Deaths in custody could be prevented if police follow rules designed to deter mistreatment

hrwThe Human Rights Watch report “Bound by Brotherhood: India’s Failure to End Killings in Police Custody” examines the reasons for the continuing impunity for custodial deaths in India, and recommends steps that authorities can and should take to end it. It details the scope of the problem drawing on in-depth investigations into 17 custodial deaths that occurred between 2009 and 2015 and more than 70 interviews with victims’ family members, witnesses, justice experts, and police officials. Excerpts from the report:

Deaths of criminal suspects in custody occur too often in India. In response to this longstanding problem, Indian authorities including the courts and the National Human Rights Commission have set out detailed procedures to prevent and punish police use of torture and ill-treatment. However, Indian police still often torture suspects to punish them, gather information, or coerce confessions.

According to the National Crime Records Bureau, between 2010 and 2015, 591 people died in police custody. Police blame most of the deaths on suicide, illness, or natural causes. For instance, of the 97 custody deaths reported by Indian authorities in 2015, police records list only 6 as due to physical assault by police; 34 are listed as suicides, 11 as deaths due to illness, 9 as natural deaths, and 12 as deaths during hospitalization or treatment.

However, in many such cases, family members allege that the deaths were the result of torture. While investigations were ordered by courts, human rights commissions, or other authorities in some cases, Human Rights Watch is not aware of a single case in which a police official was convicted for a custodial death between 2010 and 2015. Four policemen in Mumbai were convicted in 2016 for the custodial death of a 20-year-old suspect in 2013.

Ultimately, police abuse reflects a failure by India’s central government and state governments to implement accountability mechanisms. Despite strict guidelines, the authorities routinely fail to conduct rigorous investigations and prosecute police officials implicated in torture and ill-treatment of arrested persons. Police investigators often close cases relying solely on the accounts of the implicated police officers.

Maja Daruwala, executive director of the New Delhi-based rights organization Commonwealth Human Rights Initiative, which has long campaigned for police reform, said that even though police deny that they engage in cover-ups to protect officers who commit abuse, there are serious gaps in both accountability and supervision: “The police as an organization has to decide whether shielding bad policing, illegal policing, and what amounts to murder is of value to their efficiency.”

In each of the 17 cases, the police did not follow proper arrest procedures—including documenting the arrest, notifying family members, conducting medical examinations, or producing the suspect before a magistrate within 24 hours—which made the suspect more vulnerable to abuse and may have contributed to a belief by police that any mistreatment could be covered up. In most cases, investigating authorities, mainly the police, failed to take steps that could have helped ensure accountability for the deaths.

Police Failure to Follow Proper Arrest Procedures

Usually, torture is likely when suspects are first brought into custody, which is why proper arresting procedures are crucial to prevent assault or death. For instance, police in Hyderabad failed to register the arrest of B Janardhan after they picked him up on August 2, 2009. Family members said they saw him in police custody on August 3, when four policemen brought him briefly to his house. They said he was handcuffed and that the officers repeatedly beat him. On August 4, Janardhan died while in police custody. The police refused to admit to any wrongdoing, telling family members, “What could we do? He died of a heart attack.”

But Janardhan’s brother Sadanand said that the body had injuries from apparent police beatings. The police initially denied that Janardhan was illegally detained for two days, but following protests, the police chief admitted that his officers were negligent and Janardhan should have been brought to the police station, with his arrest duly noted, instead of being taken on a search operation.

As in Janardhan’s case, Indian police often bypass Supreme Court rules to prevent custodial abuse set out in the case of D.K. Basu v. West Bengal nearly two decades ago in 1997. Since incorporated into the amended Code of Criminal Procedure, the rules call for the police to identify themselves clearly when making an arrest; prepare a memo of arrest with the date and time of arrest that is signed by an independent witness and countersigned by the arrested person; and ensure that next of kin are informed of the arrest and the place of detention.

