some suspects were treated roughly by some junior officers. Though I was not personally involved, the officers justified their methods by the fact that the muskets had been recovered and they had to do it due to pressure from the public, the media and the government. I am aware that such questionable methods have been adopted the world over, since time immemorial. An eye for an eye and a tooth for a tooth was a widely accepted policy once upon a time. With the awareness of the

human rights discourse, there has been considerable change. Even now the police get desperate and resort to these methods, mostly due to immense public pressure, media pressure and pressure from senior officers and the government for quick results. These days, even in training institutions, the officers are advised not to resort to such methods. But we do come across such instances of third-degree methods during investigations. I have always been against such questionable methods and third degree, as it is wrong to do so; it is a crime by itself; and it does not necessarily lead to truth. Very often the victim admits to something which he has not done or gives some story that satisfies the officer, just to avoid torture for the time being at least. The correct, ethical and scientific manner of investigation is only by going from the crime to the criminal. Going by various allegations and theories will only take the investigation in the wrong direction, resulting in harassment of innocents and helping the guilty in destroying evidence and in escaping the consequences of the crime. Every death in custody has to be investigated. Of course, encounters are different. Sometimes people get killed in an ambush, in the crossfire. I’ve never condoned false encounters, where they kill the suspects and then make it look like a raid. In my career, I’ve dismissed more than 150 people for misconduct, for all kinds of misconduct including torture. Violence, crime cannot be condoned whatever may be the cause of grievance. At the same time the factors that give rise to violent movements cannot be ignored. They also have to be studied and the root cause removed for permanent solution. There are social and economic causes for crime and violence. Very often they happen because of omissions and commissions by the various wings of government. But it is the police and other law enforcement agencies that have to bear the brunt of people’s anger. They become the target as they are in the frontline. So when extreme methods are used to put down violent agitations, even superior officers sometimes feel that they are doing something for the good of the nation by maintaining law and order. It is in that kind of a situation that encounters are sought to be justified as a form of defence. But custodial torture is different and inexcusable, because it involves harming a helpless person in custody.

On one occasion when I was DG [Director General] at the NHRC, a number of people came to see me at the Patel Bhavan office. They were led by Shri Mulayam Singh Yadav and Shri Amar Singh along with a cameraman and a whole lot of media people. They complained that their party workers were being eliminated by the UP Police in false encounters for political reasons. I took them to the chamber of the then chairperson of NHRC, Justice Shri Venkatachaliah. After hearing their complaints, the Chairman requested me to look into the matter personally. I visited Lucknow and met senior police officers in a closed-door meeting. As suggested by me, the Uttar Pradesh DG of Police convened a meeting at Lucknow of senior police officers from all over the State. There had been about 200 encounters against dacoits; many police officers had also been killed. I asked the police officers to frankly tell me if there were any ‘false encounters’ and, if so, how and why. No one said anything. I told them that I knew that the allegation that all such encounters were false was not correct and that I wanted to know the truth for my own satisfaction. Then one young officer, an SP, spoke up. He related a story about a notorious gang leader being killed by the police. He was a notorious person involved in many crimes including murder. He had managed to be released on bail and had succeeded in delaying the trial indefinitely. The witnesses were either bribed or threatened not to come forward or depose against him. He had set his sight on an attractive young lady; she was married and came from a respectable family in the area. He had kidnapped her. The whole population of the town took out a procession against the police for their inability to deal with the gangster effectively. When ultimately the police managed to corner him, the junior police officers told the SP that even if they managed to arrest him, it will not stop him from further indulging in more such dastardly criminal activities and that the public would simply blame the police for the ineffectiveness of the system to punish him. So the SHO [Station House Officer] and other officers requested the young SP to withdraw from the scene. A couple of hours later, the gangster was reportedly killed in an ‘encounter’. Some firearms and ammunition were recovered. The kidnapped lady was also rescued. There was a huge procession of public who came to garland the SP for ending the menace of the gangster.

Thus, the police officer attempted to justify the instant justice done by his junior officers. I told them very clearly that the police officers derive their powers under the law and all the police officers have taken the oath to strictly abide by the law and the Constitution. If the law keepers become the law breakers, there will be no difference between the criminals violating the law and such police officers. No doubt the criminal justice system is on the verge of collapse and drastic changes are required in the procedural and substantive laws as well as the investigative and trial procedures. Unless and until such changes are brought by the legislature, executive and the judiciary, the police have to remain content with strictly functioning and administering the law, as it exists today. A police officer, however upright and conscious he may be, cannot become the investigator, prosecutor, judge and executor. Any other interpretation will amount to empowering a person in uniform to decide who should live and who should be killed. Q: What are your views about the use of these methods in areas with terrorism or insurgency problems? Does that lead to a different set of circumstances requiring different policing methods? DRK: Yes, in those situations you can prevent the rounding up and combing operations. But after that, investigation is hard work, sustained hard work. Torture is used by the police as a short cut to get out of the hard and laborious and time-consuming task of investigation. When I was requested to give evidence before the Parliamentary Committee attached to the Ministry of Home Affairs [MHA], I was asked about the poor image of the police. I said that there is a need for better methods of recruitment and training of police personnel. But one single factor that is responsible for undermining the efficiency and credibility of the police force is politicisation of the police force. Whoever is in power wants to decide who should be the SHO in their area. Thus, by and large, the police hierarchy has been undermined in many States. Police also has its share of unscrupulous people, as in every other field of activity. They believe they owe their loyalty primarily to the MLA, MP or Minister belonging to the ruling party who got them posted there. They go to the extent of even seeking their instruction about registering or not registering an FIR and even arrest or non-arrest of a person. Thus, they have lost the confidence of the public as an instrumentality of the law. Without public respect and

confidence, no police officer can succeed in preventing, detecting or successfully prosecuting crime or maintaining law and order. Also when they indulge in omissions and commissions against the law to please their political masters in a couple of cases, they also take the liberty of doing such wrong things for their own benefits in many more cases and put the entire blame on their political masters. Thus, the political class also gets condemned. When the same political people sit in the opposition, they want the same police machinery to act as the instrument of law and not as tools in the hands of politicians. I always tell the officers that whether they want to be masters or slaves depends entirely on them. If you seek a favour by asking for a particular job or a place or to avoid a particular job or a place, then you have become a slave. If you are prepared to accept any post at any place, then you are a king and can have the moral courage to act independently and strictly according to the law of the land and your conscience. I have never asked for a particular job or place and I have never avoided posting to a particular place or job and hence no one has had the courage to ask me to do something against the law or to desist from doing my duty. By strictly performing my duties as per law, evidence and my Constitution, I may not have become the favourite of politicians in power. But I have been able to live at peace with my own conscience. Q: What about internal accountability mechanisms within the force? Do you think holding senior officers responsible for acts of their subordinates would work? DRK: Well, senior officers do visit lock-ups and do keep an eye on what is happening. Senior officers should be held responsible for gross violations of human rights by their immediate junior officers. Q: Would it be a good idea to make lock-ups open to the public, to be visited at any time? DRR: That would not reduce the torture. Torture by and large does not happen in the lock-ups. They will do it outside the police stations. Q: What about safe houses, which are used for interrogation? DRK: Deadly criminals, determined terrorists have to be subjected to intense and sustained interrogation. For that a different environment may become necessary. Ultimately the officers have to be made more sensitive

to human rights. The persons detained may be brought before judicial officers more often, so that their proper treatment in custody could be ensured. In investigation, one has to go from the crime to the criminal. An investigation is something sacred and scientific. A man who is tortured may admit to anything; it will mislead the investigators. While dealing with insurgency and terrorism, those who indulge in violent activities have to be dealt with sternly. But for a long-term solution, you have to tackle the real causes because of which these things are happening—socioeconomic factors. I was at a very high-level meeting to discuss the Naxalite menace. One senior officer was very supportive of the Salwa Judum idea, but I was completely against it. I said it is an abdication of state responsibility. It will result in civil war if you arm civilians. Let the police and military go in there and restore order. Now look at the situation; 70,000 (Salwa Judum members) have to be kept in camps to protect them. Poor governance is responsible for this state of affairs. I also argued for revamping the outmoded laws of crime and procedure, as we have to update our laws and court procedure like the USA and UK, to deal with the worsening crime situation and the menace of insurgency and terrorism. Otherwise the situation will become only worse and some police officers may be tempted to take measures which are not permitted under the existing laws. I pointed out that in Punjab, even some honest police officers are facing action for certain steps they thought were necessary to put down the insurgency. They were later charged with violation of human rights and acting beyond the limits of law. It was not that those police officers were doing it for themselves; they did it to save Punjab for India. It was at a time when courts were not functioning, putting pressure on the police as people wanted to leave Punjab. Now those officers are facing cases for their excesses. Such officers have two options—to follow the law strictly, or use extreme methods, but if they do the latter they may be caught up in litigation, PILs [Public Interest Litigations] and the Human Rights Commission. The police do want to strictly follow the law, but laws are inadequate to bring the guilty to the book. There is no political will to address the real

causes of terrorism. It was I who was responsible to persuade the then Chief Minister of Andhra Pradesh to open a dialogue with Naxalites, as the killings were going on both sides for several years and the State’s development was suffering. I had discussed with seven earlier chief ministers of Andhra the same subject, but none of them could succeed or effectively solve the problem by any method. Law was not able to bring them under control; important leaders used to pay them safety money to travel within Andhra Pradesh. No grievance can justify taking lives, or destroying public property, but if grievances are genuine then political steps will have to be taken to address them. Chandrababu Naidu was reluctant as he felt it would be politically costly for him. Many officers were also against my stand; they felt the Naxals would use the ceasefire to regroup their forces and grow stronger. If we can talk to Kashmiri militants, and Naga insurgents, who say they want to secede from India altogether, we can certainly talk to the Naxals about their real and imagined grievances; the genuine problems should be addressed and the imagined problems can be legitimately explained and refused. Violence in society is only a symptom, like sex trade—it has underlying social and economic causes. Something like dacoity is just a short cut to more money, whereas for persistent violence like LTTE, there are deeper causes. Religious fundamentalism can also be a cause, but we have to examine the deeper causes. I went to Oslo to make a presentation on the causes and management of insurgency, and I said all violence and terrorism is because of the wrong socioeconomic policies of governments. The other delegates were shocked to hear me say that. Q: What about torture by non-state actors like by the LTTE? DRK: There is a column in this Saturday’s Indian Express, called Third Eye, where I have been interviewed.1 You should read that. I have said even LTTE originally was born due to wrong policies of the then majoritarian Sri Lankan Government. But against the LTTE accused in the Rajiv Gandhi case, we used only systematic, scientific methods of investigating. Even the

defence counsel in the Trial Court admitted at the commencement of his arguments that it was one of the fairest of investigations that he had some across. Even their chief defence counsel, who argued their case in the Supreme Court, told me that the condemned prisoners for whom he argued had nothing but praise for the way they were treated in my custody. Q: Would you think it necessary to keep the accused in police custody during the whole investigation? Can he not be sent to judicial custody to prevent third-degree methods from being used? DRK: In jail there is no pressure on the accused; there is a psychological pressure when the accused is in the police custody; on the second or third day, he starts getting worried, he may disclose some vital information. Q: What about medical examinations? How effective are they to detect torture? Are there ways of torturing someone so that no mark remains? DRR: Torture will leave its mark, so unless there is a connivance of the magistrate it cannot go undetected. Q: Often psychological weapons are used like threats—we’ll rape your wife, etc.? DRK: Why should they go to that extent? The problem is that there is too much violence in society. All violent crimes are increasing, ordinary crimes like domestic violence, road rage, and police also suffer from this. Unless there is a change in the law and procedure, nothing will change. With so much public pressure, people get angry with the police; in such an atmosphere there are more complaints, more incidents. The NHRC is mainly dealing with the symptoms. We should go into the root causes and remedy the situation. Q: What reforms in law and procedure would help? DRK: Various committees have made recommendations. They should be seriously considered. There is not much time to go in great detail. You have to trust the police and give them full powers to investigate. If any officer misuses the power, punish him severely. In fact a policeman or any public servant should get double the punishment of an ordinary citizen for abuse of authority and power. The possibility of misuse cannot be a justification for not giving necessary powers to the police. The police is only an agency for

investigation. In the UK, the Nolan Commission has reported enormous increase in police credibility and prestige, even more than that of magistracy, after an independent police complaints authority was created. Q: What if independent bodies can at least visit the lock-ups? DRK: What good will that do? They can easily do the torture outside. Magistrates anyway have the power to go to the lock-ups in their jurisdiction. Q: Before the ministry or government makes any submission to the UN Human Rights Committee, etc., do they call on the NHRC for any information? Any statistics? DRK: Custodial death statistics are public anyway. A custodial death or rape cannot be hidden, as it has to be investigated. Every death in custody is not due to police torture; some people may hang themselves due to the shame or humiliation. Or they touch a live wire and electrocute themselves. So the genuineness of it has to be investigated, there is a post-mortem; the magistrate has to hold an inquest; so, it cannot be hidden. Q: Is there any serious attempt to tackle the problem? Do they want it to end? DRK: There has to be a speedy and effective criminal justice system. There are many systemic problems. Police do not investigate properly, people do not cooperate with the police, charge sheets are not filed, no proper witnesses can be found, it takes years for a criminal trial. So the people get frustrated with the system, they want to get quick action, and there is immense pressure. The public wants street justice, and the police often get popularity through these encounters if a notorious gangster who is extorting money from people, like in the Bombay underworld, is killed. People supported the ‘genuine’ encounters. Q: What about laws like POTA, which do give police more powers—do you think they are being misused? DRK: POTA [Prevention of Terrorism Act] does not confer any additional powers of investigation. People resort to whatever is necessary. Volumes have been written about the need for reform of the criminal law. Human

Rights organisations alone cannot do anything in this regard unless the criminal justice system changes. Q: POTA allows confessions to police officers. DRR: It should be allowed, with adequate safeguards, of course. We can give the judge certain investigating powers as in the French system, but sometimes the magistrate may be worse than the police. It all depends on the individual’s integrity. The expert committees have made several recommendations, but unless the pressure on the police eases from the courts, media, public, this practice will continue.

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Interview 2 Interview with Vikram Sood (Former Chief, Research and Analysis Wing [RAW]), conducted on August 2008 in New Delhi. Q: Please explain the Indian intelligence agencies and their operations, their history and their roles. What is the difference between various intelligence agencies in this? And what is the crucial difference between intelligence operations and police operations? Vikram Sood (hereafter VS): Quite often the role of India’s two intelligence agencies—the IB [Intelligence Bureau] and RAW—are considered as having common objectives and methods, and it is therefore assumed that personnel are interchangeable. This is not so. The IB is the internal service, operating within the country, also called the Security Service in the UK, while the RAW is the external service operating outside the country and often referred to as the Secret Intelligence Service in the UK. The former operates within and is armed with the law of the country while the latter operates outside the realm of law of the country to which it is assigned. The internal service makes patriots out of ordinary and sometimes extraordinary persons; the latter suborns and makes traitors out of ordinary citizens. The former has the protection of law, the latter does not. The former may not need to learn a new language or adjust to alien customs; the latter is useless

without this ability. The two professions are similar in that they are secret and relate to security and espionage. But, the talent required and the environment is totally different. Foreign intelligence collection is not a police function but more of aptitude, expertise and specialisation. Intelligence collection or intelligence operations do not allow much room for scruples. The business of intelligence is a game nations play, and it is a dirty game best played by men of honour. In India, ‘intelligence’ remains a bad word. This is partly because our leadership lacks a strategic mindset. And, partly it is because, at the time of Independence, intelligence symbolised the ultimate and secret imperial power and oppression that helped its masters hunt Indian nationalists or kept a watch on Indian dissidents. It was a government agency that had been run by the British with Indian employees to serve imperial interests and was therefore viewed as a successor to imperial power. It was therefore seen as something nasty and hateful. Soon after Independence and even till today there is suspicion, fear or contempt about intelligence activities. External and internal intelligence are two essential ingredients of statecraft of any government. Their effectiveness depends on how they are used not just by the government of the day but over a sustained period of time. This in turn depends on whether or not a country and its government have a strategic security concept or is interested merely in keeping crime off the streets, has no regional or other goals and really has no secrets to hide. In such cases, all a country needs is a local criminal investigation department to hunt criminals and solve crime. Human rights issues are important and if we are to survive as a democracy, there has to be a check on forces that can easily run astray. Human rights and democracy were never an issue in the West so long as they were fighting Communism and the US happily tolerated, and even encouraged, all sorts of dictators. It was only in the 1990s that the cause was taken up, post–Berlin Wall. Had terrorism not become such a major internal threat with external linkages, perhaps, the role of RAW would have remained completely unknown to the common man. Q: How would you rate the veracity of intelligence gathered through thirddegree methods? Does the fear of violence or harm lead to confessions that

are untrue? VS: Acute fear of violence or serious harm is more likely than not to result in statements that are untrue, unreliable and misleading. Torture, for eliciting intelligence information, is bad policy, for though it may result in a confession, such a confession would be of doubtful veracity. Sustained and systematic questioning with rigorous use of relevant data is far more reliable and useful. In the case of investigations, scientific methods and skilled interrogation is the best way. There is no substitute for this. Having said that, I’d say that a certain level of discomfort and fear is necessary to elicit information from a suspect. So, ‘torture’ needs to be defined. An exact definition is not possible but I agree that there would be limits to acceptable levels of force as distinct from brutality or even unwarranted force. Then again, circumstances would dictate what acceptable or warranted force is. Pre-emptive intelligence gathering is in a different class from techniques of investigation into a crime that has occurred. RAW, of which I was a part, was concerned only with the first kind, that is, pre-emptive or high security intelligence gathering. In some situations, there is hardly any time for the kind of sustained questioning and investigation that would eventually yield results. If we find a suspect who is the key to an imminent security threat, say of multiple bombings or an assassination, the interrogators, investigator or intelligence officer would naturally be desperate for information and would want to do anything and everything to get at it. Thus, we have to make a choice and cannot always be bound by textbook standards. But if the threat is not either grave or imminent, then time and method must be used for investigation without resort to brutality. Q: Given the inevitable secrecy of pre-emptive intelligence operations, what are the standards for judging whether the occasion warrants the method? More importantly, how is compliance to be ensured? VS: There are many important things here. This is not uni-dimensional. The operation must be purposive and effective. Failure to elicit adequate, accurate information on time leads to complications and is very often the difference between an aborted terrorist operation and a successful one. The harassment of the innocent that might have been prevented leads to further alienation. Skilful interrogation by experts on the subject often leads to

better intelligence. For example, when Masood Azhar2 was first caught, it was revealed that he had been to Kenya. Since no attempt was made to probe his activities there, we have no idea whether he had anything to do with the Kenyan bombings that later happened. We still do not know and we may never know but the lapse was a serious one. Actually, effective and competent pre-emptive intelligence can be a big factor in preventing abuse of police power, which is rampant after the event, so to speak. Then, the intelligence operative is interested in the real stuff. So if a lead is useless, he will leave it. If a lead is passed on to local levels of policing, they must carry it forward. Now, here is where the subtlety of touch is crucial. By training and the requirement of the job, RAW operatives are not required to be taught techniques of torture. It is more important to resort to subtler and more patient and time-consuming methods of eliciting intelligence. There may be occasion to use blackmail as a weapon for this, but that is not the same thing as physical torture. Q: Sorry to interrupt, but would you say that the threat to ‘rape the suspect’s wife, or sister or kill anyone dear to them’, which is a common description of those who live to tell the tale, is blackmail or torture? It is both blackmail and mental torture. That is why I say the term must be defined. Is sleep deprivation torture? Exhaustion is a condition in which people speak out. Some would argue that this is a relatively less brutal method, to be resorted to in dire need. Let me add that the terrorist uses this technique very often, and very often he is the first one to use this. Q: So, to come back to ensuring standards… VS: People differ in susceptibility; so, one must gauge the efficacy of means of interrogation in each context. Then, terror suspects are trained to withstand interrogation. This is a dirty game where tactics of terror and counter-terror sometimes seem to mirror each other. But power over the body and mind of a suspect in your control is immense. That power comes with a responsibility. Since the situation will not permit outside scrutiny, there must be in-house mechanisms. These should, to my mind, include the following:

1. A manual of norms for intelligence officials in methods of interrogation and information gathering. 2. A CCTV [closed-circuit television] covering each session, meant strictly for internal viewing. 3. A gradation of officials with corresponding limits over their powers of questioning and use of force. These are ideals but may be removed from practice. And, many will find these impracticable. Q: Should this manual be accessible to all for reference? VS: No, for then terror operatives will train themselves (as I said before, this is a close war). I emphasise the difference between the pre-emptive tactics in matters of threat to national security or terrorist threats. In lesser threats or crime detection after its commission, I would unhesitatingly rule out any brutality or strong pressure, as it would neither be efficacious nor proper. And, in all situations there must be in place systems of accountability suited to the circumstances. Q: You are clear that there must be accountability at all events, and that policing must be civilised by method rather than brutality, integrity rather than excess? VS: Yes, for I believe that this is necessary for an orderly society. This is also in the ultimate interest of security. Q: How do you view policing standards in India? Do security advisors and policymakers recognise that policing in India has a marked degree of excesses? Do crime statistics and the criminal justice system engage their attention? VS: Policing in India is bad and has only deteriorated with the passage of time. To give one example, the simple and useful system of the beat constable has now almost vanished. Policemen hardly know why they are interrogating a suspect and what they are looking for. Their methods are crude and no one has faith in them. No one from the public will approach the police if they can help it. They’d rather leave an accident victim to his

death than inform the police. Everyone recognises this. However, a word of sympathy for the police force is necessary. They are usually under-staffed, lack equipment, are improperly trained and have not acquired the latest skills or knowledge. In the West, the number of policemen to the population is a much better ratio than in India. As a result, just as there is an early resort to lathi-charge and shootings in India, there is also a resort to violence in interrogation. It is a systemic problem. As for engaging the attention of policymakers, well, this issue is chiefly the concern of the MHA and the IB [Intelligence Bureau]. But it seems to me that attention to this has at best been sporadic. When a glaring issue hits the headlines there is a great deal of noise and then the issue dies its natural death. In this country, administrative lapses fast become turf battles, ruling out a meaningful reckoning. There is a decided lack of skill and want of integrity in investigation. I would say that this is a matter demanding priority attention. Q: Do administrators by and large regard human rights as a waste of time, impractical or euphemistic support for crime and extremism? Do you personally believe that the human rights discourse is inimical to national security? VS: I must admit that there is a section of administrators who think that way. But I am not of their number. Adherence to norms is essential and, in fact, critical to all security. But human rights are not a selective concept. Human rights are for all and have nothing to do with personal or ideological affiliation. The forces battling insurgents and the men fighting organised crime also have their human rights. Public at large has a right to be safe from terrorists. We cannot consider the human rights of terrorists in isolation. If you recognise that there is universality to human rights, then certainly you’d call for accountability in the system. But your assessment will also take into account the odds against which these men fight and the difficulties they face. So, a human rights ideology cannot be a strait jacket. If villagers harbour terrorists, there will be firing. People around may get injured or die. This situation is unlike that of an extra-judicial killing where a person dies in an

encounter on the presumption that he will not be convicted by the courts, or for any other purpose. Q: But what do you say to the attacks on non-combatants, rapes, maiming of children? Would you advocate a carte blanche to forces on the pretext of fighting insurgency? VS: Remember that it is a known tactic of terrorists to use women and children as shields. I must say that in tackling insurgency and organised terror there could be serious human rights violations. Some of this is inevitable. Having said that, let me add the following: I do believe that attacking or harassing innocent people worsens the situation and breeds alienation. Just as a soldier at the front cannot plead fear of bullets though this fear is understandable in ordinary folk, an agent of the state cannot plead revenge, anger or crusading nationalism as an excuse for wanton violence. A carte blanche to the forces is necessary as they bear the brunt of insurgent brutality. But since the fight is for more than just territory, an ex post facto scrutiny and evaluation of state action or state-sponsored violence is both necessary and desirable. Q: Would you see an inquiry or action against the state forces as an assault on their morale? Also, is attacking the morale of a community seen as insurgent by extra-combatant means a strategy of counter-insurgency? VS: Attacking the morale of insurgents is a part of counter-insurgency tactics the world over. But it is also important to prevent further alienation and also start confidence building measures [CBM]. But if I were asked to prioritise, I’d say, bring down the level of violence to manageable levels and then start the CBMs. I do not believe that ensuring accountability is damaging to the morale of the forces. What is damaging to their morale is the pressure to deliver quickly and the constant media glare. In ensuring accountability, however, one principle is an absolute must. Stand by the officer in public but take effective action against him through internal disciplinary proceedings. This works very well. The British have followed this principle very well. An officer is publicly defended but reprimanded in private. In this country the reverse happens, public

admonition and private rewards breeding discontent and lowering morale all around. Q: One notices a clear divide in your thinking on the strategy in tackling terrorism and insurgency on the one side and ordinary crime detection on the other. How much of this is rational or justified as the two are so entrenched? VS: The two are linked but distinct. Strategic intelligence collection cannot be naïve. There is organised, sponsored terror from overseas. It is the job of the intelligence operative to provide strategic cover and do so in time. It is a war that is being fought physically but has to be won strategically. There can be no let-up for there is much at stake. The intelligence operative is trained to be subtler and aims at the truth or truth-related links. The external intelligence operative may not always be in full control of his agent, whom he may not be meeting at times. So torture and stuff like that remains irrelevant. This should be protection enough but I have also outlined feasible checks to ensure accountability. Crime detection or even investigation into terror crimes after the alleged offender is in custody of the interrogator, who can afford to be patient, should follow every norm. Then, normally, there is no excuse for short cuts, which, as I said, are counter-productive besides violating the rule of law. But as I have mentioned earlier, there will always be occasions and events that need urgent confirmation of information available or simply new information that has no corroboration but still has to be acted upon. The distinction is between an intelligence operative collecting strategic intelligence, which may be verifiable and may not be legally foolproof, and an interrogator collecting tactical intelligence/verifiable information that is legally acceptable. Q: To what extent is the need for due process seen as an impediment to law and order? Are encounter killings and safe houses a reaction to this? VS: Well, the perception that a sure and dangerous criminal is likely to escape punishment by exploiting legal loopholes or that at any rate the process will take so long that the perception of justice as delayed/ephemeral may tempt the police force to resort to these tactics. But then this may well become a habit and a means for settling every kind of score. Therefore, it

cannot be condoned. I would have thought that every encounter death or custodial killing is probed by inquest or judicial inquiry. It certainly should be that way. But legal reform is necessary, too. Very necessary. Q: You spoke earlier of pressure to deliver and media glare as inimical to the morale of the law enforcement officials and the forces. Are these forces themselves not greedy for media attention? VS: I can only say that this kind of engagement with the media or trial by the media should be stopped and is very, very unhealthy. Q: Would you agree that there is a non-purposive revelling in violence by the police and armed forces? VS: In situations of insurgency, the police or every security force gets brutal. Let’s be real about this. This is also part of the insurgent’s tactics. They merely reflect each other. Q: State excesses are co-extensive with state power. Brutality in police lockups in simple cases, killings in ‘encounters’, targeting of the innocent and the peripheral in counter-terror operations are different facets of excesses. Would you recognise that such excesses damage the polity at an exponential rate? If we hedge accountability by using words like ‘impracticable’ or ‘unavoidable’, is this not denial? VS: There is brutality on both sides. As I have said elsewhere, terrorists do not and cannot afford to behave according to any set norms or rules of warfare. Killing or maiming innocents, carrying out massacres, taking hostages and so on are now part of the terrorists’ armoury. How do you justify this? I am not defending lock-up brutality. State brutality is costly for society. The reality also is that if the terrorist is treated humanely he thinks he has won. How do you draw a line? Terrorists do not accept laws and rules. Governments are bound by them. This is the essence of asymmetric warfare. Q: All crimes may have some explanation, but standards are still set to punish them. When you see that insurgency feeds on state brutality, is it not imperative that the state has some standards to curb this? Can state brutality be viewed only as a reaction to the ‘other’, be it crime or terror? Is the Indian state to mirror the archetypical terrorist like a child

complaining that the other kid hit him first? Granting that a state would preserve itself and defend itself, the question of legitimacy remains. VS: True. Some rights are not negotiable in normal circumstances. It is different in terrorist situations where the battle is asymmetric. Regarding setting standards, I quote from Walter Laqueur’s essay ‘The Terrorism to Come’: The problem will not arise if the terrorist group is small and not very dangerous. In this case normal legal procedures will be sufficient to deal with the problem (but even this is not quite certain once weapons of mass destruction become more readily available). Nor will the issue of shedding legal restraints arise if the issues at stake are of marginal importance; if, in other words, no core interests of the governments are concerned. If, on the other hand, the very survival of a society is at stake, it is most unlikely that governments will be impeded in their defence by laws and norms belonging to a bygone (and more humane) age.3 It is often argued that such action is counterproductive because terrorism cannot be defeated by weapons alone, but is a struggle for the hearts and minds. If only it were that easy. It is not the terrorists’ ideas that cause the damage but their weapons. Laqueur argues: …governments should launch an anti-terrorist campaign only if they are able and willing to apply massive force if need be. Second, terrorists have to ask themselves whether it is in their own best interest to cross the line between nuisance operations and attacks that threaten the vital interests of their enemies and will inevitably lead to massive counterblows. Terrorists want total war—not in the sense that they will or could mobilise unlimited resources; in this respect their possibilities are limited. But they want their attacks to be unfettered by laws, norms, regulations and conventions. In the terrorist conception of warfare there is no room for the Red Cross.

What is happening in India today is beyond the stage of nuisance operations; our core interests are being attacked. Terrorists have been defeated by going after them, not by offering them better livelihood and opportunities or whatever. This is the hard and unfortunate truth. Q: Accountability of normal standards or textbook standards not possible. Fine. But textbooks can still be written for different stages, classes and situations. Should the state not abide by that or should the terrorist lead the way in that, too? VS: Accountability along with more stringent laws to deal with terrorism. It is generally accepted that to deal with terrorism considerably more stringent laws are required. But without accountability and without general acceptance of the need for these laws, it will make them counterproductive. Such laws will be acceptable only when the learning process of the dangers of terrorism in an age of lethal attacks is more clearly understood. Continued attacks will make such demands for effective countermeasures louder. Today small groups have the capacity to cause great damage and destruction. An important component of terrorism is to create fear, alienation and distrust. And violence is a favoured weapon. It feeds on brutality. Marriott and Delhi are the most recent examples. The Muslim extremists have quoted the Koran to justify the killing of innocent Muslims if the larger objective of killing infidels is achieved. In fact, such terrorists rely on retaliation to further their objectives.

*****

Interview 3 Interview with Dr Alok Sarin, Psychiatrist Q: Could you explain how a psychiatrist or a psychologist would look at the problem of torture? How would custodial torture differ from other forms of trauma due to physical violence?

Alok Sarin (hereafter AS): A psychiatrist would look at both the perpetrators and the victim, unlike, say, a lawyer. In a custodial situation other than the purely physical aspect there is the added issue of extreme powerlessness and helplessness that the victim experiences. After the experience, there are unresolved issues, because the residues of that experience remain. The experience he has to come to terms with. How one copes depends on a lot of other factors. One view is to help victims to be able to ‘ventilate’ or debrief after the experience, talk about it, but it is a grey zone. One is not sure if it works with every individual. The issue of Post Traumatic Stress Disorder [PTSD] has become extremely controversial and politicised. It also depends on the person herself; the experience differs in complexity—some people are more prone to trauma of this kind, sometimes reactions are extreme, exaggerated, at other times delayed. Sometimes other external factors can prolong or intensify the impact. Q: Could you talk about the perpetrator’s perspective? AS: One has to look at how ‘difference’ is created between people, sometimes between communities. When torture takes place there is dehumanisation of the victim by the perpetrator, an impersonality to the encounter. In an extreme situation, immense brutality becomes possible, where ordinary people can do things that we would not otherwise contemplate. The dehumanisation process is exaggerated to an extreme. Let me illustrate with an everyday example what I mean by this disconnection. One of the classic responses when a woman is harassed on a bus is to turn around and ask the man: Kya tumhare ghar pe maa behen nahi hai? [Don’t you have mothers or sisters at home?] That is a moment where the perpetrator is being asked by the woman to establish a connection, to see her as one of his own, someone with familial connections like his, rather than an ‘other’ or different. Not everyone will be dehumanised in the same way. Like every victim, every perpetrator’s experience is different. Q: Are there any institutional factors that one can identify? AS: Yes, one has seen that it occurs frequently in closed groups, in highly regimented, hierarchical set-ups—the army, the police, even boarding schools, medical colleges. Every group is based on difference from others

outside the group. Differentiation and the other-ing process is crucial to the creation of a common identity, but in some kinds of regimented, closed setups this can become exaggerated. Q: From the perspective of resolution of these issues, at a societal level what could be a mechanism? AS: Well, of course, the Truth and Reconciliation Commission is very well known. But there have been many such less-known processes. For example, in Indonesia, there has been a process of attempting to ‘de-radicalise’ Islamic youth, to draw them away from militant ideologies. To look at why radicalisation is taking place; it happens because of economic factors, indoctrination. This process has worked well in Indonesia.4 In fact, I attended a recent conference where there were people from law enforcement and security agencies. They saw terrorism as a problem in itself, and the solution was simply to have more stringent laws. But there were others, criminologists, psychologists, who were of the view that one has to look at what has gone before and what comes after. More stringent legislation is not a solution. Look at al-Qaeda; it is an ideology, a shadowy entity, its leadership is unknown, but it is the ideology which travels in mutated, local forms. Ideas have to be countered by ideas, not by force. Counter-intelligence, anti-terror laws are like trying to stamp out a bush fire. You send up sparks that cause the fire to spread, unless you do something to tackle the source. Q: There is a Supreme Court judgment which says that it is okay to beat the rape victim in order to shake her out of psychosis and give testimony against the accused. AS: Of course, such judgments are very problematic and must be decried. But what is more worrying is the lack of awareness. Among the police, in the legal system there is little attention paid to these issues. But things are improving; there is now a realisation that forensic psychiatry is an important discipline for the law. An article by Justice A.K. Ganguly, which appeared in the Times of India, talks about the importance of psychiatric training.5 There was also a recent speech delivered by a Supreme Court judge at a conference which talked about the need for awareness of these issues. There are also various other initiatives. A team of doctors from NIMHANS [National Institute of Mental Health and

Neurological Sciences) in Bangalore headed by Dr Prabha Chandra came to Delhi for police training. Q: What do you feel about techniques like ‘brain mapping’ and narcoanalysis, which are being increasingly employed by the criminal justice system? AS: These techniques are extremely problematic; their scientific basis is very questionable. They are not accepted as evidence in most legal systems. The law requires a different kind of fact, hard facts which have to be proved in various ways. It is very wrong to use these techniques to establish such legal facts, and they are being used to victimise people. _________________ 1

See ‘I Want To Be Born as a Better Person’, Indian Express, 20 July 2008, available at http://www.indianexpress.com/news/-i-want-to-be-born-as-a-better-person-/337318/0 (last accessed on 30 November 2012). 2

One of the detainees handed over by India after the Kandahar hijacking of December 1999.

3

Walter Laqueur, ‘The Terrorism to Come’, Policy Review, no. 126 (August 2004).

4

De-radicalisation is problematic and resonant of Nazi ‘de-lousing’. This view of Dr Sarin has been seriously challenged by many. 5

‘Chief Justice Ganguly Asks for Psychiatry Training for Judges’, Times of India, 17 August 2008, available at http://articles.timesofindia.indiatimes.com/2008-08-17/chennai/27916046_1_childsexual-abuse-judges-madras-high-court (last accessed on 30 November 2012).

9 Six Case Studies The case studies in this chapter are based mainly on personal interviews but also draw from secondary sources. Their presentation varies, with the interview format being retained in some for the power of the personal and subjective voice, while a first- or third-person narrative is used for the others. The case studies here instantiate two basic aims of this study. One, they exemplify the manner in which discursive and material practices of torture permeate various institutional frameworks and settings. Our list includes the police, the magistracy, the higher judiciary, the medical and forensic establishment, and the intelligence services. Two, the studies illustrate the ways in which torture erases difference and reduces the body to pure pain and humiliation—in a torture chamber, a university professor is no better off than a petty thief. The case studies are intended to highlight the peculiarly specific and locally embedded nature of power and powerlessness. They illustrate the importance of seeing torture as situated within local power hierarchies, informed by hegemonic discourses on caste, class, gender, sexuality, nationalistic and religious other-ing. Unless we understand torture as a social and cultural practice that implicates all of us —because it is constituted by, and in turn constitutes, our ways of being human in this world—we cannot begin to speak truth to its power.

Case Study 1: Prof. S.A.R. Geelani Geelani speaks of the experience of being a terror suspect in a high-profile terror investigation. S.A.R. Geelani is a professor of Arabic at the University of Delhi. He has been a supporter of the movement for Kashmiri self-determination. He was an accused in the bombing of India’s Parliament in December 2001, and was sentenced to death on extremely flimsy evidence by the Sessions Court on charges of abetting terrorism. The Delhi High Court acquitted him of all charges. This case study has been retained in an interview format to allow the reader a sense of the professor’s subjective recollections. The interview illustrates the routine failures at every level of the criminal justice system, from illegal detention by the police, the magistrate’s refusal to take cognizance of specific complaints of torture, to the medical fraternity’s collusion with police and the routine maltreatment of prisoners in jails. It also highlights the media’s complicity with police and state agencies when terrorism is alleged. Finally, it disturbingly draws attention to the secret world of undercover operatives and intelligence agencies and how ideologies of the nation and the Islamic other operate to distort the rules of a functioning democracy. This interview encapsulates much of what this report has attempted to study—torture as a public secret. An interview with S.A.R. Geelani took place on 20 July 2008 at his residence, 185-A, Gali No. 3, Zakir Nagar, by Shrimoyee Nandini Ghosh and Nitya Ramakrishnan. G: In my case the torture was pointed out in the arguments. They said this is routine, what can we do about it…. If the Supreme Court can’t do anything about it, who can? What do they mean, what can we do? The magistrate knew about the illegal detention of my wife and children. And, of course, the police establishment endorses it. After every encounter, the cops involved get a promotion. Rajbir [the Assistant Commissioner of Police (ACP) investigating the Parliament bombing] went to the media saying he had cracked the case in a week and he was promoted too. Q: Of course, the High Court did say that the evidence against you was fabricated by the police but the Supreme Court did not even go into the

issue. If we could just go back to the beginning…. You were arrested when? 15 December 2001? G: No, no … they picked me up on 14th itself, from a bus, though the police said that they picked me up on the 15th. They just lie… Q: Then they took you to a police station. Which one? G: [laughs] No, no police station. I was taken to a farm house in Rajokri Road near Gurgaon. There are all these fancy farm houses on that road. It was one of those … I didn’t know then of course. I was blindfolded during the drive but later, quite recently actually, I was invited to a conference on Kashmir, a big conference with people from Pakistan [and] India. It was at some five-star resort—Ashoka Country Resort. When I saw the invitation, I remembered, when they had finished their first round of interrogation, they had ordered some tea, on the telephone. They let me have some tea, and a cigarette. The tea came from outside, and the sugar satchet had Ashoka Country Resort printed on it. So it was near this resort. It was strange going back. Q: So you went back there? G: Yes, I stayed there for four days for the conference. It’s a posh five-star resort. The farm house I was kept in was nearby. It was an IB [Intelligence Bureau] safehouse. Q: Safehouse? G: They have these places, lots of them. They have a few flats in Vasant Kunj—some flats, some of these farmhouses. They keep people there … for months. They pick them up; kidnap them from Nepal, from Pakistan. They airlifted some people from Afghanistan. Then you know before 26 January, or 15 August or when some attack happens, they’ll produce them saying they’ve unearthed a conspiracy, they’ve cracked a case. Q: One hears accounts of several encounters, like that Ansal Plaza encounter. G: I have met people in jail … no, no, actually in judicial lock-up. I was always in solitary [confinement] in jail. In the judicial lock-up I’ve met people. You know the Calcutta US consulate attack [January 2002]? Once in the judicial lock-up, I met somebody; he said, ‘Salaam’ to me, and then

he said, ‘Shukriya’, and I was surprised. This man didn’t even know me, so I asked him, ‘Why?’ And he told me they’d been in custody for three months before the Parliament attack. ‘They said they were going to put us up for that, that’s death sentence for sure, but they’ve decided to frame you in instead.’ And, then there’s the case of the Sudanese student, PhD student from Jaipur. He was framed as the first al-Qaeda person arrested in India. I met him once in judicial lock-up. They had a conspiracy theory, a mechanic from Bihar who was the bomb expert, and a maulana-type of person, a Sufi you know from UP. They said he was their spiritual leader. So, the student told me that he had been in custody for months, 3–4 months. He had a phone number of the safehouse where they had detained him. After he was released, he was acquitted in the case; he got in touch with me. I was in Srinagar then. I said I’m coming back to Delhi in 2–3 days, let’s meet then. But that night I got a phone call. He said, ‘They’re deporting me tonight, at 1 a.m. because I had contacted you on the phone!’ Q: Can we go back a bit to your arrest… G: I was picked up from the bus, as I said. What happened was [that] I was sitting in an aisle seat, and a man came and asked me to move in. I said I was getting off at the next stop, so I told him to take the [seat] inside. But he refused; then he remained standing next to me. He told me he was a cop and asked me to accompany him, his senior officers wanted to meet me. Meanwhile the bus slowed down at the signal and perhaps he thought I would try to escape so he started shouting. When he started shouting, asking the bus to stop, he had a gun; there was a commotion in the bus. I thought I should go with him, without a fuss. The bus had reached the stop, and we got off. There was a Maruti 800 waiting. They dumped me in the Maruti. There were five people in the car—the driver, then Mohan Chand Sharma in the front next to him, Rajbir and another man at the back, and me in the middle sandwiched. It was a squeeze! There were two people in the back, I was in between them. They had a gun to my head on both sides. I thought it was a robbery. I’d been to the bank. I had quite a lot of cash with me. I had 25,000 in cash. I thought they had found out about that, that it was a gang. Then they emptied my pockets. Found the hearing aid and the cash. Then they drove to Tis Hazari, to the Inter-State Bus Stop. The arrest

memo of course doesn’t mention the 25,000. It says only 700. I still haven’t got my money back [laughs]. They were abusing me. They said they knew who I was, a professor. I thought I was a big man, they would show me. But I still wasn’t sure; I thought they were a gang of some sort. At Tis Hazari they took money from my wallet [laughs] and bought some snacks. When they arrested me, I had a hearing aid in my pocket for my mother-in-law in Kashmir. Rajbir got off and was speaking on the phone. Then we started moving again. I still wasn’t sure what was going on entirely. I didn’t know who they were. Then they took the car to Raj Ghat. Rajbir got off again and was on the phone. They were still holding guns to my head. Oh yes, I remember when I realised they were cops, that it was serious. At some point on the road, a traffic cop asked them to stop at an intersection and he [Rajbir] got furious, abused them, and brandished his gun at them.… the traffic constable was so surprised, he didn’t know what was happening! Then one of the others said ‘Don’t you know him? He’s ACP Rajbir Singh.’ That’s when I realised. At Raj Ghat they blindfolded me, and we drove for a long time …. more than an hour definitely. Then we stopped. They pushed me out. When they opened the blindfold it was on the verandah of a big bungalow with a huge garden [and] very high walls. You couldn’t hear any traffic noise, it was that huge. There were lots of people there, officials. I still didn’t know who they were exactly. I asked for a cigarette to smoke. Q: Can you describe this safehouse? G: It was a posh farm house, all equipped with instruments for torture [laughs]. I didn’t know who all were there at first of course, but there were senior officials. Rajbir was there, and Ashok Chand [Deputy Commissioner of Police, Delhi] and he was being so deferential to the others, so they were top officials. When I asked for a cigarette, one of them said that in all ‘three teams’, meaning RAW, IB and police, no one smokes. That’s when I realised it was very, very serious—this was something big. Then, when the beating started it all became clear, the Parliament blast angle. They were beating me with sticks, bamboo, iron rods. Two people, one from either side. There was a pause; they took a break but only to strip me. I fell down. Then it started again. In this session they started asking the names of who

all died in the Parliament bombing. I said I did not know. They kept asking me that, abusing Muslims. The seniors were watching quietly, giving instructions occasionally. There was a lot of verbal abuse—‘Mussalman yeh, Mussalman woh’. Then the next session started. I was tied up with a rope. And a heavy, very heavy, iron rod, was placed between my hands, and hands tied to the rod. The rod was put on a ledge in the wall, so I was suspended. And then one man got on a tall stool and started on me. See, they had all the instruments, they were fully prepared. Started hitting the soles of my feet, I remember it was very, very cold. December, it was a very cold year. And they continued to hit me like that till I was barely conscious. Then they dragged me down. They took a break, till I regained consciousness a little, then the second round started. I couldn’t stand by this time and they asked me to run and there were two men on either side pulling me, dragging me, forcing me to run. My soles were in such pain I could hardly stand. Then there were other things, pulling out my genital hair with pliers. By this time they were saying ‘Confess you have done it.’ They were abusing me, shouting at me saying you’ve done it. ‘We know you’re behind it. Confess you got it done.’ They put me on an ice slab. They had that, too, in the house; I don’t know where it came from. This went on till it was dark, it was night. Then they said, ‘[If] you won’t confess, we’ll pick up your family. We’ll rape your wife; we’ll kill your kids.’ I kept saying why target my family. It’s a personal grudge against me. One of them made a call to have my family picked up, I don’t know if he did it really or whether it was just to scare me. Q: So at that time, what kept you from agreeing to what they were saying? G: I don’t know really…. I was just thinking, they will do whatever they want anyway, I have to be strong and resist this. You see I had my politics from the start, and also I knew they can use this, whatever I say. I kept trying to talk to them, of going through it, though it was no use, I kept talking, so I would say you are the police, you people are yourselves breaking the law. They ordered a cup of tea after the first round, on the phone; they were tired from the work [laughs]. That’s when I saw the sugar packet. I was still naked, I couldn’t stand, and I was sprawled on the floor. They must have picked up Afshan [co-accused in the case] by that time. I

overheard a phone conversation about picking her up. They had been asking me their [co-accused Afshan’s and Shaukat’s] home phone number. I kept saying, ‘I don’t know. I don’t know.’ There was a Sardar from the IB; a tall, hefty fellow. He stood on my feet, on my bleeding toes and ankles, with his boots; my wrists were bleeding also from being tied. He kept questioning me for a long time, about Afshan. ‘Yeh kudi kaha rahti hai? Jalandhar ki hai? Tumne iski shaadi Mussalman se kaise karvaya?’ Over and over the same thing. I was in a bad state. They thought I may die. I think there was another round after that, I can’t remember. The news came that Afshan had been found and captured. They dumped me in another car. Then I was brought to the Lodhi Colony—they have these special cells, for interrogation. There is a police station, and then there is a set of cells, that is the usual place they bring people [suspected of terrorismrelated offences]. It’s the IB office, in the same compound as the police station. It was the middle of the night by that time. I was in handcuffs and shackles; they kept me shackled always, throughout the time I was in custody. But they had given back my clothes. They had taken in Arifa [my wife] and children by the time; I knew they were there. My son was very small, not even in school at the time, maybe three or four years old. I said, ‘Don’t show me to the family. My son will have a bad impression of you people, of this country.’ There was this chap Ashok [one of the guards], he was the most uncouth of the lot, very abusive. He said, ‘Don’t act like a big philosopher, we can do this, we can do that [to your wife and kids]. Stop talking bakwas [rubbish]. Bhagat Singh ho jaayenge’ [You will become a martyr, that is, be killed]. You see, they are victims of their own stories, they believe that image which they create. Some of them know, of course, that it was a false case, but especially lower down the police hierarchy, they don’t know the bigger picture; they just believe whatever they are told from the top. Everybody believes it, so it’s not surprising. They are very frightened of us, actually frightened [laughs]. I was taken to see Arifa; she had been told to tell me to confess. They had told her, ‘Your husband is in jail, we’ll kill you, we’ll kill the children. You better tell him to come clean.’ She was, of course, scared for the children, but they didn’t physically hurt her. They just let me speak to her

for a few minutes and then they took her away, to another cell. They kept them in custody for two days and then released them. I still don’t know why they decided to release her. Arif, my son, he only was three-and-a-half years and they brought him to see me in that state, I was bleeding, I could hardly stand. He still remembers it. I know, because recently some relatives were discussing something about visiting someone in jail—what to take—just a casual conversation. And Arif just jumped in and said, ‘I know what they get to sleep on—they will get one thick, itchy black woollen blanket.’ He remembers it from the lock-up. Early next morning at dawn, they let me have a bath. That was the first time, since the arrest, they let me use the toilet. Even then there were a team of commandos with their rifles pointed at me; they wanted to come inside the bathroom. I said, ‘What is this, at least let me have a bath, let me go to the toilet.’ So then they stood outside the door, with their guns [laughs]. And two policemen were in the bathroom. You see, they really believe their own image. I suppose it’s also a way of breaking someone down, to humiliate them. They had shown me three sacks of books and papers they had seized from my house. They said, ‘Yeh sab tumhare ghar se mila hai.’ September 11 had just happened; there was a Time magazine with the twin towers on the cover. They were pointing to that, being abusive. I got really angry about that, I said, ‘Go and search, it will be there in your Prime Minister’s house, why don’t you arrest him?’ They were quite angry, they said the usual ‘Mussalman this and that’, so I said, ‘Abdul Kalaam ke ghar jaayo’— he was the President then—‘he’s a Muslim too.’ They were furious; they started throwing some garbage at me, whatever they could find, lying on the ground. That was quite usual—the previous day one of them had thrown some tea at me, another time one of them threw dal at me while we were eating. That was the way of humiliating me. So, after my shower they took me to a waiting Gypsy. I had known that Afzal and Shaukat were in custody, but this was the first time I saw them. Shaukat kept talking to the police, he was saying just tell me what to say. I told him, don’t say anything—you see I knew about POTO [Prevention of Terrorism Ordinance]—I knew that they could use our [confessional] statements.

Q: Had Shaukat and Afzal been tortured also? G: Yes, the previous night. They were both together, and they had been tortured. But they could walk; at the time I still had to be supported by two policemen. In the Gypsy there was a stink, like stale urine. I asked, ‘What is this smell?’ One of the cops pointed to Shaukat and Afzal and said, ‘Isko nehlana’ [make him have a bath]. The previous night, the police had urinated in their mouths, and they were still in the same clothes; the smell was coming from them. That was not done to me. I think they were planning to, once I had asked for some water during the night and they were joking about it, but finally they didn’t do it. Because there were two of them, there had been more humiliation. They had made them pose without their clothes, as if they were having anal sex. They had been videographed also. Q: But this was before the Abu Ghraib pictures? G: Yes, but it must be common. We were taken to Safdarjung Hospital. It was early morning, so it was deserted, and they had evacuated the whole place. Commandos gheraoed the hospital the moment we reached, and we were taken inside. There was only one doctor. The policeman filled up my medical form, I protested to the doctor. But he just said, ‘There is a lot of pressure.’ So, the medical report said: ‘BP, Pulse everything normal, no marks of injuries.’ I could not even stand on my own. That day [16 December] was a Sunday; we were taken to Mandir Marg, to a flat. It was the magistrate’s house. ACP Rajbir went inside and spoke to her. We were waiting outside. Then the magistrate came out. She asked us, ‘Do you have anything to say?’ I asked her, ‘What are we being arrested for?’ I showed her my feet. I told her that they have kidnapped my wife and children and that they are in the police station. But her order does not record anything. Q: Her house is in Mandir Marg? But the remand order said Gurgaon? G: No, no. It was definitely in Mandir Marg. Q: I remember that this was used during the trial, the discrepancy in the times because it was not possible to go from Delhi to Gurgaon between the

alleged time of arrest and the production. But why did they lie? It weakens their case. G: They tell so many lies they get caught in their own web. I remember that it said Gurgaon, but I don’t know why. Q: Was Afshan also there? G: Yes, I think, yes, she was there. All four of us were produced. Then we were taken back to Lodhi Colony. During the daytime, they put Shaukat, me and Afzal in the same cell for some time, but then they separated us. I kept telling them not to agree to anything, but Shaukat was talking to them all the time. He had faith that he could come to the court [the trial] and the judge would acquit him. He felt that if he agreed, the police would release him, and they were also telling him that. But I tried to explain about POTO. Afshan was there in lock-up as well; she was crying loudly—we could hear her. She was wailing loudly, she was very disturbed. She kept asking to be allowed to speak to me. She called me ‘Rehman bhai’, but they wouldn’t let her. The next day we were separated. I was blindfolded, and taken in a car to the BSF [Border Security Force] headquarters. I didn’t know where they were taking me, but it was indicated on the crockery that they ate on, and served tea in. At lunchtime, on 16 December 2001, same day, they allowed me to see Arifa. That was on the second day. They would keep taking me to various places, using different methods. Like with Afzal and Shaukat they would be nice to them, try to act like they were their friends. That was the day that they finally released Arifa and the children. The same day they produced us in front of the media. In the videos you can still see that I am leaning on the policeman, I can’t stand. But nobody reported it. I was trying to shout that I was being tortured, that they had kidnapped my wife, you can see me on the tape but no one reported it. Q: Yes, there was the whole incident about Rajbir telling Afzal not to say something on camera [about Geelani not being involved]. G: They knew how to deal with all of us, with Shaukat and Afzal it was a good cop routine, they tortured them a lot that first night but after that they kept saying, ‘tumko chhod denge’. They were ready to sign anything. Shaukat thought they would implicate Afzal and leave him; they asked him

to implicate me as well, ‘yeh marega’, you will also die in the process. Afzal’s brother Hilal was still in their custody in Kashmir. They were good at playing one against the other. They used different methods—they urinated in their mouths, they threw dal on my face—can you imagine anyone doing this to another human? Q: I’m curious about one thing—why did they not frame a false confession against you as well? When they falsified the confessions against the others? G: On 16 December 2001, before they released Arifa, they took signatures on a few sheets of paper. I refused to sign any more blank papers after that so that was all they had against me. They only made it a disclosure statement, but not a confession. And there was a memo of recovery as well. But a confession has to be signed on every page. The others thought if they agree to everything, it will be okay. They will release them, or at least the court will acquit, because the whole case was so flimsy, so obviously fabricated. On 17 December 2001, it was Id; Bilal brought food from home— biryani, and other things. Afzal and Shaukat were allowed to eat with me. Again, I warned them, but Shaukat said, ‘I will say whatever they want…. I can’t bear it.’ After the third or fourth day the physical torture stopped, but the mental, psychological humiliation continued. Outside my cell there would be policemen; they would be abusing, talking about Muslims. Till late in the night, or at odd hours they would wake me up and say some officer has come, he wants to speak to you. Then the interrogation session would start and go on. Sometimes there would be as many as 14 or 15 officers, sitting around me on chairs asking the same questions again and again and then abusing or hitting me. I would be taken to different rooms or chambers. Some were sound-proofed. In the cell I was in handcuffs 24 hours. Three feet wide, but very deep; you couldn’t see the end of it. [There were] three of us in one cell on one night. There was one session where a Sikh policeman tortured me about the marriage between Afshan and Shaukat. One night, late at night, around 2 a.m., the policemen outside my cell were talking very loudly, saying all sorts of things about Muslims and Kashmir. One was very abusive—he was saying, ‘I’d never seen a Muslim until I came to Delhi. We killed them off in our area a long time ago.’ I

couldn’t sleep, so I clanked my chains to get their attention, and asked to go to the toilet. They would keep me in shackles, there was a padlock on the cell door, and another pair of handcuffs securing the door as well [smiles]. So when I came back from the bathroom, I told Ashok Chand, ‘You have a lot of misunderstandings about Muslims and Kashmir. When I’m released, I’ll come to your house and I want to have a chat with you.’ I meant it genuinely, but he got really scared. He started shaking, saying, ‘No, no. Please, we don’t mean any harm.’ He was really scared, thinking I’m threatening him! So you see how it works, they really believe it. Q: Did you always believe that you would be acquitted? G: I was scared of course; I was isolated. Shaukat and Afzal at least had each other for company. But I always believed that I would be acquitted in the end. But there were many times when I was depressed. In jail they kept me in a dark cell; I couldn’t tell if it was day or night. They would hang a dark blanket on the side of the cell with the bars, so there was no light. There was just one small bulb, which hardly gave any light. No books, no way of reading. Later they removed the blanket, so it was a little better. No one was allowed to help me; once another Kashmiri prisoner sent a plastic cup, a glass and bucket for me and he was punished for that. They would occasionally send people to talk to me, threaten me or question me for information. They would have spy cameras where I met my family; it was not in the general area where the other prisoners met their relatives. There were attempts on my life as well; the jail authorities were getting instructions from outside. The authorities have their way of breaking you, or getting to you even in jail. Q: Is there training, do you think, in such methods? G: There is usually a special group of policemen who carry out the actual torture; they have techniques, like rolling on your legs, or beating you so that no marks are visible. The officers sometimes instruct them. They are hyper-nationalist; they believe they are doing it for their country. It happens in jail also; right from the moment you go in, they make you sit near the shoes. They treat you like a slave, shout at you to do this or that. When I went in, I refused to squat down near the shoes. I told Shaukat not to sit. So the officer got very angry; he asked me three times, he said, ‘Likh kar lani

padegi kya’; they knew who we were, what we were accused of. These are the little ways in which they try to break you. Then I was on death row, in a long dark cell. They put me where I could see the gallows, and Maqool Butt’s grave is also there. They would say he went from here to there— straight to the gallows. That’s the road you’ll take as well. When I used to meet [them] in judicial lock-up, I would try to keep up Afzal and Shaukat’s morale, but by that time we had seen the judge [S.N. Dhingra]. Even on the first day before the chargesheet had been filed, when Afshan was crying in court, he said, ‘What’s the use of crying now, you should have thought before you did what you did!’ So, they had seen his attitude. Before that they had thought that they would be saved by the Court, but I knew all along that there was very little hope. I used to remember this doha [recites in Urdu], ‘So even a droplet of water cannot become a pearl unless it suffers.’ You see, I was better off. I was a university professor, I had a permanent job with Delhi University, I knew people outside were fighting for me. But I feel that the human rights movement showed very little concern for Afzal and Shaukat, from the start. I still visit them in jail; I went last week. I really don’t know how I went through it; now [when] I think back I wonder how it doesn’t seem possible to be beaten with a six-inch rod, but there is something that is like a miracle. I can’t explain it in ordinary circumstances.

Case Study 2: Ramesh—The Everyday Harassment of a ‘Petty’ Offender Ramesh’s1 story is the everyday harassment of a ‘petty’ offender. He is a 22-year-old man who lives in Mandawali, a working-class suburb in east Delhi. He initially ran a small photography shop in the area, but in 2006 the shop was ‘sealed’ in the spate of closures and demolitions that took place pursuant to the Delhi High Court’s orders on non-conforming commercial enterprises in residential localities, in which many such small businesses were shut down overnight. He was unemployed for a while and then began to work part time as a photographer’s assistant in another local shop.

In April 2007, Ramesh was picked up by the Mandawali police from his shop, as an accomplice in a case of several motorcycle thefts. He was not allowed to contact his family, who were frantic when he did not return home. He remained overnight in the police station, before his brother finally traced his whereabouts. In the police lock-up, he was threatened and beaten by several policemen and forced to sign several blank papers. He was not informed of the charges against him, and it was only later that he learnt that it was not one, but four FIRs [First Information Reports] that he had been arrested under: two lodged in the Mandawali Police Station and two in Nizamuddin [a locality in central Delhi that he has rarely visited]. He was only produced before the magistrate on the third day after his arrest. The date of his arrest was wrongly shown. A recovery of one of the motorcycles was also shown from his home, though his family states that no such recovery ever took place. While in custody, constables from the police station visited his home several times, harassing and threatening his family. One policeman even slapped his brother and threatened to book cases against him. On the date of his production before the magistrate at Patiala House Court, Ramesh’s lawyer filed an application stating that he had been physically abused and forced to sign blank papers, and even naming the policemen who were allegedly involved. The magistrate after expressing some reluctance to even take this complaint on record finally accepted the written application filed by his lawyer. He, however, took little notice of his complaint and did not order a medical examination or any inquiry. After his release on bail, the police continued to visit his home, checking up on him and often harassing and demanding bribes, threatening to re-arrest him every time a theft was reported in the area. He was forced to go to the police station several times, and was once detained overnight before being released. On every one of these occasions he was subjected to beatings, threats and verbal abuse. His family, being relatively well off in the locality, and having very supportive employers were often quite assertive with the police, demanding an explanation for their persecution. The police were especially resentful of the support they had and often abusively commented on this in their interactions.

In August 2007, externment proceedings were initiated against Ramesh under the Delhi Police Act, as a ‘history-sheeter’ requiring him to present himself before the Executive Magistrate [a high-ranking police officer] at regular intervals. The officer rarely officiated at the court, and the matter was repeatedly adjourned. As a result of the cases against him and his need to take frequent days off, Ramesh has lost his job. His family believes that these additional proceedings have been initiated only because of their refusal to silently put up with the police harassment, and their refusal to pay bribes. Ramesh continues to be subjected to repeated and routine harassment.

Case Study 3: The Life and Death of a Sikh Priest2 This is a case of custodial torture and killing of a religious and political leader in insurgency-affected Punjab. Gurdev Singh Kaunke was born in Kaunke Kalan village under Jagraon subdivision of Ludhiana district four or five years after Independence. By 1982, Gurdev had joined the ranks of Jarnal Singh Bhindarwale, who had become a pivotal figure in the Sikh agitation for provincial autonomy, local control over Punjab’s river water resources and recognition of the Sikh religious pre-eminence in Punjab. On 26 January 1986, Gurdev was appointed acting head priest of the Akal Takht by the Panthic Committee, a representative forum of militant Sikh parties and groups. But he publicly opposed the Panthic Committee’s proclamation to fight for an independent state of Khalistan in April 1986. He firmly maintained that if the struggle was to seek justice and redress the wrongs, militants should not harm innocent people, and opposed the killing of the family members of policemen. Gurdev was a popular figure and thousands thronged the religious discourses that he regularly delivered at his village gurudwara. Even those who disagreed with his political views came to consult him on religious matters. Despite his public stance, the Punjab police illegally detained and officially arrested Gurdev several times between 1984 and 1991. Between 1986 and 1988, after the raid on the Golden Temple complex (where he chose to stay on and perform his priestly duties, unlike the other Panthic Committee members), he spent time in various jails in Punjab. During these periods of arrest and detention, he

was brutally tortured for information about his alleged militant connections and views. On one occasion, in the summer of 1991, Kaunke was arrested illegally after an armed encounter in his village, which had resulted in the killing of six militants. Senior Superintendent of Police (SSP) Sumedh Singh of Ludhiana district interrogated him. Saini, a chain smoker, was blowing cigarette smoke in his face as he hung naked upside down from the ceiling fastened through a hook with ropes. Tobacco in any form is one of the four prohibitions in the Sikh religious code, and contact with tobacco in any form requires ritual re-initiation. Gurdev repeatedly urged that Saini stop blowing smoke in his face, and when Saini taunted him asking him what he would do under the circumstances to remain true to his religious tenets, Gurdev managed to slap him on his cheek. Saini then had Gurdev brutally tortured. He was re-arrested during the elections in 1992, and remained behind bars for nine months until October 1992. He was severely ill in jail, and his family suspected that he was being poisoned. After his release in October 1992, Gurdev attended a huge congregation of Sikhs at Fatehgarh Sahib, which resolved to make him head of the Akal Takht, when there was a near consensus among the political leadership that he alone possessed the charisma to lead a community shattered by years of violence and turmoil. The government, however, was determined to prevent his emergence as a strong rallying force for the movement for greater autonomy. On 20 December 2002, 15 to 20 policemen raided Gurdev’s village and came to his house to arrest him for interrogation in connection with a militant ambush of a Punjab Roadways bus on 2 December, which had resulted in 17 deaths, and had been followed by an ‘encounter’ with Punjab police in which 19 militants allegedly responsible for the massacre were killed. The night before, Gurdev’s grandson had died and he was yet to be cremated. A large gathering was present at his house, to mourn and condole the death. Gurdev asked the gathering to remain calm and left with the policemen on the assurance that he would be released after his interrogation. He was released five hours later, and returned home. Five days later, on 25 December 2002, he was re-arrested from his gurudwara, in the presence of his congregation. The next morning the

police came back to the village to arrest Ranjit Singh and Monke Singh, residents of the village, and close followers of Gurdev. Both were taken to the Sadar Police Station and locked in a cell. In the evening around 5.30 p.m., Deputy Superintendent of Police (DSP) Kanwaljit Singh called Ranjit Singh into his room. Gurdev Singh was in the room, sitting on the floor in one corner, not moving at all, wrapped in a blanket and his eyes closed. Ranjit Singh was asked for information on his militant connections, and when he protested two constables pinned his hands behind his back and tortured him. He was finally released on 9 January 1993, and recalls being sleepless for many weeks, hearing the terrible screams of detained persons being tortured. Another person from the village, 70-year-old Sher Singh, who was detained during the same period, was so badly tortured that he died soon thereafter, without ever being able to walk unassisted. Ranjit Singh recalls that on the 27 December 2002, there was a commotion at the police station when electricity went off and all prisoners were asked to turn their heads to the wall. He heard several vehicles being driven off, after which electricity was restored. Ranjit believes that this was when Gurdev Singh was transferred to the Crime Investigation Agency (CIA) detention centre in Jagraon. On 25 December 1992, when Gurdev’s wife, Gurmail Singh, returned to her village after the funeral rites, she found that her husband had been taken into police custody, and that villagers were not being allowed to visit him or take him any food. She visited the police station, and despite pleading with the police to see him and give him some food—since he would not eat anything offered by the police as long as his custody was illegal—she was not allowed to meet him. On 28 December, she learnt that her husband had been moved to the interrogation centre of Punjab’s CIA. She went to Jagraon, and managed to speak to several people including another detainee who had been released, a sympathetic guard and a doctor who had treated Gurdev. All of them confirmed his presence at the centre and his critical condition. On 31 December 2002, she went to Chandigarh and filed a writ of habeas corpus for his rescue. The judge ordered a warrant officer to accompany her and to search the police stations. Meanwhile, locals at Jagraon who had kept watch on the CIA centre reported to Gurmail that her husband had been moved back to Sadar Police Station on 31 December. She

went with the warrant officer to that station, but was told that he was not there. The subsequent raid at the police station and the detention centre yielded nothing though the warrant officer refused to order the police to open up a locked room, which they claimed was the inspector’s living quarter. Meanwhile SSP Swaran Singh was transferred out of the district on the morning of 1 January 2003. On 2 January 2003, the warrant officer returned to Chandigarh and on 6 January, he filed a report before the court stating that Gurdev Singh could not be located. The police version of the death was that Gurdev Singh had escaped from custody, while being arrested for recovery of arms in his possession. And the police claimed that they had no knowledge of his whereabouts.

***** Author Ram Narayan Kumar reports a subsequent conversation that he had with Darshan Singh, a police officer posted at Sadar Police Station, who has now retired. Following are excerpts of Ram Narayan Kumar’s conversation with Darshan Singh. Q: When did you last see him [Gurdev Singh] there [at the CIA detention centre in Jagraon]? Darshan Singh [hereafter DS]: On 3 January 1993, I went back to the centre. It was around noon. SSP Swarn Singh and DSP Sondhi were inside. I went past the [office of the clerk, which also served as the torture room] and was astounded at the amount of blood that was on the floor. My curiosity was aroused, so, I looked in. Gurdev Singh was on the floor. A piece of cloth covered his face. He was very tall. There was no one in the CIA staff of that height. Then I realised that Gurdev Singh had been killed. Q: So you are suggesting that Gurdev Singh was killed under torture at the CIA interrogation centre. Is that so? A: Yes, it was obvious to me that his legs had been ripped up at extreme angles. His hands must have been tied behind his back. Two persons must have got hold of one leg and two more the other leg. They must have pulled them and ripped him open the way we break a chicken by pulling its legs.

***** Kumar also interviewed a serving SSP of the Punjab police who was an eyewitness to the torture and death of Gurdev Singh. The following is an excerpt from the interview. Q: Was he [Gurdev Singh] removed from the Sadar Police Station on 1 January between 12 noon and 2 p.m.? A: No he was tortured there during that period. He was removed from there late in the evening again to some other place. He was already almost dead. He could not have survived the torture. Gurmeet Singh, the Station House Officer (SHO) of Sadar, had taken pity on him and given him a blanket and put a heater in his cell. Barging into the police station, SSP Swaran Singh abused the SHO, ‘Is he your father that you give him a blanket and heater?’ Sondhi started torturing Gurdev again, his lower parts got ruptured and blood started flowing. Q: Were you there at the time? A: Yes, I was there at the time. I am giving you an eyewitness account. Gurdev Singh was huddled on the floor of the cell under a blanket. He had twisted himself into a knot. Swaran Singh abused the SHO Gurmeet Singh because he had given him a blanket and a heater in the cell. Immediately Swaran Singh had the blanket removed and Sodhi and Channan Singh started kicking him with their boots. When blood started flowing, Swaran Singh looked at me and said, ‘Twade jaathedar da pishab nikal gaya’ [Your jathedar has pissed]. He was taunting me for my sympathies with Gurdev Singh. I told him, ‘Peshab nahin nikla—uska khun nikal gaya hai. Jaan bhi nikal jaayegi’[He hasn’t pissed, his blood is flowing. Soon his life too will ebb away]. … I do not know how the final death occurred and how the body was disposed of. But I have heard that the body was thrown into the Sutlej, one way or the other, near Sidhwan. The interview also contains insights into the atmosphere that surrounded police operations at the height of insurgency:

Q: Why did the torture [of Gurdev] become more and more brutal? After all it was known that Gurdev Singh had been the acting jathedar of the Akal Takht? A: At that time, such considerations had no weight. No one in the police gave one whit to the Akal Takht’s jathedar. Swaran Singh told Sodhi that Gurdev Singh had received a bagful of arms, 20 or 40 assault rifles, from one Arora. Personally, I am convinced [that] Swaran Singh had come to know that he was to be transferred from the district. In my opinion, he decided to kill Kaunke so that his transfer would get deferred. He used to do such things whenever there was a rumour of his transfer, or whenever he had to attend a meeting of the SSPs with the DGP [Director General of Police]. You can check and you will find that before such meetings with Gill [the then DGP], 300 to 400 Sikhs used to die in Punjab. Every SSP had to report: I have killed 10, 14, 15, and so on. The one who said I have killed 28 was appreciated more. One who wanted to outsmart all others had to claim that he had killed 31. The night before the meeting with Gill, Sikhs of Punjab died so that SSPs could vie among themselves to demonstrate their antiterror achievements.

