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EXTERNAL
AI INDEX : ASA 20/20/94
Amnesty International
International Secretariat
1 Easton Street
London WC1X 8DJ
United Kingdom
Tel: (44) (71) 413 5500
Fax: (44) (71) 956 1157
MEMORANDUM TO THE GOVERNMENT OF INDIA
arising from an Amnesty International visit
to India 5-15 January 1994
INTRODUCTION
In January 1994, Amnesty International carried out its first
research visit to an Indian state - Maharashtra - for 14
years. The visit, by Professor Rod Morgan, Dean of the Faculty
of Law, Bristol University, and Yvonne Terlingen, of the Asia
Department of Amnesty International's International
Secretariat, was to Bombay and took place from 8 -15 January
1994. The visit was an important step which substantially
furthered the dialogue initiated in November 1992 when an
Amnesty International delegation discussed its human rights
concerns, for the first time in many years, directly with the
Indian Government in Delhi. Having reaffirmed its commitment
to protect human rights and repeatedly and publicly condemned
custodial violence, which has remained one of Amnesty
International's core human rights concerns in India, the
government eventually permitted Amnesty International to see
the situation on the ground in one Indian state and to talk
freely to officials and others.
Before visiting Bombay, the Amnesty International
delegation met the Minister for Home Affairs and the Minister
of State for Home Affairs, as well as the Home Secretary and
other officials in Delhi, from 5 - 8 January 1994 to discuss
the organization's continuing human rights concerns. These
concerns included: the need to strengthen safeguards for
people in custody; the apparent rise, despite the government's
official condemnation of such practices, of the numbers of
people dying in police custody in Delhi, apparently as a
result of torture or ill-treatment; and the fate or
whereabouts of hundreds of people reported to have
"disappeared" in recent years in the states of Jammu and
Kashmir and Punjab (described in an Amnesty International
report released in December 1993)[1]. The delegation was glad
to hear that the Government intends to put several proposals
to Parliament in the forthcoming session to enhance safeguards
of suspects in custody.
Amnesty International's proposal to visit Jammu and
Kashmir was also discussed, but a date for such a visit -
which remains Amnesty International's first priority - has,
unfortunately, not yet been set.
Discussions with the Secretary General of the newly
established Human Rights Commission served to inform Amnesty
International about the intended focus of the Commission. The
delegation was informed that State Human Rights Commissions
are expected to be established in the course of the year. The
delegation was also glad to learn that the Commission intends
vigorously to pursue such important human rights issues as
custodial deaths and custodial rape. The mechanisms which the
Commission is seeking to develop to record complaints about
human rights violations and to investigate them were also
discussed. Amnesty International will follow the Commission's
work closely and agreed to send the Commission its published
information about human rights in India.
AMNESTY INTERNATIONAL'S VISIT TO BOMBAY
Amnesty International's visit to Bombay has been invaluable in
deepening its understanding of the manner in which human
rights protection mechanisms work in practice in India. First-
hand information from those directly involved was collected.
The delegation received every co-operation from officials,
both in Delhi and Bombay. Discussions with senior officials in
both places were marked by a frankness and openness which
Amnesty International welcomes and which it publicly
acknowledged in a statement issued shortly after its
delegation returned to London from Bombay (Appendix A). The
delegates were given permission to visit a police station in
Bombay. They also talked freely to lawyers, those actively
concerned with the protection of civil liberties and alleged
victims of human rights violations. They were able to discuss
reported violations - and potential preventive mechanisms -
immediately with officials on the spot.
Amnesty International originally proposed to visit Bombay
in March 1993 after receiving reports of indiscriminate police
shootings and indications of police communal partiality during
the December 1992 - January 1993 riots which left at least
1500 people dead (the exact number is contested). The
government first refused permission for such a visit in April
1993. The proposal was reiterated in June 1993 in a letter to
Chief Minister Sharad Pawar. Amnesty International explained
that it hoped to meet government officials as well as lawyers
and members of civil liberties organisations. It said that it
also wished to discuss more recent allegations of arbitrary
arrests and ill-treatment of Muslims in detention as well as
the action the state government had taken in respect of dozens
of people reported to have died in police custody between 1985
and 1993. Permission was then granted for a visit, but
subsequently visits were twice postponed at the request of the
government.
Amnesty International's decision to visit Bombay was also
prompted by the wish to understand police procedures and
practices in a state not faced with the special pressures to
which the police are subjected by circumstances such as the
widespread armed insurrection now prevalent in Jammu and
Kashmir and some Northeastern states, and, to a lesser extent,
in Punjab. In raising the concerns that follow, therefore,
Amnesty International in no way implies that the human rights
situation in Maharashtra is exceptional and deserves more
attention than that in other Indian states. Indeed, more
widespread human rights violations have allegedly taken place
in other Indian states. The concerns identified below,
however, are, in Amnesty International's view, symptomatic of
human rights problems existing throughout India. Amnesty
International's recent mission therefore concentrated on the
prospect of introducing preventive mechanisms in "normal"
policing environments, reasoning that if effective measures to
protect human rights are not taken in Bombay, they would stand
little chance of being adopted in states where more extreme
pressures were being experienced.
This memorandum therefore focuses on recent arrest and
detention practices in Bombay and the manner in which, in
Amnesty International's view, they are conducive to illegal
detention, ill-treatment and torture. It also addresses the
rules governing the use of force during civil disturbances and
mechanisms to establish the truth about, and accountability
for police abuse during the December 1992 and January 1993
rioting in Bombay.
Amnesty International hopes that this memorandum,
including the recommendations made to enhance police
accountability generally, will contribute to the important
national discussion to find better ways and means to safeguard
human rights in India.
1. Arrest and detention practices: the problem of unrecorded
detentions
All the evidence suggests that large numbers of people are
held in police stations in Bombay without there being a proper
police record of their having been detained. Several informed
commentators, including lawyers, told the Amnesty
International delegation that people are routinely picked up,
typically at night, that they are taken to police stations
without apparent reason, and are usually released within hours
or days, often on payment of financial bribes to the police.
This corrupt practice is said to be widespread.
Such practices are legally prohibited. Section 347 of the
Indian Penal Code makes "wrongful confinement to extort
property, or constrain to illegal act" an offence punishable
with three years' imprisonment. Yet senior police officials
acknowledged that unrecorded police detentions are relatively
commonplace. One senior officer told the Amnesty International
delegation: "I don't know whether it is 50 percent of
detainees [as Amnesty International had been told by one
source] or 25 percent". He added that he had visited police
stations during routine inspections, had found many unrecorded
detainees and had ordered their release. Another senior
officer corroborated this picture. He acknowledged that "It is
not a good practice and can lead to abuse", but contended that
the actual percentage of unrecorded detentions was fewer. Both
officials qualified their statements by saying that most
unrecorded detentions related to non-cognizable offenses for
which the police had no powers to detain but against which the
public expected the police to act. In other cases, they said,
the police took people to police stations for short periods
simply in order to establish their identity. Their suggestion
was that such police practices were not corrupt but were in
response to public demands.
This may be true. And the percentage of unrecorded
detentions may be lower than some commentators suggest.
Nevertheless, unrecorded police detentions are both illegal
and dangerous, not least because they may facilitate more
serious abuse, particularly torture, a practice that Amnesty
International has been concerned about throughout India.
Lawyers in India have long complained to Amnesty International
that suspects are taken into police custody, tortured and then
released. But when a complaint is subsequently made the police
simply deny that they were ever in custody: there is no record
of their detention.
Amnesty International has documented such practices in
Punjab and in Jammu and Kashmir[2], where they are widespread
and a feature of many "disappearances" following police and
security forces custody. But unrecorded detentions are a
regular occurrence also in other states, including
Maharashtra, where there is no organized armed opposition to
the government. For example, according to former Delhi Police
Commissioner Vijay Karan: "Frequently, suspects are held in
illegal custody so that they can be given third degree, but
without the psychological pressure of having to produce the
suspect in court within 24 hours, which is the case when
formal arrests are made"[3]. In Tamil Nadu a special
Commission of Inquiry was established to investigate the
veracity of widespread allegations submitted to the Madras
High Court of illegal detentions by the police. In its 1992
Report, the Commission found substantive evidence of such
abuse[4].
During its visit to Bombay the Amnesty International
delegation heard allegations of the more specialised use of
illegal detention. Amnesty International's delegates
interviewed several people who said they had been taken by the
police at night, had been beaten for several days to disclose
information, and had been released without a record of their
arrest ever being made. They were poor and nearly all of them
were too frightened to complain about it, fearing the police
might retaliate if they did.
Particularly disturbing were allegations that the police
use "hostages" to force the surrender of suspects in the wake
of the bombings which took place in Bombay on 12 March 1993,
killing more than 300 people and wounding over a thousand. The
police resorted to taking away the wives, mothers and other
family members of suspects they could not find. The police
were under great pressure: the government attributed the
blasts to Pakistan's Inter Service Intelligence in cooperation
with criminal Muslim elements in Bombay (led by "Tiger
Memon"), and police suspicions focused on members of the
Muslim community who then became victims of unlawful and
abusive action by the police.
Amnesty International's delegates interviewed a 60-year-
old Muslim woman who, unusually, made a sworn statement to the
High Court complaining about her treatment. She said that six
police officers arrived at her house in the early hours of the
morning in early April. They asked where her eldest son was,
started beating her and, when the police could not find him,
took her, together with her three daughters and her younger
son to Mahim Police Station. There, she alleges, she was
regularly beaten with sticks and rulers on her head and hands
until one of her nails came off. She was allegedly beaten by
male police officers who wanted to know where her eldest son
was. The mother was released with her younger son after six
days when her eldest son surrendered to the police station.
The police never suggested that she was suspected of a
criminal offence. When members of her family tried to see her
at the police station, they were refused permission. Although
her name was apparently written down in a police diary, no
proper record of her detention is known to have been kept. Nor
was she ever brought before a magistrate.
A younger woman told the Amnesty International delegates
that she was twice taken away by police from Mahim Police
Station who wanted her to tell them where a neighbour was. On
the first occasion, she was beaten by a female police officer
and released within hours. On the second occasion, in April
1993, she was kept for four days in the police station with
her brother. Her statement was taken by the police, but never,
she said, was her arrest recorded, nor was she brought before
a magistrate. On one occasion after her release the police
came to ask for her husband. When she replied that he was not
in, she was told: "You better get him and bring him to the
police station otherwise we'll take you and your children".
Amnesty International was told that in some cases all
female members of a family had been arrested and that the wife
of one key suspect (the Amnesty International delegates were
not able to interview the woman herself) was stripped by
police in front of her husband, beaten until she developed a
haemorrhage and subjected to grossly humiliating treatment. A
38-year-old woman complained to the Bombay High Court in a
sworn statement that she had been arrested on 31 March 1993 in
the middle of the night, was asked for her eldest son, and
that the police, when they could not find him, took her and
her whole family, including three daughters, to the Mahim
police station. There she was held with a pregnant woman who
she said was bleeding due to police beatings because she was
the wife of a suspect. She also said: "My three daughters were
beaten on the next day [1 April 1994] by one male officer whom
they can identify. While beating... they were threatened that
they will be made naked by the officer, if they did not give
the whereabouts of their brother M.S. They all three were
beaten by rods and belts [and] they were slapped and abused. I
was also beaten on the same day by a ruler/bamboo on my hands
and my hands became black and blue... None of us were produced
in any court after detention." Her daughters were released the
following day, she was released after ten days but as of 7 May
1993 her husband was kept in detention, according to her
statement, "being tortured daily by the police".
