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INDIA: Custodial death of an under trial prisoner after brutal torture in prison

March 14, 2007

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ASIAN HUMAN RIGHTS COMMISSION- URGENT APPEALS PROGRAMME

Urgent Appeal

14 March 2007
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UA-080-2007: INDIA: Custodial death of an under trial prisoner after brutal torture in prison

INDIA: Custodial torture; impunity; prison conditions; lack of judicial action
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from its local partner Neervazhi based in Thrissur, Kerala state that an under trial prisoner was tortured to death while in remand custody. The AHRC is informed that the victim Mr. Shaji complained to the magistrate that he was subjected to torture in custody. However, the magistrate only directed the victim to be examined by a medical doctor and send Shaji back to remand custody where he was tortured further and allegedly killed on the same day.

CASE DETAILS:

According to the information received, Mr. Shaji, 38 year-old (estimated), son of Keshavan, residing at Koyikal Nikarthil house, Kodanthuruthu, Kuthiyathodu post, Cherthala, Alapuzha district, Kerala state was under detention at Kombara Sub Jail in Ernakulam district in connection with a crime. Shaji was transferred from Kombara Sub Jail to Viyoor Central Jail on 20 January 2007 for a reason that there was no space in Kombara jail. Viyoor central jail is about 85 kilometers from Kombara Sub Jail and is in Thrissur district. It has been reported that 17 other prisoners were also transferred from Kombara Sub Jail to Viyoor Central Prison on the same day along with Shaji. Shaji is from a poor family and lives in a temporary house in Kodanthuruthu in Cherthala district.

It is alleged that on arrival at the Viyoor Central Prison the detainees were assaulted by Mr. Yohannan who is one of the officers in the prison. Shaji questioned why the officer was assaulting him and others however the officer did not give them any explanations. Shaji then told the officer that he would complain to the court about the assault. In response to him, Yohannan shouted at Shaji saying that he doesn’t care whether Shaji informs or complain to the court. Then he caught the victim and forced him to bend down and started assaulting victim's spine with his elbow. Shaji was later locked up in a cell. Due to the injuries suffered from the assault Shaji could not urinate.

On 22 January 2007 Shaji was produced before the Additional Chief Judicial Magistrate Court, Ernakulam. At the court Shaji met his father, wife Sheeba and his lawyer Mr. Vinod, and informed them what had happened to him at the Viyoor Central Prison. He also told them that he would complain about the brutal act of the prison officer to the magistrate when he is produced before the magistrate.

When Shaji was produced before the magistrate he stated to the magistrate that he was severely assaulted by the prison officer while he was in Viyoor prison. The magistrate asked Shaji to give his complaint in writing through his lawyer. The lawyer immediately wrote down the complaint and got Shaji's signature in the complaint and filed it in the court. The magistrate ordered Shaji to be medically examined and directed Shaji to the District Hospital in Ernakulam. At the hospital the duty doctor did not examine Shaji properly. It is alleged that the doctor only tried to verify whether Shaji had any external injuries.

Shaji was returned to Viyoor along with the constables who produced Shaji in court with another detainee named Naseer alias Puli Naseer by the evening of the same day. Once they arrived at the Viyoor prison Naseer was asked to sign the reentry register and was send inside the cell while Shaji was asked to wait at the front office. Since then what is known is that Shaji was taken to the Medical College Hospital later at night in a prison ambulance and the victim died in the hospital at around 10:00 pm. There is no independent witness who saw what had happened between the time Shaji was returned to the Viyoor prison and his admission at the Medical College Hospital. It is now known that the Additional Chief Judicial Magistrate Mr. Cheriyan Kuriakose is conducting a judicial inquiry in the case.

Shaji's family is of the view that by all probability Shaji was murdered by Yohannan, the prison officer. The postmortem report and the statement given by Shaji are being obtained from court and the AHRC will prepare further appeal as an update to this case. The AHRC also expects that the Judicial Inquiry report will be also available in a short time.

ADDITIONAL INFORMATION:

Prisons in India suffer from several problems including but not limited to overcrowding, lack of facilities, transparency of activities in the prison and inhuman treatment and torture of detainees. It is common in prisons of India that the detainees are assaulted as they arrive in the prison. This is a practice continued after the colonial period and due to wrong perception, allegedly to 'soften' detainees so that they could be easily controlled while in custody. We emphasize that violence is also widely used in prisons since many prison officials believe that it is only such punishments that will be ultimately available for the under-trial prisoners since the officials believe that many will finally get acquitted by the end of the trial.

The most common method is that of brutally assaulting the new detainee to the extent that the victim cries out loud thereby 'declaring' his or her arrival in the prison. Since there are no credible mechanisms in the existing set-up such torture and inhuman treatment are often left unreported and the culprits never get punished. This has resulted in several detainees being murdered while in custody. Similar tactics to 'soften' detainees are used by employing other detainees and allowing them to beat-up a cellmate so that at a later stage the authorities could easily escape liability by blaming the 'bully' cellmate.

