#NoMoreImpunity || Blog Symposium || Custodial Torture: A Special Hell

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CUSTODIAL TORTURE: A SPECIAL HELL

Nitya Ramakrishnan

In the December of 1991, Li Peng, the Chinese Premier came on a visit to New Delhi. Over 2000 resident Tibetan men and women, demonstrating in protest, were detained by the Delhi Police. The Supreme Court ordered their release and directed an inquiry into complaints of unwarranted police violence against peaceful protesters. Additional Sessions Judge, Rekha Sharma, conducted the inquiry,[i] at which, the women spoke of the verbal and physical abuse in custody. It was the women’s word against that of the police, and the latter were exonerated on the principle of doubt. This was no trial, but a fact finding inquiry, and its conclusions precluded any investigation and trial of the molestation as a criminal offence.

No such doubt surrounds the torture and murder of Thangjam Manorama by officers of the Assam Rifles stationed in Imphal. Those officers roam free, while the State and the Central Government engage in a turf battle that has lasted a decade. On July 10 2004 Manorama was formally arrested and taken from her home by uniformed men of the Assam Rifles. On July 11, 2004, her bullet ridden body was found in an open field of the city.  On July 12 Manorama’s family lodged a First Information Report at the local police station.  Forensic tests commissioned by the state police revealed marks of torture and possible rape before Manorama was killed.   The Assam Rifles do not deny either the arrest or the killing, but say that they killed while she trying to flee (with her arms tied behind her!). A Commission of Inquiry set up by the State Government indicted the army men. The legality of this Commission was challenged by Assam Rifles on the ground that as a Central force, they were not amenable to any inquiry set by the State Government.[ii] The Gauhati High Court upheld this claim of Assam Rifles and the case is now in the Supreme Court.  Meanwhile, the High Court’s plea to the Centre that, it should on its own initiate action, goes unheeded. Quite aside from who may set up a commission, there is a crime of homicide and rape to be investigated and tried, but that has not happened.

On May 30, 2009, the bodies of two women, Nelofaar, 22 and Asiya, 17, were found floating in Rambi Ara Nalla‘s shallow waters flowing through the Shopian district of the State of Jammu and Kashmir. On the previous day, these young women had set out from home, for their nearby orchard across the river, both sides of which are heavily patrolled by the Indian army.  Huge public protests followed the finding of the bodies, for it was strange that the army should have maintained silence about these deaths, that could not possibly have escaped their notice.  Eventually, the state police registered an FIR and the first set of forensic reports indicated rape and murder. A Commission of Inquiry, and a CBI investigation later, the doctors who gave the first forensic report have been branded liars. The case is closed as one of accidental drowning. We do not know what happened, as there has been no open trial.

Every death, disappearance or alleged rape in police custody, or any other custody ordered by a Magistrate must be subjected to a magisterial inquiry in addition to a police investigation, but this requirement of law is observed mainly in the breach.[iii] So too, the NHRC guidelines on encounter deaths. Almost never, do we see a full trial of a complaint of custodial abuse.

India has no separate statute banning torture, and is yet to ratify the UN Convention Against Torture. A proposal to do both is pending since 2010.[iv]  However, torture is effectively outlawed. Murder, by any one is a criminal offence.  Hurt and illegal confinement in police custody have been classified as offences in the Indian Penal Code since 1860.[v]  Later, after the Constitution came into force, it has been judicially pronounced that torture is a violation of the right to life guaranteed by the Constitution.

A spate of legal clauses followed a public movement sparked by the acquittal of two policemen by the Supreme Court in the Mathura rape case.[vi] Custodial rape was listed as a separate category of rape, with a higher punishment offence.[vii] The burden of proof was shifted to the custodial officer, if sexual intercourse during custody was established.[viii]

More amendments followed the public protests over Nirbhaya in December 2012.  Rape by army men in areas of their deployment was added to the category of rape crimes that would draw a higher punishment. Presumptions were brought in to operate against custodial officers and members of security forces in rape trials.[ix]

There is enough in the law even today to punish torture. Yet, action against offenders does not occur as a matter of course. Invariably, higher courts have to be petitioned, or fact finding committees set up before state agents are even investigated on the count of torture. Then too, the process seldom moves to a conclusion. Reparative justice by way of compensation has largely been a matter of judicial discretion. The National Human Rights Commission has done little more than award measly sums as interim compensation.

Some cases of custodial torture catch public attention, while an infinitely greater number do not. Those that may get documented will reveal the ploys of the system to resist any open scrutiny of custodial abuse. These ploys are a manipulation of the process, in spite of the legal provisions that render torture a crime.

The 1991 case of Delhi’s Tibetans  begs the question, for within a prison cell, torture will, oftener than not, only be word against word.  The 2004 case of Manorama shows that even when the fact does not rest on word alone, and is established by record, state actors easily avert justice.  Shopian 2009 is a case of shifting the goal-posts midway.

Torture is an open secret. A special hell is reserved for women in those dark chambers where no law can enter. Still, the fear that an arrest and investigation is likely to follow would act as some kind of check. Routine prosecution of torture as a crime is the first step against impunity.

Unlike the empire that effectively strikes back, torture victims are less able to galvanize legal process. Their interlocutors get side-tracked into special solutions and almost in denial, they seek to saddle the system with more and more laws with less and less effect.

Nitya Ramakrishnan is a Supreme Court Senior Advocate and the author of In Custody: Law, Impunity and Prisoner Abuse in South Asia, Sage, 2013.

[i] The Inquiry Report is not readily available.

