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Custodial- Torture – Between social and criminal


  • Students along with SICHREM members taking part to observe the UN International Day in Support of Victims of Torture. Photo: K. Murali Kumar
    The Hindu

    Students along with SICHREM members taking part to observe the UN International Day in Support of Victims of Torture. Photo: K. Murali Kumar

The law doesn’t allow in-custody torture, even if it’s a terror suspect. But police and other probe agencies have been blatantly violating the law when they put a man behind bars.

Three days ago, media reports quoted Areeb Majeed, the Thane college student who joined ISIS, pleading in a special court seeking relief from solitary confinement. The young man told the court how he yearns for sunlight, desires to speak to other inmates or at least see their faces.

Areeb’s plea is not going to attract any attention. Because a terror suspect never gets sympathy. Physical torture, extreme abuse in jail — in many cases even leading to death — is an ugly secret, taken for granted.

Solitary confinement pales in comparison to say, slaps and kicks on sensitive parts of the body, denial of water, food and access to toilet, being stripped naked and paraded around and urinated upon. Or being tied to a pole and beaten with leather belts, having fingers chopped off and every bone in the body broken.

In a country where it is normal for policemen to slap and kick a rickshaw-puller, a labourer, a hawker, a beggar, in the name of maintaining order on the streets, it’s not easy to drill into the public psyche that in-custody torture is against law. That the job of the police is to investigate a case — and not torture a detainee to extract a quick ‘confession’ to try and ‘crack’ a case in the court — gets lost in the process.

Senior police officers are fully aware of this ‘shortcut’ to ‘solve’ cases. Never mind that many of these men are later declared innocent by courts. Former CBI director D.R. Kaarthikeyan, who headed the Special Investigation Team in the Rajiv Gandhi assassination case, is categorical when he points out, “Torture is used by police as a shortcut to get out of the hard and laborious and time consuming task of investigation.” He voiced these views in Supreme Court lawyer Nitya Ramakrishnan’s authoritative book “In Custody — Law, Impunity and Prisoner Abuse in South Asia.” He tells the author and the book’s India researcher Sreemoyee Nandini Ghosh that while investigating the Rajiv Gandhi case, he too came across use of such methods and ensured that it stopped.

Importantly, such methods have proved less helpful to investigating agencies than they expected it to be. Meenakshi Ganguly, South Asia director, Human Rights Watch, informs us that in many cases, it has been proved that a ‘confession’ made under duress has in fact not helped solve a case. It actually led the police the wrong way. But use of torture on detainees continues. “Under POTA, confession to the police was permitted and eventually the law was repealed because it was abused,” says Ganguly. HRW compiled an in-custody torture report on India in 2011, during which it came up that “although most police will argue that ‘third degree’ is generally discouraged, it is the most used instrument in their non-existent toolkit.”

The recent report on CIA’s harsh modes of torture applied on the 9/11 terror accused brings the spotlight back on in-custody torture worldwide, prompting some in India to also point out that the Torture Bill 2010 is pending in Parliament, that India is yet to sign the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). Ganguly, whose organisation has demanded appointment of a special prosecutor to investigate the crimes detailed in the Senate Intelligence Committee’s report on the program, is for legislative changes in India. “But as long as there is a culture of impunity, where public officials are protected from prosecution, the law will fail,” she says.

Apart from being a legal issue, in-custody torture also has a social component. Smita Chakravarty, who has been documenting cases of torture on detainees in West Bengal and Kashmir, says, “There is a social acceptance of torture. There is also religious and caste divide. If you are a Brahmin, say in a Bengal jail, it is most likely that you will not be tortured but if it is your domestic servant, or someone who is a Dalit or even a Muslim, he is more likely to be beaten up in custody. Also, in many cases, depending on your religious and caste background, the sections of IPC are slapped on the accused. Take for instance, the sections 399 and 402 of IPC under which you can detain a person for conspiracy of dacoity. These sections are often used on Muslims and Dalits. Under them, you don’t have to commit the crime, you don’t even have to be present at the scene of the crime, and yet you can be arrested as an accused.”

