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INDIA: Illegal detention and custodial torture by West Bengal Police

December 26, 2005

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

26 December 2005
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UA-247-2005: INDIA: Illegal detention and custodial torture by West Bengal Police

INDIA: Police brutality, illegal detention, fabrication of false charges, custodial torture and blatant violation of laws
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from our local partner MASUM, a local nongovernmental organisation about the arrest and torture of an innocent person by police officers from Kharda Police Station on 14 December 2005.
The victim, Mr. Vijay Kumar Jaiswal was illegally taken into custody from his house on 14 December 2005 and was detained in custody for about 4 days by the officers from Kharda Police Station, before he was produced before the Sub Divisional Magistrate on 18 December 2005. It is reported that the police forcefully entered the victim’s house without any arrest or search warrant. It is alleged that the police was in fact looking for the brother of the victim, with whom the victim had no contacts for the last few years. Even though the victim pleaded with the police that he did not know about the whereabouts of his brother, the police took the victim into custody and detained him for about four days and later produced him before the local magistrate on fabricated charges so as to cover up the incident. It is also alleged that the police tortured the victim on his way to the police station and at the police station. It is also alleged that the police has taken a few articles from the victim’s house during the arrest and has now registered a false case against the victim.

The Asian Human Rights Commission (AHRC) is deeply concerned about the continuing acts of torture committed by the state police in West Bengal. In the past the AHRC has appealed that the police in West Bengal is continuously violating basic standards of policing and is blatantly violating the procedural laws while investigating cases. This case is yet another incident which depicts how the police in India and in West Bengal in particular violates law and still enjoy absolute impunity, thus reiterating the observation made by the AHRC that the situation of rule of India has deteriorated into such levels which calls for immediate attention.

Urgent Appeals Programme
Asian Human Rights Commission
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DETAILED INFORMATION:

Name of the victim: Mr. Vijay Kumar Jaiswal, aged 24 years, son of late Uma Shankar Jaiswal

Address: residing at K.S. Path, Kharda (near no.5 Water Tank), 24 Parganas (North) District, West Bengal, India

Date and place of the incident: 14 December 2005 at about 2.30hrs at K.S.Path and continuesly thereon at Kharda Police Station

Alleged perpetrators: Mr. Ashis Dutta, Assistant Sub Inspector and other police officers attached to Kharda Police Station, 24 Parganas (North) District, West Bengal, India

Case details:

Mr. Vijay Kumar is a mechanic repairing electronic appliences and lives with his family including his wife, his six month old son, Vijay’s mother, two sisters and his younger brother. At about 2.30 hrs past midnight on 14 December 2005, the police officers from Kharda Police Station forcefully broke into the Vijay’s house asking for Vijay’s another brother Mr. Vikki Jaiswal. Vijay informed the police that he is not aware about his brother’s whereabouts. The police did not listen to this and refused to accept Vijay’s ignorance about his brother. The police searched the house and took into custody a 14 inch television set and three mobile phones which had been kept at the victim’s house for repairs. Vijay informed the police that these articles belonged to the customers for which the police shouted at Vijay and the members of his family in filthy language.

The police then pulled Vijay out from his house and threw him into the police jeep. Once inside the police jeep the officers informed Vijay and his family that they are taking Vijay into custody and unless they produce his brother Vikki, they will not release Vijay. Vijay was brutally beaten on the way to the police station and at the police station. All along Vijay was asked to inform the police where his brother Vikki was, for which Vijay pleaded that for the last few years Vijay and his family had no information about Vikki.

Vijay was detained illegally in custody for about four days at Kharda Police Station and all along he was beaten up as a result of which Vijay suffered injuries. On 18 December Vijay was produced before the Barrackpore Sub Divisional Magistrate. On their way to the court Vijay was also taken to Balram Hospital. Before presenting Vijay before the resident medical officer the police threatened Vijay not to complain about anything to the doctor. The same threat was posed when Vijay was produced before the court. However, in the court, Vijay was given bail and he was released forthwith. It is only at the court Vijay was made aware that the police has registered a false charge of theft against Vijay (case number 303 dated 18/12/2005 of Kharda Police Station). The police have threatened Vijay that unless Vijay find out where his brother is within four days he will be arrested again on yet another false charge.

The facts of this case disclose how the police circumvent the laws and enjoy impunity even if they engage in absolute criminal activities and breach any provision of law. It is from the state of West Bengal that the land mark case decided by the Indian Supreme Court (D.K.Basu Case) originated in which the Supreme Court of India issued directions about the procedures to be followed while arresting a person. As on today these procedures laid down by the court is incorporated into the Criminal Procedure Code. However, due to the complete collapse of rule of law and the absolute impunity enjoyed by the police in the country such amendments and legal mandates makes no difference in the way police behaves and treat people in India.
The AHRC is deeply concerned about this case and request you to immediately intervene in this case. The complete impunity enjoyed by the Indian police must be condemned and the perpetrators must be brought to justice. One of the ways by which the impunity enjoyed by the Indian police could be checked is by India ratifying the International Convention against Torture. India, though has signed the convention, however, has failed to ratify it on the pretext that the domestic mechanism in India is good enough to cater the requirements of the Convention against Torture, and thus to prevent any custodial violence or ill treatment.