Case Study 4: Sarita This is the case of rape of a lower caste woman.3 Subhash Kumar’s one-room house in Saini Anandpura in Rohtak has never seen so many visitors or such a variety of them. There’s been a ceaseless flow of friends, relatives, politicians, social activists, media people and the merely curious since 9 June 2008, the day Subhash’s 25-year-old wife, Sarita, committed suicide. Their daughters—five-year-old Heena and three-year-old Muskan—play with one of Sarita’s dupattas, seemingly oblivious to the horde of visitors. Sarita had the children with her when she swallowed poison at the Haryana police headquarters in Panchkula, at the office of the Additional Director General [ADG], V.B. Singh. She would die a few hours later, but the girls did not know that yet. ‘They took Mummy to hospital and made us sit inside the police car,’ Heena whispers to her father in answer to

a reporter’s probing. She and Muskan think that their mother will be back soon. Sarita was allegedly raped by two Rohtak policemen, Head Constable Balraj Singh and Constable Silak Ram, on 10 April at the town’s Central Investigation Authority police station. They had called her there on the pretext of needing her to sign papers for the release of Subhash and then placed her under arrest. ‘I had no idea that my wife was being raped while I sat with my ankles chained in some corner of the CIA’, says Subhash. The CIA, incidentally, was set up to investigate special crimes and major murders; Subhash had been arrested in connection with an alleged motorcycle theft. The 27-year-old learnt of his wife’s rape two weeks later, after he received bail on 24 April. All that time, Sarita had told no one of the rape. Balraj and Silak had effectively gagged her with the threat that if word got out, they would slap false charges of such gravity on Subhash that he would never be released. When Subhash came home, however, Sarita could no longer keep her trauma to herself. She broke down and told him everything. With Balraj and Silak continuing to harass them, the couple decided to move lock, stock and barrel to Sonepat and start life afresh. They had begun packing their belongings when the two cops told Sarita to appear again at the CIA unit on 26 June. If she didn’t turn up, they said, they would throw Subhash back in jail. Distraught, the couple went with their story to the Rohtak SSP, Hanif Qurreshi. They were referred to DSP Manveer Singh Sheoran. Sheoran, Subhash says, was sympathetic but he was taken off the case and replaced by DSP Dhiraj Setia who Subhash claims was apathetic. With no complaint registered so far, despite their having met all the police officials possible, the couple turned to the National Commission for Women (NCW) on 14 May. While an audience with Chairperson Girija Vyas was apparently out of the question, the NCW personnel were at best perfunctory and at worst

offensive, with one even scolding Sarita for going with her story to the media. ‘I was stunned’, says Sarita’s father, Jagbir Singh, who went with the couple. ‘How could an organisation meant to help distressed women be so discourteous?’ Jagbir is a widower; in a savage irony, his wife, Sarita’s mother, was also a victim of rape, murdered by her attacker who subsequently got off scot-free. On 31 May, 50 days after the alleged rape, the Rohtak police finally registered an FIR against the two constables. They continued on duty, however, and intensified their harassment of Sarita. Subhash told Tehelka that on 8 June, a day before Sarita committed suicide, two unknown men in civvies came to the house at about 8 p.m. and offered her 300,000 to withdraw the complaint. Subhash wasn’t at home at the time. ‘They also told her that they would kill me the next day if she refused to comply’, he says. The couple discussed their next move before they went to bed that night. Subhash says he vaguely remembers Sarita shaking him while he was asleep, beseeching him to listen to her. He told her to go back to sleep. That was the last time he would see her alive. He awoke at 9 the next morning to find Sarita and the children missing. Thinking that she had gone on an errand, Subhash waited over an hour before he set out for the police station to inquire about his case. He was on his way back at about 12.30 p.m. when he got a call from the office of the DGP in Panchkula, informing him that Sarita had consumed poison. Subhash still has no idea how Sarita got to the Chandigarh suburb, 227 kilometres away. After the call, he says, he ran to the bus station. ‘Setia called me and said they were going to Panchkula and that I could come with them. We reached Panchkula at about 5 p.m., only to find that my wife was dead.’ At the ADG’s office, it is alleged, no one took Sarita seriously, not even when she said she had consumed a pesticide tablet. Attention

began to come her way only after she collapsed in the corridor, as her frightened, bewildered children looked on. With Sarita’s tragedy making national headlines, the Haryana Government was sufficiently chagrined to transfer three senior Rohtak range officials on 11 June, and take the case out of the police department’s hands by handing it over to the CBI on 16 June. The two accused absconded for about a week but were then arrested, much too late, however, to salvage the police force from yet another jarring example of criminal high-handedness. While Haryana DGP, Ranjiv Dalal, wasn’t available for comment, the list of such instances is disturbing. In February, two policemen from the Haryana Governor’s security team were booked for raping a 40-year-old woman just 100 metres from the Governor’s house. Last month, a hospital nurse in Yamunagar district stripped at a local police station in protest against the cops’ refusal to arrest the man who allegedly raped her. Jagmati Sangwan, president of the Haryana chapter of the All India Democratic Women’s Association, says it is increasingly common for the State police to lodge an FIR but not arrest the accused. ‘This is how the police, in collusion with the culprits, not only pressure but even intimidate the victim into a compromise’, she says. One of Subhash’s neighbours told Tehelka that after the FIR, the couple was so scared of the police that they would lock the door to their house from outside even if they were at home. According to Sangwan, the way the case has been conducted is inseparable from the caste biases that dominate the social, administrative and political set-up in Haryana. Sarita was a Jat and Subhash belongs to a backward class; they married for love eight years ago. Sarita’s father says some local newspapers have linked his daughter’s inter-caste marriage to the rape, thereby finding an excuse to malign her. ‘Instead of helping us, they are calling her characterless’, he says. Sangwan says caste politics are so entrenched

in the system that if both the police officials and the accused in a case are Jats, ‘the police brazenly sympathises with the culprits’. Sarita’s death has yet again highlighted the need for a Human Rights Commission in Haryana, a State which periodically bursts into the news with gruesome crimes, especially against Dalits and women. But, sources say, the police are opposing the initiative because they will then be brought to book for the misdeeds they presently get away with. With no other security to offer but compensation, the government has announced compensation of 500,000 for Heena and Muskan, two little girls left to survive in the grim aftermath of their mother’s rape and suicide.

Case Study 5: Kokila and Sunny This is a case of torture of sexual minorities. The continued existence of Section 377 (which, at that time had not been struck down by the Delhi High Court) in the IPC [Indian Penal Code] casts the shadow of criminality over the LGBT [Lesbian, Gay, Bisexual and Transgender] community, and provides the police with a justification for extreme abuse.

Kokila’s Story4 I identify myself as a hijra, that is, a member of a traditional male-tofemale transsexual community in South Asia. Right from my childhood I have felt that I was a girl and liked to dress in girls’ clothes, cook and put make up. I also realised at a very early age that I was attracted to men and not to women. I am presently working as a community mobiliser with Sangama. Sangama is a registered society which works on the human rights of sexual minorities. On 18 June 2004 (Friday) around 8 p.m., while I was dressed in a women’s attire and waiting on the road, I was raped by 10 goondas [thugs] who forcefully took me to the grounds next to Old Madras Road. They

threatened to kill me if I wouldn’t have sex with them. I was forced to have oral and anal sex with all of them. While I was being sexually assaulted, two policemen arrived. On the arrival of the police most of the goondas fled the scene but the police caught two of them. I told the police about the sexual assault by the goondas. Instead of registering a case against the goondas and sending me for medical examination, they harassed me with offensive language and took me along with the two captured goondas to the Byappanahalli Police Station. The police did not even allow me to put on my trousers and forced me to be naked for the next seven hours. In the station, I was subjected to brutal torture. The police took me to a room inside the police station, stripped me naked and handcuffed my hands to a window. Six policemen, all of whom seemed to be drunk, hit me with lathis [long, heavy sticks] and their hands and kicked me with their boots. They abused me using sexually violent language, including obscenities such as: ‘We will fuck your mother’, ‘We will fuck your sister’, ‘khoja’ [derogatory word used against transgenders] and ‘gandu’ [one who gets penetrated anally; a derogatory word]. I suffered severe injuries on my hands, palms, buttocks, shoulder and legs. The police also burned my nipples and chapdi [vaginal area of hijras] with a burning coir rope. One policeman of the rank of SI [Sub-Inspector] positioned his rifle on my chapdi and threatened to shoot. He also tried pushing the rifle butt and lathi into the chapdi and kept saying, ‘Do you have a vagina, can this go inside?’ while other policemen laughed. This was done with the specific purpose of insulting me by insisting that I, as a transsexual woman, was not a real woman as I was not born with a vagina. At around 11 p.m., the inspector came into the room. He directed the policemen to continue the torture. The torture continued until 1 a.m. in the night. Despite begging for water, I was not given any. The police tied me up and the inspector threatened to leave me on the railway track unless I confessed to the knowledge of the robbery of a diamond ring and a bracelet. They paid no attention to my pleading that I had no

knowledge of the robbery, or of the person they were trying to get to implicate in the robbery. After prolonged physical and sexual abuse, finally around 3 a.m., I was released. The police and goondas feel free to rape and torture me as they feel that anyway my very existence as a transgender person is illegal in this country.

Sunny’s Story5 I am gay and I work in a restaurant in Gurgaon. I am also an outreach volunteer for an HIV/AIDS [Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome] organisation called Mitr Trust. On 19 September 2006, I was standing at the local bus stand waiting to take a bus to Mahipalpur at around 10 p.m. I was picked up by two policemen. They accused me being a homosexual saying, ‘Tu bhi wahi hai’ [You are one of those]. There is a park nearby and it is a well-known cruising spot. It is a favourite place for police to extort money and harass us. They started assaulting me with lathis, targeting my groin and buttocks. I was made to bend over and one of the policemen held my head between his thighs while the other continuously hit me with the lathi. They took me to the Dhaula Kuan police chowki (a police station), and in there began to abuse me verbally using sexual and degrading language. They took my wallet, and checked it for money. I only had 50 or 60. This enraged them and they beat the wallet with a lathi, and broke my debit card. They also stated that I had stolen a mobile phone, a gold chain and 30,000 from a local resident. They accused me of being a part of a gang of homosexuals and kept demanding that I bring ‘my leader’ to them— the person they mentioned is a friend of mine named X. Repeatedly they told me to call my friends, including X, and ask them to come to the police chowki. They kept saying they could put me inside on false charges. I dialled X’s number just to satisfy them. One of the

policemen grabbed my phone and spoke to X and asked him to come to the police chowki. As it was already 1 a.m., X was not able to come. They took away my phone, and returned it only in the morning. One of the policemen used my phone to make phone calls. The police constables (about five or six) kept beating me. After some time, one of them took me to an inner room where there were six or seven beds where the policemen rest. Several policemen were sleeping on the bed. The policeman accompanying me woke one of them up and told him, ‘Dekh main tere liye tofa laya hoon’ [See, I have brought you a gift.] I was forced to take off all my clothes. Four policemen then raped and sexually abused me. One of them forced me to have oral sex with him, while the other three had forcible anal sex as well as oral sex with me. None of them used a condom. All these assaults except one took place in the inner room of the chowki. One of the assaults (anal sex) took place in the chowki’s bathroom. I was terrified and was crying. I was pleading with them and asking them to stop but to no avail. I had bruises and contusions on my hips and buttocks. This went on for about two hours. After the assaults they asked me to sleep on one of the beds and stated that they would let me go in the morning. Early the next morning at 5.30 a.m., they gave me some tea and biscuits. They also returned my belongings. They made me write on a piece of paper: ‘Main gaandu hoon, aur main shaukiya taur se yaha gaand marvaane aata hoon’ [I am a gaandu and I come here of my own will, to get f*****]. I cannot go past that chowki for fear of further violence and abuse. I was too scared to make any complaint about this incident. I am traumatised and still haunted by this incident. I do not wish to publicly disclose my identity, as I am terrified that the police may further harass, intimidate and humiliate my friends and me.

Case Study 6: Nazneen Bibi (Name Changed on Request)

Nazneen Bibi is an alleged Bangladeshi refugee, who speaks of the harassment by the BSF, and the vulnerability of Muslims to custodial violence (New Delhi, August 2008). Nazneen is 32 and lives in one of Delhi’s poorest parts, a slum in the Trans-Yamuna area. She has four children—three girls aged 15, 12 and 9 and a boy of 14. Nazneen says she came to Delhi with her mother when she was young. Her mother was from ‘Bangladesh’, though she does not know the name of her mother’s village.6 She has no recollection of her biological father who, her mother told her, had died. After coming to Delhi, her mother married a Bihari rickshaw puller, whom Nazneen considers her father. The family lived in various jhuggis (shanties) around Delhi and moved several times due to the demolition drives carried on by the authorities. Nazneen has proofs of residence and identity documents from a few of these residences, but not all. About 16 years ago, Nazneen married Mohammad who runs a small business of collecting and recycling waste. All their children were born in Delhi. Sometime in the year 2005, Nazneen, her husband and their children moved to their present residence in Seelampuri. Around April 2008, the ‘Bengali Cell’ (A special police cell to identify illegal Bangladeshi migrants) conducted a raid at their slum. Several families, including Nazneen and her children, were picked up in the course of this raid. Nazneen says that the police acted on information given by mukhbirs (informants) and the picking up of people is often contingent on local disputes and animosities within the slum. The raiding party consisted of 8 to 10 policemen and 2 women constables. They were in civvies and not in uniform. Nazneen and her family were first taken to the local police station at ‘Welcome Colony’ where their handprints, footprints and photographs were taken. At the Welcome Colony Police Station, the police released Mohammad saying he was an Indian, whereas Nazneen and her children were then taken to another police station at R.K. Puram in South Delhi. Nazneen repeatedly begged for her children to be released, since there was no doubt that they were born in India, but the police refused to listen to her. She was also not allowed her to bring their birth certificates and school documents. Mohammad followed his family with some food and clothes, to

R.K. Puram, where after much persuasion and pleading they were all released. Soon thereafter, in another raid on their slum, Nazneen, her husband and children were again picked up. This time despite pleading with the police, they were not released. They were taken from the R.K. Puram Police Station to Daya Basti, near Anand Parbat, to a detention centre. The detention centre is actually one big hall with separated living areas for women and men. The conditions in the centre were abysmal, with filthy toilets, hardly any water and no facilities. They learnt that the police wait until the detention centre is full (100 to 200 people) before each lot of such ‘illegal’ migrants are deported. They were given two meals a day and tea. They were not allowed any visitor and could not step out of the room. The centre was guarded by extremely aggressive policemen, who frequently made anti-Muslim comments. Women who had been there longer told Nazneen that this lot of guards was better; the previous set had been moved because of their sexual harassment of women ‘refugees’. After about 10 days of stay in this centre, during which time the centre was filling up with many more hapless ‘refugees’, they were all huddled into police vans and taken to various police stations; from there to the railway station and loaded on to a waiting train. There were about a 100 ‘refugees’ in the compartment, besides 10 to 15 police personnel. The police commandeered about half the carriage and everyone else had to make do with whatever space they could find. The carriage was chained and locked. The 30-hour journey to Calcutta was in these abysmal conditions and heat of about 40°C. There were no arrangements for food or water, and only when they repeatedly protested, for the sake of the children, that the police collected money from them and bought some rations. After reaching Calcutta, the group was loaded into three waiting Central Reserve Police Force (CRPF) vans, to be taken to various camps. In the van, Nazneen had a conversation with a person who had been through the deportation process before. She was asked why she had brought her daughter (15-year-old Najma) along. She was told, ‘They will not let her escape with her izzat. You should have paid money, done anything—this journey is not safe for unmarried girls’. Nazneen also heard others’ experiences at the camp. One boy spoke of how the refugees were made to

do work at the camps, to clean toilets and de-weed fields, etc., while being tortured throughout this process. He was stripped naked and made to run while being beaten mercilessly and was finally forced into a pond. Nazneen also made friends with a young woman, Noori, who was unaccompanied by any male family member, had two young children, and hence, was panicstricken. On the advice of the others, Noori and she decided that Najma, Nazneen’s 15-year-old daughter should cover her head and carry one of Noori’s babies so that she could pretend to be a married woman, and be relatively safe from sexual assault. Nazneen and Noori decided that they would stick together and pretend to be a family for safety. After a drive of three to four hours, they stopped at a camp. The men in the group were made to cut grass within the camp perimeter, for several hours until it was dark. They faced constant physical and verbal abuse from the camp personnel. They were then given an evening meal [the first of the day, since disembarking from the train]. The CRPF jawans (soldiers) repeatedly threatened them that from this point on, if they were questioned they must say that they are Bangladeshis and not Indians or Hindustani. If they did not, they would be sent back from the border, and the Indian border guards would shoot them at sight. They were further divided into three groups (Nazneen’s family and Noori and her children stayed together) and loaded into smaller jeeps. They were driven in swampy terrain for another two to three hours. When they finally reached their destination ‘zero point’ (as the refugees refer to it), it was around 2 a.m. They then began to walk on foot, accompanied by guards. Each guard would walk with them for a distance and then release them into the custody of the next check-post. Finally, in a deserted clearing, they were released. They were pointed out the direction of Bangladesh and told to run without stopping. If they tried to turn back, they would be shot. As they were being released, one of the guards grabbed Najma’s wrist and tried to pull off her dupatta. Nazneen grabbed her and began running. In the melee, two of Nazneen’s younger children got separated from the rest. Nazneen and Mohammad spent an hour searching for them in the dark before they were found. It was very difficult terrain, filled with thorns and swampy mud. By daylight they reached a village, and were helped by some

villagers. They were covered from head to toe in mud. The younger children could hardly walk and had to be carried. In the village, Nazneen and Mohammad were given food. They stayed for a week or two and Nazneen sold two of her bangles to get some money. They learnt of an ‘agent’ who helps people cross the border, and using his help returned after a month to their home in Delhi. _________________ 1

Name and personal details changed, at the request of the respondent, to protect his identity.

2

This case study is based on the account and interviews by Ram Narayan Kumar, Terror in Punjab: Narratives, Knowledge and Truth (Shipra, 2008) with permission of the author. 3

Taken from Shobhita Naithani, ‘The Colour of Impurity’, Tehelka 5, no. 25, 28 June 2008.

4

Based on an interview with Ponni Arasu and Mayur Suresh, Alternative Law Forum Bangalore (April 2007). 5

Name changed to protect identity. Based on an interview with Shrimoyee Nandini, Alternative Law Forum (April 2007). 6

Bengalis often refer to the undivided province of Bengal as Bangladesh in the vernacular, and it is not entirely clear whether she means the Indian State of West Bengal or the neighbouring nation state of Bangladesh. In the early 1970s, after the Bangladesh war, there was an influx of refugees from Bangladesh and border areas into the Indian mainland.

SECTION TWO

PAKISTAN

10 Pakistan’s Regimes The Initial Years Pakistan came into being as India was partitioned in the hour of her freedom from British rule. Sought and welcomed by those who believed that the Hindus and the Muslims were two nations that could not co-exist, Pakistan was constituted as an Islamic Republic with freedom of religion promised to its minorities. Its first Constitution of 1956 was both delayed and short-lived. From 1947 to 1956 the Government of India Act, 1935, served as an interim Constitution.1 The old laws of British India such as the Indian Penal Code, 1860, the Code of Criminal Procedure, 1898, and the Indian Evidence Act, 1872, continued to apply in Pakistan with changed appellations (the Pakistan Penal Code of 1860, Pakistan Evidence Act, 1872, and so on). These would, in time, yield a fair bit to Islamisation. The 1956 Constitution created a parliamentary form of government. In just two years, President Iskander Mirza declared martial law and abrogated this Constitution. Within three weeks of doing so, he was deposed by the army general, Ayub Khan. After four years of martial law, General Ayub Khan promulgated a new constitution in 1962. The 1962 Constitution converted to a presidential form of government. The President now had the power to appoint all important offices, remove judges, veto legislation and

dismiss the National Assembly. Ayub Khan’s reign as President was no more democratic than his martial law regime. When he handed over power to General Yahya Khan in 1969, martial law was again proclaimed. The first general election of 1970 gave an over-all majority to the Awami League led by Sheikh Mujibur Rahman of East Pakistan, and resulted in the 1971 war and the separation of East Pakistan, which emerged as the Republic of Bangladesh. After the war, Zulfiqar Ali Bhutto took over as President. In 1973, another Constitution was drafted with increased powers to the Prime Minister (PM), and Bhutto became PM. This 1973 Constitution has continued ever since, with several amendments along the way. Frequent and long spells of army rule have subverted Pakistan’s constitutional integrity and done lasting harm to its legal processes. Since its formation in 1947, there have been four army take-overs, three of which began as formal declarations of martial law. Whether termed martial law, emergency or something else, all of these were times when Fundamental Rights remained suspended and the judiciary was systematically undermined. In its 65 years of existence, Pakistan has spent more than half under army-controlled dictatorships. Even during civilian rule, many parts of the country have been under martial law or emergency rule.

The 1973 Constitution Pakistan is an Islamic Republic2 and Islam is the state religion,3 though minorities have the right to practise their own religion, maintain religious institutions and have their own personal laws.4 Only a Muslim can be President.5 Part II of the Constitution, the Fundamental Rights Chapter, guarantees important rights to citizens. All persons (not just citizens) have the right to life, liberty and due process.6 Particular elements of due process include the right to be informed of the grounds of detention and to be produced before a magistrate within 24 hours of arrest.7 Pakistan permits preventive detention, in which event there is no right to be produced before a magistrate and a separate legal process is contemplated.8 there is a right against retrospective application of penal laws,9 self-incrimination and double jeopardy.10

Article 14(2) declares that ‘no person shall be subjected to torture for the purpose of extracting evidence’. It is significant that the bar is limited to torture for ‘extracting evidence’. For, Pakistan’s statutes permit various retributive punishments including physical mutilation that would doubtless be torture by accepted standards of degrading and cruel punishments. The Supreme Court of Pakistan (to enforce Fundamental Rights)11 and the high courts in the provinces (when of the view that there is no other adequate legal remedy),12 may issue directives to the State prohibiting or compelling a certain course of action, and may order release from illegal custody. Though the prerogative writs (of habeas corpus, mandamus and others) are not named, power analogous to the writ jurisdiction is conferred by the Constitution. Courts in Pakistan have ruled that the term ‘life’ includes ‘quality of life’ and all such rights that are necessary and essential for leading a free, proper, comfortable and clean life. By necessary implication, this should include protection against torture and cruel, degrading treatment. The law enforcement agencies simply cannot take the law into their own hands by ‘submitting the accused to injustice and allowing a wrong to go unchallenged in a Court of trial by way of denying him an opportunity of clearing himself from being falsely implicated’.13 ‘A person is entitled to enjoy his personal rights and to be protected from encroachments on such personal rights, freedom and liberties. Any action taken “which may create hazards of life” will encroach upon the personal rights of a citizen to enjoy life according to law.’14 Public functionaries like the police, therefore, are under a duty to act in aid of the above constitutional provision because, in case of a violation thereof, they would run the risk of exposing themselves to criminal prosecution.15 Solitary confinement of an accused person amounts to torture16 and is specifically prohibited by Article 14.17 It is indeed an irony that in the face of such pronouncements the statute should sanction physical mutilation in the name of justice.18

Working of the Constitution

Four provinces (Balochistan, the North-West Frontier Province [NWFP] now renamed Khyber Pakthunkhwa, Sind and the Punjab), the Federal Capital Territory of Islamabad and the Federally Administered Tribal Areas (FATA) comprise the territory of Pakistan. A part of Kashmir which forms disputed territory and which Pakistan calls Azad Kashmir and India calls Pak-occupied Kashmir (POK) is also under Pakistani control. Within Pakistan, various parallel legal structures operate. Tribal areas have a different legal dispensation under the Constitution.

The Tribal Areas The designated tribal areas of Pakistan are generally exempt from the laws of Parliament and the provincial assemblies (unless the President makes a special order) and are also exempt from the jurisdiction of Pakistan’s courts (unless specifically extended on occasion).19 These areas have local tribal codes enforced by a council or head of the tribe. The Federation administers them through a Political Agent and the Frontier Crimes Regulations of 1901, a colonial legislation meant to subdue the fiery Pashtuns. Its provisions run true to type—they preserve the tribal head’s intrusive powers over the lives of individuals while granting the state draconian control over the tribe itself—through powers of preventive detention, collective punishments and embargoes. The whole tribe could be punished for a single felony and there is no judicial redress against such punishments. Independent Pakistan has continued this law although there is a move now to change it. The Human Rights Commission of Pakistan (HRCP)—an independent non-governmental body—has made the following suggestion: ….a new law should be made for the area that does not have the obnoxious features of the FCR [Frontier Crimes Regulations], such as the scheme of collective fines, destruction of offenders’ houses and absence of appeal provisions, and still retains the spirit of a community-managed system for adjudication. In order to avoid every case causing protracted litigation, petty cases and minor disputes could be resolved by democratically constituted juries with possibilities of appeal to superior judicial forums.20

In the last few years, FATA has been an operating ground for militants. The Pakistani army has also carried out many military operations there. Excesses from both sides have devastated the local population and the operations have resulted in countless internally displaced persons. The HRCP has given a detailed report on the situation called ‘A Tragedy of Errors and Cover-ups: the IDPs and Outcome of Military Actions in FATA and Malakand Division’.21

The Constitutional Amendments Military courts have overrun the legal system as much as religious courts have. The infusion of military mechanisms and religious precepts into the system of justice has operated over the years to undermine Pakistan’s rights jurisprudence. Such a course is bound to affect systemic responses to human rights issues including custodial torture. Pakistan’s constitutional amendments reflect the course of the subversion though not the magnitude of its effects. The first seven amendments to the 1973 Constitution happened within four years of its promulgation. The First Amendment barred judicial review of any matter relating to the service conditions or treatment of military personnel. No order passed by the military high command, however extreme, could even be looked at by the High Court.22 This provision continues till date. The First Amendment also empowered the executive to declare any political party as inimical to Pakistan’s sovereignty and integrity and refer the matter for a final decision to the Supreme Court. The Second Amendment excluded the Ahmediyas from the category of Muslims.23 The Third Amendment increased the permissible period of preventive detention without review from one month to three. It also did away with the requirement that any extension of a declared emergency beyond six months should be ratified by Parliament.24 The Fourth and Fifth Amendments, in stages, did away with the high courts’ powers to deal with any order of preventive detention or custody. The Fourth Amendment Act25 took away the high courts’ powers to issue an order prohibiting preventive detention or to release a detainee on bail.

The Fifth Amendment consummately extinguished the high courts’ power to interfere with practically any arrest or detention.26 The Seventh Amendment barred judicial review of any direction given by the Federal Government to the military authorities and denuded the high courts of all jurisdiction in areas where the army had been deployed ‘in aid of civil power’.27 The constitutional fiat that the right to judicial review should not be suspended, save subject to the Constitution,28 was dubiously met by using the Constitution itself to deny judicial review!

The Bhutto and the Zia Regimes: The Constitution Undermined Zulfiqar Ali Bhutto was one of the first in the South Asian region to introduce an anti-terrorist law. This was the Suppression of Terrorist Activities Ordinance, 1975. During Bhutto’s reign, many parts of the country were kept under martial law where Special Military Courts could try civilians summarily for ordinary penal code offences. Bhutto was overthrown in a bloodless coup in 1977 by his Chief of Army Staff, General Zia-ul-Haq. Zia proclaimed martial law, appointed himself Chief Martial Law Administrator (CMLA), suspended Fundamental Rights and barred judicial review of any order passed by him or his subordinate military authorities.29 In 1978, he formally took over as President. In 1979, two Presidential Orders were issued amending the Constitution. The first, in February 1979, set up Special Shariat Benches in the high courts and the Supreme Court to decide whether any given provision of law or policy was in conformity with Islam or repugnant to it.30 The other, in October 1979, established military courts and tribunals across the country and ousted the jurisdiction of all regular courts in those areas.31 All these were constitutional amendments carried out by a single man—the CMLA—through executive orders. The following year, by another executive order, Article 199 was amended, thereby stripping the high courts of jurisdiction to look into, reverse, injunct or in any way deal with any order of the CMLA or the order or judgment of any military

court.32 Various high courts tried to assert their power of judicial review of army orders.33 The notorious Provisional Constitutional Order (PCO) of 1981 countered this by completely suspending the Constitution. Zia made a public announcement justifying the PCO on the ground that civil courts were granting injunctions against military tribunals.34 Judges of high courts and the Supreme Court were asked to swear an oath upon the new PCO. Some courageous judges refused and resigned or were dismissed. Zia now had a committed judiciary. Repeated abridgment of the high courts’ powers of review may leave one wondering what there was left to abridge, after the first few times. These successive amendments could be viewed as a pre-emption of or a reaction to any attempt by the judiciary to assert its powers. Perhaps, they also served as a reminder of the supremacy of executive authority.

The Constitution after Zia By the Seventh Amendment to the Constitution in Zulfiqar Ali Bhutto’s time, high courts had already been denuded of their jurisdiction to look into any conduct of the armed forces in areas where they were deployed ‘in aid of civil power’.35 Bhutto had amended the army act to enable trial of civilians by court-martial.36 Two years later, under Zia-ul-Haq’s martial law regime, many more military courts were set up across the country, which could try civilians. Ironically, the Fourth, Fifth and later Amendments abridging the courts’ writ powers were reversed by Zia himself in 1985.37 At some point in their career, it is seen that dictators get this urge for an appearance of popular endorsement. They seek a legitimising process, often a spurious one. As a prelude to the non-party elections that he held in 1985 (generally believed to have been completely rigged), General Zia revived the Constitution suspended in 1981.38 The revival was by a Presidential Order that widened the President’s existing powers to dissolve the National Assembly. Clause (2), which was added to Article 58 by that Order, stated: ‘The President may also dissolve the National Assembly in his discretion where, in his opinion, an appeal to the electorate is necessary.’

The 1985 elections returned candidates who obediently endorsed by legislation all of the President’s powers and all his previous actions and constitutional amendments since the 1977 coup. This was done through the notorious Eighth Amendment to the Constitution. (The Eighth Amendment was partially modified in Nawaz Sharif’s time but later, President Musharraf restored the autocratic powers of the President.) Zia reversed the past abridgment of judicial review. He did this not to democratise the polity, but to acquire complete control, after having suborned the judiciary. Zia died in an air crash in 1988. In the 11 years following his death, there were four elections and three dismissals of elected governments by the use of the infamous Article 58(2) of the Constitution. Benazir Bhutto and Nawaz Sharif alternated between election and dismissal without ever lasting a full term. Benazir’s government was elected in 1988 and dismissed in 1990. Nawaz Sharif was elected in 1990 and similarly dismissed by the President in 1993.39 Benazir Bhutto was re-elected in 1993 and was dismissed in 1996 when Nawaz Sharif again took over. In 1999, Pervez Musharraf ousted Sharif and continued till 2008. No significant changes were made to the Constitution by Benazir Bhutto during either of her stints. No significant changes were brought to the law either. Nawaz Sharif’s reign saw, as a temporary measure that lapsed after three years, the introduction of Special Courts to try heinous crimes.40 During his second stint as PM, he introduced a slew of anti-terror laws that abridged due process, and increased the scope for custodial torture, some of which were struck down by the courts. They shall be examined presently. In October 1999, the then Chief of Army Staff, Pervez Musharraf, deposed Nawaz Sharif in a coup. He did not formally impose martial law, but instead proclaimed an emergency and suspended the Constitution. This was challenged in the Supreme Court. The Supreme Court that judged Musharraf’s take-over was one that remained after many judges had resigned, refusing to take the new oath of loyalty to his emergency regime.41 It upheld his coup on the ‘doctrine of necessity’.42 This was not the first time that Pakistan’s Supreme Court upheld martial law or extraconstitutional usurpation of power. The martial law proclamations by Mirza/Ayub in 1958 and by Zia in 1977 were both upheld on similar grounds.43

The court had directed Musharraf to give up the post of Chief Executive and restore normalcy within three years. At the end of those three years, he decided to continue as President. As a prelude to the 2002 elections, General Musharraf promulgated a Legal Framework Order. As with Zia before him, this ratified all things done by the Musharraf regime till date and restored to the President absolute power to dismiss the Prime Minister and Parliament.44 After the elections—generally believed to have been unfair—these were brought into the Constitution by the 17th amendment. Musharraf declared an emergency in 2007 and suspended the Constitution as well as judicial review.45 a seven-judge bench of the Supreme Court headed by Chief Justice Iftiqar Chowdhry stayed the order. These judges were dismissed and arrested by the Army’s 111th Brigade which stormed the Supreme Court. A democratic movement led by lawyers, rights activists and professionals forced an election in February 2008—postponed on account of Benazir Bhutto’s assassination on 27 December 2007—that resulted in the stepping down of Musharraf in August 2008. _________________ 1

Section 8, The Indian Independence Act, 1947, made this interim provision.

2

Article 1, Constitution of Pakistan, 1973.

3

Article 2, Constitution of Pakistan, 1973.

4

Article 20, Constitution of Pakistan, 1973.

5

Article 41(2), Constitution of Pakistan, 1973.

6

Article 9, Constitution of Pakistan, 1973.

7

Article 10, Constitution of Pakistan, 1973.

8

Article 10(4) to (8), Constitution of Pakistan, 1973.

9

Article 12(1), Constitution of Pakistan, 1973.

10

Article 13, Constitution of Pakistan, 1973.

11

Article 184(3), Constitution of Pakistan, 1973.

12

Article 199(1), Constitution of Pakistan, 1973.

13

Abdur Rashid Butt v. The State, PLD 1997 Lahore 394.

14

Benazir Bhutto v. President of Pakistan, PLD 1998 sC 388.

15

Amir Ullah v. The State, 2004 PCrLJ 821.

16

Saifuddin Saif v. Federation of Pakistan, PLD 1977 Lahore 1174.

17

Begum Tahira Masood v. Fariduddin Masood, PLD 1974 Lahore 120.

18

See Section 299(k) Pakistan Penal Code; Qisas

means punishment caused by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatliamd in exercise of the right of the victim or a Wali. This Punishment is prescribed for homicide and hurt. 19

Article 247(3) and (7), Constitution of Pakistan, 1973.

20

I.A. Rehman, Secretary General, HRC (Media release, 26 June 2009).

21

Human Rights Commission of Pakistan, ‘A Tragedy of Errors and Cover-ups: the IDPs and Outcome of Military Actions in FATA and Malakand Division’, Press release, 3 June 2009. 22

Constitution (First Amendment) Act, 1974 (33 of 1974). 23 Section 3, Constitution (Second Amendment)

Act, 1974 (49 of 1974)

with effect from 17 September 1974. 24

Constitution (Third Amendment) Act, 1975 (22 of 1975).

25

Section 8, Constitution (Fourth Amendment) Act, 1975 (71 of 1975).

26

Constitution (Fifth Amendment) Act, 1976 (62 of 1976) Section 11 (With effect from 13 September 1976) which read: (3A) A High Court shall not make under this Article:(a) an order prohibiting the making, or suspending the operation of an order for the detention of any person under any law providing for preventive detention; (b) an order for the release on bail of any person detained under any law providing for preventive detention; (c) an order for the release on bail, or an order suspending the operation of an order for the custody, of any person against whom a report or complaint has been made before any court or tribunal, or against whom a case has been registered at any police station, in respect of an offence, or who has been convicted by any court or tribunal. (d) an order prohibiting the registration of a case at a police station, or the making of a report or complaint before any court or tribunal, in respect of an offence; or (e) any other interim order in respect of any person referred to in any of the preceding paragraphs. 27

Section 4, Constitution (Seventh Amendment) Act, 1977 (23 of 1977).

28

Article 199(2), Constitution of Pakistan, 1973.

29

The Laws (Continuance in Force) Order CMLA Order No. 1 of 1977 (5 July 1977).

30

Constitution (Amendment) Order, 1979, President’s Order 3 of 1979 (7 February 1979).

31

Constitution (Second Amendment) Order (16 October 1979).

32

Constitution Amendment Order 1980, President’s Order no. 1 1980 (27 May 1980).

33

See Paula R Newberg, Judging the State Courts and Constitutional Politics in Pakistan (New York: Cambridge University Press, 2002). 34

Broadcast to the nation (3 June 1980).

35

Amendment of Article 245 by the Seventh Amendment.

36

Army Amendment Act No. X of 1977.

37

P.O. No.14 of 1985, Art. 2 and Sch. Item 40 (with effect from 2 March 1985).

38

Revival of Constitution of 1973 Order (President’s Order no. 14 of 1985).

39

He was reinstated after the Supreme Court ruled in his favour but was persuaded to resigne by the army soon thereafter. 40

Article 212-B was added by Constitution (Twelfth Amendment) Act, 1991, which expired on 28 July 1994. 41

Oath of Office (Judges) Order, 2000 (1 of 2002) (1) A person holding office immediately before the commencement of this Order as a Judge of the superior Court shall not continue to hold that office if he is not given, or does not make, oath in the form set out in the Schedule, before the expiration of such time from such commencement as the Chief Executive may determine or within such further time as may be allowed by the Chief Executive. (2) …. (3) A person referred to in clause (1) and (2) who has made oath as required by these clauses shall be bound by the provision of this Order, the Proclamation of Emergency of the fourteenth day of October, 1999 and the Provisional Constitution Order No. 1 of 1999 as amended and, notwithstanding any judgement of any Court, shall not call in question or permit to be called in question the validity of any of the provisions thereof. 42

Zafar Ali Shah v. General Parvez Musharraf, PLD 2000 SC 869.

43

State v. Dosso, 1958 PLD SC 533; Nusrat Bhutlo v. Chief of Army Staff, 1977 PLD SC 657.

44

Clause 4 of the Legal Framework Order.

45

Provisional Constitutional Order 1 of 2007 (3 November 2007).

11 Subverting Due Process The Force of Religion and the Force of Necessity The 1962 Constitution had introduced an Advisory Council of Muslim Ideology whose task included review of all laws-in-force to see that they are brought in conformity with Islamic tenets. The 1973 Constitution continued this. Thus, there was (and is) a constitutional mandate to make the laws accord with Islamic tenets.1 Zia-ul-Haq used this to enforce the Hudood Ordinances that separately criminalised certain conduct—adultery, rape and false accusations thereof, theft, blasphemy and the use of alcohol. The notorious Hudood Ordinances came simultaneously with the Special Sharia Benches Order, 1979, promulgated by Zia. These were a set of five separate laws, four dealing with offences of theft and armed robbery; zina (adultery), rape and qazf (false charge of adultery); and the use and sale of alcohol. The fifth was the whipping ordinance. These laws formed a code that prescribed two mutually exclusive sets of punishments—hadd and tazir. Hadd is a punishment—said to be ordained by Islamic texts—that must be necessarily awarded if the pre-conditions are satisfied. The court has no discretion to order a lesser punishment. Tazir is secular (nonreligious) punishment. It may be given where stringent proof warranting hadd is missing. Offences warranting hadd were punishable with lashes, amputation, stoning to death and worse.

The fifth of the Hudood laws was the Whipping Ordinance. An ancient provision in the Code of Criminal Procedure (CrPC)2 had prescribed whipping in respect of some other offences. This was repealed by the Abolition of Whipping Act, 1996, but not the hadd punishment of whipping, which continues till date. The Federal Shariat Court has held many provisions of the Pakistan Penal Code (PPC), CrPC and the Evidence Act to be un-Islamic. Remission of sentences, pardon to an approver and also—on a positive note—the relevance of the sexual past of a complainant in a rape case are some provisions struck down as repugnant to Islam. The Federal Shariat Court also ruled that the offence of murder could be wholly compounded by the heirs of the victim, and the Supreme Court upheld this view.3 The Law and Justice Commission of Pakistan then recommended that only ‘simple murder’ (that affected only the victim’s family and the murderer but not society as a whole) should be compoundable in law.4 The Federal Shariat Court has held the alternative punishment of life imprisonment for blasphemy or contempt of the Prophet to be un-Islamic and has ruled that the death penalty is the only legitimate punishment for that offence.5 The Qisas and Diyat Ordinance of 1990 provides for physical retribution and also permits compounding of homicide by payment of blood money. Since the choice was left to the ‘heirs’, honour killings6 went unpunished. The heirs, to protect whose ‘honour’ these killings were invariably commissioned, were only too happy to compound the offence. In this bizarre way, honour killings had state sanction. It was only in 2004 that honour killings were statutorily excepted from the class of compoundable offences.7 Article 227(3) of the Constitution exempts only the personal laws of non-Muslims from Islamisation. General conduct is not so exempt. Thus, the Zina (Enforcement of Hudood) Ordinance, 1979, applies alike to Muslims and non-Muslims as it is the general criminal code. These offences are triable by the Court of Sessions.8 The Zina Ordinance provides stoning to death as punishment for adultery by a Muslim and the punishment of a hundred lashes if the convict is a non-Muslim.9 Stoning is to be done in the manner provided by Section 17.

17. Mode of execution of punishment of stoning to death The punishment of stoning to death under Section 5 shall be executed in the following manner: Such of the witnesses who deposed against the convict as may be available shall start stoning him and, while stoning is being carried on, he may be shot dead, whereupon stoning and shooting shall be stopped. Legal sanction to physical pain and corporal mutilation—inflicted upon defenceless men and women in custody—is bound to promote impunity in all other ways. The distinction between torture for investigation and torture as punishment is irrelevant to its condemnation as a human rights violation. Noted human rights activist and former Chairperson of the Human Rights Commission of Pakistan (HRCP), Asma Jahangir had this to say: So far Hadd has never been executed, though it has been awarded in a number of cases. A total of 26 punishments were awarded until 1988. All of them, except one, were reversed by the superior courts. Zahid Iqbal was convicted for stealing goods worth Rs 11000 and awarded amputation of his right hand [Jail Criminal Appeal no. 163 of 1982]. He mysteriously escaped from prison after an uproar in the international media. Hadd punishment for theft can be awarded for stealing a clock from a mosque but not applied to a person accused of embezzlement of millions of dollars.10 How the Hudood Ordinance on adultery (zina) led to a virtual exoneration of rape has been documented extensively. Widely publicised are the cases of Safia (a blind girl who was a rape victim punished with flogging and imprisonment while her rapists went scot-free) and Lal Mai (which was the first case of the public flogging of a rape victim converted into a criminal adulteress by the operation of the law). Proof of rape requires four male (Muslim) witnesses. This is impossible to comply with. On the other hand, a complaint of rape is an admission by the woman of sexual intercourse with someone other than a husband. This is treated as

proof of adultery.11 The rapist escapes for lack of eye-witnesses and the complainant is sent to jail on her ‘confession’. The extent to which this has led to custodial abuse has been noted by Asma Jahangir: A very large number of women have been tortured, molested and raped by the police with impunity. From 1980 to 1987 the Federal Shariat Court alone heard 3399 appeals of Zina involving female prisoners. This is only the tip of the iceberg, given the number of women arrested and released before reaching the appeal stage. Once a woman is accused of Zina she stands stigmatised regardless of subsequent acquittals. Apart from a couple of isolated women prisoners, the majority of them come from extremely disadvantaged sections of society. These figures beg some compelling questions: Was there less Zina before the promulgation of the Hudood law? How is it that once women are made punishable under the law thousands of complaints are filed as against hardly any under the old law which protected women? Why are nearly all women accused of Zina poor and illiterate? Are they more promiscuous than the rich and the famous living in our society? In many cases, women alleging rape have been arrested and convicted of Zina. The accused men are given benefit of the doubt and acquitted by the Federal Shariat Court. The present trend is to arrest all married couples who contract a nikah without the blessings of their families. The female is pressurised by the police and by some judges to abandon her husband. She stays in a bind. Denial exposes her to the risk of being prosecuted for Zina and acceptance keeps her from securing bail.

Human rights abuses and torture are also rampant under the blasphemy law. Reports say that thousands of Ahmadiyas fled Pakistan during the Zia years.12 Several Ahmadiyas have been gunned down with state connivance merely for being at prayer, a whole village booked for blasphemy and scores of arrests made merely for celebrating festivals or ordinary rituals of worship.13 The Protection of Women (Criminal Laws Amendment) Act, 2006, has partially amended, though not repealed, the Hudood laws. The offences of adultery and ‘fornication’ have been made non-cognizable.14 A complainant in a case of rape can no longer be prosecuted for adultery.15 Rape is now outside the pale of the Zina Ordinance and is solely an offence under the PPC.16 The punishments of stoning and whipping remain on the statute book, as do the impossible and unequal rules of evidence. The Federal Shariat Court had originally held stoning ‘un-Islamic’ but was made to review this judgment and ratify stoning or rajm.17 The Federal Shariat Court has also

upheld amputation of hands,18 a punishment for stealing under Section 9 of the Offences against Property (Enforcement of Hudood) Ordinance, 1979. Many point out that these punishments have seldom been carried out. The fact does not take away the actual and potential harm of having such provisions in the statute book. Ali Eteraz, author and contributor to Pakistan’s Daily Times and Dawn newspapers, in a lucid article on 30 April 2009 in the online journal Dissent Up Front says: ‘Though one notable scholar, Charles Kennedy, has argued that the ordinances, at least in the eighties, were never truly actualised, the existence of these rules on the books was sufficient to move the cultural barometer towards harsher readings of Islam.’ One might add that this is also likely to move the socio-political barometer towards greater tolerance of custodial violence.

The Force of Necessity Every declaration of martial law has been upheld by the Supreme Court on the ‘doctrine of necessity’.19 Army impunity in Pakistan has a long and entrenched history. In fact, the army has never been out of power in Pakistan. It has also been relatively free of control—civilian or judicial. Civilian governments have used the army to stifle dissent and deal with opponents. Courts have been, at best, guarded about military intrusions on the state’s judicial power. Bhutto, in his time, had Balochistan, Lahore, North-West Frontier Province (NWFP) and a good part of Sind under martial law. Among laws that abridged due process during his reign were the Suppression of Terrorist Activities Act, 1975; Suppression of Terrorist Activities (Special Courts) Act, 1975; and Defence of Pakistan Rules, 1971. Special Courts could try persons even in absentia and the entire investigation and trial process was to conclude within 21 days. In early 1977, the Army Act was amended to give military courts jurisdiction over even normal penal code offences, to the exclusion of the regular courts.20 New ordinances came thick and fast, each strengthening the military and lessening the courts.

Rabia Chowdhry’s Report on Military Excesses Rabia Chowdhry, a young lawyer from Lahore and country researcher for South Asians for Human Rights (SAHR) for this section on Pakistan, says the following in her report of 2008: ‘Despite a constitutional prohibition regarding torture, at the moment the Pakistan Army is running several detention and torture cells in almost every city of the country. The Asian Human Rights Commission [AHRC], in its report released on 26 June 200821 has identified 52 detention centres of this nature.22 ‘All of these detention centres are military operated and here people who are arrested and have disappeared are kept incommunicado and tortured for several months to extract the confessional statements of their involvement in subversive activities. ‘On 11 March 2008, suicide bombers struck the provincial headquarters of the Federal Investigation Agency on Temple Road and the office of an advertising agency in Model Town. As per certain unofficial sources, the house behind the agency’s office had been used by the Special Investigation Unit (SIU) of the Crime Investigation Department (CID) till December 2007 as a private torture cell and it was one of the ex-detainees of the said torture cell who was responsible for the said blast.23 ‘Military’s resort to torture has witnessed a further upward trend under the guise of Islamabad’s post 9/11 alliance with Washington in its alleged “war against terror”. This is evident from the number of incidents of “enforced disappearances” that have cropped up in the past couple of years. ‘Initially it was only persons suspected of extremist activities who were “picked up” and either kept in local safe houses or handed over to US authorities.24 However, there is ample evidence to support the view that this newfound methodology of “disappearances” was also employed to dissipate the overall dissent and nationalist movements in the provinces of North West Frontier Province and Balochistan. ‘As per reports received by the Human Rights Commission of Pakistan (HRCP), at least 600 people have disappeared in Balochistan. The HRCP also informs us that by November 2007 there were at least 400 cases of ‘missing persons’ pending before various courts. Needless to say, this number swelled considerably in the years that followed. ‘99 out of 198 missing persons on HRCP’s list before the Supreme Court had been traced before independent judges hearing the cases were deposed post the coup of 3 November 2007. 99 others remain missing till date. HRCP was told that “Pakistani intelligence agencies continued to maintain private prisons with instruments of torture, and that acts of torture were commonplace”.25 ‘Torture by the Military is not limited to insurgents and rebels only. Pervez Musharraf’s government has been observed to use unlawful detention as its most preferred tool for silencing its critics. Owing largely to the publicity attached to such arrests, coupled with the growing resentment against the government of the day, conventional techniques of torture could not be

employed insofar as the political arrests were concerned, and, therefore, as a last resort medical care was denied to such prisoners. ‘Muneer A. Malik, former President of the Supreme Court Bar Association, was detained immediately after the declaration of emergency. Despite repeated complaints by his family regarding his health, prison officials denied him medical care, thereby resulting in his hospitalisation due to renal failure. According to Munir’s family, this condition was entirely preventable, but the prison staff’s failure to provide medical care nearly resulted in his death. ‘A human rights activist and former ISI official, Khalid Khawaja, was detained on 26 January and released six months later when finally his bail was allowed in June. He stated that he too was denied medical treatment for his diabetes during his six-month stay in the prison. ‘In military operation in 2000 in the Balochistan province, hundreds of people, especially student leaders and political activist went missing. Ghulam Mohammad, 45, Chairman of the Baloch National Movement, Sher Mohammad Baloch, 35, Vice President of Balochistan Republican Party and Lala Munir Baloch, 50, General Secretary of Baloch National Front, were kidnapped on April 3, 2009. They were taken from a lawyer’s office by plain clothed officials in one of the state’s conspicuous white vans. Their bodies were found five–six days later and were unrecognizable due to chemically aided decomposition. The medical officers concluded that the men were killed on the day of their arrest, and possibly thrown from a high place, such as a helicopter.26 ‘Ehsan Arjumandi,27 a Norwegian citizen and political activist of Iranian nationality who has lobbied for Balochistan’s autonomy, was abducted from a bus between Balochistan province and the Sind capital, Karachi, on 7 August 2009. Eyewitnesses described his abductors as armed, plain-clothed and in a fleet of four-wheel jeeps bearing no registration numbers. According to eyewitnesses, these men boarded the bus, covered his head with a black blanket and took him away. There is no knowing where he now is. ‘It is not uncommon for detained Baloch activists to be held in illegal custody for long periods of time without access to family members or legal assistance. The Netherlands-based Unrepresented Nations and Peoples Organization (UNPO), quoting the Baloch Peoples Party, claims that 19 Baloch prisoners have been executed since June 2009 after brief trials in closeddoor court rooms, during which they had no access to defence lawyers. Iranian news agencies report more than 10 Balochis have been extradited to Iran by Pakistan, and that four of them were hanged in a prison in Zahedan. ‘Zarina Marri, from Balochistan was arrested in late 2005 when she was 23 years old. Since then she has been a captive in an army torture cell at Karachi. She has been repeatedly raped by the military officers and is being used as a sex slave, to induce arrested nationalist activists to sign state-concocted confessions. One Mr Munir Mengal, who was arrested in April 2006 by a state agency and kept in the military torture cell, Karachi, for almost nine months, narrated his encounter with her to Reporters Without Borders (Reporters Sans Frontièrs [RSF]), the International Red Cross and Woolwich Court in London. He said that she was once thrown naked into his cell and he was tortured and his penis was severely injured when he refused to have sex with Zarina Marri. Zarina mentioned to Mengal that she had seen some women in the torture cell but was not allowed to talk to them. At the time of the incident, Colonel Raza of the Pakistani Army was in charge of that cell. After a few days, he was transferred and Colonel

Abdul Malik Kashmiri came in as head of the military torture cell. The current whereabouts of Zarina Marri are not known.’28

_________________ 1

See, Articles 227 and 228, Constitution of Pakistan, 1973.

2

Section 392 was part of the British Law in India. India abolished it in 1955.

3

PLD 1980 FSC-1 Mohd. Riaz v. State, PLD 1989 SC 633.

4

10th Report of Law and Justice Commission Pakistan.

5

PLD 1991 FSC-10, Muhammad Ismail Qureshi v. Pakistan.

6

Honour killings are those done by families to members (usually daughters) who marry against their will or refuse to marry the chosen person, as this disobedience is considered an affront to family honour. It is an extensive phenomenon in Pakistan and documented by several human rights organisations. 7

S. 3, Criminal Law (Amendment) Act, 2004 (I of 2005).

8

Section 20, Offence of Zina (Enforcement of Hudood) Ordinance.

9

Section 5(2), Offence of Zina (Enforcement of Hudood) Ordinance.

10

Asma Jahangir, ‘Women’s Commission and Hudood Ordinances’, Daily Times, Pakistan, 12 September 2003. 11

Section 8, Zina Ordinance.

Proof of zina liable to hadd shall be in one of the following forms, namely:(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or (b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the act of penetration necessary to the offence: Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims. 12

See an interesting website, www.persecution.org (last accessed on 30 November 2012).

13

Asma Jahangir, ‘Police Book Whole Town on Religious Grounds’, Human Rights Commission of Pakistan, Press Release, 9 July 2008, available at http://hrcpblog.wordpress.com/2008/07/09/ (last accessed on 28 November 2012); Asma Jahangir, ‘Ahmadis Held Without Any Evidence of Blasphemy’, Human Rights Commission of Pakistan, Press Release, 12 February 2009, available at http://www.hrcp-web.org/showprel.asp?id=58 (last accessed on 28 November 2012). 14

Clause 8, Protection of Women Criminal Laws Amendment Act, 2006.

15

Clause 8, Amendment Act 2006 that makes addition of Proviso to Section 203C of the CrPc.

16

Clause 5, Amendment Act 2006 that makes addition to Sections 375 and 376 Penal Code.

17

PLD 1981 FSC-145 and PLD 1983 FSC-255.

18

1/Q of 1983.

19

State v. Dosso, PLD 1958 SC 533 upheld Ayub’s coup, Nusrat Bhutlo v. Chief of Army Staff, PLD SC 1977 657 upheld Zia’s coup and Zafar Ali Shah v. General Parvez Musharraf, PLD 2000 SC 869 upheld Musharraf’s coup. 20

Sections 2 and 4, Pakistan Army Amendment Act (X of 1977).

21

Report on Torture on the UN International Day in Support of Torture Victims, 2008.

22

‘PAKISTAN: 52 Illegal Torture and Detention Centres Identified’ http://www.ahrchk.net/statements/mainfile.php/2008statements/1574/ (last accessed on 30 November 2012). 23

Zulqernain Tahir and Syed Faisal Shakeel, ‘Bombers Sow Terror—Target FIA: • Lahore Takes Second Hit in One Week • Five Children among 26 Dead’, available at http://archives.dawn.com/2008/03/12/top1.htm (last accessed on 30 June 2012). 24

HRCP 2007 Report.

25

Ibid. Also, Daily Times, March 2007.

26

Rabia Chowdhry, ‘A Statement by the Asian Human Rights Commission PAKISTAN: The Judiciary Must Confront Suspected State Agents on the Issue of Disappearances’, Report from Pakistan, 20 November 2009. 27

Asian Human Rights Commission, ‘Pakistan: A Norwegian Citizen Baloch Activist is Missing after His Suspected Abduction by Pakistan State Agents’, Asian Human Rights Commission, Urgent Appeal Case: AHRC-UAC-099-2009, available at http://www.humanrightgs.aisa/news/urgentappeals/AHRC-UAC-099-2009 (last accessed on 28 November 2012). 28

Asian Human Rights Commission Statement, AHRC-STM-020-2009, ‘PAKISTAN: Zarina Marri Has Been Missing along with 429 Persons since December 2005’, 23 January 2009, available at http://www.humanrights.asia/news/ahrc-news/AHRC-STM-020-2009 (last accessed on 30 November 2012).

12 The Judiciary Judicial tolerance of extra-constitutional power, suspension of civil liberties and state violence directly contributes to impunity. One cannot conceive of an island of legal relief in which torture alone can be redressed. The rights record of the judiciary is crucial to locate custodial violence within a polity.

Courts in the Time of Zulfiqar Ali Bhutto Courts were moved against press censorship, suspension of civil liberties and military trials of civilians under the Army Act, 1952, imposed by the Bhutto government.1 The Bhutto years reflect contradictory impulses within the higher judiciary. In the early years, the Supreme Court upheld abridgment of judicial review.2 While the high courts granted actual relief in very few cases, all judgments generally carried the rhetoric of rights. When asked to strike down military action or jurisdiction, courts expressed themselves in weak tones of reprimand, merely calling the deteriorating process a ‘matter of considerable concern’.3 When moved to declare as ‘unjustified and without lawful authority’ the fatal army firing on demonstrators, the Karachi High Court lamented that it could not question emergency powers.4

There were exceptions to the trend. The Peshawar High Court released a prisoner holding his detention illegal and observed that emergency powers came coupled with a duty. It took the view that the legitimacy of particular executive acts could be scrutinised by the court even within the restricted review allowed to it.5 But, by and large, the writ of habeas corpus lay in a state of helplessness. The executive flouted even the few directions given by the judiciary, leading the Supreme Court to lament that [a]part from a wilful disobedience of the High Court’s order to which they confessed in a written statement, the appellants compounded the offence by allegedly subjecting a citizen to torture. Article 14 of the Constitution guarantees the dignity of the citizen and declares in clear terms that no citizen of Pakistan shall be subjected to torture. The Supreme Court here [is] faced with a situation where members of the law enforcing agency, who are charged with the duty to protect the citizen, who have themselves perpetrated upon their wards acts of inhuman torture. Words are not adequate to express our sense of horror at this outrage.6 Well-known writer, editor and columnist, Maleeha Lodhi (twice Pakistan’s Ambassador to the US and High Commissioner to the UK), describes the years 1976–1977 in Pakistan thus: ‘By early April, opposition crystallised in Punjab when police attacked demonstrators outside the Punjab assembly. Through the Spring, it was reported that nationwide 250 people were killed, 1763 injured, at least 16,863 arrested, and 4290 antigovernment processions were held.’7 As public disenchantment grew, courts felt impelled to deal with the issue. The Lahore High Court allowed a batch of 14 writ petitions holding that ‘martial law’ was beyond the Constitution and that the proliferating military courts were more to the detriment of than ‘in aid of’ civil power. The decision was rendered in 1977 (just before Zia’s coup), but the written opinion was published only in 1980.8 The written judgment, in a way, spoke to Zia-ul-Haq’s administration and softened the original condemnation of

martial law with the rider that if the Constitution stands abrogated for any reason, such military action may be justified on the ground of necessity. Amnesty International (AI) had an eminent team of jurists in Pakistan in 1976. Their conclusion was as follows: AI feels that the continuation of the state of emergency has largely been responsible for a serious erosion of fundamental freedoms in Pakistan, which has hindered the judiciary and the Bar from upholding the rule of law. Several thousands are political prisoners in Pakistan and the vast majority of them are held without trial.9 Pakistan, by then, had got into the mould of living in a perpetual state of emergency and amidst a myriad of laws and ordinances empowering the army.

The Courts under Zia-ul-Haq Zia-ul-Haq’s coup was ratified by the Supreme Court.10 Justifying martial law had become routine. Subverting the Constitution had even in the past been justified as necessary for the preservation of Pakistan. After all, if there is no constitution then there is no unconstitutionality to judge. Early judgments of the Supreme Court had advanced this logic. The logic was extended to other acts of the extra-constitutional regime. Once an extra-Constitutional action or intervention is validated on ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must interpret and be permitted, in the public interest, not only to run the day to day affairs of the country, but also to work towards the achievement of the objectives or the basis on which its intervention has earned validation.11 Executive action now began to be put, not to the test of Fundamental Rights (these were non-existent) or the Constitution (this too was first

dormant and then non-existent) but of ‘necessity’. Indeed, Chief Justice Anwar-ul-Haq of the Supreme Court described the word as ‘a term of art’.12 The Supreme Court drew lines of distinction between military authority and civilian authority in principle, but ratified the jurisdiction of the military over civilians.13 The Chief Justice of the Lahore High Court declared that during an emergency ‘Fundamental Rights are there, but no remedy is available’.14 There were already many preventive detention and security legislations of the Bhutto vintage. Zia’s Presidential Order of 1979 establishing military courts across the land followed by the Provisional Constitutional Order, 1981, merely continued the trend. The validity of military courts was upheld in a spate of cases.15 It could well be that the high courts were trying to find crevices to preserve judicial review but relief was hard to come by. Several judgments echoed the fond belief that such a phase—though necessary—could only be temporary.16 Then, there were a few judgments against the trend. The Lahore High Court struck down a batch of military convictions and in the course of doing so wondered if military courts could ever serve the welfare of the people.17 Even such minor reversals were intolerable to the regime. The Martial Law Regulation No. 77 placed further restrictions on superior courts. In a public broadcast on 3 June 1980, Zia-ul-Haq announced that civil courts were issuing orders of stay against military tribunals and thus thwarting the regime. One deed common to all dictators has been stifling the judiciary. Zia and Musharraf have both issued proclamations aimed at this. The preamble to the 1981 Provisional Constitutional Order (PCO) recorded that ‘doubts have arisen as to the jurisdiction and powers of superior courts’. The constitutional powers of the High Court were anyway truncated, even ousted. Zia thought it best not to have a constitution at all. By the PCO 1981, the Constitution was formally suspended. AI, in a report released on 15 May 1978, said:

We are very concerned at the use of flogging in Pakistan and are disturbed that this unusual punishment is also being inflicted on political prisoners for committing acts which often appear to be no more than exercise of the right of freedom of speech and expression guaranteed in the Constitution. The first public hanging took place in March, after death sentences were passed by a military court on three civilians convicted for murder. At least 16 prisoners have so far been sentenced to floggings for political activities. Relatives, many of them teenagers, have in some cases been held temporarily as hostages until a wanted person was found. Bhutto’s Attorney General, Yahya Bakhtiar was beaten up in his cell in Quetta jail this month; his family was given his bloodstained clothes for cleaning.

According to a survey by Geneva-based International Commission of Jurists: Systematic torture occurred in five Lahore prisons in 1984, particularly at a jail where many political detainees were held. Military courts are used increasingly to clear the backlog of cases in ordinary courts. The survey cited reports that the military courts decide cases in minutes and refuse defendants the rights to lawyers. Special military courts that try serious offenses allow defense counsel but the judges often obstruct the lawyers in their work. The report of 19 November 1985 of AI found torture and denial of fair trial to be the common case. As of September, more than 130 prisoners were serving sentences of between seven and 42 years after special military courts convicted them of political offenses or politically motivated criminal offenses. The military courts regularly use as evidence confessions extracted by torture while prisoners are hung upside down and beaten, given electric shocks, strapped to blocks of ice, deprived of food and sleep for two or three days and burned with cigarettes. Many prisoners are held in fetters and chains. People often are tried in courts held in closed session and denied the right of appeal to a higher court. The number of prisoners held without trial or shot on sight was estimated to be 10 times this number.

A report of the International Commission of Jurists (ICJ) published on 7 September 1987 stated that ‘some human rights abuses continue in Pakistan, including alleged military attacks on villagers, despite the lifting of martial law 20 months ago’. The ICJ cited reports by villagers who said that their villages were raided and looted by soldiers, sometimes accompanied by local police. ‘Some male villagers were shot to death and women beaten, in at least two cases pregnant women, who subsequently miscarried.’ An estimated 20,000 political workers were hunted down and executed during the regime whereas thousands more fled to Western Europe, the Middle East and the United States to seek asylum. Journalists, protesters, political opponents and activists of the Movement for Restoration of Democracy were all arrested and tried under martial law regulations and sentenced to imprisonment.

Courts and Anti-terrorism Legislation The Anti-Terrorism Act of 1997 was brought in by Nawaz Sharif after repealing the Suppression of Terrorism Act, 1975. Apart from terrorism and sectarian violence which were offences defined and penalised by this law,18 the Special Courts could also try a host of ordinary penal code offences enumerated in the Schedule to the Act.19 The period of investigation and trial could on the whole not exceed 14 days.20 Sectarian offences included acts of written or oral expression likely to ‘promote sectarian hatred’.21 The most crucial deviation from due process was enabling statements made to police officers to be admitted into evidence. Given the requirement to get ‘proof’ within seven days, admitting into evidence ‘confessions’ recorded by the police was nothing short of an invitation to torture. Confessions to police officers have been disallowed from use in the subcontinent since 1872. Worse still, the draconian procedure of the new law could be applied retrospectively22 (though the punishment imposed could only be as under the earlier law). Courts were to order the maximum sentence upon

conviction and record reasons for awarding any less. Punishment was to be meted out in a deterrent manner. Presumably, this meant execution in a public place!23 Judges in these causes could be even ordinary district magistrates or advocates. The only other qualification needed for such persons to be made judges of the Special Court was Sharia training.24 Appeals lay, not to the High Court, but to a Special Appellate Tribunal.25 The Federal or Provincial Governments could call in the army to deal with terror or scheduled offences.26 The terror legislations of Pakistan draw so deeply on the army that, for all intents and purposes, they ought to be treated as military legislations. In Mehram Ali v. Federation27 the Supreme Court struck down large chunks of the Anti-terrorism Act of 1997. Its provision for a special appellate tribunal and ‘ad hoc’ special courts was declared void on the ground that such a parallel justice system was impermissible in law. The Supreme Court, however, observed that Special Courts were per se not invalid and that it was the nature of the machinery set up that was objectionable in this case. The court does not appear to have attended at all to the provision of extra judicial confessions to police officials while in custody. The requirement in the proviso to Section 26 that there be a video recording of the confession could in fact lead to illegal detentions in undisclosed locations and create the appearance of a volitional ‘confession’, but the Supreme Court seems not to have considered the point. As a reaction to the Mehram Ali decision, the 1998 Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance was brought in. This ordinance did one better than its predecessor Act of 1997, by granting military authorities power to convene as many courts as deemed fit to try any of the offences in the Schedule to the Act.28 The Schedule included some special categories of homicide, such as homicide by use of bombs, cases of multiple victims or cases where the victim belonged to the armed forces. It also contained several ordinary penal code offences relating to bodily harm. Pending cases in the normal criminal courts and anti-terror courts were to be transferred to these military courts,29 which could try civilians by the court martial procedure.30 Appeals against convictions lay to military appellate bodies.31

The ordinance also created a new crime of ‘civil commotion’ with the penalty extending to a seven-year term of rigorous imprisonment.32 Originally brought into force only in the province of Sind, the ordinance was extended to the whole of Pakistan within two months of its promulgation.33 It was also amended to enable accused ‘absconders’ from justice to be tried in absentia by any military court established in Pakistan. That a civilian government should, by ordinance, make such a thing as ‘civil commotion’ an offence and one to be tried by special military courts indicates how entrenched military power had become in Pakistan. Within three months of its promulgation, in what is really a landmark decision, the Supreme Court struck down the 1998 Ordinance in its entirety.34 The judgment in Liaquat Hussain v. Federation of Pakistan35 is of far-reaching significance, as it undoes some part of the earlier view of the court on the doctrine of necessity. The court now said: ‘The Doctrine of Necessity cannot be invoked if its effect is to violate any provision of the Constitution.’ It struck down trial of civilians by military courts and held that military powers did not extend to performing judicial functions like setting up courts. There could be no special courts running parallel to the judicial system. The court directed transfer of all pending case back to the Anti-Terrorism Courts. The Liaquat Hussain ruling was the first consummate judicial negation of a military administration of justice (after Darwesh Arbey’s case,36 20 years earlier). This precedent did not, however, prevent a subsequent judicial ratification of Musharraf’s take-over. The ratification, as noted before, was done by a Supreme Court that remained after the exit of ‘disloyal judges’ who had refused to sign an oath to the effect that the Chief Executive’s acts were beyond question—this was the sum and substance of Musharraf’s Judges Oath Order. In the event, the Ordinance was repealed except that, by an amendment to the Anti-Terrorism Act of 1997, ‘civil commotion’ was also made an offence under that law. Musharraf’s reign added to the Anti-terrorism Act by bringing several more of the Pakistan Penal Code (PPC) provisions into the Anti-terrorism Act and setting up new Anti-Terrorist Courts (ATCs).37 The law was used, among other things, to secure the conviction of former Prime Minister Nawaz Sharif on the charge of a terrorist conspiracy to hijack a plane. Such

a conviction was extremely unlikely to have been secured under the regular procedure, given the paucity of real evidence. The Anti-Terrorism (Amendment) Act (ATA), 2001, expanded the scope of the Act to include virtually all sorts of illegal and improper conduct. It also empowered the executive to proscribe organisations. Over the years, the list of proscribed organisations became longer. In 2002, powers of preventive detention were added to the law.38 The ATA has been expanded to include as acts of terror any threat of sectarian violence and threat to security. The judiciary, even the Supreme Court, is statutorily precluded from granting bail in offences carrying a penalty term of 10 years or more.39 Under the Anti-Terrorism Act, 1997, children (persons below the age of 18) can be tried and jailed for imparting or ‘receiving’ terrorist training.40 The statutory penalty for children is a minimum jail term of six months and maximum of five years. The culture of unchecked military authority has led to undisclosed torture centres and detention cells. The horrible case of Zarina Marri and other Baloch girls who are being held as sex slaves by known and named officers of the Pakistani Army reveals that impunity is both pervasive and deep.41 For years, the justice system was made to keep its hands off the army and it then became a habit.

Recent Initiatives of the Judiciary Post 11 September 2001, in the wake of the ‘war on terror’, thousands were, reportedly, victims of enforced disappearances. The Human Rights Commission of Pakistan (HRCP) compiled a list of the disappeared and waged a campaign on the issue. The Supreme Court took suo motu notice of the reports of enforced disappearances. In what has come to be known as the Enforced Disappearances Case, the Supreme Court directed the Inter Services Intelligence (ISI) and the government to provide a full list of Pakistanis handed over to the US as well as those in jail in Afghanistan, India and other countries. In the last week of January 2010, the Attorney General informed the Supreme Court that from the HRCP list, 159 persons were traceable while

72 remained missing. The Attorney General also said that nearly 1,600 people had gone missing between 2001 and 2008 though most had by that date been traced. According to one source, the Defence of Human Rights and Public Services, some 172 people were missing as in January 2010. Other human rights groups estimate the overall figure to be much higher. The silver lining is that a redressal process is now underway. High courts, too, are seized of the problem of enforced disappearances and internally displaced persons. The Supreme Court has also taken suo motu notice of a number of other issues such as attacks on the media, killings by the land mafia and assaults on women. This could develop into a major accountability exercise. _________________ 1

Paula R. Newberg, Judging the State; Courts and Constitutional Politics in Pakistan (Cambridge University Press, January 1995). Also PLD 1976 SC 476. 2

Karamat Ali v. The State, PLD 1976 SC 476; F.B. Ali v. State, PLD 1975 SC 506.

3

Ch Zahur Elahi MNA v. State, PLD 1977 SC 273.

4

Niaz Ahmed v. Province of Sind, PLD 1977 Karachi 604.

5

Fida Mohammed v. province of NWFP, PLD 1973 Peshawar 156.

6

Sher Ali and Others v. Sheikh Zahoor Ahmed, PLD 1977 SC 545.

7

Maleeha Lodhi, ‘Pakistan in Crisis’, Journal of Commonwealth and Comparative Politics 60 (1978): 60–78. 8

Darwesh Arbey v. Federation of Pakistan, PLD 1980 604.

9

Amnesty International Report Including the Findings of a Mission to Pakistan (23 April to 12 May 1976). 10

Nusrat Bhutto v. Chief of Army Staff, PLD 1977 SC 657.

11

Chief Justice Anwar-ul-Haq in Bhutto’s challenge to the bench hearing his case; PLD 1978 SC 40. Zulfiqar Bhutto was hanged on a charge of murder in a process which is widely decried as judicial murder. 12

In legal parlance, it means a term that must be understood by the context that created it.

13

Karamat Ali v. The State, op. cit.; F.B. Ali v. The State, op. cit.

14

Province of Punjab v. Gulzar Hassan, PLD 1978 Lahore 1298.

15

PLD 1978 Karachi 736, 773, 778; 1978 Lahore 1218.

16

Haji Abdullah v. Presiding officer Summary Military Tribunal, PLD 1980 Karachi 498.

17

PLD 1980 Lahore 356.

18

Sections 6 and 7, ATA 1997.

19

Sections 2(e) and 12, ATA 1997.

20

Sections 19(1) and (7), ATA 1997.

21

Section 8, ATA 1997.

22

Section 12(3), ATA 1997.

23

Section 22, ATA 1997.

24

Section 14(1) (ii) and Explanation to (2), ATA 1997.

25

Section 24, ATA 1997.

26

Section 4, ATA 1997.

27

PLD 1998 SC 1445.

28

Section 3 of the Ordinance.

29

Section 11 of the Ordinance.

30

Section 4 of the Ordinance.

31

Section 3 and 8 of the Ordinance.

32

Sections 6 and 7 of the Ordinance.

33

Pakistan Armed Forces (Acting in Aid of Civil Power) (Amendment) Ordinance, 1999 (30 January 1999). 34

Liaquat Hussain v. Federation of Pakistan, PLD 1999 SC 504.

35

PLD 1999 SC 504.

36

PLD 1980 SC 504.

37

Anti-Terrorism (Second Amendment) Ordinance, 1999 (2 December 1999); Anti-Terrorism (Third Amendment) Ordinance, 1999 (2 December 1999). 38

Anti-terrorism (Amendment) Ordinance, 2002.

39

Section 21D (Proviso).

40

Section 21-C(4) and (5), ATA 1997.

41

See Chapter 11.

13 International and Statutory Commitments International Commitments Pakistan has ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) and is also a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC) and International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). It has not ratified the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). It has signed, but not ratified, the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). In order for the CAT to be applicable at a domestic level, Pakistan would have to ratify the same and enact a domestic legislation, which it has not done. Unlike India and Nepal, whose Supreme Courts have read the spirit of even non-ratified instruments of human rights into the content of rights, Pakistan has, as yet, no such enabling judicial pronouncement. However, by signing the ICCPR and the CAT, Pakistan is under an obligation not to follow policies contrary to the object and purpose of those conventions.

Substantive and Procedural Criminal Laws Distortion of the justice system by military interventions and Islamisation has been compounded by a very real problem that Pakistan faces from the Taliban and related fundamentalist violence. The scene is so mired that, but for the dauntless courage of Non-governmental Organisations (NGOs), lawyers and the HRCP, any reparative justice would seem a far cry. To the extent that ‘ordinary’ laws may be pressed into service, their provisions are relevant. Despite a constitutional ban on ‘torture’ to extract a confession, Pakistan has no special law penalising torture, nor one to provide compensation to the victim.

The Code of Criminal Procedure, 1898, the Law of Evidence— Qanoon-e-Shahadat Order, 1984—and the Pakistan Penal Code, 1860 The police may arrest without a warrant when there is ‘reasonable suspicion’ or ‘credible information’ of the commission of a cognizable offence.1 The arrested person must be produced within 24 hours before the nearest magistrate.2 The magistrate can authorise further detention either in police or judicial custody for a period not exceeding 15 days at a time.3 (In practice, this seems to work as a bar on police custody beyond 15 days on the whole.) The magistrate cannot, except in the case of qatl (homicide) or dacoity, detain a female in police custody. In such exceptional cases, the reasons for granting police custody must be recorded in writing.4 No statement made to the police by anyone, whether witness or suspect, is admissible as evidence5 and offer of any threat or inducement to elicit a statement or information is barred.6 The Qanoon-e-Shahadat (Pakistan’s statute of evidence) rules out of evidence any statement made by a suspect to the police as also any statement made by a person in police custody to anyone at all other than a magistrate.7 However, if a fact is discovered directly as a result of a statement, it is admissible just to that limited extent.8 By distinction, any statement or confession recorded by a magistrate may

be used at the trial as evidence against a suspect.9 The Pakistan Code of Criminal Procedure (CrPC) does not forbid police custody if and when a suspect has refused to make a confession before a magistrate (unlike Section 164[3] of the Indian CrPC which bars police custody in those circumstances). As discussed in Chapter 12, this bar on the use of statements made to the police does not operate on special terror laws. Pakistan Penal Code (PPC) penalises hurt caused or illegal confinement to elicit a confession.10 Torture is nevertheless routinely employed for exerting pressure to manage a ‘confession’ to a magistrate or to elicit a disclosure leading to facts. It would be reasonable to assume that the general law relating to offences of murder, hurt, rape and assault would apply to custodial situations. As said earlier, however, physical mutilation is a sanctioned punishment in Pakistan.