Smita has so far documented 780 cases of detainee torture in Kashmir Valley. It’s horrifying to note that the level of torture is altogether different there than in, say, Bengal. Slapping and kicking, denial of food and sleep have ceased to be seen as modes of torture by detainees in Kashmir. “There is this man I met in Kashmir who was detained because the security forces were looking for his brother. While documenting his story, he told me he was not tortured. But when I asked him, was he slapped, kicked, was food given to him, was he allowed to sleep, he kept on telling me, ‘Madam, I was in custody, not in a hotel,’ meaning all of these were done to him. Torture, he felt, was his brother’s fingers being chopped off. That brother was later released.” Smita says, “The pattern of torture has changed over the years. Earlier electric shocks were done in a crude fashion. Now, in Kashmir, the interrogator uses gloves before doing it, he has sophisticated batteries. It is also very scientific. They know how to torture without leaving any physical mark.”

SAR Geelani, an accused in the Parliament attack case who was later acquitted, says, “Throughout my detention, I was abused in the name of religion. I was also kept in solitary confinement and in a dark room for days together and somewhere in the dark I would hear two policemen abusing me for being a Muslim, calling me a traitor and that I deserve that treatment.”

Geelani was physically tortured but the torture of co-accused Afzal Guru and Shafqat Hussain was inhuman, he says. “They were urinated upon, they were allegedly also forced to have anal sex. People talk about Abu Ghraib; our jails and detention centres are no less,” he claims.

But, HRW found that discrimination against minorities is not the only motive behind the torture of terror suspects. Its 106-page report notes, “HRW found credible evidence that Hindus arrested for a separate 2008 bombing incident in Malegaon, Maharashtra, were also subjected to arbitrary detention, torture, and religion-based ill treatment. One Hindu suspect, a selfstyled theologian, alleged that during one torture session, police forced what they said was beef, which is forbidden to Hindus, down his throat.”

When it comes to investigating terror suspects, the pressure on investigating agencies from politicians and media is always high, a reason why police often resort to extracting quick ‘confessions’ through torture. Ujjwal Nikam, the public prosecutor of Maharashtra Government who fought the Ajmal Kasab case, feels, “There is also direct pressure on the public prosecutor and indirect pressure on the judges.” Police therefore, need to be given “some liberties” while investigating such cases, he says. “I am not in favour of in-custody torture but yes, sometimes, I feel reasonable force, if required, should be employed, particularly when one is dealing with habitual offenders and terrorists. The courts have asked for CCTV cameras in police lock-ups and jails. It has put a lot of pressure on the police. How can they crack a case?”

What he has noticed during his years of investigating high-profile terror cases, “is that terrorists are trained in court procedures. They are taught defence mechanisms. Ill treatment and in-custody torture are usual allegations. Kasab also did it. I saw it during the 1993 Mumbai blast cases too.” He claims, “80 per cent of torture allegations are false. Ten per cent of the cases are true but even in them, detainees have provoked the interrogators.” Nikam’s comment however, doesn’t differentiate between a Kasab who was seen on TV screens going on a killing spree of innocents and that of someone randomly picked on suspicion of terror.

Nitya Ramakrishnan, talking to this correspondent some time ago, stated that the campaign against torture cannot afford to become complacent merely because systems are theoretically in place. “The SC 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.”

Geelani says he found the system was manipulated infavour of the police in his case. “I was detained a day before the official date given to the media and was kept in a ‘safe house’. I was not presented in the court of a magistrate but in her house surrounded by police officers. Even then, I told her that I was tortured but she didn’t mention anything in her report. Later, after I was badly injured and taken to a doctor, he told me he was helpless and couldn’t mention that I was tortured.”

As far as in-custody confessions are concerned, he states, “It is a known fact that a detainee is often forced to sign on blank sheets.”

Geelani feels when it comes to national security, the police is allowed to do anything, “even if it means killing an innocent.” The media too is guilty. “How many times have you seen media reporting in-custody torture? It avoids it particularly when it has to do with the issue of national security, even when there is a possibility that the accused might be innocent. There is a tacit media support of torture,” says Geelani. “In my case, the police picked up Afzal and Shafqat in Kashmir around 5 a.m. after I reportedly told the police about them. But they told the media that I was picked up around 11 a.m. in Delhi the same day. Nobody questioned such anomalies because it is about national security,” he adds. He gives another example, “Some of us approached some disability activists regarding DU professor Sai Baba, accused of Maoist links. He is 90 per cent disabled, nothing has been found against him and yet he is being tortured. The activists have sympathy but can’t do anything because it concerns national security.”

Ramakrishnan, in the preface to her book, does point out, “The security argument has overwhelmed all other discourse and due process is increasingly viewed as an impediment.”

Reason enough to have a public debate on the subject. Because we belong to a proud nation where its laws say you are innocent till proven guilty.

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