Similar accounts of unrecorded arrests and torture have
appeared in the Bombay press. The Times of India, 5 June 1983,
gave details about some six cases of "Illegal arrest, wrongful
confinement and... physical and mental torture", including
cases of men repeatedly being arrested and beaten by the
police without records being kept and of a woman alleging that
the police took her and her one-year-old son away and beat
them up when they could not find her husband. Similar reports
were also carried in The Independent, Bombay, 14 May 1993, The
Indian Express, 11 May 1993, and The Pioneer. Particularly
detailed accounts were was given in a July 1993 report by a
civil liberties group[5].
There is little doubt that the use of unrecorded
detentions is facilitating police abuse such as beatings and
other forms of ill-treatment or torture. These are
unequivocally violations of Indian law and police procedure.
2. The use of force by police to extract information is common
Nearly all those to whom Amnesty International's delegates
spoke asserted that beatings of suspects in police stations
are routine. Even a senior police official used phrases like a
"good thrashing", while another put the matter more
diplomatically: "not all police know how to behave rationally
and politely". It appears that the police rely on the use of
force to obtain information about crimes and are poorly
trained and equipped in the use of more reliable investigative
methods.
No senior policeman to whom Amnesty International spoke
said they approved of torture, and Bombay's Police
Commissioner was unequivocal in condemning it: "Torture is
torture, even in situations of terrorism". Some, however, said
that the public supported the use of torture. One police
official asserted that the police, when making an arrest of a
criminal suspect identified by the public, were expected to
mete out instant punishment. The example was given of a simple
assault: this is a non-cognizable offence, for which the
police have no powers to arrest without a warrant, yet the
public, it was said, expected the police to attend the
incident on the spot and "to slap" the suspect. It was no
doubt this contextual expectation which led one senior civil
servant to say: "A policeman who does not beat is not a
policeman". To the extent that there is a degree of public
acceptance for the improper use of force by the police clearly
it will be that much more difficult to eradicate such
practices. This is one factor contributing to the police being
able to torture suspects with virtual impunity.
The Amnesty International delegation interviewed several
people who had been released after brief periods of police
detention. All but one said that they had been beaten by the
police after arrest. All those who said they had been beaten
were poor and had been released after several days. The one
informant who said he had not been beaten was an articulate
middle class sales manager who had been arrested on a charge
of assault. Several of the accounts of abuse, of Muslim women
held "hostage" for example, have been given above. Amnesty
International also interviewed a man arrested in April 1993
who had been beaten with sticks and belts at the Worli Police
Station apparently simply in order to identify young men from
the area where he lives. Held in the interrogation room of the
police station, he was tied to a table and beaten on the soles
of his feet for an hour by between eight and ten policemen
while being shown photographs of suspects. He was never
implicated or interrogated about any criminal offence himself.
The Amnesty International delegates were also told of
more extreme forms of torture including: beatings of prisoners
while suspended; electric shocks; and threats of death to
relatives. These methods were said to have been applied to
suspects arrested under the provisions of the Terrorism and
Disruptive Activities Prevention Act (TADA) after the March
1993 bombings. The methods were said to have been used during
interrogation at various police stations, especially at the
Crime Branch of the Bombay Police, Crawford Market. All of the
victims known to Amnesty International belonged to the Muslim
community. In an affidavit before the Special Court
established under TADA, one prisoner said:
"From the day of arrest (4 April 1993) till I was
produced in the court (12 April 1993)....I was
beaten, hanged with several different methods,
infused electric shocks on my penis, fingers, tongue
and in the nose, inserted the red chilly powder into
my anus, and rub my testicles. I was beaten-up and
Worli police forced me to eat human shit in a room
in front of two accused... They also tied my hand by
the street railing at the India Gate in the darkness
around 10 p.m. to give me an impression that I shall
meet with an accident and die...During the process
[of my detention] police threatened me several times
to kill me having an encounter."
The Amnesty International delegation was not able to
interview this man and other alleged victims of such serious
torture. Most of the prisoners said to have been subjected to
such practices are now held on remand in Arthur Road Jail
awaiting trial under the TADA provisions. But the Amnesty
International delegates spoke to the mother of one of the
accused, who was apparently suspected of having gone to
Pakistan for military training. She claimed that her son had
been given electric shocks. Another former prisoner told
Amnesty International that his brother, with whom he had been
held on suspicion of having played a role in the bomb blasts,
was stripped by police, beaten with belts and then suspended
with a stick tied behind his arms. The delegates were told
that another suspect, Imtiaz Yunus, had been tortured
resulting in the fracture of his leg, but that he received
private hospital treatment arranged by a Deputy Police
Commissioner. The Amnesty International delegates were also
told that another torture victim, Rahim, described as a 67-
year-old laundry wallah, had his legs burned by police at the
Crime Branch at Crawford Road, and died from his wounds in
J.J. Hospital shortly before Amnesty International's visit.
From all this evidence, including the acknowledgements of
senior police officials, Amnesty International concludes that
beatings of suspects are common and that serious forms of
torture occur in Bombay from time to time. The practice is
tolerated if not encouraged within the police, and condoned by
large sectors of the public and there may well be a high
degree of acquiescence on the part of both the public and the
authorities. Further, a key factor in its persistence is the
virtual impunity and lack of accountability with which police
in police stations are able to act. It is to these structural
issues that we now turn.
3. What Facilitates Torture?
Amnesty International was offered various explanations as to
why the police resort so often to the ill-treatment or torture
of suspects.
A senior police officer attributed it to the lack of care
at the time of police recruitment. Others referred to the
pressure on police to mete out instant punishment because of
the inability of the criminal justice system to deliver
justice promptly and effectively. Speaking in general about
the criminal justice system in India, the Advocate General for
Bombay told Amnesty International that it took on average some
six years for a case to come to court (others suggested the
period was longer). By that time the likelihood of securing a
conviction, or a fair trial, is considerably reduced because
of the lack of witnesses and the unreliability of their
evidence. As of 31 January 1993 there were 178,015 cases
pending before the Bombay High Court. The Police Commissioner
told Amnesty International that well over 600,000 cases were
pending before all the Bombay courts. One retired policeman,
in a piece entitled "The Decay of Justice" (Hindustan Times 15
January 1994), put it this way:
"We now have a democracy in which the criminal has almost
become unpunishable by law. There is no way you can get
at the man who is ruining your country except by asking
the police to put an end to his activities, or set him
right with a police truncheon."
Police susceptibility to bribery and corruption -
allowing themselves to be used for personal or political ends
to act illegally against specific individuals in return for
financial reward - was said to be another factor. Although
this suggestion was denied by a retired Bombay Police
Commissioner to whom Amnesty International spoke, its
delegates were told by other observers of the criminal justice
system that police corruption starts at the time of
recruitment and continues when officers seek lucrative
transfers or promotion. It was said that payments had often to
be made to gain entry to the police force and this put
pressure on officers to recover their investment through
further bribery. Some lawyers and magistrates were said to
cooperate in such corrupt practices. Certainly reports of
police corruption continue to be reported in the Indian press,
including the Maharashtra press.[6]
Amnesty International has identified the following key
factors that facilitate torture.
a. Lack of transparency about what happens in police stations
Virtually all those interviewed by Amnesty International in
Bombay suggested that lawyers and relatives are routinely
denied access to persons held in police custody. The right to
consult and be defended by a lawyer is, however,
constitutionally guaranteed in Article 22 (1) [although this
important guarantee does not apply to detainees held in
preventive detention] and in Gopalan v. State of Madras[7] the
Supreme Court held that the provision is mandatory. In another
case, Nandini Satpathy v. P.L. Dani[8] the Supreme Court held
that an accused person has the right to insist on the presence
of his or her lawyer during interrogation. However, the Bombay
High Court has held that in customs and excise cases an
accused person has no such right and lawyers told the Amnesty
International delegation that police practice in Bombay is not
to allow lawyers to be present during interrogation.
In Maharashtra, Section 204 (1) of the Maharashtra Police
Manual obliges the police to permit the arrested person to
consult a legal practitioner before he is taken to a
magistrate for remand, and Section 192 (1) obliges the officer
in charge of a police station to provide members of the legal
profession access for interviews with accused persons.
However, subsection (8) permits interviews to be refused in
three circumstances including "when there is reason to believe
that the ends of justice might be defeated or might suffer by
such access".
The latter is an unacceptably broad provision. To
the extent that lawyers advise their clients not to
incriminate themselves by answering questions - and the right
not to be compelled to be a witness against oneself is
constitutionally guaranteed and was held by the Supreme Court
in Nandini Satpathy specifically to cover the pre-trial stage
of police investigation - the police are likely to see such
advice as defeating the ends of justice. By so arguing they
have a ready made excuse to deny people held in police custody
access to lawyers. And this is, in fact, what often happens.
Access to relatives and to lawyers is routinely denied. When
the Amnesty International delegation visited Dongri Police
Station, it was told that no prisoner remanded to police
custody would be allowed to see his lawyer because, as the
Senior Inspector in charge told Amnesty International,
"lawyers have no locus with such prisoners. Their business is
in the courts". Nor were there rooms at the police station
where lawyers could meet their clients.
Amnesty International was also told by several people who
had been detained by the police that relatives trying to see
them at the police station were refused permission to meet and
speak to them. One former detainee said that the police
refused to allow him to call his relatives about his arrest
and that he had to resort to bribing a servant to get the news
of his arrest to his family. The Senior Inspector at Dongri
Police Station told Amnesty International that relatives and
friends were not allowed to see detainees and furthermore
that, unless they were sick, prisoners were not allowed to
have food brought by their relatives from outside. This
practice contravenes specific obligations in the Maharashtra
Police Manual which require the police to permit a prisoner
"to maintain himself and purchase or receive from private
sources at proper hours food, clothing and bedding and other
necessaries subject to examination of these articles and
availability of space in the lock-ups" (Section 192 (8)).
In Amnesty International's experience the failure to
allow prisoners to inform relatives and lawyers of their
detention and the refusal to allow contact with third parties
when detention is prolonged (generally beyond 48 hours)
inevitably facilitates torture and ill-treatment. This was
confirmed by the evidence collected in Bombay.
b. Prolonged remands in police custody
Under normal legal provisions a magistrate may remand a person
in police custody for up to 15 days, and thereafter in
judicial custody for up to 60 or 90 days (depending on the
seriousness of the alleged offence). At the end of this period
the suspect has to be charged or released on bail (Section 167
Code of Criminal Procedure). Such remand in police custody is
apparently routinely granted by magistrates for minor
offenses. Amnesty International was told by a senior inspector
that a remand to police custody would, for example, be granted
if someone was arrested for shoplifting and the police wanted
to carry out investigations to establish whether he had
committed other minor thefts. In practice, the 15 day period
can be exceeded: when Amnesty International visited Dongri
police station, its delegates met a detainee who said that he
had been held there for about a month and his assertion was
not disputed by accompanying police officers.
