Sarah Smith

(Ed. note: The author was a summer intern of the Asian Human Rights Commission [AHRC] this year as part of the Santa Clara University Summer Law Study Programme in the United States.)

The numerous legal safeguards in international and domestic law that are intended to protect Indian citizens' fundamental rights have very little meaning to Soumyendu, Sunil, Vishambhar and the villagers of Kumarpukur, for the Indian government has failed to adequately protect the right to life of its citizens. Although the Supreme Court of India has attempted through judicial activism to create standards for the enforcement of international and domestic laws, their actions have not sufficiently trickled down to those to whom it matters most. This activism has resulted in numerous so-called landmark cases. However, violations of the right to life are still prevalent and have permeated the deepest reaches of the country. This apparent apathy to people's rights has resulted in a broad discrepancy between the "laws of the land" and day-to-day practice.

Civil and Political Rights

Custodial torture is one example of a violation of civil and political rights. These types of rights are protected under both international and domestic law but are often blatantly disregarded in common practice. In order to understand the discrepancy between India's laws and India's reality, it is most helpful to look first at the nature of the laws protecting individuals from custodial torture and then at examples of explicit violations.

International Laws

India has both signed and ratified the International Covenant on Civil and Political Rights (ICCPR), and thus, the government is required to enact laws that implement the standards set forth in the ICCPR. Article 9 of the covenant states, "No one should be subject to arbitrary arrest or detention." It also stipulates that those who are arrested shall be informed of the reasons for their arrest at the time of the arrest. It is important to note that India made a reservation with respect to this article upon its ratification of the covenant, stating that it shall be applied in a manner in consonance with the provisions of Clauses 3 to 7 of Article 22 of the Constitution, which will be discussed below in more detail. The U.N. Human Rights Committee states in their concluding observations of 1997 though that the reservation does not exclude the obligation to promptly inform the person being arrested of the nature of their arrest.

Additionally, Article 14 of the ICCPR demands that, upon being charged with a crime, the accused shall be entitled to a fair hearing by an impartial tribunal. The U.N. Human Rights Committee states in their 1997 concluding observations that continued detention should fall under the requirements of this section. In other words, a detainee should be entitled to a fair hearing in order to be further detained. Holding a hearing could help prevent custodial torture since many instances of torture occur as a result of continued detention. More generally, Article 7 of the ICCPR adds that no person "should be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

With respect to torture, although India has signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), they have yet to ratify it and make it part of domestic law. Moreover, the government of India has failed to receive the U.N. special rapporteur on the question of torture, preventing further international investigation into complaints of this abuse. This inaction has most likely contributed to the stagnant nature of the investigation into incidents of custodial violence.

The Constitution

The Constitution of India also contains provisions protecting citizens against custodial torture, which are oftentimes similarly disregarded. The right to life is secured in Article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law." That being said, this article has also been long understood in the Indian judiciary to protect the right to be free from torture. This view is held because the right to life is more than a simple right to live an animalistic existence. Citizens are also entitled to live a life of dignity.

In addition, Article 22, providing protection from arrest and detention in certain cases, furnishes guidelines for custodial officers. Among these guidelines, it is stated that a detainee must be produced before the local magistrate and a detainee must not be denied the right to consult with a lawyer of his or her choice. As previously noted, Clauses 3 to 7 of this article take precedence, however, over Article 9 of the ICCPR. Clause 3(b), for instance, states that the aforementioned guidelines for arrest shall not apply to those detained under preventive detention, a reservation that essentially precludes an individual detained under "preventive detention" from receiving protection under Article 9 of the ICCPR. Preventive detention is prescribed by Section 151 of the Criminal Procedure Code (CrPC). It allows an officer to arrest a person without a warrant if it appears that they are "designing to commit a cognisable offence." Because "preventive detention" is a convenient method for arresting individuals against whom no real charge exists, these provisions are ineffective as a means of preventing custodial torture. There is far too much discretion and leeway allowed for police officers to rob arrestees of their fundamental rights.

