36 Role of National Human Rights Commission In Combating Torture

Dr. Y S R Murthy

Learning Outcomes

• To understand the powers and functions of the National Human Right Commission in combating torture.
• To analyse the role of the NHRC with regard to combating torture and its effectiveness in addressing the complaints of torture.

Introduction

The National Human Rights Commission was established for “better” protection of human rights under the Protection of Human Rights Act, 1993. According to several international human rights law instruments as well as domestic laws, torture has been held to be a violation of human rights. The National Human Rights Commission has played a significant role in addressing the issue of torture and mounted a multi-pronged effort. Over the years, it has made determined efforts in the direction of law-reform as well as issue detailed recommendations for addressing torture.

In the chapter, an effort has been made to lay out the broad functions of the National Human Rights Commission and its role in combating torture. Therefore, it is appropriate to begin with the functions of the Commission and briefly discuss the complaints mechanism in the National Human Rights Commission as well as its role.

Functions of the Commission

According to the Protection of Human Rights Act, 1993, the National Human Rights Commission is entrusted with the following functions:

• Inquire, either suo moto, based on a petition or on direction by the court, into any complaint of human rights violation or any negligence in preventing it by a public servant.
• Intervention in the proceedings pending before a court with its approval if same involves any allegation as to violation of human rights.
• Review and report the conditions of jail or any other institution for treatment, protection and reformation where persons are detained or lodged to the government along with recommendations for their improvement.
• Review and recommend steps for the effective implementation of the safeguards for the protection of human rights provided either under the Constitution or under any other existing law.
• Review the causes that impede the enjoyment of human rights and recommend remedial measures.
• Review and recommend the effective implementation of international instruments on human rights.
• Undertake research projects in the field of human rights.
• Spreading human rights literacy and promote awareness of the safeguards available through media, publications or any other available means.
• Encourage the efforts of NGOs and other institutions working in the field of human rights.
• Any other functions necessary for protection and promotion of human rights.

In pursuance of the above-mentioned statutory responsibilities, the NHRC has been taking a number of actions with regard to the elimination of torture.

Role of NHRC in the prevention of torture

The successive Annual Reports published by the National Human Rights Commission clearly indicate how the NHRC has accorded priority to torture. The Commission has repeatedly highlighted the issue of torture and the need for sustained action by all concerned agencies to eliminate it. The cases of custodial violence have been duly investigated by the Commission. In addition to these individual complaints, the Commission has also made strong recommendations for improving the legislative and institutional mechanisms to deal with the cases of torture. The role played by the Commission can be briefly summarized as follows:

• Redressing individual complaints of torture
• Advocacy for accession and ratification of relevant international conventions
• Advocacy for domestic law reform
• Generation of awareness among the general public, media and other sections
• Sensitization of police, prison officials
• Conducting training programmes for key target groups.
• Undertaking and promoting research into causes and consequences of torture; documentation.
• Supporting the efforts of ngos in the fight against torture.
• Issue of instructions and guidelines.

NHRC recommendations for law reform

The Law Commission had proposed the insertion of the Section 114B in the Evidence Act to relax the need for government’s sanction in a case where prima facie charges have been established against an accused. The NHRC recommended for an early action on the suggestion of the Indian Law Commission to the effect that a Section 114(B) be inserted in the Indian Evidence Act 1872 to introduce a rebuttable presumption that injuries sustained by a person in police custody may be presumed to have been caused by a police officer. The NHRC also stressed that Section 197 of the Cr. PC needs to be amended, on the basis of ILC’s recommendation, to obviate the necessity for governmental sanction for the prosecution of a police officer, where a prima facie case has been established, in an inquiry conducted by a Sessions Judge of the commission of a custodial offence.

As suggested by the National Police Commission, NHRC emphasized that there should be a mandatory inquiry by a Sessions Judge in each case of custodial death, rape or grievous hurt. The National Human Rights Commission reiterated the recommendations made by the Law Commission of India. Pursuant to NHRC’s efforts, necessary changes in the law have been made by the Government in this regard.