Furthermore, lawyers told Amnesty International that in
Maharashtra state, police making arrests without warrant to
prevent the commission of cognizable offenses can hold people
in detention for up to 30 days. Even longer periods of police
remand are permitted under the TADA: it permits a remand for
60 days (Section 20 (4)(b)), a period during which bail is
hard to obtain (the normal rule under TADA is that bail is
refused if the Public Prosecutor opposes it - Section 20 (8)).
Instead of a judicial magistrate granting custody, as is
normally the case, TADA permits executive magistrates to
authorise remand, and prisoners are under executive control.
International human rights standards such as Article 9(3) of
the International Covenant on Civil and Political Rights
require that all persons arrested on a criminal charge shall
promptly be brought before a judge or other official
authorized to exercise judicial power.
These periods of police custody are dangerously long.
Most torture and ill-treatment in India occurs during the
first stage of detention in police custody, when access to
outsiders is routinely denied. The predicament of suspects
held under TADA is particularly serious: they can simply be
taken back to police custody even if remanded in judicial
custody in prison. This can apparently happen whenever the
police wish to interrogate and torture them again, or punish
them for complaining to a judge about torture. One prisoner
held in connection with the Bombay bombings told the TADA
Special Court in an affidavit:
"I was granted judicial custody on 26-4-93 and the
police brought me back from Thane jail on 5.5.93 and
took me straight to the detention room of Crime
Branch where one D.C.P., Sr. Inspector and policemen
were present. First of all they condemned the
judiciary... for granting me jail custody at the
first appearance and asked the name of my advocate.
Then they started beating me for some irrelevant
thing to accept, which I did not know at all. Due
to the heinous beating and torture I stopped
breathing and fell unconscious. These officers left
the room in panic thinking me dead....
On 6.5.93 when I was produced before Your Lordship
[you noticed] my swollen thumb and torned condition.
My complaint was recorded against the police and
[you] ordered to provide me medical check-ups and
treatment regularly. I didn't get the treatment as
instructed. I was instead taken to the police
detention room where a D.C.P. was ready to teach me
a lesson for complaining against the police... Few
policemen started assaulting me... for two hours on
my already wounded and torn body. I was given most
frightened threatenings and refused food...
After a few days I was summoned by a very Sr Police
Chief in the night and asked as to why did I
complain against the police in the court. He ordered
his force to beat me as much [as] possible.."
Apart from showing that torture is condoned and even
encouraged by some senior police officials, this statement
illustrates how prolonged police custody without proper legal
safeguards can lead to serious violations of human rights,
especially in the absence of effective mechanisms to
scrutinise police behaviour and of rules governing the
interrogation of suspects.
c. Police disregard of legal safeguards regarding police
custody
Procedures for arrest by the police are laid down in Sections
46-58 of the Code of Criminal Procedure. These require the
police to inform the arrested person promptly of the offence
or grounds for his arrest and require a magistrate to order a
medical examination at the request of the arrested person.
Section 57 requires all arrested persons to be brought before
a magistrate within 24 hours of arrest. Yet none of those whom
Amnesty International interviewed had been told the legal
grounds for their arrest nor had they been brought before a
magistrate despite the fact that they had spent several days
in police custody. A 27 year old man detained in april 1993
said in a sworn affidavit:
"while I was in CID (Criminal Investigation Department)
lock up approximately 150 more persons were in police
custody without being produced before the magistrate
concerned".
Though Section 160 (1) of the Code prohibits women and
children under the age of 15 to be taken to police stations
when police carry out investigations, this is precisely what
happened to several women interviewed by Amnesty
International. The practice continues even though the Supreme
Court has specifically condemned it[9].
d. The absence of adequate legal safeguards regarding the
interrogation of suspects
Indian law is virtually silent regarding the questioning of
suspects in police custody. There are no provisions about it
in the Code of Criminal Procedure, nor could Amnesty
International find any in the Bombay Police Manual. Those few
rules that do exist in the 30 year old Manual - Section 192
(4), which prohibits the questioning of suspects after 20.00
hours and before 08.00, for example - are clearly
impracticable and not adhered to as several interviews with
released prisoners showed.
Police recording obligations are sparse and do not
provide for comprehensive custody records to be kept
containing hour-by-hour accounts of what happens to persons in
custody (medical condition on arrival, the length and time
when suspects are questioned, the provision of food, the
presence of lawyers or other visitors, periods of sleep, and
so on). There is therefore no evidence of, or rules to
prevent, such abuses as prolonged questioning or deprivation
of food or sleep, incommunicado detention, etc. Conversely the
absence of detailed records means that there is no easy means
by which the police are able to rebut allegations by suspects
that police tortured or ill-treated them in custody[10].
Current police records contain little information.
Amnesty International was shown "case diaries" which contain
personal data about the suspect and the case against him.
Their names are kept on a list in the lock-up and some further
details about them were, according to the police, held in a
"Rough Book", which the Amnesty International delegates did
not see. None of these records contain the above detailed
information which, in Amnesty International's experience, can
substantively assist supervising officers in checking and
preventing police abuse.
e. Lack of accountability
The police are rarely required to give a public account of
their actions. For example, no independent groups or agencies
have the authority to visit police stations and to inspect
police records and it appears that the judiciary seldom or
never undertake this function. Nor is there an independent
police complaints mechanism to encourage transparency and
accountability in day-to-day policing. Without such mechanisms
local residents have sometimes felt compelled to take action,
and have been able to do so in a few cases where influential
citizens could be found to help them. Amnesty International
was told, for example, that residents in Dharavi had
complained that the local police took women at night to police
stations but denied that they did so. It was not until a local
priest had been persuaded to go to the police station that the
women were indeed found there and set free. But such action is
rare and is only taken on an ad hoc basis: it can be no
substitute for a proper system of police accountability.
Senior police officials themselves appear to have
insufficient time or determination to find out what happens
inside the police stations for which they are responsible. A
highly respected retired police officer and former member of
the National Police Commission recently wrote: "Senior
officers pay visits to Police Stations and reserve lines which
are too brief and they make no effort to find out grievances
or examine defaulters." Furthermore, as he observed,
determined action is rarely taken against offending police
officers: "How can discipline be maintained when nobody can be
punished for his defaults?" Action against police officers who
break the law is extremely rare. During its visit to Bombay,
Amnesty International asked the Secretary, Home Department,
for details of action taken against police for violating the
Bombay Police Manual. The government's response, sent to
Amnesty International on 20 April 1994, shows that convictions
of policemen (details of which were not provided by the
government) are indeed rare, the government saying: "During
the last 5 years 42 cases [involving] offenses were registered
against 43 policemen in the State of Maharashtra. In the
judicial trials as a consequence of registration of cases, 6
policemen have been convicted and 12 were acquitted by the
court. Remaining 25 policemen are still facing trial in the
courts of law". And although in ten cases policemen were
charged in connection with causing people to die in custody in
Maharashtra since January 1985, according to Amnesty
International's information no more than two cases resulted in
convictions and these were set aside on appeal (see below).
However, there are notable exceptions to this general
absence of police accountability. The Amnesty International
delegation visited Dharavi, one of the few areas in Bombay
where a citizens committee was established last year. Three
such committees have been established so far. They consist of
independent persons of probity and their meetings are attended
by local police inspectors. They discuss the policing needs of
the local community and they look at patterns of complaints
against the police. In Dharavi local residents observed a
decline in police brutality under the administration of a
Deputy Commissioner of Police who had successfully encouraged
local residents of all communities to bring complaints about
police misbehaviour and who had reportedly initiated action
against local criminal elements, regardless of their political
connection. The State Government's decision in January 1994 to
transfer this Deputy Commissioner to the Computer Division was
seen by many in the police and outside as undue political
interference with police operational policy damaging to the
development of police professionalism[11].
f. Lack of support for police professionalism
The government appears to do little to encourage
professionalism in the police and to allow senior police
officers to develop and implement an independent and efficient
approach to police management. Reports persist that local
politicians interfere in police operational policy for party
political and personal purposes[12]. It is generally accepted
that senior State Government officials have wide powers to
appoint and transfer senior police officers. Amnesty
International was told, for example, that in the last 15 years
there had been ten Police Commissioners in Bombay, and that
five of them were removed without having completed a year's
service. Officers were reportedly removed either for no reason
or because, allegedly, they pursued operational policies not
to the liking of particular government ministers.
The police must, like any public service, be accountable
to democratic authority. However, if they are to develop a
professional ethic consistent with their obligation
impartially to enforce the law, then they must also enjoy
sufficient operational autonomy and discretion to ensure that
they are not subject to improper political interference in
day-to-day decision making. The Amnesty International
delegation to Bombay was told by several informants whose past
responsibilities meant that they were in a position to know,
that Commissioners of Police were expected to take
instructions from ministers and their senior advisors about
aspects of day-to-day police operational policy and decision-
making. It was said to be widely understood that any
Commissioner who failed positively to respond to this regime
would not last. He would be transferred to other duties. The
consequence was that there was little continuity in senior
police offices and an absence of leadership in the police to
resist political interference. It followed that firm police
management practice was little developed. It also meant that
the police and policing policies were not seen by the public
to be insulated from the interests of dominant party political
interests. The police were not perceived to be impartial.
No system for the political and legal accountability of
the police is likely to be effective unless it is underpinned
by an effective infrastructure for management accountability.
The development of the latter requires the inculcation of a
professional police ethic which in turn depends on the firm
support of police independence from the executive and
reasonable continuity of service in senior police command
offices. These ingredients seem largely to be lacking in
Bombay, and possibly elsewhere in India.
4.Issues arising from the December 1992/January 1993 Bombay
Riots
Following the destruction of the Babri Masjid Mosque in
Ayodhya, violence broke out in Bombay on 7 December 1992
between Hindus and Muslims. During their efforts to halt the
rioting the police were accused of indiscriminately firing at
protesters and targeting members of the Muslim community. In
some cases the police were said to have shot unarmed people at
point blank range in their houses, in mosques, or simply after
establishing that they were Muslims[13]. This was said to have
been done without provocation or claims of acting in self
defence, though some members of the police were attacked by
rioting mobs and killed. There were also reports that the
police participated in the rioting themselves.
These accusations and counter-accusations occurred again
as a result of a renewed wave of communal rioting which
started in the first week of January 1993, the immediate
causes of which remain controversial[14]. The police were
accused of standing by and failing to protect members of the
Muslim community especially.
The riots in December and January left 1,718 people dead
according to the Shrikrishna Inquiry (see below). Police in
the lower ranks were accused of sympathising with and aiding
the Shiv Sena (Hindu communalist) party, whose leaders
themselves acknowledged their members' involvement: "Our boys
were involved in the rioting" (Pramod Navalkar leader of the
opposition in the legislative council) and "Hindus should be
taught a lesson" (Bal Thackeray - leader of the Shiv
Sena)[15]. Transcripts of police tapes published in the Indian
press show clear anti-Muslim bias on the part of a number of
low-ranking policemen during the rioting[16]. However, several
outstanding police officers reportedly acted courageously and
impartially throughout this period protecting members of both
communities.
