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INDIA: Dalit boy tortured and humiliated at a police station in Kerala

February 23, 2009

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-016-2009



23 February 2009
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INDIA: Dalit boy tortured and humiliated at a police station in Kerala

ISSUES: Torture; impunity; fabrication of charges; child rights
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from Nervazhi, a human rights organisation based in Kerala, India about the case of a Dalit boy, who was tortured and humiliated by the local police in Kerala. The AHRC is informed that a Sub Inspector of Police, Mr. Balachandran, who took Nithish Lal, aged 15 years, into custody, stripped the boy naked and tortured him at the Kodungaloor Police Station. Nitish is a student at the Edavilangu Higher Secondary School.

CASE DETAILS:

On 13 January, at about 7:30pm, Nitish, the victim in this case, was watching a festival procession in a local temple, the Sri Kurumbakavu Temple, in Kodungaloor. While Nitish was at the temple ground, Sub Inspector of Police Mr. Balachandran arrived at the festival ground in a police vehicle. Sitting inside the vehicle, Sub Inspector asked Nitish to come closer to the police vehicle.

The officer then asked Nitish to get inside the vehicle. There was another boy of his age inside the vehicle. The officer then asked Nitish whether he had quarrelled with the boy who was inside the vehicle, and asked Nitish, who else were with him. Nitish was scared and gave the names of his friends to the police officer. Arun and Maheswaran, two of Nitish’s friends, who were also in the temple ground, were brought into the police vehicle.

Nitish sat in the backseat of the police vehicle. At that time, a police constable who was sitting in the vehicle slapped Nitish. The officers took Nitish to the Kodungaloor Police Station. At the police station, the Sub Inspector hit Nitish on the backside of his neck. Then, the Sub Inspector Balachandran and probationary Inspector Mr. Praveen Kumar started punching and kicking Nitish. Nitish lost his balance and hit against a table in the room. Due to the pain and fear, Nitish cried out loud, pleading to the officers to stop torturing him and informing them that is a student. The officers did not stop however. They continued assaulting Nitish.

The officers then asked Nitish to remove his cloths. The Sub Inspector ordered Nitish to be brought to his room. Wearing only his underwear, Nitish was asked to kneel down in front of the officer. The probationary Inspector then squeezed Nitish’s fingers while holding broken canes in between his fingers. Nitish cried loud from excruciating pain.

The probationary officer then asked Nitish to stand up. The officer then forced Nitish’s face up and asked whether he knows the Sub Inspector. The Sub Inspector got up from his chair and forcefully removed the remaining dress, the underwear, Nitish was wearing. When Nitish tried to get his dress back, the Sub Inspector shouted at him that Nitish does not have anything other than any other males and ordered him to stand naked inside the officer’s room. After a few hours, the officers allowed Nitish to wear the underwear.

Then the probationary Inspector asked Nitish to raise his arms and jump up and down. As Nitish was jumping, the probationary Inspector kicked Nitish under his left armpit, shouting at him to jump higher. After a few minutes, the officers asked Nitish to return to the lockup cell. Arun and Maheswaran were also brought to the same room. Then the officer asked all the three boys to jump up and down again with their arms stretched up. After about 30 minutes, a police constable came to the lockup room and asked the three boys to sit down. Later in the night, the police took the three boys to a doctor to test whether they had consumed alcohol.

The next day, Nitish’s mother came to the police station at about noon. She was informed about the detention of her son through a person named Shani, who had been at the police station for some business and saw Nitish inside the police cell. When his mother came, Nitish was inside the lock up cell wearing underwear. A police constable asked Nitish’s mother to get the boys some food. Nitish was not able to eat anything. He complained about back pain, refused to eat, and collapsed on to the floor. The police took Nitish to the nearby government hospital. At the hospital, the doctor gave Nitish some intravenous drip. The doctor also gave four other injections to Nitish.

Nitish could not lie down on his back due to pain. Later, the doctor asked Nitish and his mother to do an x-ray examination of his back. For the x-ray examination, they went to a private laboratory named Modern Laboratories. Nitish’s mother paid for the x-ray. They returned to the hospital and the x-ray was handed over to the doctor. Dr. Feriyal who examined the x-ray advised that Nitish must consult a bone-specialist and informed the accompanying police constable that the specialist will come by 8 pm. The constable however did not allow Nitish to remain in the hospital. The constable took Nitish back to the police station.

