Dear Friends,
The AHRC has received information from its partner organization Nervazhi, that a 31-year-old man with a speech defect was tortured and harassed at a police station in Kerala, India. After being randomly picked up near his home, he was subjected to severe torture, resulting in serious physical and psychological trauma. He was not charged under any law, but was instead released on payment of a fine of Rs.300. He is presently undergoing medical treatment.
CASE NARRATIVE:
Thirty-one-year-old Nishansa, an auto-rickshaw driver with a 50% speech defect was detained and tortured by the Aayiroor police in Kerala. Late at night on 2 March 2016, Nishansa parked his auto-rickshaw in the shed near his house, and while he was locking the shed, a man on a bike approached him and asked for directions to Paravoor. A short while later, a police jeep with Sub Inspector(S.I.) Shahir and three other police constables stopped and asked him what he was doing there late at night. He replied that he was just parking his auto in the shed and that he lives there. They then questioned him about the biker and accused him of planning something in conjunction with the biker. The S.I then asked him to enter the jeep. At this point, Nishansa pleaded to be allowed to inform his family members. At this, the S.I. abused him and beat him up. The victim continued to plead with him to be allowed to inform his family members who were in his house, but to no avail. He faced more abuse and violence and was forced into the police vehicle.
He was driven to the police station and kept in the hall. A little later, he saw an old man being taken into the S.I’s room and heard him being tortured, pleading with the police to stop beating him, but to no avail. After about ten minutes of this, the S.I. called Nishansa to his room.
Nishansa entered the room and was asked to remove his slippers and sit on the floor. The S.I then pushed him down and beat him on the soles of his feet several times. He was abused and threatened with death. Due to the torture, he urinated. He was asked to get up, and was then severely beaten with a ‘lathi’. After this he was pushed to the hall of the station, with his urine stained clothes. At this time (around 2:30 a.m.) he received a phone call from his aunt, and he informed her that he was at the police station.
At around 4:30 a.m., his uncle along with the Panchayat vice president, Mr. Arshad, arrived at the police station, demanding his release. He was released at 2:30 p.m. after payment of a fine of Rs. 300. Due to the trauma of the torture, he has been under medical treatment, first at the Varkala Taluk Hospital, and then at the Arunima Hospital.
ADDITIONAL INFORMATION:
Fundamental procedural safeguards not followed
In this case, it is unclear exactly why the victim was detained. He was not charged under any law and further, he was explicitly disallowed from informing his family members. It is also unclear why and under what provision of law he was made to pay a fine of Rs.300.
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, in spite of his insistent pleading. He was neither informed of the grounds for his arrest when he was detained, and nor was he told about his right to bail. It must also be kept in mind that he has a speech defect.
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 is an undeniable part of India’s policing system. According to prolific academic Darius Rejali, torture is used as a method of interrogation, as a tool to obtain confessions due to over-emphasis on confessions as evidence in criminal justice systems, and as a tool to keep people in check, using intimidation and power to keep vulnerable populations afraid and servile.
In this case, it is obvious that the victim was subjected to torture in order to intimidate and scare him, and it is possible that the police officers took advantage of his vulnerability and relative powerlessness, given his speech defect. This case, once again, showcases the corrupt power-hungry machismo that is characteristic of police functioning in India.
This case is the second one that has been received from our partner organization, Nervazhi which accuses the Sub Inspector in question. Please see http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-026-2016 for more details. These cases show how serious and pernicious the problem of torture is, and begs the question – what has gone so terribly wrong in our policing system that a police inspector finds it so easy and risk free to target vulnerable people like these victims? Is he certain that he will not be punished, that such behaviour is ‘normal’ and above reproach?
The AHRC believes that adequate pressure and media attention to these cases will help highlight how corrupt and degraded the police institutions are in the country, resulting in action against the rowdy police officers, as per due process of law. Recently, the NHRC issued a show cause notice to the Chief Secretary, Government of Kerala regarding the non-payment of interim relief to a victim of police torture- http://nhrc.nic.in/dispArchive.asp?fno=13883. In that case, the six police officers were suspended from duty and a criminal case was filed against them.