Role of NHRC in advocating ratification of UN Convention against Torture

The need for India to accede to this Convention was first raised by the NHRC in 1994-95. To deal with all of the arguments and objections that had been raised in respect of this matter, the Commission presented a comprehensive memorandum to the Prime Minister on this subject in April 1997. That analysis contributed in large measure to India signing the Convention on 14 October 1997.  The Commission urged the earliest ratification of this key Convention and the fulfilment of the promise made at the time of signature, namely that India would “uphold the greatest values of Indian civilization and our policy to work with other members of the international community to promote and protect human rights.”1 Ratification, however, is still awaited, despite the repeated appeals of the Commission.

Redressing individual complaints

Custodial violence and death in the lockup as a result of torture strike a blow at the Rule of Law which demands that the power of executive should not only be derived from law but also that it be limited by law. The custodial violence is a naked violation of human dignity and degradation which destroys to a large measure the individual personality. It is calculated assault on human dignity which no civilized state can tolerate. The curbing of custodial violence has, therefore, been a major objective of the National Human Rights Commission ever since it was established.

As per Section 18 (c) of the Protection of Human Rights Act, 1993 the National Human Rights Commission has the following power:

“recommend to the concerned Government or authority at any stage of the inquiry for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;”

Therefore, in case of death of a person during police custody, the Commission is empowered to issue a show cause notice to the State machinery which is responsible as to why the deceased should not be granted an immediate relief.

As part of the efforts of the Commission, it has compelled the payment of compensation to the victims of deceased. In one of the cases, the view of the Commission was expressed in the following words: “State is vicariously liable for the death of the under trial prisoner and if the death of the deceased was due to the negligence on the part of the jail authorities, State had to pay a sum reasonable to the next of the kin of the deceased under section 18(3) of the Act.”

The Commission has taken cases of Police Harassment also very seriously. In the view of the Commission, the primary job of the law enforcement officials is to ensure that they serve the public as per the legal boundaries.

At no point can the police official or the state machinery be allowed to act outside the boundary of law. The Commission has said the following words with regard to its responsibility of ensuring proper compensation in case of police harassment which is a form of torture.

“(i) The object of section 18(3) of the Act is to provide immediate interim relief in a case where strong prima facie case of violation of Human Rights, has been made out, so that the complainant is provided immediate relief which need not avail determination in another proceeding of the full compensation awardable or identification of the particular public servant guilty of the violation and determination of his liability in another proceeding.

(ii) A welfare state recognising its obligation to afford “relief” to its citizens in distress, particularly those who are victims of violation of their Human Rights by public servants, has made this law under which government seeks advice from the National Human Rights Commission as to what in this view, is reasonable “immediate interim relief”, so that the State can act on the recommendation.

(iii) The meaning to be given to the section 18(3) by any State professing to be welfare state should ensure a liberal construction to promote the philosophy of the statute and to advance its beneficent and benevolent purposes.”

The National Human Rights Commission having been constituted under the 1993 Act for better protection of human rights and civil liberties of the citizen has not only the jurisdiction but also an obligation to grant relief in appropriate cases to the victims or the heirs of the victims whose right to life under Article 21 of the Constitution has been flagrantly infringed by the State functionaries by calling upon the State to repair the damage done by its officers to the human rights of the citizen. The State, in all such cases, is vicariously liable for the wrongful acts of its officers. When the State is called upon to grant monetary relief to the next of kin of the deceased or the victims of torture as the case may be, by the Commission it is because the doctrine of strict liability of duty of care on the part of the State is attracted to such cases. It is reiterated that the State is vicariously responsible, if the person in the custody of the police is deprived of his life except according to the procedure established by law, to recompense the heirs of the victims.