Suggested action:

Please write a letter or send a fax or email to the addresses listed below expressing your concern about this case. The conduct of the police officers responsible for the arrest, illegal detention, torture and fabrication of false charges must be inquired into by an independent body and an immediate medical examination of the victim must also be carried out. The police officers involved in this case must be suspended from service immediately and their actions must be brought to justice and must be punished according to law.

Sample letter:

Dear …

Re: Illegal arrest, fabrication of false charges, custodial torture and brutal violation of laws by police officers belonging to Kharda Police Station, 24 Parganas (North) District, West Bengal, India

Name of the victim: Mr. Vijay Kumar Jaiswal, aged 24 years, son of late Uma Shankar Jaiswal

Address: residing at K.S. Path, Kharda (near no.5 Water Tank), 24 Parganas (North) District, West Bengal, India

Date and place of the incident: 14 December 2005 at about 2.30hrs at K.S.Path and continuesly thereon at Kharda Police Station

Alleged perpetrators: Mr. Ashis Dutta, Assistant Sub Inspector and other police officers attached to Kharda Police Station, 24 Parganas (North) District, West Bengal, India

I am deeply concerned about the case of Mr. Vijay Kumar Jaiswal, aged 24 years, son of late Uma Shankar Jaiswal, residing at K.S. Path, Kharda (near no.5 Water Tank), 24 Parganas (North) District, West Bengal, India. I am informed that Mr. Vijay who was illegally arrested on 14 December 2005, was detained in custody for 4 days without being produced before the magistrate within 24hrs as mandated by law. I am extremely concerned about the manner of arrest where the police broke into Mr. Vijay’s house and conducted a search without the presence of women police officers and also without a search warrant. There was also no arrest warrant against Mr. Vijay. However, the police who came in search of Vijay’s brother Vikki arrested Vijay and have now fabricated false charges against Vijay. I am also informed that on release through the court, Mr. Vijay was warned by the police that unless he find out the whereabouts of his brother the police would again register false charges against him.

Apart from the illegal arrest, I am also concerned about the torture and inhuman treatment meted out against Mr. Vijay after he was taken into custody. I am informed that the police have threatened Vijay not to complain to anyone how he was arrested and treated while in custody. I am shocked to know about this case and also by the sheer number of repeated incidents of such nature reported from India. The repetition of these cases must be a shame upon the Government of India and also explains how deteriorated is the situation of rule of law in India.

I urge you to immediately intervene in this case and to order an impartial inquiry into the entire incident and particularly upon the conduct of the alleged perpetrators. The perpetrators must be punished and they must be made to pay compensation to the victim for the injuries suffered by him while in custody. An impartial medical examination must be conducted upon the victim and the perpetrators must be immediately suspended from service pending the investigation into this case. The false charge registered against the victim also must be quashed. Last but not least, I also urge you to take appropriate action to pressure the Government of India to ratify the Convention against Torture and to come up with appropriate domestic legislation against torture.

Yours truly

….

Please send letters to:


1. Mr. Subhash Awasthi
Director General of Police
Government of West Bengal
Writers Buildings
Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: padgp@wbpolice.gov.in 

2. Mr. Buddhadeb Bhattacharjee
Chief Minister and Minister in Charge of Home (Police) Department
Government of West Bengal
Writers' Buildings, Kolkata - 700001
West Bengal
INDIA
Tel: +91 33 2214 5555 (O) / 2280 0631 (R)
Fax: +91 33 2214 5480
Email: cm@wb.gov.in

3. Justice Shyamal Kumar Sen
Chairperson
West Bengal Human Rights Commission
Bhabani Bhavan, Alipore
Kolkata – 700027
West Bengal
INDIA
Tel: +91 33 4797259 / 5558866
Fax: +91 33 4799633
Email: wbhrc@cal3.vsnl.net.in

4. Mr. P.R. Ray
Home Secretary
Government of West Bengal
Writers' Buildings
Kolkata - 700001
West Bengal
INDIA
Tel: +91 33 2214 5656
Fax: +91 33 2214 3001
Email: sechome@wb.gov.in 

5. Mr. Justice A. S. Anand
Chairperson
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Tel: +91 11 23074448
Fax: +91 11 2334 0016
E-mail: mailto:chairnhrc@nic.in

6. Prof. Manfred Nowak
Special Rapporteur on the question of torture
Attn: Mr. Safir Syed
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9230
Fax: +41 22 917 9016 (general)
E-mail: ssyed@ohchr.org

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission


Document Type :
Urgent Appeal Case
Document ID :
UA-247-2005
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.