The state government was accused of failing to intervene
decisively to stop the riots, or act effectively against those
participating in and instigating them and to permit Shiv
Sena's paper Saamna to publish highly provocative editorials
against the Muslim community. [This continues. While Amnesty
International's delegation was in Bombay the paper, in its 7
January 1994 issue, carried the headline: "New Muslim
Conspiracy. Six Hindu girls to be raped every month".] The
police reportedly brought six cases against the Shiv Sena
leader - but that only after private citizens had petitioned
the High Court to direct that he be prosecuted - without,
however, filing formal charges to date.
What concerns Amnesty International is the grave charge
that the state government failed to act decisively to stop the
rioting and ensure that police committing human rights
violations during this period are brought to justice. Had it
done so, the January excesses could, arguably, have been
prevented. Moreover, the government would have given a clear
message that no such police excesses will ever be tolerated
again.
In the single week that the Amnesty International
delegates were in Bombay, one year after the event, it was not
appropriate or feasible to investigate the numerous charges of
police abuse made concerning this period. Extremely detailed
investigations into these charges have been carried out by
various civil liberties groups and others, some of them after
prompt visits to the areas involved to collect first hand
evidence. These groups have spent much time and effort in
documenting specific incidents of communal rioting, including
charges of police excesses. One of the reports contains a list
of 81 police personnel named by witnesses to have participated
in illegal activities[17]. Furthermore, these allegations are
now being investigated by a Commission of Inquiry, constituted
in early 1993 by the Government of Maharashtra - on a
directive of the Prime Minister of India. It is being carried
out by Justice J.B. Shrikrishna. Despite these measures,
Amnesty International is deeply concerned that the steps taken
by the government have so far largely failed to ensure that
victims have an adequate machinery for redress and that the
judicial inquiry itself - however commendable an initiative -
is, ironically, being used by officials to evade police
accountability for excesses that have been committed.
a. The Shrikrishna Inquiry
Justice B.N. Shrikrishna was appointed on 25 January 1993. His
mandate was published in the Bombay press on 17 February 1993.
It includes: reporting on the circumstances, events and
immediate causes of the December/January riots; identifying
which group or person was responsible; reporting on the
adequacy of preventive measures taken by the police; whether
adequate steps were taken to control the riots and whether
police firings were justified; and recommending measures
needed to avoid the recurrence of the incidents. The inquiry
is being conducted under the provisions of the 1952 Commission
of Inquiry Act. Although empowered with most powers of a civil
court with regard to the production of evidence, the
Commission is not a court of law and its findings and
recommendations are not binding on the government.
Justice Shrikrishna is investigating 50 out of Bombay's
68 police stations that were seriously affected by the riots.
The Commission has been hearing evidence about police failure
to investigate complaints against their own personnel for
alleged acts and omissions during the riots. In one case this
caused Justice Shrikrishna, on 5 January 1994, to make the
critical comment: "We will become the laughing stock in every
civilised nation if no action is taken against a police
constable who participated in looting a shop on D.B. Marg in
January 1993". (This followed an admission by the Senior
Police Inspector of Nagpada police station to the Commission
that no effort had been made either to locate or arrest the
police officer concerned.) The Commissioner heard complaints
that police failed to file reports, as they are required to
do, about incidents in which they fired on crowds in which
people were killed. He has heard evidence that six police
officers at Agripada police station had given unreliable
testimonies, prompting the judge on 9 January 1994 to comment:
"unless we prosecute one or two officers and send them to
jail, nothing is going to improve". He has also heard evidence
of police interference with official records (in Nagpada
police station fresh pages had reportedly been inserted in
official documents such as the crime register).
As of 4 January 1994, - just before the Amnesty
International delegation arrived in Bombay - 2,000 witnesses
had reportedly filed affidavits before the Commission, but
only 128 had been examined. The method adopted by Justice
Shrikrishna is the traditional one for such inquiries in
India. Evidence is taken in the form of affidavits, though it
appears that these were not sought and taken by legal officers
acting on behalf of the Inquiry thereby ensuring their
comprehensiveness and quality, and several parties - in this
case about half a dozen of them - are each given opportunities
to examine witnesses at length. The Commission rarely appears
to interfere in lengthy cross-examinations, even when they
concern what appear to be irrelevant points or matters already
covered in affidavits (an impression confirmed when Amnesty
International's delegates attended the hearing). The
Commissioner sits alone, generally only for half of each day,
and has no experts to assist him in his daunting task. Nor has
he employed special investigative teams to collect evidence on
the spot. As a result, the Commission's progress is
exceedingly slow: many observers do not expect the
Commissioner to conclude his findings until three or even four
years after the events which are the subject of his
investigation occurred. By that time the Commission will have
lost much of its value as a mechanism to establish the truth
about what happened, and to identify and initiate successful
prosecutions against those responsible. Valuable evidence will
inevitably have been lost.
Amnesty International believes that that should not be
so. The existence of the Commission is being used by police
and state officials as an excuse not to proceed against
individual policemen against whom there is evidence that they
committed excesses. In fact, Amnesty International was told by
the Director General of Police, Maharashtra, that no action
would be taken against the police until Justice Shrikrishna
had concluded his inquiry. All that seems to have happened so
far is that a few police officers have been transferred and
that disciplinary proceedings have been instituted in a few
cases. But no police officers have been brought to justice and
no criminal charges are known to have been filed against any
of them, nor, for that matter, against those persons, such as
the Shiv Sena leaders who acknowledged playing a leading part
in the rioting. (The Secretary, Home Department, promised
Amnesty International details about actions which had been
taken against individual policemen, but, the government's
response of 20 April 1994 confirmed that no such action had
been taken: Amnesty International was merely informed that:
"The Government of Maharashtra have appointed judicial
commission headed by Justice Shrikrishna to inquire into the
causes, circumstances of the communal riots that took place in
Bombay during December 1992 and January 1993... The commission
would pinpoint the excesses, if any, while handling the
Commun[ic]al riots and action would be taken in the matter on
receipt of the report of the Justice Shrikrishna Commission".
Amnesty International is concerned that the Shrikrishna
Commission may meet the same fate as many other laudable
Commissions which have carried out painstaking investigations
into allegations of police and security force abuse but on
whose findings and recommendations successive governments have
failed to act[18].
Amnesty International wishes to underline the fact that
there is nothing to prevent the government from initiating
prosecutions against individual policemen against whom there
is credible evidence that they committed violations of human
rights during the December 1992/January 1993 riots in Bombay.
The existence of the Shrikrishna Inquiry is not an impediment.
Indeed, the Bombay Police Commissioner assured Amnesty
International that if it provided specific information about
instances in which the police had arbitrarily and
indiscriminately killed people, the police would immediately
act on such reports. Amnesty International has therefore
collected information about several incidents in which there
is prima facie evidence that the police committed human rights
violations: the victims were not part of a rioting mob, but
were allegedly shot by police in or outside their homes or
while praying in mosques. The information - about alleged
extrajudicial killings of five men in the Hilal Masjid in
Wadala and the "disappearance" of another by police from R.A.
Kidwai police station, an attempted extrajudicial killing by
police at Govandi, a reported extrajudicial killing by police
at Shantinagar and the reported "disappearance" of a man after
arrest by police in Govandi - is attached in Appendix B.
Furthermore, to facilitate criminal prosecutions and
disciplinary proceedings in appropriate cases, Amnesty
International hopes that the Commission will be publishing
interim reports at regular intervals on the investigations it
has carried out so far, identifying specific instances which
appear to reveal illegal acts on the part of the police and
others requiring prompt prosecutions.
Police powers to use force and kill
Powers to disperse assemblies while resorting to force are
provided in Sections 129-131 of the Code of Criminal Procedure
and rest with an Executive Magistrate, the officer-in-charge
of a police station or, in his absence, a police officer at
least of the rank of Sub-Inspector. On 9 January 1993 the Home
Ministry issued Order No. 434 appointing all police officers
up to the level of Inspector as Executive Magistrates, and
giving them powers to act under these provisions. These
enabled them to require a crowd to disperse and, if failing to
do so, to disperse the crowd by force (Section 129 (2)).
The Director General of Police explained to Amnesty
International that in cases where demonstrators or mobs resort
to arson, looting, plunder or stabbing, the procedure is for
the police first to issue a warning, then to carry out a lathi
charge (using long bamboo sticks), then to employ tear gas,
and if a threatening situation continued, finally to give a
warning before firing. Fire has to be aimed below the belt.
The police have to file a report with the police station
concerned, specifying what type of force had been used. These
provisions are laid down in the Model Rules regarding the Use
of Force by the Police against Unlawful Assemblies, 1973
(referred to as the Model Rules). The Model Rules specify that
firearms should be employed "only in extreme circumstances
when there is imminent and serious danger to life or
property", that the senior officer "shall, unless
circumstances make such action impossible, warn the crowd that
if they do not disperse within the specified period, fire with
live ammunition will be opened on them" and that he should
ensure "that no firing contrary to or without orders takes
place... whatever volume of fire is ordered, it shall be
applied with the maximum effect. The aim should be kept low
and directed at the most threatening parts of the crowd."
There are additional provisions for situations of
communal rioting in the Guidelines for dealing with communal
disturbances, Maharashtra State Government Ministry, 1986
(hereafter referred to as the Communal Riot Scheme). The text
of these guidelines were, according to the press, originally
withheld from the Shrikrishna Commission, but have now been
given to the Commissioner although not to lawyers appearing
before him. Nor has the general public access to them. Amnesty
International was allowed to see them in the Maharashtra Home
Ministry. The Guidelines require the police to take strong
action at the first sign of communal violence breaking out.
Section 4B(xi) provides:
"If in spite of all the preventive measures,
communal riot does break out, determined and strong
action should be taken to put down the violence with
firm hand. Any procrastination in taking firm action
in the initial stage will only lead to escalation of
violence. A clear distinction needs to be made
between communal violence and other types of law and
order problems. In dealing with communal violence,
the police must be firm and deterrent from the
beginning so as to create a psychological impact on
the mob and prevent the spread of violence. As such,
effective force should be used at the first sight of
communal violence breaking out. If firing has to be
done, it should be done after giving proper warning
and it should be properly controlled. Firing in the
air should be avoided."
Circular No. 5B, VI/FIR 1271/2577, 7 July 1971, requires
a secret report to be submitted about any incident, to include
details about, inter alia:
"date of firing, place of firing, number of rounds
fired, number of casualties and death among police
and civilians, the strength of the crowd, whether
warning was given before firing, whether tearsmoke
or lathi charge was employed before opening fire."
Amnesty International is concerned about this guidance on
three counts.