Case-Studies

Rakesh Kumar Vij

Facts: In connection with a murder investigation, the UP Police had illegally detained Rakesh Vij. He was ill-treated, tortured and electric shocks were administered to him by making him urinate on a live electric coil in order to elicit information about a murder. He was also not allowed to meet any family member. The torture had totally incapacitated Rakesh Vij and led to his hospitalization. The report from SSP, Varanasi stated that while trying to run away from police custody, Rakesh Vij fell and sustained injuries. He also had a criminal record.

The UP Medical Board in its report claimed that victim did not suffer from any gross structural damage. Most of his complaints were subjective. The patient had made a good recovery and that all his medical test results were within normal limits. The Delhi Trauma and Rehabilitation Centre gave an entirely different assessment. AIIMS in its report stated that the victim’s spinal cord was compressed leading to deterioration of power in his lower limbs; sensory loss of bladder and bowel movement. There were 60 to 80 per cent chances for improvement, but only if the victim undertakes high-risk surgery. He was suffering from hearing loss and some of his teeth were missing. He was suffering from severe Post-Traumatic Stress Disorder with no proven treatment.

Having regard to these reports, the NHRC recommend the UP Government to pay Mr. Rakesh Vij a sum of Rs.10 lakhs by way of immediate interim relief; arrange for the complete medical treatment; prosecution of the police officers and action against doctors for giving an incorrect report/findings about the status of health and extent of physical disability and incapability suffered.

Death of Sher Mohammad in Police custody by torture: U.P. – Case No. 8924/95-96/NHRC

The Superintendent of Police, Badaun, Uttar Pradesh vide his communication dated 23 February 1996 intimated the Commission about the death of Sher Mohammad s/o Abdul Rashid, an under trial prisoner, who was arrested on 22nd February 1996 in case No. 29/96 u/s 25 of Arms Act and case No. 20/96 u/s 364 IPC by the police from the Binowar police station. It was reported that the under trial, Sher Mohammad fell ill and he died while on the way to the District Hospital, Badaun on 23 February 1996. In response to the notice issued by the Commission, the post mortem report and the magisterial enquiry report were sent to the Commission. A perusal of the Magisterial Inquiry Report showed that the said under trial prisoner was beaten up by the SHO, while being interrogated in the two cases registered against him, and died as a result of police torture. A criminal case was registered against the SHO and a charge sheet was filed in court u/s 302/323 IPC.

While considering the matter on 14th January 2004 the Commission agreed with the magisterial inquiry, that it was a case of custodial death which was caused as a result of severe beating of the under trial while in custody of the police. The Commission, therefore, directed the issuance of notice to the Chief Secretary, State Govt. of U.P. to show-cause why “immediate interim relief” of Rupees one lakh u/s 18(3) of the Protection of Human Rights Act, 1993 be not given to the next of kin of the deceased. The Commission also observed that death in police custody is one of the worst kind of crimes in a civilized society governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens and is an affront to human dignity. Police excesses and torture in custody of the detainees/ under trial prisoners or suspects tarnishes the image of a civilized nation and it is necessary to take stern measures to check the malady.

The Government of Uttar Pradesh submitted its compliance report in respect of the payment of rupees one lakh to the next of kin of the deceased.

Death of Sh. Kantosh Prahlad Jadhav in Police Custody by torture : Latur, Maharashtra – (Case No. 5418/95-96/NHRC)

The Commission received an intimation dated 28.10.1995 from the District Superintendent of Police,, Latur, Maharashtra stating that one Kantosh Prahlad Jadhav, aged 22 years, was arrested on 28.10.1995 in PS MIDC, Latur Cr. No. 93/95 u/s 324,504 IPC & 135 Bombay Police Act. He had further stated that the accused, while in custody, committed suicide by hanging himself to the iron rod of the ventilator of the police lock up with the help of torn part of blanket provided to him.