The rules require arrested persons to be medically examined after being taken into custody, with the doctor listing any pre-existing injuries—any new injuries will point to police abuse in custody. Another important check on police abuse is the requirement that every arrested person is produced before a magistrate within 24 hours. The magistrates have a duty to prevent overreach of police powers by inspecting arrest-related documents and ensuring the wellbeing of suspects by directly questioning them. In practice, these protections have not prevented the worst custodial abuses. According to government data, in 67 of 97 deaths in custody in 2015, the police either failed to produce the suspects before a magistrate within 24 hours as required by law, or the suspects died within 24 hours of being arrested.

Agnelo Valdaris and three co-accused in April 2014 were beaten by police in Mumbai so they would confess to stealing goods. While the suspects said they were warned from saying anything during the mandatory medical check-up, the medical report includes a record that Valdaris told the doctor his injuries were a result of police beatings. Before he could be produced before a magistrate, the police said that Valdaris was hit and killed by a train while trying to escape—a conclusion his co-accused found implausible given his physical condition. “The police personnel killed my son because they were scared that he was going to complain about the torture to the magistrate,” Valdaris’s father told Human Rights Watch.

But the statistics also indicate that adhering to the rules on presenting people before magistrates and conducting medical tests will not necessarily spare suspects from being tortured. Suspects are afraid to say they have been mistreated or that medical staff did not carry out their responsibilities in a professional or impartial manner. “The police often give some explanations that the arrested person was trying to abscond or run away, and at that time, got injured. Even the accused won’t say anything because he knows he might be sent back in police custody,” a magistrate told Human Rights Watch.

The failure of police to abide by arrest and detention rules makes suspects more vulnerable to mistreatment. The police have adopted many ways to get around the custodial rules. Complained a magistrate in Tamil Nadu, “Police have their own code of police procedure. They don’t follow the Code of Criminal Procedure.”

Failure to Hold Police Accountable for Custodial Deaths

Indian law requires a judicial magistrate to conduct an inquiry into every custodial death. The police are expected to register a First Information Report (FIR) and the death investigated by a police station or agency other than the one implicated. Every case of custodial death is also supposed to be reported to the National Human Rights Commission (NHRC). The police are also required to report the findings of the magistrate’s inquiry to the NHRC along with the post-mortem report. NHRC rules call for the autopsy be filmed and the autopsy report to be prepared according to a model form. Human Rights Watch research, court decisions, and media accounts show that these steps are frequently ignored.

According to government data, a judicial inquiry was conducted in only 31 of the 97 custodial deaths reported in 2015. In 26 cases, there was not even an autopsy of the deceased. In some states, an executive magistrate—who belongs to the executive branch of the government as do the police, and therefore is not independent and is likely to face pressures not to act impartially—conducts the investigation rather than a judicial magistrate.

Internal departmental inquiries to examine wrongdoing rarely find police culpable. The police also may delay or resist filing complaints against implicated police officers. In 2015, police registered cases against fellow police officers in only 33 of the 97 custodial deaths. Said Satyabrata Pal, until 2014 a member of the National Human Rights Commission:

“The entire intention in a police internal investigation is to whitewash so they deliberately do not look at what you need to find the truth.… The police investigation is not worth the paper it’s written on.”

After Shyamu Singh died in police custody on April 15, 2012, in Uttar Pradesh state, police said that Singh had committed suicide. But his brother who was arrested with him said that after their arrest, both were stripped down to their underwear and tortured:

“[The police officers] put us down on the floor. Four people held me down and one man poured water down my nose continuously. I couldn’t breathe. Once they stopped on me, they started on Shyamu. Shyamu fell unconscious. So they started worrying and talking among themselves that he is going to die. One of the men got a little packet and put the contents in Shyamu’s mouth.”