Back at the police station, the police officers asked Nitish’s mother and his uncle, who had come to the station by then, to return home. The officers informed them that they would release Nitish soon. Instead, by about 8 pm the officers took Nitish to the residence of the Chief Judicial Magistrate in Thrissur. The police also registered a crime against Nitish. The crime number is 30/2009.

Before entering the Magistrate’s house, the police constable accompanying Nitish pulled off the catheter from Nitish’s arm saying that such things would annoy the Magistrate. When the officer pulled off the catheter, Nitish started bleeding from the wound. The officer also threatened Nitish that he must not complain about anything to the Magistrate.

When the Magistrate saw Nitish, he informed the police officers that this is an incident, where the parents must have been informed about the boy and that he should have been released immediately from the station itself, instead of registering a case. Then the Magistrate read the case file. The Magistrate then scolded the police constable saying that why Nitish is referred to as an ‘accused’ in the case file, as he is just a boy. The Magistrate also said that Nitish could not be remanded to judicial custody as he was a boy and that he must be handed over to the Juvenile Home.

Nitish was hence transferred to the Juvenile home for the night. The next day, the Juvenile Board was convened and the Board decided to release Nitish without charging him with any crime. Nitish is undergoing treatment now for his injuries.

ADDITIONAL INFORMATION:

The above incident is a common phenomenon throughout India. It is common practice for the police to take persons into custody on mere suspicion. Investigation of a crime in India is often torture and confessions extracted by torture. There is no law in India that criminalises torture other than for provisions like Section 330 of the Indian penal Code, 1860 (IPC).

Section 330 mandates "[w]hoever voluntarily causes hurt for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct …. shall be punished with imprisonment of either description for a term which may extend to seven years and shall also liable to fine."

This provision of law is a highly diluted expression of criminalising torture. Though the concept of torture is far wider than what is mentioned in this section of the IPC, had the justice system in India been geared up to ensure punishment under this section of law, custodial torture in India could be considerably reduced.

Several impediments prevent the proper application of this law. Complete lack of independent investigating and prosecuting agencies; the laxity of Indian authorities, including that of the courts, in dealing with the issue of torture; and the general perception of fear against the law enforcing agencies by the average Indians are some of the important reasons why custodial violence goes unpunished in India. Even if a case is registered against the police officer, the chances are that the officer will continue in service.

Lack of prompt and foolproof disciplinary actions within the police department let police officers charge-sheeted with crimes against torture to be in a position to threaten, intimidate, and further force the victims to withdraw their complaints. Further, the absence of a witness protection law makes it practically impossible for a victim to remain immune to such intimidation and threat from the perpetrators. To make matters further worse the enormous delay, often extending to decades, plaguing the Indian court system renders the entire process a mockery, even if a police officer is charge sheeted, tried for the crime and punished.

The police also employ the tactic of registering fabricated charges, often relating to petty offenses, once they realise that the person have nothing to do with the crime under investigation. This falsification of charges is practiced by the police in order to escape the liability of arresting an innocent person and further to eliminate the possibility of the person complaining about torture. This pattern has been observed by the AHRC in several instances and Nitish’a case is yet another one in the list.

SUGGESTED ACTION:
Please write to the authorities mentioned below demanding an investigation into the case and further requesting the authorities to keep the accused police officer in suspension pending an enquiry into the case.

The AHRC has written a separate letter to the UN Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment calling for intervention in this case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear _________,

INDIA: Torture of a boy at Kodungaloor Police Station must be investigated

Name of victim: Nitish Lal R. P., aged 15 years, son of Pradeep, Ramashedath house, Lokamaleshwaram village, Sringapuram, Kodungaloor post, Thrissur 680644, Kerala state
Alleged perpetrators:
1. Mr. Balachandran, Sub Inspector of Police, Kodungaloor Police Station, Kodungaloor post, Thrissur district, Kerala state
2. Mr. Praveen Kumar, Probationary Inspector of Police, Kodungaloor Police Station, Kodungaloor post, Thrissur district, Kerala state
3. Unidentified two other police constables from Kodungaloor Police Station (they could be identified by the victim)
Date of incident: 13 January 2009

I am writing to express my concern about a case of custodial torture reported to me, of a student of Edavilangu Higher Secondary School, Thrissur district in Kerala state.