Supreme Court Case Law

Recognising the ineffectiveness of the Constitution in preventing custodial torture, the Supreme Court has taken issue with the subject. In the much praised case of D. K. Basu vs. State of West Bengal, the Supreme Court stated that "a citizen [does not] shed off his fundamental right to life . . . the moment a policeman arrests him." In other words, every citizen, regardless of their position or status in society, deserves the protection afforded them under the Constitution. However, the Supreme Court was aware that this is not always the case in practice. Thus, it issued 11 requirements to be followed in all cases of detention. Among the most notable guidelines is that police must make a memo of arrest to be countersigned by a witness and the arrested person, and the friends or relatives of anyone arrested should be informed of the arrested person's location. Moreover, the police must keep a diary with the names of the custodial police officers, and the detainee must be medically examined at the time of their arrest and every 48 hours afterward.

The theory behind these guidelines, especially those involving documentation of the arrest procedure, is to ensure that the laws regarding arrest and detention are properly followed and respected. While the requirements do provide a certain level of judicial protection, more often than not, however, they too are disregarded entirely.

Because of the multitude of situations in which laws are disobeyed or ignored, many people may question the significance of the guidelines laid out in D. K. Basu. If they are rarely followed, should they really be considered "landmark"? The simple answer is no, especially considering the statement the Supreme Court made that the requirements are "to be followed in all cases of arrest or detention till legal provisions are made." Since 1997, when the case was decided, no legal provisions have been made.

However, the 11 requirements do have some positive aspects. First, the Supreme Court states that failure to comply with the guidelines "shall, apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court," adding additional punishment to other criminal charges and providing another method to punish torturers and others who ignore and violate people's rights in custody. Second, the existence of the requirements provides human rights workers with a decision from India's highest court with which to challenge violations. More requirements ideally mean fewer loopholes and more opportunities to present the violations to administrative or judicial bodies for review and possible prosecution. Lastly, the requirements offer further specificity regarding Articles 21 and 22 of the Constitution and may serve to remind the authorities and courts, as well as individuals, of the importance of respecting the constitutional rights protected by these articles.

Legislative Law

Despite the benefits of the D. K. Basu decision, the enforcement of the guidelines has been lacklustre and often entirely absent. Instead, police officers often justify torture by utilising loopholes in the CrPC. For example, Section 41(a) of Chapter 5 of the CrPC provides that an individual can be arrested without an order or warrant if he "has been concerned in any cognisable offence or [if] a reasonable complaint has been made [against him] or credible information has been received or a reasonable suspicion exists of his having been so concerned." The key words in this subpart-reasonable and credible-are extremely vague and allow for unfettered discretion on the part of police officers.

As previously observed, many times arrests occur under the guise of "preventive detention." The U.N. Human Rights Committee in their concluding observations regarding India's implementation of the ICCPR stated their dissatisfaction with the use of preventive detention. Section 151, the section that allows for preventive detention, is widely recognised as giving too much discretion to the police, and it allows the police to create reasons to arrest those against whom they have a personal vendetta. The number of arrests made under this section is unusually large, suggesting that police officers are doing just that. Furthermore, if an officer uses preventive detention as the grounds for arrest, the officer also does not have to comply with Article 22 of the Constitution.

In 1994, the Supreme Court stated in the case of Joginder Kumar vs. State of Uttar Pradesh that "no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another." While the CrPC provides the power to arrest, many police officers do so without the justification.

The Reality in India

In addition to torture in police custody, other civil and political rights are not being observed in India.  A Kashmiri photojournalist recently beaten by the police, above, protests against the harassment of journalists and lack of respect for press freedom. (Photo: EPA)

