National Human Rights Commission

Human Rights violation in Custodial Torture

Submitted By:

Avinash Rajput

M.A CRIMINOLOGY 3RD SEMESTER

LNJN NATIONAL INSTITUTE OF

CRIMINOLOGY AND FORENSIC SCIENCE.

GGSIP UNIVERSITY, DELHI

CONTENTS

1. Acknowledgement 2. Introduction3. Definition of torture4. Methods of torture5. Types of torture 6. Statistics of Custodial Deaths in India

7. legal framework related to torture 8. Institutions helping Torture Victimes

AcknowledgementAt the very outset I would like to express my deep gratitude and sincere

thanks to the National Human Rights Commission (NHRC) for giving me

an opportunity to do my internship.

I would like to extend my sincere thanks to Dr.S.K.Jain and Mr.Vinudev

Sachin for their help, support and guidance at every junction of the

preparation of this project. This project would not have been possible

without their help and knowledge.

I also want to take this opportunity to thank all the staffs of library and

other departments who helped in many ways. I also thank the other

staffs in NHRC who were co-operative.

I would also like to thank my fellow classmates, and fellow interns who

helped me in providing their views regarding the topic done in this

project.

The views expressed in this report are my own and cannot be attributed

to NHRC.

Avinash Rajput

IntroductionTorture is unfortunately an increasing problem throughout the world and, according to Amnesty International, government-sanctioned torture is verified in more than 100 countries. Torture is known to have longterm physical and psychological effects on the victims.

Torture is often used to punish, to obtain information or a confession, to take revenge on a person or persons or create terror and fear within a population. Some of the most common methods of physical torture include beating, electric shocks, stretching, submersion, suffocation, burns, rape and sexual assault.

Torture is a serious violation of human rights and is strictly prohibited by international law. It was one of the main issues which was covered by the United Nations. One of its earliest measures was to abolitish corporal punishment in colonial territories in 1949. International law prohibits torture and other forms of inhuman and degrading treatment, which cannot be accepted under any circumstances.

Torture continues to be practiced in a majority of countries round the world. A 2001 report by Amnesty International highlighted the use of torture by 140 states between 1997 and 2001, and found that every year thousands of perpetrators beat, rape and electrocute other human beings.

Torture has been used in most countries from time imme-morial. Its concept is based on two fundamental facts. First, that we all have imaginations, and secondly, that our bodies are susceptible to pain. In other words we can envisage what’s likely to happen, and we don’t like getting hurt.

Definition of TortureArticle 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides the internationally agreed legal definition of torture:

Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

This definition contains three cumulative elements:• the intentional infliction of severe mental or physical suffering• by a public official, who is directly or indirectly involved• for a specific purpose.

Article 2 of the The Inter-American Convention to Prevent and Punish Torture (1985) provides the definition of torture:

Torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

The World Medical Association in its "Declaration of Tokyo" (1975) defines torture as follows:

Torture is defined as the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason.

Article 3 of The Prevention of Torture Bill, 2010 defines torture as follows:

Whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act for the purposes to obtain from him or a third person such information or a confession which causes,—(i) grievous hurt to any person; or(ii) danger to life, limb or health (whether mental or physical) of any person,is said to inflict torture:Provided that nothing contained in this section shall apply to any pain, hurt or danger as aforementioned caused by any act, which is inflicted in accordance with any procedure established by law or justified by law.

International law defines that torture is "cruel, inhuman, or degrading treatment." In addition to the types of severe pain and suffering mentioned above, torture thus also includes being forced to stand spread eagled against the wall for hours; being subjected to bright lights or blindfolding; being subjected to continuous loud noise; being deprived of sleep, food or drink; being subjected to forced constant standing or crouching; or violent shaking.

Methods of TortureFollowing is a list of some common methods of torture. It would be impossible to create an exhaustive list all of methods of torture currently in use in the world. Torturers continue to develop new and more sophisticated methods of torture and ways to hide evidence of the torture.

Physical Torture

Blunt trauma: beating, punching, kicking, slapping, whipping, truncheons, falling down

Positional torture: forced body positions, suspension, stretching limbs, constraint of movement, binding

Crush injuries Burning: instruments, cigarettes, scalding liquid, caustic substance Stabbing with knife, cutting with knife Wires under nails, electric shock Mutilating body parts, traumatic removal of body parts Amputation of digits and limbs, removal of organs Asphyxiations: drowning, smothering, choking, chemicals Chemical exposures in wounds, body cavities Attacks by animals, dental torture Exhaustion, forced labour, starvation

Psychological Torture

Threatening to harm or kill the victim or the victim's relatives Forced witnessing or hearing the torture of others Mock execution, forced to harm others Denigration and humiliations, threats of attacks by animals Violations of taboos, violation of religion

Types of TortureThere are mainly two types of torture

Torture in Police custody Torture in Judicial custody

Torture in police Custody

Police tortured the accuse to know the truth. In Police custody torture is mainly inflicted upon the accused/suspected in order to extract relevent information that could help in fixing up the crime. Torture in police custody remains widespreadand systematic practice in India.The victim suffer high risks of torture in the first 24 hours,following detention.

