Majority of custodial deaths in India go unreported

New Delhi: Asian Centre for Human Rights (ACHR) in its latest report Torture in India 2009 states that in the last eight years (from April 2001 to March 2009), an estimated 1,184 persons were killed in police custody in India. Most of the victims were killed as a result of torture within the first 48 hours after being taken into custody.

The highest number of custodial deaths was reported in Maharashtra (192 cases) followed by Uttar Pradesh (128); Gujarat (113); Andhra Pradesh (85); West Bengal (83); Tamil Nadu (76); Assam (74); Karnataka (55); Punjab (41); Madhya Pradesh (38); Bihar and Rajasthan (32 each); Haryana (31); Kerala (30); Jharkhand (29); Delhi (25); Orissa (24); Chhattisgarh (23); Uttarakhand and Meghalaya (16 each); Arunachal Pradesh (11); Jammu and Kashmir and Tripura (9 each); Puducherry and Chandigarh (3 each); Himachal Pradesh (2); while Manipur, Goa, Sikkim, and Dadra & Nagar Haveli recorded one case each.

“These deaths in custody do not however represent the actual number of deaths in police custody in India. A number of cases of custodial death taken up by ACHR with the National Human Rights Commission (NHRC) show that the latter was not informed by the police about these deaths. Its guidelines on reporting custodial deaths within 24 hours continue to be flouted,” said Suhas Chakma, Director of ACHR.

“Further, deaths in the custody of the armed forces and the Indian Army under the control of the Central government are not reported to the NHRC as it does not have jurisdiction to investigate violations committed by the armed forces under Section 19 of the Human Rights Protection Act, 1993.

ACHR itself has filed 50 complaints of extrajudicial killings from 2003 to 2009 from Manipur alone. Many of these alleged extrajudicial killings were indeed deaths in the custody of the Manipur Police Commandos but since the Manipur Police Commandos claim to be conducting operations jointly with the central armed forces, the deaths in the custody of the Manipur Police Commandos are not reported to the NHRC” he added.

The report stated that high number of deaths in custody exposes the abject failure of the 1996 D.K. Basu Judgment that provides the procedures to be followed while making arrests.

“Further, one of the key failures of the D.K. Basu guidelines is that its compliance is confined only to cases of arrests made under Sections 41 (when police may arrest without warrant) and 74 (Warrant directed to police officer) of the Code of Criminal Procedure, 1973 (as amended up to date). It does not apply to those who are summoned but not formally arrested,” said Chakma.

Torture Bill a sham

The Prevention of Torture Bill, 2008 being brought by the government of India is a sham. It contains only three operative paragraphs relating to definition of torture, punishment for torture and limitations for cognisance of offences falls.

The Bill falls far short of obligations that the states ratifying the Convention against Torture (CAT) must undertake. It provides “narrow and restrictive definition of torture” with no reference to death as a result of torture.

It provides for lenient punishment for torture contrary to the punishments provided under the Indian Penal Code for similar offences. Further, the six months bar for taking cognisance of offences under the proposed Bill is contrary to the Criminal Procedure Code, 1973.

Asian Centre for Human Rights recommended that:

• The Supreme Court should amend the guidelines issued in the D.K. Basu judgment to apply from the moment of summons issued by the police or detention with the police when acting in an official capacity.

• NHRC should distinguish in its statistics between custodial deaths through natural causes and custodial deaths resulting from abuses of human rights.

• Government should send the Prevention of Torture Bill, 2008 to Parliamentary Standing Committee for organising public hearing to ensure its conformity with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

• Government should ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol; and the government of India should extend an invitation to the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.