[ii] Judgement and Order in  Writ Petition 5187 of 2004, Col. Jagmohan Singh and others Vs The State of Manipur & Others and Writ Petition 6187 of 2004, JC-172262F Nb Digambar Datta and others vs The State of Manipur and others, Gauhati High Court, June 23, 2005.

[iii] S.176(1-A) CrPC.

[iv] The Prevention of Torture Bill 2010 was passed by the Lok Sabha, but the Rajya Sabha saw fit to refer it to a Select Committee, Post the Select Committee recommendations it has not been placed before Parliament.

[v]  Ss.330, 331 and 348  IPC.

[vi] Tukaram and anr V State of Maharashtra (1979) 2 SCC 143

[vii] Introduction of S.376 (2)  a, b, c,and d.by the Criminal Law amendment Act of 1983 as categories of rape carrying a higher punishment

[viii] Introduction of S, 114A Evidence Act. by the Criminal Law amendment Act of 1983

[ix] Criminal Law Amendment Act 2013.

Rape law loopholes

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Vinay Sitapati, Who’s afraid of an FIR? Indian Express, July 1, 2009.

The single-page version is available here: http://www.indianexpress.com/news/whos-afraid-of-an-fir/483499/0 and copied below in case the link is broken. It’s not very often gender violence is featured in mainstream op-ed pages! Bravo, Indian Express!

The rape of Mathura, a young tribal woman, by drunken policemen, marked the coming of age of feminist legal activism. The furore that followed the 1979 “not guilty” verdict led to Indian rape laws being eventually strengthened in four major ways: (1) coercion was to be presumed if sexual intercourse was proven in cases of gangrape and custodial rape (2) the raped woman would not be judged on the basis of her ‘character’ or past sexual history, (3) the victim’s identity was to be kept secret; proceedings were in camera and (4) improvements in medical methods can now conclusively identify the rapist. In the wee hours of Saturday in Shopian (Kashmir) 30 years later, these four changes came to nought. The body of Neelofar and her sister-in-law Asiya were found in a shallow stream next to a para-military camp. Their clothes were ripped off, the stream had earlier been searched, and the water-level was low. Yet the police put the death down to drowning and refused to register a first information report (FIR). In the post-mortem that followed, the doctors confirmed the police-version, and the forensic lab took forever to publish its findings. It was only when public anger that lit the entire Valley, that Chief Minister Omar Abdullah ordered an enquiry commission which has since confirmed sexual assault; several local officials have been suspended. Where the law failed, people pressure worked.

 Official callousness in Shopian is partly explained by the culture of impunity that prevails in conflict zones world over. The laws may be the same, but ‘war’ permits a certain license.

 

But the tragedy of Shopian is the tragedy of all of India. The failure to register FIRs is one of the biggest problems that raped women face. The number of rapes reported in India is large enough — 20,737 women reported that they were raped in 2007, about six a day. That’s an 800 per cent increase from 1971, when the National Crimes Records Bureau first began to compile rape statistics. But the real number is likely far higher. One widely quoted (though hard to verify) estimate is that for every one rape reported, 67 are not.

 

Botched medical tests are also deeply pervasive during investigations into rape in India. Outright fraud, like in Shopian, does happen: the post-mortem report of a Dalit woman gangraped in the Khairlanji massacre was famously tampered with. But more pervasive are the subtle humiliations that medical examinations inflict. Pratiksha Baxi, an assistant professor at JNU, has done extensive work on how the Indian legal system deals with rape cases. She points out “even when not fudged, the fact that the doctor does the ‘two-finger test’ to check whether the victim ‘is sexually habituated or not’ is using science to do what is directly banned — pass judgment on the sexual history of the raped woman.”

 

The publicity given to the victims in Shopian — with names and lurid descriptions of the injuries published — was perhaps necessary to establish the most basic of truths: that rape had taken place. But it points to something that Indian law ignores: the insensitivity of the process, making victim and family relive the nightmare of rape. In a Rajasthan trial last year, the cross-examination did this quite literally. As a shocked Rajasthan high court later described it, the raped woman “was made to lie on the bench available in the trial court to demonstrate her posture”!

 

The official response to allegations of rape against Shiney Ahuja offers a study in contrast. Unlike in Shopian, an FIR was swiftly registered and Ahuja taken in for questioning. The maid was medically examined; the report confirmed that sex had taken place. And unlike Shopian, three of the four post-Mathura changes in rape law did kick in. The identity of the maid has been kept secret. In sharp contrast to the appalling jokes on how came a lowly maid to refuse a film star’s advances, the police have made no such assumption — the character of the maid has (so far) not been a factor. Lastly, the advancements of science means that traces of Shiney’s DNA have been found on the maid’s body.

 

Action in the Shiney Ahuja case has perhaps been swift. The Chief Minister of Maharashtra has announced that the case will be tried in a fast-track court. But what about the other five women who reported rape that day in India? Is relentless public (and media) glare the only guarantee of speedy justice?

 

It is hard to form a sweeping indictment of our post-Mathura rape laws from just two cases. In fact, cold statistics indicate that while conviction for rape is low (in 26.4 per cent of cases), it is only slightly less than the conviction rate for violent crime (27 per cent). Besides, the charge sheet rate for rape is a super-high 94.6 per cent, meaning that virtually every complaint ends with the charges being framed by the police (the quality of investigation is quite another matter). Perhaps then, the solution is beyond the scope of any law. The lessons of Shopian — no FIR filing, fudged medical examinations and the public nature of the trial — require institutional sensitivity and honesty that no law can guarantee. The only guarantee of that, for raped women, hinges on one-off acts of paternal pity or the fury of the mob.