I am informed that on 13 January, at about 7:30pm, Nitish, a boy aged 15 years, and the victim in this case, was watching a festival procession at a local temple, the Sri Kurumbakavu Temple, in Kodungaloor. While Nitish was at the temple ground, Sub Inspector of Police Mr. Balachandran arrived at the festival ground in a police vehicle. The officer took Nitish into custody.

I am informed that the police took Nitish to the Kodungaloor Police Station, where he was inhumanly treated and tortured brutally by the police. I am informed that at the police station, Sub Inspector Mr. Balachandran and probationary Inspector Mr. Praveen Kumar punched and kicked Nitish. I am concerned to know that in addition to the assault, the officers also stripped Nitish naked inside the police station. I am shocked to know about the perverted forms of torture, the officers inflicted upon Nitish. I am informed that Nitish has written to the State Human Rights Commission narrating the incident, and detailing what had happened to him at the hands of the police.

I am aware that the victim was taken to the local hospital for treatment and later produced before the Chief Judicial Magistrate, Thrissur, at his residence. The medical records, however, was retained by the police. I am also informed that the police registered a false crime against Nitish. The crime number is 30/2009 of Kodungaloor Police Station.

I am informed that when the Magistrate saw Nitish, he informed the police officers that this is an incident where the parents of the victim should have been informed about the boy’s custody and that he should have been released immediately from the station itself. I am also aware that the Magistrate had expressed his disapproval to the police for referring the victim as an ‘accused’ in the case file, as he is just a boy. I am further informed that the victim was sent to the Juvenile Home, from where he was released the following day.

I wish to express my concern in this case, particularly regarding the aspect of torture practised in police stations. The fact that the victim is a minor in this case makes the officers even more culpable for their crime. The Urgent Appeal issued by the Asian Human Rights Commission, UAC-016-2009, details the horrific incidents that transcribed inside the police station. The narrative of the incident challenges the very concept of ‘law enforcement’ and further illuminates the illegal tactics employed by the police in Kerala state to avoid prosecution for crimes the police commit. It also highlights the umpteen possibilities of the police officers, providing them immunity for the crimes they indulge in.

I am aware that in reported cases where there is a judicial intervention, the possibilities of corrupt police officers getting punished and the victim obtaining redress are relatively higher in number in comparison to a mere departmental enquiry. I am also aware that an internal enquiry by the police often results in further intimidation of the victim. There is no reason why in this case too, such an enquiry could be different.

I therefore request you to ensure that:

1. a judicial enquiry is ordered in the incident, through the office of the Chief Judicial Magistrate, Thrissur;

2. the statement of the victim and the witnesses are recorded by the Magistrate;

3. if the statements so recorded by the Magistrate reveals a crime, a crime be registered against the police officers and the officers brought to trial;

4. the officers to be kept under immediate suspension so that they do not indulge in acts that could threaten the victim or the witnesses in the case;

5. the victim to be paid an interim compensation and further provided protection, and;

6. torture is made a crime in India.

Yours sincerely,

----

PLEASE SEND YOUR LETTERS TO:

1. Director General of Police
Government of Kerala
Police Head Quarters
Thiruvanandapuram, Kerala
INDIA
Fax: +91 471 2729434
E-mail: dgn@scrb.org

2. Mr. V. S. Achuthanandan
Chief Minister
Government of Kerala
North Block, Secretariat
Thiruvananthapuram, Kerala
INDIA
Fax: +91 471 2333489
E-mail: chiefminister@kerala.gov.in

3. Mr. Kodiyeri Balakrishnan
Minister of Home Affairs
Government of Kerala
Room No.216, Third Floor
North Sandwich Block, Govt. Secretariat
Thiruvananthapuram 1, Kerala
INDIA
E-mail: minister-home@kerala.gov.in

4. Mr. Oomen Chandy
Opposition Leader
Puthupally House, Jagathy,
Thiruvannathapuram, Kerala
INDIA
Fax: +91 471 2315625

5. The Chairperson
Kerala High Court Legal Services Committee
High Court Building, Kochi
Kerala state
INDIA

6. The District & Sessions’ Judge
Thrissur
Civil Lanes, Ayyanthole
Thrissur district, Kerala state
INDIA

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-016-2009
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.