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Front Page >> Features  > Story

Step 2: In the <body>, place the 
   
Bind Over Torture, Disappearance And Interrogation
By Rahul Rai
Protection under general criminal:

It is good to note in this connection that torture has been made a punishable offence under Sections 220, 330 and 331 of the Indian Penal Code. Section 220 provides for punishment to an officer or authority who detains or keep a person in confinement with a corrupt or malicious motive. Voluntarily causing hurt to extort confession or information is an offence under Section 330 punishable with seven years imprisonment and fine and 10 years imprisonment for causing grievous hurt under Section 331.

Under Section 54 of the Code of Criminal Procedure, the accused person if brought before Magistrate can request for medical examination. This provision runs as follows:

"When a person who is arrested whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexatious delay or for defeating the ends of justice".

Inquiry by the National Human Rights Commission:

The National Human Rights Commission has urged all States and UTs to constitute State Human Rights Commissions and notify a court of sessions to be a Human Right’s court in each district as envisaged by Sections 21 and 30 respectively of the Protection of Human Rights Act, 1993. Under the Indian federal system such as ours, it is evident that a concrete responsibility must rest with individual States both to promote and protect human rights and to redress grievances. The decentralization of the complaint disposal mechanism thus becomes a necessity, not least so to provide a redressed mechanism that is readily accessible and inexpensive in terms of time and cost. States have, in addition, been urged to establish district-level committees for effective and speedy redressal of complaints of human rights violations".

Disappearances:

Some men arrive. They force their way into a family’s home, rich or poor, house, hovel or hut, in a city or in a village, anywhere. They come at any time of the day or night, usually in plain clothes sometimes in uniform, always carrying weapons. Giving no reasons, producing no arrest warrant, frequently without saying who they are or on whose authority they are acting, they drag off one or more members of the family towards a vehicle using violence in the process if necessary.

This is often the first act in the drama of an enforced or involuntary disappearance, a particularly heinous violation of human rights. According to the Declaration on the Protection of All Persons from Enforced Disappearance, proclaimed by the General Assembly in its resolution 47/133 of 18 December 1992, enforced disappearance occurs when ‘persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law."

A disappearance is a doubly paralyzing form of suffering: for the victims, frequently tortured and in constant fear for their lives; and for their family members, ignorant of the fate of their loved ones, their emotions alternating between hope and despair, wondering and waiting, sometimes for years, for news that may never come. The victims are well aware that their families don't know what has become of them and that the chances are slim that anyone will come to their aid. Having been removed from the protective precinct of the law and 'disappeared' from society, they are in fact deprived of all their rights and are at the mercy of their captors. If death is not the final outcome and they are eventually released from the nightmare, the victims may suffer a long time from the physical and psychological consequences of this form of dehumanization and from the brutality and torture, which often accompany it.

The family and friends of disappeared persons experience slow mental torture, not knowing whether the victim is still alive and, if so where he or she is being held, under what conditions, and in what state of health. Aware, furthermore, that they too are threatened, that they may suffer the same fate themselves, and that to search for the truth may expose them to even greater danger.

The family's distress is frequently compounded by the material consequences resulting from the disappearance. The missing person is often the mainstay of the family's finances. He or she may be the only member of the family able to cultivate the crops or run the family business. The emotional upheaval is thus exacerbated by material deprivation, made more acute by the costs incurred should they decide to undertake a search. Furthermore, they do not know when - if ever - their loved one is going to return, which makes it difficult for them to adapt to the new situation. In some cases, national legislation may make it impossible to receive pensions or other means of support in the absence of a certificate of death. Economic and social marginalizations are frequently the result.

Rights violated by the practice of disappearances:

The practice of enforced disappearance of persons infringes upon an entire range of human rights embodied in the Universal Declaration of Human Rights and set out in both International Covenants on Human Rights as well as in other major international human rights instruments.

Disappearances can also involve serious violations of the Standard Minimum Rules for the Treatment of Prisoners, approved by the United National Economic and Social Council in 1957, as well as in the Code of Conduct for Law Enforcement Officials and the Body of Principals for the Protection of All Persons under any from of detention or imprisonment, adopted, by the General Assembly in 1979 and 1988 respectively. The following individual rights may also be infringed upon in the course of a disappearance:

* The right to recognition as a person before the law;

* The right to liberty and the security of the person;

* The right not to be subjected to torture and other cruel, inhuman or degrading, treatment or punishment;

Declaration on the protection of all persons from enforced disappearance:

On 18th December 1992 the General Assembly, by resolution 47/133, proclaimed the Declaration on the Protection of All Persons from Enforced Disappearance. The working group which participated actively in the elaboration of the declaration welcomed it as a milestone in the united efforts to combat the practice of disappearance and considered that it constituted an important basis for its own future work.