Interestingly, in an article published by article 2, a publication by the sister organization of the AHRC, the Asian Legal Resource Centre titled 'India's Graduate School of Crime', the author has referred to a quote by the same inquiring magistrate Mr. Cheriyan Kuriakose where the magistrate said "…the present intramural institutionalisation of an offender has proved to have done much harm than good, especially in the case of short-termers, as they come out after their detention period with a diploma in crime." The AHRC expects that a judge of such insight into the prison system in India, particularly in Kerala state, will take all efforts to bring out the truth in his inquiry report.

India suffers also from the complete absence of any credible mechanism to prevent custodial torture. Torture is not a crime in India. As of now, custodial torture, in Indian legal theory, is viewed as a personal crime committed by one individual against the other, contrary to the settled international standard of classifying torture as a crime qualified as ius cogens. For further reading please see Natural Law Theories at the Stanford Encyclopedia of Philosophy. This restricted approach in dealing with custodial torture by jurists in India pose heavy restrictions on prosecuting cases of custodial torture in India.

SUGGESTED ACTION:

Please write to the relevant authorities listed below and demand proper investigation and the immediate arrest and prosecution of the alleged perpetrator. The judicial inquiry report by the magistrate must be made public at the earliest.

To support this urgent appeal, please click here:

Sample letter:

Dear __________,

INDIA: Custodial death of an under trial prisoner after brutal torture in prison

Name of victim: Mr. Shaji, aged about 38 years, son of Keshavan, residing at Koyikal Nikarthil house, Kodanthuruthu, Kuthiyathodu post, Cherthala, Alapuzha district, Kerala state
Alleged perpetrator:
Mr. Yohannan, Writer, Viyoor Central Prison, Thrissur district, Kerala state, India
Date and Place of incident: Between 20 and 22 January 2007 at Viyoor Central Prison

I am writing to you to express my concern regarding the alleged case of custodial death of the victim, Mr. Shaji from Kerala state. I am informed that Shaji, the victim in the case, was an under trial prisoner who was shifted from Kombara Sub Jail in Ernakulam district to the Viyoor Central Prison on 20 January 2007 due to lack of space in Kombara prison. I am informed that the Writer at the Viyoor prison, Mr. Yohannan, assaulted Shaji and when Shaji protested he continued assaulting him.

I am informed that Shaji had filed a written complaint in court through his lawyer when he was produced in court on 22 January 2007, which the court has accepted into records. I am informed that Shaji was returned to the Viyoor prison on 22 January after his court hearing, but later on the same day night was taken to the Thrissur Medical College where he was declared dead by about 10:00 pm. I am also informed that the Additional Chief Judicial Magistrate stationed at Ernakulam, Mr. Cheriyan Kuriakose, is conducting a judicial inquiry into the case.

I therefore urge you to make sure that the judicial inquiry into the case is completed at the earliest, pending which the alleged perpetrator Mr. Yohannan be suspended from service. I also urge you to make sure that an interim compensation be paid to the victim's family and that the perpetrator be brought to trial at the earliest convenience. I also urge you to take appropriate measures to pressure the Government of India to ratify the United Nations International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment without any delay and make torture a crime punishable in India.

I look forward to your immediate and sincere action to this case.

Yours sincerely,

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PLEASE SEND YOUR LETTER TO:

1. The Chief Justice
Through the Office of the Registrar
High Court of Kerala
Kochi, Kerala state
INDIA
Email: highcourt@ker.nic.in

2. Mr. V. S. Achuthanandan
Chief Minister
Government of Kerala
North Block, Secretariat,
Thiruvananthapuram, Kerala
INDIA
Fax: +91471 2333489
Email: 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
Tel:  +91 471 2327976, 2327876
Email: minister-home@kerala.gov.in

4. Mr. Oomen Chandy
Opposition Leader
Puthupally House, Jagathy,
Thiruvannathapuram,
Kerala
INDIA
Fax: +91 11 471 2315625

5. The Director General of Police
Government of Kerala
Police Head Quarters
Thiruvanandapuram,
Kerala
INDIA
Fax: +91 471 2729434
Email: dgn@scrb.org

6. The Inspector General of Prisons
Prisons Headquarters
Poojappura, Thiruvananthapuram
Kerala
INDIA
Tele - Fax: + 91 471 2340337

7. The Chairperson
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: +91 11 23384863
Email: covdnhrc@nic.in, ionhrc@nic.in

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ahrchk@ahrchk.org)

 

Document Type :
Urgent Appeal Case
Document ID :
UA-080-2007
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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.