There are no safeguards to ensure that a person taken into custody will have their detention recorded, have prompt access to a lawyer or impartial medical exeminition upon their arrival at the place of detention, or at the time of his release.

Cases of Torture in Police Custody

Case1: On 7 April 2010, Mr. Velji Parmar (45 years), who was accused of stealing, died due to alleged torture at the Tadaja police station in Bhavnagar district of Gujarat. Police claimed the deceased complained of chest pain and was taken to hospital where he was declared dead. However, the deceased’s wife, Mrs Manjulaalleged that Mr Parmer was tortured to death in custody. The post-mortem report reportedly revealed about 37 injury marks on the deceased’s body.

Case2: On 27 October 2010 night, Balistar (40 years) died at the Nababad Police Station in Jhansi district of Uttar Pradesh. The deceased was picked up by the personnel of the Special Operations Group (SOG) on the same day in connection with a robbery case. The police claimed Balistar committed suicide. However, the deceased’s

relatives alleged that Balistar died of police torture. They further alleged that the police did not allow them to meet him after his condition deteriorated in the police station and the police had taken the deceased to the hospital only after he had died to conceal their crime.

Case3: On 29 January 2010, Aftab Alam (27 years) died due to alleged torture at Aati Police Station in Gaya district of Bihar. The deceased, a resident of Bhaon village in Gaya district, was working as a tailor in Mumbai, Maharashtra. Alam returned home to attend a religious ceremony at home. Police claimed Alam fell down and died while being taken to court. However, the deceased’s family members alleged that he was picked up on the night of 28 January 2010 and was taken to Aati police station where he was subjected to torture which resulted in his death.

Torture in judicial Custody

It is seen in many states that the prisons, they are manage by the group of persons. who are some times patronised by the jail authorities, and these gangs take the prison premises as their personal fiefdom. The member of the gang beat the innocent prisoners. who show no allegiance to any of the gangs and they are tortured to the extent that they commit suciede.

The use of torture in Indian prisons/detention centres is a matter of documented fact. According to National Crime Records Bureau (NCRB) under Ministry of Home Affairs, 1,424 prisoners died in 2006, 1,387 prisoners in 2005, 1,169 prisoners in 2004,152 and 1,060 prisoners in 2003153 in India. Of the 1,423 prisoners who died in 2006, 80 died as a result of “unnatural” causes

Cases of Torture in Judicial Custody

Case1: On 12 January 2010, undertrial prisoner Mr. Krishna Kumar died due to alleged torture at Bhondsi Jail, Gurgaon in Haryana. The jail officials claimed Mr Kumar died due to medical complications. However, the deceased’s family alleged that they saw injury marks on Mr Kumar’s back suggesting torture.

Case2: On 22 February 2010, undertrial prisoner Mr. Jahangir Khan (22 years) died under mysterious circumstances at Chas Jail in Bokaro in Jharkhand. The jail authorities claimed Mr Khan had attempted suicide by setting himself on fire after pouring kerosene from a lamp in his ward on 21 February 2010. Mr Khan was rushed to the Bokaro General Hospital with severe burn injuries but died on the next day. However, Mr Khan before his death alleged in front of media persons that he had been tortured by the jail inmates and staff.

Case3: On 1 August 2010, Dalit Surendra Jaatav was beaten to death allegedly by a group of Jat community at Mussoorie village in Ghaziabad, Uttar Pradesh. In her compliant, deceased’s wife Dharmwati alleged that her husband was beaten to death after he refused to work for free in their homes and fields.

Statistics of Custodial Deaths in India

Deaths in police custody between 2000 and 2010

Year No. Of Deaths2000-2001 1272001-2002 1652002-2003 1832003-2004 1622004-2005 1362005-2006 1392006-2007 1192007-2008 1872008-2009 1272009-2010 1242010-2011 147

Deaths in judicial custody between 2000 and 2009

Year No. Of Deaths2000-2001 9102001-2002 11402002-2003 11572003-2004 13002004-2005 13572005-2006 15912006-2007 14772007-2008 17892008-2009 15322009-2010 1389

legal framework related to torture

Prohibition of torture and other forms of ill- treatment in international treaties

Universal Declaration of Human Rights (UDHR)

Article 5 of The Universal Declaration of Human Rights states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Article 8 of The Universal Declaration of Human Rights says that, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” The Universal Declaration of Human Rights, which sets out the basic human rights standards that apply to all States, forms part of customary international law.