The Declaration refers to the right to a prompt and effective judicial remedy as well as unhampered access by national authorities to all places of detention, the right to habeas corpus, the maintenance of centralized registers of all persons in detention, the duty to investigate fully all alleged cases of disappearance the duty to try alleged perpetrator of disappearances before ordinary (not military) courts, the exemption of the criminal offence of acts of enforced disappearance from ordinary statutes of limitations and special amnesty laws and similar measures which might lead to impunity.

The law against torture and involuntary disappearances should clearly stipulate that these practices are crimes against humanity must recognize three basic principles.

1. That Government is legally responsible for repairing damages suffered by victims and their families, and for prosecuting and punishing all who, by complicity or negligence, are responsible for torturing, executing or forcing one to disappear who is in Govt custody, executing or forcing one to disappear who is in Government custody or under interrogation by Government agents, regardless of the motives of the perpetrators.

2. That no pardon or amnesty may be granted to any person accused of these practices since these practices are universal and imprescriptible offences;

3. That Government who do not themselves engage in these practices, but supply Governments that do with the tools or the know-how, are accessories before the fact and, as such, are responsible for the results involved in detention and interrogation.

On the administrative level, we must also work towards the creation of practical measures reinforcing supervision and accountability of persons involved in detention in interrogation.

The practical measures would include:

A Central register of all arrests and detentions;

Prompt reporting of all arrests and detentions to the judicial authorities and to the families lawyers of the persons arrested, and to any interested parties; such reports should include at least the date, time, place and cause of the arrest, the identity of the arresting officer, his official station and authority to effect the arrest, the place where the person arrested is detained, and the name of the officer in charge thereof;

A ban on incommunicado detentions, secret detention places and secret arrests;

Immediate notification, upon arrest, to the person arrested of his rights;

Immediate medical examination of person arrested and periodic and regular medical examinations by physicians of choice, of all persons arrested, detained and in custody;

Unimpaired and immediate access to civil courts;

Unrestricted regular visits by family, friends, lawyers, doctors and religious advisers, without delay or hindrance;

Systematic review of interrogation rules - instructions methods, procedures and practices as well as arrangements for custody and treatment of detainees;

Periodic inspections of detention centers, jails, prisons and all other places of detention and interviews of persons under detention by impartial and independent national and international governmental or NGOs;

The release of persons arrested only to their families, and when they have no families, to a responsible civilian. Releases must be accompanied by a "certificate of Release", executed by the officer-in-charge of the detention center; copies of the "Certificate of Release" must be immediately furnished to the family of the person release, and to the judicial authorities;

When there is evidence of arrest or other manner of apprehension of a person, by officers of the law, and such person is not thereafter seen nor heard from, the officer or officers who affected the apprehension should be held accountable to explain the disappearance without delay.

On the State and national level, we should conduct public campaigns against these practices and vigorous education and training on the prohibition of these practices, directed to the general public, and to the police, military, para-military and other investigative personnel.

We should also conduct training and education against these practices for the general public. Teachers should be encouraged to discuss them in their classes. Priests and pastors should be encouraged to discuss them in their pulpits, and we would campaign for the continuous education and training of police, para-military personnel, medical personnel, public officials, and other persons involved in the custody, interrogation or treatment of any person subjected to any form of arrest, detention or imprisonment.

Interrogation:

The ordinary dictionary meaning of the word ‘interrogation’ is "to ask questions of a person especially closely or formally to obtain information". This common word has now attained a negative connotation associated with violence - physical or psychological - in law enforcement context. The Supreme Court had come down heavily on this practice of using violence in interrogation. Some of the judicial observations are:

"Law does not permit perversion of its process for the purpose of ferreting out crime either by fear or force, by other means equally objectionable. Despite the difficulty, the detective process must harmonies with fair and human standards. It is a matter of least moment that suspicions, which fill on such person are well found-ed. Even on that assumption, to resort to inquisitional methods of brutality cannot be countenanced. Regardless of the nature of the crime, the method adopted for its detection must not be barbarous or fill below permissible civilized norms. The practice, still prevailing, of putting a suspect through third degree treatment or subjecting him to what is called a 'sweating process', in the hope of discovering clues or obtaining confession, is most dangerous and more often hampers than helps in the discovery of the truth. In criminal jurisprudence, there is no room for such a procedure. Volition and violence cannot coexist.

"If you once forfeit the confidence of your fellow citizens, you can never regain their respect and esteem. It is true that you can fool all the people some of the time, but you cannot fool all the people all the time." — Abraham Lincoln.

In most of the cases the victims of torture, disappearances and interrogations are unaware of their rights and the public support. The jungle rule by some if allowed to continue will produce a state of psychic excitement amongst the jungle rulers and these needs to be countered by mass HR operations. Conduct seminars, discussions, awareness programs, conferences, lectures, workshops and public condemnation on torture, disappearances and interrogation prevalent in our human society. 

Courtesy: The Sangai Express

  

 

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