Although Indian law contains numerous provisions aimed to prevent torture in police custody, the day-to-day reality is much different. Public officers frequently ignore the detainee's or arrestee's fundamental legal rights. One of many of these instances occurred on July 6, 2004. At midnight, Soumyendu Mondal awoke to police officers arresting him. Before leaving his home, the police wrote on a piece of paper that nothing was seized from the house and took the signatures of Soumyendu's wife and mother to verify the statement. At 2:30 a.m., Soumyendu and the officers left in the police jeep. Two days later the police sent a message to the victim's family claiming that Soumyendu had died due to cardiac failure. However, local witnesses say that numerous injuries could be seen on his body that were inconsistent with the officers' story. The victim's family alleges that Soumyendu was brutally tortured while in police custody. In order to protect themselves from blame for these injuries, the police concocted a dubious story that he jumped from the jeep in an attempt to escape. In addition to custodial torture, Soumyendu was not produced before the local magistrate in violation of Article 22 of the Constitution, and no memo of arrest was prepared at the time of arrest in violation of one of the requirements of D. K. Basu. In fact, few, if any, of the Supreme Court guidelines supplied in D.K. Basu were observed, yet little action has been taken in the past year since Soumyendu died in response to his death in custody. Moreover, the police officers violated Section 41(a) of the CrPC, assuming they did not have credible information regarding Soumyendu's behaviour. Even if they did have credible information, the torture that Soumyendu endured is a blatant violation of Articles 7, 9 and 14 of the ICCPR since he was not given a fair hearing and was not informed of the reasons for his arrest. Unfortunately, Soumyendu's unlawful detention, which resulted in his tragic death, is not an isolated incident in India's day-to-day affairs. Another custodial death occurred on June 15, 2005, in the state of West Bengal. Sunil Roy boarded a local train on his way to work as a fish trader that day. When the train reached its destination, some passengers in his compartment accused him of pickpocketing and reported him to the local police. The police arrested him but failed to provide a memo of arrest and did not inform Sunil's family of his arrest.

At 11:30 p.m. on the same day, the police informed Sunil's family that he had committed suicide by hanging. However, Sunil had torture scars on his head, nose, back and legs, leading his family to believe that he was tortured to death. There are also claims that there were no witnesses to the case, and the passengers who allegedly accused Sunil were not actually present at the scene. The police also failed to produce Sunil before a magistrate.

In Sunil's case, the police clearly arrested him without properly meeting the requirements of Section 41(a) of the CrPC. However, in court, they might claim that a "reasonable complaint" had been made against him by the passengers or that "credible information" had been received. Thus, the court might allow the officers to escape liability for their actions. Because of the immense discretion allowed under the CrPC, police officers are able to "legally" act with wide latitude. This flexibility often results in innocent victims being tortured to death as is believed to have been the case on June 15, 2005.

The police officers also violated standards set forth in D. K. Basu and clearly violated Sunil's fundamental rights under Article 22 of the Constitution by failing to produce him before the local magistrate. They also violated Articles 7 and 9 of the ICCPR.

Although civil and political rights are safeguarded in legal documents, such as treaties and the Constitution, and despite the fact that the Supreme Court has broadly interpreted these documents, the day-to-day reality persists: individuals are still being illegally tortured in custody, and the perpetrators are not being punished.

Economic and Social Rights

Broad discrepancies between the law and reality are not limited to civil and political rights though. In fact, the discrepancies are so widespread that other right to life issues are also affected. Although the right to life has traditionally been thought of as strictly a civil and political right, economic and social rights are arguably included as well. The right to life cannot be construed as simply the right to an animalistic existence; rather, it must be interpreted broadly to ensure the protection of the right to live in a humane and dignified manner.

The right to food and sustenance is an example of an economic and social right that falls under one's right to life. Although the right to food is protected under both international and domestic law, it too is frequently ignored as a fundamental right to life. Again, it will be most helpful to first look at the status of the laws that protect the right to food in India and then at the current reality.

International Laws

India has signed and ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), which obligates the government under Article 11 of the covenant to protect the right to food. This article demands "the right of everyone to an adequate standard of living for himself and his family, including adequate food." Adequate food though is not simply limited to quantity and quality but also includes accessibility as well. Moreover, India is obligated to create legislation and programmes to protect this right. In addition, Article 11 states that each party to the covenant must initiate special programmes to secure methods of production and resolve problems related to exporting and importing food.

The right to food, however, cannot be inextricably separated from civil and political rights either. Article 6 of the ICCPR also presents India with an obligation to prevent hunger and starvation when it states that "every human being has the inherent right to life. This right shall be protected by law."

Thus, the government of India is undeniably required under international law, both the ICESCR and the ICCPR, to prevent starvation and hunger among its citizens. Furthermore, they must create programmes that effectively protect the right to food.