First, in encouraging the police to resort at an early
stage to lethal methods of crowd control for purposes of
deterrence, the broad terms of the 1986 Communal Riot Scheme
facilitate arbitrary and indiscriminate killing of people in
crowds or innocent bystanders. That such killings, said to be
in accordance with the Scheme's broad terms, have taken place
appears to be borne out by statements of police officers
before the Shrikrishna Commission. They said that they acted
in accordance with the Scheme's guidelines when firing to
strike fear into the crowd and thereby persuade them to stop
rioting. Police officer Salunke from the Tardeo Police
Station, for example, told Justice Shrikrishna that he had
ordered firing on five occasions and that there was no
complaint against his action from senior officers. The wording
of the Communal Riot Scheme permitting early resort to lethal
force may also have subverted the requirement in the Model
Rules to fire below the belt, thereby increasing the
likelihood of indiscriminate killings. Various civil liberties
and press reports have found that victims were nearly always
shot in the upper parts of the body, and not the legs[19].
Second, a number of police officers responsible for
ordering fire appear not to have complied with basic
requirements such as submitting a report on the incident, the
methods used, whether a warning was given and stating the
number of people wounded and killed. For example Police
Inspector Jagdale told the Shrikrishna Commission in July
that, using his powers as an Executive Magistrate, he ordered
a 1400 strong crowd to be fired at (different press reports
offered conflicting evidence as to whether the crowd presented
a provocation or a threat to violence). But it emerged that he
had not made a report on the incident, and that no superior
officer had asked for one.
Third, existing rules and practices fall far short of
international standards as set out in the UN Basic Principles
on the Use of Force or Firearms by Law Enforcement Officials
(see Appendix C). The UN Principles apply to all
circumstances, specifying that: "Exceptional circumstances
such as internal instability or any other public emergency may
not be invoked to justify any departure from these basic
principles" (Article 8). The principle underlying them is the
employment of the absolute minimum use of force and of full
accountability for any action taken resulting in the loss of
life. The key provision, Article 9, strictly prohibits the use
of firearms:
"... except in self-defence or defence of others
against the imminent threat of death or serious
injury, to prevent the perpetration of a
particularly serious crime involving grave threat to
life..... and only when less extreme means are
insufficient to achieve these objectives. In any
event, intentional lethal use of firearms may only
be made when strictly unavoidable in order to
protect life."
The 1973 Model Rules, however, permit firearms to be used
in considerably broader circumstances, not only when there is
an imminent and serious threat to life, but also, simply, to
property. The terms of the 1986 Communal Riot Scheme are
broader still. They do not require any test of strict
unavoidability to protect life; the fact that a communal riot
has broken out during which violence occurs is in itself
sufficient ground to authorise resort to lethal force.
Moreover, whereas Article 4 of the UN Principles requires law
enforcement officials first to apply non-violent measures
before resorting to force and firearms and then only "if other
means remain ineffective or without any promise of achieving
the intended result", the Communal Riot Scheme contains a
disincentive to do so by failing to state that principle and
in fact specifying that firing in the air - i.e. to warn
rather than kill - should be avoided.
Furthermore, Article 2 of the UN Principles provides
that:
"Governments and law enforcement agencies should
develop a range of means as broad as possible and
equip law enforcement officials with various types
of weapons that would allow a differentiated use of
force and firearms... with a view to increasingly
restraining the application of means capable of
causing death or injury to persons... law
enforcement officials [are] to be equipped with
self-defensive equipment such as shields, helmets,
bullet proof vests and bullet proof means of
transportation, in order to decrease the need to use
weapons of any kind."
Numerous reports suggest that the police, in December
1992 and January 1993, were ill-equipped to meet the violent
crowds. The Times of India, 3 August 1993, for example,
reports that A C Changlani of Tardeo Division told the
Shrikrishna Commission that he lacked protective equipment for
his officers: there were only two bullet proof vests and ten
shields for his district. Many of those to whom Amnesty
International spoke said that a major cause for the large
number of killings by the police in December 1992 was that
police had not been trained in acting to cause minimum damage
and loss of life during riots, that they were hopelessly under
equipped, and that many police stations lacked tear gas and
other non-lethal methods of crowd control. Similar reports
appeared in the press[20].
Furthermore, Article 11 (f) of the UN Basic Principles
requires that rules and regulations for the use of firearms
should provide for a system of reporting whenever law
enforcement officials use firearms. It is not clear whether
current rules require a detailed report to be filed by police.
If they do, press and other reports referred to above suggest
that, in practice, this basic requirement was often not met.
Finally, Article 22 of the UN Principles requires:
"... Governments and law enforcement agencies shall
ensure ...that independent administrative or
prosecutorial authorities are in a position to
exercise jurisdiction in appropriate circumstances.
In cases of death or serious injury or other grave
consequences, a detailed report shall be sent
promptly to the competent authorities responsible
for administrative review and judicial control."
To the extent that any such detailed reports have been
filed, they are not known to have resulted in any prosecutions
of those police officers who have, Amnesty International
believes, clearly resorted to arbitrary and illegal use of
firearms. The government should order a prompt review of laws
and standing orders relating to the use of force and firearms
by the police, and bring them in line with the UN Principles.
4. The misuse of TADA in Bombay
In the 1980s, against the background of a series of bombings
in Delhi, the Indian government rushed through parliament a
special law "to make special provisions for the prevention of,
and for coping with, terrorist and disruptive activities...".
The Terrorist and Disruptive Activities (Prevention) Act 1987
(TADA) allows for dangerously long police remands in custody
(see above), detention without charge or trial for six months
and makes bail hard to obtain (only if a detainee satisfies a
magistrate that he is innocent of the offence alleged). Trial
in camera by a special court is mandatory, the identity of
witnesses can be kept secret and the normal rules of evidence
have been changed in favour of the prosecution: there is a
change in the burden of proof in some cases and statements
made to the police, not normally admissible in Indian courts,
can be used as evidence in trials held under TADA provisions.
The Bombay press has reported that after the Bombay
bombings in March 1993, and which to date have led to the
arrest of over 150 people under TADA, the Act has been misused
to detain people for whom it was never intended: suspected
ordinary criminals. The Times of India, 9 August 1993, for
example, reported that prior to 15 July 1993, 121 people
described as "gangsters" had been booked under TADA. The
report gave the example of four young men accused of gang
raping a housewife in Chembur being detained in July. The same
article quoted the then Bombay Police Commissioner as saying
that he had personally scrutinised every application made by
the city police to detain people under TADA.
Amnesty International's delegates spoke to the former
Police Commissioner and he confirmed that he had indeed
authorised the detention under TADA of suspects in the gang
rape case. He explained that he considered it to be a test
case. In his view it was the only way to secure the custody in
prison of people against whom there was substantive evidence
that they had committed serious criminal offenses. He said
that police experience was that even in cases of such a
serious nature as gang rape, the courts would normally grant
bail, that as a result no witnesses would dare to come
forward, and that the police would therefore be unable to
secure a conviction. He therefore authorised TADA to be
applied. He agreed, however, that it would be far better to
ensure that the bail system was not abused by lawyers and
accused persons with political connections - as was said to be
the case with some criminal gangs in Bombay - to secure
releases even in cases where there was strong evidence that
serious crimes had been committed. The Hindustan Times, 15
January 1994, carried a report by a former senior police
official, similarly observing: "The police say that they are
compelled to use wrong methods and repressive laws like TADA
because there is no such thing as judicial appraisal or
punishment in the land".
However understandable the pressures that lead the police
to act in this illegal way, the answers to law enforcement
problems must lie in overhauling the criminal justice system
to make it more effective. There can be no justification for
misuse of the law, especially a law like TADA which - as the
Human Rights Committee examining India's obligations under the
International Covenant on Civil and Political Rights found[21]
- falls far short of international standards. Its provisions
for prolonged police detention without charge or trial
encourage police abuse and torture to extract confessions, and
provisions for trials in camera under changed rules of
evidence which shift the burden of proof onto the defendant
can never be accepted as open, fair and as meeting
international standards.
Amnesty International was told that 189 people were
awaiting trial under TADA for their alleged involvement in the
Bombay bombings, but that 44 of them, including the alleged
ringleaders and planners, were not in custody[22]. The case
against the 145 men is being heard by a Special Court
established under TADA, which is to sit in a courtroom set up
in Bombay's Central Prison in Arthur Road. Some defence
lawyers have maintained before the Bombay High Court that this
is too small to fit in all the accused, their lawyers, public
prosecutors, policemen and journalists.
The bombings resulted in appalling loss of life. However,
Amnesty International is concerned that the accused should all
receive a fair trial, in accordance with international
standards. Whether they will do so is far from certain.
Lawyers appear to have been denied access to their clients for
prolonged periods after their arrest when statements to be
used in evidence were recorded. They are said, for example, to
have confessed to having gone to Islamabad or a camp in
Maharashtra for training, to importing explosives and to
transporting the bombs or placing them. Many defendants are
said subsequently to have retracted confessions allegedly
extracted under torture. Such statements made to the police
cannot normally be used in evidence (Section 26, Evidence
Act). However, Section 15 of TADA makes them admissible.
Consequently, the court will admit unreliable evidence which,
in many cases, allegedly consists of confessions extracted
under torture or ill-treatment as described above.
Further, Amnesty International spoke to several relatives
who said that some of the defendants had been unable to pay
for a lawyer and none had been provided by the state.
Relatives also alleged that a number of the accused had been
subjected to grave threats by the police not to contact
lawyers. One was said to have been told: "if you contact a
lawyer or complain about your treatment, we will take your
relatives in custody, or we will arrange a confrontation with
one of your relatives and they will be killed". On 7 May 1993,
Justice J.N. Patel, of the Designated Court sitting under
TADA, ordered the medical examination of Shaikh Aziz Ahmed,
son of Mohamed Ahmed, after he had told the judge "that he was
hit by a belt in the night and has been warned not to disclose
it to the Court otherwise he will be shot and that he should
also say that he does not want to engage any Advocate"[23].
International standards require that all evidence which
is established to have been made as a result of torture shall
not be invoked as evidence in any proceedings. They also
require that accused persons have prompt, adequate, and
regular access to legal counsel of their choice, and that, if
they have no lawyer, they are entitled to have legal counsel
assigned to them "in all cases where the interests of justice
so require"[24]. These provisions should certainly apply to
the men now on trial for their alleged involvement in the
March 1993 bombings.
5. Custodial deaths
Since the preparation of the Amnesty International report,
India: Torture, Rape and Deaths in Custody, published in March
1992, as far as Amnesty International is aware, two more
people are alleged to have died in the custody of the
Maharashtra police as a result of torture. Akash Agle, a
dalit, died in the custody of the Vikrohli police on 23
February 1992, according to his family from police beatings.
The state government refused to order a judicial inquiry
despite being urged to do so by members of the Legislative
Assembly. On 1 December 1992 Pundalik Sutar from Khamaletti
village also died, reportedly from beatings in police custody
at Gadhinglaj in Kolhapur district. This prompted the then
Chief Minister to inform the Legislative Assembly that the
state government was considering establishing a separate
machinery to investigate custodial deaths. The Amnesty
International delegation learned from the Maharashtra Home
Department that this has not happened. Since then, Amnesty
International was informed by the government that, according
to Circular No. MUR 0790/OR-158/POL-11 of 22 November 1990,
all investigations into deaths occurring in police custody are
to be carried out by the State's Criminal Investigation
Department (C.I.D.) or the Bombay C.I.D. Crime Branch,
normally within three months of the death. The circular lays
down some further rules to be observed after an accused person
has been taken into police custody. These include: "There
should be absolutely no incident of accused in the police
custody being beaten up."
