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Prevent custodial deaths in India

Apr 19, 2010

Torture in India 2010, highlights the increasing number of custodial deaths due to torture and underlines the failure of the government to address the issue of human rights violations by law enforcement personnel. It also discusses the prospects and flaws of the revised Prevention of Torture Bill.

Torture in India, 2010

Publisher: ACHR, 2010

Since 2000, according to the statistics submitted to the parliament by the Ministry of Home Affairs, prison custody deaths have increased by 54.02% by 2008, while police custody deaths during the same period have increased by 19.88%.

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In fact, under the United Progressive Alliance (UPA) rule from 2004-2005 to 2007-2008, prison custody deaths have increased by 70.72% while police custody deaths during the same period have increased by 12.60%.

In her address at the inaugural session of the "National Convention on Law, Justice and the Common Man" organised by the Congress Party, UPA Chairperson Mrs Sonia Gandhi rightly referred to “a wave of unprecedented legislative reforms that was directed at empowering and improving the lot of the common man, aam aadmi”.

Among others, Mrs Gandhi referred to ‘aam aadmi’s the right to information (RTI Act) and the right to work (National Rural Employment Guarantee Act). She stated that under the UPA-I, the government also brought the Domestic Violence Act, the Commission for Protection of Child Rights Act, 2005 and the ‘Unorganised Workers’ Social Security Act 2008.

Under UPA-II, she referred to the right to elementary education for the children and legislation for 50% reservation for women in local bodies the panchayats. She referred to passing of the Women’s Reservation Bill in the Rajya Sabha, the debate over legislation that will give citizens the right to a safe and healthy environment through the agency of a National Green Tribunal. Most importantly, UPA promised the passage of a Right to Food Security law to address chronic starvation and malnutrition. She added that the Gram Nyayalay Act is yet another milestone legislation that is aimed at providing inexpensive justice to people in rural areas at their doorsteps.

These legislative changes are welcome. However, the UPA government continued the long failure of Indian administration to address the issue of torture and other human rights violations by the law enforcement personnel.

On 8 April 2010, the Cabinet approved the decision to introduce the Prevention of Torture Bill, 2010 before the parliament and ratify the UN Convention Against Torture. The Prevention of Torture Bill, 2010 is being treated as a secret document. Its earlier draft, Prevention of Torture Bill, 2008, contained only three operative paragraphs relating to (1) definition of torture, (2) punishment for torture, and (3) limitations for cognisance of offences. The Prevention of Torture Bill, 2008was highly flawed and ACHR had submitted specific recommendations to the Government of India after holding a National Conference in New Delhi in June 2009.

Torture in police custody remains a widespread and systematic practice in India. ACHR’s research into patterns of torture in police custody since 2008 (ACHR’s2008 and 2009 Annual Reports on Torture) suggests that victims suffer high risks of torture in the first twenty four 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 examination upon their arrival at the place of detention, or at the time of his release. The lack of any effective system of independent monitoring of all places of detention facilitates torture.

Torture is the most naked assault on human dignity. In India as elsewhere, it is the aam aadmi who suffers the most. While the decision to introduce the Prevention of Torture Bill, 2010 is welcome, unless Government of India takes lessons learnt from the failure of the Supreme Court judgment (D K Basu Judgement) and amendment of the Criminal Procedure Code and addresses the shortcomings, torture and custodial death will continue to rise. The Asian Centre for Human Rights recommends to the government of India to take the following measures to stamp out torture in India:

- Hold public discussion on the Prevention of Torture Bill, 2010 with all stakeholders including the civil society groups and enact the same in 2010itself;

- Amend the recommendations of the Law Commission of India to make consequential amendments to the Indian Evidence Act, 1872 (insertion of Section 114B) to provide that in case of custodial death the onus of proving of innocence is fixed on the police; and

- Repeal Section 197 of the CrPC to uphold the supremacy of the judiciary.

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