The Constitution

The right to food is established in India's Constitution as well. It is most clearly articulated in Part IV of Article 47, which calls the right to adequate nutrition a "duty" of the State. However, Part IV is considered a cluster of "directive principles" and technically cannot be enforced judicially. Nevertheless, in the past 20 years, the Supreme Court has recognised the right to food and other social rights as enforceable under Article 21 of the Constitution, which provides for the right to life, and thus, this broad interpretation allows for enforcement of the right to food via Article 21. Moreover, it narrows the distinction between civil rights and social rights.

Supreme Court Case Law

The most recent Supreme Court decision to recognise the right to food is People's Union for Civil Liberties vs. Union of India that was decided in 2001. In this case, the Supreme Court acknowledged the right to food as a right to life issue under Article 21 of the Constitution, stating, "[W]hat is of utmost importance is to see that food is provided to the aged, infirm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have sufficient funds to provide food for them."

In a similar fashion, the Supreme Court enforced the right to food by creating programmes designed to prevent hunger in all states. On Nov. 28, 2001, the Supreme Court issued an order that significantly made these programmes "entitlements" of all citizens. Among these entitlements were the food for work programme and the targeted public distribution scheme, which entitled each family to 25 grams of grain per month. Perhaps most significant was the midday meal programme requiring primary schools to supply a midday meal consisting of 300 calories and eight to 12 grams of protein. Moreover, governments were asked to take measures to ensure the transparency and public awareness of these programmes.

This monumental decision is important, both because it recognised the right to food as an enforceable right and because it sought to enforce government programmes to counteract the effects of hunger throughout the country. In addition, the Supreme Court directed India's states to implement these programmes within certain time frames, which was intended to ensure accountability and proper enforcement of the decision. Although there has been judicial activism on this issue, the government of India, however, has yet to implement any legislative standards to ensure the right to food.

The Reality in India

Despite a case being referred to as "landmark," its effect is minimal if the established rights are not enforced on a day-to-day basis in the furthest reaches of the country. Such is the case in India. Although the judiciary has attempted to establish and enforce the right to food, few people have felt the effects of these court decisions.

An example of this negligence and indifference occurred in April 2005 in the state of Uttar Pradesh. The wife and two children of Vishambhar, a weaver, died from starvation and hunger-related diseases. Vishambhar now lives with his surviving children in a thatched hut; and in April, they too were facing imminent death due to a lack of food. The government though has failed to give him any assistance after he lost his job as a weaver. Because of media attention, however, the government gave Vishambhar a few rations of grains, which could only last him a few months. Moreover, despite members of his family dying from starvation, and being on the brink of starvation himself, the government has failed to place Vishambhar under the proper right to food programmes as mandated under international and domestic law. Although the Supreme Court has rendered multiple judgments demanding the implementation of preventive programmes, the government still refuses to comply and protect its citizens.

Dalits forcibly evicted from Bellilious Park in West Bengal now live in the Belgachia garbage dump where they seek to survive in the absence of any government assistance. (Photo:AHRC)

Unfortunately, this type of government negligence is not limited to individual families or states. In West Bengal, an entire village faces starvation. People living in the village of Kumarpukur are lacking such basic necessities as food and water and have had to eat leaves and roots to survive. Because they are employed as daily wage labourers on farms, they cannot work during the summer months due to the lack of food production. Thus, they cannot afford to purchase even the two meals per day that are needed to survive. Under government programmes, land was supposed to be distributed to the villagers, yet none of them have received anything. Although the government claims that many schemes have been implemented in the area, no one in the community has seen any development. Moreover, many of the villagers have received threats from the local authorities, including police officers and government officials, urging them not to speak of the hunger they face. By failing to protect these villagers and Vishambhar and his family, the government is violating Article 21 of the Constitution as interpreted by the Supreme Court. They are also violating the standards for implementing the nutrition programmes set forth by the Supreme Court in People's Union for Civil Liberties vs. Union of India. For instance, Vishambhar could have greatly benefited from a work for food programme, and a properly implemented distribution programme could have saved lives in Kumarpukur. However, people continue to starve in India, and the government remains apparently unconcerned as its lacklustre enforcement of international and domestic law is costing many people their lives.