SUGGESTED ACTION:
The facts of the case make it clear that the victim was wrongly detained and his fundamental rights violated. 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
SAMPLE LETTER
Dear ……………..,
INDIA: Man with speech defect arbitrarily detained and tortured in Kerala
Name of victim: Nishansa (31)
Names of alleged perpetrators: Sub Inspector Shafir, Police constable
Place of incident: Aayiroor Police Station, Kerala
I am writing to you to voice my deep concern about the illegal detention and torture of a man in Aayiroor Police Station limits.
Thirty-one-year-old Nishansa, an auto-rickshaw driver with a 50% speech defect was detained and tortured by the Aayiroor police in Kerala. Late at night on 2 March 2016, Nishansa parked his auto-rickshaw in the shed near his house, and while he was locking the shed, a man on a bike approached him and asked for directions to Paravoor. A short while later, a police jeep with Sub Inspector(S.I.) Shahir and three other police constables stopped and asked him what he was doing there late at night. He replied that he was just parking his auto in the shed and that he lives there. They then questioned him about the biker and accused him of planning something in conjunction with the biker. The S.I then asked him to enter the jeep. At this point, Nishansa pleaded to be allowed to inform his family members. At this, the S.I. abused him and beat him up. The victim continued to plead with him to be allowed to inform his family members who were in his house, but to no avail. He faced more abuse and violence and was forced into the police vehicle.
He was driven to the police station and kept in the hall. A little later, he saw an old man being taken into the S.I’s room and heard him being tortured, pleading with the police to stop beating him, but to no avail. After about ten minutes of this, the S.I. called Nishansa to his room.
Nishansa entered the room and was asked to remove his slippers and sit on the floor. The S.I then pushed him down and beat him on the soles of his feet several times. He was abused and threatened with death. Due to the torture, he urinated. He was asked to get up, and was then severely beaten with a ‘lathi’. After this he was pushed to the hall of the station, with his urine stained clothes. At this time (around 2:30 a.m.) he received a phone call from his aunt, and he informed her that he was at the police station.
At around 4:30 a.m., his uncle along with the Panchayat vice president, Mr. Arshad, arrived at the police station, demanding his release. He was released at 2:30 p.m. after payment of a fine of Rs. 300. Due to the trauma of the torture, he has been under medical treatment, first at the Varkala Taluk Hospital, and then at the Arunima Hospital.
ADDITIONAL INFORMATION:
Fundamental procedural safeguards not followed
In this case, it is unclear exactly why the victim was detained. He was not charged under any law and further, he was explicitly disallowed from informing his family members. It is also unclear why and under what provision of law he was made to pay a fine of Rs.300.
I have been made aware that S.50 of the Code of Criminal Procedure, 1973, mandates that the person arrested must be informed of the grounds of arrest and his right to bail. Further, S.50A (1) mandates that the officers making the arrest have an obligation to inform an individual nominated by the arrested person about the arrest and the place where the arrested person is being held. The police officer must inform the arrested person of his right under S.50A (1) as soon as the arrested person is brought to the police station. Furthermore, under S.50A (3), the police must officially document the details of who has been informed about the arrest. Also, I have learned that under S.51, whenever an article is seized from an arrested person, a receipt showing the articles that have been taken must be provided to the arrested person.
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, in spite of his insistent pleading. He was neither informed of the grounds for his arrest when he was detained, and nor was he told about his right to bail. It must also be kept in mind that he has a speech defect.
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 is an undeniable part of India’s policing system. I have learnt that according to prolific academic Darius Rejali, torture is used as a method of interrogation, as a tool to obtain confessions due to over-emphasis on confessions as evidence in criminal justice systems, and as a tool to keep people in check, using intimidation and power to keep vulnerable populations afraid and servile.
