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    Posted on 28 December 2011
    Suhas Chakma

    The custodians of death

    Suhas Chakma examines how the NHRC scripts its own undoing by its reinvestigations

    Illustration: Tim Tim Rose

    THE NATIONAL Human Rights Commission (NHRC) has often been questioned for the failure to effectively intervene in cases of human rights violations. Yet, in a number of cases it does intervene but is unwilling to take these interventions to a logical conclusion. The NHRC’s intervention with regard to the tortured-to-death of Ram Kumar Pal has been commendable but insufficient. On October 13, 2009, the Asian Centre for Human Rights filed a complaint with the NHRC naming the deceased, Ram Kumar Pal, who died in Hardoi district of Uttar Pradesh on October 7, 2009. Pal’s only fault was his refusal to pay a bribe of Rs 20 to sub-inspector Gyan Prakash Tiwari and constable Shiv Chander Mishra. The state government provided an illegible inquest report (IR) that stated the death was caused by shock as a result of antemortem injuries, including an abraded contusion on the back of the left elbow joint; a contusion on the back below the interior angle of the right scapula; and a contused swelling on the right lower limb extending to the upper part of the right thigh, involving the inguinal area and reaching up to the ankle joint. The autopsy further found clotted blood and musculature, and that vessel and nerves were also damaged at several places.

    As usually seen, the Uttar Pradesh police denied responsibility. The Superintendent of Police (SP) of Hardoi stated that Ram Kumar injured himself at work and that an alleged criminal, Subhash Pal, who had a grudge against the police, incited a mob of 65 people to protest against the death of Ram Kumar Pal. Thereafter, the NHRC decided to investigate the case and concluded that there was serious lapse while handling the case by the authorities. The NHRC also gave enough evidence that the entire district administration colluded to cover up the culpability of the police. The NHRC recommended appropriate departmental actions against sub-inspector Babov Upadhyay, the Circle Officer and the SP for failing to discharge their duties to supervise fair investigations of the cases in order to protect the guilty policemen. It also formed charges against Anil Kumar Srivastav and Shiv Kumar for negligence in the diagnosis and treatment of the deceased and the then District Magistrate for not ordering a magisterial enquiry despite compelling evidence of unnatural death.

    With regard to the prosecution of Gyan Prakash Tiwari and Chander Mishra, the NHRC recommended reinvestigation of the criminal case (No 1356/09) by the Crime Branch-Criminal Investigation Division (CB-CID). This recommendation is contradictory and absolutely uncalled for. First, the NHRC, which earlier blamed the district administration for covering up the crime, now believes that the CB-CID under the same district administration would conduct a fair inquiry. Second, the requirement of another inquiry by the CB-CID implies that the NHRC has doubts about the correctness of its investigation despite compelling evidence collected by its investigative team. Third, the NHRC fails to recognise that once an inquiry conducted by its own investigation wing is completed, it is final under the law. Section 18(a) (ii) of the Human Rights Protection Act, as amended in 2006, relating to steps during and after inquiry empowers the commission ‘to initiate proceedings for prosecution’ upon completion of inquiry. Therefore, logically, the NHRC should either place its findings before the relevant trial courts by itself after seeking permission as provided under Section 12(b) of the Act, or direct the state government to do so for prosecution, rather than recommending another investigation.

    On November 2, 2011, the NHRC recommended that the UP government pay Rs5,00,000 to the next of kin of Ram Kumar Pal. While compensation remains an important palliative measure, the NHRC should consider the following recommendations if deaths as a result of police torture are to be combated. First, since the entire district administration can collude to cover up the culpability of the police, a magisterial inquiry or police inquiry would only cover up further. In most cases, doctors under duress or conniving with the police would manipulate postmortem reports. The hapless victims or their relatives cannot challenge these findings. Therefore, the NHRC investigation remains indispensable. Second, the NHRC ought to realise that once it conducts an investigation it is considered final under the Human Rights Protection Act and must be used for prosecution. There is no need to reinvestigate the cases by the CB-CID or any other State police once the NHRC’s investigation wing has already investigated.

    IT MAKES the NHRC subservient to the police and further makes NHRC’s investigation wing inferior to the state police. The NHRC orders investigation simply because the inquiries by the police are insufficient or flawed. Third, once an investigation is completed by the NHRC, the NHRC must either direct the concerned state governments to place the records before the respective trial courts or place the records after taking permission from the court. Once the court takes cognisance, it becomes subjudice and the NHRC’s role effectively ends. Fourth, the NHRC must prioritise to combat torture. It may not investigate 1,200 deaths in prison custody per year, many of which may be attributed to illness, old age, etc. But as a matter of priority, it should investigate all cases of deaths in police custody, which is close to 120 deaths per year, by its own investigative wing. Majority of the deaths in police custody take place within 48 hours of the person being taken into custody and invariably as a result of torture. If the NHRC takes these steps and informs the state governments as addition to its existing Guidelines on Custodial Deaths/Rapes, deaths in police custody can be significantly reduced over the years because the investigation by the NHRC would lead to prosecution of the guilty. But the million dollar question is whether the NHRC is serious about itself and powers and functions bestowed to it under the Human Rights Protection Act.

    Suhas Chakma is Director of the Asian Centre for Human Rights.
    [email protected]

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    Posted on 28 December 2011



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