INDIA: Custodial deaths in West Bengal and India's refusal to ratify the Convention against Torture
This February, the families of Nemai Ghosh and Anesh Das were compensated 100,000 Rupees (US$2200) each by the government of West Bengal for their deaths while under police custody at the Malda Magistrates Court on 1 August 2002. The two, who had been arrested on petty charges, were locked in one of two holding cells designed to accommodate around 15 detainees, which on that day were by police records holding 262 persons. Independent witnesses suggest that the number was closer to 400. The men collapsed in temperatures of over 40 degrees Celsius while pleading for water from police officers selling it at 40 Rupees (US$1) per bottle. Over 150 other detainees were hospitalised. According to the Times of India (February 17), on 4 July 2003 the Kolkota High Court ordered that compensation be paid within two months, following a Supreme Court ruling that custodial deaths be compensated with at least 100,000 Rupees.
While the overdue payments might go some way to meeting the needs of the deceased men's families for a short time, they leave behind a trail of questions. To begin, why did only the two dead men's families get money? None of the injured persons were compensated for their suffering, nor have any other victims of custodial death in a court lock-up in West Bengal, despite at least four other cases having been thoroughly documented in recent years. Among those, human rights group Manabadhikar Suraksha Mancha (Masum) has reported on the case of Tamal Sanyal, arrested with friends by officers of Bijpur Police Station on 19 May 2003, for drinking alcohol in a public place. The police failed to inform his family members of his arrest, and refused to release him on bail, despite the charges laid against him being bailable offences. On May 20, Tamal was sent to the Barrackpur District Court, where at least 200 detainees were being held in lock-up intended to accommodate not more than 50 persons, and where like Nemai Ghosh and Anesh Das he suffocated to death. Similarly, on 30 June 2003 officers of Coke Oven Police Station sent Kamal Badyakar to the Durgapur Court, under Bardhaman district, where he was held with about 46 other detainees. According to the police, Kamal committed suicide by hanging himself with his underwear in the latrine. However, a co-prisoner reported that the latrine was so filthy that even the detainees, accustomed to inhuman conditions, were unable to enter it. Neither family of either man has received anything for their loss.
In fact, everything about the compensation in this case is problematic. Why was it paid so late, despite a High Court order that it be within two months? Why was it paid only by the state and not by the persons in the police and judiciary directly responsible for the deaths? How did the Supreme Court come up with the figure of 100,000 Rupees, where someone injured in a motor vehicle accident is liable to claim much more? Custodial deaths, injuries due to torture and other violations of human rights perpetrated upon victims while in state custody are the most heinous of crimes, and the amount of compensation should reflect this.
More importantly, why has no one been held criminally liable for the deaths and injuries? Despite a thorough judicial inquiry into the incident, the only action taken was for a police superintendent to suspend a number of officers on duty at the time. However, the prisoners were in the court lock-up, and the person ultimately responsible for the detainees, therefore, was the Sub-Divisional Judicial Magistrate at Malda. Yet this person has never been held to account for the deaths and injuries caused to the persons under his duty of care on August 1, despite recognition of state responsibility manifest in the compensation payment.
According to the Police Regulations of Bengal (1943), for each prisoner in a lock-up there should be 36 square feet of space, and immediate medical treatment when required. Nowhere in the state are these provisions met, and despite recent court orders to address the high number of custodial deaths there, the rules are applied only where the rich and influential are concerned. In fact, deaths occur daily in all government facilities, whether court lock-ups, police station lock-ups, prisons and other state centres.
Furthermore, the suffering of a victim and family does not end with death. The following are just some of the obstacles that must be overcome in any attempt to obtain a modicum of justice:
- First, after the person has died, the Criminal Procedure Code (1973) requires the police to notify a magistrate to carry out an inquest. In practice, police often do not contact any magistrate, and instead conduct the inquest themselves, disposing of it in a manner as to avoid any responsibility.
- Secondly, in the case of deaths in police custody, Judicial Magistrates, answerable to the High Court, should carry out the inquest. In West Bengal, however, Executive Magistrates do this job. The Executive Magistrates are under the Home Department, as are the police. Therefore, where inquests do occur, the alleged perpetrator (the police), prosecutor and judge all belong to the same organisation.