No more people are reported to have died as a result of
torture in police custody in Maharashtra since December 1992
as far as Amnesty International is aware: if true, the rate of
reported custodial deaths in Maharashtra compares well to many
other Indian states and territories in which many custodial
deaths continue to be reported. In some areas, Delhi and Tamil
Nadu for example, Amnesty International has even noted a
recent rise in custodial deaths. Nevertheless, Amnesty
International remains deeply concerned about the lack of
determination on the part of the Maharashtra State Government
over many years to order independent and impartial inquiries
into reports of such deaths in custody from torture and ill-
treatment, to bring to justice those responsible for causing
them and grant relief to the victims' families so many years
after the deaths took place.
So far, since January 1985, no police officer accused of
torturing a prisoner to death in Maharashtra is known to have
been sent to prison. Of the 21 custodial deaths reported to
have occurred in Maharashtra between January 1985 and January
1992, only ten resulted in decisions to prosecute. In two
cases in which policemen were initially convicted, they were
acquitted on appeal by the State Government. (The two
policemen sentenced to life imprisonment for murdering Balu
Rambhau Kanhayye and Murli Rambhau Kanhayye in custody in 1986
were acquitted on appeal). In two other cases, prosecutions
resulted in acquittal, despite strong evidence of torture:
seven policemen charged in connection with the torture and
murder in police custody of Namdeo Atak, on whose body 40
marks of external injury were found, have all been acquitted.
Policemen accused of killing Nandala Rughawani in custody were
also said to have been acquitted (Amnesty International asked
the state government for copies of the judgements concerned,
but to date, they have not been received.) Of the remaining
six cases, the position of one (Netaji Bahu Lohar) could not
be clarified by the government, whereas in the other five
cases (of Raju Mohite, Siddharth Taku Nage, Sodarraj Thangraj,
Prakash Ramchander Kamble, and Ram Aba Bhandirge) the cases
were still pending after many years (five years in the case of
Siddharth Taku Nage for example).
In other cases, investigations ordered by the Criminal
Investigation Department (CID) are painfully slow. Jagdish
Laxman Chavan died in March 1989 allegedly of multiple
injuries inflicted on him during police torture. Amnesty
International was told that the State CID had still not
finalized its investigations. When urging that they be speeded
up and requesting to be sent a copy, Amnesty International was
told that the report would only be internally available.
Amnesty International was promised various other reports by
the State Government concerning the outcome of investigations
in these and other cases of alleged custodial deaths in
Maharashtra. By mid May 1994, however, none of them had been
received.
CONCLUSIONS AND RECOMMENDATIONS
The practice of unrecorded arrests and detentions in police
stations is widespread and acknowledged at the highest police
level. It is a dangerous practice that facilitates ill-
treatment, torture and even "disappearances". The practice, in
which the Bombay police engage from time to time, of arresting
relatives of suspects as "hostages" is equally dangerous and
objectionable. There is an almost total lack of transparency
about what happens in police stations. To remedy this
situation Amnesty International recommends that:
1. Police and state officials should unequivocally
condemn the practice of unrecorded detention and
proceed promptly against any police official
responsible for failing to record arrests and
detentions. Senior police officials should regularly
visit police stations without advance notice to
carry out spot checks and to probe whether the
practice persists and ensure that it is eradicated.
Where unrecorded detentions have been proven, those
responsible should be disciplined and prosecuted for
false imprisonment.
2. The government should introduce a system of
comprehensive police custody records (covering all
aspects of the treatment of detainees including time
of arrest, when offered food, when brought before a
magistrate, period of interrogation, signs of injury
and in particular the use of safeguards such as
information to third parties, access to legal advice
and independent medical inspection) to which
outsider monitoring groups and lawyers should have
access. This obligation should be given the force of
statute.
3. Officials should also condemn the illegal police
practice of arresting or detaining innocent
relatives to force suspects to surrender or provide
information about wanted people. Reports of such
practices, including those listed in this
memorandum, should promptly be investigated and
action taken against those responsible.
The clear condemnation of ill-treatment and torture in
all circumstances by the most senior police officials in
Bombay, which Amnesty International welcomes, is clearly not
enough to halt what is a common practice of custodial
violence. There is a yawning gap between the "law in the
books" and the "law in practice". Malpractice is facilitated
by a system which denies outsiders, including relatives and
even lawyers, access to people held in police custody.
Further, there are few regulations about the conduct of police
interrogation, there is no independent police complaints
mechanism and there are no other authorised independent
agencies whose function it is to monitor police practices on
behalf of the community. The absence of such structural
safeguards serve, in Amnesty International's experience, to
facilitate ill-treatment, torture, and other human rights
violations[25]. What happens inside India's police stations
should become more visible. The police should forthwith
implement the assurances which the most senior police official
in the state gave to Amnesty International when he said: "the
police should be open" and "let arrested people know their
rights". Amnesty International recommends that:
4. The government should ensure that there is in
place an independent inspection mechanism to
scrutinize police behaviour in all Maharashtra
police stations. This should consist of persons of
integrity respected in the local community for their
independence of judgement and political
impartiality. They could consist of groups of lay
visitors modelled on or, where they exist, drawn
from the peace committees already established in
some parts of Bombay. Alternatively, the task could
be performed by judicial but not executive
magistrates.
5. The government should create an independent
police complaints body to which all citizens can
have prompt and easy access to complain about any
police practice or decision. The complaints body
should consist of persons of acknowledged
independence and probity and should have at its
disposal its own corps of investigators to look into
complaints of the most serious kind (including,
among other things, custodial rape and other forms
of torture, deaths in custody allegedly the result
of torture, and "disappearances", etc).
6. The right of access to a lawyer promptly after
arrest - including, as the Supreme Court has
directed, during interrogation - should be
specifically included in the Code of Criminal
Procedure; the Constitution should be amended to
extend that right to detainees held under preventive
detention legislation and the Maharashtra Police
Manual should be updated and amended to ensure that
provisions like Section 192(8) - that effectively
permit the police to deny with impunity lawyers
access to people in custody - are removed. Further,
the government should ensure that family members are
permitted to see arrested relatives remanded in
police stations at an early stage and thereafter
regularly, and that facilities for such visits are
provided. These rights should be incorporated in
relevant statutory law (Code of Criminal Procedure).
7. The government should take measures to ensure
that an arrested person's unconditional right
(unless there is specific evidence that exercise of
the right will be used to defeat the collection or
preservation of evidence) to have a third party
promptly informed about their detention in police
custody is implemented.
8. The government should introduce clear and
detailed procedures, preferably in statutory law, to
regulate the treatment and conditions of those in
police custody, particularly regarding the duration
of their interrogation, access to medical assistance
and treatment in detention. Arrested persons should
have a right in law to be informed about their
rights in police custody, and the government should
publicly display these rights in all police stations
in the relevant languages.
9. The government should institute a training
program for police to ensure that they are made
aware and will invariably respect these procedures;
the right of lawyers and relatives to have access to
detainees in police custody; their obligation to
inform arrested persons of the legal grounds for
their arrest and to bring them before a magistrate
within 24 hours. Failure to do so should attract
prompt sanction.
10. The state government should order a review of
the use and alleged abuse of TADA in Bombay. It
should immediately investigate allegations that
statements made by persons arrested under TADA for
their alleged involvement in the March 1993 bombings
were extracted by torture, threats and intimidation.
The courts should ensure that all evidence given
under duress is excluded from subsequent trials and
the accused have access to adequate legal
representation. The government should order a prompt
review of those provisions of the Act that permit
prolonged remands in police custody without charge
or trial, that change the rules of evidence and
oblige trials to be held in camera in contravention
of international human rights standards. The Act
should be amended so that it complies with the
requirements of the International Covenant on Civil
and Political Rights, to which India is a party.
The unprecedented rioting in Bombay in December
1992/January 1993 has given rise to detailed allegations of
serious human rights violations by the police - now before the
Justice Shrikrishna Commission of Inquiry - and of officials'
inability or unwillingness to halt the rioting and bring the
perpetrators to justice.
11. The government should take immediate action
against police officers against whom there is prima
facie evidence that they killed people deliberately
and illegally (see examples in Appendix B), that
they themselves participated in the rioting and
looting, that they gave unreliable testimonies or
falsified police records when questioned before the
Shrikrishna Commission, or failed to submit detailed
reports, as required in standing police regulations,
on any incidents in which they authorized or
exercised their powers to use lethal force.
12. The Justice Shrikrishna Commission should
publish interim reports to facilitate prompt
criminal prosecutions and appropriate disciplinary
proceedings of those responsible, identifying
specific instances and individuals wherever
possible.
13. Existing rules that facilitate unjustified or
unlawful killing of persons involved in or
physically present during major disturbances -
notably the broad terms of the 1986 Communal Riot
Scheme and the 1973 Model Rules - should be promptly
reviewed and amended to bring them into full
compliance with the UN Basic Principles on the Use
of Force or Firearms by Law Enforcement Officials.
Specifically, the government should ensure that any
such rules and regulations permit no more than the
minimum use of force and require full accountability
for any action taken resulting in loss of life, by
obliging anyone resorting to lethal force to file
detailed reports on the incident. Failure to do so
should attract prompt sanction.
14. The government should institute a public order
training programme for all police aiming to ensure
that no more than the minimum damage and loss of
life occurs during control of disturbances. Further,
the police should be adequately equipped to employ
non-lethal methods of crowd control.
Although Amnesty International has not received
allegations that people have died in police custody from
torture in Maharashtra during 1993, it remains concerned at
the lack of determination of the State Government to eradicate
the practice and to ensure that the victims receive prompt and
adequate compensation and redress. Amnesty International
requests that:
15. The government should take immediate steps to
speed up investigations into all allegations that
people have died or been killed in police custody as
a result of torture or ill-treatment, and to make
all relevant documents promptly available to the
relatives of the victims and their lawyers. It
should ensure that legal proceedings against any
police officers allegedly involved be promptly
instituted and that police officials are instructed
to cooperate fully with any such legal proceedings.
The government should demonstrate its commitment to
eradicate custodial deaths and killings by making
judicial inquiries mandatory into all cases of
deaths in custody, as the National Police Commission
has recommended, and by ordering that interim
compensation is promptly paid in all cases where
there is evidence that people have been tortured or
killed in police custody.
APPENDIX B
Reports showing prima facie evidence of human rights
violations by police during the December 1992 / January 1993
riots in Bombay
This Appendix includes information[26] about:
I. Alleged extrajudicial killings of five men in a mosque in
Wadala and "disappearance" of another by police from R.A.