Shyamu Singh died in the hospital. The police dismissed allegations of death from torture after holding a cursory internal investigation. The state Criminal Investigation Department (CID) conducted an initial investigation and concluded in 2014 that seven police officers were responsible for torturing Singh and poisoning him to death. However, a final inquiry report submitted a year later cleared all seven. One challenge for accountability in custodial deaths is the propensity of government doctors to back police claims.

Autopsy and forensic reports frequently support the police version of events even where there is no apparent basis. Julfar Shaikh, 35, died at a Mumbai police station on December 2, 2012. An autopsy found 21 external injuries, yet the report said that the injuries were “not sufficient to cause death.” A panel of doctors agreed, saying that Shaikh died of meningitis and “subarachnoid haemorrhage.” However, expert medical opinion from outside the state of Maharashtra sought by the Central Bureau of Investigation as part of a fresh inquiry found that Shaikh died of neurogenic shock as a result of intense trauma and physical abuse.

“The problem in the prosecution of a custodial death case is that as soon as the medical [report] goes against you, the case is finished,” Shaikh’s advocate Yug Mohit Chaudhry said. “Only when the medical supports you, there is a chance.” India’s Supreme Court has repeatedly noted that with custodial crimes, producing evidence against the police is very difficult because the police feel “bound by their ties of brotherhood.”

The government and courts need to more rigorously address the willingness of police to shield those responsible. The national and state human rights commissions have largely failed in their oversight role in cases of custodial killings. The National Human Rights Commission is empowered to summon witnesses, order production of evidence, and recommend that the government initiate prosecution of officials. However, in practice its recommendations have mostly been limited to calling on the government to provide compensation or other immediate interim relief.

Between April 2012 and June 2015, of the 432 cases of deaths in police custody reported to the NHRC, the commission recommended monetary relief totaling about 22,910,000 rupees (US$343,400), but recommended disciplinary action in only three cases and prosecution in none.

Intimidation of Victims’ Families and Witnesses

In custodial death cases, families of victims seeking justice often face intimidation and threats. Many of these families are poor and socially marginalized, making them especially vulnerable to such harassment. During the prosecution of policemen for the death of Agnelo Valdaris, the Bombay High Court in September 2015 noted:

“It is common knowledge that most of these people who have died in the police custody belong to lower strata of society and belong to minority community and these persons do not have knowledge about the State policy to engage/appoint lawyer so that they can be properly represented in Court matters.”

Rajib Molla, a 21-year-old vegetable seller, was arrested on February 15, 2014, in West Bengal state, and died the same day in police custody. The police said he committed suicide but his wife alleged he died from torture. Molla’s wife said that ever since she sought judicial intervention in the case, powerful men in the area threatened her to withdraw her complaint. Banglar Manabadhikar Suraksha Mancha (MASUM), a nongovernmental organization that was supporting her, also reported threats and the detention and beating of one of its staff members.

***

India has ratified the International Covenant on Civil and Political Rights and signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, both of which prohibit torture and cruel, inhuman, and degrading treatment or punishment. They also provide for the authorities to prosecute the officials responsible. These commitments are reflected in Indian central and state laws that condemn torture, and provide some procedural safeguards against it.

The Supreme Court has also interpreted the constitutional right to liberty and human dignity as an “an inbuilt guarantee against torture or assault by the State or its functionaries.” In many of the cases detailed in this report, deaths in custody could have been prevented if police had followed the rules designed to deter mistreatment. And if police accused of mistreating suspects were promptly and fairly brought to justice across India, perhaps custodial deaths from torture would cease once and for all.

Key Recommendations

  • Strictly enforce existing laws and guidelines on arrest and detention in the Code of Criminal Procedure and the Supreme Court’s D.K. Basu decision, particularly with respect to recording detentions, informing families, producing suspects before magistrates, and providing medical examinations.
  • Ensure that police officers implicated in torture and other ill-treatment, regardless of rank, are disciplined or prosecuted as appropriate.
  • Ratify the Convention against Torture and incorporate its provisions into domestic law.
  • Enact an adequately funded and effective victim and witness protection law

Click HERE to download report

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