- Thirdly, in West Bengal there are no independent judicial officers to handle the filing of complaints of custodial death. Instead, the police themselves are responsible for the keeping of court records. Therefore, when the family members of a victim go to lodge documents to begin a custodial death inquiry, they must give them to uniformed police who may be friends of the accused. Not surprisingly, the documents very often are tampered with, damaged or 'lost'.
- Fourthly, the victim's body should be taken for a post-mortem examination. However, this is done only on police orders, and under any circumstances the procedure for post-mortems in West Bengal is so defective that it only leads to further horrific abuse of the victim's dead body and contempt for the rights of the family. Most morgues in the state are located in sub-divisional and district hospitals. The conditions defy description: without air conditioning and freezers, or other equipment to deal with the bodies, corpses rot within hours. The doctors assigned to do the post-mortems generally have no training in forensic science, and sometimes are even dentists or psychiatrists. They are not properly paid, and in fact do not actually do it themselves: this is left to a caste group, the Dom, a sub-group of Dalits (so-called untouchables) assigned the task of handling the dead bodies. The Doms, who are usually completely uneducated and often drunk on the job, open the bodies with hammers, rusty nails and axes, and call out what they see to the doctor, sitting 30, 40 or perhaps 50 metres away. The doctor then records their observations, and the body parts are discarded. The Asian Human Rights Commission recently pointed out that one of the most important rights of a dead victim is for their body to be preserved in a manner that will permit proper medical examination ('Forensic science, mortuaries and the rights of victims of crime', AS-01-2004, January 6). Failure to treat a victim's body with due respect and diligence is a serious violation of the rights of the victim and their family. That an autopsy should be conducted in such a manner as described above not only defies common sense but is an affront to human dignity.
The case of Netai Das illustrates some of the above-mentioned problems. Netai was reported arrested on 21 February 2002 and he died in the Bally Police Station lock-up on February 25. Upon investigating the case, Masum found that the police had falsely recorded the date of arrest and other details of the case, and that the Netai had in fact been arrested and illegally detained from the night of February 18, during which time he was denied food and water. According to the investigating officer, Netai died by hanging himself, however Masum inspected the place of the alleged suicide and concluded that it was highly unlikely that the victim killed himself as suggested. Furthermore, the investigating officer in Netai's death was the same officer conducting the criminal inquiry after his arrest. The doctor who wrote the initial medical report on the death recorded that the body had no external injuries, despite video footage clearly showing bleeding on the left of the forehead, consistent with allegations from the family that Netai was tortured and murdered by the police. The inquest was held and concluded on February 25, with the magistrate concurring with the police report, and in the absence of any relative of the deceased. After Netai's wife lodged a complaint the following day, the magistrate called for a further report from the police, which was duly submitted and the case closed. Masum has concluded that the magistrate and other authorities in this case colluded with the police to conceal their act of murder.
That conclusion goes to the root of the problems facing the judicial system in West Bengal: the police control every aspect of the judicial system. From the time of arrest to conviction, imprisonment or death, police run the show. Practically speaking, there is no independent judiciary in West Bengal. This runs contrary not only to the principles of the rule of law - to which the government of India claims to adhere - but also contrary to the Criminal Procedure Code, which was rewritten in 1973 with the express intention that the judiciary be severed from other parts of government.
Under these circumstances, India's repeated refusal to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment on the grounds that there are adequate provisions in existing laws to prevent torture and attendant abuses is disgraceful. As apparent from the cases above, torture, custodial death and other horrendous abuses during police custody in India go hand in hand. The perpetrators of these acts go free because no law exists to effectively address them, and ensure redress for the victims and their families. As a result, at present the best one can hope for at present is a few overdue rupees to assuage any sense of further responsibility by the state. It is hardly surprising that justice remains a dream for most and that the payment of a small amount of compensation for a couple of victims be portrayed as an act of magnanimity, rather than a piecemeal gesture from a thoroughly corrupted system.
This must change. Any suggestion that the existing legal system in India is adequately equipped to address custodial abuses of this sort is an insult to the intelligence and human integrity of millions who daily experience otherwise. India must without delay, and bring it into domestic law together with the necessary institutional changes to see it implemented. When acts of torture and degrading treatment by the police are at last treated with the gravity they deserve, so too will custodial deaths diminish, conditions in lock-ups be improved, cases properly investigated, victims properly compensated, and perpetrators punished.
- Asian Human Rights Commission