Magisterial Inquiry into Deaths in Police Custody The CrPC, 1898, which India and Pakistan continued after 1947 mandated a magisterial inquiry into all deaths in police custody. The same provision continues in Pakistan.11 In India, after an amendment in 2006 to its CrPC, 1973, every kind of violence, disappearance or rape in any custody authorised by a magistrate—including in jail or hospital, and not limited to police custody—must be inquired into by a judicial magistrate.

Important Court Directives on Custodial Accountability Merely because there is power to arrest, it is by no means necessary that the police should in all cases take the suspect into custody.12 Police Rules also note this,13 but such rectitude is seldom displayed. Arrested persons can only be detained in police or judicial lock-up as the case may be. They cannot be kept confined just anywhere at the discretion of the police officer.14

The Lahore High Court forwarded its judgment in the case of Allah Rakhi v. the State15 to the Secretary of the Law Commission of Pakistan to consider the incorporation of a new Section in the CrPC on the pattern of Section 50 of the Indian CrPC. In the judgment, some directions were given to the subordinate judiciary for better supervision of the police and the ilaqa (local) magistrate.

Law Commission’s Recommendation The Law Commission, in its Report No. 49, considered amendments to Sections 54 and 167 of the CrPC. Section 54 empowers the police to arrest without a warrant in nine situations. If the police are unable to complete the investigation within 24 hours from such arrest, Section 167 provides for further detention by the police up to a maximum of 15 days, subject to the orders of a magistrate. The Law Commission took into account the fact that the Lahore High Court, in the case of Allah Rakhi v. State,16 having had occasion to consider Sections 54 and 167 of the CrPC, issued the following directions to the subordinate judiciary: Person arrested to be informed for grounds of arrest and of the right of bail: 1. Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. 2. Where a police arrests without a warrant, any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. An additional provision through the rules can be made for displaying the provision aforementioned at prominent places or a notice board in bold letters outside every police station for creating public awareness. The Commission suggested the insertion of the following new Section 59A in the CrPC thereby providing for a mandatory right to have someone

informed when a person is arrested: 59A: Right to have someone informed when arrested. 1. Where a person is held, in custody in a Police Station or other premises, he shall be entitled to have a friend or relative or other persons who is [sic] known to him or who is likely to take an interest, in his welfare, told by the Officer In Charge of Police Station about his arrest. 2. A Police Officer not below the rank of Superintendent of Police may only authorise delay where he has reasonable grounds of believing that telling to [sic] the named person of the arrest shall: (a) lead to interference with or harm to the evidence connected with a cognizable offence or interference with or physical injury to other persons; or (b) lead to alerting of other person suspected of having committed such an offence but not yet arrested for it; or (c) hinder the recovery of any property obtained as a result of such an offence’. The Law Commission also recommended that Section 167(4) be amended so as to make certain safeguards mandatory.

Amendment of Section 167 In the said code, in Section 167 in Sub-Section (4) after the word ‘shall’ the word ‘forthwith’ shall be inserted. The following instructions/directions for compliance by the provincial governments were circulated by the Law Commission.17 I. That the SHO is required to send on daily basis a report to their judicial ilaqa Magistrates reflecting the names and addresses of persons who although not nominated in FIR have been detained in exercise of power under Section 54 of the CrPC.

II. All the judicial Ilaqa Magistrates are directed to obtain case reports on a daily basis from the respective police station. Under this control, the session judges are also to be burdened [sic] because of their supervisory role and who may ensure implementation of these direction by the judicial Ilaqa Magistrate. III. [The reason for the requirement to produce the arrested person] before the Magistrate for obtaining remand is that he can notify to the Magistrate if any excess has been committed against him by the Police in violation of provision contain in Sections 50 or 53, Criminal Procedure Code or any other illegal action taken by Police for the purpose of extorting confessions or any other act. IV. A Magistrate while hearing application for grant of remand of an accused person performs judicial functions. The accused through his lawyer or a friend or relatives is entitled to raise objection to the passing of such orders. It is therefore necessary for a Magistrate to pass orders only in open Court. A Magistrate is not expected to pass orders granting remand of accused persons in a mechanical manner. He has to examine very carefully the justification for depriving a citizen of his liberty, which can only be done if material justifying such action is available on record. V. In every case where a Magistrate grants remand to Police or judicial custody of an accused person under Section 167(1), Criminal Procedure Code, he is required by its Sub-section (4) to forward a copy of such order with his reasons to the Sessions Judge. A District Magistrate is to be informed of apprehensions of persons by Police in exercise of their powers under Section 54, Criminal Procedure Code while a Sessions Judge has to be kept informed by Magistrates who allow remand of person for the purpose of investigation beyond a period of 24 hours. A Sessions Judge too like a District Magistrate as pointed out hereinabove is expected to keep vigilance on exercise of such powers by Magistrate. VI. In addition to the provision contained in Section 167, Criminal Procedure Code, High Courts in Pakistan have been issuing Circulars from time to time to safeguard the liberty of a citizen and enjoining

upon the Magistrates to act with due caution so that the liberty of a citizen is not jeopardized.18

Immunity Provisions and Impunity Section 197 of the CrPC bars the prosecution of government servants without executive sanction if the offences relate to acts done in purported discharge of duty. Torture is not considered to be an act done in the course of duty by most civilised countries. Besides, in Pakistan there is a constitutional ban on torture. Impunity is fostered by acquiescence to illegitimate force. The case studies that follow will show that impunity operates, not in the absence of, but despite the law. Allah Baksh died of police torture during custody on 24 January 2008. The Additional Sessions Judge ordered the registration of a case against the custodial officers but the officer in charge of the concerned police station refused to comply with the court’s directives without first ‘consulting’ the Deputy Superintendent of Police (DSP). The DSP, when contacted, said that he was out of the city on medical leave, and as he did not have any information regarding the court orders, he did not register the case.19 In April 2007, a prisoner who attempted to escape from a district court in Lahore was tortured to death by the police in public view.20 Despite the bar on police custody of women (Section 167(5) CrPC), many instances such as the following occur. On 3 November 2007, a local Urdu newspaper Khabrain reported that officers belonging to Bhati Police Station unlawfully entered the house of a notorious brothel keeper. They arrested four of the girls there on charges of prostitution. One of the girls was raped by a police officer in the bathroom. The other three were made to dance in the police station without any clothes on. After the policemen had done with the dancing, they made the detainees indulge in sexual acts with each other. According to the report, this went on the entire night. The next day, all the women were charged with prostitution. The newspaper found out about this incident after the brothel keeper insisted that the deviant police officers be prosecuted. There is no way of knowing whether this

demand of hers was met as the paper did not publish a follow-up on the story. A young girl Kulsoom married against her family’s wishes. Her brother filed a First Information Report (FIR) against Kulsoom’s new husband, Fazal Abbas, on charges of abduction, rape and theft of jewellery and cash. Relatives of Kulsoom, including the parliamentarian Ifthekar Baloch, came with police officials to raid Kulsoom’s house and beat her up. She escaped with the neighbours’ help. Kulsoom’s relatives, with the policemen, later picked up Fazal Abbas and his four sisters. One of the sisters, aged 16 years, was taken away in a car by Ifthekar Baloch and has not been seen since then. Fazal and his three other sisters including Nadia, a national badminton champion, were beaten at the airport police station at Rawalpindi by the Station House Officer (SHO), Chowdhry Safdar, and Assistant SubInspector (ASI) Basheer. The women’s clothes were torn, their hair was pulled and they were thrown against the wall and asked about the whereabouts of Kulsoom. Ifthekar Baloch visited the police station and informed the women that until they revealed Kulsoom’s whereabouts, their sister Shazia would not be released from his custody. Later, the three women were produced before a Civil Judge in Rawalpindi, one Azmat Ullah, and charged with aiding the abduction of Kulsoom. The judge ignored their claims of torture and granted police custody. Some days later, officers of Barana Police Station Jhang arrested Shafiq Dogar (husband of Fazal Abbas’ elder sister) and charged him with cheating. This area lies in the electoral constituency of Ifthekar Baloch. He was taken by ASI Basheer and Kulsoom’s brothers to the Airport police station where he was beaten so badly that he lost the use of his legs. According to Shafiq, his legs were broken but he was not given any medical help. He was produced in a wheel chair before the same judge, Azmat Ullah, who turned a blind eye to his injuries. He was released on bail but remanded to custody on the fresh charge of aiding Kulsoom’s abduction. After an Asian Human Rights Commission (AHRC) appeal led to extensive media coverage, Dogar’s release was ordered by the Chief Justice of the

Lahore High Court by a suo motu action. Although police security guards were posted at his home upon the orders of the High Court, Dogar’s family has been constantly intimidated to withdraw his complaint of illegal arrest. His family has been forced into hiding. After Dogar’s arrest his wife was released from custody. The other two sisters, Nadia and Nazia, aged 12, were released on bail. When the mother, Nasrin Akhtar, aged 50, went to collect her children from Adiala Jail Rawalpindi, she was arrested. She was taken to the Airport police station and beaten by the same SHO and ASI and she still bears marks of torture on her back and hands. As of 2009, she was in Adiala Jail on the orders of the Judge Azmat Ullah.21

Juvenile Justice System Ordinance, 2000 The Juvenile Justice System Ordinance (JJSO) was enacted on 1 July 2000. It is in keeping with some of features of the CRC contained in Articles 1, 37 and 40. Under the JJSO, a child is defined as a person who, at the time of commission of an offence, is below 18 years22 (raising it from 15 and 16 years in the Provincial laws23). The guardian of an arrested juvenile as well as the concerned probation officer must be informed as early as possible of the arrest.24 A child arrested for a non-bailable offence must be produced before the juvenile court within 24 hours.25 A child arrested for a bailable offence must be released on bail even without surety, but in exceptional circumstances can be kept under the supervision of the probation officer or his/her guardians. There is a clear prohibition against housing children in police stations or prisons.26 There is provision for children to be released on probation27 or to be detained in borstal institutions (which is defined as a place where a child may be detained and given education and training for their mental, moral and psychological development). Corporal punishment or hard labour cannot be imposed on children undergoing a jail term.28 Nor may any child be handcuffed or put in fetters.29

JJSO requires the child—victim or accused—to be provided free legal representation,30 and free medical treatment.31 Juvenile courts are to try such cases and a child cannot be tried jointly with an adult.32 The court must decide the case within four months of taking cognizance.33 No child may be sentenced to death.34 Offences carrying upto 10 years’ punishment are bailable for children under 15.35 A shocking feature of the Anti-Terrorism Act (ATA) (1997) is the provision pertaining to children. Section 2(d) defines a child as any person below 18.36 Section 21C(4) states that a child who, unauthorisedly, either provides or receives instruction or training in making or use of (a) firearms, (b) explosives or (c) chemical, biological and other weapons will be guilty under the Act. He is liable to be punished (Section 21-C[5]) and imprisoned for a term not less than six months and not exceeding five years.37 Pakistan has ratified the CRC and such a provision in the ATA is in violation of its international obligations under the CRC. In particular, Article 40(3) of the CRC states: States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; (b) Whenever appropriate and desirable, measures for dealing with such children shall be adopted without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.38 Article 37(b) of the CRC also provides that [n]o child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.39

However, children are routinely held and tortured in police custody and magistrates remand them to custody despite the mandate of the law. Mohammad Mobeen, aged 16, had a fight with his neighbour in November 2007. The neighbour, who was friends with the SHO, had Mobeen arrested under a false charge of theft. He was kept in the police station for a month and severely beaten up. The SHO even offered to cut a deal with him—Pakistani Rupees 50,000 in lieu of freedom. Mobeen could not afford it and hence could not secure his freedom. When the SHO realised that he could not pay him, they kept him in the police station for another month. After the marks of the beating faded away, they presented him to the magistrate who then sent him to prison. He has been there, under false charges, since then.40 Zeeshan Budd, 17, was picked up on the evening of 17 January 2008, between his grandmother’s and his parents’ house in the jurisdiction of Shah Lateef Town in Punjab. The boy says that he had hitched a ride on a motorbike and had been arrested along with the driver, who was apparently wanted by the police. The police tell a different story. According to them, they responded to a complaint about a stolen bike and mobile phone, and picked up the boy alone. Either way, it is illegal to keep a 17-year-old in police custody. After arresting Zeeshan, three officers including Head Constable Arif Sharr and Constable Mohammad Ashraf beat him and raped him in custody and distributed a video of the rape, which was recorded on the officer’s mobile phone. The police asked for money from the grandmother the next day. Zeeshan’s grandmother, Kulsoom Akhter, agreed to pay half of the requested bribe of Pakistani Rupees 50,000 so that he could be released. Akhter, the grandmother, appeared at her grandson’s hearing in court with evidence of his rape, but a medical check-up ordered by the judge was delayed for a week by the police, reducing the chance of medical evidence of rape being found. Zeeshan’s relatives moved court, demanding that an FIR be lodged against the officers. A judge has ordered an investigation into the abuse, but the FIR report has yet to be filed. In the meantime, eight charges of robbery were filed against Zeeshan, which his family claims are fabricated. The boy continued to be in custody when this case was reported by Asian Centre for

Human Rights (ACHR), and the guilty policemen continued to hold office.41 Zohair, 13, was picked up on suspicion that he was an accomplice of his cousin in a theft. Zohair was kept in police custody for over a month and forced to speak out against his cousin. His teeth were broken and nails pulled out by the police. He was produced before the magistrate when the marks of beating had faded. Without demur, the magistrate remanded this boy to jail, and the child was too petrified to say anything. His parents still do not know his whereabouts.42 Two young girls of 15 and 12 were arrested with other members of their family. Their crime? Their brother had married a girl against her family’s wishes. So, all of the groom’s family including these little girls were charged with ‘aiding rape’. The magistrate remanded all of them to custody without paying any heed to their complaints of torture.43 A 17-year-old girl, the daughter of a labourer, Manzoor Ahmed of Millat Town, Faisalabad, Punjab Province, was arrested on 14 March 2008, from her home by Ghulam Rasool, Sub-Inspector (SI) of police station, Nishatabad, on a ‘suspicion’ that she had murdered her fiancée. Her fiancée was actually killed by someone else with whom he had some rivalry. The SI took her to a private room situated near the police station and held her there for 16 days. Thereafter, he produced her before the first class magistrate for a judicial remand. During the 16 days of illegal custody, she was kept naked at all times and the SI along with other constables—Iqbal, Ameer Watto and Shehbaz— physically teased and tortured her to force her to confess to the murder. She was raped and threatened by the SI. After the physical torture, a lady constable, Nargis, would massage her to remove the marks of torture, particularly the bite marks on her body. Her elder sister was also arrested and both the girls were made to sit in front of each other naked for three days while Ghulam Rasool, Iqbal, Ameer Watto and Shehbaz constables teased them, touched their private body parts and tortured them brutally. After a week of her illegal detention, a supplementary statement was taken by the investigation officer from the father of the deceased implicating the younger sister in the murder. Manzoor Ahmed, the girls’ father, contacted higher police officials to register a case against the perpetrators but did not

succeed. He then filed an application in the court of Mr Nadeem Gulzar, the Additional Sessions judge, who ordered the police station of Nishatabad to register a case of rape in custody, illegal detention, torture and more. The district police initially refused to follow the orders of the court. Later, an FIR of rape was lodged against the SI (Investigations), Shujat Malhi, but he has nto been arrested; the case has not proceeded and the guilty men continue in office.44 If the above case reports are even partially accurate, what use does the Juvenile Justice Law or any beneficial legislation have in the face of such a derelict magistracy? Though young Rashid, all of 17, gathered the courage to tell the magistrate that he had been tortured, the magistrate retorted that that is how it would be. Similarly, the case of Shafeeq Dogar shows how judges overlook even blatant physical disabilities caused by custodial torture. Shafeeq’s legs had been broken and he could barely walk but the judge refused to note the fact and did nothing to order medical aid. Even where the judge orders action to be taken, the police of Pakistan brazenly refuse to act. A young boy is raped by the policemen in custody. The rape is video-taped by them and used for blackmail. The child’s grandmother has to produce the tape in court to persuade the judge to take action. The judge first orders a medical examination of the boy, which is delayed. The judge later directs a criminal prosecution of the policemen responsible for the outrage but the police brazenly disobey the court’s directive. Another young girl is repeatedly raped in custody and though, on court orders, a prosecution for rape is initiated, no action is taken against the perpetrators of custodial rape, who walk free as before. ‘During our visit to the juvenile jail’, says Rabia Chowdhry, we were informed by almost all the children that ‘there was nothing that you could not get in there’. In fact, one of the most common problems in the juvenile jail is that of smoking. Despite the fact that smoking is prohibited, a majority of the children possessed cigarettes. Some even indicated that they had access to soft drugs like marijuana. Needless to say, all this is possible because bribery is commonplace. The inmates of the juvenile section said that they were being provided a standard medicine for all ailments. Minor headaches and major

ailments all were treated with the same medicine. Those who could read told us that these medicines were inevitably past their date of expiry.45 _________________ 1

Section 54, CrPC.

2

Article 10(2), Section 61 CrPC.

3

Section 167, CrPC.

4

Section 167(5), CrPC.

5

Section 162, CrPC.

6

Section 163, CrPC.

7

Sections 38 and 39, Qanoon-e-Shahadat Order 1984.

8

Section 40, Qanoon-e-Shahadat Order 1984.

9

Section 164, CrPC.

10

Sections 337, 338 and 348 Pakistan Penal Code.

11

Section 176 CrPC.

12

Khizer Hayat v. The State, PLD 2005 Lahore 470.

13

Rule 26.1, Police Rules, 1934.

14

The State v. Muhammad Yusuf, PLD 1965 Lahore 324 (CIA [Punjab] Office is not a police lock-up unless so declared by notification issued by the government). 15

As cited in Law and Justice Commission of Pakistan, Examination of Sections 54 & 167 of the Code of Criminal Procedure, 1898. Available at http://www.commonlii.org/pk/other/PKLJC/reports/49.html (last accessed on 30 November 2012). 16

Ibid.

17

The language is reproduced verbatim except for the words in the brackets.

18

Law and Justice Commission of Pakistan, Examination of Sections 54 & 167 of the Code of Criminal Procedure, 1898. Available at http://www.commonlii.org/pk/other/PKLJC/reports/49.html (last accessed on 30 November 2012). 19

Daily Dawn, 31 January 2008.

20

The Nation, 26 April 2007.

21

AHRC UAC-051-2009, 20 May 2009.

22

Section 2(b) JJSO.

23

See www.sparcpk.org (last accessed on 30 November 2012).

24

Section 10(1), JJSO.

25

Section 10(2), JJSO.

26

Section 10(3), JJSO.

27

Section 11, JJSO.

28

Section 12(a), JJSO.

29

Section 12(b), JJSO.

30

Section 3(1), JJSO.

31

Section 6(5), JJSO.

32

Section 5, JJSO.

33

Section 6, JJSO.

34

Section 12(a), JJSO.

35

Section 5, JJSO.

36

‘Child’ means a person who at the time of the commission of the offence has not attained the age of 18 years, ATA, 1997, PLD 1997 Fed St 225. 37

A child guilty of an offence under Sub-section (4) shall be liable on conviction to imprisonment for a term not less than six months and not exceeding five years (ATA, 1997). 38

Article 40(3), Convention on the Rights of the Child, U.N. Doc. A/RES/44/25 (12 December

1989). 39

Article 37(b), CRC.

40

This case is part of Rabia Chowdhry’s report.

41

Statement by AHRC on 14 March 2009.

42

Report from Pakistan (personal interview with Rabia Chowdhry’s team).

43

Ibid.

44

Asian Human Rights Commission, ‘Pakistan: A Girl Raped in Custody by Police Officers and Her Sister Kept Nude in Lock Up’, Asian Human Rights Commission, Urgent Appeal Case: AHRCUAC-164-2008, 21 July 2008, available at http://www.humanrights.asia/news/urgent-appeals/AHRCUAC-164-2008/ (last accessed on 28 November 2012). 45

report.

Direct quotes given by the inmates to Rabia Chowdhry have been reproduced by her in her

14 Correcting the Custodians Asma Jahangir writes that 78 per cent of female prisoners in Punjab alleged maltreatment during police custody. Of these, 72 per cent complained of sexual abuse by the police. Torture in police stations can take many forms —solitary confinement, sleep deprivation, being suspended from the ceiling by wrists or ankles and beating by sticks and leather straps especially on the soles of the feet. Sexual abuse includes rape, insertion of foreign objects into the vagina and rectum, beating of exposed genital areas, stripping and public exposure.1 Years of corrosion faced by the justice system have led security personnel to believe that they are not accountable to any authority. There can be no other explanation for the fact that despite court orders, there have been no prosecutions of the offenders who killed detainees in custody.

Action against Errant Officials Prosecutions Rabia Chowdhry examined a random sample of 5,578 complaints against the police by the public. Out of the 5,578, criminal cases were registered in

only 487. Of the 487 cases registered, charge-sheets were filed in only 232. Eventually, only three of all those cases ended in conviction. From 2002 to 2007, only 1,820 cases were examined at the office of the Surgeon Medico-legal for alleged police torture. Of the victims, 72.64 per cent were those who had gone to court against the torture and were directed to be examined by the Medico-legal Department.2 Apart from the fact that the average number of cases examined is less than 400 a year, these statistics indicate that there is no self-executing system of correction. By and large, it is the victims who have to proactively bring torture cases to light.

Administrative Action: The Police Order, 20023 The Police Order prescribes penalties to be imposed on a police officer for neglect of duty or misuse of power.4 Article 156(d) of the Police Order refers to torture in custody and prescribes a maximum penalty of five years’ imprisonment in case of conviction. Chapter V of the Police Order provides for a Provincial Public Safety (and Police Complaints) Commission to be set up. These commissions may, on their own or on a complaint received from an aggrieved person, take cognizance of ‘police neglect, abuse of authority and conduct prejudicial to public interest’.5 Clause 80 of the Police Order was amended to enable ‘registration of a criminal case under the relevant provisions of the Penal Code’ against a deviant officer. There is no record available of whether or not any cases were indeed registered under the provision. The catch is that the power to prosecute lies with the police itself. Justice (Retd.) Jawwad S. Khawaja provided researcher Rabia Chowdhry with the record of a case, which he had decided in 2002. This case was not related to custodial violence but during the proceedings, Justice Khawaja had ordered the police department to provide statistics regarding officers penalised for exceeding their authority. He was shocked to learn that between 2000 and 2002, though departmental proceedings had been initiated against quite a few, not a single police officer had been prosecuted for transgressing his/her authority.

Rabia’s team tried contacting the police department for updated figures. Despite their best efforts, they were denied access to data.

The Good Exceptions Criminal courts have, on occasion, initiated action against officials for abusive conduct. Also, despite the absence of a specific provision for command responsibility in the police laws, sometimes action has been taken against seniors on account of misdemeanour by a junior. • Nusrat Bano, a resident of Okara, was asleep in her house along with her children and her old mother when Assistant Sub-Inspector of Police (ASI) Mazhar Pasha and his band of officers entered her residence by scaling the walls. They then started abusing and threatening her. Her son attempted to save her, only to face the ire of the intruders. Later, on Nusrat Bano’s application, the Additional Sessions Judge directed the registration of a case against the ASI and four others. • Three police officials were suspended in January 20086 after an alleged thief died under mysterious circumstances while in custody. The suspect, apparently a known addict, was brought to the police station after having been caught red-handed stealing a truck battery. The Superintendent of Police (SP) claimed that the suspect had, while under the influence of drugs, hit his head against the walls of the lockup and suffered a head injury. He was taken to a local clinic in order to get the wound sutured. After being brought back to the lockup, he went to sleep and was found dead in the morning. Nevertheless, the SP suspended the Sub-Inspector (SI) and the constable for negligence. • A murder case was registered against an Station House Officer (SHO) and four other constables after a farmer died of torture in their custody. This case was registered on the orders of the higher district officials, who had earlier assured relatives of the deceased that justice would be done.7

Human Rights Officer The office of a Human Rights Officer (HRO) was established in January 2006. These HROs were appointed in all police stations of the capital city and selected from among SIs and inspectors who had served as HROs in UN Missions. Their primary function was to protect the human rights of detainees, to check illegal detention and torture, and to ensure medical attention and production in court within 24 hours of arrest. Until nearly the end of 2007, not a single case was reported by any HRO, which shows how casually they functioned. It was then decided to withdraw uniformed HROs from police stations and replace them with civilians. But without proper training and well-defined powers, this measure can hardly be expected to succeed.

Prison Laws Prison Rules provide for mandatory medical examination on admission.8 If any injuries are discovered they must be reported to the District Magistrate and to the police.9 The Human Rights Commission of Pakistan (HRCP)10 reported physical and sexual abuse of prisoners, especially women, by prison officials. Over the years Non-governmental Organisation (NGOs), legal aid cells and newspapers have gained access to prisons, thereby reducing the occurrence of torture in prisons, particularly in the big cities. Following is the gist of Rabia Chowdhry’s report on prison conditions, including some case studies. Female prisoners also seem to get considerable respite from sexual violence in prisons though not in police lock-ups possibly because of females guards in the jails. This illustrates the dire need for female constables and officers in police lock-ups although women guards are often complicit in the torture that takes place as seen in some of the case studies. Women inmates of Kot Lakhpat jail say that none of them had ever been abused by the prison staff. One woman, who was from a far-flung village of Punjab, said that she felt safer in jail than in her village. Juvenile offenders had a similar story to tell.11

Rabia Chowdhry noticed after visiting many jails that the availability of medical facilities varies from prison to prison. All the women prisoners at Kot Lakpat jail said that they were satisfied with the medical treatment being provided to them. One lady said that her daughter’s tuberculosis was being treated at the prison with due care. All of the women who had children said that their children were being provided adequate medical care. The HRCP Report 2007 blamed the inadequate allocation of resources for the poor healthcare in jails. In 2007, Pakistani Rupees 2.5 million were allocated for medical treatment of all prisoners which turns out to be 34 paisa (less than half a US cent) per prisoner per day. In Gujranwala Central Prison, there were only two doctors for the treatment of 3,898 inmates.12 While in custody, 17 prisoners died of natural causes in 2007. Family members alleged that neglect by prison authorities, medical neglect and custodial violence had contributed to these deaths. Under Prison Rules, all pregnancies are to be reported to the magistrate for the purpose of securing a woman’s release on bail.13 At the same time, Prison Rules provide for child-birth in prison.14 Though courts have the power to free such prisoners, they seldom do so. Farah Shehzad was three months pregnant when she came to the prison. She told Rabiya Chowdhry’s team that she had been bleeding for two days. She had informed the prison authorities of this, but as they could not get hold of a gynaecologist, she could not get a proper medical check-up. Farah suspected that the baby might have died but there was no knowing until she had a proper medical check up. In the meantime, the jail staff had provided her a standard Panadol to ease the pain.

Corruption and Torture of the Poor in Jail Corruption in prisons has been exalted to an operative principle dividing prisoners into two categories—those who can pay bribes and those who cannot. Those who can afford to pay bribes are able to lead lives of considerable ease and comfort and even have access to mobile phones, alcohol and drugs. Bribery is the norm in prisons. The only way prisoners

can get access to facilities that the jail staff are legally obliged to provide them is by paying bribes. On 15 November 2007, 65 inmates of the narcotic block of Kot Lakhpat Jail were forcibly removed from their barracks in the middle of the night and made to stand under the open sky in the bitter cold. Amongst these were five children and three pregnant women. When they tried resisting this blatant misuse of power, the superintendent threatened to transfer them to the Multan jail and, to scare them into submission, she even had their belongings brought out. All the prisoners stood out in extreme cold conditions for the entire night. Upon inquiry, it was found that the purpose of this exercise was that a few VIP prisoners were being brought in and an empty cell was needed. The inmates protested against this atrocity to the then Chief Minister of Punjab and the Home Secretary, but according to a newspaper report, no action was taken in this regard.

Postscript In a country that has seen the destruction of its democratic institutions almost since its inception, there are individuals and institutions of indomitable courage who are keeping alive the fight for rights. If phrases like ‘liberty’ and ‘due process’ are heard in the midst of military despotism and fundamentalist babble, it is only because institutions are being held to account by this determined set of people. The judiciary is now waging a game battle, but interesting as that course is, it must be left for another time and place. Chief among the rights crusaders is the HRCP. This is not a body set up by the state, but is a non-profit, independent NGO consisting of eminent intellectuals and activists of Pakistan, men and women of unimpeachable integrity and exceptional credibility. The HRCP’s reports on women’s rights, the Hudood Ordinance, prison conditions, police excesses, the minority rights, tribal concerns and many other important human rights issues are most illuminating, and the present work has drawn heavily on those. The HRCP has also taken up the issue of enforced disappearances in the Supreme Court.

Pakistan has also had a very committed women’s movement. Diverse groups such as the Women’s Action Forum, the All-Pakistan Women’s Association, the Pakistan Women Lawyers’ Association have been active on gender issues. Their work is truly inspiring. _________________ 1

Asma Jahangir, The Hudood Ordinance: A Divine Sanction? (Sang-e-Meel Publications, 2003), p. 37. 2

Study conducted by Dr Waseem Haider (Student of PhD at the University of Health Sciences, Lahore). 3

For an updated version of the Police Order quoted in this http://www.punjabpolice.gov.pk/page.asp?id=227 (last accessed in May 2010). 4

Clauses 155–157, Police Order 2002.

5

A separate commission has been set up in Islamabad.

6

Daily Dawn, 6 January 2008.

7

Daily Dawn, 13 January 2008.

8

passage,

see

Rules 18 and 21, Chapter 3, Prison Rules and Rule 19, Chapter 3, Prison Rules in the case of women with care to see whether there are any unexplained injuries. 9

Rule 20, Chapter 3, Prison Rules.

10

HRCP Report 2007.

11

As spoken by inmates to Rabia Chowdhry’s team.

12

Daily Dawn, 20 July 2007.

13

Rule 324, Chapter 13, Prison Rules.

14

Rules 322 to 325, Chapter 13, Prison Rules.

SECTION THREE

BANGLADESH

15 Martial Law and Other Regimes: 1971–2010 The eastern part of undivided India’s Bengal was joined to Pakistan in 1947 when India was partitioned. Called East Bengal and later East Pakistan, the region remained with Pakistan till 1971 when it declared Independence, fought a bloody war of liberation (with Pakistan) and emerged as the People’s Republic of Bangladesh. Bangladesh has inherited many of the laws and legal systems of colonial India. Under the Constitution of 1971, several of these existing laws were continued, notably the Penal Code, the Code of Criminal Procedure and the Evidence Act. Thus, the laws of Bangladesh have many things in common with the laws of Pakistan and India. After Independence, Bangladesh has seen much political turmoil. Martial law regimes and states of emergency have been regular occurrences. The first government of newly independent Bangladesh under Prime Minister Sheikh Mujibur Rahman was faced with the formidable task of restoring order to the war-ravaged nation. In 1974, a famine struck Bangladesh making matters difficult. In an attempt to control expressions of people’s discontentment, Sheikh Mujibur Rahman’s regime turned repressive. He converted Bangladesh to a presidential form of government and himself became President. Political parties were dissolved, press freedom curtailed and personal freedoms restricted.

On 15 August 1975, a military coup ended Mujibur Rahman’s authoritarian rule. The Sheikh, most of his family members, ministers and leaders of the ruling Awami League were assassinated. Within months of this, two more assassinations and coups in quick succession saw Major General Ziaur-Rahman take control. Zia-ur-Rahman himself survived several coup attempts and ruled from 1975 to 1981, first as the Martial Law Administrator under President Chief Justice Abu Sadat Mohammad Sayem, and then as President from 1977. In May 1981, Zia-ur-Rahman was assassinated in an army coup led by Major-General Manzur Ahmed. As laid down in the Constitution,1 the Chief Justice became Acting President and called for elections, which the Acting President won. However, the army staged yet another coup in May 1982, and the Army Chief-of-Staff, Lieutenant-General Hussain Muhammad Ershad, assumed power. Ershad proclaimed Bangladesh an Islamic Republic. He first suspended the Constitution and later made amendments to it that validated his martial law regime. Another decade of military dictatorship followed. In 1990, with people’s resentment increasing against Ershad’s dictatorship and the army withdrawing support to him, he resigned. Thus, from 1975 to 1990, the country was under an unbroken spell of military rule and the army became a major player in Bangladeshi politics. Since 1991, general elections have been held more or less regularly. The Awami League led by Mujibur Rehman’s daughter, Sheikh Hasina, and the Bangladesh Jatiyobadi Dol (BNP) led by the widow of Zia-ur-Rahman, Khaleda Zia, have alternated in office. In the 1991 election, Khaleda Zia of the BNP came to power. She remained in office till 1996 during which period she initiated some democratic reforms.2 Through the 12th Amendment, a parliamentary system was adopted with the Prime Minister as the political head and the President as the constitutional head.3 In February 1996, the BNP won by a huge margin, but the victory was vigorously contested as ‘illegitimate’ by the Awami League. Fresh elections were held in June 1996 which saw the Awami League propelled to office. By the Constitution (13th Amendment) Act, 1996, a provision was inserted to ensure that future elections would be held only after a caretaker government was installed at the end of each parliamentary term, to oversee

the new elections as a neutral party.4 In 2001, the BNP rode back to office under the leadership of Khaleda Zia. The next general election was due in January 2007 and on its eve a caretaker government was duly put in place with President Lajuddin Ahmed as the chief advisor to the government. But, on 11 January 2007, just as the 90-day period within which elections were to be held was about to end, a state of emergency was declared.5 The President, along with nine others, stepped down as advisors to the caretaker government. Fazlul Haque, the sole remaining advisor, was appointed the Interim Chief Advisor. The very next day, a new caretaker government led by Fakhruddin Ahmed, a former Bangladesh Bank governor, assumed office. The Emergency Powers Ordinance (EPO), 2007, and Emergency Powers Rules (EPR), 2007, were promulgated, both of which suspended the Fundamental Rights guaranteed by the Constitution. These orders prohibited any publication that was ‘critical of the government’ or ‘provocative’.6 Any association, procession, demonstration or rally without special permission from the authorities was forbidden.7 Section 16(2) authorised any member of the ‘law and order maintaining force’ to arrest without a warrant any person, on mere suspicion.8 The Emergency ended in December 2008. In the general elections that followed, Sheikh Hasina’s Awami Leaugue in an alliance with the Jatiya Party of General Ershad came to power and is currently in office. In its 40 years of existence, Bangladesh has spent 15 under formal military rule, 2 years under a declared emergency and the remaining under popular or elected governments ruling with innumerable security laws curtailing due process and individual freedoms. The higher judiciary of Bangladesh has, however, consistently upheld judicial review, ruled against police excesses and given exemplary directives to ensure custodial accountability. Bangladesh has ratified many important human rights instruments and its Constitution prohibits custodial torture. The junior magistracy, unfortunately, has not risen to the task of actualising custodial justice. The country is reeling under the numerous security laws that reinforce uncontrolled police power and grant impunity to state agents. As it happens, martial law has been declared unconstitutional in principle by the Supreme Court in two judgments delivered in 2010. The

Appellate Division of the Supreme Court confirmed the ruling of its High Court Division that proclamation of martial law would violate the basic structure of the Constitution. The High Court held so while disposing of two separate writ petitions, challenging the two separate spells of martial law. One was a challenge to the Fifth Amendment of the Constitution, which had ratified the proclamation of martial law by Zia-ur-Rahman in 1975. The second challenged the Seventh Amendment of 1986, which had ratified Ershad’s 1982 declaration of martial law. The Appellate Division went on to say that Martial Law Administrators were usurpers deserving punishment, but it was, however, for the Parliament to pass a law for imposing such penalty.9 Chapter 16 deals with Bangladesh’s commitments under international human rights instruments, its constitutional and statutory provisions affecting custodial justice and related court rulings. Chapter 17 details some important court directives, and recommendations of national commissions and international committees, on custodial justice. Chapter 18 gives case studies of custodial abuse, in the context of special security laws. _________________ 1

Article 58D of the Constitution of Bangladesh.

2

Douglas A. Philips and Charles F. Gritzner, Bangladesh (Chelsea House: 2007), pp. 48–50.

3

Muthiah Alagappa (ed.), Coercion and Governance: The Declining Political Role of the Military in Asia (Stanford University Press, 2001), p. 210. 4

Article 123(3) of the Constitution of Bangladesh.

5

Article 141 A of the Constitution of Bangladesh.

6

Section 5 of the Emergency Powers Rules 2007.

7

Section 3 of the Emergency Powers Rules 2007.

8

16. Appointment of different law and order forces to help civil administration. (1) The government can employ different law and order forces besides police to help the civil administration during the state of emergency. (2) Members of different law and order forces employed under sub-rule (1) will have the same level of power regarding raid and arrest as the police officers enjoy under the Code of Criminal Procedure; and any member of the law and order forces on duty can arrest without warrant and take legal actions against any person found to be committing any crime under this Rules or any other valid act, or any person legitimately suspected to be involved in such crimes. (3) Members of different law and order forces will strictly follow the provisions of the Code of Criminal Procedure in executing a raid under sub-rule (2).

9

In Khondker Hossain v. Bangladesh Italian Marble Works Ltd. and Munshi Kabir v. Bangladesh Italian Marble Works Ltd, Appeal Nos. 1044 and 1045 of 2009, and Siddique Ahmed v. State of Bangladesh, W.P. No. 696 of 2010.

16 International Commitments and Domestic Legal Framework International Commitments Bangladesh ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT or Convention against Torture) as well as the ICCPR in 1998. However, it has entered a reservation to Article 14 of the CAT, which provision imposes an obligation on State Parties to pay fair and adequate compensation to victims of torture. The main three components of a victim’s right to a remedy are access to justice, reparations and truth.1 In view of the Updated Set of Principles to combat impunity and the observations of the UN Committee on the Convention against Torture,2 Bangladesh has the obligation to investigate and prosecute crimes of torture and ensure reparation. Bangladesh has permitted Special Rapporteurs to visit parts of the country. On the other hand, it is yet to enact any specific law against torture, though the Torture and Custodial Death (Prohibition) Bill is pending in Parliament since February 2009.3 Aside from Article 35(5) of the Constitution, which prohibits torture and other degrading punishment, the only law at present that can be said to deal with custodial torture in any

manner at all is the Prevention of Oppression of Women and Children Act, 2000. This recognises rape in custody as a distinct offence and even imposes a vicarious criminal liability or ‘command responsibility’ on the officers responsible for custody. The Supreme Court of Bangladesh has directed that magistrates before whom suspects are produced from custody should, as a matter of course, proceed against the police officials if it appears that unlawful force has been used against a suspect. These directives are dealt with in more detail in Chapter 17.

Constitutional Framework Part III of the Constitution guarantees the Fundamental Rights including safeguards against arbitrary arrest and detention. All persons have the right to life, due process and the right to be informed of grounds of detention.4 Citizens have the right to equality5 and other important rights. Article 33, in particular, safeguards the rights of prisoners and detainees. Article 35(5) contains an express bar on the use of ‘torture or other cruel and degrading punishment’, almost in the very words of Article 7 of the ICCPR. Strangely, Article 35(6) exempts from the aforesaid bar any existing law, namely any law existing at the time of the commencement of the Constitution. Fortunately, there was no existing law of the kind that authorised torture. This express constitutional prohibition against torture is the polity’s formal condemnation of the practice in any situation. As said before, the only specific criminal provision relating to custodial torture is the penal provision on custodial rape and death resulting from such rape, found in the Prevention of Oppression of Women and Children Act, 2000. The general penal law in respect of assault, bodily injury and harm (such as hurt and homicide) in effect, though not in terms, would also cover custodial torture. Procedural rules disentitle use of ‘confessions’ or statements made to the police. The good effects of such constitutional and legal provisions are blunted by special laws and sanction requirements that immunise security personnel from penalty for violation.

The Supreme Court has two divisions. The High Court Division has wide powers analogous to the writ jurisdiction6 for the protection of Fundamental Rights and also for other purposes. The Appellate Division of the Supreme Court hears appeals from the decisions of the High Court Division.

Substantive and Procedural Criminal Laws Affecting Custodial Justice The Bangladesh Penal Code, 1860 The Bangladesh Penal Code (BPC), 1860, criminalises the use of force and wrongful confinement to extort a confession.7 Injury to any person caused by a public servant contravening the law is also an offence.8 The punishment for simple and grievous hurt is one and three years, respectively; if caused to extort a confession, the punishment gets aggravated to three and seven years.

The Code of Criminal Procedure, 1898 The Code of Criminal Procedure (CrPC), 1898—as enacted in British India —applies to crime investigation, arrest and custody. It does not apply to preventive detention or to proceedings under special laws and ordinances where these prescribe a different procedure. MAGISTERIAL INQUIRY INTO CUSTODIAL DEATH9 Like India and Pakistan, Bangladesh inherited the CrPC, 1898, which mandated a magisterial inquiry into every death in police custody. Bangladesh has retained this provision, as has Pakistan. In India, by an amendment of 2006 to CrPC, 1973, the stipulation as to such an inquiry has been extended to every instance of violence, disappearance or rape in any custody authorised by a magistrate—not only police custody but also custody in a jail or hospital—and it shall be by a ‘judicial’ magistrate.

POWERS OF ARREST UNDER THE CRPC The police may arrest without a warrant when there is ‘reasonable suspicion’ or ‘credible information’ of the commission of a cognizable offence.10 Within 24 hours, the person arrested must be produced before a magistrate11 who must decide whether or not to authorise further custody. Even the magistrate is powerless to authorise police custody beyond 15 days on the whole.12 Reasons for police custody must be recorded in writing.13 As police custody is one of the main contexts in which custodial torture occurs, it is useful to note the limits that statute law prescribes in that respect. However, magistrates have been known to be cavalier about this serious responsibility as case studies in Chapter 18 show. The Supreme Court has held that the term ‘reasonable suspicion’ must be read to mean some tangible fact and not a vague surmise.14 Also, if an arrest is found unjustified by this test, it would render the arresting policeman liable to penal action under Section 220 of the BPC on the count of wrongful prosecution.15 Distrust of police custody—in recognition of the fact that confessions are generally extorted under torture—is manifest in Section 162 of the CrPC, which rules out of evidence any statement recorded by a policeman. By distinction, ‘confessions’ or admissions of guilt recorded by a magistrate may be used at the trial as evidence against the accused.16 Another significant decision of the Supreme Court17 is one that cautions magistrates about their responsibility while recording confessions. The court ruled that the magistrate must ascertain the duration and nature of police custody and inquire into what might have prompted such an unusual step as self-incrimination. Section 164 of the Bangladesh CrPC does not forbid police custody in case a suspect refuses to make a confession when produced before the magistrate for the purpose. This is unlike Section 164(3) of the Indian CrPC, which contains an express bar against continuing police custody in such a situation. But judicial precedent in Bangladesh has read into the law the safeguard that a suspect produced before a magistrate for recording a confession—whether he or she actually makes a confession or not—should thereafter be sent only to judicial custody.

The higher judiciary has consistently rejected as involuntary the ‘confessions’ of guilt in cases of prolonged police custody, in cases where it was found that magistrates had failed to assure suspects that they would not be sent back to police custody, and in cases where unexplained injuries were found on the detainee after police custody.18 The Supreme Court has further refined the powers of arrest and remand, by giving detailed directives, which are set out in Chapter 17.

The Evidence Act, 1872 Distrust of police custody and its virtual equation with torture is found in the Evidence Act as well. Any statement made by a suspect to a police officer and, in fact, a statement in police custody made to anyone other than a magistrate is outlawed from evidence.19 A confession is anyway ruled out if it appears to the court to have been made under threat or inducement.20 Time and again, courts have invalidated even confessions recorded by magistrates when the suspect appeared to have been under a lurking fear of continued police custody. A statutory exception is, however, grafted into this rule. If there is a discovery of fact directly as a result of a suspect’s statement in police custody, then that limited part which has directly led to the discovery may be read in evidence.21 But courts have laid down stringent tests for the acceptance of statements touted as having led to a discovery.22 The Law Commission has recommended that the Evidence Act should be amended to raise a presumption against the custodial official if injury or death in custody is established.23 The High Court Division has also given directions on this score. These recommendations are adverted to in greater detail presently.

Preventive Detention, Special Laws and Anti-terror Legislations Bangladesh has several preventive detention laws where normal criminal procedure and rules of evidence do not apply. Special laws include the Public Safety Act, 2000 (now repealed), the Acid Control Act, 2002, and

the Acid Offences Prevention Act, 2002, which were enacted ostensibly to protect the people.24 The Law and Order Contravening Offences (Speedy Trial) Act, 2002, and the Speedy Trial Tribunal Act, 2002, are two special laws that deviate from basic due process principles. These special laws define offences in very broad and ambiguous terms, prescribe harsh penalties, give the police wide and arbitrary powers of arrest and detention and deny the right to be released on bail.25 The High Court Division struck down blanket provisions of Emergency Powers Ordinance (EPO) denying judicial review or grant of bail. However, the Appellate Division of the Supreme Court stayed the High Court’s order, though it did permit some judicial review on a case to case basis.26 ANTI-TERROR LEGISLATIONS 2007–2010

During the period of emergency that lasted for 20 months beginning January 2007, the state legitimised practices undermining due process. The Proclamation Order of Emergency issued by the President clearly declared that ‘the right to lodge cases with the courts in order to reinstate the Fundamental Rights ensured in Part III of the Constitution shall remain suspended during the state of emergency’. Article 141B of the Constitution envisages the suspension of some constitutional provisions during declared emergencies and Article 141C permits suspension of Fundamental Rights during an emergency.27 Article 93(1) of the Constitution empowers the President to promulgate ordinances when the Parliament has been dissolved or is not in session.28 Following the declaration of emergency, the EPO, 2007, supplemented by the Emergency Powers Rules (EPR), 2007, came into effect on 25 January 2007. The EPO and EPR suspended Fundamental Rights. All political activities, including those of trade unions, were banned. Political parties were required to close their offices and small private meetings at residences were also banned.29 Both the Ordinance and the Rules empowered the security agencies to arrest citizens without a warrant. The Special Powers Act, 1974, has also been used to arbitrarily detain persons for lengthy periods. Section 3 of the

Special Powers Act authorises the detention of any person for an alleged prejudicial act—according to section 2(f) of the Act—and also authorises the removal of any person from Bangladesh.30 The EPO classified the military, paramilitary forces, the police, intelligence agencies and other irregular forces, under one umbrella, ‘law and order maintaining forces’. Under the EPR, all these agencies, including the police and joint forces were immune from prosecution ‘for anything done in good faith’, thus legitimising impunity.31 Section 16 of EPR empowered all personnel of the ‘law and order maintaining forces’ to arrest any person on suspicion without a warrant. Section 10 rendered all offences mentioned in this law ‘non-bailable’, ‘noncompoundable’ and cognizable, with sentences ranging from two to five years of rigorous imprisonment. To further strengthen the powers of arrest and detention enjoyed by government forces, the Anti-Terror Ordinance, 2008, was promulgated on 11 June 2008. It contained not only a new definition of ‘terrorism’ but also a list of ‘terrorist’ acts. According to Section 6, acts or omissions constituting threats to unity, integrity, security or sovereignty of Bangladesh, creating panic among the people, or obstructing official activities were to be regarded as ‘terrorism’.32 The Anti-Terror Ordinance enhanced powers of arrest and detention and provided for penalties as severe as life imprisonment and death. Under Section 7, persons could be prosecuted on mere suspicion of providing ‘financial or other forms of support’ to ‘terrorist’ activities, which itself was defined very loosely.33 Offences were non-bailable and to be tried in camera by special tribunals.34 The police could hold people for interrogation for 10 consecutive days, extendable by 5 more days by the courts. Almost any pending criminal case could, at the whim of the government, be transferred to be tried under this special law.35 Section 32 rendered the court powerless to grant bail ‘unless satisfied with reasonable grounds that the accused person might not be convicted’. This calls upon courts to pre-judge the case before it has been heard in full and militates against basic due process. Although arrest on the basis of suspicion was permissible under normal law, under the Anti-Terror

Ordinance, the procedure was more drastic and the penalties significantly higher. Bangladesh returned to an elected system of government through the Ninth Parliamentary Elections held on 29 December 2008. The militarybacked ‘Caretaker’ regime handed power over to the new government led by Sheikh Hasina, on 6 January 2009.36 Despite undeniable evidence of its abuse, Sheikh Hasina’s elected government passed the Anti-Terrorism Act, 2009, without due consideration and public consultation. This law retains the many draconian features of the Anti-Terror Ordinance. Odhikar, a reputed Human Rights Organisation, in its Human Rights Report of 2010, has charged that this law has been used mainly against political rivals and members of the media. Some of these cases are referred to in Chapter 18.

Prevention of Oppression of Women and Children Act, 2000 This is perhaps the only law which makes a separate provision for custodial offences, in the form of a separate penal section on rape in custody. Offences under this law are tried by a Special Tribunal.37 Strangely, there is no separate provision on custodial violence upon children. This law penalises rape with a maximum of life imprisonment,38 and also with death, if death has resulted as a consequence of rape.39 Significantly, it also recognises the vicarious liability of other officials responsible for custody.40 The Special Tribunal established under this Act awarded the death penalty to the three policemen accused of raping and killing Yasmin Akter in Moinul Haque (Md.) and Others vs. State.41 This decision of the Special Tribunal was upheld by the High Court Division and later also by the Appellate Division of the Supreme Court. However, in another case, Shima Chowdhury, an 18-year-old victim of an alleged rape in police custody in October 1996, died in Chittagong Jail where she was being held in ‘safe custody’.42 In July 1997, four police officers accused of raping Shima Chowdhury were acquitted by a Chittagong Trial Court. The prosecution was reprimanded by the judge for deliberately presenting a weak case but

nothing else came of it. This shows the importance of the Law Commission recommendation that a statutory presumption should be available against custodial officials when rape or death in custody is established. Although the penal provisions on rape in India (Sections 376(2)(b) and (c)) provide for aggravated punishment for rape in any custodial institution including a hospital, there is no provision for vicarious criminal liability. On the other hand, in India an evidentiary presumption operates by virtue of Section 114A of the Indian Evidence Act against the custodial official if sexual intercourse during custody is proved. Also, in India the sexual history of the prosecutrix is irrelevant in a rape trial, but in Bangladesh it is open to show that the prosecutrix was of a ‘generally immoral character’.43

Impunity Provisions Article 46 of the Constitution enables the Parliament to pass a law immunising any person ‘in the service of the Republic’ from the criminal consequences of ‘any act done during the National Liberation Struggle’. Although the National Liberation Struggle was over in 1971, under Article 46, an operation, ‘Clean Heart’, by Rapid Action Battalion (RAB) and the assisting police forces in 2002 was given a blanket immunity cover under the Joint Drive Indemnity Ordinance, 2003. The Ordinance, severely criticised by civil society groups, became the Indemnity Act of 2003. While the Ordinance had conferred blanket immunity, the Act provided, for administrative action against errant officials. But, till date, despite numerous complaints, no administrative action has been taken in even a single case. Section 13 of the Armed Police Battalions Ordinance also contains a broad protection from prosecution of any and all actions done ‘in good faith’. Section 5(1) of EPO again provides blanket immunity to all security agencies like the Bangladesh Police, Armed Police Battalion, RAB, the armed forces and others. Effective prosecution of perpetrators of custodial torture remains a far cry in the face of such immunity provisions.

Section 197 of CrPC prescribes the pre-condition of an executive sanction for prosecution of public servants for offences relating to acts done in ‘discharge of duty’. Indian courts have taken the view that torture is no part of duty. This would also appear to be the view of the Bangladesh Supreme Court in light of its direction that magistrates should automatically take cognizance of offences against the police if it appears that a suspect produced for a custody remand has been abused or wrongly implicated.

The Police Act The Dacca Metropolitan Police Act, 1976, imposes a trivial penalty of one year where a police officer uses unwarranted violence or intimidation.44 It also vests the police with the power to arrest on suspicion, a provision that has lent itself to recurrent abuse. _________________ 1

See Article VII of the (updated) 2006 United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. 2

See the text of the observations and of Principle 1 in the Section ‘The International Regime on Torture’. 3

A private member Bill tabled in the Parliament on 10 September 2009, available at http://bangladesh.ahrchk.net/docs/TortureandCustodialDeathBill2009.pdf (last accessed on 13 December 2012). 4

Articles 31 and 33 of the Constitution.

5

Article 27 of the Constitution.

6

Article 102 of the Constitution.

7

Sections 330, 331 and 348 BPC.

8

Section 166 BPC.

9

Section 176 CrPC.

10

Section 54 CrPc 1898.

11

Section 61 CrPc.

12

Section 167(2) CrPC.

13

Section 167(3) CrPC.

14

Saifuzzaman v. State, 56 DLR (2004) 324; Blast v. Bangladesh, 55 DLR (2003) 363.

15

Alhaj Mohd.Yusuf Ali v. The State, 22 BLD (2002) 231.

16

Section 164, CrPC 1898.

17

State v. Abul Hashem, 50 DLR (1998) 17.

18

Hafizuddin v. State, 42 DLR (1990) (HCD) 397; Nurul Islam v. State, 45 DLR (1993) 152.

19

Sections 25 and 26 Evidence Act.

20

Section 24 Evidence Act.

21

Section 27 Evidence Act.

22

Zillur Rehman v. State, 6 MLR (HCD) (2001) 99.

23

Law Commission Report No. 17 ‘Final Report on Evidence Act’; Blast v. Bangladesh, 55 DLR (2003) 363. 24

These two Acts were brought in after the increasing incidences of acid attacks on women and young girls, but the fact remains that in terms and in operation, these statutes do abridge due process. 25

Shahdeen Malik, ‘Laws of Bangladesh’, in Bangladesh on the Threshold of the Twenty-First Century, eds, A. M. Chowdhury and Fakrul Alam (Dhaka: Asiatic Society of Bangladesh, 2002), p. 446. 26

The Appellate Division in State v. Moyezuddin Sikder, judgment dated 23 April 2008, held that the High Court Division does not have the jurisdiction to grant bail in the case of any case filed under Rule 19 of the EPR except on the grounds of the case being mala fide, or filed by an improper authority, but may do so in respect of cases filed under Rule 16(2). 27

UNHR Council/Bangladesh: The State of Emergency in Bangladesh, available at http://www.hrsolidarity.net/mainfile.php/2006vol16no02/2504/ (last accessed on 30 November 2012). 28

Odhikar, Odhikar Report on Bangladesh (2007), available at http://www.odhikar.org/documents/2007/English/HR_REPORT_2007.pdf (last accessed on 28 November 2012). 29

A.K.M. Masudul Haque, ‘Emergency Powers and Caretaker Government in Bangladesh’, Journal of the Australasian Law Teachers Association, 2008. 30

‘One Year On: Human Rights in Bangladesh under the State of Emergency’, available at http://www.amnesty.org/en/for-media/press-releases/one-year-human-rights-bangladesh-under-stateemergency-20080110 (last accessed on 30 November 2012). 31

Ibid.

32

Odhikar, Odhikar Report on Bangladesh, op. cit.

33

‘UN HRCOUNCIL/BANGLADESH: The State of Emergency in Bangladesh’, available at http://www.hrsolidarity.net/mainfile.php/2006vol16no02/2504/ (accessed on 30 November 2012). 34

See http://www.minlaw.gov.bd/aboutbangladesh.htm (last accessed on 30 November 2012).

35

Bureau of Democracy, Human Rights, and Labor, ‘Bangladesh’, available http://www.state.gov/g/drl/rls/hrrpt/2007/100612.htm (last accessed on 30 November 2012). 36

Odhikar Human Rights Report 2009.

37

Section 20 and 25 of Prevention of Oppression of Women and Children Act 2000.

38

Section 9(i) Prevention of Oppression of Women and Children Act 2000.

39

Section 9(ii) Prevention of Oppression of Women and Children Act 2000.

40

Section 9(v) Prevention of Oppression of Women and Children Act 2000.

41

56 DLR (AD) (2004) 81.

42

As per Section 31, Prevention of Oppression of Women and Children Act, 2000:

at

If at any stage of the trial of an offence under this Act, the Tribunal thinks that any woman or child is needed to be kept in safe custody, the tribunal can direct to keep the woman or the child out of the jail and under the custody of a Government authority determined by the Government for this purpose or under the custody of a person or organization whom the tribunal thinks proper. 43

Bangladesh Evidence Act Section 155(4).

44

Section 53, Dacca Metropolitan Police Act, 1976.

17 Court Directives and Recommendations of Judicial Commissions Supreme Court Directives The Bangladesh higher judiciary has been applying itself to developing human rights jurisprudence. To this end, it has taken every opportunity to instil elements of accountability in the criminal justice system. The Supreme Court’s directions in BLAST v. Bangladesh1 and Saifuzzaman v. State2 may be summed up under three heads—arrest, police custody and torture. • ‘Arrest’: Powers under Section 54 of the Code of Criminal Procedure (CrPC) which relate to arrest without a warrant in cognizable offences and some other situations may not be used as a ruse for preventive detention under Section 3 of the Special Powers Act, 1974. The arresting officials shall clearly disclose their identity and a contemporaneous record shall be made of the grounds of arrest. The detainee shall be furnished with the grounds within three hours of arrest and allowed access to a lawyer and to his/her family.

• ‘Police Custody’: Further custody beyond 24 hours may only be granted if the officer seeking the same makes out a clear case justifying the accusation and explaining why the investigation could not be completed within 24 hours of arrest. A magistrate authorising detention in police custody should be satisfied with the reasons of arrest and remand and also of the fact that the accused was accorded an opportunity to consult a lawyer of his or her choice. If the police officer’s reasons seeking further custody are unsatisfactory, the magistrate should proceed against the concerned police officer by taking cognizance of an offence under Section 220 of the Penal Code (wrongful prosecution). If the magistrate is satisfied that the accused should be sent back to police custody, it may be ordered for a period not exceeding three days but only after recording reasons. • ‘Custodial Torture’: Interrogation should only take place in a jail and in a room specially made for that purpose with a glass wall and grill on one side, within sight, though not hearing, of a close relation or lawyer of the detainee. Before being remanded to custody, the suspect should be examined by a designated doctor or medical board constituted for the purpose and a report submitted to the magistrate concerned. Similarly, if the detainee alleges torture at any stage, the magistrate shall order such a medical examination. If the medical report shows that the detainee has sustained any injury during police custody, cognizance shall be automatically taken against the investigating officer for an offence under Section 330 of the Penal Code (hurt for extracting a confession), even in the absence of a complaint by the detainee. Every death in a jail or a police lock-up should immediately be notified to the nearest magistrate. In Saifuzzaman v. State,3 the court expressed concern about indiscriminate arrests of innocent persons who are then subjected to thirddegree methods with a view to extracting confessions. The court held that the magistrate has to exercise his judicial mind before making an order of

remand. The court also issued the following guidelines on arrest in order to curb the abuse of power by the police. (i) The police officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of the arrest in the said memorandum. (ii) The police officer who arrested the person must intimate to a nearest relative of the arrestee and in the presence of the relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than six hours of such arrest notifying the time and place of arrest and the place of custody. (iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed the police to arrest the person or made the complaint along with his address and shall also disclose the names and particulars of the relative or the friend to whom information is being given about the arrest and the particulars of the police officer in whose custody the arrestee is staying. (iv) Copies of all the documents including the memorandum of arrest, a copy of the information or complaint relating to the commission of cognizable offence and a copy of the entries in the diary should be sent to the magistrate at the time of production of the arrestee for the order of the magistrate under Section 167 of the Code (CrPC). (v) If the arrested person is taken on police remand, he must be produced before the magistrate after the expiry of the period of such remand and in no case he shall be sent to judicial custody after the period of such remand without producing him before the magistrate. (vi) Registration of a case against the arrested person is a sine qua non for seeking detention of the arrestee either in police custody or in judicial custody under section 167(2) of the Code (CrPC)…. (vii) If a police officer seeks to arrest a person who is already in custody, the magistrate shall not allow such prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such case.4

The court also ordered the Registrar of the Supreme Court to circulate the guidelines to all police stations, Chief Metropolitan Magistrates and District Magistrates in order to comply with the same.

Recommendations of Commissions of Inquiry The most extensive set of recommendations came from Justice Habib-ur Rehman, who headed a Commission of Inquiry into the torture and killing of a student Shameem Reza Rubel while in police custody. A public outcry led to the government setting up the Inquiry Commission. The recommendations were in 20 points which included orientating the police towards human rights. Some others are: • • • • • • • • • • •

compliance with constitutional safeguards in the matter of arrest; transparency in appointments to a politically neutral force; creation of a separate police wing for investigation; creation of a separate agency for investigating police offences; opening a special cell in the Attorney General’s office’s for complaints against police officials; appointment of a Police Reforms Commission; establishment of a police tribunal headed by a Supreme Court judge; making the police force independent of political influence; provision of infrastructure and other facilities for police officials; reform of places of detention in police stations; and creating conditions for effective coordination between the police and the magistrate.

The recommendations are, however, yet to be implemented by the government.5 In 2007, another commission on police reforms was set up, again under Justice Habib-ur Rahman, but its report has not been made public till date.

Law Commission’s Recommendations to Shift the Burden of Proof in Custodial Offences The judgment in BLAST v. Bangladesh6 laid down some important recommendations for amending existing laws, and its directions are aimed at reducing abuse of police power. Torture is generally carried out without any evidence or witness. Tracing evidence becomes very difficult, especially when the external marks of torture are few.7 The Law Commission has recommended that the burden of proof be shifted to the police officers responsible for custody to explain and substantiate the reasons for injury or death. The Commission noted that one can rarely expect to find eye-witnesses to such incidents other than police personnel, some of whom themselves might happen to be the perpetrators. This results in paucity of evidence and the probable escape of the culprits.8 The Commission recommended a new Section 114A to be inserted in the Evidence Act, 1872: 1. In a prosecution of any police personnel for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in custody of police, the court may presume that the injury was caused by the police personnel having the custody of that person during that period. 2. The court in deciding whether or not it should draw a presumption under sub-section (1), shall have regard to all the relevant circumstances, including in particular: (a) the period of custody; (b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence; (c) if the victim was examined by any medical practitioner, the evidence of such medical practitioner; (d) if the statement of the victim was recorded by any magistrate, the evidence of such magistrate.9

But the above recommendation of the Law Commission is yet to be implemented. Some believe that the use of recording devices in police stations can act as a safeguard against torture and ill-treatment. Upgrading training and providing quality forensic facilities will definitely improve the criminal justice system. But technology can hardly be touted as a protection against custodial torture. It is always possible that the audio–video recording is used as a cover-up after carrying out the torture elsewhere. Given the helplessness of a detainee and the opaqueness of the custodial context, most technical devices would be not just meaningless, but work as tools of deception. Custodial torture in undisclosed locations within Bangladesh was exposed by journalist Tasneem Khalil, who himself later became a victim of such torture.10 The concluding observations of the UN Committee on the Rights of the Child as in 2003 are as follows:11 41. While taking note of the efforts by the State party to raise public awareness of the ill-treatment of children, the Committee is concerned at reports of ill-treatment and violence against children in State institutions such as orphanages and rehabilitation centres, including by law enforcement agents, as well as at the solitary confinement of juvenile and child prisoners. The Committee is also concerned at reports of violence against street children. Furthermore, the Committee expresses its deep concern at the reported inhuman and degrading punishment carried out by order of traditional village councils (shalishes) as well as at the increasing incidents of acid attacks on women and girls. 42. The Committee strongly recommends that the State party: (a) Review its legislation (inter alia, Code of Criminal Procedure, 1898) with the aim of prohibiting the use of all forms of physical and mental violence, also within educational and other institutions; (b) Conduct a study to assess the nature and extent of torture, illtreatment, neglect and abuse of children, to assess the inhuman and degrading treatment of children attributable to shalishes, and

effectively to implement policies and programmes as well as to amend and adopt laws to address these issues; (c) Establish effective procedures and mechanisms to receive, monitor and investigate complaints, including intervening where necessary, and investigate and prosecute cases of torture, neglect and illtreatment, ensuring that the abused child is not re-victimised through legal proceedings and that his or her privacy is protected; (d) Undertake all necessary measures to prevent and punish police violence; (e) Take all necessary effective measures to ensure the implementation of the 2002 Acid Control Act and of the 2002 Acid Offences Prevention Act; (f) Provide care, recovery, compensation and reintegration for victims; (g) Take into consideration the recommendations of the Committee adopted at its day of general discussion on the theme ‘Violence against Children’ (CRC/C/100, para. 688 and CRC/C/111, paras. 701–745); [and] (h) Seek assistance from, inter alia, UNICEF and the World Health Organization (WHO).

National Human Rights Commission The National Human Rights Commission Ordinance, 2007, led to the establishment of a commission with a wide statutory mandate to investigate either by taking suo motu notice or upon a complaint all cases human rights violations whether by state or non-state actors.12 The Ordinance was replaced by the National Human Rights Commission Act, 2009, in a slightly modified form. The government is yet to reconstitute the Commission in line with the new National Human Rights Commission Act, 2009. As of now, the Human Rights Commission is practically nonfunctional, without adequate infrastructure. _________________ 1

55 DLR (HCD) (2003) 363.

2

56 DLR (HCD) (2004) 324.

3

Ibid.

4

Ibid.

5

B.M. Jahangir, ‘Till Date the 20 Recommendation of Judicial Inquiry Commission Have Not Been Implemented’, The Daily Jugantor, 3 September 2007. 6

55 DLR (2003) 363.

7

Md. Nazmuzzaman Bhuian, ‘Police Remand: A Constitutional Controversy’; Ibid.

8

The Law Commission, Final Report on the Evidence Act, 1872, Relating to Burden of Proof in Cases of Torture on Persons in Police Custody, Report No. 17, 1998. 9

Ibid.

10

Human Rights Watch, The Torture of Tasneem Khalil: How the Bangladesh Military Abuses Its Power under the State of Emergency, Human Rights Watch, February 2008, Vol. 20, no.1 (C). 11

CRC/C/15/Add.221, (27 October 2003) Consideration of Reports Submitted by States Parties under Article 44 of the Convention (Concluding observations: Bangladesh). 12

See, for detailed discussion on NHRC of Bangladesh, Dr Abdullah Al Faruque, ‘National Human Rights Commission of Bangladesh: From Good Intention to Good Action’.

18 Case Studies Having ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR), Bangladesh has an obligation not only to prohibit torture but also to take proactive steps to end the practice, to bring the perpetrators to justice and to provide redress to the victims. Case studies show the worsening state of human rights in Bangladesh. Activists and media persons attribute this to the creation of a new security culture, at the helm of which are three agencies—the Directorate General Forces Intelligence (DGFI) set up in 1977, the Rapid Action Battalion (RAB) set up in 2004 and the Operation Clean Heart conducted in 2002. In 1974, there were media and non-governmental organisation (NGO) reports of torture by Rakkhi Bahini, a para-military force which was operating as a law-enforcement agency in the early years. The Supreme Court in a writ of habeas corpus on behalf of Shahjahan, an 18-year-old boy who went missing while in the custody of Rakkhi Bahini, recommended that the government set up a commission of inquiry to establish the truth about Shahjahan’s disappearance and his whereabouts. But, this recommendation does not appear to have been implemented.

It is evident that Section 176 of the Code of Criminal Procedure (CrPC), which mandates a magisterial inquiry into every death in police custody, is followed more in the breach. The law provides for a magisterial inquiry because impartial investigation by the police department into the crimes of its men is unlikely. Unfortunately, the magistracy of Bangladesh has not proven equal to the serious responsibility cast upon it by statute and by the Supreme Court. Consider the following cases: In the early hours of 12 June 1996, a group of armed men arrived at the family home of Kalpana Chakma in Lallyaghona village in Rangamati district of the Chittagong Hill Tracts. They entered her home by force, tied her hands and the hands of her two brothers, blindfolded them, and took them away. The brothers escaped, but Kalpana Chakma remains missing. Kalicharan, Kalpana’s younger brother, recognised three of the captors— Lieutenant Ferdous, a commander of Kojoichari army camp, and two members of the Village Defence Party, Nurul Haque and Salah Ahmed. When Kalicharan, accompanied by the Union Parishad (elected local body) chairperson, went to the nearby army camp on the morning after her abduction to ascertain Kalpana’s whereabouts and secure her release, he was threatened by the military personnel. Her other brother, Khudiram, went the same day to the police in Baghaichari and filed a First Information Report (FIR). The matter remains unresolved.1 Tito, Talukdar and Dipu were beaten and arrested at a restaurant in Agrabad on 4 August 2004 at around 2.15 p.m. by 20 members of the RAB. They were taken to Dipu’s house where he was tortured by inflicting electric shocks to his genital region. Around 4.45 p.m. on the same day, Dipu and Talukdar were taken to the Double Mooring Police Station. On 5 August, all the three men were brought before a court and remanded in detention on the charge of possessing illegal weapons. The three of them were in a bad state and Dipu could neither walk nor stand. The magistrate ordered a custody remand in spite of their serious physical condition. Tito was admitted to the Department of Neurosurgery, Chittagong Medical College Hospital, where he died on 6 August 2004. The police reported that he died of injuries sustained while attempting to escape through a window on the first floor. On the other hand, the autopsy report suggests that he had numerous injuries all over his body and head injuries which might have

caused his death. The magistrate failed to hold an inquiry to the death as is mandated by Section 176 of the CrPC.2 Sheikh Mohammed Haroon was arrested and tortured simply because he had a bandage on his face, which had boils. Alleging that he was a criminal trying to hide his face, the police pushed needles under his finger nails and crushed them with pliers. He was also given electric shocks, by connecting wires directly from the main switch to the soles of his feet. The police asked the family to pay taka 100,000 for his release. After his condition became critical, the police admitted him to hospital, which did not treat it as a medico-legal case although that was the obvious thing to do. The magistrate appears to have remanded him to jail, without his presence or examination of records, and ignoring his lawyer’s plea. The magistrate took no notice of Haroon’s critical condition and ordered his transfer to Dhaka Central Jail directing medical treatment in jail, but Haroon was denied medical attention in the jail. He was released on bail only after his case went up to the Sessions Court. There is no evidence of any action against errant officials.3 The police kept Firoz, a nine-year-old boy from Gaibandha district, outside Dhaka, in detention, without access to his parents, and tortured him by binding him with ropes, hanging him from a high bar and crushing his thumb with pliers for the alleged theft of a mobile phone. Firoz took months to recover from his physical injuries and required psychiatric treatment. Firoz’s family was not given access to him while he was detained. His father managed to get a letter from a local politician requesting the officerin-charge of the police station to release the boy. At the station, Firoz’s illiterate father was made to put his thumb print on a blank sheet before Firoz was released.4 Where is the magistracy when such incidents happen? Small mercies are seen in cases like this one: The police arrested Sheikh Ahmed in front of his house and started beating him there, alleging that he possessed weapons. Later, his family went to the Superintendent of Police (SP) and protested against his detention. In a rare gesture, the SP went to the police station and later to the spot of arrest and the local people testified to Sheikh Ahmed’s ordeal. Sheikh Ahmed was released and the guilty policeman dismissed from service.5 On occasion, high-level judicial commissions have been set up to investigate a custodial crime, but their reports have seldom seen the light of

day and rarely has consequential action followed. The ‘Rubel murder case’ is an exception to this rule. Shamim Reza Rubel, a university student, was picked up by the Detective Branch of the Police on 23 July 1998 from his house on Siddeswari Road of Dhaka at 4.30 p.m. and severely beaten. At 9.45 p.m. on the same day, he was declared dead in the emergency section of Dhaka Medical College and Hospital (DMCH). Shamim Rubel’s killing by the Detective Branch of Police caused a public outcry and got huge media coverage. As a result of wide publicity, a proper investigation was carried out. In June 2002, 13 policemen were tried by the Metropolitan Sessions Court in Dhaka and sentenced to life imprisonment for torture and murder. A Commission of Inquiry headed by Justice Habibur Rahman had also been set up in 1998 soon after Rubel’s death and its detailed recommendations on police reform are discussed in Chapter 17. In 2002, a purported anti-crime operation called the ‘Operation Clean Heart’ was initiated by the Joint Forces, within three months of which 11,000 people were detained in make-shift torture camps and at least 58 people died of ‘heart attacks’ in army custody. Relatives of the victims allege that the deaths were the result of custodial torture. At least 8,000 victims of the operation were innocent of any wrongdoing, according to the Asian Human Rights Commission (AHRC).6 Another law, the Joint Drive Indemnity Act, 2003, conferred on all army, police and paramilitary forces blanket immunity from any legal action arising out of the Operation Clean Heart. In 2004, another paramilitary force, the RAB, was established, which is notorious for ‘cross-fire’ killings. During the Emergency of 2007, there were widespread human rights violations. The passing of the Emergency Ordinance and Emergency Rules facilitated arbitrary arrests of critics, peaceful protestors, members of political parties and even the media. The rules curtailed media freedoms by pre-censorship and terming as a crime ‘provocative’ criticism of the government, without even defining the term. Outspoken journalists faced physical abuse. Peaceful critics of the Interim Government and its de facto military rule were targeted. One such was Shahidul Islam, founder and director of the human rights organization Uttaran. Shahidul Islam was arrested by a warrant officer and an armed constable without being told

why. He was taken to the army camp and severely tortured. Later, the army men tried handing him over to the Tala police station but Inspector Md. Abdur Razzak, officer in charge, rightly refused to permit this, for there was no complaint against Shahidul. Shahidul Islam was then falsely implicated in a murder case and sent to Satkhira District Jail without being produced before any court. His elder brother lodged a writ petition with the High Court Division. The High Court issued a rule nisi. But, while Shahidul was released, no action was taken against the army men for the illegal detention and torture.7 In his articles and blogs, Tasneem Khalil, a Daily Star reporter, exposed the RAB and the DGFI, the military’s role in extra-judicial killings, torture, arbitrary arrests and other forms of abuse of power. In the early hours of 11 May 2007, Tasneem Khalil was arrested from his apartment by the DGFI, his personal emails were read and all his personal effects including reports, passport and cell phone taken away. He was blindfolded, handcuffed and taken to Dhaka Cantonment where he was tortured and forced to write a ‘confession’ that he worked as a spy. Later, he was taken to his editor’s place where he was informed that he would be released if the Daily Star would publish an apology but that did not happen. He was taken back to the torture cell at the DGFI headquarters, where he was questioned about his links with the Awami League, his visits to India and about his report on the killing of Cholesh Ritchil by the RAB (whose case is discussed next). Tasneem Khalil was only released because of the international pressure mounted on Bangladesh by Human Rights Watch and Khaleel’s many friends. The DGFI finally apologised to Khalil and said that the torture he was subjected to was ‘simple, regular conditioning’.8 In Dhaka alone, the DGFI maintains at least three unofficial detention centres, known as ‘black holes’. ‘Black Hole 1’ is located in DGFI headquarters inside Dhaka cantonment near Bangladesh Naval Ship (BNS) Haji Moshin naval base. ‘Black Hole 2’ is near Kachukhet, a civilian residential area inside Dhaka cantonment. ‘Black Hole 3’ is maintained in the Uttara residential district near Zia International Airport. According to Human Rights Watch, the DGFI also interrogates and tortures detainees in other centres like Special Branch headquarters in Mogbazar, Detective

Branch headquarters on Mintoo Road, and the RAB headquarters and RAB1 camp in Uttara. Cholesh Ritchil, a leader of the Garo indigenous community, died in custody on 18 March 2007 following torture carried out by the Joint Forces. His arrest was at the instigation of a senior army officer on the pretext of his possessing illegal arms, although no weapons were actually found on him. When Cholesh’s body was handed over, his family found multiple bruises, nails missing from fingers and toes, and blade wounds on his body. On 6 May 2007, a one-member judicial commission was set up to investigate the death of Ritchil, but its report has not been published till date.9 A second Commission of Inquiry headed by Justice Habibur Rahman was set up on 15 November 2007 following the of arrest and custodial torture of several teachers and students by the army inside the Dhaka University campus. The report of this commission, too, has not been made public. On 8 May 2009, Sayeedur Rahman Sayeed, aged 28, from Khashkorra village in Alamdanga, was arrested by police officers of the Islamic University Police Station. He was handed over to the authorities of the RAB-6 Camp. Sayeed’s family says that on 9 May 2009, RAB and the Alamdanga police took him to the graveyard at the eastern end of the village of Khashkorra, where they shot and killed him. The officer in charge of the Alamdanga Police Station’s unconvincing version was that Sayeed was a member of the banned ML Janajuddha of the Purbo Banglar Communist Party and was holding a meeting which was raided and led to a gun fight, where Sayeed was shot and killed. No independent investigation has established the truth behind the killing.10 Around 3:30 p.m. on 4 January 2009, Touhidul Islam Touhid, aged 27, from the village of Shostipur, Kushtia, was arrested by police officers of the Kushtia Sadar Police Station. Touhid’s family says that Touhid was shot and killed by the police near Boriya graveyard in the village at 2:30 a.m. on 6 January 2009. Morgue-Assistant Lakshman-Lal said that there were six bullet wounds in Touhid’s body. The fingers of his right hand were broken and his nails were missing. The unconvincing police claim was that the officers had fired in self-defence when Touhid opened fire on them.