Kidwai police station
- Letter dated 3 February 1993 (relevant parts) from the
Member of R.A. Kidwai Road Relief Committee describing how a
police Sub-Inspector on 10 January 1993 entered the Hilal
Masjid, started firing at people inside the Masjid, killing
Nathu alias Ayub Khan of Shahid Nagar, Shahid Talib Hussain of
Shahid Nagar and Mr Shamshu of Pratap Nagar, allegedly shot at
point blank range. A 70-year-old man was beaten with rifles
and injured, as was Mohammed Ismail, who died from his wounds
on the way to the police station. Mr X (name withheld) was
allegedly shot in the hip by the same Sub Inspector when he
tried to assist Asfaq Khatri, lying down wounded. Adam Sayyad
Hussain, who was ordered to lift the bodies of the dead in the
police van, has reportedly "disappeared" after he was taken
away by the same police Sub-Inspector.
- Letter from the Managing Trustee of the Hilal Masjid
Tameer Committee to the Chief Minister, dated 12 March 1993,
copied to the Commissioner of Police, Bombay, and the Senior
Inspector, R.A.Kidwai Marg Police Station, about the Hilal
Masjid incident. According to the letter, the Sub-Inspector
entered the masjid with several constables and started firing
at the people who had gathered there for the afternoon prayer.
The letter identifies a fifth victim: Khalil Ahmed Israr Ahmed
who was also shot apart from the four named above. It names a
sixth person (here identified as Mohamed Adam Shaikh, but
mentioned above as Adam Sayyad Hussain) whose whereabouts,
after being taken away by police, remain unknown.
- Sworn statement from S (name withheld), an eye witness,
before the Shrikrishna Commission of Inquiry describing that,
after doing ablutions in the mosque, he:
"stood up and suddenly the police entered the masjid
and started firing. I saw that four people were shot
they were dead. I saw that among those shot dead was
Ayub Khan husband of Zarina."
- Sworn statement from T (name withheld) before the
Shrikrishna Commission, (supported by medical records) who is
himself a victim of the police firing at the mosque but who
survived, saying that:
"... on the 10th January it was a Sunday I had gone
to pray at the Hari Hilal Masjid. The police entered
the mosque from the Rafiq Ahmed Kidwai Marg police
station and started firing at the people. I say that
I got a bullet injury on my right hand and I fell
down. The police after firing and beating people
went out. I got up and looked at my hand. My hand
was fractured and I was not able to move.
... some people had closed the Hijra room namely the
room where the Imam prays. I went there and asked
them to open the door. The people opened the door. I
laid down in that room. The police again came there.
They broke the glass of the two doors of the room
and fired from the top. The police forcibly opened
the door. I was lying down.... the police took the
injured including myself to Sakhar Nagar...
... I was discharged from the hospital and arrested
by R.A. Kidwai Nagar police and under arrest for 24
hours after which I was released on bail. I did not
know for what as till today no chargesheet has [not]
been given to me... I was fired [on] even in the
mosque even though I was a muslim... I have received
Rs. 5000/- as compensation. I still have difficulty
in using my right hand...."
- Sworn statement by an old man, Q, an eyewitness,
confirming details of the above account:
"..it was Sunday... the 10th of January, I had gone
to pray at 12.30 p.m. I was inside the mosque. The
police came and started firing inside the mosque,
and came right into the mosque with their shoes on.
I immediately lay down when firing started and I was
saved though firing took place in my direction three
times. I saw four people dead in front of me...
thereafter they broke the doors of the mosque and
they beat people with lathis. thereafter they took
away a lot of people to the police station. However
they left me... one of my brothers who is blind was
also hurt by the police in front of me and was
bleeding when the police were breaking doors in the
mosque."
- Letter from Y (name withheld) dated 11 March 1993, who
was himself shot at by police when saying his prayers, but
survived. He described how he left home at around noon on 10
January 1993 to go for Namaz to the Hilal Masjid, how after
preparing for Namaz the police arrived, entered the masjid
and:
"started firing at random, people were aweful and
due to the fear of being victim to this firing they
closed the doors. In the frontside a window was left
open inadvertently through which the police opened
fire. No sooner [were] their bullets consumed, they
asked the police to come forward and stand in a row
with hands held up. Subsequently Inspector... loaded
his gun again. In the meanwhile a person named
Shamshu stepped ahead and the said Inspector shot
him and he died on the spot". "Out of the police
staff one constable said 'go to the wireless van and
tell them that police opened fire on the Muslims in
the Masjid.' It seemed that they were about to shoot
all of us, but in the meanwhile a Sikh Jawan of S.
E.P. said to the police that it is enough now so put
an end to all the acts ...
We were all taken to Kidwai Nagar Police station...
Then I was taken to the K.E.M. hospital and also to
the Sion hospital where the doctor opined that there
is no bullet shot in this person's back. But after a
period of 17 days, when I was released on bail, i.e.
on 27.1.1993, I approached a private doctor... In
the x-ray it was visible that a bullet is in my
back. After a period of 17 days the bullet was taken
out by a private doctor..."
He requested assistance and punishment of the guilty police
officers.
- Letter from Z (name withheld) to the Chief Minister of
Maharashtra, dated 11 March 1993, describing how he was
sitting in a factory next to the Hilal Masjid at 12.30 a.m. on
10 January 1993, heard shots being fired, saw an injured boy
entering the factory to whom his friend, Mr X [see above and
letter below], attended. Shortly afterwards three police
including the same Sub-Inspector "fired at X without any cause
and also hit him with riffle butts". Mr Z said he was beaten,
arrested and detained for three days on protesting against the
police action.
- Letter from Mr X himself, dated 12 March 1993, to the
Chief Minister of Maharashtra, describing how he heard the
sound of firing in the masjid, saw a wounded man entering the
factory and describing how:
"On seeing his state I took pity on him and asked
him to lie down on a cot. A short while later, the
police officer, accompanied by the S.R.P. and other
Constables entered the factory premises. I then
explained to the Police Officer ... that this man
was injured and should be hospitalised. Instead of
helping me and taking the injured to hospital, the
police officer fired a shot at me at point blank
range over my hip. I fel[t]l down on the cot. The
S.R.P. started assaulting me with their lathis and
Riffle butts, on my hand and chest. My left hand was
fractured in the process, at two places. I felt a
faint sensation in my head due to the heavy blow
l[e]odged on my head. Thereafter, they proceeded to
assault my friend Z who is the factory ... I was
bleeding very profusely and was taken to the
hospital after 3 hours... the Doctor who attended me
explained to me that if the bullet is removed, I may
suffer serious complications. So the bullet is still
existing [has not been removed]".
He said he was refused any compensation because he is a
government employee.
- Sworn statement (supported by medical reports) from the
wounded man (R) to whom Mr X attended. He said that:
"... on the 10th January 93, I had gone to Hilal
Masjid to pray at about 1 p.m. I was standing and
praying when suddenly I heard the noise of bullet
firing and was hit by a bullet in the abdomen... I
started bleeding, just then two constables came and
hit me with lathis ... I saw several constables
beating people in the masjid brutally. I fell
down... I struggled, got up and crossed over a very
small wall which separates the Masjid from the ...
factory and sought shelter in the factory until at
about 4 p.m. The factory people arrived and seeing
me in that condition advised me to go to hospital...
I was taken to the Sion hospital, where I was
admitted for two months and I was operated on twice.
... I have received compensation of Rs. 5000 however
this is wholly inadequate for my medical treatment
and the xx relief Committee has been assisting me."
- Letter from a mother to the then Commissioner of Police
for Greater Bombay, dated 2 February 1993, asking him to trace
her son, Mohamed Adam Hassansab Sayed [named above as Mohamed
Adam Shaikh / Adam Sayyad Hussain] who has not been seen and
has not returned home since the same police Sub-Inspector took
him away at about 12.45 p.m. on 10 January 1993 in front of
their house at the Shahid Nagar Hutments, Wadala. The mother
describes how the same police Sub-Inspector gave her a note
telling her to go and see her son at Bhoiwada police station.
Not finding him there, she returned to the R.A. Kidwai police
station, was told to return the next day, was then taken to
the K.E.M. hospital's morgue, but failed to find a trace of
her son, and was then told to lodge a missing complaint. She
wrote:
"Even this surprised me because my son had been
taken away by PSI.. right in front of my eyes and
how could he be dead or missing?"
II Attempted extrajudicial killing by police in December 1992
at Govandi
- Statement dated 19 March 1993 before the Indian
People's Human Rights Tribunal by Himmat Ali, a vegetable
vendor, describing how, on 8 December 1992 at 4.30 pm.:
"I was standing with my handcart. The police had
come and because I was still on the road they caught
hold of me and beaten me with the butt end of their
guns and sticks. They brought me to Shivaji Nagar
Colony #4, made me stand up and put my hands up.
They fired at me about 4 times. I received injuries
on the stomach and the back. I was placed in a
police van and taken to the Deonar Police outpost...
I was placed in another van in which there were dead
persons. I was taken to the hospital. I told the
doctor that I had bullet injuries. The doctor
signalled me to stop talking as otherwise I could
die... I was not participating in any riot when the
police fired at me." (Further details of this
incident are given on page 20 of The Bombay Riots
The Myths and Realities by the Lokshahi Hakk
Sanghatana and the Committee for the Protection of
Democratic Rights, Bombay, March 1993.)
III Reported extrajudicial killing by police in December 1992
at Shantinagar
- Letter from Tahir Ashrafi, General Secretary Bombay
Janata Dal, to the Governor and Chief Minister of Maharashtra
and the Commissioner of Police, Bombay, alleging that on the
7th December 1992 at 1 pm. a police party from Deonar Police
Station came to Shantinagar and:
"broke open the door of one of the houses. Inside
was a young man Majeed alias Gadra eating food. He
was dragged out by the police, made to stand near a
pole and shot dead by Sr. P.I.....
That on the same day i.e. 07.122.92 at 10 p.m. in
the night when I reached the spot I put the dead
body of Gadra on a cart and tried to move it to
Shatabadi Hospital, but the police hostilities
continuing unabated prevented me from doing so..."
IV Reported "disappearance" of a man on 7 December 1992 after
arrest by police in Govandi
- Letter by Tahir Ashrafi, General Secretary Bombay
Janata Dal, to the Governor and Chief Minister of Maharashtra
and the Commissioner of Police, Bombay, alleging that on the
night of 7 December 1992 a party of police, accompanied by
members of the Shiv Sena, went in a police van to Baiganwadi
and:
"broke open the door of Abdul Qayyum's house... at
about 2.30 am. and looted the house and ransacked it
completely. One Niyaz Ahmed sleeping in the house
was brutally beaten by the police and taken away.
His whereabouts after being arrested are not still
known".
FOOTNOTES/ENDNOTES
1 See: `An Unnatural Fate' `Disappearances' and impunity in the
Indian States of Jammu and Kashmir and Punjab, AI Index ASA
20/42/93, 15 December 1993.
2 See: Human Rights Violations in Punjab: use and abuse of the
law (ASA 20/1191) and Amnesty International's 15 December 1993
report on `Disappearances' in Jammu and Kashmir and Punjab,
referred to above.