International Covenant on Civil and Political Rights

Article 7 of the International Covenant on Civil and Political Rights provides that no person “shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Article 10 of the International Covenant on Civil and Political Rights states that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

The Covenant provides that anyone claiming that their rights have been violated shall have an effective legal remedy. Further, no derogation is allowed regarding the right not to be subjected to torture and other forms of ill-treatment.The Covenant establishes the Human Rights Committee, which monitors the implementation of the rights set out in the treaty. It does this by examining the reports of States parties, as well as individual communications/complaints received under the treaty’s Optional Protocol.

The Covenant is an international treaty that binds all States that have ratified it. The high number of States parties to the Covenant (165 in April 2010) indicates the overwhelming acceptance of the human rights standards that it contains.

United Nations Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is the most comprehensive international treaty dealing with torture.

It contains a series of important provisions in relation to the absolute prohibition of torture and establishes the Committee against Torture to monitor the implementation of treaty obligations by States parties.The Committee examines the reports of States parties and individual complaints. The Committee’s concluding observations and its views on individual communications provide an additional aid in interpreting the Convention.

Prohibition of torture and other ill-treatment in regional instruments

There are four general regional human rights treaties – in Europe, Africa, Arab countries and the Americas– which each contain a clear and unequivocal prohibition of torture. There are also two regional treaties– in Europe and the Americas – that deal specifically with torture.

European Convention on Human Rights

The European Convention on Human Rights, adopted in 1950, is a regional treaty under the auspices of the Council of Europe. Article 3 states:No one shall be subjected to torture or to inhuman or degrading treatment or punishment.The Council of Europe has also adopted a treaty dealing specifically with torture: the European Convention for the Prevention of Torture (1987). This treaty does not create any new norms but does establish a visiting Committee

Constitution of india

Article 21 of indian constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It gives the right of life and personal liberty to every person.

Treaties under the Organization of American States

The American Convention on Human Rights, adopted in 1969, is a regional treaty under the auspices of the Organization of American States. Article 5 states:

Every person has the right to have his physical, mental, and moral integrity respected. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

The Convention also specifically states that any public official who carries out torture – or who orders it or fails to prevent it – is guilty of a

crime and that acting under orders is no defence to the crime. The Convention provides for an absolute prohibition of torture that cannot be suspended under any circumstances.

The Convention also requires States parties to take effective measures to prevent and punish other cruel, inhuman or degrading treatment or punishment. While the Convention does not contain a separate enforcement mechanism, the Inter-American Commission on Human Rights has an obligation to report on the practice of torture in Member States and the Inter-American Court has taken on jurisdiction of this treaty.

African Charter on Human and Peoples’ Rights

The African Charter, adopted by the Organization of African Unity in 1981, states:Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall beprohibited.

Arab Charter on Human Rights

Article 8 of the Arab Charter on Human Rights, adopted by the League of Arab States provides that:

1. No one shall be subjected to physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment.

2.Each State party shall protect every individual subject to its jurisdiction from such practices and shall take effective measures to prevent them. The commission of, or participation in, such acts shall be regarded as crimes that are punishable by law and not subject to any statute of limitations. Each State party shall guarantee in its legal system redress for any victim of torture and the right to rehabilitation and compensation.

United Nations standards

The United Nations has a developed a number of standards related to the prevention of torture, including:

• Standard Minimum Rules for the Treatment of Prisoners• Basic Principles for the Treatment of Prisoners• Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment• Rules for the Protection of Juveniles Deprived of their Liberty• Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)• Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment• Model Autopsy Rules• Code of Conduct for Law Enforcement Officials• Basic Principles on the Use of Force and Firearms by Law Enforcement Officials• Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (Istanbul Protocol).

Institutions helping Torture Victimes

There are mainly three agencies in india who helps the victimes of torture. National Human Rights Commission State Human Rights Commission NGOs related to National Human Rights Commission

the Commission issued instructions that any instance of custodial death must be reported to it within 24 hours of occurrence. Such information was to be followed by the submission to the Commission of the relevant post-mortem report, the magisterial inquest report and a videography report on the postmortem. Unfortunately, it was observed that there was frequent delay in the sending of these reports. This in turn delayed the processing of cases of custodial violence in the Commission and the awarding of interim relief when, prima-facie, there was reason to conclude that a custodial death had resulted from custodial violence.

Given this unsatisfactory situation, the Commission has issued fresh instructions requesting that all concerned reports, namely the post-mortem, videograph and magisterial inquiry reports, must be sent to the Commission within two months of the incident. The postmortem reports have to be recorded on a new form, designed by the Commission, which has been circulated to all concerned authorities. Further, in every case of custodial death, a magisterial inquiry has also to be conducted as directed by the Commission. It should be completed expeditiously and transmitted to the Commission within the deadline of two months that has been set by the Commission.

In certain cases of custodial death, and after the post-mortem examination, the viscera are sent for examination and a viscera report is required. However, such reports also take time in being received. The Commission has therefore clarified that the post-mortem reports and other related documents should be sent to the Commission without waiting for the viscera report, with the latter being sent subsequently as soon as it is available.