Actually, Touhid had no reason to do anything of the kind.11 No legal process has been initiated to establish the truth. The AHRC Report 2008 lays bare a regime of state terror unleashed by the police and paramilitary forces. The report also refers to the growing corruption of police officers who arbitrarily arrest, detain or torture persons to extract money from them. Victims were forced to sign blank papers and confessions. Illegal arrests, detentions, extra-judicial killings and custodial torture increased exponentially during the Emergency. Many of those targeted were political and trade-union activists. The trend continues till date. Take the case of Moshrefa Mishu,12 a political and labour activist who is the president of the Garment Workers Unity Forum. She had been organising protests against the low wages given to workers in readymade garment factories, and so she was targeted by the intelligence agencies. In July 2010, the agencies telephonically threatened her with murder in a ‘crossfire’ (encounter). About six months later, on 14 December 2010, a dozen plain-clothed policeman forcibly entered her house and raided the premises (without a warrant). They arrested her and did not allow her to take either clothes or her medication (for asthma) with her to the station. Once there, the police accused her of instigating workers, and berated her for being a leftist. They gave her a blank piece of paper and insisted that she sign it, and told her that if she did, the Prime Minister (Sheikh Hasina) would make her a minister. She refused. They produced her before the Chief Metropolitan Judicial Magistrate, registered three cases against her and sought police remand, which was granted for two days. The same evening, they again threatened her with dire consequences if she did not sign a blank paper. They forced her to sleep on the floor (during winter) that night. She suffered an asthmatic attack due to the cold but the police denied her rest and medication. When next produced in court, she was sick and barely able to breathe. The court directed the police to admit her to a hospital, but there, too, they made sure that she was given substandard treatment. She was released only when the remand order expired. Her family continued, thereafter, to fear police harassment. According to the NGO Odhikar, in 2010 alone, 67 persons were subjected to custodial torture by various law enforcement agencies. Twenty-

two of these 67 are said to have been tortured to death.

Postscript Memories of the atrocities faced before Independence have not prevented the liberated state of Bangladesh from arrogating to itself illegitimate powers, at the cost of the people and their rights. The long spells of military rule seem to have cast even elected governments in the same mould. The extensive legislative impunity to state agents and the blatant abridgment of due process by special laws have worked to keep Bangladesh in a perennial emergency-like state. The one significant difference seems to be the number of rights-oriented decisions in the post-martial law years. Perhaps some vestiges of the ethos of the freedom struggle are now sought to be invoked by the judiciary, which since 2002 or so has shown the will to check the State’s police power. Indeed, these judicial directives are not just platitudes, but go to the root of issues. The fiat that the magistrates should take suo motu cognizance of arrests and detentions without due cause or of custodial abuse as offences committed by state agents, the stringent tests for custodial confessions, the detailed safeguards for arrests, remand and interrogation prescribed by the Supreme Court reveal a desire to inculcate discipline, regard for human life and individual liberty into the system, rather than leave the victim to run from pillar to post. It is a different order of impunity that prevails in Bangladesh, for not only the executive officials but also the judicial magistrates daily flout the Supreme Court directives in letter and spirit. Judicial commissions have time and again recommended remedial action. Institutional obduracy is far too strong, however, to be dented by normative assertions of the law. This is how impunity gets entrenched. The media, political activists and human rights NGOs have done a remarkable job of fighting and documenting the many excesses of successive autocratic regimes. A concerted engagement by rights activists with the lower judiciary may be well worth the exercise. _________________

1

‘Ignoring Executions and Torture: Impunity for Bangladesh’s Security Forces 2009’, Human Rights Watch, 1-56432-483-4, May 2009, p. 24. 2

Theo van Boven, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Addendum), E/CN. 4/2005/62/Add. 1, 30 March 2005, Available at http://unispal.un.org/UNISPAL.NSF/0/C64F6F761EB4872685256FE800559593 (last accessed on 28 November 2012). 3

Amnesty International, ‘Bangladesh: Torture and Impunity’, Amnesty International, November 2000 (AI INDEX 13/07/00), p. 9. 4

Ibid.

5

Ibid.

6

Tasneem Khalil, ‘Justice, Bangladesh Style’, FORUM 1, no. 2 (December 2006).

7

Human Rights Watch, op. cit., p. 36.

8

Human Rights Watch, The Torture of Tasneem Khalil: How the Bangladesh Military Abuses Its Power under the State of Emergency, Human Rights Watch, February 2008, Vol. 20, no.1 (C). 9

Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (A/HRC/7/3/Add.1 19 February 2008, Para 17). 10

Odhikar Fact-finding Report (Alamdanga, Chuadanga: Sayeed), 8 May 2009.

11

Odhikar Fact-finding Report (Shoushtipur, Kushtia: Touhid), 4 January 2009.

12

‘Bangladesh: Military Intelligence behind the Illegal Arrest of Labor Rights Activist’, available at http://www.modernghana.com/newsp/312534/1/pagenum/bangladesh-militaryintelligence-behind-the-illega.html (last accessed on 30 November 2012).

SECTION FOUR

SRI LANKA

19 History and Politics An island nation to the south of India, Sri Lanka is home to an ethnic mix of Sinhalas, Tamils, Muslims and Christians. In the 6th century BC, Prince Wijaya came from India with his followers to rule the island. From his name Wijaya Singha, the race derived its name ‘Sinhala’. ‘Ceylon’, as the country was called until 1972, is possibly a European adaptation of the word ‘Sinhala’. Buddhism has throughout been the dominant faith of the Sinhalas. Evidence suggests that Sri Lanka had Tamil inhabitants as early as in the 2nd century. Ceylon was on the spice route and maintained regular contact with southern India. Chola and Pandya incursions in the 10th and 11th centuries led to Tamil settlements. There even were spells of Tamil rule in the whole of the island. Around the 13th century, a dynasty from Kanchipuram seized power in Jaffna, and by the 14th century northern and eastern Sri Lanka became distinctly Tamil. Tamils were also brought in as indentured labour by the Dutch and the British. Sri Lankan Tamils differ in language and stock from Indian Tamils, but there are historical and cultural links between the two. There is also an ethnic distinction drawn within Sri Lanka, between Sri Lankan Tamils and Tamils of Indian origin. Then, there are Muslims who came from Maldives or with the Arabs to Sri Lanka, settled in the Tamil areas and are now Tamil speaking. Around 1505, a Portuguese traveller, Lourenco de Almeida, visited the island and was struck by its commercial potential. He secured for the

Portuguese many trade concessions from local rulers and also permission to build a fort at Kotte, renamed Colombo. Feuding local rulers made it easy for the Portuguese to take political control. In 1597, the Portuguese took formal possession of Colombo and in 1619 they annexed Jaffna. Kandy remained the only independent Sinhala kingdom. The Dutch arrived in the 17th century. Successive rulers of Kandy enlisted Dutch support to counter the Portuguese. By 1658, the Dutch had replaced the Portuguese as the rulers of coastal Sri Lanka. By 1665, the whole island had come under Dutch rule, which was administered by the Dutch East India Company (Vereenigde Oost-Indische Compagnie [VOC]). During their 150-year rule, the Dutch set up a judicial system, which applied customary law save when it conflicted with the Roman–Dutch law. By the 18th century, attempts were made to codify customary law. The Thesawalamai applicable to the Tamil community was codified in 1707 while difficulty in codifying Sinhalese law led to a greater use of the Roman–Dutch law in Sinhala areas. Towards the end of the 18th century, the Dutch had ceded the coastal regions to the British and by 1815, the entire island was under British rule. The British set up a police force and a criminal justice system. Sri Lanka was a caste-ridden society and, as in India, the upper castes had traditionally used severe measures of social control. Social oppression and police excesses kept the rule of law from taking root, despite extensive codification. Sri Lanka today reflects the diverse influences on its legal history. Civil law is still based on Roman–Dutch principles. Indigenous and customary laws operate in some areas. There is Kandyan law in the Kandyan areas and the Thesawalamai law applies to the Tamils of the Northern Province, as also, in some respects, to Tamils living in other parts of the country. Criminal law is found in statutes of British origin such as the Penal Code 1833,1 the Code of Criminal Procedure Act, 1979, and the Evidence Ordinance, 1885, which is along the lines of the Indian Evidence Act, 1872. Ceylon, as it was then known, attained Independence on 4 February 1948 but was still under the British monarch. It was a dominion status and not a republican status although there was executive and legislative independence. A constitution was adopted at that time and is commonly

referred to as the Soulbury Constitution, after the Commission set up to draft it. Ceylonese nationalists had begun work on a constitution around 1944 and the terms of transfer of power were discussed around this draft. The 1948 Constitution was along the Westminster model and envisaged a liberal democratic structure. It envisioned a parliamentary form of government with a Prime Minister and a cabinet as the executive, elected Members of Parliament (MPs) as the legislature and an independent judiciary with powers of judicial review. The Governor General was the Head of State who represented the British monarch. Matters on which the Constitution was ambiguous were to be resolved by reference to the practice in the United Kingdom. Even though individual rights were not specifically secured, a significant provision, namely Article 29(2) of the Constitution, represented the balance of rights between the citizens. An appeal lay to the Privy Council from judgments of the Supreme Court. In 1972, Ceylon attained the status of a full republic. Its name was changed to Sri Lanka. A new constitution was promulgated with Sinhala as the designated official language and Buddhism as the pre-eminent religion. The bicameral legislature of 1948 Constitution was replaced by a unicameral legislature with the President as the Head of State. However, executive power remained with the Prime Minister and the cabinet. Judges of the superior courts were now to be appointed by the President acting on the advice of the Prime Minister.2 Under the 1948 Constitution, the Judicial Service Commission (JSC) had the power to appoint, transfer, dismiss and exercise disciplinary control over all judicial officers other than judges of the Supreme Court and the Commissioner of the Assizes. This Commission was abolished in 1972. In its place, a Judicial Services Advisory Board (JSAB) was established of which the Secretary to the Ministry of Justice and the Attorney General were ex officio members and a Judicial Services Disciplinary Board (JSDB) was also set up. In 1978, the Jayawardene government brought into force a new constitution, which renamed Sri Lanka the Democratic Socialist Republic of Sri Lanka and established a presidential form of government with executive power vested in the President.3 Sinhala continued as the official language although it was added that Tamil ‘shall also be an official language’.4 Buddhism continued to enjoy a special status as it was ‘the duty

of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e)’.5 The 1978 Constitution recognises several fundamental rights including the right to secure their protection by the Supreme Court. Citizens are guaranteed equal protection of the laws and hostile discrimination is prohibited. Important minority rights are recognised.6 An explicit protection from torture and cruel, inhuman or degrading punishment is guaranteed by Article 11. However, the right to petition the court is restricted by a limitation period.7 In fact, the Constitutions of 1972 and 1978 have both worked to abridge judicial power. The 1978 Constitution precludes a judicial review of legislation. The President, on the advice of the JSC, exercises disciplinary authority over judges of high courts. In 2000, a draft constitution was framed to replace the 1978 Constitution. It sought to make the right to life an express Fundamental Right, but this Constitution is yet to come into force. Sinhalas constitute about 70 per cent of the island’s population. The Sinhala south has been predominantly Buddhist and the Tamil north and east a combination of Hindu, Christian and Muslim. The relationship between the Sinhalas and the Tamils was more harmonious in the 19th and early 20th centuries, and they were active partners in the nationalist movement and during the initial years of Independence. The Bandaranaike government introduced Sinhala as the sole official language by the Official Languages Act, 1956, causing, as may be expected, resentment among the Tamils. Kodeeswaran, a Tamil civil servant, challenged this move as violating Article 29(2) of the Constitution, which assured a balance of power between communities. Though a lower court upheld Kodeeswaran’s challenge, upon the government’s appeal, the Supreme Court held that Kodeeswaran’s action was barred at the threshold on the ground that civil servants had no locus standi to challenge state policy. Kodeeswaran appealed to the Privy Council, which interpreted Article 29(2) of the Constitution as representing an inviolable balance of rights between communities and held that the challenge was maintainable. The Privy Council directed the Supreme Court to hear and decide the issue.8 Five years earlier too, the Privy Council had held that Article 29(2) represented ‘the solemn balance of rights between the citizens of Ceylon, the

fundamental conditions on which inter se they accepted the Constitution and are therefore unalterable under the Constitution’.9 However, the Supreme Court was prevented from hearing Kodeeswaran’s challenge again by the turn of events. In 1971, appeal to the Privy Council was abolished by law and by 1972 there was a new constitution which had itself declared Sinhala to be the official language and the issue raised by Kodeeswaran was rendered ineffective. The Tamils, who had regarded both Article 29(2) of the 1948 Constitution and the provision of appeal to the Privy Council as two essential safeguards against majoritarianism, now began to manifest their discontentment. Meanwhile, in 1971, there was an uprising led by the Janatha Vimukthi Peramuna, a group of Marxist origin, which acquired a strong Sinhala nationalist face. This uprising was suppressed with great force by the Sirimavo Bandarnaike government. The drastic curtailment of civil liberties in the purported interest of security began then. Sri Lanka has not looked back since. In the suppression of the 1971 JVP uprising, several thousand youth were extra-judicially killed and over 15,000 were held in long-term detention without trial. Most of them were subjected to torture. During the second JVP uprising, from 1987 to 1991, over 30,000 persons were disappeared or extra-judicially killed and over 18,000 persons were held in long-term detention without trial. The majority of those in custody had been subjected to torture. Army camps were set up throughout the country where detainees were held for years without trial. Several army camps and police stations earned notoriety as torture chambers. During this period the government sanctioned torture and the state agencies carried out torture with its connivance.10 By the 1980s, there was a militant Tamil movement and strong reaction by the Sinhala-driven national government. The JVP too attacked Tamil cadres. The ethnic strife reached war proportions in that decade with many Tamils coming as refugees into south India. The Indian Peace Keeping Force (IPKF) sent in by the Indian government in 1988 added to the Tamil

resentment, resulting among other things, in the assassination, in May 1991, of Rajiv Gandhi, who was the Indian Prime Minister when IPKF was sent to Sri Lanka. The many Tamil factions were fighting each other and also the Sri Lankan state with its entire military might at its command. The Tamil areas were variously under siege, under guerrilla command and under embargoes. There were many assassinations within Sri Lanka carried out by Tamil groups. Thousands of civilians were killed. Many more disappeared. It was a war without quarter that led to the devastation of the Tamil regions culminating in a final routing of the Liberation Tigers of Tamil Eelam (LTTE) in 2009. _________________ 1

The Code bears several similarities to Indian Criminal Law; see Aquinas v. Tambimuttu, Sri Lanka: Legal Research and Legal System (New York University School of Law, January 2009). 2

Article 122, 1972 Constitution.

3

Ibid.

4

Chapter IV, 1978 Constitution.

5

Article 9, Chapter II, 1978 Constitution.

6

Article 12(2), 1978 Constitution.

7

Article 126(2), 1978 Constitution.

8

Kodeeswaran v. the Attorney General, (1969) 72 NLR 337.

9

Bribery Commissioner v. Ranasingam, (1964) 66 NLR 73 (PC).

10

Amnesty International, Sri Lanka, Extra-judicial Executions, ‘Disappearances’ and Torture, 1987–1990, London 1990, available at www.redress.org/downloads/country-reports/SriLanka.pdf (last accessed on 24 November 2011).

20 The Constitution and Emergency Legislation The Constitution The 1978 Constitution came into force during the Jayawardane reign and is currently operative. Article 11 prohibits torture and cruel, inhuman or degrading treatment or punishment. Article 13(1) guarantees that no person shall be arrested except according to procedure established by law, and Article 13(4) guarantees that no person may be punished without the order of a competent court.1 Arrested persons have the right to be informed of the grounds of arrest and to be produced before the ‘nearest competent court’. Further detention may only be upon orders of the court.2 Also guaranteed is the right to move the Supreme Court for the enforcement of Fundamental Rights.3 ‘Judicial action’ is amenable to this remedy, but, strangely, legislation is not.4 In addition to its appellate jurisdiction in criminal matters,5 the writ jurisdiction of the Supreme Court may be invoked even during the course of ordinary criminal proceedings if there appears to have been an infringement of Fundamental Rights. This may be done by the affected party under Articles 26 and 126(2) or upon a reference by the Court of Appeal under Article 126(3). In India, judicial orders cannot normally be challenged in a writ petition as infringing Fundamental Rights. The Sri Lankan Supreme

Court too, in practice, disallows any challenge to a judicial order other than by way of an appeal or revision. Article 126(2) stipulates a one-month time bar for petitioning the Supreme Court against a violation of rights.6 It confers the right of petition only on actual victims of the violation or their attorney. It would appear then that the family or friends of a victim cannot seek redress from the Supreme Court and that Public Interest Litigation is ruled out. However, the Supreme Court has enhanced the content of Fundamental Rights and widened the scope of the remedy for their infringement. The right to life is not expressly mentioned in the Constitution, but the Supreme Court in Silva v. Iddamalgeoda7 ruled that it is, nonetheless, available. Article 13(4) read with Article 118 would imply that there is a Fundamental Right not to be deprived of life without the order of a competent court. While a right to reparation is neither spelt out in the Constitution nor in any statute, the Supreme Court has held that compensatory relief is a part of remedial justice. Recognising reparation to be the direct liability of the State, whose executive power has led to an infringement of rights, the court, in K. Velmurugu v. The Attorney-General and Another9 ruled: … the State should be held strictly liable for any acts of its high State officials…The liability in respect of subordinate officers should apply to all acts done under colour of office, i.e., within the scope of their authority, express or implied, and should also extend to such other acts that may be ultra vires and even in disregard of a prohibition or special directions provided that they are done in the furtherance or supposed furtherance of their authority or done at least with the intention of benefiting the State…. It is to be noted that the claim for redress under Article 126 for what has been done by an executive officer of the State is a claim against the State for what has been done in the exercise of the executive power of the State. This is not vicarious liability; it is the liability of the State itself; it is not a liability in tort at all; it is a liability in the public law of the State.

In fact, this judgment recognises command responsibility by defining acts done under ‘colour of office’ as including acts ‘within the scope of authority’. In Saman v. Leeladasa and Another,10 the court said: An impairment of personality—the violation of those interests which every man has, as a matter of natural right, in the possession of an unimpaired person, dignity and reputation, and whether it be a public or private rightcommitted with wrongful intent established liability in the achio injuriarum; patrimonial loss, as well as damages for mental pain, suffering and distress can be recovered. When the Constitution recognised the right set out in Article 11, even if it was a totally new right, these principles of the common law applied, and the wrongdoer who violated that right became liable, and his master too, if the wrong was committed in the course of employment. It was not necessary for a new delict to be created by statute or judicial decision…. … Our Court has preferred to treat a violation of a Fundamental Right as something sui generis created by the Constitution and not as a delict. In Faiz v. Attorney-General,11 a Member of Parliament (MP) and his associates were held liable for the torture of a forest official done at their behest inside a police station. The court rejected their argument that the remedy under Articles 26 and 126 lay only against executive action and not against private individuals. Article 126 would apply if there was a nexus between private actors and the executive, resulting in violation of rights. In Silva v. Chanaka Iddamalagoa12 also, the court held the restrictive wording of Article 126(2) that action may be brought by the victim or the victim’s attorney was not meant to bar a petition by others when the victim had died as a result of the violation. Consequently, the court observed: … the deceased detainee, who was arrested, detained and allegedly tortured and who met with his death subsequently, had acquired under the Constitution to seek redress from this court for the alleged violation of his Fundamental Rights. It could never be contended that

the Fundamental Rights ceased and would become ineffective due to the intervention of a death of a person, especially in circumstances where death in itself is the consequence of injuries that constitutes the infringement. If such an interpretation is not given it would result in a preposterous situation in which a person who is tortured and survived could vindicate his rights in the proceedings before this court, but if the torture is so intensive that it results in death, the right cannot be vindicated…. In my view a strict literal construction should not be resorted to where it produces such an absurd result…. Hence, when there is a causal link between the death of a person and the process which constitutes the infringement of such person’s Fundamental Rights anyone having a legitimate interest could prosecute that right in a proceeding instituted in terms of Article 126(2) of the Constitution. The rationale in Silva was followed in Rani Fernando 2005 (1) SLR 40 on the point of locus standi as well as on the point that the right to life is recognised by implication. Rani Fernando is a case of appalling brutality. Fernando was arrested for stealing two bunches of bananas. The police had tortured him by shackling him to an iron gate, and he died as a result. The court held that his wife had the locus standi to bring action under Articles 26 and 126. Monetary compensation has been awarded in many other cases.13 The court has indeed come a long way from the meagre compensation awarded in the K.V. Ratnapala case14 to the point where reparation has become an acknowledged part of rights jurisprudence in Sri Lanka. Ratnapala was arrested on the suspicion that he had taken part in a robbery. The police took three of his brothers and an uncle as hostages to compel him to surrender, which he then did. The policemen asked Ratnapala for the stolen money of which he said he was unaware. Enraged by his reply, they stripped him naked and tied him up and beat him with leather belts and clubs after sprinkling chilli powder on his face. His statement was then recorded and he was produced before a magistrate who sent him to jail. Ratnapala was admitted to the prison hospital. When his condition

worsened he was taken to the General Hospital where, after saline and blood transfusions a tube was inserted in his chest and fluid extracted from his lungs. He was sent back to the prison hospital and treated for an infected wound and fever. But he rapidly deteriorated to the point when one of his lungs had to be removed by surgery. Even after all this was established, the Supreme Court, while recognising him to be a victim of torture, awarded him just about a 100,000 Sri Lankan Rupees as compensation and ordered no action against the officials who had perpetrated the torture. A well-known case is that of Gerald Marvin Perera,15 a cook attached to the Ceylon Dockyard. On what was later admitted to be a case of mistaken identity, Gerald Perera was arrested after confining his wife and son illegally in a jeep parked by the roadside. On 3 June 2002, Perera’s wife, who had been on her way to pick up her daughter from her pre-school, was waylaid with her young son by officers of the Wattala Police Station. Requests to allow the daughter to be collected fell on deaf years as mother and son were forcibly taken to the bus stand to await Perera’s return from work. Perera eventually arrived and was whisked away to the police station. No reason was given to anyone for his arrest. At the police station, he was blindfolded, hung from a beam and lighted matches were held to his hands which got burnt. He was repeatedly asked to confess to a murder of which he knew nothing. The next day the police released Gerald Perera and admitted that the arrest had been made simply because they were looking for someone called Gerald. As a result of the torture, Perera was unable to move his limbs and also suffered acute renal failure. Perera filed an application in the Supreme Court under Article 126. Holding that the officer in charge of the police station was liable for what had happened, the Supreme Court went on to comment about the supervisory responsibilities of the Inspector General of Police (IG) in these words: It was averred in the petition that a complaint had been made on or about 14.6.2002 to the Inspector General of Police, the 8th Respondent. The 8th Respondent did not file an affidavit either denying the receipt of such complaint or explaining what action he took. The number of credible complaints of torture and cruel,

inhuman and degrading treatment whilst in police custody shows no decline. The duty imposed by Article 4(d) to respect, secure and advance Fundamental Rights, including freedom from torture, extends to all organs of government, and the Head of the Police can claim no exemption. At the least, he may make arrangements for surprise visits by specially appointed Police Officers, and/or officers and representatives of the Human Rights Commission, and/or local community leaders who would be authorized to interview and to report on the treatment and conditions of detention of persons of custody. A prolonged failure to give effective directions designed to prevent violations of Article 11, and to ensure the proper investigation of those which nevertheless take place followed by disciplinary or criminal proceedings, may well justify the inference of acquiescence and condonation (if not also of approval and authorization). However, learned President’s Counsel appearing for the Petitioner did not pursue the question of the 8th Respondent’s liability.16 Again, there is a clear recognition of command responsibility in human rights jurisprudence. The Supreme Court, then awarded damages and compensation of 800,000 Sri Lankan Rupees declaring that he was a victim of torture and cruel and inhuman treatment. But this is not the whole of Gerald Marvin Perera’s story. Perera was shot dead ‘by unidentified persons’ on 21 November 2005 just before he was to give evidence against the Wattala police officers in their trial under the Anti-Torture Act of 1994. At the time of the attack, Perera was travelling in a bus. He was critically wounded in the shooting and rushed to the National Hospital, Colombo, where he succumbed to his injuries. The Central Intelligence Department (CID) arrested a man from a teak plantation in Chillaw as the one who had shot Perera dead. He could only have done so at the behest of the police. Neither this man nor anyone other than the implicated policemen had any reason to wish Perera dead. The weapon used was 9 mm pistol, which is a common police weapon. In the event, the Negombo High Court acquitted all the police officers citing insufficient evidence. The same court reprimanded the Attorney General for

not even indicting the officer in charge of the Wattala Police Station under whose official command the torture had occurred.17 Perera’s case is a stark example of how impunity cannot be checked by normative assertions by the superior courts alone. If the system is to be made to respect human rights, something more than monetary compensation to victims is called for. Punishment for violations must be sure and quick. There must be a scheme to protect and assist victims of torture and their witnesses so that they are not intimidated or eliminated by powerful interests threatened by their legal action. Reparation is a composite concept that includes monetary compensation, rehabilitation, punishment to the offender and also administrative reform. In some cases, the Supreme Court has directed administrative action and even prosecution of those responsible for torture.18 The response was not always satisfactory and the court has commented about the fact in Nalika Kumdii, Attorney-at-Law (On Behalf of Malsha Kumari) v. Nihal Mahinda, O.I.C. Hungama Police and Others:19 In many cases in the past this Court has observed that there was a need for the Inspector-General of Police to take action to prevent infringements of fundamental rights by Police Officers, and where such infringements occur, this Court has sometimes directed that disciplinary proceedings be taken. The response has not inspired confidence in the efficacy of such observations and directions, and persuaded me that in this case compensation is the appropriate redress. The Supreme Court has been concerned about the growing impunity in the system. As far back as 1994, in the Pelawattage v. O.I.C. Wadduwa case, the court lamented: [T]he incidence of unlawful arrest and detention and torture by police officers has not declined, which situation is attributable to the failure on the part of the authorities to impose prompt, adequate and effective sanctions against offending officers. The Court views this situation with dismay and hopes that it will be remedied forthwith.20

Despite these important rulings, judicial response to custodial torture remains far from adequate, say human rights activists. Despite persistent findings of Article 11 violations, definitions of torture and of cruel, inhuman and degrading treatment are not clear. Strong victim-centred decisions of the Court, awarding high levels of compensation and unequivocally condemning police abuse, constitute only a minor fraction of judgments rendered. Awards of compensation to the victims of custodial torture are very low. Article 11 decisions seem to be influenced strongly by the personality of the individual judge who writes the judgment. Thus, although the strength of the judgments and the amount of compensation seem to vary widely when one considers the entire body of cases, consistency emerges when one examines the cases according to the particular judge pronouncing the judgment. Consequently, it appears that once a victim brings a fundamental rights petition, the petitioner is subjected to a legal process that is, to some degree, arbitrary and unpredictable.21 Consider, for instance, the infamous Bindunuweva massacre case. Twenty-four Tamil detainees were killed in a detention centre and 14 seriously injured when a mob attacked these unarmed people and the guards looked on unconcerned. Even the few convictions recorded by the High Court were overturned by the Supreme Court.22 The Supreme Court has also resolutely held on to the one-month time bar on petitions to enforce Fundamental Rights.23 In most cases, such a time bar would defeat the right and it is inconceivable that any just system should allow Fundamental Rights to be stymied by procedure. In India, there is no time period of limitation for a writ to enforce Fundamental Rights or for that matter for any writ petition. The court may decline to entertain a petition if brought after unreasonable delay or ‘laches’ but procedure will not stand in the way of justice. Article 124 precludes the Supreme Court from subjecting legislation to the test of Fundamental Rights. The Supreme Court has refused to entertain

challenges to security regulation, whether legislative or executive. Though the presumption of innocence, access to courts, fair trial and like concepts are enshrined in the Constitution and also found in the criminal law of the country, they are eroded in practice by the many emergency laws in force over the last three decades. Constitutional guarantees against torture will have little meaning if security laws are allowed to overrun the system.

Emergency Powers: The Constitution Undermined Fundamental Rights are considered sacrosanct. However, the Constitution itself enables both legislative and executive restrictions on them. The Public Security Ordinance (PSO) in force during British rule has been continued after Independence.24 The Constitution gives the Ordinance the status of an enacted legislation.25 In J.A. Yasapala v. Ranil Wickramasinghe, the Supreme Court refused to entertain a challenge to emergency regulations made under the PSO, saying that ‘the President’s power of making Emergency Regulations is co-extensive with that of Parliament’.26 Article 15(7) permits the President to restrict the ‘exercise and operation’ of all the rights laid down in Articles 12, 13(1), 13(2) and 14. The grounds on which Article 15(7) can be invoked are: 1. 2. 3. 4.

National security Public order Protection of public health and morality Securing due recognition and respect for the rights and freedoms of others 5. Meeting the just requirements of the general welfare of a democratic society27 It is plain that rights may be abridged on the vaguest and flimsiest of grounds. Emergency provisions arm military and police personnel with extraordinary powers without the least accountability. The Draft Constitution of 2000 is no better in this regard. Article 26 of the same envisages abridgment of the rights enumerated in Articles 10,

11(1), 12, 14, 15(3), 16, 17 and 18 for no more pressing reason than that armed forces ‘are able to properly discharge their duties and maintain discipline’. The suggestion seems to be that the armed forces may not be able to do their work or maintain order unless and until citizens are stripped of their basic rights. This is open endorsement of impunity. The Supreme Court has held that judicial review of an emergency regulation is excluded unless the same can be shown to be tainted by malice or is made in excess of authority. Courts will not enter into any other issue and the President is the sole judge of all things including expediency. This is of a piece with the judicial validation of security laws and emergency regimes in India and Pakistan, on grounds of ‘necessity’ and ‘executive wisdom’. The effect on Fundamental Rights seems to have been completely ignored. Limiting its own power under Article 126, in Janatha Finance v. Liyanayage,28 the Supreme Court said: It is now settled law that neither the provisions of Sec 8 of the Public Security Ordinance (Chap 40) nor of Sec 22 of the Interpretation Ordinance as amended in 1972, operate to oust fully and finally the jurisdiction of the Courts in respect of the matters referred to in the said provisions, but that such exclusion would be operative only in respect of acts done in good faith and are ex facie regular, and which are not tainted by malice or by an abuse of power… Chapter XVIII of the Constitution, which deals with Public Security provides, in Article 155(1), that the Public Security Ordinance as amended and in force immediately before the commencement of the Constitution be deemed to be a law enacted by Parliament, and sub-article (2) provides that the power to make emergency regulations shall include the power to make regulations having the legal effect of over-riding, amending or suspending the operation of the provisions of any law, except the provisions of the Constitution. In terms of Article 80 (3), once a Bill becomes law, no Court can inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever. This ouster clause, being operative only in respect of Bills becoming laws as set out in this subarticle, will not, therefore, cover emergency regulations.

The provisions of Sec 2 of the Public Security Ordinance make the President the sole judge of the existence or imminence of a state of emergency, and the necessity of bringing into operation the provisions of Part II of the said Ordinance. Part II vests the President with wide and extensive powers to deal with the emergency situation. The President’s view of the necessity and the expediency of the regulations needed to combat the situation is conclusive of their necessity, and, in formulating them for the purposes of Sec 5, he is bound only by the provisions of Article 155(2) of the Constitution. He is the sole judge of the necessity for the regulations. It is the subjective opinion of the President that matters; and in the absence of bad faith or ulterior motive, the jurisdiction of the Court is excluded.

The Emergency (Miscellaneous Provisions and Powers) Regulations, August 2005 The Public Security Ordinance No. 25 of 1947 enables the executive to issue emergency regulations. After the assassination of Foreign Minister Lakshman Kadirgamar, the Emergency (Miscellaneous Provisions and Powers) Regulations (EMPPR), 2005, were brought into force. As a matter of fact, there were already some emergency regulations in force at that time and many of their oppressive provisions were retained in the new set which also brought in more draconian clauses. These regulations were lifted in August 2011 following pressure from within and abroad. But terror laws and other regulations restricting the freedom of association, expression and other civil liberties continue in force. In October 2011 the Supreme Court, rejected two petitions challenging regulations issued under the Prevention of Terrorism Act (PTA). The EMPPR, 2005, and other emergency orders made under the PSO, 1947, give military personnel sweeping powers of arrest, detention, search and seizure. Without a judicial warrant, upon no more than a ‘reasonable’ belief that a person is guilty of committing an offence under the regulation, police and military officials may arrest, detain and search him or her.29 The Deputy Inspector General of Police (DIG) may even ‘dispose of bodies’, without notifying any authority.30

Section 19 of the Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) Regulations (No. 7 of 2006) confers on ‘public servants’ and ‘any other person authorised by the Government’ immunity from prosecution for any acts done by them in good faith and in the course of their duties. Regulation 73 of the EMPPR is a similar provision. Under ordinary criminal procedure, no executive sanction to prosecute public servants is required in Sri Lanka. Thus, emergency regulations have now done away with a feature of the normal law, and make it harder for victims to access justice. The statutory immunity from prosecution that officials have in India, Pakistan and Bangladesh31 has been a major hurdle in bringing perpetrators of torture to justice. Sri Lanka has a statute that penalises torture and does not permit a defence that torture was done in the course of duty. It can certainly be argued that the immunity clauses in emergency regulations will therefore not apply to prosecutions for torture. On the other hand, the immunity clauses are so strongly worded that they may be pressed by security personnel against any prosecution including one for torture. The point does not appear to have been settled by the courts in Sri Lanka. The EMPPR empowers the Defence Secretary to issue orders of preventive detention for a period up to one year, upon a subjective satisfaction inter alia that it is in the interest of public order.32 The EMPPR also reverses the burden of proof. Regulation 48 says that documents found in the ‘possession, custody or control’ of any individual suspected of having committed an offence under the regulation ‘shall be submitted in evidence against such person without proof thereof’. Further, Regulation 65 states that [a] certificate purporting to be under the hand of the Government Analyst, Deputy Government Analyst or Assistant Government Analyst in regard to the identity, composition or character of any thing or matter submitted to him for examination or analysis, shall be conclusive proof of the truth of the statements contained in such certificate without such person being called to testify in such proceedings.

And, where the officer (or analyst) considers that it is not safe or practicable to preserve the evidence, then, after completion of examination, the officer may ‘cause such thing or matter to be disposed of or destroyed’. In other words, without testing the truth of such evidence, and what is more, even without the production of the material evidence, a court must accept it as proven. A bare assertion that some incriminating document or material was seized from a person would operate both as a presumption against him and as proof of his guilt.

Prevention of Terrorism Act The PTA came as a temporary measure in 1979 and was made into a permanent law in 1980 (No. 30 of 1981). The PTA deviates from timehonoured norms of due process in several ways. The maximum permissible period of custody pending investigation is 18 months under the PTA whereas it is only 15 days under the normal criminal procedure. Confessions recorded by police officers are allowed into evidence by the PTA whereas they are barred from use in normal criminal trials. The striking absurdity of the Sri Lankan PTA is that it classifies even ordinary crimes under the Penal Code as ‘unlawful activity’.33 A special category of crime is created on the basis of the intended target of the act. For example, the penal code offence of murder is now to become a terror offence if the person murdered or intended to be murdered is an official of the Sri Lankan Government or even of a foreign country. Article 2.12 of the Ceasefire Agreement (CFA) between the Government of Sri Lanka (GoSL) and the LTTE in 2002 records that the government would not conduct arrests or search operations under the PTA, but rather ‘in accordance with the Criminal Procedure Code’. The PTA was never formally repealed, but, according to the government, since the CFA, ‘no person has been arrested under the relevant provisions of the PTA’.34 Yet, in 2006, the executive decided to bring back the PTA ‘in full force’.35 Section 9 of the PTA enables preventive detention. Upon an order of detention issued by the Defence Secretary, the suspect may be detained in jail or in ‘any other place’. Though an order of detention may only be for a maximum of three months at a time, it can always be renewed and the total

period of detention can extend to 18 months.36 No order of preventive detention can be challenged in any court or tribunal by way of writ or otherwise.37 Habeas corpus, a citizen’s most valuable right, has been extinguished by this provision. However, it is well settled that constitutional rights do not get destroyed by statute and the Supreme Court would be within its power to strike down a particular detention if it is arbitrary and unjust. Section 16 of the PTA allows confessions recorded by the police to be used in evidence,38 a course that is prohibited by normal criminal law. Section 18(1) reverses the burden of proof in that the contents of any document found in possession of a person suspected to have committed an offence ‘shall be evidence of the facts stated therein’. Section 26 bars any suit against any officer or any person acting under this law if it can be shown that the said act was done in good faith. For something as vague and as trivial as being ‘connected with or concerned in or reasonably suspected of being connected with or concerned in any unlawful activity’, a person may be arrested and kept in police custody for 72 hours or even more.39 Then, there will either be a preventive detention order under Section 9 or a compulsory magisterial remand until the conclusion of the trial.40 Simply put, a ‘suspicion of connection’ with what is loosely termed as ‘unlawful activity’41 is sufficient to land a citizen in prison for anything between three months and several years with no judicial discretion to order a release, unless there is a trial and acquittal eventually. Even the Court of Appeal may release a person arrested under the PTA on bail only in ‘exceptional circumstances’.42 Sweeping powers of arrest and detention, use of confessions recorded by the police, waiver of proof relating to recovery of offensive material from a suspect and immunity to the security forces are the sum and substance of the terror law and emergency provisions. There can be no protection from torture in the face of such statutory impunity. _________________ 1

This Article has been interpreted as implying the right to life by the Supreme Court. Article 13(4) reads:

No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention, or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment. 2

Article 13(2), The Constitution of Sri Lanka, 1978, Article 10, Draft Constitution of 2000.

3

Article 26 reads:

Every person shall be entitled to apply to the Supreme Court as provided by Article 168 in respect of the infringement or imminent infringement, by State action, including executive or administrative action, of a fundamental right to which such person is entitled under the provisions of this Chapter, or by judicial action by courts exercising original criminal jurisdiction, of a fundamental right to which such person is entitled under Article 10. 4

Article 124.

5

Under Article 127(1).

6

Article 126(2) reads:

Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he may himself or by an attorney-at-law on his behalf, within one month thereof, in accordance with such rules of court as may be in force, apply to the Supreme Court by way of petition in writing addressed to such Court praying for relief or redress in respect of such infringement. The recently proposed reform to extend the time limit to three months does not appear to be farreaching enough to allow victims sufficient time to prepare their cases and take legal action. 7

2003 (2) Sri LR 63. This principle was reiterated in the Wewalage Rani Fernando case, SC(FR) No 700/2002, SCM 26/07/2004. See also Kanapathipillai Machchavallavan v. OIC, Army Camp, Plantain Point, Trincomalee and Others, SC Appeal No 90/2003, SC (Spl) L.A. No 177/2003, SCM 31 March 2005. 8

Article 11 reads: ‘No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ 9

K. Velmurugu v. The Attorney-General and Another, 1 Sri Lanka Law Reports (SLLR) 406 (1981). 10

(1989) I Sri SLR 44.

11

Faiz v. Attorney-General, (1995) (1) SLR 372.

12

Ibid.

13

Wijeratne v. Vijitha Perera, 2002 (3) SLR 319; Channa Peiris case, 1994 (1) SLR 1; Jayakody v. Karunanayake, 1994 (2) SLR 264. See also in which the court granted a high compensation of Sri Lankan Rupees 800,000 and the cost of medical expenses incurred as a result of injuries caused to a victim arrested and tortured by the police based on mistaken identity. 14

(1993) 1 SLR 224.

15

Sanjeewa, Attorney-at-Law (on behalf of Gerald Mervin Perera) v. Suraweera, Officer-inCharge, Police Station, Wattala and Others, (2003) 1 SLR 317. 16

Ibid.

17

See Democratic Socialist Republic of Sri Lanka v. Suresh Gunasena and Others, H.C. case 323/2003. 18

See, e.g., Supreme Court Application (SCA) 189/1997; SCA 228/9194; SCA 131/1995; SCA 106/1997; SCA 858/1997; SCA 235/1996; SCA 109/1995; SCA 157/1991; SCA 433/1993; SCA 457-462/1993; SCA 109/1995; SCA 396-397/1993; SCA 68/1991; SCA 270/1993; SCA 4/1991. See also Yogalingam Vijitha v. Wijesekara & Others, S.C. Application FR No.186/2001, 23 August 2002 and SCA 623/2000; SCA363/2000. 19

SCA 615/1996, 30 October 1996; 28 August1997.

20

SC Appns. 396-397/93, SC Minutes, 24/02/1995; see also an earlier judgment by the same judge, Pelawattage v. O.I.C. Wadduwa, SC Appn. No. 433/93, SC Minutes, 31 August 1994. 21

Pinto-Jayawardena Kishali and Lisa Kois, ‘Sri Lanka—the Right Not to be Tortured: A Critical Analysis of the Judicial Response’, Law and Society Trust, 2008, p. 9. 22

SC Appeal No 20/2003, Supreme Court Minutes 21 May 2005.

23

See, KSSE Ranatunga v. ARM Jayawardane, SCA No. 27/1979; Aiyathurai v. Attorney General SCA No. 69/1980. 24

The Public Security Ordinance empowers the executive to promulgate emergency measures and curtail individual freedoms and civil liberties on a subjective satisfaction that such a measure is necessary and expedient. Such a measure can be continued even without the ratification of Parliament. 25

Article 155 in Chapter XVIII of the Constitution provides for the legal procedure to be adopted with regard to a PSO. Article 155(1) states, that the PSO as amended and in force immediately prior to the commencement of the Constitution shall be deemed to be a law enacted by Parliament. Article 155(2) says that the power to make Emergency regulations under the PSO or the law for the time being in force relating to public security shall include the power to make regulations having the legal effect of over-riding, amending or suspending the operation of the provisions of any law, except the provisions of the Constitution. Article 155(3) requires that the provisions of any law relating to public security, empowering the President to make Emergency regulations which have the legal effect of over-riding, amending or suspending the operation of the provisions of any law, shall not come into operation, except upon the making of a Proclamation under such law, bringing such provisions into operation. Article 155(3a) provides that nothing in the preceding provisions of this Constitution shall be deemed to prohibit the making of Emergency regulations, under the PSO or the law for the time being in force relating to public security, with respect to any matter set out in the Ninth Schedule or having the effect of overriding, amending or suspending the operation of a statute made by a Provincial Council. 26

The words are from the Supreme Court decision in J.A. Yasapala v. Ranil Wickramasinghe (1980) 1 Fundamental Rights Decisions 143. 27

The law relating to public security in force at the time is the PSO as amended by Act No. 8 of 1959, Law No. 6 of 1978 and Act No. 28 of 1988 under which various regulations have been made from time to time. 28

SCA 127/1982.

29

Regulation 20(1), Emergency (Miscellaneous Provisions and Powers) Regulations (EMPPR),

2005.

30

Regulation 56, EMPPR, 2000.

31

Section 197 of the Criminal Procedure Code of all three countries bars cognizance of offences by public servants without the sanction of the government that employs them. 32

Regulation 19, EMPPR.

33

Section 2, PTA.

34

Clause 2.12 of the CFA states: ‘The Parties agree that search operations and arrests under the Prevention of Terrorism Act shall not take place. Arrests shall be conducted under due process of law in accordance with the Criminal Procedure Code.’ 35

Sri Lankan Government response to Human Rights Watch, 12 July 2007, Human Rights Watch Report 2006. 36

Proviso to Section 9(1), PTA.

37

Section 10, PTA.

38

Section 16 states:

(1) Notwithstanding the provisions of any other law, where any person is charged with any offence under this Act, any statement made by such person at any time, whether (a) (b) (c) (d) (e)

it amounts to a confession or not; made orally or reduced to writing; such person was or was not in custody or presence of a police officer; made in the course of an investigation or not; it was or was not wholly or partly in answer to any question, against such person if such statement is not irrelevant under section 24 of the Evidence Ordinance: Provided, however, that no such statement shall be proved as against such person if such statement was made to a police officer below the rank of an Assistant Superintendent.

(2) The burden of proving that any statement referred to in subsection (1) is irrelevant under section 24 of the Evidence Ordinance shall be on the person asserting it to be irrelevant. (3) Any statement admissible under subsection (1) may be proved as against any other person charged jointly with the person making the statement, if, and only if, such statement is corroborated in material particulars by evidence other than the statements referred to in subsection (1). 39

Section 6, PTA.

40

Section 7(1), PTA: 7(1) Any person arrested under subsection (1) of section 6 may be kept in custody for a period not exceeding seventy-two hours and shall, unless a detention order under section 9 has been made in respect of such person, be produced before a Magistrate before the expiry of such period and the Magistrate shall, on an application made in writing in that behalf by a police officer not below the rank of Superintendent, make order that such person be remanded until the conclusion of the trial of such person: Provided that, where the Attorney-General consents to the release of such person before custody before the conclusion of the trial, the Magistrate shall release such person from custody.

(2) Where any person connected with or concerned in or reasonably suspected to be connected with or concerned in the commission of any offence under this Act appears or is produced before any court other than in the manner referred to in subsection (1), such court shall order the remand of such person until the conclusion of the trial: Provided that, if an application is made under the hand of a police officer not below the rank of Superintendent to keep such person in police custody for a period not exceeding seventy-two hours, the Magistrate shall authorise such custody and thereupon the order of remand made by the Magistrate shall remain suspended for the period during which such person is in police custody. (3) A police officer conducting an investigation under this Act in respect of any person arrested under subsection (1) of section 6 or remanded under subsection (1) or subsection (2) of this section (a) shall have the right of access to such person and the right to take such person during reasonable hours to any place for the purpose of interrogation and from place to place for the purposes of investigation; and (b) may obtain a specimen of the handwriting of such person and do all such acts as may reasonably be necessary for fingerprinting or otherwise identifying such person. 41

Section 2, PTA, defines ‘unlawful activity’ as virtually any offence under the Penal Code.

42

Section19, PTA.

21 Criminal Law and Custodial Justice The criminal justice system is a hierarchy of courts of which magistrates are at the lowest rung. Offences punishable with a term higher than two years are generally tried by the High Court, while lesser offences are tried by magistrates. Trials before the High Court are conducted by the Attorney General’s office. The High Court takes cognizance of most offences only upon an indictment by the Attorney General. Courts of Appeal hear appeals from convictions and acquittals by the High Court and the Supreme Court is the final Appellate Court. The main statutes that apply to criminal proceedings are the Penal Code, 1833, the Code of Criminal Procedure (CrPC), 1979 and the Evidence Ordinance, 1885, drafted during British rule and amended from time to time. The High Court in Sri Lanka is the rough equivalent of the Sessions Court in India, and the Court of Appeal is somewhat like the Indian High Court, except that there is a High Court for each State in India while there is a single and common Court of Appeal for the whole of Sri Lanka.

The Penal Code The Sri Lanka Penal Code (SPC), 1833, criminalises the abuse of force by a public servant. It is an offence for a public servant to cause injury to any

person by disobeying the law. If he causes simple hurt, he is liable to be imprisoned for one year. If he causes grievous hurt, he will be subjected to imprisonment of seven years upon conviction.1 If the simple or grievous hurt is used in order to extract a confession, it is considered an aggravated form of the offence and the punishment will be 7 years and 10 years, respectively.2 Section 339 prescribes a three-year imprisonment period for any person who wrongfully confines any individual for the purpose of extorting a confession.3 Section 364 of the Penal Code classifies custodial rape as an aggravated offence and the punishment is a minimum term of 10 and a maximum of 20 years. A rape victim may obtain compensation from the offender under the Penal Code Amendment Act No. 22 of 1995. Until the enactment of the Anti-Torture Act of 1994, these Penal Code provisions were the only ones relating to torture in custody.

Criminal Procedure The CrPC, 1979 (Sri Lankan CrPC), governs normal criminal investigation, arrest and custody. Special laws, like the PTA, discussed in Chapter 20, grant the police wide powers of search, arrest and detention, far beyond what is permissible under the CrPC. The CrPC protects the rights of the accused and the victim but is deficient in certain important respects, such as affording a suspect in police detention the right to independent legal counsel or the right to an independent medical examination. The 2005/2007 Amendments to the CrPC4 brought in some of these safeguards but only for a special category of offences. In 2007, another amendment abolished whipping as a punishment.5 Section 371 of the CrPC mandates a magisterial inquiry into deaths in police custody. This mandatory inquiry or inquest is limited to deaths in police custody, mental or leprosy hospitals.6 Under Section 176 of the Indian CrPC, inquiry by a judicial magistrate is compulsory in all cases of death, custodial rape and even disappearances in any kind of custody authorised by a magistrate including custody in jails.

From the many Supreme Court cases on torture in custody discussed in Chapter 20, it will be evident that the magistrates do not apply themselves seriously to their duties under the CrPC. In not one of the cases had the magistrate conducted the mandatory inquiry. Such dereliction of duty has drawn criticism from the Supreme Court. In my opinion it is indeed a matter of concern and trepidation that Magistrates in spite of repeated reminders by this Court do not exercise what is their duty namely to question and probe from a person produced before them from Police custody and to so record his observations. It has been my experience that Magistrates did act so and it was a deterrent to breaches of fundamental rights even when they were not enshrined by a constitution.7 The CrPC empowers not just police officers but also the Grama Seva Niladharis who are appointed to perform police duties—all of those performing police functions are ‘peace officers’—to arrest without a warrant.8 Arrest without a warrant is permissible9 when (a) any person commits any breach of peace; (b) when there is ‘reasonable ground’ or ‘credible information’ or ‘reasonable suspicion’ that any person has committed a cognizable offence; (c) when there is a reasonable complaint made or credible information received or reasonable suspicion existing against a person of his involvement in any act outside Sri Lanka which if committed in Sri Lanka would constitute an offence; (d) when a person unlawfully possesses any house-breaking implement; (e) when an individual has been proclaimed as an offender; (f) when an individual is found in possession of, or is reasonably suspected to possess, stolen property; (g) when a person is suspected to have deserted the Sri Lankan Army, Navy or Air force; (h) when a person obstructs a peace officer in the performance of his duty or escapes from lawful custody; and (i) when a person conceals his presence under circumstances that suggest that he is doing so to commit a cognizable offence.10 Section 23(1) of the CrPC lays down the procedure for arrest. The arresting officer shall actually touch or confine the body of the person to be arrested unless there is a submission to the custody by word or action. The

person arrested shall be informed of the grounds of arrest and shall not be subjected to more restraint than what is necessary to prevent his escape.11 Every person must be produced before the magistrate within 24 hours of arrest.12 This has now been extended to 48 hours.13 If the investigation cannot be completed within 24 hours and there are reasonable grounds to believe that further investigation is needed, the police officer is bound to forward the case to the magistrate along with the suspect.14 If satisfied that there are grounds to do so, the magistrate may extend the period of detention to a maximum of 15 days in judicial custody.15 At the end of this period, the detainee shall be discharged or required to execute a bond for his appearance in court.16 The police may apply to the magistrate under Section 115(4) to obtain access to the suspect while in prison custody for the purposes of the investigation. The magistrate must always record reasons in writing while granting access under Section 115(4). Thus, ordinary CrPC forbids police custody beyond 24 hours. The magistrate can further extend custody, only in prison and that too for a maximum of 15 days, but may for a good and proper reason allow the investigators access to a suspect in prison. As police custody is one of the main contexts in which custodial torture occurs, it is useful to note the limits and judicial supervision that statutory law prescribes for it. Peace officers must not use any inducement, threat or promise to extract statements from any individual charged with an offence.17 The power to record confessions has only been entrusted to a magistrate.18 Even a magistrate cannot record a confession without ‘reason to believe’ that it is voluntary. While recording such a statement, a magistrate must make a suitable memorandum at the foot of such record.19 Under Section 164(3) of the Indian CrPC, if a suspect refuses to make a confession before a magistrate, there can be no further remand to police custody. Such a suspect can only be further detained in judicial custody. However, the Sri Lankan CrPC does not contain any such safeguard. On the other hand, the Sri Lankan CrPC does not contain any immunity clause requiring a previous executive sanction for prosecuting public servants, unlike Indian law.20

Code of Criminal Procedure (Special Provisions) Act, No. 42 of 2007 The CrPC (Special Provisions) Act was first passed in 2005 and then extended for a further period of two years in 2007.21 Section 2 of the same increases from 24 to 48 hours the time period within which the arrested person needs to be produced before a magistrate.22 The special provisions apply only to a limited category of offences.23 They contain the following safeguards: any person arrested and detained (beyond 48 hours) ‘shall be afforded an opportunity to consult an Attorney-at-Law of his choice and to communicate with any relative or friend of his choice during the period of such detention’.24 Proceedings shall be concluded within a period of 90 days from the date of the commencement.25 MEDICAL EXAMINATION OF THE ACCUSED Section 122 provides for the medical examination of any person, for the purpose of an investigation.26 In cases of rape and certain categories of hurt, the magistrate must ensure that the victim as well as the suspect are examined by a Government Medical Officer.27

The Evidence Ordinance, 1885 The Evidence Ordinance, 1885, sets down the basic rules that govern criminal as well as civil proceedings in any court of law. Drafted by the eminent British lawyer Sir James Fitzjames Stephen, it draws heavily from the Indian Evidence Act, 1872. The Evidence Ordinance shuts out from evidence confessions recorded by a police officer or forest officer or made during police custody, unless it is made before a magistrate.28 However, a confession that leads to the discovery of fact may, to that limited extent, be led in evidence.29 As discussed in Chapter 20, security and terror laws have deviated drastically from these time-honoured norms put in place to prevent custodial coercion.

Prisons Ordinance No. 16 of 1877 and the Departmental Standing Order, 1956 The United Nations Standard Minimum Rules for the Treatment of Prisoners30 are universally accepted guiding principles. In Sri Lanka, the Prisons Ordinance, No. 16 of 1877 and the Departmental Standing Order, 1956, are the statutory provisions governing the conduct of prison officials and the treatment of prisoners. A prison officer shall, for the purposes of the Ordinance, be deemed to be always on duty (Section 10) and is empowered to use all such means, including such degree of force, as may reasonably be necessary to compel obedience to any lawful directions and to enforce prison discipline (Section 13). Weapons may only be used for this purpose as a last resort (Section 77). Section 132 requires prison officers to treat prisoners with kindness and humanity and to inform the jailor of any prisoner who desires to see him.31 Section 87(2) makes the ill-treatment of a prisoner a punishable offence.32

The Departmental Standing Orders According to Rule 15, whenever complaints of ill-treatment, assault or other irregularities on the part of officers are made, the superintendent should hold a brief personal investigation at the spot, ascertaining the main facts and the names of witnesses, if any, and should thereafter direct the jailer to record the statements of the witnesses, if such action seems necessary. Under Order 202 of the Departmental Standing Orders 1956, an officer is considered to have neglected his duty ‘if he, by carelessness or neglect in the course of his duty contributes to any loss, damage, or injury to any person or property’. An officer is guilty of improper conduct if he uses obscene, insulting, or abusive language to a prisoner. A prison officer commits an offence of unlawful or unnecessary exercise of authority if he 1. deliberately acts in manner calculated to provoke a prisoner, or

2. in dealing with a prisoner uses force unnecessarily or, where the application of force to a prisoner is necessary uses undue force.33 _________________ 1

Section 162, SPC.

2

Sections 321 and 322, SPC.

3

Section 339, SPC.

4

CrPC Amendment Act, No. 16 of 2005 and No. 42 of 2007.

5

CrPC Amendment Act, No. 21 of 2005.

6

Section 371, CrPC, 1979 (hereinafter ‘Sri Lanka CrPC’).

7

Pradeep Kumar Dharmaratne v. Inspector of Police Dharmaratne and Others, SCA 163/1998, SCM 17 December 1998. 8

‘Peace officer’ includes police officers and Grama Seva Niladharis appointed by a government agent in writing to perform police duties (Section 2, Sri Lanka CrPC). 9

Section Section 32 Code of Criminal Procedure.

10

Section 32, Sri Lanka CrPC.

11

Section 28, Sri Lanka CrPC.

12

Section 37, Sri Lanka CrPC.

13

Section 2, CrPc (Special Provisions) Act No. 42 of 2007.

14

Section 115(1), Sri Lanka CrPC.

15

Section 115(2), Sri Lanka CrPC.

16

Ibid.

17

Section 126, CrPC.

18

Section 127(1). Even when a magistrate attends to this delicate task, he is expected to record such statement and sign in the manner provided in Section 277. It must be duly dated and forwarded to the magistrate’s court by which the case is to be inquired into or tried. 19 I believe that this statement was voluntarily made. It was taken in my presence and hearing and was read over by me to the person making it and admitted by him to be correct, and it contains accurately the whole of the statement made by him. (Signed) A.B. Magistrate of the Magistrate’s Court. 20

Section 197, Indian CrPC.

21

CrPC (Special Provisions) Act No. 15 of 2005 and 42 of 2007.

22

Section 2, CrPC (Special Provisions) Act No. 42 of 2007.

23

Sections 102, 113(b), 296, 297, 300, 355, 356, 358, 359, 364, 371, 383, 384 and 490 (that is, abetment, conspiracy, murder, culpable homicide not amounting to murder, attempt to murder, kidnapping/abducting with intent to secretly and wrongfully confine, etc.). 24

Ibid.

25

Section 5 of CrPC (Special Provisions) Act No. 42 of 2007.

26

Where any officer in charge of a police station considers that the examination of any person by a medical practitioner is necessary for the conduct of an investigation, he may, with the consent of such person, cause such person to be examined by a Government medical officer. The Government medical officer shall report to the police officer setting out the result of the examination. (2) Where the person referred to in subsection (1) does not consent to being so examined, the police officer may apply to a Magistrate within whose jurisdiction the investigation is being made for an order authorising a Government medical officer named therein to examine such person and report thereon. Where such an order is made such person shall submit to an examination by such Government medical officer who shall report to the Magistrate setting out the result of the examination. 27

Section 137.

28

Section 25(1), Evidence Ordinance.

29

Section 27(2). The justification of this provision is that, a discovery of fact in terms of Section 27 would establish that the accused had knowledge of the existence and whereabouts of the fact that was discovered. 30

Adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders at the Congress held in Geneva in 1955 and approved by the Economic and Social Council by its resolutions 663C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. 31

Section 132, Prisons Ordinance 1877.

32

Section 87(2), Prisons Ordinance, 1877.

33

Order 202(XI) of the Departmental Standing Order 1956, Department of Prisons.

22 International Law: Obligations and Compliance Obligations Sri Lanka has ratified the following international human rights and humanitarian law treaties on the dates given within parentheses: 1. Genocide Convention (12 October 1950) 2. Geneva Conventions 1949 (28 February 1959) 3. International Covenant on Civil and Political Rights (ICCPR) (11 September 1980) 4. International Covenant on Economic, Social and Cultural Rights (ICESCR) (11 September 1980) 5. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (5 October 1981) 6. Convention on Elimination of All Forms of Racial Discrimination (CERD) (18 February 1982) 7. Convention on the Rights of the Child (CRC) (12 July 1991) 8. UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (3 January 1994)

9. Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) (31 November 1997) The three main components of a victim’s right to a remedy are access to justice, reparations and truth.1 In view of the Updated Set of Principles to combat impunity and the observations of the UN Committee on CAT,2 Sri Lanka has the obligation to investigate and prosecute crimes of torture and ensure reparation.

Implementation Customary International Law and treaty provisions are enforceable in Sri Lanka only upon their incorporation into domestic law. Sri Lanka has enacted the Convention against Torture and other Cruel, Inhuman or Degrading Treatment Act, No. 22 of 1994 (Anti-Torture Act) which recognises torture as a crime which shall be tried by the High Court. Sri Lanka has also enacted the International Covenant on Civil and Political Rights Act, No. 56 of 2007. This law recognises some elements of criminal due process such as the right of an accused unfamiliar with the language of the proceedings to have an interpreter. It also recognises the right of citizens to take part in public affairs. It prohibits the propagation of war, religious hatred, racial intolerance and discrimination. The High Court may be moved against any executive action infringing this law, within three months of the cause of action. The Special Rapporteur on Torture made the following observations in 2007: In general, I note that Sri Lanka already has many of the elements in place necessary to both prevent torture and combat impunity, such as fundamental rights complaints before the Supreme Court in relation to Art 11 of the Constitution, indictments and prosecutions based on the 1994 Convention against Torture Act, bringing suspects before magistrates within the statutory 24 hour period, formal legal medical examinations by trained forensic experts (Judicial Medical Officers),

and investigations and visits by the National Human Rights Commission (NHRC). The commitment of the Government to prevent torture is also demonstrated by the establishment of mechanisms by the Inspector General of Police and the Attorney General’s Office specifically to investigate allegations of torture (e.g. the Special Investigations Unit and the Prosecution of Torture Perpetrators Unit). Moreover, with respect to my mandate the Government regularly continues to provide clarifications and up-dates with regard to communications related to such violations.3

The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment Act, 1994 (AntiTorture Act) Sri Lanka is the only country in South Asia to have enacted a law penalising torture, although it does not expressly provide for compensation to the victim. Torture, or an attempt to commit or abet torture, is recognised as a penal offence by the various sub-clauses of Section 2 of the Anti-Torture Act. The definition of torture in Section 12 (interpretation section) is as follows: Torture with its grammatical variations and cognate expressions, means any act which causes severe pain, whether physical or mental, to any other person, being an act which is (a) done for any of the following purposes: (i) obtaining from such other person or a third person, any information or confession; or (ii) punishing such other person for any act which he or a third person has committed, or is suspected of having committed; or (iii) intimidating or coercing such other person or a third party; or (b) ‘done for any reason based on discrimination, and being in every case, an act which is done by or at the instigation of or with the consent or

acquiescence’ of a public officer or other person acting in an official capacity. Section 2 is as under: (1) Any person who tortures any other person shall be guilty of an offence under this Act; (2) Any person who (a) attempts to commit; (b) aids and abets in committing; (c) conspires to commit, an offence under subsection (1), shall be guilty of an offence under this Act. The Anti-Torture Act includes within its ambit, torture done ‘with the consent or acquiescence’ of a public officer or other person acting in an official capacity.4 The Supreme Court has also recognised the principle of command responsibility while dealing with public law remedies.5 Criminal law, however, requires a clearer attribution of liability. Reference to ‘acquiescence or consent’ in Section 12 and to ‘abetment’ in Section 2 would imply command responsibility and bring within the law’s ambit an officer in charge of a police station who permits abuse under his command.6 However, few prosecutions invoke the principle. The High Court7 has reprimanded the Attorney General’s Department for not indicting superior officers in the gruesome case of Gerald Perera.8 The punishment prescribed by Section 2(4) is imprisonment, ranging between 7 and 10 years and a fine ranging between Sri Lankan Rupees 10,000 and Sri Lankan Rupees 50,000 (both inclusive). Prosecutions under the Anti-Torture Act follow the Code of Criminal Procedure (CrPC). Investigation of offences is by the Criminal Intelligence Department (CID) under the directions of the Attorney General’s Office, which conducts the prosecution. There is power to arrest alleged offenders.9 Whether to indict a person or not is the decision of the Attorney General and there is no remedy against the decision not to indict an alleged perpetrator.10 The victim or victim’s representative may assist the prosecutor, if permitted, but cannot directly conduct the prosecution. There is no special defence available to officials accused of torture. Section 3 of the CAT Act contains a clarification in these terms:

For the avoidance of doubts it is hereby declared that the fact that any act constituting an offence under this Act was committed (a) at a time when there was a state of war, threat of war, internal political instability or any public emergency; (b) on an order of a superior officer or a public authority, shall not be a defence to such offence. No sanction for prosecution is required under this law, although the Emergency Regulations grant an immunity from prosecution to military and police personnel in respect of acts of military or police personnel done in purported discharge of duty.11 As torture could never be part of duty there is very good reason to say that the immunity provisions in the Emergency Regulations or other laws will not apply to prosecutions for torture. The Anti-Torture Act lets into evidence a ‘confession’ that an official may have recorded.12 Under this Act, such a confession made in custody is evidence, not against the maker, but against the official by whom or at whose behest it was induced. It is used as evidence that a police official tortured a prisoner to force a confession. As on 16 May 2008, 53 indictments had been filed against police officers under the CAT Act. An analysis of this information is shown below: Convictions Acquittals Withdrawal of charges Pending trial

3 17 5 28

The three convictions are in State v. Madiliyawatte Jayalathge Thilakarathna Jayalath,13 State v. Edirisinghe,14 and State v. Selvin Selle and Another.15 The first conviction under the CAT Act was in Democratic Socialist Republic of Sri Lanka v. Madiliyawatte Jayalathge Thilakarathna Jayalath in which the victim was illegally detained and tortured at the Wellawatte Police Station. He was beaten badly and accused of stealing gems. The Colombo High Court convicted the policeman responsible and sentenced him to seven years of rigorous imprisonment along with a fine of Sri Lankan Rupees 10,000, in default of which a further two years of rigorous

imprisonment was ordered. It, however, does not appear that anyone else was even prosecuted as an abettor or on account of command responsibility. In Government of Democratic Socialist Republic of Sri Lanka v. Selvin Salle and another, the court went by the testimony of the victim. Arrested on the charge of theft, she had been beaten with iron rods with the object of extracting a confession. She lodged a complaint with the magistrate upon her production in court. After a trial under the Anti-Torture Act, the concerned policeman was convicted and the victim awarded a compensation of Sri Lankan Rupees 100,000 of which Sri Lankan Rupees 30,000 was to be paid by the officer and the remainder by the State. Again, there is no suggestion of command responsibility, but the court awarded compensation though the Anti-Torture Act makes no provision for the same. The case also shows the importance of making a complaint of torture to the magistrate at the earliest opportunity. But, in Government of Sri Lanka v. Sub Inspector of Police, Warnakulasuriya Mahavaduge Rohan Prasanka Peris,16 the Negombo High Court acquitted a police sub-inspector indicted for torture of such severity that it had resulted in a brain injury to a prisoner held on the allegation of theft. Acquittal was recorded on an absurd ground. The victim had said that he was, among other things, beaten on the soles of his feet. Simply upon the possibility that the injuries on his feet ‘could have’ been caused by a fall, the more serious injuries were ignored and the perpetrator exonerated. In November 2010, the High Court handed down acquittals in a case where a small boy was held for a week in custody for a petty crime and tortured at a police station.17 The NHRC had earlier found that the boy had, in fact, been tortured by the police officers. Kishali Jayawardene is of the opinion that the legal system in Sri Lanka serves to encourage impunity. She identifies factors that make the AntiTorture Act ineffective. Much is also due to lack of prosecutorial diligence, the difficulties that judicial officers face in comprehending the special rationale underlying the enactment of the CAT Act, absence of witness protection to the family members of the torture victim, the intervention of politicians in protecting

erring police officers and a host of other systemic failures in Sri Lanka’s legal system. Corruption in the police force is another factor. The National Police Commission and the National Human Rights Commission have only been able to play a minimal role, particularly with no new appointments being made after the expiry of the Commissioners’ term in 2009.18

Human Rights Commission of Sri Lanka Act, 1996 The Human Rights Commission is empowered to inquire into complaints and ensure the protection of Fundamental Rights.19 The Act permits a representative petition on behalf of a victim.20 The Commission can only mediate and has no power to issue binding directions. If the state does not comply with its recommendations, the Commission can do nothing more than report the matter to the President, who shall then place the report before the Parliament.21 The lack of enforceable authority has rendered the Human Rights Commission quite ineffective. While Section 15 provides that the Commission may refer any matter in which mediation fails ‘to any court having jurisdiction to hear and determine such matter in accordance with such rules of court as may be prescribed’, such rules of procedure have, however, not yet been prescribed by the Supreme Court. A case referred by the Human Rights Commission to the High Court was that of Nandani Herath.22 At an election, she was one of the supporters of a candidate who was eventually defeated. She was arrested soon after that election concluded, illegally detained for three days and tortured. Her arms were broken. Later, she was charged with stealing antique statues. Her father made a complaint to the Commission where he was told that the police officials were unable to attend the inquiry due to their official duties. The matter was referred to the High Court for prosecution under the AntiTorture Act but seems not to have progressed. H.M. Susantha Kumara was allegedly tortured by officers of the Gokarella police station on 4 July 2005. He was picked up for refusing to supply them with liquor and needed to be hospitalised for five days on

account of the injuries he received at the police station. His complaint to the Human Rights Commission23 was not looked into until February 2006. The case record was missing; hence, another set of documents had to be given. Three years down, the Commission recommended that the victim be paid all of Sri Lankan Rupees 12,500. Though the Human Rights Commission has powers of inspection,24 observers say that these powers are weak. They have long had difficulty in obtaining access to army camps and recent police circulars have permitted HRCSL (Human Rights Commission of Sri Lanka) officers to inspect only the cells of police stations and not the entire precincts of the station including the toilets and the kitchen, which are often the very places where detainees are taken and tortured or ‘disappeared’.25 In this context, the authoritative interventions of the HRCSL into identifying perpetrators of enforced disappearances and other grave human rights violations, such as torture, have been minimal.26

Police Ordinance, 1865 Section 82 of the Police Ordinance prescribes penalties for neglect of duty. Even though the term ‘torture’ has not been used, it would be covered by the concept of dereliction of duty.27 There may be disciplinary action and suspension from service on grounds of misconduct.28 Departmental orders have been issued from time to time. Departmental Order No. A.20 directs that arrests will be made as far as possible without violence and that only that much of force should be used as is necessary in order to bring a violent situation under control.