3 Seminar, May 1993, page 46.
4 Justice Khalid, constituting a one-man Commission of Inquiry
appointed under the Commission of Inquiry Act, submitted his
report to the State Government in May 1992; it was tabled in
the State Assembly on 1 April 1993. The Commission awarded
compensation to victims of illegal detention in four cases and
in one further case to the family of a man who had died in
police custody. It made a number of important recommendations
to prevent such practices. These include an obligation to
inform a relative of an arrest, whose acknowledgement thereof
should be recorded on an information sheet that records the
time and place, date and name of the police station whose
officers are responsible for arresting the person. Judge
Khalid said too that senior police officers should be obliged
to visit police stations often to see whether persons held
there are kept without a record. Amnesty International does
not know what action, if any, the Tamil Nadu state government
has taken to implement these recommendations.
5 See: `Salt in the wounds' - Communalism and the State of
Bombay, report prepared by the Lokshahi Hakk Sanghatana, July
1993. The reports appearing in The Pioneer, Bombay, in early
May 1993 are headed: `Bombay cops' misdeeds in the open' and
`Mahim cops instill terror and disgust'.
6 For one recent example, see: 'Large-scale corruption in
police recruitment', Indian Express, 24 January 1994, in which
the Commissioner of Police, Nagpur, did not deny the practice
saying he attempted to counter it. The article also quotes a
newly appointed Sub-Inspector in the city as saying: "I have
expended over Rs 2 lakh to get in as a PSI (Sub Inspector). My
priority would obviously be to recover the deficit as early as
possible. And, in our society, there are segments too eager
and willing to pay us".
7 (1950) S.C.R. 88
8 Nandini Satpathy v. P.L. Dani (1978) SC 1047. The Supreme
Court observed: "...if an accused person expresses the wish to
have his lawyer by his side when his examination goes on, this
facility shall not be denied... Not that a lawyer's presence
is a panacea for all problems of involuntary self-
incrimination, for he cannot supply answers or whisper hints
or otherwise interfere with the course of questioning except
to intercept where intimidatory tactics are tried... He
cannot harangue the police but may help his client and
complain on his behalf, although his very presence will
ordinarily remove the implicit menace of a police station."
9 Smt. Nandini Satpathy v. P.L. Dani AIR 1978 SC 1025.
10 Circular No. MUR 0790/OR-158/POL-11 issued on 22nd November
1990 by the Maharashtra Government lays down further
procedures to be followed after arrest. These include: "I-(1)
When an accused is being lodged in the police custody for the
first time, a note may be taken about the injuries about the
body of the accused. Such entry may be taken in the Station
diary. It is incumbent to take entries in the Station diary
every time when the accused is being taken out of police
custody for the purpose of investigation as well as the time
he is brought back to police custody." Whereas the rule on
registration of injuries on arrest is to be welcomed, it is
unfortunate that the rule is not obligatory.
11 Indian Express 12 and 13 January 1994. Within days of the
announcement of the Deputy Commissioner's transfer, 40,000
residents signed a petition in protest. Later that month the
government reportedly declared in court that it had no
intention to shift the DCP from his post.
12 The effects of such practices were first described by
India's authoritative National Police Commission: "In fact the
police became specially vulnerable to interference from
politicians because of the immense political advantage that
could be readily reaped by misuse of police powers. The
quality of police performance was and continues to be
adversely affected by such interference... What started as a
normal interaction between the politicians and the services
for the avowed objective of better administration... soon
degenerated into different forms of intercession, intervention
and interference with malafide objectives unconnected with
public interest... Pressure on the police takes a variety of
forms ranging from a promise of career advancement and
preferential treatment in service matters if the demand is
yielded to, and a threat of drastic penal action and
disfavoured treatment in service matters if pressure is
resisted." Second Report of the National Police Commission,
paragraphs 15.2, 15.4 and 15.14, Government of India, August
1979.
13 "...many of the killings [by police] took place, not when
the deceased were in the mob, but within their own homes....
the police are also guilty of being partisan in the riots.
Many witnesses have stated before us that they were attacked
in the presence of the police and the police did nothing. In
many cases, the police openly supported the rioters and
accompanied them in the attack. When the victims went to the
police station they were driven away without recording their
complaints". The People's Verdict, the Indian Peoples's Human
Rights Commission, July 1993 (pp. 104 -105).
14 Some political parties as well as senior policemen have
attributed the resurgence of communal violence in January to
several incidents in which Hindus were killed between 6 and 8
January 1993, notably the killing of at least four Hindus who
were burnt alive in a room in Jogeshwari. Civil liberties and
other reports, however, have provided details that the January
riots were pre-planned primarily by large scale "maha arti"
rituals organized by the Shiv Sena and other Hindu communal
parties throughout December and January, which became starting
points for Hindu crowds to direct violence against the Muslim
community. (See: Bombay Riots: Second Phase, Economic and
Political Weekly, 20 - 27 March 1993, Frontline 12 February
1993 and The Bombay Riots, The Myths and Realities pp 63-64
and 89-90). India Today wrote: "What was equally worrying was
the way information was selectively used by the police to give
the impression that Muslims in central Bombay had turned
violent, knifing several Hindus on January 6 and 7. The Sena
fury was then justified by the people. But a state CID
investigation revealed that the violence actually began after
a maha arti ended at Gol Deval in the sensitive Null Bazar
area on January 6. A section of the congregation turned
violent... but the police did not reveal the full picture."
15 Saamna (the Shiv Sena paper) 9 January 1993 and Time
Magazine 25 January 1993.
16 Business India, 21 January 1993, The Times of India, 23
January 1993 and Sunday, 31 January 1993.
17 See: The People's Verdict - An inquiry by the Indian
People's Human Rights Tribunal conducted by Justice S.M. Daud
and Justice H. Suresh for the Indian People's Human Rights
Commission [the list of police personnel appearing on pages
137 -138]; The Bombay Riots - The Myths and Realities, a
report by Lokshahi Hakk Sangathana and Committee for the
Protection of Democratic Rights, Bombay, March 1993; Bombay's
Shame - A report on Bombay Riots, Ekta Samiti, Committee for
Communal Harmony, Bombay April 1993; and When Bombay burned -
Reportage and Comments on the riots and blasts from the Times
of India, edited by Dileep Padgaonkar, UBSPD New Delhi,
Bombay, Bangalore, Madras, Calcutta, Patna, Kanpur, London,
1993.
18 For example, the Shah Commission of Inquiry, carrying out an
incisive investigation from 1977 - 1979 into the numerous
excesses committed by officials during the 1975 - 1977 period
of emergency, was never acted upon. According to The Hindu, 21
February 1992, 40 Commissions of Inquiry had conducted
investigations into allegations of police excesses in Andhra
Pradesh, most into cases of custodial deaths, but not a single
police officer had been found guilty in a court of law for
offenses of which the commissions had identified them to be
responsible. The same happened with a judicial investigation
into the killings of Muslim villagers by members of the
Provincial Armed Constabulary in Maliana, Meerut, Uttar
Pradesh, in May 1987.
It is nearly ten years since 2,733 Sikhs were, according
to official figures, killed in and around Delhi in November
1984 following the assassination of the late Prime Minister
Indira Gandhi by her Sikh bodyguard: the victims' families are
still waiting for justice. No less than six official inquiries
were instituted to investigate the killings, including the
allegations of complicity of influential political figures of
the ruling Congress party and of police cover-up: the 1985
Ranganath Mishra Commission, the 1987 Jain-Banerjee
Commission, the 1987 Kapur-Mittal Commission (indicting 72
police officials), the 1990 Poti - Rosha Commission, the 1990
Jain-Aggarwal Commission (which in 1993 recommended the
prosecution of 298 police officers and 29 "erring persons" and
which, like the Jain - Banerjee Commission and the Poti -
Rosha Commission, included the recommendation to bring charges
against two leading Delhi politicians of the Congress Party),
and, finally, the R.S. Narula Committee established in
December 1993 by the Chief Minister of Delhi (calling for
action against 72 police officials and 21 cases against others
including the above Congress leaders). So far, all that has
happened is that 15 persons have reportedly been convicted in
connection with 20 out of the 2,733 deaths. Over 1,000
affidavits have been filed by victims. Yet none of the
recommendations of these six official committees have been
implemented nor have any of the accused policemen and
politicians been brought to justice: in May 1994 the Director
of Prosecutions of the Delhi Administration reportedly argued
that the cases against the indicted policemen be dropped.
19 See: The Bombay Riots, Lokshahi Hakk Sangathana and CPDR.
Pages 3 and 62 refer to hospital figures revealing that the
large majority of the victims were Muslim, were killed or
injured in police firing, and that most bullet injuries were
in the upper region. Asghar Ali Engineer found: "... the post-
mortem reports showed that out of about 250 deaths [in
December 1992], 192 persons died in police firing and out of
those more than 95 percent [of] people had sustained injuries
above abdomen which shows that the police fired to kill and
not to maim or injure" (Economic and Political Weekly, 9 April
1994). The Times of India's 11 December 1992 report quoted
M.S. Lokhandwala, Municipal Corporator for Dongri, as saying
"When the police fired, they shot straight at the abdomen and
not the feet" and a doctor at J.J. hospital that very few of
the victims he attended to had leg injuries.
20 Frontline, 12 February 1993 reports: "In the first phase
[December]... the police did not use teargas, water cannons or
rubber bullets, and they did not shoot at protestors' feet: in
many places, they shot to kill".
21 See: India: Examination of the second periodic report by the
Human Rights Committee, Amnesty International, March 1993 (AI
Index ASA 20/05/93) pages 10 -12.
22 According to The Indian Express, 12 March 1994, there were
189 accused, 45 of them absconding. 121 were in custody and 23
were out on bail.
23 Letter No.17222 of 1993 from the Registrar, City Sessions
Court, Gr. Bombay, to the Sr. Inspector of Police, Worli
Police Station, Bombay, informing the latter of the order
passed on 7 May 1993 by the Judge, Designated Court, Gr
Bombay.
24 See: Article 15 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment and
Articles 17 and 18 of the UN Body of Principles for the
Protection of all Persons under any Form of Detention or
Imprisonment.
25 In drawing these conclusions, Amnesty International wishes
to underline the important observations made by the National
Police Commission in its First Report (paragraph 10.1) :
"One of the fundamental requisites of good
government in a democracy is an institutionalised
arrangement for effectively guarding against
excesses or omissions by the executive in the
exercise of their powers or discharge of their
mandatory duties which cause injury, harm, annoyance
or undue hardship to any individual citizen. This
arrangement has not only to include internal checks
and balances to minimize the scope for such
misconduct but also to ensure an effective inquiry
into any specific complaint of an alleged excess or
omission and expose it promptly for corrective as
well as penal action. This is especially necessary
in the police who have vast scope for exercise of
powers by a large number of personnel affecting the
rights and liberty of individual citizens in daily
life. Powers of arrest, search, seizure, institution
of a criminal case in court.... mark several stages
in executive police action which afford vast scope
for misconduct by police personnel in different
ranks, particularly at the operational level,
causing harm and harassment to the citizens".
26 The identity of some witnesses has been withheld on request
of informants expressing fear of repercussions. Details of
witnesses are with the official and unofficial inquiry
commissions listed in this Appendix.
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