INDIA: Man tortured and detained for more than nine hours in Kerala

Dear Friends,

The AHRC has received information from its partner organization Nervazhi, that one man, aged 52, was tortured and harassed at a police station in Kerala. He was riding his motorbike when the Aayiroor police stopped him. The police tortured him and injured him severely, resulting in him fainting. He has been charged under Section 118 (a) of the Kerala Police Act. Released on bail, he is presently undergoing medical treatment.

CASE NARRATIVE:

Dileep Kumar, aged 52, was riding his motorbike on 29 February 2016 at around 11:30 p.m. when a vehicle stopped him. A man wearing a t-shirt and pants got out of the vehicle, and caught his bike handle aggressively. When Kumar asked him who he was, he replied that he would show him who he was, and slapped his cheek hard. A uniformed policeman then pushed him into the back of the vehicle, and his mobile phone was confiscated; thus Kumar realized that he was stopped by police officers. His bike was driven by a police officer and he was taken to Aayiroor police station. The S.I Mr. Shahir and another policeman slapped him around aggressively and with excessive force, resulting in him falling unconscious. He regained consciousness only on March 1 at around 3 a.m., when he found himself in a jail cell. He felt intense pain in his scrotum area and found his right little toe and left big toe broken.

His phone was returned to him at 8:30 a.m., at which time he called his friends Babu and Liju. At around 9 a.m. he was charged under Section 118 (a) of the Kerala Police Act which reads: “118. Penalty for causing grave violation of public order or danger — Any person who,— (a) is found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself.” His friends later paid bail on his behalf to secure his release. His motorbike has not been returned to him and he claims that Rs. 4000 in a bag in the motorbike was stolen by the police officers. He is under medical treatment for his injuries.

ADDITIONAL INFORMATION:

Fundamental procedural safeguards not followed

Section 50 of the Code of Criminal Procedure, 1973, mandates that the person arrested must be informed of the grounds of arrest and of his right to bail. Furthermore, Section 50A (1) mandates that the arresting officers have an obligation to inform someone else nominated by the person about the arrest, and the place where the person is being detained. The police officer must inform the arrested person of his rights as soon as he is brought to the police station.

Also, under Section 50A (3), the police are mandated to document the name and details of the person who has been informed about the arrest. Whenever an article is seized from an arrested person, Section 51 requires that a receipt showing the articles that have been taken must be given to the arrestee.

These mandates flow from the constitutional guarantees in Part III of the Indian Constitution, namely Articles 20 (Protection in respect of conviction of offences), 21 (Protection of Life and Personal Liberty), and, most importantly, 22 (Protection against Arrest and Detention in certain cases), which details the fundamental procedural safeguards to be followed.

In the present case, the police officers brazenly flouted all the safeguards mandated by law, as detailed above. The victim was not allowed to inform his nominated persons till much later, and no receipt was issued when his mobile phone was confiscated. He was neither informed of the grounds for his arrest when he was detained, and nor was he told about his right to bail.

The landmark case of D.K. Basu vs. State of West Bengal (AIR 1997 SC 610) lists 11 guidelines for arrest. One of the most important guidelines is number 10: the right of the person arrested to have a lawyer present during interrogation (although not for the whole period).

Justice D. Anand, in the aforesaid case, wrote:

“Efforts must be made to change the attitude and approach of the police personnel handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable form of interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogation may deter the police from using third degree methods during interrogation.”

The framing of the D.K. Basu guidelines was a seminal juncture for Indian jurisprudence, and in the present case none of the 11 guidelines listed out by the Supreme Court of India have been followed.

Torture

Torture has always been a part of policing in India. As far back as 2003, a Times of India news report (‘Police torture is rising, warn civil libertarians’, Somit Sen, 15 July 2003) detailed torture methods used by police officers to obtain information and coerce confessions from suspects, noting that the victims are usually the most powerless sections of society. In August 2004, the Washington Post (‘In India, Torture by Police Is Frequent and Often Deadly’, Rama Lakshmi, 5 August 2004) reported on the frequent use of torture and force by police stations across India, and that “Some police officers justify the use of torture to extract confessions and instill fear”.

Not much has changed. The August 2014 cover story in the India Today magazine (‘Human rights: Terror through torture’, C. Joshi, 14 August 2014) details the various methods of torture used as tools of interrogation in India. It also describes an important aspect of torture in India:

An interesting phenomenon is that in many cases where torture was employed at the level of the sub-inspector, and Deputy Superintendent of Police, case histories show that they had been promoted from the ranks and had a strong attachment to hierarchy and believed in “exercising their power” through the “infliction of pain”. This psychologically enabled them to ensure that the victim could actually and physically feel their power and in essence overcome their sense of inferiority.

The current case involving Dileep Kumar involves a similar behavior pattern, with torture used to inflict pain and assert authority. It showcases the corrupt power-hungry machismo that is characteristic of police functioning in India.

Not only is the use of brute force and torture illegal and in violation of human rights norms, it is also ineffective, inefficient and a waste of time. The release of the executive summary of the Senate Select Committee on Intelligence’s report on the Central Intelligence Agency’s (CIA) Detention and Interrogation Program in December 2014 unequivocally states that torture was not an effective means of acquiring intelligence and was, in many cases, counter-productive.

There are numerous other reports and studies that have detailed the same, and the Indian state would be wise to pay heed to the scholarship and evidence and encourage police authorities to use humane, scientific, and far more effective methods of interrogation. To this end, training should be provided to all police officers at all levels of the administrative hierarchy. This turn towards a more effective and humane investigative system country-wide will not only better protect the human rights of the most vulnerable Indian citizens, but also reduce the burden on the overworked judicial system by introducing greater efficiency and more attention to detail in the gathering of evidence.

The illegal torture and charges against Kumar will not only scar him, and cause future mistrust of state authority, but it will add to the work of the judiciary. This case will go to trial and will, in all probability, be dismissed for lack of evidence.

SUGGESTED ACTION:

The facts of the case make it clear that the charging of the victim under Section 118 (a) of the Kerala Police Act is wrong and deserves to be scrutinized closely. Please write letters to the following authorities calling on them to take the necessary action against the rogue police officials in this case. 
The AHRC is writing a separate letter to the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, for its intervention into this matter.

 

To support this case, please click here: SEND APPEAL LETTER