Presidential Directives On 7 July 2006, the Presidential Secretariat issued Presidential Directives on Protecting Fundamental Rights of Persons Arrested and/or Detained to the Heads of the Armed Forces and the Police. On 12 April 2007, these directives were circulated to the Commanders of the Army, Navy and Air

Force, the Inspector General of Police as well as to the Secretary of the Ministry of Defence. The Directives re-affirm the powers of the HRCSL.29 The Presidential Directives do not provide for any enforcement mechanism or sanctions against a violation. Their efficacy is doubtful as the provisions continue to be regularly violated.

Conclusions of Monitoring Agencies Reputed UK-based human rights organisation, REDRESS summarises the conclusions of international monitoring agencies: Throughout the 1990s, the UN Working Group on Enforced or Involuntary Disappearance urged Sri Lanka to take effective steps to bring down the extremely high number of ‘disappearances’. In 1998, the Committee against Torture, in its observations on Sri Lanka’s country report under the CAT, stated that it was ‘gravely concerned by information on serious violations of the Convention, particularly regarding torture linked with disappearances’. [The Committee] regrets that there were few, if any, prosecutions or disciplinary proceedings despite continuous Supreme Court warnings and awards of damages to torture victims… Sri Lanka was also subject to a confidential inquiry of the CAT under Article 20 of CAT from April 1999 to May 2002. The committee observed that: ‘The fact that police officers continue unlawful acts, including torture, despite regular judicial condemnation of such acts, shows that the authorities have permitted such acts by their failure to impose effective sanctions.’ Torture is frequently resorted to by the police, the army and paramilitaries and ‘even though the number of instances of torture is rather high, the majority of suspects are not tortured; some may be treated roughly’. The committee ‘welcomed the significant efforts undertaken by the Government of Sri Lanka to fight and prevent acts of torture’ while noting that ‘investigation by the Sri Lankan police of alleged instances of torture is not satisfactory, as it has been often inordinately delayed. Prosecution or disciplinary proceedings have until recently been rare’. The large number of reported cases of ‘disappearances’, torture and rape in

custody have also been highlighted by the Working Group on Enforced or Involuntary Disappearances, the UN Special Rapporteurs on Torture and Violence against Women, all of whom have urged Sri Lanka to take adequate measures to eradicate such human rights violations, in particular by combating impunity.30 _________________ 1

See Article VII of the (updated) 2006 United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. 2

See the text of the Observations and of Principle 1 in the Chapter ‘The International Regime on Torture’. 3

UN press release, ‘Special Rapporteur on Torture Concludes Visit to Sri Lanka’, 29 October 2007, available at http://www.unhchr.ch/huricane/huricane.nsf/0/F493C88D3AFDCDBEC1257383006CD8BB? opendocument (last accessed on 30 November 2012). 4

Section 12, CAT Act 1994.

5

See Chapter 20.

6

Kishali Pinto-Jayawardena, The Rule of Law in Decline: Study on Prevalence, Determinants and Causes of Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka (Denmark: The Rehabilitation and Research Centre for Torture Victims [RCT], 2009), p. 40. 7

Republic of Sri Lanka v. Suresh Gunasena and Others, Negombo High Court, HC Minutes 2 April 2008. See also discussion in Chapter 21. 8

See discussion in Chapter 20.

9

Section 2(5), CAT Act 1994.

10

CrPC.

11

As per the Emergency (Miscellaneous Provisions and Powers) Regulations (EMPPR), 2005:

No action or other legal proceeding, whether civil or criminal, shall be instituted in any court of law in respect of any matter or thing done or purported to be done in good faith, under any provisions of any emergency regulation or of any order or direction made or given there under, except by, or with the written consent of, the Attorney General. 12

Section 5, Anti-Torture Act.

13

Republic of Sri Lanka v. Madiliyawatte Jayalathge Thilakarathna Jayalath, HC Case No. HC 9775/99, Colombo High Court, HC minutes, 19 January 2004. 14

Republic of Sri Lanka v. Edirisinghe, HC Case No. 1392/2003, Colombo High Court, HC minutes, 20 August 2004; Republic of Sri Lanka v. Selvin Selle and Another, HC No. 966/2002, Colombo High Court, HC minutes, 20 July 2007. 15

Republic of Sri Lanka v. Selvin Selle and Another, HC No. 966/2002, Colombo High Court, HC minutes, 20 July 2007.

16

Case No. H.C.259/2003.

17

Kishali Pinto Jayawardene, ‘Should We Repeal the Anti-Torture Act?’ Sunday Times, 14 November 2010. 18

Ibid.

19

Section 11(d), HRCSL Act, 1996.

20

Ibid., Section 14.

21

Ibid., Section 15(8).

22

Human Rights Comission T/33/2002 Case Nos. 117, 118 and 119/2003; Case Nos. 117, 118 and 119/2003 at the High Court of Kurunegala. 23

No. C/3686/05.

24

Section 11(d) of the Act:

For the purpose of discharging its functions the commission may exercise any or all of the following powers: (a) investigate, any infringement or imminent infringement of fundamental rights in accordance with the succeeding provisions of this Act; (b) appoint such number of sum-committees at Provincial level, as it considers necessary to exercise such powers of the Commission as may be delegated to them, by the Commission, under this Act; (c) intervene in any proceedings relating to the infringement or imminent infringement of fundamental rights, pending before any court, with the permission of such court; (d) monitor the welfare of persons detained either by a judicial order or otherwise, by regular inspection of their places of detention, and to make such recommendations as may be necessary for improving their conditions of detention; (e) take such steps as it may be directed to take by the Supreme Court, in respect of any matter referred to it by the Supreme Court; (f) undertake research into, and promote awareness of, human rights, by conducting programs, seminars workshops and to disseminate and distribute the results of such research; (g) award in its absolute discretion to an aggrieved person or a person acting on behalf of an aggrieved person, such sum of money as is sufficient to meet the expenses that may have been reasonably incurred by him in making a complaint to the Commission under section 14. (h) do all such other things as are necessary or conducive to the discharge of its functions. 25

The term has, today, come to signify a situation where someone is made a victim of enforced disappearance. It has been made into a verb in international human rights parlance. 26

Pinto-Jayawardena, op. cit., p. 196.

27

Every police officer:

(a) who shall be guilty of any violation of duty or willful breach or neglect of any regulations and lawful orders of other competent authority, and not punishable under section 55; or …. (d) who shall maliciously and without probable cause prefer any false, vexatious, or frivolous charge or information against any individual; or (e) who shall knowingly and willfully, and with evil intent, exceed his powers; or

(f) who shall be guilty of any willful culpable neglect of duty in not bringing any person who shall be in his custody without a warrant before a magisterial officer as hereinbefore provided; or …. (h) who shall offer any unwarrantable personal violence to any person in his custody, shall be liable to a penalty not exceeding three months’ pay, or to imprisonment, with or without hard labour, for a period not exceeding three months, or both. (Government of Sri Lanka, Penalties for neglect of duty, & c., section 82, available at http://www.lawnet.lk/sec_process.php? chapterid=1956Y2V53C§ionno=82&title=%20POLICE%20&path=3 [last accessed on 30 November 2012]) 28 29

30

See also Establishments Code, Vol. 2, Chapter XVIII, Rule 21.1. 1. Every member of the Armed Forces and Police should assist the HRC by ensuring that human rights are respected. 2. No person shall be arrested or detained under any Emergency Regulation or the Prevention of Terrorism Act No. 48 of 1979, except in accordance with the law and proper procedure and by a person who is authorised by law to make such an arrest or order such detention. 3. The person making the arrest or detention should identify himself by name and rank, to the person or relative or friend of the person to be arrested. The person to be arrested should be informed of the reason for the arrest. All details of the arrest should be documented in the manner specified by the Ministry of Defence. The person being arrested should be allowed to make contact with family or friends to inform them of his whereabouts. 4. When a child under 18 years or a woman is being arrested or detained, a person of their choice should be allowed to accompany them to the place of questioning. As far as possible, any such child or woman arrested or detained should be placed in the custody of a Women’s Unit of the Armed Forces or Police or in the custody of another woman military or police officer. 5. The person arrested or detained should be allowed to make a statement in the language of his choice and then asked to sign the statement. If he wishes to make a statement in his own handwriting it should be permitted. 6. Members of the HRC or anyone authorised by it must be given access to the arrested or detained person and should be permitted to enter at any time, any place of detention, police station or any other place in which such a person is confined. Further, the HRC must be informed within 48 hours of any arrest or detention and the place the person is being detained.

REDRESS, ‘Reparation for Torture: A Survey of Law and Practice in Thirty Selected Countries, Sri Lanka Country Report, 2003’, available at: http://www.redress.org/downloads/countryreports/SriLanka.pdf (last accessed on 14 November 2012).

23 Enforced Disappearances Sri Lanka has the second highest number of disappeared people in the world, says a UN study.1 Only Iraq has had more cases of disappearances, with 16,384 missing, according to the UN Working Group on Enforced or Involuntary Disappearances.2 ‘Recurring Nightmare: State Responsibility for Disappearances and Abductions in Sri Lanka’, a report published by Human Rights Watch on 5 March 2008,3 paints a grim picture of the republic’s adherence to human rights standards. Judging by the statistics on ‘disappearances’ released by government and non-governmental sources, more than 1,500 people have been reported missing from December 2005 through December 2007, and the majority of them are still unaccounted for.4 On 28 June 2007, the Chairman of the Presidential Commission on abductions, disappearances and killings, Judge Tillekeratne, told the media that 2,020 abductions and ‘disappearances’ were reported to his commission between 14 September 2006 and 25 February 2007 (1,713 cases of ‘disappearances’ and 307 abductions). According to Tillekeratne, 1,134 persons were later ‘found alive and reunited with their families’, but the fate of the rest remains unknown.5 Although Judge Tillekeratne presented the figures as proof that the majority of the ‘disappeared had

returned to their homes, it shows, in fact, that at least 886 people had disappeared without a trace in less than 12 months.6 The Human Rights Commission (HRC) does not publicise its data on cases submitted to its review. According to credible sources interviewed by Human Rights Watch, as well as press reports, the commission recorded about 1,000 cases in 2006 and over 300 cases in the first four months of 2007.7 However, the commission refused to provide any data in response to Human Rights Watch’s letter of inquiry.8 On 31 October 2007, the Law & Society Trust (LST), in collaboration with four local partners, including the Civil Monitoring Commission and the Free Media Movement, submitted details of 540 alleged ‘disappearances’ between January and August 2007 to the 2006 Presidential Commission of Inquiry appointed by President Mahinda Rajapakse to investigate 15 (later increased to 16) selected incidents of grave human rights violations, all related to the conflict in the north and east (Udalagama Commission). The inquiry commission’s work was observed by 11 ‘eminent persons’ known as the International Independent Group of Eminent Persons (IIGEP) on a mandate issued by the Presidential Secretariat. The commission commenced its formal sittings in March 2007. However, its work was stymied by non-cooperation of authorities, a hostile nationalist press and the lack of essential mechanisms such as a good witness protection system. The IIGEP withdrew from the commission process in April 2008.9 In June 2009, the commission wound up its proceedings leaving almost half the cases un-investigated because its mandate was not extended by the Presidential Secretariat. The report of the Udalagama Commission has yet not been made public. While inquiry mechanisms of this nature remained ineffective, ‘disappearances’ continued to occur throughout the island with certain regions being particularly affected. A majority of cases were reported from the Jaffna peninsula. According to HRC figures published in the media, at least 835 persons were ‘disappeared’ or abducted there between December 2005 and May 2007. A well-regarded organisation, University Teachers for Human Rights (Jaffna), reported in December 2007 that out of 948 individuals reported missing in Jaffna from December 2005 to October 2007, 684 remain unaccounted for.10

Since late 2006, ‘disappearances’ and abductions have been noticed in Colombo, as well as in the districts of Mannar, Batticaloa, Ampara and Vavuniya. Out of the 540 cases submitted to the Commission of Inquiry by the Law and Society Trust, 271 were from Jaffna, 78 from Colombo, 40 from Mannar, 39 from Batticaloa, 15 from Ampara and 14 from Vavuniya.11 Since its formation in November 2006, the Civil Monitoring Committee has recorded dozens of cases of ‘disappearances’ and abductions in Colombo, at the same time acknowledging that this reflects only a fraction of the total.12 Human Rights Watch’s research in February, March and June 2007, examined in detail 99 cases out of the hundreds of people believed to have been ‘disappeared’ or abducted in 2006 and 2007. These include cases from Colombo, Jaffna, Vavuniya, Mannar, Trincomalee and Batticaloa.13 While the government claims that the number of ‘disappearances’ and abductions has dropped dramatically since June 2007, available evidence shows a high number of new ‘disappearances’. In August 2007, the International Committee of the Red Cross (ICRC) stated that it had received reports on 34 abductions in three weeks, and the HRC recorded 21 ‘disappearances’ in Jaffna alone. Weekly reports published by the Sri Lanka Monitoring Mission (SLMM) suggest that in September and October 2007, abductions in the east continued almost on a daily basis. For example, in the week of 3–9 December 2007, 22 abductions were reported to the SLMM in the east. The LST report also shows that the number of reported ‘disappearances’, which had been gradually decreasing in April–July 2007, rose sharply again in August.14 The report blamed the state:15 In the great majority of cases documented by Human Rights Watch and Sri Lankan groups, evidence indicates the involvement of Government security forces—army, navy, or police. The Sri Lankan military, empowered by the country’s counter-terrorism laws, has long relied on extra-judicial means, such as ‘disappearances’ and

summary executions, in its operations against Tamil militants and JVP insurgents. Regulation 56 of the Emergency (Miscellaneous Provisions and Powers) Regulations (EMPPR), August 2005, gives the Deputy Inspector General of Police the power to dispose of bodies without notifying anybody. This surely contributes to the large number of ‘disappearances’. Also implicated in abductions and ‘disappearances’ were pro-government Tamil-armed groups, acting either independently or in conjunction with the security forces.16 Relatives of the ‘disappeared’ have often pointed to the Karuna group, which broke away from the LTTE in March 2004 and operates primarily in the east and in Colombo. In Jaffna, eyewitnesses to several abductions have implicated members of the Eelam People’s Democratic Party (EPDP), a Tamil political party that has long been targeted by the LTTE. The report added that both these groups cooperate closely with Sri Lankan security forces. The military and police frequently use native Tamil speakers, often alleged to be Karuna group or EPDP members, to identify and at times apprehend suspected LTTE supporters. In several cases reported to Human Rights Watch, families said that they were first visited and questioned by the military, and then, usually several hours later, a group of Tamil-speaking armed men came to their house and took their relatives away. On other occasions, the Karuna group and EPDP seemed to be acting on their own-settling scores with the LTTE or abducting persons for ransom with security forces turning a blind eye. The LTTE was also named in the list. The LTTE has been implicated in abductions in conflict areas under the government’s control, though the numbers reported to human rights groups and the HRC are comparatively low. This is not cause for complacency about LTTE practices, which, as Human Rights Watch and others have documented elsewhere, include bombings targeting civilians, massacres, torture, political assassinations, systematic repression of basic civil and political rights in LTTE-controlled areas, and other serious abuses. In part, the LTTE abduction numbers are low because it is not the LTTE’s primary tactic; the LTTE prefers to openly execute opponents, perhaps to ensure a deterrent effect on the population.

LTTE abductions may also be under-reported because the family members of the victims and eyewitnesses are often reluctant to report the abuses, fearing LTTE retribution.17 The Coalition to Stop the Use of Child Soldiers has stated that it had received verified reports of child abductions from camps in the main resettlement area of Vavuniya, often by paramilitary Tamil groups.18 Journalist and political analyst, Prageeth Eknaligoda, went missing on 24 January 2010 from Homagama, near the capital Colombo. His wife, Sandya Eknaligoda, was taken into custody when she went to lodge a complaint with the Homagama Police on 25 January. She has been released but there is still no news of Prageeth.19 Since 2006, the President has disregarded an explicit constitutional condition20 that a Constitutional Council must review or approve nominations to important public positions and to commissions such as the HRC and the National Police Commission. Instead, the President has made his own appointments to the public offices and commissions including the HRC, unrestrained by the requirements of law. This has affected the independence of these bodies. The International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights—the international body that regulates national human rights institutions—therefore, reduced the HRC’s status to that of an ‘Observer’,21 from the privileged position it was enjoying at ‘Status A’.22 The downgrading was based on two grounds. First was concern over the fact that the appointment of NHRC commissioners was not in compliance with Sri Lankan law or with international standards; and the second was on account of well-founded doubts that the commission’s practices were not ‘balanced, objective and non-political’, particularly with regard to the discontinuation of the follow-up of 2,000 cases of disappearances in July 2006. As an observer, its role becomes a passive one, as the NHRC no longer has the right to vote in international meetings and is not eligible to stand for election to the International Coordinating Committee. The Human Rights Commission Act provides that persons having knowledge of, or practical experience in, matters relating to human rights should be appointed as commissioners.23 Yet, this requirement was

disregarded as the Presidential appointees were mainly retired judges and lawyers with little commitment to the protection of human rights. Given the authority that the commission is endowed with, its performance is a huge disappointment from what was supposed to be the primary human rights monitor in the country. From mid-2009, no new members were appointed by the President to either the HRC or the National Police Commission, and these bodies ceased to function effectively. The main reason for the breakdown in Sri Lanka’s governance process is the lack of political will on the part of the successive governments to bring perpetrators of human rights violations to justice. This has been a major criticism by many an independent observer, including the IIGEP, which was an unsuccessful observer of the 2006 Udalagama Commission of Inquiry as noted previously. When the Human Rights Council was established, UN members required that the States elected must themselves, ‘uphold the highest standards’ of human rights. On that count, Sri Lanka is clearly disqualified. _________________ 1

Report on the visit to Sri Lanka by a member of the Working Group on Enforced or Involuntary Disappearances (25–29 October 1999) (E/CN.4/2000/64/Add.1) issued on 21 December 1999 and presented to this year’s UN Commission on Human Rights Session in April. Full text of the report can be found on the Commission website. 2

‘Sri Lanka’s Disappeared Thousands’, available http://news.bbc.co.uk/2/hi/south_asia/306447.stm (last accessed on 30 November 2012). 3

at

‘Recurring Nightmare: State Responsibility for “Disappearances” and Abductions in Sri Lanka’, available at http://www.hrw.org/en/reports/2008/03/05/recurring-nightmare (last accessed on 30 November 2012). 4

Ibid.

5

See http://www.hrw.org/en/node/40493/section/9 (last accessed on 30 November 2012).

6

‘Recurring Nightmare’, op. cit.

7

Ibid.

8

Ibid.

9

IIGEP public statement of 15 April 2008.

10

‘Recurring Nightmare’, op. cit.

11

Ibid.

12

Ibid.

13

Ibid.

14

Ibid.

15

Ibid.

16

Ibid.

17

Ibid.

18

‘Children Abducted from Sri Lanka Camps: Reports’, 21 May 2009, available at http://www.zeenews.com/news533439.html (last accessed on 30 November 2012). 19

‘Sri Lanka: Demand Investigation into Missing Journalist’, available at http://www.amnesty.org/en/library/info/ASA37/003/2010/en (last accessed on 30 November 2012). 20

Imposed by the 17th Amendment to the Constitution, Article 41B.

21

Status B: Observer Status—The national human rights organisation is not fully in compliance with the Paris Principles or insufficient information provided to make a determination. 22

Status A: The National Human Rights Organisation is in compliance with the Paris Principle.

23

Section 3(1).

SECTION FIVE

NEPAL

24 An Overview Nepal is a land-locked country between India and China. Around 1768, King Prithvi Narayan Shah unified the many fiefdoms of the region and created a monarchy. For the next 240 years, Nepal stayed a Hindu monarchy, until May 2008, when it was proclaimed a secular republic. The early codes of Nepal were unwritten, though there is evidence of a 14thcentury body of written civil laws called the Nyayashastra and a later set of 26 commandments called the Chabbisi. Departure from this tradition came with a powerful and venturesome prime minister, Jung Bahadur Rana, who toured Europe in the 1850s. The Ranas had seized power after the infamous ‘Kot massacre’ of 1846 and reduced the Shah monarch to no more than a puppet of the Rana Prime minister. During his European tour, Jung Bahadur Rana was greatly impressed by the Napoleonic Code and also common law and that led him to compile Nepal’s first comprehensive, written legal code called the Muluki Ain, which had elements of European law alongside Hindu tenets. The Muluki Ain (National Code) of 1854 was an amalgam of royal proclamations, scriptural texts, rules of contract, common law notions and procedures of all kinds—criminal and civil. This 1,400-page document has been of much interest to historians and anthropologists. Thus, the first Western influence on Nepali law is owed, not to colonisation, but to a sovereign impulse.

The 1854 Code was clear in its intent to preserve caste hierarchies. It systematised land records and revenue collection and even contained a statute of limitation, imported no doubt from the West. Even today, Nepal has a ridiculously short limitation period of 35 days for entertaining complaints of crimes like rape, homicide and custodial torture. The Muluki Ain, 1854, is said to have abolished torture as a mode of extorting confessions. It is also said to have restricted the range of crimes subject to penal torture like shaving of the head (mundne), pricking with needles (khopne), applying hot metals on the body to leave permanent marks (damal garne), degrading caste (jata patit garne) by feeding inedible substances (abhaksha khuwaune) and making a person lick the soles of someone’s feet (paitala chataune) for repentance. Around the same time, in next-door India, the British, in a display of Western angst over torture, were setting up the Madras Torture Commission of 1855. The Muluki Ain, 1854, held sway for over a century. During that century, momentous events were happening just miles away in India where by 1946, freedom was imminent and a Constituent Assembly was being elected. In 1947, a constitution was drafted in Nepal as well (though not by an elected assembly). It envisaged a bi-cameral legislature, albeit one where the Prime minister could select the members and veto legislation. This Constitution was promulgated in 1948, suspended in 1950 and revived in 1951 when the Delhi Compromise was brokered by India between King Tribhuvan and the pro-democracy Nepali Congress. Tribhuvan revived it as an Interim Constitution, promising to initiate the process for an elected Constituent Assembly, a promise that remained unfulfilled in his lifetime. Nepal’s Supreme Court was set up in 1952.1 By 1956, a three-tier judicial system was in place with district courts across the country and appellate courts in Kathmandu to function under the Supreme Court. In 1959, King Tribhuvan’s son and successor, Mahendra, suspended the 1951 Interim Constitution. He promulgated the Royal Constitution, citing divine authority vested in himself as the ruler. Within a week of the new Royal Constitution, the first ever elections by adult franchise to the Nepali Parliament were held and which, to everyone’s surprise, voted the Nepali Congress to power. B. P. Koirala became the first democratically elected

Prime Minister. In less than 18 months, however, the King dismissed and imprisoned the elected Prime Minister and declared a national emergency. The Ranas had, since 1846, wielded absolute power as prime ministers while the Shahs remained kings only in name. Generally, 1951 is regarded as the end point of the Rana stranglehold on power in Nepal, when at India’s intervention, the King appointed a pro-democracy Prime Minister and promised democratic reform. The election of Koirala and his swift dismissal in 1960 seemed to restore to the throne the absolute power that it had lost to the Ranas after the Kot massacre of 1846. In 1962, King Mahendra promulgated another constitution, set up the National Panchayat with himself as its head and banned political parties. This constitution is often referred to as the Panchayat Constitution. Even as he assumed total power, King Mahendra introduced some progressive changes. Equality before the law was proclaimed, large-scale land reforms were carried out, divorce was sanctioned and inter-caste marriages were recognised. A new Muluki Ain of 1964 replaced Jung Bahadur’s 1854 Code. The same year, a legislation called ‘Act to Repeal Some Criminal Cases and Remitting Punishment Act, 1964’ abolished torture as a legally sanctioned punishment. Nepal also acceded to the four Geneva Conventions in February 1964. In 1972, King Birendra succeeded his father, Mahendra, as the absolute monarch of Nepal. At the UN General Assembly’s 28th session in November 1973, Nepal voted in favour of Resolution No. 3059 which rejected and condemned the practice of torture.2 Meanwhile, political parties had been abolished in Nepal. The years that followed saw a tussle between the Nepali Congress led by the Koiralas and the Crown over the restoration of parliamentary democracy. In 1990, a movement for democracy forced the monarch to allow the formation of an interim (coalition) government led by the Nepali Congress to facilitate the promised general election in 1991 and multi-party democracy, King Birendra promulgated a new constitution based on the recommendations of a nine-member Constitution Reform Commission. In 1991, Nepal acceded to UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). By 1998,

Nepal had acceded to the following international conventions (the dates in brackets indicate the dates of ratification): 1. Geneva Conventions 1949 (7 February 1964) 2. Convention on the Prevention and Punishment of the Crime of Genocide 1948 (17 January 1969) 3. Convention on the Elimination of All Forms of Racial Discrimination 1965 (30 January 1971) 4. Convention on the Rights of the Child 1989 (14 September 1990) 5. Convention on the Elimination of All Forms of Discrimination Against Women 1979 (22 April 1991) 6. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1975 (14 May 1991) 7. International Covenant on Civil and Political Rights 1966 (14 May 1991) 8. First Optional Protocol to the International Covenant on Civil and Political Rights 1966 (14 May 1991) 9. International Covenant on Economic, Social and Cultural Rights 1966 (14 May 1991) 10. Second Optional Protocol to the International Covenant on Civil and Political Rights 1989 (4 March 1998) Chapter 25 reviews the 1990 Constitution promulgated by King Birendra under popular pressure. Chapter 26 analyses the new Interim Constitution of republican Nepal, drafted by people’s representatives after the democratic movement overthrew the monarchy. Chapter 27 deals with the military which has become the single most powerful factor in Nepali politics today, despite the overwhelming popular mandate for democratic reforms and in the face of an Interim Constitution and the statute that forbids military impunity. Chapter 28 reviews the statutory regime of Nepal. Chapter 29 looks at the working of the Torture Compensation Act (TCA). Chapter 30 reviews institutional responses to the menace of custodial torture. Five case studies are given in Chapter 31. The Human Rights and Democratic Forum (FOHRID) has conducted interviews with government officials on the subject of implementing international

commitments against custodial torture. Two such interviews are reproduced in Chapter 32. One is an interview with the then Deputy Attorney General and the other an interview with a Senior Superintendent of Police. _________________ 1

By the Supreme Court Act, 1952.

2

Geneva Conventions, 1949, G.A. Res. 3059 (XXVIII) (2 November 1973).

25 The 1990 Constitution Nepal became a constitutional monarchy under the Constitution of 1990.1 The preamble guaranteed basic human rights to all citizens, a competent system of justice and a multi-party parliamentary democracy based on universal adult suffrage. It declared the equality of all citizens before the law regardless of religion, gender or caste and abolished and penalised the practice of untouchability.2 Article 12 guaranteed to all persons the right to life and due process and abolished capital punishment.3 Article 14(4) outlawed torture and gave the right of compensation to torture victims in these terms: No person who is detained during investigation or for trial or for any other reason shall be subjected to physical or mental torture, nor shall be given any cruel, inhuman or degrading treatment. Any person so treated shall be compensated in a manner as determined by law.4 The Constitution of 1990 reorganised the judiciary.5 It provided for the establishment of a Judicial Council6 and a Judicial Services Commission7 to determine matters such as appointment of judges and other issues pertaining to judicial administration. This was an important step towards securing the independence of the judiciary. The King appointed the Chief Justice of the

Supreme Court and the other judges—no more than 14—of that court on the recommendation of the Judicial Council. The Constitution established appellate courts and numerous district courts.8 Judges of the appellate and district courts were to be appointed by the King on the recommendation of the Judicial Council. These courts had civil and criminal jurisdiction. Special Tribunals could also be appointed by law. All lower court decisions, including acquittals, were made subject to appeal. The Supreme Court was the court of last resort, but the King retained the sovereign prerogative to grant pardons and suspend, commute or remit any sentence levied by any court.9

In the Wake of the 1990 Constitution In 1996, the Torture Compensation Act (TCA) was passed. In 1997, a Human Rights Commission was set up in Nepal.10 Though it grants a victim of custodial torture the right to compensation, the TCA imposes an unreasonably short limitation period—of 35 days from the date of torture or release from detention—for lodging a complaint.11 The maximum compensation payable is Nepali Rupees 100,000.12 The TCA allows officials accused of torture to be defended in the proceedings by the state at public expense.13 In 2001, King Birendra and his family were massacred inside their palace. The assassinated king’s younger brother, Gyanendra, ascended the throne at a time when the Maoist movement was gaining momentum with the launch of its ‘People’s War’. King Gyanendra declared a national emergency, assumed all executive power, clamped down on the press and arrested political dissidents. An overwhelming upsurge of the Nepali people led by mainstream democratic parties and the Maoists forced King Gyanendra to re-instate Parliament in 2006 and eventually cede power. The Communist Party of Nepal–Maoist (CPN–M) was instrumental in mounting the ultimate challenge to the monarchy. Several other political parties were also involved in the pro-democracy movement. These parties together formed a Seven Party Alliance (SPA) and to set the stage for dismantling the monarchy and restoring democracy, entered into a detailed written

agreement with the Maoists. Based on this agreement, the Parliament (elected in 1999) was dissolved and its former members and 83 Maoist representatives were appointed to constitute a 330-strong Interim Parliament. Meanwhile, work had begun on drafting an Interim Constitution. On 15 January 2007, at the first sitting of the Interim Parliament, the Interim Constitution was adopted and the 1990 Constitution abrogated. By agreement, the formal abolition of the monarchy was left until after the elections to a Constituent Assembly. None of the Constitutions of 1951, 1959, 1962 and 1990 was the result of deliberation by an elected Constituent Assembly. Of these, the 1990 Constitution was by far the most democratic and the 1962 Constitution, the longest lasting. The 2007 Interim Constitution has lived up to its promise of an elected Constituent Assembly. A Constituent Assembly elected by the people, which had been a distant dream since 1951, was realised in April 2008. In May 2008, monarchy was formally abolished and Nepal became a sovereign, democratic and secular republic. However, the Constituent Assembly has not yet framed a constitution to substitute the Interim Constitution. It was scheduled to be done by May 2010, which time period has been periodically extended as the Nepali political process remains in a state of flux. As the elected Constituent Assembly is yet to frame a new constitution, the Interim Constitution of 2007 continues, with four amendments carried out since January 2007. Nepal’s first truly democratic constitution was, as said earlier, the one promulgated in 1990 and this constitution stipulated that the right to habeas corpus shall not be suspended even during a state of emergency.14 However, King Gyanendra flouted the constitutional mandate. He issued an ordinance that suspended all constitutional rights. The right of habeas corpus remained illusory as noted by the April 2003 edition of Human Rights Features of Human Rights Documentation Centre: In accordance with the recommendation of his Council of Ministers, King Gyanendra also issued the Terrorist and Disruptive Activities (Control and Punishment) Ordinance 2001 (TADO). TADO became a means for unlawfully detaining and torturing numerous suspected Maoists and journalists, lawyers, and human rights defenders.

Although the right to file a writ of habeas corpus was not suspended under the state of emergency, human rights attorneys in Nepal will assert that most writs of habeas corpus were either rejected outright or allowed to languish indefinitely during the state of emergency. Many individuals detained under TADO were minors, and many are still missing even months or years after the date of their (often undocumented) arrests. Several individuals who were released due to a successful writ of habeas corpus found that they were re-arrested minutes or hours after their ‘release’. Freedom of the press was curtailed, and several Maoist publications were shut down. Journalists who attempted to cover the growing violence between the Maoists and the security forces now faced the possibility of torture and arbitrary detention from both sides of the conflict. Extra-judicial and summary executions became all but de-facto state policy in attacking the Maoist insurgency. The Informal Sector Service Centre (INSEC) of Nepal estimates that 81 percent of the killings that occurred during the emergency, which lasted from 26 November 2001 to 28 August 2002, occurred at the hands of the state. After the state of emergency ended, the number of killings decreased, but the percentage that was killed by the state remained significantly higher than that killed by the Maoists.15 _________________ 1

Article 4(1), The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012). 2

Article 11, The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012). 3

Article 12, The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012). 4

Article 14(4), The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012).

5

Part 11, The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012). 6

Article 93, The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012). 7

Article 94, The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012). 8

Article 83, The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012). 9

Article 122, The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012). 10

By the Human Rights Commission Act 1997.

11

Section 5, The Compensation for Torture Act, 1996.

12

Section 6, The Compensation for Torture Act, 1996.

13

Section 10, The Compensation for Torture Act, 1996.

14

Proviso to Article 115(8)(2), The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012). 15

Winds of change: Will They Bring Peace? Available http://www.hrdc.net/sahrdc/hrfeatures/HRF74.htm (last accessed 30 November 2012).

at

26 Accountability under the Interim Constitution The Interim Constitution of 2007 preserves not only the right to habeas corpus but also many other Fundamental Rights during a state of emergency.1 It has made at least three important advances from the 1990 Constitution. First, it declares Nepal to be a secular republic.2 Second, it includes as enforceable Fundamental Rights many social and economic rights which were hitherto part of the Directive Principles and as such not enforceable.3 Third, and most important, is the detailed emphasis on human rights, punishment of their violations and reparation, recognition of command responsibility and of the need to end impunity. The new Interim Constitution pays attention to the mechanics of accountability.

Fundamental Rights Part 3 of the Interim Constitution deals with Fundamental Rights and guarantees to all persons the right to life, liberty and due process.4 Capital punishment is abolished. Citizens are granted other important Fundamental Rights such as the right to equality, right to freedom of expression and right to social security. Historically deprived sections of society have a declared

right to social justice.5 Women have the express right to decide matters pertaining to their reproductive health and have equal inheritance rights in ancestral property.6 The right of the child to nourishment, social security and freedom from exploitation is also recognised.7 The right to information8 and the right to privacy9 are enumerated as Fundamental Rights. Many objectives, earlier found in the 1990 Constitution under the Directive Principles of State Policy and as such not enforceable, are now rights that can be asserted as constitutional guarantees. Apart from the general right to due process guaranteed by Article 12, particular elements of due process and custodial justice are enumerated in Articles 24, 25 and 26. Article 24 guarantees the presumption of innocence and rules against retrospective application of a criminal law, selfincrimination and double jeopardy. It mandates production before a magistrate within 24 hours of arrest, the right to be informed of the grounds for detention and the right to legal representation.10 Article 25 permits preventive detention on the ground of an immediate threat to the nation or to law and order. Save the right of compensation for wrongful arrest, the article contains no safeguards such as an upper limit on the period of detention, a time-bound review of or a right to represent against preventive detention.11 This is unlike Article 22 of the Indian Constitution, under which a time-bound review of the detention order by an Advisory Board is mandatory. The Nepali provision on preventive detention does appear to be unguided. ‘National security’ and ‘law and order’ are extremely broad terms, and without express limits on the power of preventive detention, the draconian practice will become even worse. Even the provision for compensation in cases of wrongful detention is often ignored as, for instance, when the Supreme Court rejected a plea for compensation for wrongful arrest on the ground that no law had been enacted to provide for the same.12 The remedy of habeas corpus remains the sole recourse against preventive detention. The Interim Constitution does not permit abrogation of the right to life and due process in any circumstance, not even during a state of emergency. It explicitly bars suspension of the right to habeas corpus.13

Rule against Torture Article 26 prohibits torture and promises not only compensation to the victim but penalty to the perpetrator. 26. Right against Torture: (1) No person who is detained during investigation, or for trial or for any other reason shall be subjected to physical or mental torture, nor shall be given any cruel, inhuman or degrading treatment. (2) Any such action pursuant to clause (1) shall be punishable by law, and any person so treated shall be compensated in a manner as determined by law. The 1990 Constitution had provided for compensation to the torture victim but the Interim Constitution of 2007 has gone further to categorise torture as a criminal wrong. The State of Nepal is, thus, obliged to pass a legislation penalising torture. This would also be in keeping with its international obligation under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Pledge against Impunity Directive Principles of State Policy are non-justiciable in the sense that a judicial direction may not issue for a law to be passed in their terms. Nevertheless, the spirit of Directive Principles can be read into the content of rights and of policy. The State of Nepal has as one of its Directive Principles the elimination of impunity.14 The Directive Principles also enjoin Nepal to probe enforced disappearances that occurred during the recent conflict, to provide relief to victim families and to set up a Truth and Reconciliation Commission.15 As it happens, on 1 June 2007, the Supreme Court ordered the government to enact a legislation criminalising enforced disappearances. The Court also directed the government to establish a ‘Commission of Inquiry into Disappearances’ in keeping with international human rights

standards and to provide interim relief to the families of the ‘disappeared’.16 The government was called upon by the court to consider ratifying the International Convention for the Protection of all Persons from Enforced Disappearance (ICPPED). A Bill on the subject of Enforced Disappearances17 is pending in the Parliament. By a joint memorandum, reputed human rights organisations have, while welcoming the Bill, suggested that it be made more effective by defining ‘enforced disappearance’ in line with the ICPPED, by prescribing a maximum and minimum punishment and by clearly fixing modes of individual liability including command responsibility.18

Constitutional Imperatives to Ensure Custodial Accountability and the Recognition of Command Responsibility National Human Rights Commission ‘When human rights or humanitarian law may be involved, power is reserved to the National Human Rights Commission to enter even into matters covered by the Army Act.’19 The Interim Constitution itself provides for a National Human Rights Commission,20 which has powers to call for records. It may even conduct surprise searches by entering into any premises.21 It has the power to order compensation22 and also to recommend penal or departmental action against the perpetrator.23 The Commission may recommend administrative action against all those who have failed in their duty to ensure protection of human rights.24 This is a recognition of the vicarious responsibility of superior officers and, therefore, of command responsibility. Failure to follow the Commission’s recommendation could entail a declaration that the delinquent person, official or official body is a ‘human rights violator’, the actual repercussions of which are unclear.25

Office of the Attorney General and the Commission for Investigation of Abuse of Authority The Constitution envisages a permanent commission to investigate the abuse of authority by those who hold public office.26 Besides, the Attorney General is empowered to investigate on [sic] the complaints or the information so received to him by any means that there was not human like treatment [sic] to any person in custody, under this Constitution, or was not allowed such person [sic] to meet his/her relatives directly in person or through legal practitioners, and give necessary directions to the concerned authorities to prevent such situation.27 _________________ 1

Proviso to Article 143(7), The Interim Constitution of Nepal, 2007, available at http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). 2

at

3

at

4

at

5

at

6

at

7

at

8

at

9

at

10

at

11

at

Article 4(1), The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Part 3, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 12, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 21, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 20, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 22, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 27, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 28, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 24, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 25, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012).

12

Prabhujee Pant v. HMG Nepal, NeKaPa, 1992 BS: 298. See, Alternative Report to Second, Third and Fourth Periodic (Combined) State Report of Nepal (Submitted to the UN Committee against Torture, 2004). 13

Proviso to Article 143(7): Provided that clauses (1), (2) of article 12 and sub-clauses (c) and (d) of clause (3), Article 13 and 14, clause (2) and (3) of Article 15, Articles 16, 17, 18, 20, 21, 22, 23, 24, 26, 29, 30 and 31 and the right to constitutional remedy related to Article 32 and the right to habeas corpus shall not be suspended. 14

Article 33(c), The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012).

at

15

Article 33(q) and (s), The Interim Constitution of Nepal, 2007, available at http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). 16

Political Detainees Case.

17

Disappearances of Persons (Crime and Punishment Bill), 2006.

18

Joint Memorandum dated 29 August 2009 submitted by Accountability Watch Committee, Advocacy Forum Nepal, Amnesty International, Asian Federation against Involuntary Disappearances, Human Rights Watch, International Center for Transitional Justice, International Commission of Jurists and Informal Sector Service Centre to the Government of Nepal. 19

at

20

at

Article 132(4), The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 131, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). 21

Article 132(3)(j) and (k), The Interim Constitution of Nepal, 2007, available at http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). 22

Article 132(3)(l), The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012).

at

23

Article 132(2)(c) and (e), The Interim Constitution of Nepal, 2007, available at http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). 24

at

25

at

26

at

27

at

Article 132(2)(b), The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 132(2)(h), The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 119, The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012). Article 135(3)(c), The Interim Constitution of Nepal, 2007, available http://www.nic.gov.np/download/interim-constitution.pdf (last accessed on 13 December 2012).

27 The Army The Military Act, 2006 One of the first laws passed after the Parliament was restored in 2006 was the Military Act. The agreement between the Seven Party Alliance (SPA) and the Maoists included what is known as Agreement on the ‘Monitoring of Arms and Army Management’.1 The chief purpose of the law was to break the 240-year-old tradition of the Royal Nepalese Army’s (RNA) loyalty to the King and make the army subject to political control by an executive accountable to the Parliament. There are other significant changes in the army law. The earlier Army Act of 1959 gave blanket immunity to virtually anything done by anyone covered by the Army Act. The impunity provision was Section 24A of the Army Act, Nepal, 1959, and it read as follows: 24A. Notwithstanding anything contained in current law, in case any person dies or suffers any loss as a result of any action taken by any person to whom this act is application [officers] [sic] while discharging his duties, no case may be filed in any court against him. For the purpose of this Section, the term ‘any action taken while discharging duties’ means any action to be taken for internal security or

self-defense, including flag march, patrolling and guard duty. The Army Act of 1959 permitted civilians to be tried by the Military Court for ‘inciting army personnel to commit unlawful acts’.2 The provision was struck down by the Supreme Court as unfair and discriminatory.3 The Supreme Court exercised its writ powers of the 1990 Constitution to do so. Writ powers to interfere with military courts could be invoked only on grounds of jurisdictional excess. Military trials of civilians were, in the court’s view, a jurisdictional excess. With the enactment of the Army Act, 2006 (or Military Act, 2006), the 1959 Act stands repealed. The 2006 Act places the army under the control of the National Defence Council with the Prime Minister as Chairperson. The Defence Minister, Home Minister and Foreign Affairs Minister are the other members.4 The new Military Act makes any person who has been convicted of a human rights violation ineligible for appointment in the army.5 Army personnel are given some immunities and privileges, with the important rider that the immunity does not extend to acts of corruption and torture and crimes of homicide and rape. Section 22 of the Act states: Defending the acts performed during the discharge of duties: No case may be filed in any court against a person under the jurisdiction of this Act who commits any act, in the course of discharging his duties, resulting in the death of or loss suffered by any person. This notwithstanding, the offences provided by Section 62 and 66 shall not be deemed an offence committed in the course of discharging duties. Explanation: For the purpose of this Section, the phrase ‘committing any act, in the course of discharging his duties’ means acts performed during the performance of duties as well as any action taken for internal security or self-defence, including flag march, patrolling and sentry duty. Chapter 7 of the Act describes the offences constituted by this law and the procedure for their prosecution and punishment. Sections 38 to 42 concern enemy-related offences, mutiny and desertion; Sections 43 to 60 refer to other offences of indiscipline, cheating and fabrication of documents. Section 61 relates to improper conduct towards those in military

custody. Section 62 recognises as offences torture or enforced disappearance. It reads as under: Special provisions on offences of corruption, theft, torture and disappearance: 1. Committing any acts which are defined an offence of corruption, theft, torture and disappearance by prevailing law, shall be deemed to have committed offences of corruption, theft, torture and disappearance. 2. There shall be a committee comprised of the following for the purpose of conducting an investigation and inquiry into the offences provided by Subsection (1): (a) Deputy Attorney General prescribed by the Nepal Government [as] Chairperson, (b) Chief of legal section of the Ministry of Defence [as] Member, (c) Representative of Prad Viwak not below the rank of Lieutenant [as] Member. 3. The representative mentioned in Clause (c) of Subsection (2) shall be a person who is not relevant to the Court Martial of the related case. 4. The jurisdiction to hear and proceed with cases mentioned under Subsection (1) shall be vested with a Special Court Martial formed in accordance with Subsection (1) of Section 119. 5. The committee formed under Subsection (2) shall have the power equivalent to the power conferred by existing laws to an investigating and inquiry officer in respect to those cases. Cases of torture and enforced disappearances shall be investigated by the inquiry committee as described in Section 62(2) and tried by a Special Court Martial.6 There is a bar against double jeopardy and no other court can try them once the special court martial has dealt with the matter.7 Cases of rape and homicide are a different category and the regular courts shall try army officials charged with those offences under the regular law.8 Section 66 of the Act reads, to the extent relevant, as under:

66. Offences under other laws: 1. Except in the event that a person under the jurisdiction of this Act commits offences mentioned in Section 38 to 65 and those offences are committed by a military personnel against a military personnel, if the person under the jurisdiction of this Act commits the following offences, the cases which arise thereto shall fall under the jurisdiction of other courts: (a) Homicide (b) Rape The penalising of torture, enforced disappearances, homicide and rape and the express disclaimer of immunity are welcome features of the new law. But there are disturbing features too. One is the statute of limitation for offences. In no case of torture or disappearance can action be taken after three years of the incident.9 There is no minimum penalty prescribed for custodial torture or death. Human rights organisations have expressed concern about offences of enforced disappearances and torture being left to a military tribunal and with good reason. The human rights organisation FOHRID10 has reviewed the action taken by the army in cases of custodial deaths during the period between 1998 and 2008. Table 27.1 shows the nature of sanctions imposed on military personnel in respect of incidents of custodial death.

Celebration of Impunity: The Maina Sunuwar Case11 Military protection extended to even the most despicable acts of its personnel is evident from the first case in Table 27.1. On 17 February 2004, about 15 RNA personnel visited Devi Sunuwar’s house. Devi was away and they took away her 15-year-old daughter, Maina, after telling her father that she would be at the Panchkhal Military Barracks (Kavrepalanchowk district).

Her interrogation began with army officers holding her head underwater repeatedly until she nearly drowned, according to the verdict of a subsequent military court of inquiry. When Maina did not confess to being a Maoist, the officers applied electric shocks to her wet hands and feet. After 90 minutes of torture, she admitted acquaintance with some Maoists over the previous months but could say no more. Maina was left tied and blindfolded while her tormentors ate lunch. When the guard posted to watch her called them back, they found her dead, apparently after choking on her own vomit. The base commander ordered her body buried 50 yards outside the base perimeter and fabricated a coverup with the local police. Table 27.1: Sanctions Imposed on Military Personnel for Custodial Deaths S. Rank N.

Name

Incidents

Punishment by Court Martial

1. Col.

Bobby Khatri

Maina Sunuwar Case Maina Sunuwar Case Maina Sunuwar Case Singhadurbar

6 months of imprisonment/forfeited promotion for 2 years 6 months of imprisonment/forfeited promotion for 1 year 6 months of imprisonment/forfeited promotion for 1 year 2 months of imprisonment/forfeited promotion for 6 months 2 months of imprisonment and forfeited grade for 2 years 2 months of imprisonment

2. Capt. Sunil Prasad Adhikari 3. Capt. Amrit Pun 4. Sgt.

Om Bahadur Karki 5. Pyuth Yubraj Bogati

Singhadurbar

6. Non- Krishna Bahadur Singhadurbar Cb. BK 7. Cpl. Lilaram Mahato Suryabinayak 8. H. Lur Narayan Giri Balaju 9. Sgt. Sonu Kumar Rai Balaju 10. Gunner Ram Kumar K.C. Balaju 11. H. 1 Raj Kumar Hatuwagadhi Ranabhat Case 12. H. 2 Khagendra Prasad Hatuwagadhi Joshi Case 13. Capt. Dinesh Shrestha Hatuwagadhi Case 14. Lt. Bhishma Rawal Hatuwagadhi Case Source: Nepal Army, 2008.

2 months of imprisonment/Demoted Seriously warned 30 days of imprisonment 30 days of imprisonment 1 month of imprisonment/forfeited of grade (pay increment for 1 year) 1 month of imprisonment/forfeited of promotion for 4 years) 1 month of imprisonment/forfeited of promotion for 5 years) 45 days of imprisonment and demoted

On the next day, Maina’s parents and neighbours went to the Panchkhal Military Barracks. They were told that Maina had never been arrested. They went to the District Police Office in Kavrepalanchowk district. Police officers denied Maina’s custody. In the months that followed, Maina’s family despaired as inquires about her condition and whereabouts from the District Administration Office, the District Police Office, the Panchhkal Military Barracks and other army camps, the Army headquarters and the then Chief of Army Staff yielded no clear information. Concerns raised by diplomatic representatives and various international and national organisations compelled the Chief of Army Staff to set up a Board of Inquiry to probe the incident. On 14 March 2005, the Board of Inquiry submitted its opinion indicting three military officials. It recommended a court martial. The army set up a General Military Court under the chairmanship of Major General Kiran Shamsher Thapa. On 8 September 2005, three officers were convicted ‘of not following proper interrogation procedures’ by the court of inquiry but were released immediately after trial because they had already served more time in detention than the six-month sentences handed down by the military court. The conclusion was reached despite the Board of Inquiry’s detailed findings of how the girl was killed. Army officers (Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun) were found guilty of no more than using wrong interrogation techniques and of not following decent ways in the disposal of a dead body. The convicted officers were sentenced to six months imprisonment. However, as they had already spent six months confined to the barracks during the investigation, they were set free. They were also ordered to pay money to Maina’s family as compensation. Not satisfied with the outcome of the army’s internal inquiry and trial, on 13 November 2005, Maina’s family filed a complaint (FIR) with the Kavrepalanchowk police, against Col. Bobby Khatri, Capt. Sunil Prasad Adhikari, Capt. Amit Pun and Capt. Niranjan Basnet. On 6 November 2006, Sunil Prasad Adhikari resigned from the Army and left Nepal. On 23 March 2007, with the help of the UN Office of the High

Commissioner for Human Rights, the police exhumed Maina’s body from the premises of the Panchkhal Military Barracks. On 20 September 2007, the Supreme Court issued a mandamus to the District Police Office and the District Government Attorney to investigate Maina’s case within 3 months. On 31 January 2008, the Kavre Public Prosecutor filed murder charges before the Kavre District Court against army officers Bobby Khatri, Sunil Prasad Adhikari, Amit Pun, and Niranjan Basnet. On the same day, the Kavre District Court issued arrest warrants against the accused. Meanwhile, the chief perpetrator of the outrage, Niranjan Basnet, had been promoted as a Major. On 13 September 2009, the District Court of Kavre ordered (1) the Nepal Army to suspend the then Capt. Niranjan Basnet (now promoted to the rank of Major); (2) the Office of the District Government Attorney to produce the complainant and other people who were examined during the investigation, so that their evidence could be recorded and (3) to produce the statements of the implicated officials and other Army staff (named in the judgment of the General Military Court). Major Niranjan Basnet, implicated in the 2004 death of Maina Sunuwar had been deputed to a UN peacekeeping mission in Chad. A peacekeeping assignment is considered a plum posting. Basnet’s tenure in Chad was cut short when UN officials in charge of the force there expelled him upon learning of his involvement in Maina’s death. Despite court orders and public pressure for Basnet to be tried in a civilian court for Sunuwar’s murder, he remained in military custody defying the directive of the Prime Minister and the Defence Minister to the Army Headquarters to turn Basnet over to the civilian police immediately. According to Human Rights Watch, the army has exonerated Niranjan Basnet completely in an internal inquiry, by a decision communicated on 14 July, 2010.12 The open defiance of both judicial and executive directives for the sole purpose of protecting those who cruelly tortured and killed a young girl indicates how impunity will operate in the face of all else. The scepticism over the provisions of the new Military Act that leave torture and enforced

disappearances to trial by a Special Court Martial stems from this and other similar instances. _________________ 1

Agreement on the Monitoring of Arms and Army Management, 2006, available at http://www.unmin.org.np/downloads/keydocs/2006-12-8-Agreement_Arms.pdf (last accessed on 15 February 2010). 2

Section 1(3)(d), The Army Act, 1959.

3

Imran Singh Gurung’s case, cited from Nepalese Judicial Experience (Speech by Chief Justice Dilip Kumar Paudel, Global Forum on Liberty and Prosperity, 2006. 4

Section 6, The Military Act, 2006.

5

Section 13(1)(d), The Military Act, 2006.

6

See, Section 119(1) and (3), The Military Act, 2006.

7

Section 70, The Military Act, 2006.

8

Section 66, The Military Act, 2006.

9

Section 71, The Military Act, 2006.

10

Human Rights and Democratic Forum (FOHRID) was the organisation engaged by South Asians for Human Rights (SAHR) as national researcher on Nepal for the present publication. 11

The source for this section is Documentation and Accountability Department, Advocacy Forum, Kathmandu. 12

Human Rights Watch, ‘Nepal: Political Parties Should Press for Major’s Arrest in Girl’s Killing’, Human Rights Watch, 15 July 2010, available http://www.hrw.org/news/2010/07/15/nepalpolitical-parties-should-press-major-s-arrest-girl-s-killing (last accessed on 30 November 2012).

28 Nepal’s Legal Framework Criminal Law and the Law of Evidence National Code of 1964 and Other Penal Laws Nepal does not have a separate penal code. The National Code of 1964 contains penal provisions in Chapter 8, Part IV (on false prosecutions), which contains some graded fines for detaining of women by men, of children by anyone, and for depriving detainees of food and water or of binding them with leather or wood. In rare cases, if the detainee dies of lack of food or water, a charge of homicide may be made. There is no reason, however, why a given act of custodial torture should not fall under the general offence of homicide, rape, abduction or assault. But the general penal provisions on rape are ridiculously lenient; if the rape is of a person above 14, then the worst-case scenario is a five-year term. Some rapes are only punishable with fines.1 Rape of a ‘prostitute’ carries a fine of Nepali Rupees 500! Incestuous rape is penalised more severely. The Muluki Ain (National Code) of 1964 contains a chapter on assault and battery. There are three types of assault—grievous, intentional and accidental. Grievous bodily hurt is characterised by the types of injuries inflicted such as damaging a person’s backbone, limbs, sight, hearing,

smell, taste and sexual reproduction as well as damaging a woman’s ability to breastfeed. The offence may fetch a term of imprisonment up to eight years and a fine of Nepali Rupees 10,000 if total blindness or impotence is caused and half of that term and fine if the victim has suffered only partial damage to the organs. Intentional assault covers all other forms of deliberate assault. It is punishable by a maximum of two years’ imprisonment and a fine of Nepali Rupees 250. Aside from these provisions, which seem as strange as they are inadequate, there is no separate provision on or punishment for torture. The Children’s Act contains penal provisions on cruel and violent treatment of juveniles. Under the law, 35 days is the time limit for a complaint of homicide, rape or assault. The period of limitation is part of the relevant penal sections. Effective prosecution is impossible in these circumstances. Most countries have no limitation for serious crimes and none has one so short that it does not run into years. In 2005, Nepal combined its second, third and fourth report to the CAT Committee of the United Nations. The government admitted that ‘acts of torture are not offences under the criminal law’, but assured the Committee that ‘a draft Criminal Code, which explicitly makes torture punishable, has been prepared. The Code is waiting for Parliament to resume.’

The Draft Criminal Code The Draft Criminal Code, to be sure, proposes to penalise torture in these terms: (a) Clause 180: Prohibition of torture. Any person in public authority, who commits physical or mental torture or practises cruel, inhuman or degrading treatment to any person, shall be punished with an imprisonment for three years or a fine or both. The punishment will be based on the gravity of torture or such practices. (b) Clause 181: Prohibition of Inhuman Treatment. If any person commits such acts as to accuse anyone of practising witchcraft or banish such person from a village or boycott him/her socially or commit any inhuman or degrading treatment on such accusation or

if any person banishes anyone suffering from any disease by rejecting him/her socially despite the fact that such person shall not be rejected by virtue of such disease, shall be punished with imprisonment up to one year or with a fine up to Nrs 10,000 or both. If a civil servant commits the offences mentioned in this section he/she shall be punished with an additional three months’ imprisonment.2 As yet, neither the Draft Code nor the Penal Provisions have been made into law. The provisions of the Draft Code are deeply unsatisfactory for more reasons than one. The offences are not graded in accordance with their severity. In fact, the gravest of offences is punishable with no more than three years. Homicide in custody is not separately categorised. The Draft Code does not provide for command responsibility. It does not address peculiar circumstances which render custodial violence routine and their prosecution and punishment difficult.

Prison Act, 1963 and Prison Rules, 1964 Section 6(2) of the Act permits keeping a convict in an isolation cell. Section 7 generally forbids chains and handcuffs but with exceptions. Section 22(2) enables punishment for a jail offence by keeping a prisoner in isolation for 15 days in total, but permits keeping a prisoner in iron chains for as long as a month. There is no doubt that these would be cruel and degrading punishments.

Criminal Procedure as Regulated by the State Cases Act, 1992 The State Cases Act stipulates the procedure that shall apply to offences enumerated in the Schedules thereto. Custodial torture is not one such offence, although assault, homicide, rape and illegal confinement are offences to which the procedure does apply. The police may arrest individuals on suspicion3 and must produce the suspect before the court

within 24 hours of arrest.4 Medical examination of a detainee may be ordered only upon the detainee’s request and not as a matter of course.5 It does not appear that there is any distinction between judicial custody and police custody as far as under-trial suspects are concerned. The court may order a maximum period of 25 days of remand whether at a stretch or in instalments (under the Prevention of Corruption Act, the maximum period of remand is 6 months, with an upper limit of 30 days at a time).6 During the period of investigation, continued detention under the control of the investigation officer would be deeply problematic. Particularly so because, in Nepal, a self-incriminating statement made to a police officer is, on the face of it, admissible as proof of guilt. The onus is on the suspect to show that the confession was a result of threat or inducement.7

Preventive Detention and Terrorism Laws The Public Safety Act, 1990, and the Public Safety Regulations of 2001 permit Preventive Detention or Executive Detention for as long as 12 months—subject to review by an Advisory Board—on the subjective satisfaction of a government official that the detainee is indulging or is likely to indulge in acts prejudicial to national security or law and order. Lori Anderson’s article in the Indian monthly Seminar says: Amnesty International estimated that 1,600 people were serving a prison sentence or awaiting trial in relation to crimes allegedly committed in the context of the ‘people’s war’ at the end of 2000. The abuse of the Public Security Act, under which political activists were repeatedly re-arrested despite court orders for their release, continued. The authorities also increasingly used provisions of the Anti-State Crimes and Penalties Act 1989, which includes crimes such as insurrection and treason carrying punishments of up to life imprisonment.8 Terrorist and Disruptive Activities (Prevention and Control) Ordinance (TADO), 2001, was enacted in 2002. Although the stipulated tenure of the

act was two years, King Gyanendra declared a state of emergency and right to habeas corpus remained a dead letter according to all human rights observers. The UN Working Group on Disappearances in its report to the 61st session of the UN Commission on Human Rights observed ‘Nepal was the source of the largest number of urgent-action cases transmitted by the Working Group in 2004.’ The Working Group transmitted 136 new cases in addition to 166 old cases that occurred between 1998 and 2003. Yet, the RNA reportedly told the Office of the High Commissioner for Human Rights mission in Nepal that they only have 30 long-term detainees (since 2003– 04) in their custody. As the access to the detention centres depend on the whims of the RNA, it is not possible to verify their claims. Since April 2005, the International Committee of the Red Cross (ICRC) had to stop its visit to the detention centres because of the unacceptable conditions imposed by the RNA, and it is yet to resume visit to the detention centres. The government of Nepal has systematically destroyed the national mechanisms which are mandated to protect and promote human rights. On 16 March 2005, the government formed a nine-member high-level Human Rights Committee headed by the Attorney General to undermine the National Human Rights Commission. In May 2005, the government issued an ordinance to amend the appointment procedures of the NHRC and King Gyanendra appointed new members of his choice. The independence of judiciary has been destroyed through the establishment of the Royal Commission for Corruption Control (RCCC) on 15 February 2005 with the mandate to investigate, prosecute and hand out judgments on cases related to corruption including of the Supreme Court judges. In a written communication to the Supreme Court in September 2005, the RCCC made it clear that the Supreme Court could not examine its formation and orders. On 26 September 2005, RCCC also asked the Supreme Court not to intervene in its decision to jail Sher Bahadur Deuba and Prakash Man Singh, as it is a ‘political matter’. Therefore, the decision of the RCCC cannot be even subjected to judicial review. The security forces continued to defy the orders of the Supreme Court by re-arresting people immediately following their release by the court, sometimes from the premises of the Supreme Court. At least 41 persons

have been rearrested by the security forces since the royal takeover on 1 February 2005. The government has been muzzling the press and made human rights defenders defenceless by introducing the ‘Ordinance Amending Some Nepal Acts related to Media’ of 2005 and the Code of Conduct for NGOs. These measures have further increased the risk of torture and other human rights violations given the restrictions under which media and NGOs are constrained to operate. In its second periodic report, the government of Nepal appears to have adopted ‘diplomacy of acceptance’ by acknowledging occurrence of human rights violations in its territory to beguile the Committee Against Torture. As UN Special Rapporteur, Manfred Nowak stated on 16 September, 2005 after a field visit to the country, torture ‘is systematically practiced in Nepal by the police, armed police and the RNA in order to extract confessions and to obtain intelligence, among other things’. After the UN Special Rapporteur on Torture, Manfred Nowak, visited Nepal in 2005, in its concluding observations of 2005, the CAT Committee expressed grave concern about Nepal’s criminal justice system and noted the ‘marked weakening of the independence and effectiveness of the judiciary’, the frequent failure of the State to implement the recommendations of the National Human Rights Commission (NHRC) or pay out the compensation awarded by the Supreme Court. The Committee was particularly disturbed about the power of the security forces to selfinvestigate and order punishments outside of the criminal court, and their ‘contemptuous non-compliance with court orders’ including re-arrests on the premises of the Supreme Court. As for legal provisions on torture, the Committee identified the inconsistencies of the Torture Compensation Act (TCA) with the CAT, and recommended that Nepal amend the TCA and any planned legislation to ensure its consistency. In 2006, the Special Rapporteur concluded in his Country Report that ‘torture and ill-treatment are systematically practiced in Nepal by the police, the armed police and the Royal Nepalese Army’, despite reports to the contrary by government officials. The Rapporteur said he was deeply concerned with the prevailing culture of impunity for torture in Nepal, ‘especially the emphasis on compensation to victims as opposed to criminal

sanctions against the perpetrators’, and he found many faults with the legal mechanisms available for victims of torture—‘the gap between constitutional and legal provisions to safeguard the rights of suspects and what actually happens in practice when a person is arrested was of concern’. While the TADO was repealed/permitted to lapse in 2006, the Public Safety Act and some other Preventive Detention laws continue.

Evidence Act, 1974 Unlike India, Pakistan, Bangladesh and Sri Lanka, statements and confessions made to police officers are not ipso facto ruled out of evidence in Nepal. However, Section 9 of the Evidence Act rules out of use any confession or statement that appears to be made as a result of threat or inducement. The burden of establishing force, threat or inducement is on the victim,9 which becomes difficult as custody is totally opaque.

The Police Act, 1955 The Police Act, 1955, does prescribe a code for police personnel, which forbids ‘uncivilised behaviour towards members of the public and unlawful use of force’. Departmental action would lie at the discretion of administrative heads and penal action lies before a specialised tribunal. The Police Act does not provide a mechanism that ordinary people can access. There should be stringent penal as well as administrative action for violating the rights of the public. The Police Act, 1955, prescribes corporal punishment for its errant staff. An unsuccessful petition was filed by a lawyer seeking the nullification of a particular provision of the Police Act,1955, which provides physical punishment of fatigue or detention up to 15 days to junior police personnel without maintaining records.10

Immunity to State Agents

It does not appear that state agents have any general legal immunity or that Nepal’s laws require any prior sanction to prosecute a public official for criminal offences of rape or homicide. Section 37 of the Police Act, 1955, gives immunity from punishment for any act or force used in good faith and in lawful discharge of duty. This immunity is in respect of punishment and so prosecution is not, in terms, forbidden. Good faith appears to be a defence, and no charge of rape or violence in custody could conceivably entail the defence of good faith. On the other hand the Military Act, 2006, expressly declares that offences of torture, homicide, rape and causing enforced disappearances shall not be construed to be acts done in discharge of duty.11 _________________ 1

Chapter 14, The National Code (Muluki Ain), 1964.

2

CAT Committee, ‘Consideration of Reports Submitted by States Parties under Article 19 of the Convention’ (2005), available at http://www.unhchr.ch/tbs/doc.nsf/0/aabd321f3203b098c1256ff0004d20b7/$FILE/G0540066.pdf (last accessed on 30 December 2012). 3

Section 14, The State Cases Act, 1992.

4

Section 15(1), The State Cases Act, 1992; Section 15(2), The Civil Right Act, 1955; Article 24, The Interim Constitution of Nepal, 2007; available at http://www.nic.gov.np/download/interimconstitution.pdf (last accessed on 13 December 2012). 5

Section 15(3), The State Cases Act, 1992.

6

Section 31(4), The Prevention of Corruption Act, 2002.

7

Section 28 read with Section 9 of the Nepal Evidence Act, 1974.

8

Lori Anderson, ‘Emergency and Public Safety Laws in Nepal’, available at http://www.indiaseminar.com/2002/512/512%20lori%20anderson.htm (last accessed on 30 November). 9

Section 28, Evidence Act, 2031 BS (1974).

10

Rabindra Bhattarai v. HMG/N Secretariat of Council of Ministers and Others, decided by the Supreme Court on 30 August 2001. 11

See Sections 22, 62 and 66, The Military Act, 2006.

29 The Torture Compensation Act, 1996 The Provisions The Torture Compensation Act (TCA) was passed in 1996 following Article 14(4) of the 1990 Constitution. Section 2 provides an inclusive definition of torture as below: 2 (a) ‘Torture’ means physical or mental torture inflicted on a person who is apprehended in the course of investigation, probe, or for trial or for any other reason and the term includes cruel, inhuman or degrading treatment furnished to such person. (b) ‘Victim’ means the person on whom the torture is inflicted. This definition has been subjected to criticism by several human rights agencies. With regard to TCA, UN Special Rapporteur, Manfred Novak, concluded: Domestic law, namely the 1996 Torture Compensation Act, does not contain a definition of torture in line with Article 1 of the Convention, nor does it provide for effective remedies; it does not provide for the

criminalisation of torture, nor the imposition of punishment commensurate with the gravity of torture.1 But it is not quite clear why the definition as it stands should not or is not likely to afford relief. It is true that the TCA contains no penal provision, but this law does not preclude a criminal prosecution. Section 7 of this Act enables the District Judge to recommend prosecution/institutional action against the errant official in the following terms: 7) Prosecution of the Perpetrator: The District Court may pass the order to the concerned authority for taking the institutional action to be initiated in pursuance of the prevalent Nepalese law if any government official is proved to be involved in inflicting torture against the provisions of this Act. Section 12 further clarifies as below: 12) Protection of the proceeding of the offence under the separate Act: No difficulty as such will lie for the proceeding of the trial in other offence that the prevalent Nepalese Law specify as being the offence under the separate Act only by the reason that the case has been initiated for the compensation or the execution to that effect has been done under this Act. This is certainly not the equivalent of a clearly defined cognizable offence and one which may be tried preferably with a rule of evidence creating a presumption against the official, if custody and injury are proved. But it is an enabling provision that exists and does not militate against criminalising torture or prosecuting acts that might amount to torture. There are far more important scores on which to criticise this Act. In keeping with the country’s strange fidelity to the 35-day limitation period for serious offences, the remedy under the TCA is subject to the absurd rule.2 Equally absurd is the upper limit of Nepali Rupees 100,000 for even the worst case of torture.3 In what can only be called a virtual impunity provision, the perpetrator is enabled defence at state expense!4 These

clearly objectionable provisions have been challenged without success in the Supreme Court. A writ petition was filed in the Supreme Court to declare Section 10 of TCA constitutionally void. The petitioner’s plea was that government attorneys should defend torture victims, not the alleged perpetrator and that Section 10 is against the spirit and letter of the Convention, Articles 14, 110 and 116(1) of the Constitution of the Kingdom of Nepal and basic values of human rights. The court rejected the petitioner’s plea and held that a man is presumed to be innocent until proved guilty and there is no provision in the Convention also which prohibits defending alleged perpetrator by a government attorney.5 Another writ petition moved the Supreme Court to declare Section 6(1) of TCA, specifying an upper limit for compensation of Nepali Rupees 100,000, ultra vires. The amount is inadequate for rehabilitating the victim and thus, the limit goes against the spirit of Article 14(1) of UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) as well as Article 14(4) of the 1990 Constitution. The court rejected the plea and held that the matter was within the exclusive legislative competence of Parliament and domestic legislation would prevail. In view of the Interim Constitution of 2007, several of these limiting provisions could well be challenged again.

Working of the Torture Compensation Act The following is an excerpt from a report by Human Rights and Democratic Forum (FOHRID). The challenges faced by victims seeking reparation under the TCA became quickly apparent. The TCA does not have a provision for the protection of those filing cases, and complainants and their defence attorneys reported threats and intimidation. In 1998 alone, of the 12 victims who filed complaints of torture inflicted in police custody, six withdrew their complaints, fearing for their safety. The complaints filed in 1998 were severe cases of torture, many were of death resulting from the injuries

sustained in custody. A well-publicised case was that of a truck driver, Ale Tamang, detained on the accusation of theft. The police allegedly doused the victim’s legs with kerosene and set them on fire, before dipping them in water and burning them again. There was a public outcry over the death of Tamang, and a high level commission was appointed to inquire into the matter. No compensation was reportedly awarded, but the court ordered ‘departmental action’ as provided for in the TCA and seven policemen were suspended pending investigation though it is not known whether or not any punishment was actually imposed on them. In 1999, 20 cases in all were filed under the TCA by victims. Out of 20, only two victims managed to get any compensation and these two were the first ever to be granted compensation in the three years of TCA. In one of the cases, a health assistant recorded ‘bruises and lacerations’ on the body of torture victim Hasta Bahadur Chamling in a medical examination in November 1999. The TCA is heavily reliant on medical examination, but the experience of NGOs helping out victims is that medical professionals often refuse to record injuries truthfully. In Chamling’s case, the police allegedly tore and threw away the hospital register that contained the details of the examination. The court awarded Chamling NRs 5,000 (USD $75). The basis of granting the compensation was that the authorities did not produce medical report. Another case concerned eight police officials charged with the murder of Suk Bahadur Lama in August 1999. He had been tortured for six successive days and a post-mortem examination found he had multiple burn injuries on both feet and abrasions on his upper back, thighs and legs. The eight police officers were released on the condition that they appear in court when the case comes to trial, and were later reportedly returned to active service. In 2001, five of the seven complainants who filed with the District Court were awarded compensation including a 14-year-old boy who had been arrested on suspicion of theft and badly tortured during interrogation.6 In the year 2006, Centre for Victims of Torture (CVICT) published a compilation of court verdicts that granted compensation to victims. According to it, though the compensation claimed by the victims or their legal heirs ranged between Nepali Rupees 10,000 and Nepali Rupees 100,000, the compensation amount actually awarded by the courts have

ranged only between Nepali Rupees 1,000 and Nepali Rupees 50,000 with only one instance where the court awarded the amount of Nepali Rupees 100,000 as claimed. Out of 25 cases, only in 13 cases has departmental action been recommended against the perpetrator. In two cases, the perpetrator was let off with just a warning. The working of the TCA has shown that even in cases of death, the district courts award no more than a few thousand rupees, which is a miniscule fraction of the ridiculously inadequate maximum of Nepali Rupees 100,000 provided by the law. And then, district courts seem to exonerate officials on grounds such as absence of record, although it is the state’s responsibility to maintain records, thus, creating an incentive to destroy evidence of torture. Courts recommend departmental action in few cases, not even in the most glaring of them. _________________ 1

Manfred Novak, Mission to Nepal, Report by the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. No. E/CN.4/2006/6/Add.5 (9 January 2006), para 26. 2

Section 5(1), The Torture Compensation Act, 1996.

3

Section 6(1), The Torture Compensation Act, 1996.

4

Section 10, The Torture Compensation Act, 1996.

5

Rabindra Bhattarai v. HMG/N, 1998.

6

Advocacy Forum, Hope and Frustration: Assessing the Impact of Nepal’s Torture Compensation Act–1996 (Nepal: Advocacy Forum).