In this case, it is obvious that the victim was subjected to torture in order to intimidate and scare him, and it is possible that the police officers took advantage of his vulnerability and relative powerlessness, given his speech defect. This case, once again, showcases the corrupt power-hungry machismo that is characteristic of police functioning in India.
This case is the second one that has taken place in Kerala, involving the Sub Inspector in question. Please see http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-026-2016 for more details. These cases show how serious and pernicious the problem of torture is, and begs the question – what has gone so terribly wrong in our policing system that a police inspector finds it so easy and risk free to target vulnerable people like these victims? Is he certain that he will not be punished, that such behaviour is ‘normal’ and above reproach?
I believe that adequate pressure and media attention applied to these cases will help highlight how corrupt and degraded the police institutions are in the country, resulting in action against the rowdy police officers, as per due process of law. Recently, the NHRC issued a show cause notice to the Chief Secretary, Government of Kerala regarding the non-payment of interim relief to a victim of police torture- http://nhrc.nic.in/dispArchive.asp?fno=13883. In that case, the six police officers were suspended from duty and a criminal case was filed against them. So, it is possible to make a difference if we raise our voice together and inform the authorities to sit up and take action.
Therefore, I hereby request you to:
- Investigate this case thoroughly, keeping in mind that the victim was arrested without following proper procedure or the due process of law;
- Have the statement of the victim recorded by a judicial magistrate, so as to prevent the police officers from coercing a retraction later;
- Register a crime and book the offending police officers for torture, and investigate their alleged criminal behavior and failure to follow fundamental procedural safeguards;
- Immediately suspend the police officers who have committed the alleged torture pending enquiry;
- Instruct the Kerala state government to pay compensation to the victim for his illegal arrest, torture and trauma, and for the medical bills incurred due to the police torture;
- Instruct the Kerala Government to pay for his psychological counselling and therapy to deal with the trauma caused due to the torture and arbitrary detention
- Train police officers on how to handle interrogation of people with disabilities and handicaps
I look forward to your prompt action in this matter.
Yours sincerely,
—————————————–
PLEASE SEND YOUR LETTERS TO:
- Justice. Ashok Bhushan
Honourable Chief Justice
High Court of Kerala
Through the office of the Registrar
Kerala High Court
Kochi, Kerala
INDIA
FAX: +91 484 2391720
- Mr. Ramesh Chennithala
Minister for Home and Vigilance
Ground Floor, Main Block
Secretariat, Thiruvananthapuram, Kerala
INDIA
Fax + 91 471 2327451
E-mail: min.home@kerala.gov.in
- Mr. Sen Kumar(IPS)
Director General of Police, Kerala
Police Headquarters
Trivandrum – 695010, Kerala
INDIA
Fax + 91 471 2726560
E-mail: dgp@keralapolice.gov.in
- Justice H.L. Dattu
Chairperson
National Human Rights Commission,
Manav Adhikar Bhawan Block-C,
GPO Complex,
INA, New Delhi – 110023
Tel.No. 24651330
Fax No. 24651329
E-Mail: covdnhrc@nic.in, ionhrc@nic.in
- Justice J.B Koshy,
Chairperson
Kerala State Human rights Commission
Turbo plus tower ,pmg junction
Thiruvananthapuram-33
INDIA
Fax: 91 471 2337148
E-mail: hrckeralatvm@gmail.com
- Shri Rajnath Singh
Minister of Home Affairs
Room no 104, North Block, Central Secretariat
New Delhi – 110001
INDIA
Tel: +9111 23092462
Fax: +9111 23094221
- Secretary, Department of Home
Room no 113, North Block, Central Secretariat
New Delhi- 110001
INDIA
Tel: +9123092989
Fax: +9111 23093003
- Additional Chief Secretary of Kerala (Home & Vigilance)
Room No. 357(A) & 358
Main Block, Secretariat
Thiruvananthapuram, Kerala
INDIA
Tel: +914712333174, +914712333174/2518455
Fax: +914712327395
Email: ceo_kerala@eci.gov.in
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
