Ref. No.

Date: 26 June, 2009

Statement of BHRPC on the International Anti-Torture Day

Barak Human Rights Protection Committee (BHRPC), a human rights organization working
in Assam, today on the occasion of International Anti-Torture Day has written a letter to the
Prime Minister of India bringing briefly into his notice the torture situation in India and the
measures needed to be taken to combat and eradicate this systematic barbarism and
inhumanity.

BHRPC has reiterated its conviction that torture is deliberate cruelty, a crude and ancient tool
of political oppression. It is commonly used to terrorize people, or to wring confessions out
of suspected criminals who may or may not be guilty. It is the classic shortcut for a lazy or
incompetent investigator.

The letter states, torture destroys the physical and mental integrity of the victim to its core. It
also dehumanizes the performer and thus irreparable damages done to men, women and
children, families and communities. It prevents societies from nurturing the human and
economic development that is a right for all people.

Torture is now absolutely and without any reservation prohibited under international law,
whether in time of peace or of war. The prohibition of torture can be considered to belong to
the rules of jus cogens. If ever a phenomenon was outlawed unreservedly and unequivocally
it is torture.

It is also prohibited in India mainly by Article 21 of the Constitution, section 330 and 331 of
the Indian Penal Code (IPC), 1860 and other laws and also strongly condemned by the
Supreme Court of India and High Courts in a number of landmark cases like D. K. Basu Vs.
State of West Bengal.

The laws that virtually make confession to a police officer inadmissible as a piece of
evidence in a court of law such as Article 20 (3) of the Constitution, sections 25, 26 and 27 of
the Indian Evidence Act, 1872 and sections 161, 162, 163 and 164 of the Criminal Procedure
Code (CrPC), 1973 are rooted in the apprehension that police may subject the accused to
torture to extract confession. It is a constitutional and statutory recognition that police may
resort to torture and ill treatment.

The constitutional and statutory concern and mistrust of its own police and security forces is
based on the experience of decades and find strong echo in judicial pronouncements. In
Niranjan Singh v. Prabhakar Rajaram (AIR 1980 SC 785) the Supreme Court emphatically
observed that, “The police instead of being protector of law, have become engineer of terror
and panic putting people into fear.”

BHRPC is aware that there are no accurate data on the use of torture in India since the
Government does not have an unambiguous and strong policy against torture. The National
Human Rights Commission (NHRC) gathers figures on custodial deaths. But only a limited
number of cases of torture results in death. Moreover, cause of death in the custody may not
always be torture.

BHRPC relies on the Human rights groups with great credentials who maintain that torture is
integral to counterinsurgency operations conducted by the military. Torture is used routinely
in police custody. While torture is applied less systematically by prison officials, they remain
often complicit in gang violence among inmates. Torture is also almost always resorted to by
the Armed Opposition Groups. Torture is committed by the individuals or groups belonging
to upper strata of the society upon the socially lower class people. Sometimes community
organizations also resort to torture. Women and children are most vulnerable victims of
regular torture in the form of domestic, sexual and other violence.

Any official denials of this level of torture should be balanced against the view of the
Supreme Court of India that has pointed out that the police ‘more often than not seek to
pervert the truth’. —State of Madhya Pradesh v. Shyam Sunder Trivedi and Ors. 1995 (4)
SCC 262.

In the Unstarred Question No. 568, answered on 22.10.2008 in the Rajya Sabha it is stated
that four persons died or had been killed in prison and police custody every day during the
period between 2002-07 and as many as 7468 custodial deaths have occurred in the period
but only a fraction are convicted for it.

Based on data provided by the NHRC the Asian Centre for Human Rights states in its report
titled ‘TORTURE IN INDIA 2008: A State of Denial’ that about 1500 persons die in custody
of the State each year. Only 4 police personnel were convicted in 2004 and 3 in 2005. In
2004, 37 personnel were charge sheeted and 25 personnel were charge-sheeted in 2005 for
custodial death and other criminal offences. Impunity for these custodial crimes stands
exposed from the accepted number of custodial deaths, compensation granted by the NHRC
and courts based on the evidence, and the lack of corresponding prosecution of the guilty law
enforcement personnel.

There is no debate that the State is directly responsible for torture committed by its own
officials and it also can not shun responsibility of protecting the citizens from non-state
torturers and in cases of failure it has the obligation under international law as well as under
Article 21 of the Constitution to provide and enforce rights of the victim to remedies, justice
and truth including due punishment of violator. These figures point finger to a very grim state
of things.