Potential Solutions for the Lack of Enforcement

Given the considerable number of laws present in international and domestic law regarding both civil and economic rights, coupled with the consistently large number of violations that go unpunished, there are clearly serious problems that need to be addressed. The problem, of course, is multifaceted and cannot be distilled to one issue. The potential solutions offered below though could assist with the enforcement of laws that are already in place.

Public Awareness

If the public had a better awareness of their rights, they would be more likely to seek enforcement. This consciousness is especially relevant to civil and political rights. Essentially, if individuals like Sunil or Soumyendu had known precisely what was allowed during their arrest and interrogation, they might have been better able to assert their rights. Moreover, their torturers may have felt a stronger threat of being discovered by higher authorities and punished if it was commonly known that people were highly cognizant of their rights. If aware of their rights, victims could also lodge complaints with the authorities and human rights commissions, which would further dissuade the perpetrators. To spread awareness about civil rights, posters and radio and television advertisements could be employed. The government has a legal obligation to make the public aware of their rights, an obligation which could lead to better enforcement of the laws regarding fundamental rights.

Accountability

The government must be accountable for its responsibilities to protect its citizens' fundamental rights. There must be a more effective check-and-balance system that forces the government to effectively implement programmes for the right to food as well as prevent torture. The Supreme Court in D. K. Basu named a lack of accountability as one of the major problems with the enforceability of anti-torture laws in India. Moreover, police officers and government officials do not currently feel the weight of responsibility for enforcing the law. For instance, in Kumarpukur, multiple individuals representing the government made illegal threats to townspeople in order to keep them quiet about their ongoing starvation. If provisions for accountability were stronger, these officials might hesitate before making such threats.

Stronger adherence to Article 2 of the ICCPR may also force the government to become more accountable. Article 2 demands that victims have a method of redress when their rights are violated. If the government provided a remedy to victims, it would act as a restraint on those who now violate human rights, for they know that punishment is unlikely or will be negligible.

Prosecution as a Deterrent

Actions of the victim, however, can only prevent incidents of abuse to a certain extent. The government, as just noted, has the responsibility to prosecute and punish the perpetrators to the fullest extent, to provide redress. In order to prevent violations of civil rights, an officer of the law must take the notion of punishment seriously. This includes a greater number of prosecutions for offences and more serious punishment for convictions. Generally, officers are not daunted by the possibility of prosecution at the present time since most trials end with an acquittal that is usually the result of insufficient evidence, a phenomenon which often occurs because the accused officers are in charge of the records that serve as evidence. Thus, the evidence can easily be manipulated or "lost."

In order for prosecution to truly help victims, there needs to be a stronger witness protection program. Many victims hesitate to contact the authorities regarding any abuse of their rights since they are fearful of further torture or wrongdoing. In order for a successful, fair prosecution, the welfare of these victims must be protected to the greatest extent possible.

Implementation of Better Legislation

While international treaties, India's Constitution and case law are quite forward-thinking, their rationale has not been implemented at the legislative level. The CrPC, for instance, is far too broad in its discretion given to police officers, and there is no reliable legislation to the right to food, aside from judicial orders. Provisions provided in the law would be much more helpful in responding to these issues.

Change in Culture and Attitude

Corruption, especially police corruption, most likely cannot readily be reversed with just changes to the law. A change in the culture and attitude of police officers is necessary as well. Possible practical solutions include more stringent hiring standards, a change in the training methodology, as suggested in D. K. Basu, and workshops to promote awareness of fundamental rights and human rights issues among police officers and the authorities.

Conclusion

Despite the plethora of enforceable laws, the daily reality in India is quite different. From civil rights to economic rights, citizens do not have the opportunity to assert their fundamental rights that are guaranteed in the country's Constitution. Perhaps the most influential legal voice is the Supreme Court, which, through judicial activism, has brought attention to the ongoing right to life issues.

Although the Supreme Court decisions are widely known as the "law of the land," in practice, they are largely ignored. The government, for example, continues to act without regard for the so-called landmark cases that are considered revolutionary. Until the culture of the national government, as well as state governments, change, the Supreme Court's judgments will continue to live solely in textbooks and academia and will not have a real, tangible effect on the common citizen in India.