In response to the Commission’s notice dated 3.11.1995, the inquest report received showed no signs of beating either on the front side or back side of the body. The report further stated that post-mortem report indicated no external or internal injuries on the body of the deceased and the cause of death was opined as “asphyxia due to hanging”. The SDM in his enquiry report concluded that on the basis of statements of witnesses and on examination of the post-mortem report, the death of the Kantosh was due to suicide committed by him by hanging. However, he observed that there were other factors also such as negligence and lack of responsibility on the part of police officials, which resulted in the incident.

The Government of Maharastra submitted an action taken report on the magisterial enquiry, which indicated that the accused police officials were placed under suspension and departmental enquiry had been initiated against the delinquent officials.

The Commission vide its proceedings dated 2.8.2004, while considering the Magisterial Enquiry Report and the departmental action taken against the police officials, directed Chief Secretary, Govt. of Maharashtra to show cause why interim relief should not be paid to the next of kin of the deceased.

In response the Home Department, Govt. of Maharashtra vide communication dated 7.10.2004 informed the Commission that the State Govt. has decided to grant relief of Rs. 50,000/- to the next of kin of the deceased, Kantosh Prahlad Jadhav and after obtaining approval of the Commission, further action for disbursement of relief will be taken.

The Commission vide its proceedings dated 20.10.2004 considered the case and approved the grant of Rs. 50,000/- as “interim relief” to be paid to the next of kin of the deceased Kantosh Prahalad Jadhav.

Some more case studies

• Kerala Government asked to pay Rs. 10 lakhs to ISRO Scientist, Nambi Narayanan – victim of illegal detention and torture and allegations of being a foreign spy.
• Five lakh rupees monetary relief in a case of death in custody of J&K Police of Mohan Lal, a rickshaw puller.

Issue of guidelines and Instructions

‘Police’ and ‘Public Order’ are State subjects under the Seventh Schedule of the Constitution and it is primarily the responsibility of the State/UT Government to prevent and ensure non-occurrence of custodial violence. However, the NHRC also issues guidelines/instructions from time to time. The National Human Rights Commission immediately after its constitution condemned the violence in police and judicial custody. It observed that violence, whether in police or judicial custody, was a ‘matter of gravest concern to all who believe in human rights’ and rendered it as ‘absolutely unacceptable.’

As early as 14 December 1993, the Commission instructed all Chief Secretaries to ensure that all cases of custodial death and rape are reported to it within twenty-four hours of occurrence, failing which an adverse inference would be drawn by the Commission. On 10 August 1995, all Chief Ministers were requested to ensure that all post-mortem examinations of deaths in custody be videographed. On 27 March 1997, Chief Ministers were additionally requested to adopt a Model Autopsy Form, prepared by the Commission, and to use for this purpose.

The Commission had issued revised instructions dated 3rd January, 2001 to all Home Secretaries for sending following information::-

• The post-mortem report, in new Performa circulated by NHRC in March 1997, along with the video graph and the Magisterial Enquiry report must be sent within 2 months of the incident.
• The post mortem report and other documents should be sent to the Commission without waiting for the viscera report. The viscera report should be sent subsequently as soon as it is received.

Brief review of important instructions/ guidelines on torture3:

• Medical Examination of Prisoners on Admission to Jail
• Death During the course of Police Action
• Custodial Deaths/Rapes
• Cases of Encounter Deaths
• Visits to Police Lock-ups/Guidelines on Polygraph Tests and Arrests
• Human Rights in Prisons
• NHRC also circulated instructions issued by the Supreme Court in D.K. Basu’s case to all States for strict compliance and wide dissemination.

Summary

The National Human Rights Commission has taken a range of actions to combat torture and prevent custodial violence.

Reference

1. Dr. S.P. Sathe, “Liability of a Police Officer for Custodial Death: A Note” Ashwatthe, Vol.4 Issue 1 (January-March, 2004).
2. H.H. Singh, “Importance of judicial activism in preventing custodial violence” Central India Law Quarterly, Vol. XVI, 431 (2003).
3. NHRC Annual Reports
4. Protection of Human Rights Act, 1993