BHRPC claims that the government of India practises double standard regarding torture and
argued that there are laws in India which encourage, condone torture and provide immunity
to the torturer. Section 4 (a) of the Armed Forces (Special Power) Act, 1958 empowers any
commissioned officer, warrant officer, non-commissioned officer or any other person of
equivalent rank in the armed force to ‘use force even to the causing of death’ against any
person and section 6 ensures immunity of such torturer. Sections 45 and 197 of CrPC also
guarantee such impunity.

These laws require prior permission of the government for the prosecution of security and
law enforcement personnel accused of torture. It is argued that these legal immunity and
protections are necessary to protect security forces and other law enforcement officials from
false, malicious, frivolous and vexatious litigations for actions taken in good faith. This
argument ignores that primarily it is the duty of the judiciary to see whether a complaint is
based on false facts or malicious, frivolous and vexatious. The usurpation of this duty from
the judiciary in this way amounts to statutory mistrust of the judiciary of the country.
Apart from this legal impunity, it is well known that there is a regime of de facto impunity for
the police and security forces. In a country where normally police demand bribes for
registering First Information Report it is almost impossible for the victims to get a case
registered in a police station against any member of the police or security forces and attempt
to do so often brings further suffering.

BHRPC also claims that this double standard of the government of India towards torture is
also evident from its attitude towards United Nations Human Rights Mechanism. India is a
party to the International Covenant on Civil and Political Rights but has a reservation on
Article 9, which, inter alia states that ‘anyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensation’. Reservation has been made on the
grounds that “under the Indian Legal System, there is no enforceable right to compensation
for persons claiming to be victims of unlawful arrest or detention against the State”.

Though the courts have regularly awarded compensation, there is no coherence to the awards,
the amount of compensation depending on individual judges. Nonetheless, Courts across
India continue to award compensation and prosecute the guilty law enforcement personnel.
Increasingly, the courts have been directing the State to recover compensation from guilty
personnel.

India signed the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) on 14 October, 1997. The government of India
stated “ratification of the Convention is to follow”. More than a decade has passed since the
signing of the Convention. Nepal and Sri Lanka have already ratified the CAT.

In its 2004-2005 Annual Report, the NHRC reported that the Ministry of Home Affairs
informed the NHRC that Inter-Ministerial Group consisting of the Ministry of External
Affairs, Ministry of Home Affairs and the Ministry of Law and Justice on the question of
early ratification of the CAT had been established. To date no recommendation has been
made public.

India has the dubious distinction of holding the record for refusing an invitation to the United
Nations Special Rapporteur on Torture, which it has refused since 1993. Pakistan (1997),
Nepal (September 2005), China (November 2005) and Sri Lanka (2007) have all invited the
Special Rapporteur.

This double standard can also be seen in the constitution as well as conduct of the NHRC.
The orders of the NHRC are not mandatory. They are just toothless recommendations.
Moreover, NHRC is barred under section 19 of the Protection of Human Rights Act, 1993 to
hold its own investigation into the cases involving armed forces.

NHRC has also developed a tendency to grant only monetary compensations ignoring its
mandate to recommend for the initiation of prosecution. More over, there is a more disturbing
aspect of NHRC’s conduct regarding torture cases. It has been seen that the NHRC has been
dismissing cases of torture where a prima facie case exists; and in dismissing the case the
NHRC has chosen to deny the complainants’ access to key evidence as well as denying the
complainant a hearing. Under Section 13 of the Human Rights Protection Act, NHRC has the
powers of a civil court for investigation purposes. Hence, NHRC is equivalent to a tribunal
and while adjudicating the cases, complainants have the statutory and constitutional right to
receive a copy of all the documents made available to the NHRC. The complainant has the
constitutional right to a hearing before the NHRC passes a final order. Sometimes these
aspects are totally ignored.

BHRC has submitted the following recommendations to the Prime Minister:

1. Enact a legislation to criminalise torture incorporating the provisions of the cat
including putting the onus of proving innocence on the State in all cases of crimes in custody
and provide compensation to the victims;

2. Repeal the Armed Forces (Special Powers) Act, 1958 and other laws providing
impunity including Sections 45 and 197 of the CrPC.

3. Amend the Human Rights Protection Act, 1993 to make its recommendation
mandatory and repeal section 19 in order to bring the armed forces under the purview of the
NHRC;

4. Ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) and its Optional Protocol;

5. Withdraw reservations to Articles 20, 21 and 22 of the CAT and Article 9 of the
International Covenant on Civil and Political Rights;

6. Cooperate with the United Nations and extend invitation to the UN Special
Rappoprteur on Torture whose request for visit has been pending since 1993.