30 The Courts and Custodial Justice The Supreme Court The Supreme Court Act, 1952, established the Supreme Court as the highest judicial body, with a structure and powers broadly akin to those of the Supreme Court of India. Over the next few years, special travelling courts were organised and were sent into the districts to provide citizens easier access to the legal system. These courts were empowered to audit public accounts, hear complaints of all kinds, make arrests, hold trials and impose sentences. A unified judicial system came in 1956 with the establishment— mostly in the Terai—of a series of district courts that heard civil and criminal cases. Appellate courts were set up in Kathmandu.1 The Supreme Court of Nepal was further strengthened in 1990. It is the highest court of the land with 16 appellate courts and 75 district courts under it. Under the Interim Constitution of 2007, the Supreme Court has wide powers to issue writs to safeguard Fundamental Rights and to decide public interest issues.2 The 1990 Constitution gave similar powers to the court.3 The important difference between the 1990 Constitution and the 2007 Interim Constitution is that, under the former, the Supreme Court was barred from interfering with decisions of military courts except when the challenge was to the military court’s jurisdiction. Construing it as a

jurisdictional challenge, the Supreme Court struck down Section 1(3) of the Army Act, 1959, which enabled the military court to try even civilians on a charge of inciting army men to commit offences. Trial of civilians by the military court was, in the court’s view, a jurisdictional excess. The Court held that Section 1(3) violated due process and equality.4 The 2007 Interim Constitution completely removes the bar against intervention in military affairs by the Supreme Court.5 The writ jurisdiction is now wide enough to entertain any other kind of challenge to matters concerning the army. Nepal is perhaps the only Asian country that expressly confers jurisdiction on the Supreme Court to decide matters of public interest. Also, Public Interest Litigation (PIL) has been incorporated into the constitutional text. In another decision, the Supreme Court directed humane facilities for prisoners in jail.6 On personal liberty and disappearances, some Supreme Court judgments are noteworthy.7 By its common judgment and order in several writ petitions challenging the enforced disappearances of individuals during the emergency regime, the court, on 1 June 2007, issued the following directions to the government: 1. provide compensation to 83 families of persons who were subjected to state-enforced disappearance; 2. promulgate an Act criminalising enforced disappearances and 3. form a commission to investigate and thereafter prosecute those responsible for violations. In a batch of habeas corpus petitions alleging enforced disappearances and illegal detentions, the court had, by its order dated 28 August 2006, constituted a Special Task Force to inquire into the allegations. On 25 March 2007, the Special Task Force submitted a chilling account of the disappearances and made very thoughtful and detailed recommendations on the legislative and institutional changes that needed to be made by way of reparation. The aforesaid judgment recognises two very important points: First that it cannot be left to victim families to seek justice. The State is obligated to provide and facilitate remedial justice. Second that monetary compensation

is only one aspect of reparation. Institutional reform, criminal prosecution and other systemic changes are as crucial. Observing that the state cannot by virtue of the international legal instruments as mentioned above, foreign and human rights related decisions made by regional courts and our constitutional provision escape from its responsibility to identify the condition of the disappeared persons and make them public, initiate legal action against those responsible persons who appear to be the culprits and thereby provide appropriate remedy to the victim party, the court elaborated on the jurisprudence of human rights and of principles of reparation and held that the spirit of Directive Principles cannot be ignored and must be read into the content of fundamental rights. The Supreme Court also read into the content of Fundamental Rights, principles of international human rights law and various Conventions, not only those to which Nepal is a signatory. In the Maina Sunuwar case, three commissioned officers had tortured a 15-year-old girl and electrocuted her to death. They were indicted by the military court for ‘wrongful methods of interrogation and not disposing of the dead body decently’, thus, rendering them liable for no more than six months of imprisonment. The Supreme Court issued a mandamus8 directing the local police to investigate and complete the charge sheet within three months. It is another matter that the army authorities are defying every judicial direction.

National Human Rights Commission Set up in 1997 under the Human Rights Commission Act, the commission has powers to act on complaints or even suo motu in matters of human rights violations,9 subject to the rider that it cannot normally enter into military matters or in matters relating to treaty obligations or where the Attorney General has certified that the intervention may impede a sensitive

ongoing investigation.10 The commission has powers to call for information, visit custodial institutions and recommend compensation or departmental action.11 The 2007 Interim Constitution has further empowered the Human Rights Commission. To quote Human Rights and Democratic Forum (FOHRID), [t]hough, the Human Rights Commission is empowered to investigate and monitor human rights violations suo motu, this has been seldom done. In 2003, the Commission conducted a field monitoring and reported 84 cases of torture (NHRC 2003: 17). Otherwise, the Commission has by and large only responded to complaints from the party aggrieved. However, some non-governmental organisations have tried to assess the incidence of torture. According to a survey report published by Centre for Legal Research and Resource Development (CeLRRd) out of a sample of 222 prisoners, 43 had been subjected to inhuman custodial torture and 110 others to lesser forms of physical abuse.12 Documentation by Informal Sector Service Centre (INSEC) shows that the number of people arrested and tortured by state security personnel has been on the increase. As per this report, 68 women were arrested/tortured in 1997. In the following year, this number increased to 417. It fell to 101 in 2000, but by 2002, 252 women were found to have been arrested/tortured by authorities. INSEC has recorded 15,821 incidents of arrest and torture between January 2002 and December 2007.13 Table 30.1 indicates the trend of torture cases in the course of armed conflict. As per a national survey conducted by CVICT, 95 per cent of prisoners in Nepal’s jails had been subjected to custodial torture.14 During the survey, 70 per cent of the interviewed prisoners reported that torture was routine and that it occurred most in the police custody. Torture takes place in police custody, forestry offices, army camps and prisons. Documentation by CVICT shows the pattern as in Table 30.2:

Advocacy Forum, another human rights organisation, has a separate report on the incidents of torture between 2001 and 2006. It documented 5,682 cases of human rights violations between July 2001 and April 2006. Of these, 2,271 were cases of torture.15 By this reckoning, torture makes up 40 per cent of the State’s human rights violations. Table 30.1: People Arrested/Tortured by State Authorities Year

Male

Female

Unidentified#

Juveniles

Total

1996* 1997 1998 1999 2000 2001 2002

295 877 1,665 1,037 934 2,017 2,893

22 68 417 102 101 178 252

72 623 583 — — — 285

3 N.A. N.A. N.A. N.A. N.A. N.A.

392 1,568 2,665 1,139 1,035 2,195 3,430

Source: INSEC. Human Rights Yearbook (1996, 1997, 1998, 1999, 2000, 2001, 2002 and 2003). Notes: *1996 data includes torture cases only, whereas other years include data on arrest and torture. # Because of mass arrests, the gender of many of those arrested could not be confirmed, and are thus categorized as ‘Unidentified’ in the annual data of 1996, 1997, 1998 and 2002. Table 30.2: Categories of Perpetrators as Reported by the Torture Survivors Types

Year and Number of Torture Cases

Perpetrator

1998

1999

2000

2001

2002

Police Army Maoist Prison Guard Forest Guard Others* Total

260 — — 5 1 14 277

247 101 32 7 8 12 407

714 26 23 2 55 61 881

335 5 37 3 20 12 412

678 201 180 31 9 192 1291

Source: CVICT. Annual Reports (1998, 1999, 2000, 2001, 2002). Note: *2002 figures under ‘Others’ include the number of victims who were tortured by more than one party—police, army and Maoists.

Advocacy Forum’s report reveals an alarming trend of torture of children and young adults. Of the 951 cases documented in the final year of the reporting period, 349 victims were between 14 and 18 years.16 The studies presented reflect reported cases. The number of unreported cases is likely to be exponentially greater. A baseline survey conducted by

Consortium for Assisting Prisoners/National Legal Aid Network (CAP/NaLAN) has shown that 50.6 per cent of the prisoners have no knowledge of their legal and custodial rights and only 38.3 per cent of the prisoners were found to have been informed by the authorities about their rights.17 There is no way one can precisely estimate the actual number of cases of custodial torture. FOHRID has researched cases of torture and in the course of the same conducted interviews with victims, their relations, detainees and officials. These interviews have been reproduced in the Chapter 31.

Postscript As far as norms go, Nepal could walk away with the good conduct prize. It has ratified almost all the important international conventions and its Constitution militates against impunity as do some of its recent laws. For example, the Military Act of 2006 contains an explicit disclaimer of any executive immunity for torture, homicide, rape and enforced disappearances. The Constitution recognises the need to address enforced disappearances, the Supreme Court has issued a mandamus that a law should be passed to probe enforced disappearances and criminalise rights violations. Concerned that the burden of seeking justice must not fall on the victims, the court has addressed many aspects of reparation. Nepal even has a Torture Compensation Act, though an unsatisfactory one. But there are there are drawbacks in the laws and in the system that impede the realisation of the norms. There is no law to penalise torture, which is necessary to facilitate prosecutions. The limitation provisions make even the relief of compensation virtually impossible. Beyond the award of a few thousand rupees, courts are not shocked, even where custodial death is established. Medical check-up is not mandatory during custody, and the burden is on the detainee to establish abuse. Suspects continue in police custody until charge sheets are filed and this period is an open invitation to torture. Confessions to the police are not excluded from evidence as in India, Sri Lanka, Bangladesh and Pakistan.

Worse still is the defiance of authority by state functionaries. Even where the Supreme Court has ordered action and the executive has directed compliance, the army shields the killers and violators as in the terrible case of Maina Sunuwar. _________________ 1

Based on the Country Studies Series by the Federal Research Division of the Library of Congress. 2

Article 107(2), The Interim Constitution http://www.nic.gov.np/download/interim-constitution.pdf.

of

Nepal,

2007,

available

at

3

Article 88(2), The Constitution of Nepal, 1990, available at http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm (last accessed on 30 November 2012). 4

Iman Singh Gurung Case, Nepal Law Reporter 2049 at 710 (in this case, the ASC held that a civilian should not be tried by the military court). Cited from Nepalese Judicial Experience (Speech by Chief Justice Dilip Kumar Paudel, Global Forum on Liberty and Prosperity, 2006). 5

See proviso (a) to Article 88(2), The Constitution of Nepal, 1990. This barring proviso is absent in Article 107(2) of the Interim Constitution of Nepal, 2007. 6

Chandra Kanta Gyawali, Writ No. 3271, cited from Nepalese Judicial Experience, op. cit.

7

Subash Nemwang, Damannath Dhungana, and others. Dambar Singh Gadak, SC Bulletin, Vol. 13, no. 21, 2061; Rajendra Dhakal and Others v. Cabinet Secretariat and Others, Writ No. 3575 of the year 2055, Nos. 100 and 104 of the year 2059 cited from Nepalese Judicial Experience, op. cit. 8

By order dated September 2007, Writ Nos. 3575, 100, 104, 323, 500, 45, 41, 155, 162, 164, 167, 97, 110, 111, 142, 211, 250, 223, 262, 378, 418, 485, 617, 632, 635, 54(0002) 0004, 2588/0038. 9

Section 9(2), The Human Rights Commission Act, 1997.

10

Section 10, The Human Rights Commission Act, 1997.

11

Section 13, The Human Rights Commission Act, 1997.

12

CeLRRd 1999: 105.

13

INSEC, 2008.

14

CVICT, 2001.

15

Advocacy Forum, 2006.

16

Ibid., 3.

17

CAP/NaLAN, 2007.

31 Five Case Studies1 Case Study 1 Shikharam Chaudhari, 55, resident of Divyanagar Village Development Committee (VDC) Ward no. 3, Shiswar, was arrested at 7:30 p.m. on 3 June 2006 when he was returning home after working in the fields. The team, which included the Deputy Protection Officer of Chitwan National Park, the Anti-Poaching Operation Chief, Kamal Jang Kunwar, Ranger Nitish Basnet and the Game Scout, Yam Bahadur Khanal, arrested him on the charge of being an accomplice to the act of boiling rhino horns, as per the statement of Maniram Chaudhari. After his arrest, he was kept in the custody of the Chitwan National Park, Kasara Administration. Chaudhari was handed a written notice for 15 days of investigation on 5 June 2006. He was tortured during investigation. After he lost consciousness, he was taken to Mahendra Adarsha Clinic, Bharatpur, by Ranger Nitish Bhushan Basnet and Game Scout Yam Bahadur Khanal at 11:30 p.m. on 11 June 2006. On finding his condition to be critical, the physicians on duty referred him to the Intensive Care Unit (ICU). From there he was taken to the Medical College Teaching Hospital, Bharatpur, where he was admitted to the ICU at 1:30 a.m. He died while still unconscious at 6:30 a.m. on 13 June 2006.

The surgeon at Bharatpur Hospital, Dr Ishwor Chandra Ghimire, carried out post-mortem of the body of Shikharam Chaudhari in the presence of a relative. While inspecting the bruised parts, by cutting through the skin, blackish blood clots were found. Seven ribs on the left side of the chest were found to be vertically broken, and the entire left lung was black due to injury. The cause of death was found to be physical assault. The postmortem report states that death was caused due to lack of blood circulation, as the lung was unable to perform its function due to the broken ribs.2 Five detainees, namely Daman, Ramsuk, Jagadish, Krishna Ram and Lalpushpa,3 who were also kept in the custody of Chitwan National Park, Kasara Administration, stated the following about the torture inflicted to Shikharam and his subsequent death: Shikharam was brought to us in a critical condition after he had been seriously beaten. He was kept in the room that the three of us shared. When I [Jagadish] gave him water, he told me that he felt like he would die. I consoled him by saying that nothing would happen to him. He had been mercilessly beaten from the 4–11 of June 2006. He was kept with us after being beaten on 4th. He was then beaten for about half an hour at 9:30 pm on the 6th of June. The last time he was beaten was on 11th evening, after which he lost consciousness. When we saw him, he was having difficulty breathing. And the forest officials called an army physician to check him, who suggested that he be taken to the hospital, as he was in a critical condition. The same night, the officers took him to the hospital in a van. Shikharam had been beaten on his chest using a bamboo pole, boots and feet. His hands had been tied behind his back and a pole placed between his hands, and he had received blows on his upper back. Water had been filled in his closed mouth and nose. He was made to lie face up while the soles of his feet were thrashed for 10–15 minutes at a stretch.4 As a result of persistent pressure from the public, Chief Protection Officer Tikaram Adhikari, Deputy Chief Kamal Jang Kunwar and Ranger Nitish Bhushan Basnet of Chitwan National Park were called to the District

Police Office and questioned. They stated that death was caused by an accident in the course of efforts to save an endangered species. They also stated that after they had arrested Shikharam, they had gone out of the office to work. A complaint was filed on behalf of the relatives of the deceased in the District Police Office, which named the above officers. Because the District Police Office did not register the complaint immediately, the local people surrounded the District Police Office gate, and chanted slogans until the evening of 13 June. The complaint was formally registered the next day. In response, the District Police Office, Chitwan, carried out an investigation against the Chief Protection Officer of Chitwan National Park, Tikaram Adhikari, Deputy Chief, Kamal Jang Kunwar, and Ranger, Nitish Bhushan Basnet. At this, officials of the Forest Office went on strike to protest against the action taken by the District Police Office. Pressured by the crippling strike of the Forest Office, the government withdrew the case against the accused. The accused were freed from the investigation process and the victims were promised a compensation of Nepali Rupees 1,000,000.

Excerpts of an Interview with Deputy Protection Officer of Chitwan National Park, Kasara Meghnath Kafle, Regarding the Incident Q: Do you torture people taken into custody? How and by whom was Shikharam tortured? What can you tell us about his case? Kasara Meghnath Kafle (hereafter KMK): I have difficulty in talking about the incident as my senior officer is not here, and no one has been designated to head the office. However, I can say something regarding the activities of the Kasara office. The National Park and Forest Protection Office can take a person into custody, investigate, prosecute a case and make decisions. The law has given us this authority. Some types of torture are done to obtain confessions, as the killing of a rhino is a very serious case. It is difficult to obtain confessions without torture. No one wishes to reveal the truth as there is a big nexus of the smugglers of rhino horns and many people can be involved in a single incident. Therefore, it is necessary to exert some pressure. I have also worked in a human rights organisation for two years. Torture should not be inflicted. I agree. But this theory cannot be

implemented with the people involved in rhino smuggling and their investigation. It is impossible to carry out investigation without pressure, interrogation and normal beating. In the matter of Shikharam’s death, we and our office had not tortured him. We are working day and night for preservation of valuable things, endangered species. For us, the protection of the rhino is more important than thinking about what happened. Bhushan Basnet was the designated Investigation Officer in the Shikharam Chaudhari case. Q: Are there some more detainees currently in your custody? KMK: There are seven detainees in our custody. One of them has been sent to jail, another has been freed and one has been transferred to another place for investigation. The remaining are under investigation. Q: What was the cause behind the arrest of Shikharam Chaudhari? Please tell us whatever you know. KMK: No one had communicated to me in writing the actual cause of his arrest. No legal process was followed for detaining him. Consequently, I am unable to understand the cause of his arrest. I know only from the rumours I have heard, which is that Shikharam was arrested for allegedly helping in boiling a rhino horn. Q: Where was he taken after being arrested? KMK: After the arrest, he was first kept at the Bhagauda Check Post. Then he was taken to the Anti-Poaching Operation Unit of National Park Camp at Kasara. Advocate Birendra Thapaliya, President of Human Rights and Democratic Forum [FOHRID] interviewed Mrs Hira Chaudhari, 59, in connection with the death of her husband, Shikharam Chaudhari, on 13 June 2006 due to torture, in the custody of Chitwan National Park, Kasara. Mr Bandev Sharma, Chairman, Human Rights Education and Protection Society, and Keshav Sapkota, a local teacher, accompanied advocate Thapaliya during the interview. The interview was conducted at the house of Mrs Chaudhari at Divyanagar VDC, Ward no. 3, Shiswar, and Chitwan on 17 October 2008.

Q [To Hira Chaudhari, henceforth HC]: How did you come to know about the arrest of Shikharam? HC: On the evening of 4 June 2006, I was returning home after cutting grass in the field. While I was returning home, I saw Shesh Chandra Chaudhari, the Game Scout of Kasara Camp, drive by my house in his vehicle. He again drove past my house a short while later. My husband was working in the field at the time. After he [my husband] did not return till late in the evening, I inquired about his whereabouts but no one could tell me anything. The next day, my husband’s younger brother, Jagdev Chaudhari, was informed by Shesh Chandra, the Game Scout of Bhagauda Check Post, that Shikharam had been taken to the Anti-Poaching Unit. I requested our local people’s representative, Santa Kumar Mahato, to meet with Shesh Chandra. Mahoto went to Kasara with Shesh Chandra, but he did not arrange a meeting between my husband and Santa Kumar. Despite waiting there the whole day, Santa Kumar returned without meeting my husband. Shesh Chandra told Santa Kumar that they would not allow anyone to meet the detainee until a statement had been obtained, and that he had been merely detained for a general inquiry. Q: By whom and how was Shikharam beaten? HC: My husband was arrested on 4 June 2006. On 6 June 2006, my niece [Urmila] and I went to meet my husband. The officials of Forest Office allowed us to meet him, with the help of Warden Tikaram. When I met him, my husband was not able to walk. He crawled towards us on all four, crying when he reached me. He said to me, crying, ‘They are about to kill me by beating me, please arrange to take me away from here.’ When I asked him who had beaten him, he said, ‘About 8–10 people, including Tikaram Adhikari and Kamal Jang Kunwar [Deputy Warden] have beaten me with sticks and boots.’ He could not say anything more. The officials then instructed me to leave. I saw 10–12 poles of strong bamboo [katbas] in the room where he was detained, which I thought had been probably used to beat him. Q: Was Shikharam killed due to beating by the forest officials and wardens?

HC: When I asked my husband, he said that he had been beaten, repeatedly, by Warden Tikaram Adhikari and Deputy Warden Kamal Jang Kunwar. Soon afterwards I heard that he had died at the same place. My husband would not have died if the forest officials had not beaten him. I believe that my husband died because he was beaten in custody. A strong and healthy person does not die just by being kept in custody for 15–20 days, without any torture. Q: How did you come to know that Shikharam was tortured or that he died as a result of torture? HC: When I met my husband, he told me that he had been beaten excessively. He told me that 8–10 people beat him with sticks and boots. My husband begged me to take him out of custody as soon as possible, telling me while crying that he was scared they would kill him if I did not take him away. My husband was in a condition so bad that he was unable to even speak. As he died soon after I heard this from him, I am sure he was killed by violence at the hands of forest officials. Q: Have you filed a complaint or case of death in the course of interrogation? HC: It was rumoured that he was taken to the Bharatpur Medical College on 12 June 2006 after he died due to the severe beating he received. I was informed by a neighbour, Jeevan Mahato, that my husband was taken to the hospital for treatment. When I reached the hospital, I was not allowed to meet my husband for a long time. I forced my way to his bed and found him dead. On seeing his body, it was obvious that he had been killed at least 3 or 4 days earlier. I fell unconscious upon seeing him. I had seen Kamal Jang and Tikaram at the District Police Office. We went back to the same office, and shouted slogans outside. Q: Did anyone—media, police and human rights—help you get justice? HC: Till now, I have not received any assistance from government or any other agency to get justice. The government has not taken any action against the murderers who beat my husband to death. Local academics,

journalists and human rights activists had raised a debate over the injustice I have suffered. Q: Did you receive any compensation? HC: After the public protested, the incident triggered a national-level debate. When the people gathered in front of the office with slogans, the administration promised Nepali Rupees 1,000,000 compensation and free education to the children. But the administration provided only Nepali Rupees 600,000. We were not given any papers or documentation. They told me orally that they would provide the remaining Nepali Rupees 400,000 later. But they have still not given it to me. Neither have my children received any free education. However, even if they do give me the entire Nepali Rupees 1,000,000, it cannot compensate for the loss of my husband. Q: Did you face any problems in the family after his death? HC: He was the head of our family and made all the decisions. We are lost without him. We have been unable to transfer the five kathha of land to our family’s name. Our youngest daughter is worried about how she will continue her studies. We are besieged with many problems at home. We are distraught at this pointless killing. We used to live by tilling others’ fields but now there is no one to even do that. We have received no assistance from our neighbours or society, and feel very lonely. Q: How should the guilty be punished? HC: The person who killed my husband should also be punished in the same way. He should be imprisoned. But no action has been taken against them till now. They wield power and we fear that they may threaten or even kill us if they get a chance. We shall have peace of mind only if action is taken against them. I wish the administration fulfils its responsibility as it promised. My husband’s murderers should be punished under the law. As my husband was killed after being tortured in custody, the persons inflicting torture upon him should be punished for murder, according to the law. But the government has not even carried out an investigation.

Conclusion The main cause of the death of Shikharam Chaudhari is the quasi-judicial and judicial authority entrusted to District Forest Officer and Committee by Forest Act, 1994. The provision in the Section 13 of the Act can be referred in this connection. According to this law the District Forest Officer and Committee shall have the powers of the court. This means that both the District Forest Officer and Committee shall have the right equivalent to the court to call, receive, issue date of presence and obtain statements from the concerned persons or their witnesses to take decisions on any issue brought to their notice. According to Section 65 of the Forest Act, 1994, ‘The District Forest Officer shall proceed and finalise case having upto Rs. 10,000 fine and one year of imprisonment.’ The District Forest Officer can use the procedure and rights as set forth in the Special Court Act, 1976, to proceed and finalise the case.5

Case Study 2 Pradeep Khadka, 38, permanent resident of Katari VDC, Ward no. 4, Udaipur district, and temporary resident of Imadol VDC, Lalitpur, was returning home on his motorbike around 9 p.m. on 10 September 2008. At that time, the police were checking vehicles near his house at Balkumari Chowk. As instructed, he stopped for checking. There was an exchange of questions and answers between him and the police for a while. Suddenly, around five policemen started hitting him on his head, chest and below his waist with bamboo poles, for not being polite. He was indiscriminately hit with the butt of their guns. He begged them to pardon him but they continued to beat him. Then the police took him to the Patan Hospital in a van. Pradeep died before he could reach the hospital. According to the eyewitnesses, Pradeep was killed as a result of police mercilessly beating in the name of checking vehicles.6 Bhimsen Thapa, a witness, says about the incident:

I was very near the spot. My shop remains open till late night. I saw the police beating someone. I do not know what happened before the beating. A traffic policeman was also present at the time. Around four to five policemen were hitting Pradeep with sticks and fists. There was a black-out in the area at that time. They pushed him inside a van after beating him. When I tried to go there, the policemen chased me away. Next day, I heard that the man had died. I felt bad. His relatives and the residents of Imadol area staged a protest at Balkumari on that day. Sudhakar Jha, another eyewitness, recalls: I was in my shop at that time. When I heard the sound of someone being beaten with bamboo poles, I went towards the spot. I saw the policemen beating Pradeep. He was wearing a yellow shirt and carrying a paper in his hand. He asked them not to hit him but to take lawful action against him. They were beating him in the ‘filmy style’. He was begging for pardon. The traffic police and plainclothes policemen were also present. Then they pushed him inside a van and went away. There was a Pulsar motorbike at the spot. The general public staged a protest rally next day. The police indiscriminately charged at the crowd. Bhanu Bhakta Aryal, Sub-Inspector (SI) of Balkumari Police Post, said regarding the incident: I was deputed at Jawlakhel when the incident occurred. I was transferred here [Balkumari Police Post] after the incident. At the time, the police team was led by SI Maniraj Baniya. The traffic police came from Satdobato for checking at Balkumari. We did not call them. I heard that traffic police were also present at the time of the incident. The old team has already been transferred from here. We have just been sent to this post. You can contact the higher authority for detailed information. The incident was an accident.7

The study team tried to contact senior police officers regarding this incident but they seemed unwilling to respond, and said that they are waiting for the findings and recommendations of the government’s Investigation Commission. On the basis of the case history and the views expressed by witnesses and others concerned, it may be concluded that Pradeep Khadka’s death was caused by excessive police beating, including with sticks and gun butts. The police team led by SI Maniraj Baniya of Metropolitan Police Post, Balkumari, was involved in the incident. The police are trying to defend themselves by claiming that it was an accident. The incident proves that Nepalese citizens die as a result of police torture during interrogation even under normal circumstances.

Excerpts of an Interview with Mr Arjun Khadka and Mrs Madhu Khadka, Parents of Pradeep Khadka8 Q: Did you file a complaint regarding the incident? Did you face any problem? A: Yes, we have filed a complaint. Our son was killed by the police on 10 September 2008. We went to file a complaint on 11 September. But it could not be registered that day. On 12 September, I [Arjun] went with about 45 well-wishers and neighbours to file the case at Jawlakhel. We talked with the police for four hours and requested them to register the complaint. On the instructions of Senior Superintendent of Police (SSP) Pashupati Upadhyaya, a complaint was registered. We faced a lot of trouble when trying to register the complaint because it was to be registered in the police office against the police themselves. That is why the police tried their best to not register the complaint. It was only registered after a lot of public pressure. After that, when we were returning home at around 8:30 p.m., a gang of around 8–10 people threatened us. We came to know later that they had been hired by the police. Q: You talked of well-wishers and public pressure. How did you raise public pressure?

A: I am a political activist. This does not mean that I want to transform this incident into a political case. The police beat my son brutally in the name of taking control and killed him within three hours. There were many eyewitnesses, and local people of Imadol were enraged on hearing that the police, instead of taking him under control, killed an innocent person by beating him mercilessly on his heart, lungs, kidney and other sensitive organs with sticks and gun butts. People were ready to protest against the atrocities committed by the police. The road was blocked as part of the protest against the incident. In the process of filing the complaint, we felt that the police were not going to listen to us. It was decided that we should make an organised effort to demand a proper investigation into the incident and action against the culprit. A resistance committee was formed under the chairmanship of a local, Ram Krishna Chitrakar. The committee decided to call for a valley strike with a four-point demand. Q: What were the four demands? A: The demands were to take action against the culprits, grant compensation to the victim’s family, formation of a judicial committee to investigate the incident and to declare the deceased as a martyr. Q: Is it true that the police killed Pradeep by inflicting torture and beating during interrogation? A: We got the news at 12:30 a.m. the same night. Our daughter and her husband were told that he was receiving treatment. We learnt that the police instructed him to stop his motorbike when he was returning home at around 9 p.m., because he was exceeding the speed limit. Since he was speeding he couldn’t stop his bike until about seven feet away from where he was asked to stop. The police abused him for not stopping where he was asked to stop. Pradeep begged pardon for his fault and asked them to conduct the necessary checking. They told him that they had the right to kill him for not obeying their orders. Four policemen started attacking him with sticks and gun butts. They stole his ring, money and wrist-watch. When we saw the body of our son at the hospital, we saw black and blue bruises around his genitals. It seemed that they had hit him on his testicles. This was an assault on an innocent person during interrogation by the police on the road. The

police could have taken him into custody, if necessary. They shouldn’t beat people under their control. It was found that he was handcuffed even after being seriously injured and put inside the police van. The van headed towards B&B Hospital, but another policeman whistled to stop it. He was then taken to the police post where he was killed. Then the police took his body to Patan hospital without conducting the necessary paper work to document the facts. We did not see the incident. You can ask more than a dozen eye-witnesses about the incident. They ignored our son’s repeated requests to take him to Hanuman Dhoka [District Police Office] for necessary lawful action. Q: You have filed a case. Do you think action will be taken? A: The Parliament was obstructed due to this incident. A great amount of public pressure has been created against police atrocities. We have filed a complaint against the police. The government has formed a high-level judicial commission to investigate the incident. A former Supreme Court Judge, Rajendra Bhandari, is the Chairman and Additional Inspector General of Police Shyam Singh Thapa and Deputy Attorney General Mahesh Thapa are members of the Commission. I believe in the rule of law. Action might be taken as the government has formed the Commission. We hope that the truth about the incident will be revealed. I do not know how far the Commission’s investigation has progressed. It would not be appropriate to say that we shall not get justice as the Commission has already been formed. Let’s see. Something may happen according to the recommendations of the Commission. We can only hope, and so we hope. A police team led by SI Maniraj Baniya, in-charge of Metropolitan Police Post, Balkumari, was involved in the incident. Initially, the police had taken Maniraj Baniya under control. But now, we see him—the person who led a police team that tortured and killed an innocent citizen—roaming about openly. In the circumstances, we doubt whether the Commission can work effectively. We wonder whether the government would take action against the accused. There is enough ground for such suspicion when the accused, supposedly ‘under control’, is at large. There is increasing impunity in this country.

Q: Has the Investigation Commission contacted you? A: Yes, the Commission has contacted me. It is also interrogating other witnesses. They are gathering statements from concerned people and eyewitnesses. I heard that the Commission has contacted the eye-witnesses of this incident. It has also published a notice asking for any relevant information. Q: Is the police trying to influence the concerned people and eye-witnesses? A: We learnt that the police have threatened the eye-witnesses to desist from speaking to the Commission. Suraj Adhikari was arrested and threatened to influence him against speaking to the Commission. The police arrested and kept him for a night under the custody of District Police Office, Lalitpur. The leader of the killing team, SI Maniraj Baniya, threatened witness Suraj Subedi at that office saying, ‘You saw the killing? I know what I should do with you. I can kill you, too, if you become over-smart and give statements about the killing.’ We have informed the Commission about this threat.

Case Study 3 Eight Juveniles Tortured by the Police and Forced to Admit to Allegations Eight juveniles9 of Banke district were arrested by seven or eight armed policemen of District Police Office (DPO), Banke, on the evening of 4 May 2007 on the charge of robbery. As recounted by the victims, two vans of patrolling security personnel stopped at Ganapur VDC at about 9.30 p.m. While the victims were waiting for a public vehicle to return home after attending a pooja (a religious ceremony) at a friend’s house, policemen suddenly alighted from the vans and ordered the victims to stand by the roadside. The policemen accused them of trying to steal something from the area. They explained that they were returning home after attending a pooja at a friend’s house. The police paid no heed. Even though they pleaded innocence, the police started beating them indiscriminately with bamboo

sticks, gun butts and torches, and kicked them with their boots for an hour and forced them to accept the allegations. One of the juveniles said: Around seven–eight policemen accused us of roaming around with the intention of stealing from the area. Then, they policemen ordered us to the roadside and hit all of us. They beat us on the back, thighs, head and other parts of our bodies with bamboo sticks, boots, torch, and butts of the guns for about an hour. They verbally abused us when we denied the allegations. After beating all of us, they tied our hands behind our backs with our own shirts and handkerchiefs and loaded us into the police van.10 All the juveniles complained of the same treatment during interrogation. After being tortured, they were transported to Bheri Zonal Hospital, Nepalgunj, Banke district, for a medical check-up. However, they were not provided any medicines. At about 1 a.m., they were brought to the DPO, Banke, from the hospital. As soon as they were brought to the DPO, Banke, some policemen interrogated them and they were again beaten with sticks. The next morning, some of them were interrogated again. They were compelled to clean the pond in the DPO premises during their five-day detention.11 As a result of being tortured, Shyam Chaudhary (name changed) developed some problems in his ear but the doctor shrugged it off, attributing it to a common cold, although that was not the case. An application was filed before the District Court, Banke, for medical check-up on behalf of the four juveniles on 11 May 2007, when they complained of pain. The judge ordered their medical check-up the same day. However, they were brought to Bheri Zonal Hospital, Banke district, for treatment only on 14 May. They were released on 23 May after paying a bail amount of Nepali Rupees 5,000.

Police Torture More Than a Dozen Maoist Victims on False Allegations12

Around 200 victims of Maoist violence are living at Tinkune, Kathmandu, in temporary tents since January 2007. The families of these victims living in temporary camps at Tinkune had demanded rehabilitation, compensation and employment for themselves. They had been victimised by Maoists during armed conflict that went on for more than a decade. The government has neither solved their problems nor taken any step to meet their demands. On 17 May 2007, two vehicles of security forces from Gausala Metropolitan Police Sector and New Baneshowar Metropolitan Police Circle, Kathmandu, went to the place where these victims and their families were staying in tents. The police ordered the tents to be vacated, and when the inhabitants did not respond, they started dismantling the tents and seized their clothes and other items. Some were beaten up and arrested. Some others were away from the camp as they had called for a transport strike that day in Kathmandu. The security forces arrested more than a dozen Maoist victims from different places on different charges. Some were arrested on the charge of arson while and others for trying to assemble in support of the strike. KALYAN BUDHATHOKI AND 11 OTHERS TORTURED BY POLICE Kalyan Budhathoki, permanent resident of Ramechhap district, was arrested by security forces from Tinkune, where he was temporarily staying, while walking on the road with a group of persons. Eleven other Maoist victims were also arrested with him. Kalyan and his friends were indiscriminately beaten with sticks, punched and kicked with boots and blamed for setting fire to a government vehicle. After arrest, some of them were taken to the Metropolitan Police Circle, New Baneshwor. Two hours later, they were transferred to Gausala Metropolitan Police Circle, Kathmandu, for further investigation. After a short interrogation, nine persons were released the same day from Gausala Metropolitan Police Circle. Three, including Kalyan, were handcuffed and detained for further investigation. The same day, 17 May, after a medical check-up, they were transferred to Singhadurbar Metropolitan Police Circle around 6 p.m.

When released on 25 May, they complained of torture in custody and that they were still suffering from the effects of the torture.

Case Study 4 Example 1: The Case of Kalpana Bhandari13 Kalpana Bhandari, a 30-year-old widow, permanent resident of Pingkuli VDC, Ward no. 5, Ramechhap district, was tortured and sexually harassed by the police after her arrest from Kathmandu on 17 May 2007. She was arrested by personnel of New Baneshwor Metropolitan Police Post and Gausala Metropolitan Police Post on the charge of setting fire to a government vehicle. After being arrested, she was taken to the Shinghadurbar Metropolitan Police Circle. On 17 May, victims of Maoist violence had called for a ‘transport strike’ in Kathmandu. The same morning a public vehicle was burnt down. The Maoists’ victims claimed that they did not set fire to the vehicle. The bus driver and government officials in the bus who filed the FIR [First Information Report] told the police that some unknown persons had set fire to the vehicle. The police arrested Kalpana as a suspect. Kalpana was staying with her children (one son and one daughter) and other Maoist victims at a camp at Tinkune since January 2007. She worked as a car driver in a private company. On the day of arrest, she had just returned to Kathmandu from a visit to Dhading in her car. According to Kalpana, she was arrested by a group of armed, uniformed policemen from Gausala Metropolitan Police Sector and New Baneshwor Police Circle on 17 May at about noon. She was preparing lunch in her tent when all of a sudden two police vehicles under the command of Inspector Jayaram Sapkota of Gausala Metropolitan Police Sector and Inspector Hira Bahadur Pandey of New Baneshowar Metropolitan Police Circle arrived and ordered everyone to evacuate the tents. The police, all males, entered the tent and grabbed Kalpana. Meanwhile, Inspector Jayaram Sapkota threw the food she had prepared. They caught her by the hair and manhandled her. They sexually harassed and abused her

in filthy language. In the meantime, Inspector Jayaram ordered a police constable to rape her. The Inspector forced her to the ground and kicked her in the groin and breast with his boots and sticks. She was beaten on different parts of her body by the policemen. They even threatened to kill her inside the tent. They continued beating and abusing her for around an hour. After an hour, some policemen dragged her about 500 metres and loaded her into a police van. Inside the van, she was laid on her back and kicked on her stomach 15–20 times with boots. She was beaten with sticks on her arms and head on the way to the police station. On asking for water, a policeman instructed his fellow officer to urinate in her mouth. Though she was arrested by the security personnel of New Baneshowar Metropolitan Police Circle and Gausala Metropolitan Police Sector, she was brought to the Shinghadurbar Metropolitan Police Circle. Due to the severe bleeding from her uterus, caused by the policemen’s kicks, she lost consciousness. She was taken to the Maternity Hospital Thapathali for treatment. The doctor prescribed some medicines, advised her to have a video x-ray of her uterus and discharged her. She was given some medicine but not taken to hospital for further check-up. She was in the custody of Shinghadurbar Metropolitan Police Circle and District Police Office, Hanumandhoka, for 15 days. Kalpana’s husband, Krishna Bahadur Bhandari, was an Sub-Inspector in the Nepal Police. He was killed in a clash between Maoists and security forces in April 2002 at Bhakunde of Kavre district. About a week after his death, Maoists demanded Nepali Rupees 100,000 from his father, Deepak Bhandari, while the family was in mourning. As he was unable to pay such a huge amount, the Maoists abducted and killed him by slitting his throat. Kalpana’s mother-in-law died of grief over the death of her husband and son. After the death of three members of her family, Maoists started issuing threats to Kalpana too. She started work as a Head Constable at District Police Office, Dhulikhel, Kavre district, but resigned after repeated death threats from the Maoists. She left home along with her son and daughter and came to Kathmandu. She worked as a driver and lived with her two children in a rented room in Lalitpur.

She joined some programmes organised by Maoists’ victim groups. In January 2007, she put up a tent to stay in Tinkune along with some 200 Maoist victims while continuing her driving job. Kalpana Bhandari, who was a victim of violence of both the security forces and Maoists, was interviewed by Advocate Sindhu Sapkota and Tulasi Bahadur Karki at FOHRID office on 24 October 2008. Excerpts: Q: Why did the police arrest you? Kalpana Bhandari (hereafter KB): Maoist Victims’ Association was staging a protest for their rights. They had called for a Kathmandu bandh [shutdown] on 17 May 2007. Alleging my involvement in the movement, the police arrested me from Tinkune. I did not know about the incident of the bus being burnt on that date as I had gone to Dhading in my vehicle on 16 May and returned to Kathmandu on the 17th. Before arresting me, the police spilled the food I had prepared for my children. When I asked them why they threw my food, Inspector Jayaram Sapkota took me by my head and assaulted me. They then tied my hands and legs and pushed me into a police van. They inflicted sexual torture on me. I lost consciousness due to excessive beating and torture. When I came to, I was bleeding. I was brought to Singhadurbar Police Post. Q: Were you admitted to the hospital when you were in custody? KB: I lost consciousness due to excessive torture and physical assault inflicted on me. I was taken to the Maternity Hospital, Thapathali, at 3 a.m. when my health deteriorated due to excessive bleeding caused by torture. The next day, I was brought back to Singhadurbar. Due to the excessive bleeding, the police admitted me to the emergency ward of Thapathali hospital, just two days after I had returned from there. The torture and suffering of that time is still fresh in my mind. I am living with suffering in my body and tears in my eyes. Q: How did police treat with you when you were in the custody at Singhadurbar for 10 days? KB: I was kept in custody at the Ward Police Office, Singhadurbar, for 10 days in two stretches. Sanuram Bhatta headed the police team there. They

used very filthy language with me. I frequently lost consciousness due to torture and beating. Though my condition was pathetic, they kept me in handcuffs. They gave me food but treated me in a very bestial way and used dirty language as if talking to an animal. They kicked me while giving me food. I can still feel the pain of the torture and beatings I received on my head. Q: How was the place of your detention? Facilities and sanitation? KB: I was kept on the cold floor of Hanumandhoka. I was not in a position to stay there. I asked the police to let me stay in the outside balcony from 4 a.m. to 10 p.m. They gave me this facility for one day but forced me back to the same cell again. There was a common toilet for all detainees, which they had to clean themselves. The insects would make our stay in the cold room very miserable. The room was dark and smelt terrible. There was an underground room at Ward Police Office, Singhadurbar. There were no separate rooms, toilets or bathrooms for male and female detainees. Q: Were there any policewomen? KB: I did not see any policewomen from my arrest to detention. Policemen used to beat and torture me. Inspector Jayaram Sapkota instructed his police personnel to sexually abuse me, but I do not know what they did to me as I was unconscious. Q: How were you treated at Hanumandhoka custody? KB: My situation was critical when I was transferred from Singhadurbar to Hanumandhoka. I was taken there five days after arrest and kept there for five days. I was bleeding excessively while going there. Though I was not tortured at Hanumandhoka, I required medical attention and hospital visits due to the torture I had received at Singhadurbar. I was not in a condition to remain inside the cell as my health was deteriorating. I did not have to wear handcuffs inside, but they used to handcuff me when I had to go outside. I said that I could not stay inside Hanumandhoka and requested them to send me out. They sent me back to Singhadurbar. Then I was kept at Singhadurbar for five more days. They took me to the District Court to obtain consent for additional detention.

Q: What happened after you were taken to the court? KB: I had carried all my clothes when the police took me to the court to obtain consent for additional detention. I cried and pleaded before the court that I had gone to Dhading one day prior to the incident, was arrested without any information or reason, and that there was no one ready to hear me out. Hira Bahadur Pande of Singhadurbar Police Office did not release me on the suspicion that I might speak against the police officers. In the beginning, I was not allowed to speak to a lawyer, but later on, was allowed to do so. I came to know that my sister, her husband, in-laws and relatives had complained at many places, and my father had informed the Tarun Dal [youth wing of Nepali Congress Party] about the incident. News reached Yagya Murti Banjade [Attorney General] and the police released me after much pressure from all sides. Q: Did you know that you were getting released? How were you treated before release? KB: I was not informed on the day of my release. The police officers called me to the room outside. I was not in a position to stand up due to my critical condition. They put me in a van and drove towards Tinkune. Due to continuous torture, I was suspicious even when being taken to Tinkune. They did not allow me to meet outsiders, not even my family members. I was bewildered on being released. I could not inform my family and relatives. I was dazed and confused. My relatives and well-wishers were at Tinkune when I was brought there. Those 15 days of detention were like 15 years for me. After reaching Tinkune, they informed me that I was being released since I was a Maoist victim. One policeman said, ‘Her husband was also in the police. Her father-in-law was killed by the Maoists.’ Some constables abused me in foul language, to which I said, ‘If I am a victim, why was I not a victim till yesterday? You also may have to weep like me some day.’ Q: How did you become conflict victim? How were you displaced? KB: My husband was a police SI. My father-in-law was a supporter of the Nepali Congress. Maoists targeted us because my husband was in the police. They frequently asked for donations which we were not able to give.

The Maoists pressured us to recall my husband from police service. Meanwhile, my husband died in a confrontation with Maoists in 2002 at Bhakunde. Then my father-in-law was killed by the Maoists, on the seventh day of mourning, by brutally slitting his throat for not giving the money they had demanded. Q: What happened afterwards? KB: My mother-in-law became incapable of speech after my father-in-law was brutally killed. She contracted blood cancer, and shattered by the death of her husband and son, died three months later. Now, our land in the village is under Maoist control. The houses have been razed. Seven [members] of my family [children of the same grandfather] including my husband and father-in-law were murdered between 2002 and 2005, and 16 houses have been locked. My father-in-law was called lahure [retired soldier] of Musapani and he used to receive Nepali Rupees 30,000–35,000. We were a well-to-do family, but now I have problems even paying for my children’s studies. Q: What efforts did you make to get justice? KB: I filed a complaint against the police for torture and inhuman behaviour inflicted upon me while in police custody in the District Court, Kathmandu, two weeks after my release. The case was decided on 15 June 2008. The court granted me a compensation of Nepali Rupees 50,000, but took no action against the perpetrators. I want to see action taken against those involved in inflicting sexual and other types of torture on me. I am not satisfied by the court’s decision. What can I do with a compensation of Nepali Rupees 50,000? At least, the policemen responsible for torture should be punished. I want a system in place so that other women like me do not have to face the kind of ill-treatment which I suffered. I want to fight for that also. After all, Nepali Rupees 50,000 does not meet even a small portion of the loss I had to bear due to the arrest. I lost my driving license, Nokia mobile handset, citizenship, a cheque of Nepali Rupees 10,000 and gold ornaments of 1 tola gold [about 11 grams] during my arrest. Do all these losses add up to just Nepali Rupees 50,000? I have had to spend

hundreds of thousand rupees for my treatment. Where is that? I am facing a problem in my ovary after the incident. I have to take medicine every day. Q: What can be done if there is no action against the perpetrator? KB: The District Court has decided that there is no need to take action against the perpetrators. I am preparing to go to the Appellate Court. Many people were killed during the Maoist conflict. Thousands of children became orphans and women became widows. It is not good for one Nepali to kill another Nepali. Not only mine, but many people’s eyes are moist with tears. Q: Did the hospital provide you proof of the treatment? KB: Yes and no. I could not receive the report of my treatment from Thapathali Maternity Hospital. The police intervened and exerted pressure there. But Model Hospital and Tribhuvan University Teaching Hospital helped me. My case became stronger due to the reports from those hospitals. Q: Did you receive the amount of compensation? KB: No, I have not. I learnt that a separate application and process are required for receiving the compensation. They told me that this process is lengthy. The lawyers said that it may take as long as two years. Q: How do you manage your daily expenses at present? KB: I am staying in a rented room. I do not have any property or means of income in Kathmandu. All the village property is captured by Maoists. That is not a favourable climate to go back to and utilise the property. My two children are in the government [Ratna Rajya] school. My son passed SLC [School Leaving Certificate] and the daughter is in Class 8. I have been driving a micro-van for the last two years and managing my life with great difficulty. Q: How was your experience of being in custody? How do you evaluate Nepal Police?

KB: My experience was very bitter. To be in the custody of the Nepal Police is like entering the mouth of death. One has to face torture and verbal abuse from the time s/he faces the police. On top of this, the police inflict sexual abuse against women. They do not hesitate to touch sensitive organs of women and insert sticks inside. In fact, the Nepal Police personnel do not remember that they also have mothers and sisters. There are some rawminded boys in the police. They are ready to inflict torture and rape women on the orders of their officers. The description of torture and inhuman behaviour inflicted by the police is always less than the reality. To talk about the torture and to recall the treatment is just to be victimised again and again.

The Case of Suni14 The Maoist conflict deteriorated after the declaration of emergency in 2001. At that time, Maoists widely abducted school children, trained them and used them in the war. The Maoists forced schoolchildren in uniform and bags to attend their programmes. They were forced to spy on the army and police. Maoists abducted seven girls of Saraswati Secondary School, Purano Gaun VDC, Ward no. 9, Ramechhap, in 2002 and took them to participate in their programme. While returning, an army–police patrol group found them at Dumre of Dolakha district. All the seven girls were arrested. After arrest, six were raped and murdered in front of Suni. Suni was studying in Class 8 at the time. People thought that she too had been killed by the army as she remained out of contact with her family for a long time. But she had not been killed. This was discovered when she wrote a letter to her cousin, 20 months after her disappearance. They tried to meet her but in vain. On March 2006, Maoists broke out of the jail at Charikot, Dolakha, where Suni was a captive, and she also escaped. The Maoists carried her in a bamboo basket (doko) and left her near the village. When she came to her house, her parents found that she had been tortured for a long time. Several security personnel, aged between 20 and 40, had raped her repeatedly. Her uterus was broken due to being raped repeatedly. She is 17 now and feels pain in the waist and suffers from continuous bleeding.15

FOHRID team contacted Suni’s family members displaced in Kathmandu to learn about her current situation. Excerpts of an interview with Suni’s elder sister, Asmita (name changed): Q: Did you make any effort for justice in Suni’s case? Asmita (hereafter A): I talked with some human rights activists to file a case. But we do not have any ‘evidence’ regarding arrest, imprisonment or rape of Suni. We do not have any report of the immediate treatment through a doctor. It’s a hopeless situation; the lawyers say no case can be filed without these things. Q: Then you have not filed any case at all? A: No, not till now. Q: Have you received any assistance for treatment? A: No. Q: It is clear that Suni was victimised after abduction by the Maoists. Do they help her? A: We have not received any assistance from them either. Q: Did the administration persecute you also after your sister was abducted by Maoists? A: Yes. They threatened me and asked me why I had sent my sister to the Maoists. Q: Where is Suni now? A: She is with me in Kathmandu. We cannot go back to our village at present. People humiliate Suni by saying, ‘You have become a Maoist, wife of the army.’ We cannot show our face. Q: How is Suni now? A: Her current situation is pathetic. The bleeding continues. I can only shed tears when I see her situation. There is hope as long as there is life … but her situation is very painful.

Case Study 5: Death of Chandra Kumar Yadav in Police Custody At 11 p.m. on 13 October 2008, a group of seven armed people murdered Uttimlal Mahato, 40, a local activist of Communist Party of Nepal–Unified Marxist Leninist (CPN–UML), at his residence in Arnama VDC, Ward no. 1, Siraha district. A bullet penetrated the left side of his skull. A central committee member of the armed outfit, Janatantrik Tarai Mukti Morcha (Rajan), also the Morcha’s Siraha district in-charge, claimed responsibility for the killing. In a separate statement, Hitler, a central committee member of another armed group, Madhesi Mukti Tiger, also claimed responsibility for Mahato’s murder. In connection with this incident, the police arrested Chandra Kumar Yadav of Arnama VDC-2 on the night of 13 October 2008 without any evidence and without adhering to procedural formalities. Yadav died on the night of 14 October due to cruel and inhuman torture inflicted upon him to obtain a confession. The police authorities stated that Yadav suddenly fell unconscious during the interrogation and that he was sent to a local hospital. The local hospital referred him to Janakpur Hospital for further treatment, but he died on the way. Contrary to the official statement, six detainees including Makhan Sada who were in custody along with Yadav stated that seven police officials including SI Sahakul Bahadur Thapa tortured Yadav for three hours by holding his head under water.16 Physicians of the local hospital have stated that the police brought Yadav for treatment at 11:45 p.m. on 13 October. The police claimed that he had lost consciousness; however, the doctors found that Yadav had no pulse. His heart was not beating. They immediately referred him to Janakpur. Under pressure from the police, the doctors wrote, ‘Yadav is not dead, referred to Janakpur hospital for further treatment.’17 Yadav was bleeding profusely from his nose, ear and mouth. He had a broken skull and blue bruise marks on his back, indicative of blows suffered. According to the doctor at Siraha district hospital who was involved in the post mortem, he died because of a fatal injury to his head.

His brain tissue was damaged; and blood clots were found in his brain and on the left side of his head.18 The post mortem report has not been publicised till now. Issuing a press release, Santabir Yadav, father of Chandra Kumar Yadav, accused the police of killing his son by torturing him in custody. He demanded arrest and suitable action against the police personnel who were involved in inflicting torture, including Deputy Superintendent of Police (DSP) Ramesh Kharel, SI Sahakul Bahadur Thapa and head constable Ram Ashish Mahato. Relatives of Chandra Kumar, local people of Arnama VDC and well-wishers called for a strike in the Siraha district headquarters, demanding a judicial probe into the case. They demanded appropriate compensation and action against the guilty. They staged a sit-in protest in front of the District Police Office, Siraha, on 15 October. The market, shops and offices remained closed and transportation affected due to the strike. Once the protesters started pelting stones at the District Police Office, the police fired five rounds of tear gas, fired five rounds in the air and also baton-charged the protestors. Around a dozen protestors sustained minor injuries. The police team of Bishnupur area was called to the District Police Office in order to prevent a violent situation and further attacks by the protestors. According to a field study by the Human Rights Treaty Monitoring Coordination Committee (HRTMCC), Yadav died of torture in police custody. In response to inquiries regarding the death of Yadav by FOHRID representatives, SSP Binod Singh, Chief of Human Rights Cell at Nepal Police Headquarters, stated: Those police personnel accused have been suspended for taking such action. Out of three, one was SI and two were constables. According to police officials, the deceased was ill before he was taken into police custody. He was taken to a local hospital for treatment. He died while he was being taken to another hospital for further treatment as referred. There are no signs of injury on his body. Of course, there was a minor injury on the bottom of the left ear. The injury on the ear cannot be the cause of death. We have suspended the accused officials

to commence an extensive investigation. Even the post mortem report has not shown that the death was caused by torture. When the team of activists coordinated by HRTMCC visited the District Police Office, Siraha, on 21 October to monitor the investigation into the incident, they found that no one had been arrested for the murder of Chandra Kumar. The report released by the coalition records that the state did not make any effort to identify the accused and preserve the evidence.19 Statements of the activists’ team and SSP Binod Singh contradict each other. According to the Nepali daily Annapurna Post of 23 October 2008, the Zonal Police Office, Rajbiraj, arrested SI Ram Bahadur Dhakal, Head Constable Hari Shankar Yadav and Constable Surendra Prasad Chaudhari on 22 October 2008 for the purpose of investigation. Though there are doubts about whether the suspected policemen have been arrested, there is no doubt that Yadav’s case is one of custodial death. _________________ 1

The text sent by FOHRID, which conducted the interviews, has, as far as possible, been retained in order to preserve the quality of the first-hand narratives. 2

Report of the study by a team of human rights activists on the killing of Shikharam Chaudhari on 13 June 2006. 3

For security reasons, names of five detainees have been changed.

4

Study report of a team of Releck Nepal led by Gokarna Sapkota on the killing of Shikharam Chaudhari, 2006. 5

Gyaindra Bahadur Shrestha, Acts and Rules Relating to Administration, Police and Army (Kathmandu: Pairavi Publications, 2060 [Sakabda calendar]). 6

Based on a report of a study carried out by Prof. Kapil Shrestha, former member, NHRC, Advocate Birendra Thapaliya, President, FOHRID and Mr Gopi Krishna Bhattarai, INSEC, on 13–16 September 2008. 7

Ibid.

8

Based on an interview conducted by Advocate Birendra Thapaliya, President, and Advocate Raj Kumar Siwakoti, Secretary General of FOHRID, visiting the residence of the victim’s family at Imadol VDC, Ward no. 3, Lalitpur, on 20 October 2008. 9

All the tortured eight juveniles are from Banke district and are between the ages of 15 to 18. The names of the juveniles have been withheld for their security. 10

Asian Human Rights Commission, 2007, ‘NEPAL: Two Alleged Brutal Torture Cases Committed by Banke District Police’, available at http://www.humanrights.asia/news/urgentappeals/UA-179-2007 (last accessed on 30 November 2012). 11

Prepared by the local representative of FOHRID.

12

Based on a discussion with Ganesh Adhikari, Secretary of the Association of Maoist Victims.

13

Based on a discussion with Kalpana Bhandari.

14

Name has been changed for security reasons.

15

Based on a discussion with Suni’s elder sister, Asmita.

16

The Kantipur vernacular daily, 16 October 2008.

17

Views of Sudha Chaudhari, staff of Siraha District Hospital.

18

Study report of HRTMCC released on 26 October 2008 in Kathmandu.

19

Ibid.

32 Two Interviews with Law Enforcers1 Interview 1 FOHRID representatives2 discussed existing investigative mechanisms with Kumar Chudal, Deputy Attorney General of Nepal, at his office in Kathmandu. Excerpts: Q: Why do police inflict torture in Nepal? Kumar Chudal (hereafter KC): Although the police inflict torture for obtaining confessions, this trend has remarkably reduced in the recent past. According to reports received by the Office of the Attorney General, the incidents of torture have reduced in the past few years. Though torture is found in a few cases, incidents of torture have been reduced satisfactorily. Q: What are the modes of torture practised in Nepal? KC: Though incidents of torture have reduced remarkably, on some occasions, the police use both physical and mental torture to gather evidence and obtain confessions. Q: In your experience, what methods have the police used for investigation?

KC: Traditional methods are used for the investigation of any person. The method of investigation is oriented towards obtaining confessions and statements. Currently, the investigation method focuses on extracting confessions rather than on facts and evidence. Hence, it has failed to become objective. There is no scientific investigation; evidence is gathered on the basis of the statements of a handful of people. The investigation method used in our country is very old. Q: What types of action do the police perform to obtain information from the accused? KC: The major weakness of the current judicial system is the system of ‘lock up and listen’. A wrong system of first keeping the accused person in custody and only then starting the process of gathering evidence is prevalent. We have not adopted the system of first gathering evidence and then arresting the accused. We have yet been unable to adopt a scientific system of investigation. The police exert strong pressure to draw out confessions, influenced by the concept that the investigation process will not be fruitful and that there would be a negative impact on investigation if the accused is released. Q: How do you coordinate with the police to prevent torture? KC: We make the accused fill a form when he/she is brought to the office of the government attorney from police custody. The form has questions such as ‘Has your health check-up been performed? How much pressure has the police exerted upon you? Did they allow you to give your statement in a fair manner? Have they threatened you?’ We help the police to concentrate on what the court seeks. We also give directives if they require them. We have also focused on prevention of torture in the recent times. It is not appropriate to forcibly obtain a confession from the accused through the use of torture. We must focus on the scientific technique of investigation and gathering objective evidence rather than confession with the help of torture. For instance, we must focus on gathering evidence such as blood samples, clothes, sandals, finger-prints from the spot. If we find instances of torture being inflicted, we ask them not to inflict torture. In some instances, we even visit police offices and ask them to stop the use of torture.

Q: Has the criminal justice system encouraged torture? KC: There is a lack of use of modern investigation techniques. Incidents of torture are increasing due to the absence of a scientific investigative method. This strengthens the accusation that the police inflict torture. When serious crimes occur it has a negative impact on society; but the accused will not open his mouth, and no scientific method is used to tackle this problem. Police inflict torture to save their face because they fear that they may be blamed for doing nothing if they do not gather evidence or fail to extract something from the accused. Significant amendments are necessary in our judicial system. The public prosecutor is an expert at prosecution. But the public prosecutor and the investigation officer meet only in court, at the time of the hearing. The police rarely ensure the presence of the public prosecutor during investigation. There is a lack of coordination between these agencies. The office of the Attorney General cannot give full direction in this regard. Our social milieu is also supportive of the traditional method of investigation. The opinion of the public prosecutor is not felt necessary even while obtaining consent for additional duration of detention. Q: What can we do to prohibit torture? KC: The first and foremost step for prohibition of torture is to adopt a scientific investigation method. We have to extensively reform our laws. We must provide some relief to those who assist in the investigation process and those who assist the court during trial. We must provide some relief if the accused confesses to the crime and thereby helps the investigation process. Similarly, we do not have effective laws and mechanisms for the protection of witnesses. Witnesses can help the investigation process a lot if we provide effective protection. Therefore, special legal arrangements and mechanisms are necessary. Protection of witness is necessary to prevent torture. The investigation officers and their support staff lack professional skills, because nothing is done to enhance their skills. They should be updated on the latest developments in the field of investigation. Besides, we must develop separate civil and criminal courts. If the same court sees both civil and criminal cases, the court remains entangled in civil cases while criminal cases are left untouched. Similarly, the process of investigation and prosecution should be strengthened. Justice cannot be

credible if the District Court acquits, Appellate Court finds guilty and again the Supreme Court acquits the accused in a single case. We must take action against those who become careless in the investigation process and conceal evidence. Q: Is the existing Torture Compensation Act, 1996, enough to prevent torture? KC: No, the existing Act is not enough. First, the provision of compensation in the Act is not sufficient. The system to provide the amount of compensation for the torture inflicted by a perpetrator from the state fund is also not appropriate. The perpetrator individually inflicts torture but the public attorney has to defend it on behalf of the government. This is not appropriate. The perpetrator should be held responsible at the individual level. The existing one is just a law relating to compensation. We need a separate law relating to torture. Q: How do you feel when you have to plead on behalf of the perpetrator inflicting torture? KC: The victim weeps and pleads in the court. There is clear evidence that he/she is a real victim. We feel tortured ourselves when we have to plead on behalf of the perpetrators—the police—by claiming that torture has not been inflicted. It is really a difficult task to defend the perpetrator. The state has no provision that supports torture and such torture is inflicted without direction from the state. Therefore, the individual perpetrator should be held responsible for the incidents of torture. Q: What does the Attorney General’s Office plan to do for eradicating torture? KC: We are visiting prisons and detention centres on behalf of the Attorney General’s Office. We hope to understand the current situation of torture through these visits. Whenever we receive complaints of torture, we monitor such incidents and give necessary directions. Though we conduct training, we have not been able to gain wide coverage. We are compelled to depend upon what we have already learnt through reading. The officials

have to depend upon what they have studied as students, and there is no opportunity for being updated in latest methods during their practice. Q: What programmes do you have for materialising the constitutional responsibility to prohibit torture? KC: The Constitution itself has criminalised torture. Theoretically, we agree that torture should not be inflicted. We make efforts to prevent torture whenever we find such incidents.

Interview 2 Excerpts of an interview with Senior Superintendent of Police (SSP) Binod Singh, Chief, Human Rights Cell, Nepal Police Headquarters, Naxal:3 Q: What procedures are applied for investigation as torture is prohibited? Binod Singh (hereafter BS): Nepal police believes that investigation cannot be carried out with the old and traditional system. The system of investigation through the use of torture has failed in the entire world. The concept of investigation without torture is being established in the present world. In this context, we certainly have to end the use of torture. We have to, and we have, adopted international norms and values. Many methods of investigation without inflicting torture have been developed. The facts cannot be extracted only by torture. The facts can be extracted by convincing a person. We can investigate in that way. We are adopting such scientific methods. However, torture might have been inflicted in some instances. We warn our officials when such incidents occur and take legal action against anyone found responsible for torture. We take action against them, whether they are officers or constables. Q: Does Nepal Police really never inflict torture during investigation? BS: Yes. We have adopted scientific methods. There may be some exceptions somewhere. We carry out investigations and take action against the guilty in such cases.

Q: A suspect knows information related to the incident, but he does not reveal the information. How do you obtain information from him? BS: Sometimes, it is difficult to obtain a confession from the suspect. The information does not come easily. It is not necessary to inflict torture to investigate such a person. Many methods of investigation have been developed by this time. There are various methods of taking interviews. We adopt these on most occasions. We motivate such persons and conduct our investigation. We reach conclusions by analysing facts obtained using different methods of investigation. We focus on motivating the accused during interrogation. Q: How do you train your officials on the prohibition of torture? BS: We conduct training focusing on the prohibition of torture for officials. We provide them pocket books which bear the message regarding the prohibition of torture. This is to be studied by all officers and constables. We conduct orientations for police personnel regarding the prohibition of torture. We work in coordination with Non-governmental organisations (NGOs) for this. We conduct regular training sessions at different places. We conduct such training for senior officials at the Nepal Police Academy. Similarly, training is conducted for Sub-Inspectors (SIs) and Assistant SubInspectors of Police (ASIs) at regional levels. We have also started training at the zonal level. We select officers and constables for training through sampling. We have instructors who meet international standards. They conduct training by visiting foreign countries. We have also produced some good instructors at the national level. They also visit different districts to conduct training. In this way, we have trained our personnel to stop the use of torture. Q: How do people feel about your force when incidents of torture come to public notice? BS: The police cannot say that we are fair and that others are bad while talking about torture. The police is an organised institution. The whole institution is blamed if someone commits a mistake. The institution gets acclamation if someone makes good achievements. We feel bad if someone inflicts torture. We become sad if some police personnel inflict torture. The

Nepal Police has been accused of inflicting torture. If any member of Nepal Police is involved in torture, the whole institution has to bear the impact of this. Therefore, we carry out investigation if there is any news of torture. We take action if someone is found guilty. We have done this. We have taken action against 288 personnel involved in incidents of human rights violation including torture, use of excessive force, sexual harassment and unlawful killings. Q: What type of action is taken against those responsible for torture? BS: We have taken action. We have taken action against 40 people for their involvement in grave acts of human rights violations. They were prosecuted in the civil court. Thirty people were acquitted. Ten of them are still in prison. We give warnings in writing to those who violate human rights in minor cases. We give minor punishments if the warning in writing does not work. We have suspended, decreased salaries, demoted and suspended promotions of the guilty in some cases. We have suspended promotions for a year in some cases. For example, we have demoted an SI to ASI. We shall dispatch to you the details of action taken by the Nepal Police authority regarding incidents of violation of human rights by its personnel. Q: What is your concrete plan and programme to ensure investigation without torture? BS: About our plans, it is not necessary to inflict torture in certain situations. We do not need to use force for investigation. An individual uses force when he does not have the capacity to carry out the investigation properly. The police and investigation officers of the present have received various types of training. They are, therefore, well aware of different methods of investigation. They are capable of adopting international standards of investigation. We also carry out our investigation through lab tests and analyse facts and figures. This has made our job easier. Our investigation is complete only after we analyse the facts received from external sources. Therefore, we do not require the infliction of torture. We have adopted new measures for investigation. We are developing and adopting scientific methods. I do not accept that torture is compulsory for investigation. Previously, an investigation used to start with torture; but I

conduct investigation using different methods. The incidents of violation of human rights have been reduced by 50 per cent in comparison to last year. While looking at our data, one can see that we have completed 50 per cent of our investigation without inflicting torture. I mean, the rate of torture by the police has been reduced by 50 per cent. We shall gradually nullify this. We shall reach such a situation where the police do not inflict torture at all. _________________ 1

In the course of interviews, leading government functionaries acknowledge that torture is still used to extract confessions in Nepal. This chapter contains excerpts of interviews with the Deputy Attorney General and senior representatives of law enforcement agencies. 2

Advocate Birendra Prasad Thapaliya and Krishna Prasad Aryal conducted the interview on 26 October 2008. 3

Advocate Birendra Thapaliya and Rajkumar Siwakoti on behalf of FOHRID interviewed SSP Binod Singh on 26 October 2008.

SECTION SIX

AFGHANISTAN

33 The Land and the People Wedged between the rivers Oxus and Indus is a region that in time came to be known as Afghanistan. An elementary grasp of this region’s history is necessary to understand the near complete absence of systems for protecting human rights in modern Afghanistan. Custodial accountability cannot come without an open system of justice. Centuries of disorder and British encouragement of tribal autocracy may explain why in today’s Afghanistan there are multiple closed structures of justice. Landlocked by as many as six countries,1 with the Hindu Kush ranging diagonally across, Afghanistan is a land with a phenomenal past. Archaeologists have discovered many prehistoric sites in the country.2 A focal point on the overland Silk Route in ancient times, this Hind Kush country has forever been a gateway between the East and the West. It was, therefore, prone to invasion and spawned dynasties that established empires in and around. Afghanistan is believed to be the birthplace of the Rig Veda and the cradle of Zoroastrianism.3 Indeed, it is said to be the place from where the Indo-Aryans diverged into two streams—the Vedic stream that moved eastward to the plains of India and the Avestan one that moved westward to Persia. Fascinating patterns are traced of the spread of language and culture from the banks of the Indus and Oxus.

Beginning with the Iron Age, waves of nomads and settlers flowed into Afghanistan. The influx was amazingly diverse. Apart from Tajiks, Turks, Persians, Mongols, Hindus and Sikhs, there have been Jews, Armenians and Christians in Afghanistan from pre-modern times. The Sakas and the Yue Chis came in from near China in the 1st century AD. Dravidian Brahuis were likely there from pre-Aryan times. Nuristanis or the Kaffirs are a distinct race of old inhabitants, converted only very recently to Islam. Buddhism, Zoroastrianism, Hinduism, and Sunni and Shia Islam have all touched the region. Invasion, migration, fluid borders and nomadic settlements are common to the past of many regions and by no means peculiar to Afghanistan. While most would acquire some semblance of a polity sooner than later, every element needed to forge a collective was absent in Afghanistan well until the 18th century. One, its territorial identity was blurred. The terrain ran almost seamlessly into other lands, and parts of Afghanistan were variously viewed as extensions of adjoining empires. The region as a whole had no single name. Even as late as the 16th century, the term ‘Afghan’ denoted only a small group of mountain dwellers in and around the south-east.4 Two, there was no lasting correlation between the people and their homelands within Afghanistan. Barring small pockets, Afghanistan’s tribes were, for the most part, nomadic. Three, there was no overarching administrative authority to unite the people of the region. Until 1747, the rulers were all outsiders—Persians, Arabs, Mongols, Turks and others— who held the territories as dominions but seldom administered them. They annexed territory, collected tribute, recruited soldiers, battled with contenders and moved on.5 Afghanistan was invariably a transit zone or an outpost of some eastern or western empire. Up until the 18th century, there would have been no clear answer to questions such as ‘who are the Afghan people’ or ‘what is the Afghan state’. Only the tribal identity emerged hard and strong. The ruler and his subject territory kept changing so rapidly that no wider links developed among the various tribes within set frontiers. Enforcing the codes remained the internal affair of each tribe. Cohesion within the tribe was reinforced. The fierce self identity and autonomy that is even today seen in the tribes of

the Hindu Kush may be traced to a long history of distant and transient sovereigns. From the 6th to the 4th century BC, the Achaemenid Kings6 of Persia ruled in the name of the Zoroastrian God Ahura Mazda, and Aramaic was their language. Their writ ran from the borders of Greece to the banks of the Indus and they held satrapies in Afghanistan. Around 330 BC, Alexander the Great defeated the Achaemenid Darius III. Long after Alexander, the many ‘Alexandrias’ named after him remained and Bactria continued to be ruled by Selucid Greeks for nearly 200 years. The Mauryan emperor Ashoka7 and the Kushan king Kanishka8 spread Buddhism in the region and established what was, by all accounts, a glorious period for trade, art and culture.9 The overland Silk Route emerged during Kanishka’s reign, bringing into Bactria (Balkh), Gandhara (Kabul), Ariana (Herat) and Kandahar the philosophies and legends of other lands along with their merchandise.10 Kushan power declined in the 3rd century when the later rulers were defeated by the Sassanids of Persia. From the 4th to the 7th century, the Sassanids, the Hephthalite White Huns and the Kushans fought and co-existed with each other in the Afghan lands. At the turn of the 7th century most of Afghanistan was under Sassanian control, with Hephthalite satraps in the north and Kushan satraps in the south.11 Travelling in the 7th century, Huen Tsang noticed Hindu influence, of which archaeological evidence has also been found.12 Then came the Arabs and with them, Islam. Between AD 637 and 642, the Arabs who had newly turned Muslim, broke into Persia and were looking further west. Though Arabs regularly raided the Afghan lands and stationed governors or agents to collect tribute, it was only at the start of the 9thcentury that various Islamic dynasties turned to convert the Afghan people. ‘From 817–943’, says Fraser-Tytler13 as the power of the Caliphs waned, the Samanids spread their rule from the Indian border westwards to Baghdad. The Abbasids were strong in the north and the west, while in south and central Afghanistan, the Arabs, penetrating deeply, gradually blotted out the old faiths and substituted Islamic for Buddhist doctrines.

Towards the end of the century, a Hindu revival was attempted for the last time by Jaipal of the Punjab, pushing westwards towards Ghazni only to encounter the Ghaznavids, who would set the course of Indian history. Of Turkish descent, the Ghaznavids were vassals of the Samanids left in charge of Ghazni in central Afghanistan. A scion of that family was the ferocious Mahmoud whose plunderous invasions of India are legendary.14 He turned Ghazni into a wonderful capital with all the plunder and became a patron of the arts. The scientist–historian Al Baruni and the poet Firdausi were part of his court. Mahmud in his time had crushed the Ghor tribe. After his death, the Ghorids destroyed Ghazni and seized power around AD 1186. Mohammed Ghori set out to invade India. In 1192, he was successful and his slave general Qutbuddin Aibak15 returned to India to set up the Delhi Sultanate in 1206. After Ghorid power weakened, the Turkish Khwarazm Shahs came to rule until Chengiz Khan the Mongol devastated the Afghan region in 1220. Traces of his ravages were seen some 50 years later by Marco Polo and 100 years later by Ibn Batuta. Afghanistan continued under Mongol domination for nearly a century. The ‘Hazaras’ of central Afghanistan are their descendents. With the slackening of Mongol power, a Tajik dynasty called Kurt gained control of Herat between 1332 and 1370. In 1383, the Turko Mongol from Samarkand, Timur, crossed the Hindu Kush several times, conquered and proclaimed himself the sovereign of the entire stretch from Kabul to the Aral Sea. After sacking Delhi in 1398, Timur turned to do likewise in Kafiristan—now Nuristan, in Afghanistan’s north-east—whose inhabitants were idolatrous. Timur’s successors, however, turned out to be patrons of art and culture. Herat and Samarkand were established as centres of learning and culture. The Timurid rule ended in the 16th century. A descendent of both Chengiz and Timur was the remarkable Mughal, Babur, who had lost Ferghana near Samarkand to an Uzbek. He moved to take Kandahar and Kabul in the early 16th century. He first took and then lost both Samarkand and Ferghana. He turned southwards where history had clearly marked him for founding a great empire in India. He never lost his love for Kabul and sent his sons as governors of Kabul and Badakshan. He died in Agra in 1530 but is buried in his beloved Kabul.

