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Criminal responsibility for torture

An Indian perspective

SAuMYA uMA
Contexts of torture
Some of the most common contexts of torture are police stations, detention centres and interrogation centres, although it is a practice that is decried by human rights activists and the Supreme Court. Despite the establishment of the NHRC to deal with such abuses more than a decade ago, police torture continues unabated. The severity of the incidence of torture is much worse than the statistics indicate, because victims, fearing reprisals, rarely report cases against the police. Some police officers justify the use of torture to extract confessions and instill fear. However, it is also true that the police in India are under tremendous pressure, as people need quick results. In a recent attempt to impact the practice of torture, most police stations in Delhi have been equipped with a camera in order to make the police functioning transparent.
Torture is frequently resorted to in situations of armed insurgency and militancy, such as in Punjab, North Eastern states and the state of Jammu and Kashmir. Another context of torture are situations of communal violence. India has witnessed several such situations, some of which include the anti-Sikh attacks in Delhi in 1984, attacks against Muslims in Mumbai, Surat and other places following the destruction of Babri Masjid in 1992-1993, attacks on Christians in 1998-99 and attacks against Muslims in Gujarat in 2002. In all such situations, some form of torture has been used against members of religious minority communities. Dalits are victims of one of the most cruel and exploitative systems legitimised by religion. Various forms of torture are perpetrated upon dalits ('untouchables' in the prevailing caste system) by members of "upper" castes, aimed at maintaining status quo within the social hierarchy mediated by caste and untouchability. Assault, rape, torture, butchery and massacre of dalits, as well as practices of segregation and discrimination are rampant. Over 40 million dalits are bonded labourers, and are the worst victims of torture, exploitation and coercion in bondage. Adivasis (indigenous peoples), like the dalits, are illiterate and vulnerable to various forms of atrocities, motivated largely by an appropriation of forests and natural resources to serve the ends of economic globalisation. In addition, vulnerable groups such as women are specially targeted for gender violence in all the contexts discussed above. Torture of children in various contexts, including refugee, dalit and tribal children, arrest of children under POTA, corporal punishment and sexual exploitation by police has also been the subject of a detailed report. (Suhas Chakma, The Status of Children in India, Asian Centre for Human Rights, October 2003)
Torture as a women's rights concern Torture is not only a human rights concern in general, but is also a women's rights concern. The physical and mental pain inflicted by rape and other forms of sexual violence has been clearly recognised in international jurisprudence as one of the most severe forms of torture (Prosecutor vs Delalic et al, IT-96-21, ICTY, November 1998, paras 495 and 496).
Reports also highlight the fact that in situations of armed conflict, women bear the brunt of sexual torture from both sides the insurgent / militant groups and the armed / paramilitary forces.
Women face more impediments to legal redress due to the stigma attached to sexual assaults and the fear of facing discriminatory treatment from the community. In addition, sexual assault of women in situations of communal violence is rampant. In the anti-Sikh attacks in Delhi in 1984, many Sikh women were raped, sometimes repeatedly, by Hindu men. The communal attacks in Mumbai in 1992-3 also witnessed widespread sexual assaults of women. However, the Gujarat carnage of 2002 is unprecedented in its scale, nature and brutality of sexual violence perpetrated against Muslim women and young girls. Rape is also used against dalit women as an instrument of subjugation by dominant castes.
Dalit women are often stripped, raped and molested by upper caste men. In some areas this extends to the killing of women as witches or dayans. Adivasi women are similarly targeted. Many such cases are motivated by property disputes, camouflaged by superstitious and traditional practices.
In addition, many instances of violence against women exist in the Indian society. The home has become a torture chamber for many women, who face domestic violence. According to the statistics of National Crime Bureau, in 2002, cruelty and torture perpetrated by a husband and his family made up 36 percent of all reported crimes against women in India. Yet, it is ironic that a special provision brought into the Indian Penal Code (S. 498A) to deal with the menace is constantly under fire due to alleged misuse by a few women. Feminists have advocated for an understanding of domestic violence as torture.
investigation of allegations of torture
There exists a backlog of complaints pending before the NHRC and human rights commissions of various states, and hence the victim has to endure great delay. While the commissions can award compensation, they have no power of
The author is a co-ordinator of 'Justice and Accountability Matters' programme of Women's Research & Action Group, Mumbai.
prosecution and hence the errant officials remain at large. Investigations by the police do not inspire the confidence of the public, as such processes are largely seen as sham, aimed at shielding the errant police officers. Most investigations are handled by junior, inexperienced and untrained police officials. Investigations by the Central Bureau of Investigations (CBI) bear some credibility, but CBI enquiry is directed only in extreme cases of torture. Investigating allegations of torture by the armed forces is much more difficult. Internal inquiry proceedings exist, but do not inspire public confidence. Torture in contexts of communal violence, and upon dalits and adivasis are largely taken up for investigation by independent fact-finding committees or commissions set up by the government for the purpose. Many fact-finding reports remain in cold storage and are not acted upon. Many torture victims do not approach the police for registering complaints due to fear of reprisals and a lack of guarantee that a sensitive, unbiased and efficient investigation into the allegations will be conducted.
Conclusion
There is no dearth of judgements where the Supreme Court and the High Court have denounced the use of torture by law enforcement officials, and provided redress to victims. However, a climate of impunity continues to exist in India in dealing with allegations of torture. The key to ending this climate of impunity is to inspire the confidence of victims in coming forward with registering complaints, and providing victims and witnesses protection from intimidation and coercion during and after the litigation. The Law Commission of India has made an important initiative in this regard, by preparing a consultation paper on a proposed law for witness protection. This effort requires to be taken to its logical end.