Ace lawyer Nitya Ramakrishnan, through her book “In Custody”, highlights the practice of custodial torture in South Asia, and the urgency to engage with it — through the system and through society
Let me get a bit personal first. It was in the thick of the Assam students’ agitation of the 1980s. My “tuition sir” — a strapping six-footer who was also a local taekwondo star — just stopped coming home one evening. A day or two later we learnt that he was “picked up”. A month went by and then another. And then the news came that he had returned home. A bunch of his students, including me, cycled down to his house not too far away but his sister told us, “He doesn’t want to see you all now. He is not well.”
“Sir” never taught us again. Instead, he became a regular at the local hospital and was often referred to the Gauhati Medical College. A year later, we heard about his death. Years rolled by and life moved on.
In faraway Delhi, flipping through the just-out Sage publication, “In Custody — Law, Impunity and Prisoner Abuse in South Asia” by lawyer Nitya Ramakrishnan, my mind went back to the trouble-torn days of Assam and the “sir” I adored so much. That he never got justice.
That so many innocent ‘suspects’ like him perished in Assam is no secret. I am sure the case is the same in different parts of India as also in Pakistan, Afghanistan, Nepal, Sri Lanka and Bangladesh. Innocent men and women becoming victims of custodial torture at the hands of their own policemen.
Ramakrishnan says, “The book is not about law alone. Law is just one part of the entire mosaic which is full of contradictions. The statutes are important. Without a norm the situation becomes worse. But it is also a social issue. It is not a book about torture but about the system and society.”
Ramakrishnan’s book brings within its compass the entirety of the complex dynamics related to the practice of custodial torture, tracing the past and present-day nature of the conflict between the norm and its practice, not just in India but also in the the five nations surrounding it. You trust Fali S. Nariman when in his foreword to the book he points out, “…it is the only work I know that describes with such infinite detail and accuracy the plight of those in custody.”
The over-400 page volume, which grew out of a study she carried out for South Asians for Human Rights (SAHR), is chilling in terms of recording detailed case studies. Six of the cases are from India — that of police torture during detention in a farmhouse of S.A. Geelani, an accused in the Parliament attack case; an everyday harassment of a ‘petty’ offender; the custodial death of a Sikh priest in insurgency-affected Punjab; a rape victim who committed suicide in Rohtak; and torture and sexual assault of a homosexual and two transgender persons in Delhi.
The book points out that India, despite seeing a colonial past that had inquired into and outlawed custodial torture nearly a century before Independence, has, as a free nation, failed to even ratify the UN Convention against Torture (CAT). A select committee of the Rajya Sabha has already recommended ‘command responsibility’ to be incorporated in the Prevention of Torture Bill 2010, but it is yet to become a law. But the bigger point the book makes is that “custodial torture doesn’t stir the collective conscience though it may outrage many of us as individuals.”
Ramakrishnan says, “I have included case studies to also illustrate how as a society, our institutions actually work to preserve the system although they are committed to oppose it. That is why custodial torture is a public secret.” Ramakrishnan credits Delhi-based lawyer Shrimoyee Nandini Ghosh, the India researcher for the study, for “exposing” this public secret, saying, “She has a tremendous instinct for tracing the sub-text.”
She also notes a reality here, “For instance, all these people who gathered against corruption recently — I am sure, the first instinct of more than half of them, when caught for, say, talking on the cell phone while driving, would be to bribe the policeman. So we assume it is someone else’s job, but we all are complicit in it in some way in the secret belief that torture is indispensible to law enforcement. And that is why it is a social issue. We have to question our own positions too.”
The book also traces “this doublespeak” in the Indian court decisions spanning seven decades. “There has been a consistent judicial engagement with the issue but there have been tosses and turns. In fact, we have analysed judicial trends in the book. There have been repeated statements on police lawlessness, and that it can’t be accepted even to fight terror. So the judiciary has engaged with the issue, but I have pointed out the contradictions even in that engagement.”
She calls it “a fraught process particularly when it comes to issues of national security.”
Many times you see the media playing into the hands of the police by reporting each and every ‘confession’ a prisoner makes in custody. Ramakrishnan makes a pertinent point here: “Media is not a monolith, it is a part of the society. In general, our minds have shrunk and are unable to deal with complexities and plurality. We tend to make frenzied assumptions about what we think is right and wrong.”
Ramakrishnan says when a prisoner is taken to the magistrate, or for medical examination, there should be an inherent mechanism in the system itself to check custodial torture and handle the consequence of violations of the norm, rather than the onus falling on the victim or his/her family to prove it.
“Rights activists,” she states, “should document how magistrates deal with prisoners and record how hospitals conduct medical examinations.” She points out what Vikram Sood, former chief of RAW, said in his interview in the book: “Acute fear of violence or serious harm is more likely than not to result in statements that are untrue, unreliable and misleading.” Sood suggested solutions like a manual for intelligence officers, CCTVs covering each session, etc.
Nariman, in the foreword, mentions former President R. Venkataram once saying confessions, even if recorded by a magistrate, should be rendered inadmissible as evidence. The accused, if he wants, can plead guilty to the charge in the court. This way, “a great number of custodial deaths and brutality would disappear.”
Ramakrishnan adds, “This has been my view for a long time too.”
Till such a day dawns, as we talk, there must be someone powerless facing the wrath of the all powerful within the four walls of an interrogation room.