Rulers flitted in and out of Afghanistan leaving little by way of administrative structures but much by way of ethnic strains, languages and faiths. ‘Nowhere else does there exist such a variety of tribes and multiplicity of tongues,’ said Babur of 16th-century Kabul in his Baburnama. For 150 years after Babur’s death, the Mughals of India controlled the south and the Shia Safavids of Persia controlled the north of Afghanistan. The areas and the extent of control varied from time to time. Throughout the great Mughal period, that is, till the end of Aurangzeb’s reign, Afghanistan remained an outpost of Hindustan. ‘The forty years between the death of Aurangzeb in 1707 and the rise of Ahmad Shah Abdali to the Durrani throne in Kandahar saw many exciting events,’ says Dupree.16 The significance of these years is really that the indigenous Pashtuns were coming into their own. Around the middle of the 18th century, under Ahmed Shah Abdali, Afghanistan began to emerge as a political unit. But it was destined to remain an outpost of foreign powers for the next 150 years. The expansionist race in the 19th century between Britain and Russia was called ‘The Great Game’ by Rudyard Kipling. Vital to those imperial ambitions in Central Asia was Afghanistan. Afghanistan was repeatedly attacked, its territories seized, fragmented and hemmed in, its rulers tossed around and its people driven to anarchy. The stratagems and spoils of the Great Game eventually secured the interests of the imperial players but short-changed those of Afghanistan. Since the 10th century, the one constant in Afghanistan has been Islam. In modern Afghanistan, the critical conflict has been between tribal or religious orthodoxy and constitutionalism, but secular regimes have also been undemocratic. It had become the habit of political leaders to oscillate between the Soviet Union and the West, even in domestic policy. The Soviet occupation, the US-spawned Mujahideen, the Taliban that followed and the war on terror are events that have played out like a Greek tragedy. Afghanistan did have its share of constitutionalists and democrats. Intellectuals in the country were deeply influenced by the democratic movements in 20th-century Turkey and in India. With its demographic diversity, Afghanistan should have been a prime example of a multicultural

society. Instead, it has come to be a troubled zone of religious extremism, perceived to be in need of deliverance from itself. This is no accident of history, but a consequence of the strategic manoeuvring of religion. Britain was not above using religion for its ends. Having cut up Afghan territory, the British encouraged tribal orthodoxy in the North-West Frontier Province (NWFP) (now renamed Khyber Pakhtunkhwa) and Balochistan while enforcing the draconian Frontier Crimes Regulations (FCR). The effects spilled over the Durand Line, which the Pashtuns never did recognise. American support to the Mujahideen was an equally cynical use of religion that paid off because of the Soviet occupation. Institutions have been severely impaired by bigotry at home and interference from abroad. The United Nations Development Programme (UNDP)’s Human Development Report of 2007 notes that people still turn to the jirgas for rough and ready justice. Indeed, regular courts are known to defer to the jirgas. A parochial justification of violence has grown as a result of prolonged alien military presence, earlier Soviet and now American. Human rights abuses by the Soviet and North Atlantic Treaty Organisation (NATO) forces have been extensively documented. American use of Afghan territory for the ‘war on terror’ is of a piece with earlier European operations. Afghanistan continues to be destabilised by extrasovereign forces now as it was in the 19th and 20th centuries. The question ‘What is the Afghan state?’ seems as difficult to answer today. _________________ 1

Afghanistan is surrounded by Iran in the west, Turkmenistan in the north-west, Tajikistan and Uzbekistan in the north, Pakistan in the east and in the south and China (a tiny stretch) in the northeast. 2

Prehistoric finds from the area include one of the earliest ever sculptures of the human face, Upper Paleolithic implements, Mesolithic pottery, tools and domesticated animals. Archaeologists suggest that two sites in Aghanistan relate to an elaborate complex of village communities which supported the Indus Valley civilisation. (Dupree, Coon and Pugilisi are the archaeologists who excavated in Afghanistan in the 1960s and 1970s.) 3

Bactria or Balkh is believed to be where Zoroaster or Zarathushtra lived and preached sometime in the 6th century BC. 4

The name ‘Afghan’ is an ethnonym, denoting a particular tribe of nomadic Pashtuns; and, ‘Afghanistan’ signified an area near the Suleiman range where they resided, from which they moved to the valleys and the plains, subjugating and intermingling with the ancient sedentary population. The earliest reference to the term ‘Afghan’ is in the Hudood-ul-Alam, a book written in the 10th century by an unknown geographer and translated by Russian Orientologist Professor V. Minorsky, in

which ‘Afghans’ are mentioned as living in Saul which is placed in the Birmul area in south-eastern Afghanistan. The 11th-century chronicler Al Otbi who was part of Mahmoud of Ghazni’s court refers to Afghans in the Ghaznavid army. They were a tribe that had to be subdued by the Ghaznavids, but they are not referred to as being found west of Ghazni. Ibn Batuta writing in 1333 refers to a tribe of Persians called ‘Afghans’ living in Kabul, but whose principal residence was Koh-i-Suleiman. Babur in the 16th-century Baburnama limits Afghanistan to the region south of the Kabul Peshawar road. 5

Except the Bactrian Greeks who set up village communities between the 4th and 2nd centuries BC. The Mauryans and the Kushans between the 3rd century BC and 2nd century AD built centres of art, trade and culture as did some of the later rulers. 6

Darius I who came to power in the 6th century BC (around 556 BC) was a great empire builder. Darius III was defeated by Alexander the Great around 330 BC but killed later by his own Bactrian satraps whom Alexander the Great pursued and killed over the next three years. See Louis Dupree, Afghanistan (Princeton University Press, 1973). 7

In the 3rd century BC, he ruled over the southern parts of modern Afghanistan, Kabul and Kandahar and left the north to Greek satraps. 8

In 2nd century AD, Kanishka’s authority is said to have extended from the Gobi desert to the Gangetic plains. His summer capital was near Kabul and winter capital in today’s Peshawar. 9

Gandhara art flourished in this period. Depiction of the Buddha in human form is said to have first been done by the Gandhara School of Art. 10

‘After Ashoka … Mahayana Buddhism which gestated in Gandhara spread along the commercial Silk Route to Turkestan, Mongolia, China, Korea, and ultimately Japan’ (Dupree, op. cit.). 11

The two Bamiyan Buddhas (of 53 metres and 35 metres destroyed by the Taliban in 2001 as the world watched helplessly) were from the Kushano-Sassanian period. The small Buddha was ‘really a gigantic magnification of a Gandhara image’. And the large Buddha was an enlargement of an Indian Buddha statue of the Gupta period (Rowland, Ancient Art in Afghanistan [New York: The Asia Society]). With their cave paintings and stucco decorations, ‘The total configuration of Bamiyan indicates an eclectic hybrid mixing of Indian, Central Asian, Iranian and Classical European art styles and ideas’ (Rowland, The Wall paintings of India, Central Asia and Ceylon [Boston: Merrymount Press, 1938]). 12

This Hindu influence may have come from the Guptas (AD 320 to the 7th century AD who had partially defeated the Kushans to occupy the lower Indus valley), the Hindu Shahi kings of Kabul who were in Kabul in AD 699 when the Arab Governor raided Kandahar and Kabul because the Hindu king defaulted in payment of tribute. Even thereafter, the Hindu king was left to rule on condition that he would regularly pay tribute. This continued until the 10th century in eastern Afghanistan. Statues of Surya, Shiva and of Durga killing Mahisasura and cave paintings of tridents have been found near the Kabul Valley, Laghman Valley, Balkh and elsewhere (Dupree, op. cit.). 13

W.F. Fraser-Tytler, Afghanistan (Oxford University Press, 2nd edition 1953, reprints 1958, 1963). Fraser-Tytler served in the British Indian Army and worked for the Ministry of External Affairs. Later, he was British Minister for Afghanistan stationed in Peshawar till 1941.

14

Between 1001 and 1026, he invaded India 17 times and is remembered, among other things, for laying waste the Somnath Temple in Gujarat. 15

The Slave Dynasty, as it was called, was a forerunner to the Khiljis, the Tughlaks (of Turkik origin) and later the Lodis (Afghan) and the Mughals. 16

Dupree, op. cit.

34 The Afghan Nation State and the Great Game Ahmed Shah Abdali ‘Durrani’ (1747–1772) is often called the creator of the Afghan state. Fraser-Tytler calls the region ‘Afghanistan’ only from Abdali’s reign onwards. For the Afghanistan of the earlier period, his phrase is ‘the Hindu Kush country’. Louis Dupree goes a step further. He says that Afghanistan became a nation state only in 1880 under Amir Abdur Rahman, before which it had followed an alternating pattern of fission and fusion, and even under strong monarchs like Abdali, it had never been a nation state but only an empire. There is, however, no denying the fact that Abdali was the first indigenous ruler of Afghanistan. Though Mahmoud Ghazni and Mohammed Ghori were probably bred on Afghan soil, their origins were Turkish. Up until the 18th century, the region that we today call Afghanistan was never ruled as a unit by itself and also never by a wholly indigenous power. Whether as a whole or in part, the Afghan areas had only been held as annexations or satrapies of external powers like the Achaemenids, Greeks, Persians, Turks, Arabs, Mauryans, Kushans, Mongols and Moghuls. Some western, northern or eastern power was always in control, but none of them seems to have set up an administration worth the name or given the region coherence. The local tribes may have asserted themselves within their limited spheres. As late as in the 16th century, after many dealings with Afghans

including the decisive battle with the Afghan, Ibrahim Lodi, Babur in his erudite Baburnama described Afghanistan as a small area to the south of the Kabul–Peshawar Road. This suggests that the native Afghan tribes had not, by then, extended themselves as far as the Hindu Kush. By the 16th century, however, some Afghans like the Lodis had forayed eastwards into India though not westwards towards consolidating Afghanistan. The term ‘Pasht’ in Tajik means the back of the mountain.1 ‘Pashtun’, Raverty says, ‘are the people of the Suleiman Range near Balochistan.’ It was to the Suleiman Mountains, incidentally, that the first great Pashtun ruler of Afghanistan, Ahmed Shah Abdali Durrani, retired, to die in peace. Ahmed Shah Abdali was a Pashtun in Nadir Shah’s service. He had been defeated and imprisoned but Nadir Shah rescued him and took him into the Persian army. When Nadir Shah was killed in 1747, Abdali took Herat and Kandahar. Abdali—who called himself ‘Durrani’ meaning ‘The Pearl’— moved next to take the territories of the east. He is known in India for the many attacks on Kashmir and the Punjab in India and the repeated devastation of the Golden Temple of Amritsar. The Mughals yielded Punjab, Sind and Kashmir to him but were left as nominal rulers.2 He also took Delhi but left it to be ruled by the now weakened Mughal king. He gave battle to the Marathas and recruited the Baloch tribes in his army. He entered into border agreements with Bokhara and thus, through his diplomacy and military campaigns, gave a shape to Afghanistan. By the time of his death in 1772, he had covered the vast region between the Indus and the Amu Darya (Oxus) and given it a political identity. Abdali’s rule was not cut short during his lifetime and he had time to administer a kingdom for nearly three decades. Considered an able ruler, Abdali had a council of nine tribal chiefs—each of whom was responsible for his own people—who were consulted on all matters of state. This was perhaps a more consultative rule than any other of those times in Afghanistan, and there is no doubt that it served to consolidate the jirga structure. Abdali died in 1772 leaving behind 23 sons but no heir designate. In less than 50 years, the Durrani empire had broken up into little tribal kingdoms. In 1826, Dost Mohammed, a Barakzai or Muhammadzai–Pathan, managed to edge past the others and seize Kabul and Kandahar. In the third decade of

the 19th century, when Dost Mohammed became Amir of Kabul, his kingdom stretched for less than a hundred miles from Kabul in any direction. He sought British support to negotiate a deal with the Ranjit Singh on Peshawar3 and thus opened the door to British intervention in Central Asia. Dost Mohammed was the first Afghan ruler to engage with the British, who had by then entered India and it was his reign that saw the beginning of the Great Game. In 1807, Napoleon and the Tsar had signed the Treaty of Tilsit which envisaged a joint invasion of India. The British were wary of Russian advances towards India, against which their own Anglo-Persian Treaty of 1814 was no great protection. On their part, the Russians viewed the British progress in North India as a step towards gaining control of Central Asia. For nearly 100 years from the 1807 Franco-Russian Treaty of Tilsit, the Great Game went on between the Russians and the British while Afghanistan got the short end of the stick. Alfred Lyall, Lt. Governor, West Province, 1881–1888, admitted as much in his poem ‘The Amir’s Soliloquy’: The Afghan is but grist in their mill, and the waters are moving fast, Let the stone be upper or nether, it grinds him to powder at last For the present, the Great Game is the context to view Afghanistan as it was in the 19th century. The period is marked by substantial additions to the British and Russian empires by annexations and invasions outside of Afghanistan.4 Kabul was, thus, under perennial threat of being annexed or divided between Russia and Britain. Consequently, there was no time or energy for sustained administrative reform. The people grew in their anarchy and were used to being perpetually at war. This period is also marked by unprovoked British and Russian aggression. The first Anglo-Afghan War, called ‘Auckland’s Folly’, took place in 1838–1839. The people of Kabul and Kandahar revolted and the Pashtuns, mainly the Ghilzai tribe, routed the British who were reduced to seeking safe passage back.5 The anger against the British was also because the British contingent had, while stationed in Kabul, Kandahar and Herat,

encouraged trafficking in women.6 The British forces retaliated a year later by burning the Kabul Market. ‘After four years of disaster’, says Dupree, ‘both [sic] in honor material and personnel, the British left Afghanistan as they found it, in tribal chaos…’ After that war ended disastrously, the state of ‘relations’ between the British in India and Dost Mohammed was for some years ‘sullen quiescence on either side, without offence but without goodwill or intercourse’.7 The next unprovoked and unwarranted British attack was in 1878, for no reason other than that the Amir refused to receive a British mission to counter an earlier, also unsolicited, Russian diplomatic mission. Kandahar and Kurram fell to the British who, with the signing of the Treaty of Gandamak in 1879, gained control of Afghanistan’s foreign affairs, the Khyber Pass and some other passes, and stationed their officers in Afghan territory. Within four months of the Treaty, a mob massacred the British Political Agent in Kabul and his entourage and an army of several tribes sent the British army packing. The British realised that defeating the Afghans in battle and ruling over them were two different things altogether. The Russians had extended their frontiers to the Oxus (Amu Darya) in 1873 by annexing or reducing to vassalage the various ‘Asian Khanates’ but in spite of their promise to respect its northern borders, they attacked Afghanistan in 1885 and took the Panjdeh Oasis on the Turkoman border.8 Now all that separated the Russian south from the Indian north was Afghanistan. After 80 years of the Great Game, it was evident to both Russia and Britain that ruling Afghanistan would be a fraught project of diminishing returns. It seemed to both that the best course would be to set their apprehensions regarding each other’s expansionist ambitions at rest by marking frontiers. A Joint Boundary Commission of 1886 drew the boundaries. The more drastic fracturing of Afghan lands was yet to come. In 1893, the Durand Line, ‘a classic example of an artificial political boundary cutting through a culture area’,9 was drawn. The Durand Line cut right across Pashtun territory, creating a kind of no man’s land between Afghanistan and British India. ‘The British Government did not intend to absorb the tribes into their administrative system, only to extend their own [territory] …’10

By 1895 the British had annexed Balochistan and the area to the northwest of Punjab, later to become the North-West Frontier Province (NWFP). Afghanistan, now stripped of these territories, was declared a British protectorate that could, thereafter, manage its own internal affairs. The joint operations of the imperial powers resulted in Afghanistan’s boundaries being successively redrawn, a reorganisation in which the Afghan ruler had no say. The turbulent century had its effect on Afghanistan’s administrative culture. Elsewhere in the subcontinent, the British in their ‘civilising mission’ had re-written laws and set up courts. This reforming mission was conspicuously absent when it came to the frontier tribes, although there were divergent schools of thought. On one hand were proponents of the ‘forward policy’ who wanted aggressive control of the frontier tracts. The other stream favoured non-intervention or ‘masterly inactivity’—on the premise that Britain would be best served by leaving the militant frontier tribes alone. Reform did not figure in either policy. The British ruled the frontier population through extremely undemocratic laws like the Frontier Crimes Regulations, which maintained the tribal chief’s intrusive powers over the people but gave to the Crown a broad military control over the tribe itself through powers of preventive detention, collective fines and embargoes against which there was no judicial redress. The reinforced layers of unaccountable authority enhanced the tyranny of tribal chiefs and made any open system of justice seem alien and objectionable to them. The frontier tribes, then, were beyond the law, except that which their chieftains imposed, even within British India. The Durand Line did not suffice to confine the lawless effects of British policy to British India! Two paragraphs from Louis Dupree’s excellent book, Afghanistan, make the point clearly. The Montagu–Chelmsford Reforms of 1919, which launched the rest of India on an experiment in provincial democracy, did not affect the Pashtun country. The dynamic, dogmatic, conservative Sir George Roos-Keppel ruled the North West Frontier Province from 1908 to 1919, and convinced the British Raj that the Pushtun had no use for

the formal legislative mechanisms provided in the reforms. He insisted the Pushtun jirgah system was democracy in action. The 1893–1939 patterns in the Pushtun areas of Afghanistan and British India can be outlined as follows: Afghanistan: intra-tribal wars and attempts at pacification by the central government; forced migration of several dissident Pushtun groups to north Afghanistan; few attempts at development of socio-political institutions; British India: separation of Pushtun region from Punjab Province to form North-West Frontier Province; Settled Districts at first ignored in legislative reforms, then placed in the mainstream of political life in 1932; independent tribes in tribal agencies maintain independence, provided for by treaties with the British Indian Government; raids forced British to keep large outposts in tribal areas and participate in periodic fights. The perennial state of war and threats from both sides of the border further militarised the already warlike Pashtuns and the arms came free and plenty. This has been an endless problem for law enforcement in Afghanistan. Afghan leadership had, during that century, got into the habit of alternating between Russian and British help. The influence of the two European powers—to the detriment of Afghanistan developing a modern administrative culture—continued, and the Sistan boundary was redrawn in 1907. The Treaty of St. Petersburg of the same year between Britain and Russia affirmed British paramountcy over Afghan’s external affairs and divided Persia into two zones of influence—British and Russian. Britain, however, was bound not to annex any Afghan territories. The uninterrupted lawlessness that prevailed through that century is described thus by Fraser-Tytler:11 The account given by the traveller Charles Masson, of his life and journeyings in Afghanistan during this period illustrates the condition of the country. His narrative relates to the years immediately

preceding the First Afghan War when a ‘feringhi’ (foreigner), though an object of curiosity, was not regarded as yet with hatred and suspicion. Masson found the country still torn by dissensions and vexed by the rumour and report of war, with no very stable authority to maintain law and order or from whom to seek orders, when on occasions he and his fellow travellers were waylaid and robbed by some of the many highwaymen who infested the roads. At the same time, he could as a rule travel without let or hindrance wherever he wished; his life, if not his purse, was secure, and he found almost universal hospitality and goodwill among his Afghan hosts. The country too was not un-prosperous, the bazars were thronged and there was abundance of food, particularly of the fruits for which Afghanistan is famous. Conditions in fact seemed to differ very little from those obtaining ninety years later when I went first to Kabul. Only in 1832 it was the Sikhs on the south-eastern frontier who were the chief preoccupation of the Afghan ruler, in 1922 it was the British. _________________ 1

H.G. Raverty, Notes on Afghanistan: 1881–1888.

2

Ahmed Shah Abdali seems to have retained a soft corner for the Mughal dynasty. In 1761, he recognised Shah Alam as the Emperor of Delhi and sent a farman to Indian provinces and to Robert Clive in Calcutta to do likewise. In 1761, Ahmed Shah also returned central Punjab to the Sikhs but retained Peshawar and northern Punjab. The Afghans retained suzerainty over these regions until Ranjit Singh’s forces captured Lahore in 1799 and Kashmir in 1819. See also, Khushwant Singh, History of the Sikhs (Oxford University Press, Indian edition, 1977). 3

He wrote a letter to the newly appointed Governor General Lord Auckland in 1836. When the Afghans Yar Mohammed and Dost Mohammed attempted to collect tribute from Lahore. Ranjit Singh’s forces defeated the Afghan army in the Battle of Naushera in 1823. He entered Peshawar and ensured that the Afghans kept Peshawar only upon payment of an annual tribute to the Sikh Durbar at Lahore. 4

By 1849 the British had annexed the whole of the Punjab and Sind. After splitting the Pashtun territory in 1893 by drawing the Durand Line, they also annexed Balochistan and NWFP. By 1869, the Russians had established control over the Asian Khanates, Turkestan, Uzbekistan, Khiva and Bokhara by occupation, and by reducing them to vassalage through treaties and economic control. 5

One Dr Bryden lived to tell the tale.

6

Fraser-Tytler and Dupree both refer to the trafficking in women.

7

Lord Dalhousie’s Minutes, 1856; see also, W.F. Fraser-Tytler, Afghanistan (Oxford University Press, 2nd edition, 1953, reprints 1958, 1963).

8

Afghan claim to that territory was based on an occasional payment of tribute to Herat, and not on actual rule. 9

Louis Dupree, Afghanistan (Princeton University Press, 1973).

10

Olaf Caroe, The Pathans (London, 1965).

11

Fraser-Tytler, op. cit.

35 1920–1978: Challenges to Constitutionalism Anthropologist Louis Dupree’s view is that Dost Mohammed’s grandson, Amir Abdur Rahman, was the real architect of the Afghan nation state. He presided over Afghanistan when its territories were finally drawn towards the end of the Great Game and passed away in 1901. Despite the very trying times that he ruled in, Amir Abdur Rahman did attend to administration. A judicial system came to be set up for the first time ever. The Amir assumed all power claiming to be a representative of God with divine authority to rule. The role of the ulemas was reduced as Abdur Rahman was now the interpreter of God’s will. The sources of law were divided into Islamic, customary and statutory. He established a state-run court system comprising three types of courts: (a) Islamic courts for civil and religious matters; (b) criminal courts presided over by police chiefs and religious judges—the law applicable was Islamic law—and (c) the Board of Commerce for commercial disputes. The legal system created by Abdur Rahman contributed significantly to the development of latter-day legal institutions inasmuch as it set up courts, had a manual for judges, and installed boxes into which people could deposit their complaints. Abdur Rahman used Islam to unify the tribes under a single system, claiming it to be the principle norm of justice. Having done that, he sidelined the ulema (religious authorities), jailed or killed those who resisted him and declared himself the representative of God on earth and,

therefore, the Islamic law giver. Bruce Etling’s ruler–scholar paradigm1 which is useful to analyse the challenges to constitutionalism in latter-day Afghanistan, would probably place him as one who combined both roles. Abdur Rahman abolished some cruel punishments like amputation of hands for theft and stoning to death for adultery, but they seem to have made their way back later. He tried to make justice accessible by posting boxes in public places into which people could drop complaints. His son, Habibullah, inherited a political unit that he could run by himself, albeit as a British Protectorate. He followed the legal system set up by Abdur Rahman, but was more accommodating of the ulema. Keen to bring in modern medicine and new products of science, he was caught between the ideologies of anti-British pan-Islamism and the growing constitutionalist movement in Turkey which found ardent supporters in Afghanistan as well. The one remarkable thing attributed to Habibullah is his absolute neutrality in World War I. (Afghanistan, under Zahir Shah, remained neutral in World War II as well.) Habibullah’s assassination in 1919, while on a hunting trip, is shrouded in mystery. Whether it was the result of palace intrigue, the act of constitutionalists or the work of pan-Islamists is not known. The same year, his son Amanullah imprisoned all other contenders to power and declared himself King. At the turn of the century, liberal and democratic ideologies came into Afghanistan. The Russian Revolution, the abolition of the Turkish Caliphate and the Indian Independence movement were events closer home, but many in Afghanistan had travelled farther and returned with a sense of the political and intellectual ferment in Europe and further West. The remarkable Mahmud Tarzi, was an intellectual, poet, writer and policy expert, who became an adviser to Habibullah. He ran an independent newspaper, Serajul-Akhbar, that remained free to the very end. Tarzi trained young minds by organising a study club. Amanullah—who later became his son-in-law—was deeply influenced by Tarzi. Tarzi supported Amanullah throughout, but was concerned at the haste and unpreparedness with which Amanullah set about modernising Afghanistan.

Amanullah, 1919–1929: The Constitution of 1923

Amanullah fought the Third Anglo-Afghan War of 1919 that ended in peace talks and secured for Afghanistan absolute independence from British control. The talks remained inconclusive on Afghanistan’s claim to the Pashtun territories east of the Durand Line—later to loom over the region as the Pashtoonistan Issue—but did secure for Afghanistan absolute control of its foreign policy. Afghanistan signed a Treaty of Friendship with the new Soviet Union in 1921. In his 10-year rule, Amanullah introduced a spate of modernising reforms, and alienated members of his own clan as well as the Pashtun tribes on the border. Amanullah’s reforms were seen as affecting the powers of the jirgas (tribal councils), which had been consolidated over centuries. He had abolished the grants and subsidies to the tribal heads as well as the royal household. He enabled education for women and restricted polygamy. The 1917 Revolution created the Soviet Union, and the Soviets sought out Amanullah whenever they needed to placate the Muslims in their territories or check the British. Amanullah needed Soviet protection to consolidate Afghanistan’s new-found independence. As it turned out, Amanullah had to abdicate the throne following opposition to his reforms. Some suggest that the protests were fuelled or at least strengthened by the British who were uneasy over Amanullah’s friendship with the Russians, his links with Indian nationalists and his reviving the issue of the Durand Line. After Amanullah, a Tajik intruder, said to be pro-British,2 ruled for nine months. Soviet attempts to reinstate Amanullah failed. Afghanistan’s First Constitution in 1923 (also called the Nizamnama) was influenced by various sources including the Turkish Constitution under Kemal Ataturk and the French Constitution.3 The Constitution guaranteed to all people, without any discrimination, some basic rights. Power including legislative power was centralised in the hands of the king. Only state-run courts could try cases. Three-tiered judicial structures were envisaged, pending the setting up of which, a special high court for military and civil trials was temporarily set up as an independent body. Further codification of Islamic law was undertaken during this period. One result of this was the Penal Code of 1924–1925. The Penal Code did not contain secular provisions. It merely codified Sharia law and prescribed a mode for hearing cases and imposing penalty. The Code distinquished

between tazir (secular punishment), which rested on discretion and Hudood (religious injunction), where there was no scope for exercise of discretion. Punishments were those explicitly articulated in Islamic law for crimes such as adultery, alcohol consumption and theft. Major and intentional bodily harm belonged to another class of crimes that carried retributive corporal punishments of the same order of violence as that perpetrated. For lesser crimes, judges determined the punishment. Islamic law was not abolished, but the role of the ulemas and the tribal leaders was reduced inasmuch as the courts and not the ulema, were now the arbiters of criminal law. A separate civil court called the Panchat was set up for Hindu civil matters. All this led to resentment among the ulema and jirga leaders. The resentment magnified and Amanullah had to retreat. One of the bones of contention was Hanafi law. The ulema wanted it mentioned as the predominant principle of interpretation, to the exclusion of even other schools of Islam. In 1925, amendments were made to bring back religion and the Hanafi tenets into the Constitution. Even so, the religious and tribal leaders prevailed and Amanullah abdicated the throne in 1929. Bruce Etling has a binary model for viewing Islamic legal systems, the two operative concepts being ‘scholar’s law’ or religious principles (called figh) and ‘ruler’s law’, that is, the secular realm (called siyasa). Areas of law fall either under the jurisdiction of Islamic scholars or of ruler-made law, and the relative extent of the jurisdiction of each would determine whether the system is predominantly religious, secular or semi-secular. Ramin Moschtagi, in an excellent article,4 adds another realm of influence, namely the qualification of judges. For long, religious training was both a necessary and sufficient condition to be appointed a judge. This has been another privilege which the ulema has jealously guarded for itself. From 1931 to 1978, attempts to secularise the system were not by way of substantive changes in the law. These attempts aimed chiefly at reducing the religious influence in the training and appointment of judges, and did no more than to create an elective system of secular justice in some limited fields. Criminal law continued to be administered by the Sharia rules.

1930–1964: Nadir Shah’s Constitution of 1931

After Amanullah’s abdication, a Tajik brigand called ‘Bacha Saqqao’ a.k.a. Habibulla Ghazi ran a chaotic rule for nine months, at which point the wellrespected Musahiban family entered the scene. The pretender to the throne was soon sent packing. The Musahibans had been confidants of the king and ministers during Amanullah’s reign, though later, there had been a parting of ways. Nadir Shah, the Musahiban, became king in 1929. His 1931 Constitution replaced Amanullah’s Constitution of 1923 and was decidedly placatory of the mullahs. The Constitution of 1931 established the kingship in the line of Nadir Shah, created a façade of parliamentary government and kept the judiciary under religious leaders. The Constitution declared Hanafi Sharia law to be the rule of interpretation. A certificate from a madrassa was sufficient to be appointed a judge, and judges were controlled by the executive. Customary laws were recognised, and the jirgas continued to administer justice as before even without any legal sanction.

Mohammed Daoud Khan At the time of India’s Partition in 1947, the North-West Frontier Province (NWFP) was asked to choose between India and Pakistan, and chose the latter in a referendum. The pleas of leaders like the Gandhian Ghaffar Khan that the NWFP be also given a third option, of complete independence, were ignored. Afghanistan supported the NWFP case for independence. As Indian Independence and Constitution-making was in progress, demands for democratisation had begun in Afghanistan. The 1949 elections returned a National Assembly that started calling the executive to account and passed laws enabling a free press. Newspapers came up, which openly attacked religious orthodoxy and criticised the royal family and the government. A National Democratic Party was formed and students joined the movement. The government ordered a crackdown on the eve of the 1952 elections; many were arrested and the newspapers forcibly closed down. There was dissatisfaction among the younger lot in the royal family. Daoud, a young and energetic cousin of King Zahir Shah staged a bloodless coup to become Prime Minister. Those who had hoped that the 43-year-old Daoud would release political prisoners and rush through with social reforms were

disappointed. For the next 10 years, Daoud was all-powerful and ruled using the army and the police. He modernised slowly and steadily, and was careful to cite Islamic justification, at every step.5 The religious sections turned against him for his modernisation and for encouraging women to join the work force. The throne was opposed to his autocratic ways. He beat a masterly retreat, by resigning in 1963 after a valedictory broadcast in which he asked for constitutional and electoral reforms. He had presented the king with a draft constitution before he resigned. He retreated to live and come back another day, some 20 years later. Daoud’s decade was widely perceived as pro-Soviet.

The 1964 Constitution The new Prime Minister, Dr Mohammed Yousuf, set up many new committees including one to draft a new constitution. A multi-ethnic drafting committee, which included two women members worked on the draft. A 455-member Loya Jirga6 (General Assembly of tribal councils) met to approve the Constitution. The debates7 seem to have been serious, open and fruitful. A serious attempt was made to convince the conservative religious leaders of the need for retaining the secular-oriented clauses.8 The 1964 Constitution declared Afghanistan a constitutional monarchy. There would be a bicameral Parliament (Shura), with a fully elected Lower House of 216 members (Wolesi Jirga) and an Upper House (Meshrano Jirga) of 84 members, some of whom would be elected while the rest were to be appointed by the King. The Constitution guaranteed the equality of all Afghans—it clarified that ‘Afghan’ meant citizen of Afghanistan and not the Pashtun tribe!—and the rights of personal liberty, thought and expression and private property, and declared the presumption of innocence. Citizens could not be extradited or banished from Afghanistan. ‘NonMuslims’ were granted freedom of worship subject to the limits of ‘law, decency and public peace’. There would be an independent judiciary with the Supreme Court at the head. The most important conceptual change came in the form of Article 102, which made the Constitution and statute law the primary rule of decision and it was only where these were silent that

there would be recourse to the Hanafi Sharia, but within the limits of the Constitution. The 1964 Constitution was undoubtedly a major conceptual breakthrough. But the problem of an untrained judiciary remained and laws that primarily affected life and liberty, such as criminal law, were still based on the Sharia and prescribed corporal mutilation. An important executive act of the new government was to appoint an investigating committee to report on prison conditions. Dupree who has travelled extensively in Afghanistan writes this:9 A long-awaited announcement came on March 31, when Dr. Yousuf ordered the Ministry of the Interior to appoint an investigating committee to report on prison conditions in Kabul and in the provinces. Anyone travelling extensively in Afghanistan in 1963 would have seen Afghan prisoners shackled in the most medieval conditions, would have witnessed the Afghan police, undereducated and underpaid (often simply draftees serving their two years national service), brutally beat prisoners into confession, for, as they would explain, ‘In Islamic law a man accused of a crime can be found guilty only if witnesses attest to the crime—or if he confesses’. Bastinado (the beating of the soles of the feet), a most painful experience, was commonly employed. The penal concept of Afghanistan has always been to punish, not rehabilitate. A key sign of change occurred when the new government began to release political prisoners in early April. Democracy and human rights are functions of engagement, at least as much as they are functions of declarations. There is nothing to show how the norms set in place by the 1964 Constitution, were tested or advanced by state institutions. Civil society seems to have tested the norms by asserting political rights. There was reaction rather than response from the state. Perhaps there was not enough time for democratic processes of law to take root and grow, for as we have seen, changes come thick and fast in that country. The New Democracy of 1964 was to last all of nine years and for

decades thereafter, Afghanistan would not see even a glimmer of democracy. ‘New Democracy’ returned a wide range of ideologies in the elections of 1965. The Wolesi Jirga passed a resolution that cabinet ministers make public statements regarding their financial status but rejected a resolution requiring the Wolesi Jirga members to do likewise!10 The leftists lead by Babrak Karmal—later to become President with Soviet support—demanded the resignation of the Prime Minister designate. Students staged weeks of sit-ins at the Wolesi Jirga and demonstrated on the streets. A police firing killed three and the Prime Minister designate resigned. The press, which had been recognised by the Constitution and later by statute started well. The government proscribed the Khalq, a leftist weekly, within a month of its launching. For the next seven years, however, the press did play a role in raising social, political and economic issues. Student demonstrations and workers’ strikes were frequent between 1966 and 1972. Political parties became active under the protection of free association, even though they had still not been explicitly legalised. Several, including the Marxist People’s Democratic Party of Afghanistan (PDPA), the Maoist New Democratic Current (NDC-Eternal Flame), the Islamic Association (IA) and the Afghan Social Democratic Party (ASDP) successfully recruited students.11 Elections in 1965 and 1969 saw the emergence of conservative Muslims as well as political liberals, entrepreneurs and industrialists, and Pashtun nationalists.12 Liberal democrats in the assembly were a few leftists and some women. The assembly often failed to achieve quorum and was frequently in conflict with the government. The leftist members were particularly outspoken. These factors contributed to a general atmosphere of instability. Then, the Shah refused to sign Bills, though passed by both houses of Parliament, to permit political parties, provincial councils and municipalities, and the deepening of democracy was thwarted. He also refused to recognise the authority of the cabinet.13 The period from 1965 to 1973 was, however, the most productive in terms of codification and centralisation in the legal history of Afghanistan. This period witnessed the culmination of the codification process started by Daoud and the writing of the criminal code, civil code and criminal

procedure code. Much of the law of Afghanistan, which is in force today, was passed by Parliament during this period.14 In 1973, with the assistance of military officers or, according to some sources, support of the Marxist groups in Afghanistan, the former Prime Minister, Daoud, overthrew the monarchy and declared Afghanistan a republic, with himself at its head. Daoud’s major initiative during this period was to install a system of land redistribution, with compensation to be paid for land acquisition. In January 1977, the Loya Jirga was called to adopt the new Constitution, and on 24 February 1977, Daoud proclaimed the new Constitution.15 Daoud did away with the Supreme Court and law was now in the hands of a council set up by him. A major innovation in the Constitution was the explicit mention of the rights of women. The right for every citizen to vote was expressly mentioned. There was no mention of the Hanafi School of Islamic jurisprudence as the official religion of Afghanistan. Overall, the Constitution reflected the socialist ideology of the time—Articles 17 and 18 encouraged government regulation of the economy and Article 13 nationalised natural resources.16 Daoud governed with dictatorial powers until the new Constitution was promulgated in 1976, after which a presidential government was formed. The President was to be elected for a six-year term by two-thirds of the Loya Jirga. The National Assembly was to sit for only four months a year and had the power only to question cabinet ministers, who were to be appointed by the President.17 The 1977 Constitution never entered into force because on 27 April 1978, a coup was staged against the government of Daoud, who had this time round shown a marked reluctance to be dictated to by the Soviet Union. The coup saw the Revolutionary Council—headed by Nur Muhammad Taraki—of the People’s Democratic Republic of Afghanistan (DRA) take office as the new government, which was soon replaced by a Soviet-style politburo. This government ruled by decree rather than through the legislature, with decrees emanating from the Central Planning Committee which had no popular representation. _________________

1

Bruce Etling, ‘Legal Authorities in the Afghan Legal System’, Afghan Legal History Project of the Islamic Legal Studies Program, Harvard Law School. 2 In 1928 … a senior figure in British Military Intelligence checked in to the Nedous Hotel on the Upper Mall. Colonel T.E. Lawrence, complete with Valentino-style headgear, had just spent a gruelling few weeks in Afghanistan destabilising the radical, modernising and anti-British regime of King Amanullah. Disguised as ‘Karam Shah’, a visiting Arab cleric, he had organised a black propaganda campaign designed to stoke the religious fervour of the more reactionary tribes and thus provoke a civil war. His mission accomplished, he left for Lahore. … Three months later, in January 1929, Amanullah was toppled and replaced by a pro-British ruler. On 12 January, Kipling’s old newspaper in Lahore, the imperialist Civil and Military Gazette, published comparative profiles of Lawrence and ‘Karam Shah’ to reinforce the impression that they were two different people. Several weeks later, the Calcutta newspaper Liberty reported that ‘Karam Shah’ was indeed the ‘British spy Lawrence’ and gave a detailed account of his activities in Waziristan on the Afghan frontier. Lawrence was becoming a liability and the authorities told him to return to Britain. ‘Karam Shah’ was never seen again. Tariq Ali, ‘Bitter Chill of Winter: Kashmir’, London Review of Books 23, no. 8 (19 April 2001). However, both Dupree and Fraser-Tytler disagree that there was any active British hand in the deposing of Amanullah. 3

‘An Introduction to the Law of Afghanistan’, Afghanistan Legal Education Project (ALEP), Stanford Law School. 4

Ramin Moschtaghi, ‘Organisation and Jurisdiction of the Newly Established Afghan Courts: The Compliance of the Formal System of Justice with the Bonn Agreement’, Max Planck Year Book of United Nations Law, 10 (2006): 531–590. 5

His decade is known for the active pursuit of the Pushtoonistan issue, rapid and extensive building of infrastructure in Afghanistan with both Russian and American aid and the ‘voluntary’ abolition of the veil that women were forced to wear in Afghanistan. The Pakistan–Afghanistan border was closed by him and India, and Soviet Russia assisted Afghanistan in airlifting exports and imports. He refused to join the Baghdad Pact or sign mutual security pacts, which the US was at that time engineering in a bid to stop communism or alliance with communist countries. 6

Members included those chosen by indirect election, the National Assembly, the Supreme Court, the Senate, the Constitutional Committee member, the advisory committee members and those appointed by the King. The Loya Jirga had six women and one Hindu. 7

The debates are available in South Asia Series AUFS Reports, New York, Vol. IX.

8

For an excellent summary of the proceedings, see Louis Dupree, Afghanistan (Princeton University, 1973). 9

Ibid.

10

Ibid.

11

‘Constitutional History of Afghanistan’, Encyclopaedia Iranica, available at http://www.iranica.com/articles/constitutional-history-of-afghanistan (last accessed on 30 November 2012). 12

Peter R. Blood, ed., Afghanistan: A Country Study (Washington: GPO for the Library of Congress, 2001), available at http://countrystudies.us/afghanistan/index.htm (last accessed on 30 November 2012).

13

Ibid.

14

Etling, op. cit.

15

Blood, op. cit.

16

ALEP, op. cit.

17

Blood, op. cit.

36 Human Rights and the Soviet Occupation (1978–1992) Nur Muhammad Taraki’s first step was to jail those most likely to oppose him—the religious lobby. He then arrested many Marxists who were likely to bid for political power. About a year later, in September 1979, his friend, comrade and Vice President Hafizullah Amin, had Taraki shot by a firing squad. Amin issued a statement, which alleged that 12,000 prisoners had died as a result of torture and summary executions carried out by Taraki’s secret police and its Director Assadullah Sawari. Sawari was notorious for stubbing out cigarettes in the eye sockets of jailed opponents. For information on excesses during Taraki’s term one need not rely on the candour of his successor Amin, who was himself no less in the torture department. Amnesty International and Human Rights Watch have extensively reported on the human rights violations which occurred in Afghanistan under the successive reigns of Taraki, Amin and Babrak Karmal. Amnesty International reports that its delegation to Afghanistan in October 1978 was allowed to meet the Vice President and Foreign Minister Hafizullah Amin, but they were not allowed to meet officials or ministers at lower levels. Denied access to prisons and detention centres, their reports

are based on statements by relatives of prisoners, accounts of those who escaped or avoided persecution and reports of local journalists and diplomats. There were large-scale arrests of members of organisations that opposed the government.1 A split between the Khalq and Parcham factions of the People’s Democratic Party of Afghanistan (PDPA) led to an extensive purge of the latter faction by way of arrests and summary executions. In July 1978, several high-ranking officials were arrested on the charge of a conspiracy to overthrow the government and confessions, extracted by force, were published in prominent newspapers. Prisoners’ family members were also detained in large numbers. Government reports were gross understatements of the actual number of men, women and children arrested and held without trial. Even where trials were held, there was no due process, for they were conducted by ‘Military Revolutionary Courts’ with judges appointed by the Revolutionary Council of the Democratic Republic of Afghanistan. The Ministry of Interior as well as the prisons of Kabul were routinely used by members of the armed forces and the police as torture centres.2 Herat erupted in riots against the regime in March 1979. Provoked by the new Afghan regime’s bid to enforce women’s education and employment, the ulema-driven Herat went on the offensive. Afghan soldiers rebelled and attacked government forces and Russians, who by then were present in droves all over Afghanistan. The Russians flew in jet bombers, and soon the new Marxist regime had killed 20,000 of its Afghan citizens in Herat. Some of the rebel leaders escaped to carry the rebellion to other parts.3 In December 1979, some three months after the ouster and execution of President Taraki, the Soviet Union invaded Afghanistan and propped up a government of the PDPA’s dissident Parcham faction led by Babrak Karmal. In 1980, a temporary constitution called the Fundamental Principles of the Democratic Republic of Afghanistan was adopted. Its stated aim was to guide the Afghans in the creation of a society of human beings free from exploitation. With the support of the Soviet Army, Karmal assumed the triple role of Secretary-General of the PDPA, President of the Revolutionary Council and President of the Council of Ministers.

The Provisional Constitution of 1980 The Provisional Constitution of 1980 introduced two new features—the Special Revolutionary Court (Article 54) and the Institute for Legal and Scientific Research and Legislative Affairs.4 Freedom of expression, sanctity of the home and peaceful assembly were guaranteed rights; people were to be charged, arrested and punished only in conformity with the law; individuals were to be presumed innocent until found guilty in court.5 Article 36 named the Revolutionary Council as the sole governing institution in the country. Special Revolutionary Courts were established to deal with crimes against national security and the territorial integrity of the country. The existing law was re-written by the Communist Party’s Politburo, although most of the criminal code written during the Daoud presidency was still used to prosecute crime. The regime’s newly formed secret police strictly enforced the new law. Any person who broke or resisted the new codes met with summary imprisonment.6 Article 30 of the Fundamental Principles of the Democratic Republic of Afghanistan (DRA) stated that ‘[t]orture, persecution and punishment contrary to human dignity are not permissible’. In 1982, Babrak Karmal enacted the Law on the Implementation of Sentences in the Prisons which prohibited and penalised torture. In 1983, Afghanistan acceded to the International Covenant on Civil and Political Rights (ICCPR), Article 7 of which prohibits torture or other cruel, inhuman or degrading punishment or treatment. Of all the constitutions promulgated in Afghanistan, the 1980 Constitution is the only one that did not recognise Islam as the official religion and the ruling principle. Freedom of religion was guaranteed to all and, overall, religion given more space than under previous communist regimes. Almost all institutions were recast. Governance was modelled on Soviet institutions and became a hybrid of the Soviet and the jirga. For instance, jirgas were supposed to be in charge of local administration, but had little

actual say because they had to get the approval of central authorities for every order or decision.7

Human Rights in the Time of Soviet Occupation The Constitution was well sounding but the ground reality in Afghanistan was quite different. A new intelligence agency known as Khadamat-e Etela’at-e Dawlati (KHAD) was established with Dr Najibullah as its Director General (DG). The KHAD was established as ‘an intelligence service to protect democratic freedoms, national independence and sovereignty, the interests of the revolution, the people and the state, as well as neutralise the plots hatched by external enemies of Afghanistan under the PDPA leadership’.8 While technically it was a part of the Afghan state and under the supervision of the Prime Minister’s office, in practice it was Soviet controlled.9 A system with its own police force, prisons and torture chambers, KHAD had 32 interrogation units, one in each province of Afghanistan. Provincial centres in Bamiyan, Ghazni, Jalalabad, Kandahar, Lashkargah and Pol-e-Khomri are where torture is reported to have been practised.10 Shashdarak and Sedarat were KHAD centres in Kabul.11 There was an extensive purge of Afghan writers and intellectuals. The United Nations High Commissioner for Refugees (UNHCR) estimates that between 1978 and 1992, around 5,000,000 people left Afghanistan.12 Soviet involvement in torture is alleged in reports. Witnesses state that Soviet soldiers were present during the interrogation and torture of prisoners in Kabul and sometimes tortured the prisoners themselves.13 Civil disturbances in Afghanistan during late February 1980 led to large-scale arrests and torture. During 1980, the number of prisoners under the Babrak regime was anywhere between 3,000 and 9,000.14 The number rose between 1981 and 1984, and in 1982, in the notorious Pol-e-Charkhi prison in Kabul alone there were estimated to be 20,000–25,000 prisoners. Political executions were carried out in the prisons at night.15 Below is an account of the torture that took place in 198116 of Farida Ahmadi, a medical student aged 22:

Every time she nodded off to sleep six prison matrons hit her over the head with iron bars and screamed into her ears. She said it was all as if the voices of the world were reverberating inside her brain. When she refused to confess she was taken to what she called the ‘chamber of horrors’. She was led into a room with black drapes spotted with blood. Severed human arms and legs were scattered about the floor. She said she would have passed out if she hadn’t been a fourth-year medical student and used to seeing amputations. Her tormentors were astonished that she showed no reaction. One of Farida’s cellmates went mad after one of the prison matrons used a severed leg to hit her over the head as if with a club. On another occasion she witnessed the interrogation of a young man by an Afghan communist party member. After scratching the man’s eyes with some sort of instrument, he tore them out with his own fingers and placed the eyes on the table in front of her. He said, ‘If you do not confess, this is what we will do to you.’ Ahmadi did not confess. Another account, from Amnesty International, is as given: After about three hours they took me into the interrogation room…. First they began to show me the torture instruments. These were wire cables, wooden sticks and rubber lashes…. They tried to get me to talk but as I did not say anything they began to slap me very hard on the face. They began to beat me with the lash and with the wooden sticks. At about 12 midnight they took me from KHAD-e Atrafi [suburban KHAD, another name for the KHAD centre in Wazir Akbar Khan] to Shashdarak…. Without even asking me a question, they began to beat and kick me, so much that my nose began to bleed…. Someone grabbed my hair and started to pull…. They laid me on the floor and a very big and fat man trod on my stomach. They also put my hand on the wall and hit it with a wooden stick. In 1982, the Afghan government released a document giving the names of 200 PDPA members and KHAD employees who had been prosecuted for illegal searches, abuse of authority and other breaches of the law since 27 December 1979. There is no knowing whether their offences were all

supposed to have been committed under the preceding regime.17 Neither can it be said whether this was a genuine accountability process or a victimisation of officers of the Amin regime. Amnesty International also reports that during the Babrak Karmal regime, people were illegally arrested and detained for long periods for interrogation. They were not produced before a judge, not allowed to communicate with a lawyer or challenge the legality of the detention.18 Prisoners produced before the Special Revolutionary Courts which replaced the Military Revolutionary Courts were not given any legal assistance, nor were they informed of the charges framed against them.19 They were not allowed to summon or examine witnesses. There was no presumption of innocence and there was no appeal against the decision of the Special Revolutionary Court.20 Members of the Special Revolutionary Courts were often PDPA members or even KHAD members and trial proceedings and sentencing often took place in secret.21 Statements extracted from detainees after prolonged torture have also been used against them in Special Revolutionary Courts.22 Often, KHAD came to its own conclusions, based on which some detainees were released—sometimes after signing a statement, or they were transferred to prison.23 An estimated 8,000 people were executed from 1980 to 1988 after unfair trials in these courts.24 The press in Afghanistan was placed under complete restraint. It could only disseminate DRA or Soviet views. Any form of dissent was put down immediately.25 Public meetings and demonstrations, except those which showed allegiance to the DRA or the Soviet regime, were banned.26 Travel became hazardous. For instance, the writer of the Encyclopedia Iranica and a number of his university colleagues spent five years in jail, along with thousands of others, for having monitored violations of human rights during this period.27 Amnesty International’s report of 1986 says that torture by the Soviet and the Afghan military continued unabated.28 Enforced disappearances were common with people being forcibly conscripted for military service or imprisoned for crimes, real or concocted by the KHAD.29 The KHAD had been promoted as the Ministry of State Security in 1986, and the interrogation centres, called riasats, continued. They specialised in

uncovering ‘anti-state’ activity, along with surveillance and imprisonment of suspects. Torture was reportedly practised in all of them, and some were particularly notorious. A former examining magistrate who spoke to Amnesty International said that he had witnessed torture there from 1982 till 1990 including beatings, electric shocks and sleep deprivation. Another witness, a security guard, described systematic torture and mentioned an incident in 1989 where a prisoner’s children were tortured in front of him so that he would ‘confess’.30 In addition to the KHAD, there was a separate military intelligence agency, known as KHAD-e-Nezami, under a wing of the defence ministry as well as the Sarandoy or security police—under the Ministry of the Interior—both of which are reported to have carried out torture in their offices.31 _________________ 1

‘Background Note: Afghanistan’, Bureau of South and Central Asian Affairs, US Department of State, 6 December 2010, available at http://www.state.gov/r/pa/ei/bgn/5380.htm (last accessed on 30 November 2012). 2

Amnesty International, Violations of Human Rights and Fundamental Freedoms in the Democratic Republic of Afghanistan, AI Indez ASA, 11 April 1979, available at http://www.amnesty.org/en/library/asset/ASA11/004/1979/en/d497639c-6b61-499e-9057aaa5a0edc617/asa110041979en.pdf (last accessed on 13 December 2012). 3

See Steve Coll, Ghost Wars (Penguin, 2004).

4

Mohammad H. Saboory, ‘The Progress of Constitutionalism in Afghanistan’, in The Shari’a in the Constitutions of Afghanistan, Iran and Egypt-Implications for Private Law, ed. Nadjma Yassari (2005). 5

Encyclopaedia Iranica, ‘Constitutional History of Afghanistan’, Encyclopaedia Iranica, available at http://www.iranica.com/articles/constitutional-history-of-afghanistan (last accessed on 30 November 2012). 6

‘An Introduction to the Law of Afghanistan’, ALEP, Stanford Law School, available at http://www.afghanistanlegaleducation.com/pubs/text-intro_to_law-second_edition.pdf (last accessed on 27 November 2012). 7

Ibid.

8

Kabul New Times, 12 January 1980 cited from Amnesty International, Afghanistan: Torture of Political Prisoners, November 1986, ASA, 11 April 1986, available at http://www.unhcr.org/refworld/docid/47fdfaf10.html (last accessed on 30 November 2012). 9

Illinois Institute of Technology, Country Studies Afghanistan, Paul V. Galvin Library, Illinois Institute of Technology, available at http://www.gl.iit.edu/govdocs/afghanistan/PoliticalInstitutionsUnderSovietDomination.html (last accessed on 30 November 2012).

10

UN High Commissioner for Refugees, Note on the Structure and Operation of the KhAD/WAD in Afghanistan 1978–1992, May 2008, available at http://www.unhcr.org/refworld/docid/482947db2.html (last accessed on 30 November 2012). 11

Amnesty International, Afghanistan: Torture of Political Prisoners, op. cit.

12

See http://kabulpress.org/my/spip.php?article2375 (last accessed on 30 November 2012).

13

Human Rights Watch, Tears, Blood and Cries: Human Rights in Afghanistan Since the Invasion 1979–1984, 1 December 1984, available at http://www.hrw.org/en/reports/1984/12/01/tearsblood-and-cries (last accessed on 30 November 2012); Amnesty International, op. cit. 14

J. Bruce Amstutz, Afghanistan: The First Five Years of Soviet Occupation (DIANE Publishing, 1986), p. 274. 15

Ibid.

16

Ibid.

17

Amnesty International, Afghanistan: Torture of Political Prisoners, op. cit.

18

Ibid.

19

Amnesty International, Afghanistan: Unfair Trials by Special Tribunals, ASA, 11 March 1991, available at http://www.amnesty.org/en/library/asset/ASA11/003/1991/en/3d1b461c-ee43-11dd-99b6630c5239b672/asa110031991en.html (last accessed on 30 November 2012). 20

Ibid.

21

Amstutz, op. cit., p. 278.

22

Amnesty International, Afghanistan: Torture of Political Prisoners, op. cit.

23

Ibid.

24

Amnesty International, Afghanistan: Making Human Rights the Agenda, 1 November 2001, available at http://www.amnesty.no/aktuelt/flere-nyheter/arkiv-nyheter/afghanistan-making-humanrights-agenda (last accessed on 3 December 2012). 25

Amstutz, op. cit.

26

Ibid.

27

Encyclopaedia Iranica, op. cit.

28

Amnesty International, Afghanistan: Torture of Politial Prisoners, op. cit.

29

Amstutz, op. cit., p. 277.

30

Amnesty International, Afghanistan: Reports of Torture and Long-term Detention without Trial, March 1991, ASA, 11 January 1991, available at http://www.unhcr.org/refworld/docid/47fdfb3f0.html (last accessed on 3 December 2012). 31

Amnesty International, Afghanistan: Torture of Political Prisoners, op. cit.

37 Terror and Counter Terror Around 1980, the US had started financial and medical aid to the Afghan rebels. They were also aided by Pakistan. President Carter had signed an approval called a ‘Presidential Finding’ required by law for any CIA extraterritorial operation. The ‘finding’, as originally given in December 1979, authorised only financial and medical support. It was later amended to include an approval to ship arms and to also run training programmes for the Afghan rebels.1 When President Reagan renewed this authorisation in 1981, American supply of arms and military training to the Mujahideen in Pakistan was in full swing. The Mujahideen fought an intense civil war in Afghanistan. Modern warfare had been unleashed against the Afghan people, many of whom had fled to neighbouring countries. There was consistent international condemnation and by 1985, opinion in the Soviet Union itself was dead against the occupation. Mikhail Gorbachev is said to have described Afghanistan as a bleeding wound, krocotochaschaia rana.2 Amid growing insurgency, Karmal resigned as secretary general of the People’s Democratic Party of Afghanistan (PDPA) on 4 May 1986 and was replaced by Dr Najibullah. In January 1987, Najibullah formed the Extraordinary Commission for National Reconciliation to draft a new constitution. Dr Najibullah’s policy of

reconciliation included a ceasefire, an end to armed struggle, representation in the political and economic structure to all and a general amnesty. The new Constitution provided for a bicameral legislature with an elected National Assembly. The word ‘democratic’ was dropped and the country was now simply the Republic of Afghanistan. In a bid to bring about ‘national reconciliation’, the one-party system was abandoned in favour of political pluralism, and the PDPA was renamed the Fatherland Party.3 The 1987 Constitution provided for the President’s full control over the executive, legislature and judiciary (Articles 71 and 75). The Supreme Court was resurrected. The new Constitution allotted a more prominent place to Islam than even the 1964 Constitution. Three years later, a Loya Jirga was convened to promulgate an even more Islamic Constitution. This removed the last vestiges of communism from the Constitution, and declared Afghanistan an Islamic state. Special Revolutionary Courts were abolished, and the Supreme Court headed the judiciary though the Chief Justice was still accountable to the President. It also provided for institutionalised representation at the local level and some devolution of administrative control.4 Religion became the last refuge of Afghanistan’s ‘progressive’ regime as well as of US policy in the region, aided and abetted by Pakistan. Five accords were signed in Geneva (Geneva Accords). These included agreements between the Soviet Union and the US pledging non-interference in Afghanistan’s internal affairs and between Pakistan and Afghanistan on the return of refugees. The details of the accords are not discussed here. The plain fact was that Soviet presence in Afghanistan had become untenable. Soviet troops withdrew from the country on 15 February 1989 as per the Geneva Agreement, but internal conflict persisted. President Najibullah— supported by the USSR—had maintained control over Kabul and major cities while the Mujahideen—supported by the US and Pakistan— controlled many rural areas. A failed coup attempt in March 1990 by a local communist faction led to a spate of arrests and extra-judicial executions. Restrictions on communication had made collection and verification of information difficult, but Amnesty International received reports from refugees and former political prisoners who had sought asylum in Europe. According to

these, detainees were subjected to isolation cells and torture, and were kept indefinitely without trial or charge in detention centres run by the Ministry of State Security. There appeared to be a separate system of punishment set up by the Ministry that was independent of the judicial system.5 The Soviet Union was dissolved in December 1991, and in April 1992 the Mujahideen captured Kabul. Ahmed Shah Massoud, the Tajik leader and Mujahideen strategist, managed to secure the defection of Najibullah’s general, the Uzbek Abdul Rashid Dostum, which hastened Najibullah’s collapse and the fall of Kabul to the Mujahideen.

1992–1996 Mujahideen rule was marked by factional fights and civil war. After the fall of the Najibullah government in 1992, seven Mujahideen parties met in Peshawar and decided that an Islamic Council would rule Afghanistan. A cleric, Sibghatullah Mojaddedi, would be President for two months after which a President and his council would be formally installed. After some two months, Burhanuddin Rabbani was appointed President. Rabbani was a Tajik and headed the Jamiat-e-Islami. The rivalry between him and Gulbuddin Hekmatyar, of the Hezb-e-Islami, who was a Pashtun, was both factional and ethnic. Between 1992 and 1994, Hekmatyar, supported massively by Pakistan, attacked Kabul by a barrage of rocket fire. By 1994, Hekmatyar’s bombardment of Kabul had killed over 25,000 civilians and destroyed much of the city. There were mediation attempts, but the emerging Taliban was a game-changer to be reckoned with. Massoud and Rabbani, who had held Kabul against Hekmatyar, lost to the Taliban forces in 1996.6

The Taliban The Taliban was nurtured in Pakistani madrassas. Fired with fanaticism and powered by the ammunition with which Pakistan was awash at the time, the Taliban rose in opposition to the ‘indiscipline’ of the Mujahideen. By now, the Mujahideen, who were seen as faltering in their dedication to Islam, had

tried the population sorely with their gross misbehaviour. Rape and extortion were commonly indulged in by Mujahideen soldiers of every hue. Writers like Amin Saikal suggest that US representatives had met with Taliban leaders around the time the Taliban was planning to attack Kabul. The Taliban proclaimed Afghanistan an ‘Islamic Emirate’, installed Mullah Omar as the commander of the faithful and declared a holy war against the government in Kabul. Najibullah was hunted down inside the UN compound in Kabul, brutishly killed and his mutilated corpse hung up as a public spectacle. Classical Sharia—as it obtained in the days of the Prophet Mohammad— was declared to be the law. Hudud punishment was prescribed for ‘offences’ like drinking alcohol, theft, armed robbery, illicit sexual relations, slanderous accusation of un-chastity and apostasy. Qisas or physical retribution was declared for offences against the human body. The Hudud and Qisas policy was announced over the radio on 28 September 1996. Hudud meant amputation of the limbs for thieves, death by stoning for adulterers and lashes for those drinking alcohol. A religious elite was to review the laws and regulations to ensure their compliance with Islamic edicts. The Taliban banned women from all social activities, had them expelled from schools and universities and forced them to wear head-to-toe veils. A Ministry for the Enforcement of Virtue and Suppression of Vice was created and the country was ruled by decrees and edicts.7 In the 1998 report submitted to the UN Commission on Human Rights, the Rapporteur on Afghanistan indicted the Taliban for severe human rights violations. The report was based on a survey of internally displaced Afghans and refugees who left the country between the end of 1998 and the third quarter of 1999. Briefly, the report’s findings were as follows—Ethnic Hazara and Tajik women were rounded up in trucks and taken from the regions of Mazar-e-Sharif, Pol-e-Khomri and Shamali to neighbouring Pakistan and the Taliban stronghold of Kandahar; the women who tried to escape were killed and maimed. Women from the Kabul, Mazar-e-Sharif and Shamali regions also gave accounts of forced marriages to Taliban members.8 Interpretations of Islamic law led to unfair trials and punishment. Taliban officials have been quoted as saying, ‘The Islamic Emirate [of Afghanistan]

will bow under no kind of influence in the implementation and enacting of Shari’a punishment and divine orders.’ An Islamic court set up by the Taliban ordered amputation of hands and feet of people found guilty of theft. The punishment of flogging was inflicted for drinking alcohol and pre-marital sex. Five men convicted of sodomy were executed by crushing them under a wall. Taliban courts, which imposed cruel, inhuman punishment, gave no opportunity to the accused to put forward their defence. The judges in the court were not trained in law and their judgment was based on a mixture of personal understanding of Islamic law and the tribal code of honour prevalent in Pashtun areas.9 The Taliban’s principal instrument of control was the newly established Ministry for the Enforcement of Virtue and Suppression of Vice (al-Amr bi al-Ma’ruf Wa alNahi ’an al-Munkir), which enforced all Taliban decrees on conduct. Their control was highly centralised, and the core leadership comprised a 22member Shura, with Mullah Omar at the head.10 After the Taliban’s rise to power, women were systematically marginalised, and their human rights flagrantly and routinely violated. Fatwas banned women’s employment and education and restricted their movement.11 Even for medical treatment, a female had to be accompanied by a male family member. The Taliban also indulged in heinous mass crimes when they encountered resistance. They would massacre local civilians or other noncombatants, burn down villages and orchards and generally render rural habitats unfit to live.12 They targeted Shia villages, where people were dragged out of their homes and killed. In Qizilabad alone, at least 53 villagers were killed and some 20 houses set ablaze. In the massacre at Mazar-i-Sharif, 2,000 people, mostly non-combatants, were executed. In Gosfandi District, the Taliban carried out five massacres of civilians that saw 96 people executed.13 Thousands of people were held in Kabul in 1997 for several months, among these were 2,000 Tajik and Hazara men. In 1998, non-Pashtun Afghans were barred from freely moving about the country. After Taliban took over Mazar-e-Sharif in 1998, thousands of Hazara men were killed and young women abducted. Taliban guards burned down homes in various villages in Bamiyan province.14

A description of the human rights situation in Afghanistan would be incomplete without mentioning the remarkable and spirited Revolutionary Association of Women of Afghanistan (RAWA). RAWA was founded by a group of Afghan women and led by Meena Keshwar Kamal. When only 21, she began educating women. In 1979, Kamal started a campaign against the Soviet-supported government of Afghanistan. In 1981, she launched a magazine called Payam-e-Zan. She also established schools for Afghan refugee children, hospitals and handicraft centres for Afghan refugee women in Pakistan. Her activities and views, as well as her work against the government and religious fundamentalists, led to her assassination on 4 February 1987. Through the Taliban years, RAWA held seminars and press conferences and other fund-raising activities in Pakistan. RAWA also created secret schools and other underground facilities for women and girls in Pakistan and Afghanistan. RAWA filmed women being beaten and even executed on the streets on Afghanistan by the Taliban’s religious police. A measure of RAWA’s commitment to human rights can be had from the fact that RAWA was forbidden by both the Taliban and the Northern Alliance. In Afghanistan today, the most consistent and conscientious opposition to the occupation by the American and North Atlantic Treaty Organisation (NATO) forces comes from RAWA. On 9 September 2001, the World Trade Center Twin Towers in New York were attacked at the Taliban’s command. The US with the NATO forces attacked Afghanistan citing ‘Self Defence’ under Article 51 of Chapter VII of the UN Chapter. Following the Taliban’s capture of Herat, Kabul, Kandahar and Mazar-e-Sharief, Ahmed Shah Massoud had moved north. He was joined by the Uzbek Abdul Rashid Dostum, in building up the United Islamic Front, commonly called the Northern Alliance. This was a formation of five organisations that were opposed to the Taliban. Called the Lion of Panjshir, and brilliant in generalship, Massoud was a larger than life figure. He showed statesmanship in impossible times. The Northern Alliance became a multi-ethnic force under Massoud. It continuously gave battle to the Taliban between 1996 and 2001. Thousands of civilians, unable to bear the Taliban’s excesses, are said to have fled to

Massoud’s area in the north. Human rights violations are alleged against the Northern Alliance too. The Northern Alliance could not, however, succeed in overcoming the Taliban until the NATO forces came in October 2001. During these years, Ahmed Shah Massoud remained in contact with the international community to garner support against the Taliban. He was not alive to see the Northern Alliance come to power, for he was assassinated by the AlQaeda just two days before the attack on the Twin Towers. Two Arab suicide bombers posing as journalists detonated a bomb hidden inside a video camera. Massoud died in a helicopter on the way to a hospital and is buried in his hometown in the Panjshir Valley. In 2001, the Arabs and Osama bin Laden’s Al-Qaeda had joined forces with the Taliban. After the attack on the Twin Towers, NATO forces attacked Afghanistan in what they named Operation Enduring Freedom (OEF) and overcame the Taliban. Hamid Karzai of the Northern Alliance was installed as interim President for two years. He has continued as President, after the elections of 2004 and 2009, despite allegations of corruption, assassination attempts and Taliban insurgency. Hamid Karzai has made several offers to the Taliban to join the government. Civil strife still plagues Afghanistan.15 The United States of America maintains a military base in Afghanistan and is daily mounting drone attacks across the Durand Line on the pretext of fighting terrorists in Pakistan. This is purportedly a ‘continued assertion’ of the right to selfdefence under Clause 51, Chapter VII of the UN Charter. Amnesty International reports that forces from more than 40 countries with UN sanctioned troops in Afghanistan operate with a variety of mandates, chains of command, rules of engagement, and degrees of respect for the rule of law. Some 55,100 NATO and allied troops operate under the mandate of the International Security Assistance Force (ISAF), including nearly 23,220 US troops, while an additional 17,000 troops operate independently of NATO under the aegis of Operation Enduring Freedom (OEF). The situation has improved somewhat since November 2008, when ISAF and US OEF commands were unified at

the top, with one (US) commander at the head of both chains of command. Nevertheless, the two forces maintain distinct missions, command structures and rules of engagement—a situation sure to be exacerbated by the proposed insertion of tens of thousands more US and allied troops in Afghanistan. In addition to regular military forces in Afghanistan, there are numerous members of civilian intelligence agencies—OGAs [Other Government Agencies]—as well as private contractors and local militias conducting military operations. Ordinary Afghans (as well as international observers) frequently cannot distinguish between these forces during an operation.16 Amnesty has also documented outrageous violations of individual rights and privacy by ISAF forces. The following is an example: On 16 January 2008, two Afghan civilians, brothers Abdul Habib and Mohammed Ali, were violently killed inside their home while their families watched. Eyewitnesses told Amnesty International that a group comprised of uniformed international troops as well as Afghans raided the family home of the two men. The international military personnel, wearing desert camouflage uniform, entered the premises in the early hours of 16 January and shot the two men at close range, without first attempting to arrest them, giving them any warning or otherwise attempting to communicate with them. Both men were unarmed at the time of being shot. Meanwhile, Afghan personnel reportedly waited outside to provide perimeter security…. Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, conducted a 12-day fact-finding mission in May 2008 to investigate this incident, among others. At the conclusion of his report, he stated: ‘[Not] only was I unable to get any international military commander to provide their version of what took place, but I was unable to get any international military commander to even admit that their soldiers were involved.’ The Special Rapporteur further stated: ‘The victims are widely

acknowledged, even by well-informed government officials, to have had no connection to the Taliban, and the circumstances of their deaths are suspicious.’ Attempts by the family of Abdul Habib and Mohammad Ali to take up the case with local authorities have also been frustrated. Afghan National Security Force (ANSF) personnel and local government officials in Kandahar reportedly told family members they are ‘powerless’ to take action against the international forces and US ‘OGA’ personnel …17 The American Civil Liberties Union (ACLU) has released Defense Department documents that confirm the military’s use of illegal interrogation methods on detainees held in US custody in Afghanistan.18 The documents, obtained through a Freedom of Information Act lawsuit, are from an Army Criminal Investigation Division (CID) probe. Amrit Singh from American Civil Liberties Union (ACLU) says: ‘These documents make it clear that the military was using unlawful interrogation techniques in Afghanistan. Rather than putting a stop to these systemic abuses, senior officials appear to have turned a blind eye to them.’ In the CID reports, Special Operations officers in Gardez, Afghanistan, admitted to using what are known as Survival, Evasion, Resistance, and Escape (SERE) techniques, which for decades American service members had experienced as training to prepare themselves for the brutal treatment, they might face if captured (see December 2001,19 January 2002 and After,20 and July 200221). At least eight prisoners in custody at Gardez were beaten, burned and doused with cold water before being placed into freezing weather conditions. One of the eight prisoners, Jamal Naseer, died in US custody (see 16 March 2003).22 Subsequent investigations ignored numerous witness statements describing torture; Naseer was eventually declared dead due to a ‘stomach ailment’. The documents also provide evidence showing that prisoners were sodomized. ‘These

documents raise serious questions about the adequacy of the military’s investigations into prisoner abuse’, says Singh.23 Although the ISAF has issued a Tactical Directive for civilian protection, and a complaint mechanism has been set up, the seriousness of these measures is in doubt. Civilian casualties of NATO operations have risen over the years leading to protests even by the Afghan President. The RAWA has held public protests and is constantly campaigning against the rising human rights violations by the foreign armed forces. _________________ 1

President Carter’s Security Adviser, Zbinew Brzezinski, when asked if he regretted ‘having supported Islamic fundamentalism [intégrisme]’ and given ‘arms and advice to future terrorists’, is reported to have said: ‘What is most important to the history of the world? The Taliban or the collapse of the Soviet empire? Some stirred-up Muslims or the liberation of Central Europe and the end of the cold war?’ (Interview to Le Nouvel Observateur, 15–21 January 1998, p. 76, available at http://www.globalresearch.ca/articles/BRZ110A.html [last accessed on 3 December 2012]). 2

William Maley, ‘The Geneva Accords of 1988’, in The Soviet Withdrawal from Afghanistan, eds Amin Saikal and William Maley (1989). 3

Peter R. Blood, ed., Afghanistan: A Country Study (Washington: GPO for the Library of Congress, 2001), available at http://countrystudies.us/afghanistan/index.htm (last accessed on 3 December 2012). 4

Mohammad Hamid Saboory, ‘The Progress of Constitutionalism in Afghanistan’, in The Shari’a in the Constitutions of Afghanistan, Iran and Egypt-Implications for Private Law, ed. Nadjma Yassari (2005). 5

Amnesty International, Afghanistan: Reports of Torture and Long-term Detention without Trial, March 1991, ASA, 11 January 1991, available at http://www.unhcr.org/refworld/docid/47fdfb3f0.html (last accessed 3 December 2012). 6

See Amin Saikal, ‘The Rabbani Government 1992–1996’, in Fundamentalism Reborn? (William Maley, 2001). 7

See Saboory, op. cit.

8

The Taliban issued a denial of this report and held a public function to commemorate International Women’s Day on 8 March 2000. 9

Amnesty International, Afghanistan: Cruel, Inhuman or Degrading Treatment or Punishment, AI Index: ASA, 11/15/99 Amnesty International, November 1999. 10

‘The Afghanistan Justice Project’, available http://www.afghanistanjusticeproject.org/warcrimesandcrimesagainsthumanity19782001.pdf accessed on 3 December 2012). 11

at (last

Bureau of Democracy, Human Rights and Labor, ‘The Taliban’s War against Women’, available at http://www.state.gov/g/drl/rls/6185.htm (last accessed on 3 December 2012). See also

UN Women, ‘Empower Rural Women—End Hunger and Poverty’, available at http://www.un.org/events/women/2002/sit.htm (last accessed on 3 December 2012) and ‘AFGHANISTAN: The Human Rights of Minorities’, available at http://www.amnesty.org/en/library/asset/ASA11/014/1999/en/43c4282d-e035-11dd-865ad728958ca30a/asa110141999en.pdf (last accessed on 3 December 2012). 12

‘The Afghanistan Justice Project’, op. cit.

13

Ibid.

14

‘AFGHANISTAN: The Human Rights of Minorities’, op. cit.

15

Amnesty International’s report of 2009 states: The conflict between the Afghan government and its international supporters, on the one hand, and on the other hand a loose coalition of Taleban, anti-government groups like Gulbuddin Hekmatyar’s Hezb-e-Islami, and criminal militias, has now escalated to cover more than a third of Afghanistan, including areas just outside Kabul. In 2008, more than 2,000 Afghan civilians died as a direct result of the conflict, while tens of thousands have been displaced from their homes, and millions more suffer the indirect impact of insecurity in the form of significantly restricted access to education, health care, and even their farms and markets. It was the activity of antigovernment groups that injured most civilians in 2008, as in past years. But some 40 per cent (795) of civilian casualties were due to operations by international and Afghan security forces—a 30 per cent increase from the 559 reported in 2007. Most of these civilians killed and injured by international forces suffered as a result of airstrikes and raids of homes by international and Afghan forces. (Available at http://www.amnesty.org/en/library/asset/ASA11/001/2009 [last accessed on 3 December 2012].) 16

Amnesty International, Getting Away with Murder? The Impunity of International Forces in Afghanistan (Amnesty International Publications, 2009). 17

Ibid.

18

‘Documents Obtained by ACLU Describe Charges of Murder and Torture of Prisoners in U.S. Custody’, available at http://www.aclu.org/national-security/documents-obtained-aclu-describecharges-murder-and-torture-prisoners-us-custody (last accessed on 3 December 2012). 19

‘Pentagon Asks Military Agency for Help in Developing Torture Techniques; Methods Originated with Chinese during Korean War’ (December 2001). 20

‘Military Psychologists Propose Series of “Harsh” Interrogation Methods that Amount to Torture’ (January 2002 and after). 21

‘Military Instructors Train Intelligence Personnel in Torture Techniques’ (July 2002).

22

‘Afghan Teenager Dies in US Custody, Allegedly form Torture’ (16 March 2003).

23

‘Documents Obtained by ACLU Describe Charges of Murder and Torture of Prisoners in U.S. Custody’, op. cit.

38 Afghanistan’s Human Rights Norms The Constitution Based on ‘The Agreement on Provisional Arrangements in Afghanistan for the Re-Establishment of a Permanent Government’, better known as the Bonn Agreement of 5 December 2001, Afghanistan promulgated a Constitution in 2004. The Constitution of the Islamic Republic of Afghanistan was passed by the Loya Jirga and formally ratified by the President, Hamid Karzai, in 2004. The process lasted two years and went through three commissions.1 The Bonn Agreement provided for the establishment of a Constitutional Commission to assist the Constitutional Loya Jirga.2 The Afghan Judicial Commission was to ‘rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions’.3 Article 1 of the Constitution declares Afghanistan to be an Islamic Republic4 while followers of other faiths are free to practice their religions within the bounds of law. Shia law may be followed in disputes where the contending parties are all Shia.5 Languages other than Pashto and Dari, such as Uzbeki, Turkmani, Baluchi, Pashai, Nuristani and Pamiri, are also recognised as languages of Afghanistan, but Pashto and Dari remain the

official languages, except in the provinces where the local language may also be used.6 There is a parliamentary, bicameral7 form of government. Interpretation will primarily be based on the Constitution and the statutes but where these are silent, principles of Hanafi jurisprudence shall apply.8 The Constitution is the supreme law of the land9 but it also stipulates that legislation must conform to Islamic principles.10 However, this stipulation could potentially be in conflict with Article 7, by which the government is obligated to observe international human rights conventions and treaties.11 There is an obligation to create a legal and social framework for the promotion and protection of human rights. Chapter II of the 2004 Constitution guarantees to all citizens of Afghanistan the rights of life,12 liberty13 and the presumption of innocence.14 Article 22 prohibits any kind of discrimination between citizens. It also provides for equal rights15 for men and women. Article 29 forbids persecution of ‘human beings’, and declares that ‘no one shall be allowed to perpetrate (or order) torture, even for discovering the truth from another individual who is under investigation, arrest, detention or has been convicted to be punished. Punishment contrary to human dignity shall be prohibited.’16 Also forbidden is arrest17 or detention without the due process of law and the retrospective application of law.18 Compelled testimony is outlawed, and the only valid confessions are those made before authorised courts.19 Article 134 envisages measures to hold the state liable for acts of its agents. Investigation of crimes by the armed forces, police and security officials is to be regulated by a special law. Although the Constitution guarantees fundamental human rights, it does not adequately provide for their protection. The Supreme Court has no independent power to review legislations.20 It also lacks any independent power over the executive. ‘Only upon the request of the government or of the lower courts’, can the court review and interpret laws, legislative decrees, international treaties and conventions for their compliance with the Constitution.21 Neither the Supreme Court nor the Court of Appeal has the power to issue writs or directives to the State even though the Constitution guarantees an independent judiciary.22 The omission to provide any such

power to address the breach of Fundamental Rights renders the rights ineffectual. The organisation, jurisdiction and authority of the courts is governed by a separate legislation.23 The judicial system consists of Primary Courts functioning under a Court of Appeal in each province and the Supreme Court at the apex. Courts at all levels are divided into divisions, or dewans.24 Debate over what agency would be appropriate to decide constitutional disputes began in 2003.25 The Constitutional Drafting Commission had provided for a Constitutional Court, distinct from the Supreme Court, with the following brief:26 1. Examining the conformity of laws, legislative decrees and international agreements and covenants with the Constitution. 2. Interpretation of the Constitution, laws and legislative decrees. Had the draft provision been adopted, the Constitutional Court would have had the jurisdiction to issue binding decisions but this provision was removed before it reached the Loya Jirga, ostensibly due to a concern expressed at the time that the Constitutional Court would become like Iran’s Council of Guardians.27 Instead, the Supreme Court was equipped with some of the powers of the Constitutional Court, by way of Article 121. However, the language of Article 121 is significantly different from that of the original draft provision relating to the Constitutional Court. The Supreme Court’s powers of interpretation are, in fact, restricted by Article 121 to judging the compatibility of laws, decrees and international agreements with the Constitution, and that too only upon a reference made by the government or a lower court. The power under the present Article 121 falls short of the jurisdiction to strike down legislative or executive abridgment of rights. The only measure for constitutional review is Article 157, which envisages the setting up of ‘an independent commission for the supervision of the implementation of the constitution’. However, the Constitution is silent on the composition, powers and functions of such a commission.28

Over the last six years, the Parliament (Wolesi Jirga) and the President have developed many differences. One such difference is about the nature of the council to be set up under Article 157. The Parliament is for an independent council and the President has approached the Supreme Court for advice. Differences between the Parliament and President came to a head in 2007 over the Foreign Minister, Rangin Spanta.29 The Parliament, invoking its powers under Article 92,30 sought to dismiss the Foreign Minister by a vote of no confidence. President Karzai disputed the legality of the vote and approached the Supreme Court, which ruled in the President’s favour. Parliament was up in arms over this, claiming that the Supreme Court had no jurisdiction in the matter. In the event, the Wolesi Jirga (Parliament) and the Supreme Court, each proposed legislation to resolve the jurisdictional issue. The Supreme Court proposed an amendment to the Law on Organisation and Jurisdiction of the Courts, 2005, by revising the previous Article 24 to read as follows: The Supreme Court High Council shall have the following jurisdiction within the scope of drafting, organising, proposing and interpreting laws: 1. Assess the conformity of laws, legislative decrees, international treaties and conventions with the Constitution upon a request from the government or courts and issue the necessary decisions. 2. Interpret the Constitution, laws and legislative decrees upon request from the government or courts…. 3. Resolve disputes stemming from the implementation of law and exercise of legal authority between the National Assembly and the Government.31 At the same time, the Wolesi Jirga drafted a law in August 2008 to set up a body as envisaged in Article 157 that would review draft legislation ‘prior to the endorsement of the President’ and express an opinion on the constitutionality of the draft—before it became law. The Article 157 Commission was also empowered to provide legal advice on ‘issues arising from the Constitution’ and ‘[study] previous laws for their inconsistency’. It is pertinent to note that even in the law proposed by the Wolesi Jirga, the

Commission was empowered only to provide advice and could not issue binding decisions on any subject, or interpret the Constitution. Later, Parliament amended the draft legislation on the Article 157 Commission to remove the explicitly independent but limited power to provide an opinion on proposed laws prior to their endorsement by the President. By the amendment, the Parliament inserted language that gave the Commission only the task of ‘interpretation of the Constitution on the request of the President, the National Assembly, the Supreme Court, and the Executive.’ Although vetoed32 by President Karzai on the count that the language of the 2008 law passed by Parliament violated Articles 121, 122 and 157 of the Constitution, the Parliament, in September 2008, overrode the veto and passed the law which set up the ‘Independent Commission for Oversight of the Implementation of the Constitution (ICOIC)’. The members33 of the Commission are nominated by the President and are persons known within the legal community and having combined positions in the academic world with government appointments. The authority provided for the Commission, according to Article 8 of the law is now to: • supervise the observance and application of the Constitution by the President, government, National Assembly and other state and nonstate organisations; • provide legal advice on constitutional matters to the President and National Assembly; • make suggestions to the President and legislator on laws that, according to the Constitution, would be needed; and • report to the President any violations of the Constitution.34 So far, the ICOIC has been playing an advisory role on constitutional matters.35 In January 2011, the ICOIC signed a Memorandum of Understanding (MoU) with the Ministry of Rural Rehabilitation and Development (MRRD) to increase public awareness of the Constitution and individual rights, specifically in rural and remote areas of the country.36

In 2009, the Supreme Court overruled the independent Election Commission in order to let Hamid Karzai continue in office till the very last day before elections. In Afghanistan’s muddled constitutional framework one concept clearly missing is that of the separation of powers.

International Obligations Afghanistan has ratified the following conventions: The 1949 Geneva Conventions; the 1948 Genocide Convention; the 1968 Convention on NonApplicability of Statutory Limitations of War Crimes and Crimes Against Humanity; the 1979 Convention on the Elimination of All Forms of Discrimination Against Women; the 1966 International Covenant on Civil and Political Rights; the 1966 Convention on Elimination of All Forms of Racial Discrimination; the 1984 Convention Against Torture and Other Cruel, Inhuman Degrading Treatment or Punishment; the 1989 Convention on the Rights of the Child and the 1998 Rome Statute of the International Criminal Court.

The Human Rights Commission Article 58 of the Constitution provides for an independent Human Rights Commission. This Commission was established by a Presidential Decree on 6 June 2002.37 It is a recommendatory and referral body. The Afghanistan Independent Human Rights Commission (AIHRC), in a report published in the year 2007, records that from a research sample of 398 detainees, 259 alleged torture by the police and in 84 per cent of these cases, the torture appeared to have been for the purpose of obtaining confessions.38 No prosecutions have, however, been launched against the officials said to be responsible for the custodial excesses. Based on the previous year’s report of this same Commission, 880 cases of harassment and misbehaviour by the police were registered. Out of these, 588 cases involved women and 51 of them involved children.39 This is despite a separate law of for juvenile justice, and a dedicated Primary Court for juveniles.

Recently, the Afghanistan Independent Human Rights Commission has demanded a judicial investigation into the case of a 17-year-old girl who has alleged rape by a local bigwig. According to the AIHRC, the 17-yearold Sahifa was detained by the police when she was trying to escape to Jalalabad on account of domestic violence. Sahifa had been exchanged in marriage (baad) and she had fled from her husband’s home on account of the cruelty of her husband’s family. The Department of Women’s Affairs of Kunar Province had, instead of providing a proper safety shelter, placed Sahifa in the home of an influential person in the area, who raped her. AIHRC has demanded that the Attorney General take action. Sahifa’s family has been pressurised by the head of the Provincial Council to hide the matter.40 _________________ 1

Constitutional Commission, Constitutional Review Committee and Constitutional Loya Jirga.

2

Max Planck Manual on Afghan, Constitutional Law Volume Two (Constitutional Practice and Human Rights) (Mandana Knust Rassekh Afshar, July 2007). 3

Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions (Bonn Agreement), 5 December 2001, Section II(2) cited from Max Planck Manual on Afghan, op. cit. 4

Article 2, The Constitution of Afghanistan, 2004.

5

A recent law for Shias, which drastically reduces the status of women, denies them custody of children and maintenance rights, has come under severe criticism from human rights organisations. 6

Article 2, The Constitution of Afghanistan, 2004.

7

Article 82, The Constitution of Afghanistan, 2004.

8

Article 130, The Constitution of Afghanistan, 2004.

9

Max Planck Manual on Afghan, op. cit.

10

Article 3, The Constitution of Afghanistan, 2004.

11

Mohammad Hamid Saboory, The Progress of Constitutionalism in Afghanistan (2004).

12

Article 23, The Constitution of Afghanistan, 2004.

13

Article 24, The Constitution of Afghanistan, 2004.

14

Article 25, The Constitution of Afghanistan, 2004.

15

Article 22, The Constitution of Afghanistan, 2004.

16

Article 29, The Constitution of Afghanistan, 2004.

17

Article 27, The Constitution of Afghanistan, 2004.

18

Ibid.

19

Article 30, The Constitution of Afghanistan, 2004.

20

Article 121, The Constitution of Afghanistan, 2004.

21

Ibid.

22

Article 116, The Constitution of Afghanistan, 2004.

23

Law on Organisation and Jurisdiction of Courts of the Islamic Republic of Afghanistan, Official Gazette No. 851, 21 May 2005 (published 31 Sawar 1384). 24

The Supreme Court is divided into General Criminal Dewan, Public Security Dewan, Civil and Public Rights Dewan and Commercial Dewan. The Court of Appeals are organised into the General Criminal Dewan, Civil Dewan, Public Rights Dewan, Public Security Dewan, Traffic Criminal Dewan. The Primary Courts are the Central Provincial, Juvenile, Commercial, District, Family Issues Primary Courts. 25

J. Alexander Their and John Dempsey, ‘Resolving the Crisis over Constitutional Interpretation in Afghanistan’ (July 2009). 26

Article 146 of the Draft Constitution.

27

Thier and Dempsey, July 2009, op. cit.

28

Saboory, op. cit.

29

John Dempsey and J. Alexander Thier, ‘Who Has the Power in Afghanistan?’ 2 March 2009, available at http://www.csmonitor.com/Commentary/Opinion/2009/0302/p09s01-coop.html (last accessed on 3 December 2012). 30

Article 92, the Constitution of Afghanistan as cited in Thier and Dempsey, July 2009, op. cit.

31

Thier and Dempsey, July 2009, op. cit.

32

On the grounds that (a) Article 121 of the Constitution implies broad constitutional interpretation powers for the Supreme Court, which has historically had this power, and (b) the Article 157 Commission was meant to be a supervisory body for the implementation of the Constitution, not a body for interpretation. 33

Legislative Newsletter of the Afghan Parliamentary Assistance Project, Vol. 3, no. 16, 14 June

2010. 34

http://aan-afghanistan.com/index.asp?id=877 (last accessed on 3 December 2012).

35

ICOIC Nullifies MJ Administrative Board Elections APAP Newsletter February 2011.

36

‘Memorandum of Understanding (MoU) between MRRD and ICOIC’, 22 January 2011, available at http://www.mrrd.gov.af/English/index.htm (last accessed on 3 December 2012). 37

Article 58 Afghan Constitution:

The State, for the purpose of monitoring the observation of human rights in Afghanistan, to promote their advancement [behbud] and protection, shall establish the Independent Human Rights Commission of Afghanistan. Any person, whose fundamental rights have been violated, can file complaint to the Commission. The Commission can refer cases of violation of human rights to the legal authorities, and assist in defending the rights of the complainant. The structure and functions of this Commission shall be regulated by law. 38 39

R (Evans) v. SS Defence, (2010) EWHC 1445 (Admin).

Justice Studio, ‘Afghanistan: Child Justice Brief’, June 2012, available at http://justicestudio.org/CJBrief%20Afghanistan%20June%202012.pdf (last accessed 6 December 2012).

40

Women, RAWA News, HR Violations, available http://www.rawa.org/temp/runews/2011/03/03/ (last accessed on 3 December 2012).

at

39 Criminal Justice and the State of Human Rights The Penal Code, 1976, and the Interim Criminal Procedure Code, 2004 The Afghanistan Penal Code of 1976 recognises custodial torture as an offence. Torture to extract a confession is punishable with ‘long imprisonment’ (term not specified). If death is caused by torture, then the penalty is death.1 Harassment of individuals and wrongful prosecution by public servants are also offences.2 The Interim Criminal Procedure Code, 2004, constitutes the Attorney General as the supervisor of criminal investigation. All arrests must be communicated to the Attorney General. If a charge is not laid within 30 days, the suspect cannot be held in further custody.3 Evidence collected contrary to law is strictly inadmissible.4 The defence counsel has a right to be present throughout the interrogation and during searches and seizures. Once that presence is ensured, all evidence collected is admissible and cannot be later objected to.5 There is another statute called the Police Law, which permits police custody of 72 hours.6

Despite injunctions against the practice, custodial torture persists. Ajmal Hodman, a practising lawyer, has documented some instances, which are reproduced in below.7 A prisoner, Mir Bacha Koot Sara-e-Khwaja, a resident of Kabul, was picked up while driving a car. He was illegally detained and tortured. When Ajmal Hodman spoke with him, he said: The police stopped and searched my car and claimed that they found two guns and then they arrested me. I denied that the guns were mine but they started beating me with the butts of their guns and then they took me to police station. They kept on beating me and forcing me to confess. Then I fell unconscious. When I woke up, I found that they had written something on a sheet of paper which I could not read because I am illiterate. They wanted me to put my fingerprints/thumb impression on it, but I refused. They started beating me again. I was bleeding profusely. I was then forced to put my fingerprint on the paper. When I asked them to read it out for me, they said, ‘We are not your servants? Just put your thumb impression on it.’ I am still in jail and my young children do not know where I am. A person detained on suspicion of complicity in a bomb blast in the Baghlan Province of northern Afghanistan said that he was not allowed to sleep for a month. During each session of interrogation he was compelled to stand on his toes and was slapped. He frequently fell unconscious. His thumb impression/fingerprints were taken while he was unconscious. One of his hands was permanently disabled and was pulled and hit by the investigators. Members of his family and two of his relatives, who visited him, were also detained. His trial is underway. A 40-year-old resident of the Kandahar Province in southern Afghanistan was detained by American forces on charges of drug trafficking on 29 April 2008. He was held by the Americans in the Saffaa city of Kandahar, tortured and forced to confess to the charges. An advocate was appointed through a non-governmental organisation (NGO), who petitioned and got him medically examined but the signs of torture had faded by then.

A 16-year-old boy was detained on 15 December 2007 on the charge of theft. He says that he was forced to confess to the charge and that he was beaten severely by the police. The police forcibly took his fingerprints on blank paper. The victim claims that he was in police custody for 14 days and was delivered to the Attorney General’s investigators after that. A month later, he was sent to a hospital where the doctors confirmed that he had been tortured. There is a separate procedure for dealing with juveniles but, in this case, that has clearly been given the go by.

Private and Tribal Violence in the Form of Custom The Afghan Penal Code contains a preliminary declaration in these terms: ‘This Law regulates the “Ta’zeeri” crime and penalties. Those committing crimes of “Hudood”, “Qisas” and “Diyat” shall be punished in accordance with the provisions of Islamic religious law [the Hanafi religious jurisprudence]’. This leads to extra-legal practices of criminal procedure as will presently be seen. Articles 15 and 16 of the Interim Criminal Procedure Code bars any procedure of criminal justice other than that which is to be dispensed by criminal courts under the statutes. There appears to be no statutory mechanism through which Hudood punishments can possibly be imposed. The criminal courts established under the statutes may not impose the Hudood penalties as noted by the express declaration in the Afghan Penal Code. No courts other than statutory courts can try offences by virtue of Articles 15 and 16 of the Code. Ergo, no court exists within the ken of Afghanistan’s statutory law that may try offences and impose Hudood punishments. But here is the catch—a procedure is invalidated by Articles 15 and 16 of the Interim Criminal Code if and only if the affected party raises an objection. This may explain how informal jirgas continue to impose punishments outside of the codified criminal procedure, for the last thing they are likely to heed is a procedural challenge to their jurisdiction. A survey carried out by the United Nations Development Programmes (UNDP) records that more than 38 per cent of the people turn to tribal jirgas to resolve their conflicts and problems.8

Bruce Etling9 refers to how even the statutory courts defer to customary or tribal law: A word on customary law and its interaction with primary courts, which applied scholar’s law, is necessary here. Judges in primary courts were careful not to encroach upon the power of local religious or tribal leaders, and they often would refer matters to the village elders or tribal councils for resolution according to customary law, including enforcement of decisions. The judges would then incorporate the decision of tribal councils in their formal opinions. Only when resolution of a dispute was not possible at the village council level would a case reach the primary courts. This system of decision-making and conflict resolution at the local level according to customary law, and later entered into formal court records by judges, appears to continue to this day. The impunity that powerful tribal leaders possess is illustrated by this report: A Member of Parliament, Malalai Joya, was openly threatened with rape. She questioned the role of warlords in the ruling party and asked for their prosecution in a competent court. This statement of hers elicited an outrageous response by the warlords who cried: ‘Take the pants off this prostitute and tie them on her head!’ and ‘Where is that prostitute girl? When we find her, we will rape her and kill her!’10 The following news reports seem to corroborate Bruce Etling’s point that a parallel procedure of rough and ready punishment seems to be widely followed both inside and outside regular courts. 1. On 15 August 2010, a couple in a village in the Kunduz province of northern Afghanistan were executed by stoning by the Taliban on the accusation of adultery; they were both engaged to be married to other people, and had tried to elope.11 2. On 8 August 2010, Bibi Sanubar was flogged and then shot dead for adultery. Abdul Jabbar Khan, the security chief in the area, said that her execution was ordered after she allegedly killed her newborn child to conceal her sexual relations. Other sources say she was pregnant and killed for her adultery. A Taliban spokesperson denied

3.

4.

5.

6.

the killing and called it propaganda, while the killing was confirmed by the deputy provincial police chief, Ghulam Mohammad Sayeed.12 Bibi Aisha, 18, lived in a village in the province of Uruzgan in southern Afghanistan. She was to be punished for running away from her husband’s house, and her ears and nose were cut-off.13 Abdul Rahman was arrested in February 2006 and threatened with the death penalty—under Sharia for apostasy—for converting to Christianity. On 26 March 2006, after foreign governments exerted pressure, the courts cited investigative gaps and returned the case to prosecutors, releasing him on 27 March. He left for Italy two days later, after the Italian Government offered asylum. The court did not pass judgment, but instead asked for a report on his mental health to see if it could absolve him on grounds of ‘insanity’.14 Syed Mussa, who was working for the ICRC, was jailed in May 2010 after a television station broadcast images of Afghans being baptised and praying at private Christian meetings. The Afghan Government was under pressure, both from Western diplomats who wanted his release, and from conservatives who wanted him tried and punished. He is said to have been quietly released from prison on 21 February 2011, though there has been no confirmation of the same.15 Shoaib Assadullah was arrested in August 2010 for giving someone a copy of the New Testament. His trial had been set for 4 January, but due to international pressure the Attorney General intervened, and Assadullah was not sentenced at the time. Instead, he was sent back to jail, where he currently remains.16

Postscript History and geography have kept Afghanistan unstable, and religion has emerged as the defining and driving principle of that country. Military personnel and other agents of foreign powers as well as non-state actors— foreigners, religious extremists, mercenaries and vigilantes—exercise coercive power in this region with an unbroken tradition of informal systems of justice.

The dignity of the individual needs to be recognised clearly and unconditionally as the ruling norm, and not as an incidental principle. State power needs to be constantly tested against the composite right to life, liberty and dignity of the individual. Afghanistan recognises the right, but is ambivalent both about the norm and the means for its protection. The principle on which law, policy and executive action are tested in Afghanistan is their conformity with Islam. Executive power is uncontrolled, for even the Supreme Court cannot issue writs or directives to the state. There is no right of habeas corpus. Custodial justice requires sure and strong judicial power to call the state to account. Judicial independence has been diluted by successive regimes in different ways. Daoud even abolished the Supreme Court and the Soviets made it subservient to the Revolutionary Council. Aside from frontal attacks on judicial authority, an abiding problem has been the training of judges. Even today, ‘religious learning’17 is a sufficient condition for being appointed a judge of the highest court. The primacy of Islam has worked to charge a man with apostasy and almost order his execution, only because he opted for a religion other than Islam. Despite the constitutional freedom of faith, the silence of statute law on the subject of conversion resulted in the Sharia being applied to hold the conversion as ‘un-Islamic’ and punishable with death. Some have been jailed for doing no more than carrying the Bible. Jirga leaders carry out severe corporal mutilations for the most ordinary of things. The Taliban seems to be running its own system in many pockets. As practised, religion has not advanced accountability in governance but only contributed to impunity. This fact must be squarely faced. Afghanistan’s emphasis on religion is partly a reaction to repressive communist regimes of the past, which victimised people for their religious belief, and partly the result of the US financing and arming Islamic extremists to destabilise these communist regimes. The balancing norm of justice must move away from both religion and anti-religious obsessions towards human rights. But, given Afghanistan’s long, troubled history, that is easier said than done. Unremitting US armed violence on Afghan soil is breeding a reaction from which the country may find it hard to recover in the near future. Worse still, there is no check on this extra-sovereign power

and its atrocities. The increasing excesses of North Atlantic Treaty Organisation (NATO) and allied forces are bound to add to the culture of impunity. True, even where the norm is unambiguous, it is observed more in the breach. In India, the state’s violations are on the rise, and despite 60-odd years of a stable constitutional rule, vigilante groups and extra-legal khap panchayats18 are still thriving. Norms alone may be insufficient, but that does not mean norms are irrelevant. On the contrary, they are essential and imperative to render deviations unacceptable and to resist the violation of human rights. On the positive side, the Afghan Parliament is asserting itself. It has set up a Council on Constitutional Affairs, which has started legal literacy programmes across the country. The Constitution recognises the state’s liability for crimes committed by its army and police in the name of duty. Afghanistan has ratified important human rights instruments. The Afghanistan Independent Human Rights Commission (AIHRC) has conducted serious inquiries into custodial excesses, based on which some complaints against officials have been registered. Democracy dawned in 1965 but was aborted and overtaken by political events. This time around, the conflicts between the Executive and Parliament, and the exertions of statutory bodies like the Election Commission and the Human Rights Commission may serve to strengthen democracy. Then, throughout history, the people of Afghanistan have resisted impositions. Their fiercely independent and unyielding spirit could not be broken in times past by either the British or the Soviet Union. The ideology of resistance has not been free of reactionary tendencies, but organisations like the Revolutionary Association of Women of Afghanistan (RAWA) have brought to present-day resistance the spirit of human rights. This spirit holds out hope of a better future. _________________ 1

Article 275 of the Afghan Penal Code.

2

Articles 276 and 278 of the Afghan Penal Code.

3

Articles 21, 23, 34 and 35 of the Interim Criminal Procedure Code.

4

Article 7 of the Interim Criminal Procedure Code.

5

Sections 38 and 55 of the Interim Criminal Procedure Code.

6

Article 31; Section 1 of the Interim Criminal Procedure Code: ‘the judicial police, after having identified the person arrested on their own initiative, inform him of the reasons of the arrest and interrogate the same about the crime and its circumstances within a maximum of 24 hours’. Section 2 further states, ‘immediately after a report [of the arrest] is sent to the Primary Saranwal [prosecutor] the [arrested] person shall be put at the prosecutor’s disposal’. Article 25 of the Police Law states: ‘[I]n order to comprehensively detect the crime and the criminal, the police may hold an arrested suspect in custody for a period of up to 72 hours’. 7

Names of some of the victims have been deliberately left out.

8

Afghanistan Human Development Report 2007, http://www.undp.org.af/Publications/KeyDocuments/nhdr07_complete.pdf (last December 2012).

available at accessed on 3

9

Bruce Etling, ‘Legal Authorities in the Afghan Legal System’, Afghan Legal History Project of the Islamic Legal Studies Program, Harvard Law School, available at http://www.law.harvard.edu/programs/ilsp/research/etling.pdf (last accessed on 3 December 2012). 10

‘Voice of Defiance’, available at http://www.theage.com.au/world/voice-of-defiance20090703-d7tq.html (last accessed on 3 December 2012). 11

See http://www.siawi.org/article2136.html; Mohammad Hamed, ‘Afghan Couple Stoned by Taliban for Adultery’, 16 August 2010, available at http://www.reuters.com/article/2010/08/16/usafghanistan-stoning-idUSTRE67F1K720100816 (last accessed on 14 December 20112). 12

See http://www.huffingtonpost.com/2010/08/09/ (last accessed on 10 December 2012); ‘Taliban Execute Pregnant Woman in Afghanistan’, available at http://www.google.com/hostednews/afp/article/ALeqM5gEVgd-P4NVFFtv1D-FRE69zU-XVw (last accessed on 10 December 2012). 13

Aryn Baker, ‘Afghan Women and the Return of the Taliban’, Time Magazine, 9 August 2010, available at http://www.time.com/time/world/article/0,8599,2007238,00.html (last accessed on 3 December 2012). 14

Sultan Munadi, ‘Afghan Case against Christian Convert Falters’, New York Times, 26 March 2006, available at http://www.nytimes.com/2006/03/26/international/asia/26cnd-afghan.html? ex=1301029200&en=c9ed4e6797ef87a8&ei=5088&partner=rssnyt&emc=rss (last accessed on 3 December 2012); Cable News Network, ‘Afghan Convert Arrives in Italy for Asylum’, Cable News Network, 29 March 2006, available at http://www.cnn.com/2006/WORLD/asiapcf/03/29/christian.convert (last accessed on 10 December 2012). 15

Ray Rivera, ‘Afghan Officials Say Jailed Christian Convert Is Free’, New York Times, 25 February 2011, available at http://www.nytimes.com/2011/02/26/world/asia/26kabul.html (last accessed on 3 December 2012). 16

Ray Rivera, ‘Afghan Rights Fall Short for Christian Converts’, New York Times, 5 February 2011, available at http://www.nytimes.com/2011/02/06/world/asia/06mussa.html?pagewanted=all (last accessed on 10 December 2012). 17

According to Article 118 Afghan Constitution, Supreme Court members shall have the following qualifications: (i) At time of appointment, the age of the chief justice of the Supreme Court and its members shall not be less than 40 years; (ii) shall be a citizen of Afghanistan; (iii) shall have higher education in legal studies or Islamic jurisprudence as well as expertise and adequate experience in the judicial system of Afghanistan; (iv) shall have good character as well as good

reputation; (v) shall not have been convicted, by a court, for crimes against humanity, crimes, or deprivation of civil rights; and (vi) shall not be a member of any political party during his term of duty. 18

Community and caste bodies that go around imposing punishments for intercommunity marriages, and so on.

Epilogue

The Way Forward A formal condemnation of custodial torture is necessary but barely sufficient for containing the widespread practice. Effective deterrence can be ensured only by a self-executing system of reparation. Reparation includes immediate and adequate compensation to the victims, action against those actually responsible and administrative steps for nonrepetition. The burden of justice must be borne by the system and not the victims. The system is prone to impunity, to counter which, measures are needed at several levels and in several spheres, normative as well as operational. Administrative resistance to mechanisms of accountability is only the surface of a deeper culture of impunity. Custodial excesses would be contained only when there is a fair certainty of consequential justice. The aim of any campaign against torture should be to devise a method whereby a process is set in motion to call the perpetrators to account immediately upon the receipt of a complaint of custodial torture or enforced disappearance. The following are some of the measures that may be included in the agenda of an advocacy campaign:

Ratification of International Conventions and Regular Reporting to UN Monitoring Mechanisms

1. Ratification of the International Criminal Court (ICC) and the Convention on Enforced Disappearances (ICPPED) by all South Asian Association for Regional Cooperation (SAARC) member countries. 2. Ratification of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by Pakistan and India. 3. Ratification of International Covenant on Civil and Political Rights (ICCPR) by Pakistan. 4. Grant of access to UN Special Rapporteurs on Torture and submission to independent monitoring by International Human Rights Agencies. 5. Regular reporting to the United Nations Human Rights Council and other treaty bodies.

Legislative Measures (National Legislations) A. Penal Provisions that Criminalise Custodial Torture and Administrative Liability 1. All nations must enact a separate penal provision for custodial torture. Homicide, rape, grievous injury, simple injury, intimidation, extortion of a confession, actual or threatened harm to family members, occurring during custody, should be distinctly classified offences. A minimum sentence should be prescribed—10 years for grievous injury, life imprisonment for homicide and rape; 5 years for simple hurt and oral intimidation or harassment to family members. 2. Evidentiary rules must be altered to raise a presumption of liability where custody and hurt/rape/unnatural death during custody is prima facie established. (The Law Commissions of India and Bangladesh have recommended this.) 3. Command Responsibility or Vicarious Criminal Liability of Commanding Officer/Immediate Superior, that is, if knowledge or other direct involvement is proved, the commanding officer or

immediate superior should be liable for punishment as an abettor/perpetrator of a criminal offence. If actual knowledge or involvement is not proved, constructive liability for negligence should be imputed by statute, carrying a sentence of five to seven years in cases of homicide, rape or grievous injury and two years in cases of simple hurt and oral intimidation. 4. Administrative action, in addition to penal action should be ensured. Administrative measures such as (a) where death, rape or grievous injury has occurred during the period of custody, immediate suspension from duty must be ordered and (b) if the charges are established in a departmental inquiry, termination from service should be the punishment imposed. This rule should be applied to all officials implicated by direct involvement or knowledge. Departmental action should be independent of a criminal prosecution, and acquittal in the criminal trial on a benefit of the doubt should not be treated as a ground for exoneration in departmental proceedings. Perpetration of and direct complicity in custodial violence should be classified as a ‘major misconduct’ in the service rules. Where direct complicity by way of knowledge or participation is not established, other administrative penalties such as withholding of promotion, or demotion should follow, for superior officers. Appropriate provisions should be incorporated the in the service regulations. Custodial torture should be defined to include ‘cruel and degrading punishment’. Pakistan and Afghanistan must abolish all forms of physical mutilation as punishment.

B. Penal Provisions on Enforced Disappearances and Administrative Liability 1. All SAARC nations must enact a law penalising enforced disappearances by agents of state. Twenty-four-hour complaint cells should be established in all districts to receive complaints of torture, disappearances and illegal arrests. Any complaint or record of such torture, disappearance or illegal arrest to any other authority whether the police or magistrates or human rights commissions or other

2.

3.

4.

5.

6.

statutory or governmental authority should also be treated as valid complaints in this regard. The circumstance of having been last seen in the custody of any official of a state agency—whether or not acknowledged by such agency—will be treated as a relevant fact in this regard. A failure on the part of the state authorities to explain a disappearance, if initial custody or the last seen circumstance—as stated above—is prima facie established, shall lead to a presumption of enforced disappearance. (This is important as keeping persons in unacknowledged custody and in undisclosed locations is widely prevalent.) The fact that a police station or a state agency does not have a record of custody shall not be treated as an extenuating circumstance in their favour. An enforced disappearance resulting in the death of the detainee shall be treated as homicide. Inability to trace the missing person within two months of the first information of disappearance shall, where ‘the last seen in custody’ circumstance is established, be treated as culpable homicide not amounting to murder. In all other cases, where the detainee is traced, it shall be treated as abduction and punished as such in addition to punishment of any other offence such as grievous hurt, intimidation or torture. The immediate superior/commanding officer shall be equally liable to penal consequences if knowledge or other direct complicity is established. Even where direct complicity of the superior officer is not established, administrative action should follow on account of failure to exercise sufficient diligence. Immediate suspension and eventual termination from service upon conviction must be provided for guilty officials.

EXPLANATION Custodial torture and enforced disappearances are not mutually exclusive charges. Custody is a matter of fact and is not limited to formal or legal or acknowledged custody. A judicial or executive order of remand shall of course be proof of custody.

7. No case of custodial torture or disappearance may be closed by the investigators as a case of ‘cross-fire’, ‘encounter’ or ‘attempted escape’ without scrutiny by a magistrate in an open process in which the family or representatives of the victim shall be heard. The argument of an attempted escape may only be treated as a ground of defence to be raised at the trial or an inquiry. 8. All cases of alleged ‘encounters’ or ‘cross-fire deaths’ shall be subjected to a magisterial inquiry carried out in accordance with the procedure such as the one prescribed by the NHRC of India. 9. In the case of jails or other institutions of protective custody, any valid order of remand to such an institution shall be proof of custody.

Procedural Law Immunity Provisions Must Be Abolished in Prosecutions for Custodial Offences 1. When custody is established, a prosecution for enforced disappearance, custodial homicide, rape or grievous hurt shall not require a prior sanction to prosecute. 2. Army personnel shall be tried by regular courts for custodial offences. 3. Custodial offences shall be investigated by an entirely independent branch, whose officials shall not be drawn or sent on deputation to the normal police agencies. 4. All institutions receiving complaints of custodial offences of enforced disappearances and torture shall forthwith forward these to the special agency to investigate and prosecute these offences.

Monetary Compensation for Custodial Torture and Enforced Disappearances All States shall enact a law for compensating victims of torture and enforced disappearances. Upon a prima facie case of (a) custody and (b)

injury, death, rape or disappearance during custody, an interim compensation—like a no-fault compensation as is done in accident cases— of a minimum sum should be awarded and paid to the victim or the next of kin, even without an application. The magistrate before whom the complaint/FIR is processed should make an award instantly and may also be empowered to grant further compensation after detailed adjudication. The magistrate should be mandated to order the independent investigating agency—to which reference has been made above—to produce the victim or next of kin so that the interim compensation may be paid in the presence of the magistrate. Further proceedings for adjudicating the final compensation can take place independent of the criminal trial of the offence. This would shorten the process and ease the burden of the victim/family. There should be no upper limit for the final compensation. The State may be entitled to recover the whole or the part from the guilty officials. A schedule of the kin entitled to receive compensation could be drawn up—as is done in cases of motor accidents.

Legislation on Other Aspects of Reparation The NHRC of India has, recently, directed physical and psychological rehabilitation at state expense for victims of gross state violence in Punjab. Victims of torture should be enabled to access counselling as well as medical treatment by the trial magistrate along with the payment of interim compensation. A panel of doctors and experts in psychology should be constituted for this purpose by the government in consultation with the Human Rights Commission and civil society groups.

Important Changes to Be Made in the Law of Evidence to Rule Out Confessions Made to Investigating Agencies The law of evidence must firmly rule out custodial extra-judicial confessions. Nepal permits these. By law, all confessions made to or while in the custody of the police—other than confessions recorded by magistrates—should be ruled out of evidence.

Enabling Administrative Provisions Every district should have a 24-hour custodial violence prevention cell, which should be open and accessible round the clock with a mechanism to receive complaints manually and electronically and issue an acknowledgement for the complaints so received. These cells should form part of an independent agency set up to investigate custodial violence/enforced disappearances/illegal detentions. Concurrently, an independent visitors committee should be set up for each district with powers to enter any place including lock-ups and jails. Telephonic complaints should be recorded, as is done in many call centres. These cells should be linked to District Visitors Committees as well as State and NHRCs and police stations. Complaints to the cell or to any other government agency should be copied immediately to the Independent investigating agency/cell. The complaints received should be open to inspection by members of the public and a monthly report on complaints received and the action taken should be sent to the State and National Human Rights Commissions (NHRCs) or, in countries where these institutions are not present, to the Registrar/or Administrative Head of the District Court.

Medical Examination of Persons in Custody Pursuant to Supreme Court guidelines and amendments to the Code of Criminal Procedure (CrPc), a medical examination every 48 hours is mandatory for persons in police custody in India. Nepal, Bangladesh, Pakistan, Sri Lanka and Afghanistan must enact similar provisions. The problem, however, is that medical officers often alter/tamper with reports to protect the police. A person close to the detainee and social service agencies, as may by rules be named, should be permitted to be present during medical examination. Members of the District Visitors Committee should be empowered to make surprise visits during medical examinations. The Independent Investigating Agency should also be

permitted full access to medical centres that would be conducting periodic medical examinations.

Enabling the Magistrates The law as it stands entrusts the magistrates with the duty of ensuring custodial justice. In practice, this is most often observed in the breach. It is not legislation, but a work ethic that will rouse magistrates to their duties in this regard. The strategies involved would, therefore, have to be persuasive. All South Asian countries have laws that require an arrested person to be produced before a judicial magistrate, who is tasked with assessing the need for further custody. During this process the magistrate has a duty to inquire from the detainee whether there has been any maltreatment, which is most often not done. The magistrate should also inquire whether the detainee has legal assistance. In India and Afghanistan, the detainee’s lawyer is permitted to be present for part of the interrogation. It would be useful to attach law interns or paralegals to magistrates’ courts to observe the manner in which such cases are dealt. During the training of magistrates, it should be reiterated that a private interaction with the detainee is a necessary component of their duties. Every time the detainee is produced, the magistrate should examine the medical reports and refer the case for interim compensation if there is any trace of injury. This culture can only be persuasively introduced. The NHRCs could conduct periodic reviews of remand reports to ascertain the manner in which magistrates have assessed the treatment of suspects and how complaints of mistreatment have been handled.

Police Authorities District police heads should mandatorily send ‘custodial check reports’ to the District Judge and/or the State (Provincial) and NHRC. The report should contain complete details of administrative action taken against officials accused of custodial abuse. Such reports should be open to public scrutiny.

Any complaint of torture or other custodial abuse received by any member of the police force should immediately be forwarded to the Independent Investigating Agency.

Review Mechanisms The NHRCs or any other designated agency should, every six months, review the magistrates’ remand reports, the records of administrative action against custodial abuse, medical check-ups of prisoners, jail visitors’ reports and the manner of dealing with complaints and cases of disappearances and torture generally. These reports should form part of the country submissions to the UN.

Civil Society Initiatives Local Law Schools Civil society groups should send interns daily to observe the magistracy, and to assist the District Custodial Complaint Cells. There should also be interaction with police stations. The presence of civil society and the interaction often infuses into institutions an easier acceptance of human rights norms. If done as a project, in time, these simple checking actions, done in a friendly spirit, could engender a human rights discipline in their working methods and practice.

Other Strategies Media strategies should be evolved imaginatively to alter the self-image of policing institutions and officials. The discursive management of the morale of law enforcement agencies to engender support for custodial brutality has to be countered by an equal and opposite discourse. The cowardice involved in being brutal to those who are helpless in custody should be

imaginatively projected, which would involve enlisting the assistance of communication experts. Edward Said may be usefully quoted here: For the intellectual, to be ‘for’ human rights means, in effect, to be willing to venture interpretations of those rights in the same place and with the same language employed by the dominant power, to dispute its hierarchy and methods, to elucidate what it has hidden, to pronounce what it has silenced or rendered unpronounceable.

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Index

Abdali, Ahmad Shah, 370, 372, 373 abetment, prosecutions for, 73 abolition of torture in Europe, xxxv–xxxvii in subcontinental context, xxxvii–xxxviii Abu Ghraib prison, xl, 144 Advisory Council of Muslim Ideology, 175 Afghanistan, xli–xliii Abdali, Ahmad Shah, 370, 372, 373 Afghan Social Democratic Party (ASDP), 385 Amanullah (1919–1929), 379–381, 382 challenges to constitutionalism (1920–1978), 378–379 CIA operations in, 394 civil disturbances, 390 Constitutional Drafting Commission, 406 Constitution of 1923, 379–381 1931, 382 1964, 383–386 criminal justice system, 411–418 custodial accountability, 365 custodial justice, 416 early history of, 365–369 Extraordinary Commission for National Reconciliation, 394 factional fights and civil war, 394, 396 Friendship, Treaty of (1921), 379 Frontier Crimes Regulations (FCR), xlii, 370, 376

Fundamental Principles, 388, 389 Geneva Accords, 395 ‘The Great Game’, 370, 374, 375, 378 Hindu influence, 368 human rights norms in, 399, 404–409 The Constitution, 404–409 Human Rights Commission, 409–410 international obligations, 409 violations, 400 Interim Criminal Procedure Code (2004), 411–418 Islamic Association (IA), 385 jirgas (tribal councils), 371, 373, 376, 380, 389, 413, 417 Joint Boundary Commission (1886), 375 Khadamat-e Etela’at-e Dawlati (KHAD), 390–393 KHAD-e-Nezami, 393 Law on Organisation and Jurisdiction of the Courts (2005), 407–408 Law on the Implementation of Sentences in the Prisons, 389 legal system, 378–379 Loya Jirga, 383, 386, 395, 404, 406 Maoist New Democratic Current (NDC-Eternal Flame), 385 Marxist People’s Democratic Party of Afghanistan (PDPA), 385, 387, 394 Military Revolutionary Courts, 388, 392 Ministry for the Enforcement of Virtue and Suppression of Vice, 397–398 Nadir Shah’s Constitution of 1931, 382 National Democratic Party, 382 Nizamnama, 379–381 Panchat, 381 Penal Code 1924–1925, 381 1976, 411–418 Pol-e-Charkhi prison, 391 Police Law, 411 private and tribal violence, in form of custom, 413–416 Provisional Constitution (1980), 388–389 Rahman, Amir Abdur, 372, 378–379 refugees, 395 religious learning, 416 Revolutionary Association of Women of Afghanistan (RAWA), 399, 403 Revolutionary Council, 386 rights of women, 386 Sharia law, 381

Soviet occupation, 370, 387–393 human rights during, 390–393 Special Revolutionary Court, 388–389, 392, 395 systems for protecting human rights, 365 territorial identity, 366 terror and counter terror, 394–396 1992–1996, 396 Taliban, 396–403 tribal identity, 367 US aid to Afgan rebels, 394 Wolesi Jirga, 383, 385, 407–408 Afghanistan (Louis Dupree), 376 Afghanistan Independent Human Rights Commission (AIHRC), 410, 417 Afghan Judicial Commission, 404 Afghan National Security Force (ANSF), 402 All-Pakistan Women’s Association, 211 Al-Qaeda, 135, 139, 400 Alston, Philip, 401 American Civil Liberties Union (ACLU), 402, 436 Amnesty International (AI), 185, 186n9, 238n3, 251n10, 306n18, 318, 387, 388n2, 390n8, 390n11, 390n13, 391–393, 392n17, 392n19, 392n22, 392n24, 393, 393n28, 395, 396n5, 398n9, 401, 401n16 Anderson, Lori, 318, 318n8 Anglo–Afghan War first (1838–1839), 374 second (1878), 375 third (1919), 379 Anglo–Persian Treaty (1814), 374 anticipatory bail, 41, 80 Asad, Talal, xxxvn1, xxxvi, xxxviii Asian Human Rights Commission (AHRC), 180, 200, 239 Ataturk, Kemal, 380 Auckland’s Folly, 374 Azad Kashmir, 168 Baburnama, 366n4, 369, 372 Bandarnaike, Sirimavo, 250–251 Bangladesh, Awami League party, 165, 215–217, 240 Bangladesh Jatiyobadi Dol (BNP), 216 case studies, 236–242

Clean Heart, Operation (2002), 236, 239 Commission of Inquiry, recommendations of, 231–232 constitutional framework, 220 Constitution of 1971, 215 criminal justice system, 233 criminal laws affecting custodial justice Anti-terror Legislations (2007–2010), 224–226 Bangladesh Penal Code (1860), 221, 230 Code of Criminal Procedure (1898), 221–223 Evidence Act (1872), 223 impunity provisions, 228 magisterial inquiry into custodial death, 221 Police Act (1976), 228 powers of arrest, 221 Prevention of Oppression of Women and Children Act (2000), 226–227 preventive detention laws, 223–224 special laws, 223–224 custodial torture, 220 directives for, 230 Law Commission’s recommendations, 232–234 Directorate General Forces Intelligence (DGFI), 236, 239–240 Emergency Powers Rules (EPR), 217, 225 fundamental rights, 220 habeas corpus, 236 international commitments, 219–220 martial law regime, 215–216, 218 military coup (1975), 215 National Human Rights Commission, 235 police custody, directives for, 229 Proclamation Order of Emergency, 224 Rakkhi Bahini (para-military force), 236 Rapid Action Battalion (RAB), 228, 236 Supreme Court Directives, 229–231 Baxi, Upendra, 4 Bhutto, Benazir, 172–174 Bhutto, Zulfiqar Ali, 165, 170–171 courts under, 184–186 Bin Laden, Osama, 400 Birendra, King, 297–298, 300 blasphemy, 175–176, 178 blood money, 176

Bonn Agreement (2001), 381n4, 404 Border Security Force (BSF), India, 28, 145 Brain Electrical Activation Profile, 63 brain mapping, 136 British India, xli, xlii, 165, 221, 375–377 campaign against torture, xxviii, xxix, 419 capital punishment, abolishment of, 299, 303 Central Board of Excise and Customs, India, 27 Central Paramilitary Forces (CPMF), India, 28 Centre for Victims of Torture (CVICT), Nepal, xxxii, 325 Chabbisi, 295 charge sheet, 27, 44, 103, 107, 124, 206, 328, 331 chemical-induced truth testing, xxviii, 62, 136 Chowdhry, Rabia, 180–183, 206, 207, 209 ‘civil commotion,’ crime of, 190–191 Civil Monitoring Commission, 287, 288 civil society organisation, 67 Clean Heart, Operation (2002), 228, 236, 239 Coalition to Stop the Use of Child Soldiers, 289 command responsibility, xxvi, xxviii, 25, 58, 61, 73, 85, 87, 111, 208, 220, 254, 257, 278, 280, 303, 306, 307, 317, 420 confessions in age of terror, 54–58 bar against, 33–35 custodial, 41 made to investigating agencies, 424 mens rea to extort, 49 voluntary, 63 confidence building measures (CBM), 130 Consortium for Assisting Prisoners (CAP), 330 corruption and torture, of the poor in jail, 210–211 counter-insurgency operations, 5 Court of Appeal of the United Kingdom, xxvii, 253, 267, 268, 406 criminal justice system, xxix, 119, 124, 128, 138, 229, 233, 248, 268, 320, 357 brain mapping and narco-analysis, 136 criminal liability, 48–49, 58, 65, 220, 227, 420 culpable homicide, 50, 54, 69, 74, 76, 84–85, 89, 105, 108, 111, 272n23, 421 custodial check reports, 425 custodial deaths, xxviii, 21–22, 32, 49, 61, 68, 102, 104, 107, 117, 123, 223, 227 burden of explanation, 65, 66

legal rights, 67 NHRC guidelines on, 43n50 custodial extra-judicial confessions, 424 custodial offences, 66, 226 burden of proof in, 32–33, 232–234 investigating mechanism for, 62 prosecutions for, 422–423 custodial torture, xxv–xxvi, xxviii, xxxviii, 4–6, 71, 159, 203–205, 206, 220, 230, 271, 393. See also custodial deaths abolition of. See abolition of torture and administrative liability, 420–421 administrative provisions, 424 case studies, 332–355 civil society initiatives against, 426 consequences of criminalising, 48–51 during counter-insurgency operations, 5 definition of, xlvi–xlvii evidentiary issues, 72 to extort confessions, 50 extra-judicial killing, 5n12, 25 forms of, 31–32 immunity provisions, abolishment for, 422–423 international regime on, xlv–xlix magisterial inquiry, 43, 195 monetary compensation for, 423 penal provision for, 420 perspectives on, 114–136 remedies for, 49 review mechanisms, 426 safeguard against, 19, 36–37 and third-degree methods, 18 custody kinds of, 26–27 meaning of, 26–28 de Almeida, Lourenco, 247 default bail, 27 Defence of Human Rights and Public Services, 192 Directorate of Enforcement, India, 27 disappearance of torture, as public spectacle, xxxv–xxxvii Discipline and Punish (Michel Foucault), xxxv

District Custodial Complaint Cells, 426 Diyat, 176, 413 Dostum, Abdul Rashid, 396, 399 Dupree, Louis, 370, 372, 375–376, 378, 384 Durand Line, 370, 374n4, 375, 376, 379, 380, 400 Dutch East India Company, 247–248 East India Company, xxxix, 4 Eelam People’s Democratic Party (EPDP), 289 Emergency of 1975, India, xliii, 19 encounter, 5, 5n12, 11, 86, 117–119, 131, 138, 139, 150, 241, 422 Enduring Freedom, Operation (OEF), 400, 401 enforced disappearance, xxvii, xlviii–xlix, 25, 50, 88, 181, 192, 211, 283, 306, 309–311, 314, 321, 327, 331, 393, 419, 424 monetary compensation for, 423 penal provisions on, 421–422 in Sri Lanka, 286–291 equality, principles of, 17 Ershad, Hussain Muhammad, 216–218 Eteraz, Ali, 179 Etling, Bruce, 378, 378n1, 381, 413–414 European Court of Human Rights, xxxvii fatwas, 398 Federal Court of Australia (FCA), xxvii Federally Administered Tribal Areas (FATA), 168–169 figh, 381 First Information Report (FIR), 42, 44, 148, 199, 237, 345 FOHRID (human rights organisation), xxxii, 298, 311, 324, 329, 331, 335, 347, 352, 354, 356 Foucault, Michel, xxxv Fraser-Tytler, W. F., 368, 372, 377 Free Media Movement, 287 Friendship, Treaty of (1921), 379 Frontier Crimes Regulations (FCR), xlii, 168, 370, 376 Gandamak, Treaty of (1879), 375 Ghazni, Mahmoud, 366n4, 368–369, 372 Ghori, Mohammed, 369, 372 Ghosh, Shrimoyee Nandini, xxvi Gorbachev, Mikhail, 394 Government of India Act (1935), 165

Grama Seva Niladharis, 270, 270n8 Gyanendra, King, 300–301, 318–319 habeas corpus, writ of, 22, 24, 27, 83, 108, 151, 185, 236, 302 Hanafi law, 381, 382, 384, 386, 405, 413 Hanafi School of Islamic jurisprudence, 386 Hasina, Sheikh, 216–217, 226, 242 Hekmatyar, Gulbuddin, 396, 400n15 Hezb-e-Islami, 396, 400n15 homicide, 48, 75–77, 80, 81, 94, 101, 176, 194, 220, 295, 309, 311, 315, 316, 321, 331, 420–421 categories of, 190 culpable, 50, 54, 69, 74, 84, 85, 89, 105, 108, 111 in custody, 317, 422 penalisation of, xxvi honour killings, 176 Hudood (religious injunction), 175–179, 211, 381, 397, 413 Hudood-ul-Alam, 366n4 Huen Tsang, 368 Human Rights Commission of Pakistan (HRCP), xxvii, 168, 169, 177, 181, 192, 194, 209–211 Human Rights Courts (HRCs), 10 Human rights, definition of, 10 Human Rights Officer (HRO), 208–209 Human Rights Treaty Monitoring Coordination Committee (HRTMCC), 354, 355 Human Rights Watch, 240, 286–289, 314, 387 immunity, from prosecution, 52–53 Independent Commission for Oversight of the Implementation of the Constitution (ICOIC), 408–409 India, All India Committee on Jail Reforms (1980–1983), 45–46 All India Jail Manual, 45 case studies Geelani, S.A.R., 137–147 Kokila and Sunny, story of, 156–159 life and death of a sikh priest, 149–153 Nazneen Bibi, story of, 159–162 Ramesh’s story, 148–149 Sarita’s story, 154–156 command irresponsibility, 58 criminalising torture, consequences of, 48–51 custodial violence, 4–6 safeguards against, 19, 36–37

fundamental rights, 17–19, 65 compensation for infringement of, 21 Presidential Proclamation, 19 Gujarat violence cases (2002), 13 Habeas Corpus case, 19–20, 66 Human Rights Courts (HRCs), 10 international law obligations Geneva Conventions Act (1960), 9 judicial recognition of, 10–13 legislative enactments, 9–10 Protection of Human Rights Act (1993), 10 Jail Reform Committee, 46 judicial trends in, 64 abetment and command responsibility, 73 burden on the victim, 67–68 evidence, 72 investigative/judicial machinery, 71 offences charged, 69–70 operative directions issued/not issued, 70 principles, 65 protection of police, 72–73 technicalities in the law, 65–66 victim-centric relief, 68–69 Law Commission’s recommendation, 32, 59, 61, 70 legislating impunity, 58–59 magistracy checking the police record, 41–42 limits of magisterial powers, 42 magistrate’s enabling powers, 40–41 mandatory magisterial functions, 39–40 monetary compensation, to torture victims, 14 Mumbai attacks (2008), 58 National Committee to Review the Working of the Constitution (2002), 12 National Human Rights Commission (NHRC), 4–5, 10, 37, 43, 70, 123 ‘An Outline of the Indian Prison Bill, 1996’, 46 guidelines on custodial death and rape, 43n50 police officers, criminal proceedings against, 54 police powers and its limits powers, 37–38 restrictions, 38–39 police statutes, 43–44

service misconduct, 44 Prevention of Torture Bill (2010), 14, 47, 51, 58, 60–63 prison acts and jail manuals, 44–46 Prisoners Act (1900), 44 Prisons Act (1894), 44–46 public perception of justice, 3 Rajya Sabha Select Committee, 14, 33, 51, 58, 60–62, 72 responses to international human rights norms, 13–16 revolt of 1857, xlii right to compensation, 21–24, 68 judicial remedy, 20 self-incrimination, 65 sanctions and immunity provisions, 51–52 immunity from prosecution, 52–53 social and political institutions, 3 State Human Rights Commissions (SHRCs), 10 statutes of limitation and other legislative exceptions, 53–54 Torture Commission Report (1855), 4 Truth and Reconciliation Commission, 135 writ directions, for constitution and custodial rights, 24–25 Indian Peace Keeping Force (IPKF), 116–117, 251 Intelligence Bureau (IB), 125, 129, 139 International Commission of Jurists (ICJ), 188 International Committee of the Red Cross (ICRC), 288, 319 International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, 290 International Criminal Court (ICC), xxvii, 409, 419 International Independent Group of Eminent Persons (IIGEP), 287, 291 International Security Assistance Force (ISAF), 401, 403 Islamic law, codification of, 381 Islamic terrorism, 59 Jahangir, Asma, 177, 178, 178n13, 206 Janatha Vimukthi Peramuna (JVP), 250–251 Jayawardene, Kishali, 280 jirgas (tribal councils), 371, 373, 376, 380, 382, 389, 413, 417 judicial custody, 4, 27, 43, 57, 109, 112, 122, 194, 198, 222, 231, 271, 317 Judicial Services Disciplinary Board (JSDB), 249 Kaarthikeyan, D.R., 115–124

Karzai, Hamid, xxxii, 400, 404, 407–409 Kennedy, Charles, 179 Khadamat-e Etela’at-e Dawlati (KHAD), 390–393 KHAD-e-Nezami, 393 Khan, Ayub, 165 Khan, Chengiz, 369 Khan, Mohammed Daoud, 382–383, 386, 389, 416 Khan, Yahya, 165 khap panchayats, 417 Khyber Pakhtunkhwa, 168, 180–181, 370, 375, 382 Koirala, B. P., 296–297 ‘Kot massacre’ of 1846, 295–296 Law & Society Trust (LST), 287 Lesbian, Gay, Bisexual and Transgendered (LGBT) persons, rights of, 68–69 Liberation Tigers of Tamil Eelam (LTTE), 117, 122, 251, 264, 289 Lodhi, Maleeha, 185 Lok Adalat, 69 madrassa, 382, 396 Madras Torture Commission (1855), xxxviii–xli, 296 magistrates, duty to ensure custodial justice, 425 Mahendra, King, 296, 297 Maina Sunuwar case, 311–314, 328, 331 mandamus, writ of, 25, 167, 313, 328, 331 Massoud, Ahmed Shah, 396, 399–400 mens rea to extort a confession, 49–50, 69 and police brutality, 50 Metcalf, Thomas, xxxviii military custody, 23, 27, 65, 309, 314 of military personnel, 28 Mohammed, Dost, 373–375, 378 Montagu–Chelmsford Reforms (1919), 376 Moschtagi, Ramin, 381 Mujahideen, 370, 394–397 Mulla, A.N., 45 Muluki Ain (National Code) of 1854, 295–296 Musharraf, Pervez, 172–174, 181, 187, 191 doctrine of necessity, 173 Legal Framework Order, 174

Nair, Ravi, 4 Najibullah, Dr., 390, 394–397 Narayan Shah, Prithvi, 295 narco-analysis and chemical testing, xxviii, 136 Narcotics Control Bureau, India, 27 National Legal Aid Network (NaLAN), 330 Naxalism, 5, 28, 121 Nepal, xli–xliii Agreement on the ‘Monitoring of Arms and Army Management’, 308 capital punishment, abolishment of, 303 case studies, Chitwan National Park incident, 332–338 custodial death, 353–355 juveniles tortured by the police, 343–345 Kalpana Bhandari case, 345–351 Pradeep Khadka case, 338–342 Suni, case of, 351–353 Centre for Legal Research and Resource Development (CeLRRd), 329 Chabbisi, 295 codification of laws, xlii Commission for Investigation of Abuse of Authority, 307 Commission of Inquiry into Disappearances, 306 Communist Party of Nepal–Maoist (CPN–M), 300 Constitution of 1990, 299–302 Constitution Reform Commission, 297 courts and custodial justice National Human Rights Commission, 328–331 Supreme Court, 326–328 Delhi Compromise, 296 Directive Principles of State Policy, 304, 305 habeas corpus, 301–305, 318, 327 Hindu monarchy, 295 Informal Sector Service Centre (INSEC), 302 Interim Constitution, accountability under, 296 command responsibility, recognition of, 306–307 custodial accountability, 306–307 fundamental rights, 303–305 pledge against impunity, 305–306 rule against torture, 305 Judicial Council, 299

Judicial Services Commission, 299 ‘Kot massacre’ of 1846, 295–296 law enforcers, interviews with, 356–362 legal framework criminal law and law of evidence, 315–316 Draft Criminal Code, 316–317 Evidence Act (1974), 320 immunity to state agents, 321 Police Act (1955), 321 preventive detention and terrorism laws, 318–320 Prison Act (1963), 317 Prison Rules (1964), 317 State Cases Act (1992), 317–318 Torture Compensation Act (1996), 322–325 Maina Sunuwar case, 311–314, 328, 331 Military Act (2006), 308–311, 331 Military Court, 308 Muluki Ain (National Code) of 1854, 295–296 1964, 297, 315 National Code of 1964 and other penal laws, 315–316 National Defence Council, 309 National Human Rights Commission (NHRC), 306–307, 319, 320, 328–331 National Panchayat, 296 Nyayashastra, 295 Office of the Attorney General, 307 parliamentary democracy, 299 people arrested/tortured by state authorities, 330 perpetrators of torture cases, categories of, 330 preventive detention, power of, 304 Public Interest Litigation (PIL), 327 Royal Commission for Corruption Control (RCCC), 319 Royal Constitution, 296 sanctions imposed on military personnel for custodial deaths, 312 Seven Party Alliance (SPA), 301, 308 system of justice, 299 torture and enforced disappearances, cases of, 310–311 wrongful arrest, compensation for, 304 Nepali Congress, 296–297, 349 Nolan Commission, 123 non-bailable offence, 40, 196, 201

non-governmental organisation (NGO), xxvii, 93, 193, 209, 211, 236, 329, 360, 412 North Atlantic Treaty Organisation (NATO), xlii, 371, 399, 401, 417 Northern Alliance, 399–400 North-West Frontier Province (NWFP). See Khyber Pakhtunkhwa Nyayashastra, 295 Odhikar (human rights organisation), 226, 242 Omar, Mullah, 397–398 Oriental Despotism, notion of, xxxviii Other Government Agencies (OGAs), 401 Pakistan action against errant officials administrative action, The Police Order (2002), 207 good exceptions, 208 Human Rights Officer (HRO), 208–209 prosecutions, 206–207 Advisory Council of Muslim Ideology, 175 Anti-Terrorist Courts (ATCs), 191 anti-terrorist law, 170 Bhutto and the Zia regimes, 170–171 blasphemy law, 176, 178 Chief Martial Law Administrator (CMLA), 171 Code of Criminal Procedure (1898), 194–195 constitution after Zia-ul-Haq, 172–174 Constitution of 1973, 166–167 amendments, 169–170, 172, 174 working of, 168–170 corruption and torture of the poor in jail, 210–211 court directives, on custodial accountability, 195–196 courts and anti-terrorism legislation, 189–192 courts under Bhutto, Zulfiqar Ali, 184–186 Zia-ul-Haq, 186–188 crime of ‘civil commotion’, 190 criminal laws, substantive and procedural, 193–195 Enforced Disappearances Case, 192 Federal Shariat Court, 175–176, 178–179 Frontier Crimes Regulations (1901), xlii, 168, 370, 376 fundamental rights, 166, 167, 171, 186 Hudood Ordinances, 175, 177–178, 211

human rights abuses, 178 immunity provisions and impunity, 199–200 initial years, 165–166 international commitments, 193 Inter Services Intelligence (ISI), 192 Juvenile Justice System Ordinance (2000), 201–205 Law and Justice Commission, 176 amendment of section 167, 197–198 recommendation, 196–198 Law of Evidence, 194–195 magisterial inquiry, into deaths in police custody, 195 martial law, 165, 179, 185 Regulation No. 77, 187 military courts and tribunals, 169, 171, 190 necessity, doctrine of, 173, 179–180 Pakistan Penal Code (1860), 194–195 personal laws of non-Muslims, 176 Political Agent, 168 Prison Laws, 209–210 Provisional Constitutional Order (PCO, 1981), 171 Qanoon-e-Shahadat Order (1984), 194–195 Qisas and Diyat Ordinance (1990), 176 quality of life, 167 Rabia Chowdhry’s report on military excesses, 180–183 recent initiatives of the judiciary, 192 Special Appellate Tribunal, 189 Special Courts, 173 Special Sharia Benches Order (1979), 175 stoning and whipping, punishments of, 179 Suppression of Terrorist Activities Ordinance (1975), 170 terror legislations of, 189–190 torture and denial of fair trial, 188 tribal areas of, 168–169 Whipping Ordinance, 175 Zina (Enforcement of Hudood) Ordinance (1979), 176, 179 Pakistan Women Lawyers’ Association, 211 Pak-occupied Kashmir (POK), 168 Panchat, 381 Patwardhan, Anahita Rao, xxvi Peoples Union for Democratic Rights (PUDR), 46 persons in custody, medical examination of, 424–425

police authorities, 99, 353, 361, 425–426 police custody, 26, 42 criminal cases of ‘disappearances’ in, 66 police torture. See custodial torture post-conviction custody, 27 Post Traumatic Stress Disorder (PTSD), 134 pre-conviction ‘custody’, 26 Presidential Finding, 394 Prevention of Torture Bill (2010), India, 14, 33, 47, 51, 58, 60–63 preventive detention, 13, 20, 27, 47, 166, 168–170, 187, 191, 221, 223–226, 229, 263, 265, 266, 304, 318–320, 376 private and tribal violence, in form of custom, 413–416 protective custody, 27, 422 Public Interest Litigation (PIL), 70, 121, 253, 327 public servant, 10, 29n15, 32, 51, 54, 59, 61, 75, 105, 123, 221, 228, 263, 268, 272, 411 Qisas, 176, 397, 413 Rabbani, Burhanuddin, 396 Rahman, Amir Abdur, 372, 378–379, 415 Rahman, Sheikh Mujibur, 165, 215 Rajapakse, Mahinda, 287 rape, custodial, 28–30, 32, 43–44, 71, 73, 205, 220, 269 NHRC guidelines on, 43n50 punishment for, xxvii rehabilitation at state expense, 423 Rejali, Darius, xxxvi religious fundamentalism, xxvii, 122, 399 religious learning, 416 reparative jurisprudence, 23 Reporters Sans Frontièrs (RSF), 183 Research and Analysis Wing (RAW), xxxii, 125–127, 141 review mechanisms, 426 Revolutionary Association of Women of Afghanistan (RAWA), 399, 403, 418 riasats, 393 Royal Nepalese Army (RNA), 308, 311, 320 Russian Revolution (1917), 379, 380 St. Petersburg, Treaty of (1907), 377 Salwa Judum, 121 Sarin, Alok, xxxii, 63, 133–136

Seraj-ul-Akhbar (newspaper), 379 Seven Party Alliance (SPA), 301, 308 sexual abuse, 158, 206, 209, 351 Shah, A. P., 68 Shah, Nadir, 373 Sharia law, 381, 397–398, 415, 417 Sharif, Nawaz, 172–173, 189, 191 Shia law, 404 Singh, Amrit, 402 siyasa, 381 solitary confinement, punishment of, 45–46, 78, 167, 206, 234 Sood, Vikram, 124–133 South Asian Association for Regional Cooperation (SAARC), 419, 421 South Asians for Human Rights (SAHR), 180, 311n10 sovereign immunity, doctrine of, 21 Soviet Union, 380, 386 Afghanistan, occupation of, 370, 387–393 Friendship, Treaty of (1921), 379 Sri Lanka abuse of force by public servant, 268 Bindunuweva massacre case, 259 Buddha Sasana, 249 Ceasefire Agreement (CFA) with LTTE, 264 civil liberties, curtailment of, 251 Civil Monitoring Committee, 288 Coalition to Stop the Use of Child Soldiers, 289 Constitution of, 252–260 Criminal Intelligence Department (CID), 278 criminal justice system Code of Criminal Procedure (Special Provisions) Act (2007), 272–273 Criminal Procedure (1979), 269–273 Departmental Standing Order (1956), 274 Evidence Ordinance (1885), 273 medical examination of the accused, 272–273 Prisons Ordinance No. 16 (1877), 273–274 Sri Lanka Penal Code (1833), 268–269 custodial torture, 271 emergency powers, 260–267 Emergency (Miscellaneous Provisions and Powers) Regulations (2005), 262–264, 288 Prevention of Terrorism Act (1979), 264–267 enforced disappearances, 286–291

ethnic distinction, 247 ethnic strife, 251 fundamental rights, 252–254, 259–260 Grama Seva Niladharis, 270 habeas corpus, 265 history and politics, 247–251 Indian Peace Keeping Force (IPKF), 251 international law Anti-Torture Act (1994), 277–281 Human Rights Commission of Sri Lanka Act (1996), 281–283 implementation of, 276–277 obligations under, 275–276 Police Ordinance (1865), 283 Presidential Directives, 283–284 international monitoring agencies, 284–285 Judicial Service Commission (JSC), 249 Judicial Services Advisory Board (JSAB), 249 Liberation Tigers of Tamil Eelam (LTTE), 117, 251, 264, 289 National Human Rights Commission (NHRC), 276 Privy Council, 250 Prosecution of Torture Perpetrators Unit, 276 public interest litigation, 253 Public Security Ordinance (PSO), 260–262 Roman–Dutch law, 248 Special Investigations Unit, 276 Tamil movement, 251 Tamil settlements, 247 Thesawalamai, 248 Udalagama Commission, 287, 291 victims of torture, scheme to protect and assist, 258 Sri Lanka Monitoring Mission (SLMM), 288 Stephen, James Fitzjames, 273 Survival, Evasion, Resistance, and Escape (SERE) techniques, 402 Taliban, 193, 368n11, 370, 394, 396–403, 414, 417 Taraki, Nur Muhammad, 386, 387, 388 Tarzi, Mahmud, 379 Ta’zeeri, 413 tazir (secular punishment), 175, 381 Tilsit, Treaty of (1807), 374 Torture Commission Report (1855), India, 4

torture, definition of, 60–61 Tribhuvan, King, 296 Turkish Caliphate, abolition of, 379 Twin Towers, attack on, 399, 400 Udalagama Commission, 287, 291 ulemas, 378–379, 381, 388 ‘under-trial’ custody, 26–27 United Nations Development Programmes (UNDP), 370, 413 United Nations High Commissioner for Refugees (UNHCR), 390 United Nations Standard Minimum Rules for the Treatment of Prisoners, 273 University Teachers for Human Rights (Jaffna), 287 Unrepresented Nations and Peoples Organization (UNPO), 182 UN Special Rapporteur on Torture, 15–16, 320 UN Working Group on Disappearances, 318–319 Vercher, Antonio, xxxvii vicarious liability, principles of, xxvi, 58, 227, 254 voluntarily causing hurt, 31 war against terror, 5, 54, 181 Women’s Action Forum, 211 wrongful confinement, xli, 31, 76–77, 95, 221 Yousuf, Mohammed, 383–384 Zia, Khaleda, 216 Zia-ul-Haq, General, 170–171, 185 courts under, 186–188 Hudood Ordinances, 175 Pakistan’s constitution after, 172–174 Presidential Order (1979), 187 Provisional Constitutional Order (1981), 187

About the Author

Nitya Ramakrishnan is a well-known lawyer practising in New Delhi, India. She has many terror trial defences to her credit, notably the Indian Parliament Attack Case and the Haren Pandya Murder Case. Also reputed for her media-related cases, Ramakrishnan successfully challenged the censorship imposed on many political documentaries such as Bhopal— Beyond Genocide and Punjab—From Behind the Barricades.