IV. Obstacles to Police Accountability
While allegations of police abuses are frequently reported in the Indian media, only 28 percent of the 282, 384 complaints filed against police between 2003 and 2007 resulted in police department, magisterial or judicial inquiries, according to the Indian government. During the same period, prosecutions of 8, 736 officers were initiated, but only 1,070 trials were completed and 264 officers convicted.[337] While not conclusive, this data suggests that despite high-profile and successful prosecutions of some abusive officers, many police operate in an environment where impunity is still the norm.
Independent investigations are critical to reducing impunity for police human rights violations. Internal police investigations in India have not fulfilled this role. In some states, internal disciplinary proceedings are hampered by the lack of a police ombudsperson or dedicated internal monitoring unit. In 2006 the Indian Supreme Court ordered the states to create police complaints authorities to investigate complaints of police misconduct, but only about half the states have done so. Most existing bodies do not function properly, and, according to the Commonwealth Human Rights Initiative, none have staff to conduct independent investigations.[338]
Community-led protests in response to particular incidents of police violence sometimes trigger temporary suspension or transfer of junior- and low-ranking police. Government data shows that internal disciplinary proceedings do not ordinarily result in serious disciplinary actions against perpetrators.[339] There is no official nationwide data disclosing how frequently internal proceedings identify higher-ranking police who either ordered or tolerated the alleged abuse. In some cases documented by Human Rights Watch, ad-hoc or informal internal investigations resulted in local police and political figures publicly promising action or compensation to victims, which they ultimately failed to deliver.[340]
Internal police investigations are hampered by an informal police “code of silence” that makes police unlikely to disclose incriminating evidence.[341] External agencies too often charge police themselves with conducting investigations, or defer to police reports, enabling police to insulate themselves from liability. In the absence of an independent investigation, officers who issue illegal orders or pressure subordinates to carry out abuses can lay the blame exclusively on their subordinates.
Sub-inspectors and constables interviewed by Human Rights Watch express a fear of prosecution for the abuses they carry out, reflecting the success of high-profile cases against police. They say they nevertheless follow illegal orders because they fear their superior officers. One sub-inspector said:
If there is an order from an IPS officer, I cannot act independently. I can be suspended or perhaps he will even get his criminal friends to murder me. But if there is an inquiry, he will be the first to come and shout and put me in jail.[342]
Similarly, an assistant sub-inspector in Bangalore said, “We cannot refuse to follow orders, whether to torture or even kill. But of course, if there is an inquiry, we are the ones that are punished.”[343]
Prosecutions of Police
In the cases we documented, some victims of police abuse did not pursue criminal cases against police because they feared retaliation. Many described to Human Rights Watch harassment and intimidation by police and others in their community. For instance, when Bhageran Mato, whose case is described in Chapter IIIabove, wrote a letter to senior police officials and succeeded in getting a complaint lodged with a magistrate judge, he was threatened by police, his former attorney, and local media. He said:
The lawyer who got me released told me, “Withdraw your application, if not I’ll get you charged with the help of police.” The lawyer and police station are close friends. Police started threatening me again, coming to my house. They would terrify me. The constables would come in civil dress and told me to compromise, [saying], “Don’t mess with the police or you’ll be killed in an ‘encounter,’ or sent to jail in an arms case, or prostitution case, you’ll be killed in an accident, we can put anything against you.” Then media people would come. One of the newspaper reporters came to my house and said, “Whatever complaint you have against police, just withdraw it, we’ve helped you a lot, just do me this favor.”[344]
Mato refused to withdraw his complaint and on November 27, 2007, his shop and those of nearby vendors were destroyed. According to Mato, police told the shopkeepers who had helped secure his release to lodge a complaint against him and to sign papers saying he did not appear to have been tortured.
The potential for police intimidation or harassment of individuals complaining of abuse is high because registration of the FIR may require a visit to the very station where the abuse occurred, or interaction with the offending officer. Police motivated to cover-up an abuse can refuse to register an FIR or inaccurately record it and witness statements.[345] In a custodial death case, police can delay registering the FIR until after the body is cremated so that a post-mortem examination cannot be ordered.
Another major hindrance to criminal prosecution of police is Section 197 of the Criminal Procedure Code, which requires state government approval for prosecution of state police.[346]
National and State Human Rights Commissions
The National Human Rights Commission (NHRC) was established in 1993.[347] It is authorized to investigate any violation of human rights or negligence in the prevention of violations either on its own initiative or in response to an individual complaint or a court directive.[348] It has the powers of a civil court to summon witnesses and order production of evidence. It can also, with the government’s concurrence, order any agency or officer to conduct an investigation. At any stage of the inquiry, the NHRC can recommend that the government provide immediate interim relief to victims in the form monetary compensation.[349] It does not have prosecutorial powers, but it may recommend that the government initiate prosecution of officials, or approach the Supreme Court or High Court to issue directions or orders.[350] It also has authority to review and recommend measures to effectively implement human rights safeguards under the Constitution or any law.[351]
In practice, when the NHRC finds a prima facie case of a human rights violation, it usually recommends that the government provide immediate interim relief in the form of compensation but does not recommend prosecution of or disciplinary action against individual offenders.[352] This limits the deterrent effect of NHRC investigations because even when the NHRC identifies individual perpetrators, it does not assess the liability of superior officers who ordered or condoned the actions of other police.
Interim orders as a de facto substitute for final relief do not satisfy the government’s obligation to provide redress under article 2 of the ICCPR.[353] They ordinarily do not require police or other government officials to officially and publicly acknowledge wrongdoing and take steps to prevent future such violations. Interim compensatory relief orders are inadequate for victims who seek other support, such as restitution for what can be long-term medical and psychological care.[354] And while compensatory relief can be crucial for many victims of police abuse, on its own it is inadequate to halt recurring violations by police who, if punished at all, may only be temporarily suspended or transferred to another police station.[355]
Even more detrimental to the NHRC’s effectiveness is its practice of dismissing complaints on the basis of state responses or police reports that disclaim wrongdoing.[356] Suhas Chakma, a lawyer at the Asian Centre for Human Rights, said that in several cases he filed the NHRC failed to provide him an opportunity to review and rebut the police’s response.[357] For instance, the NHRC closed a complaint alleging the 2005 torture of six individuals by the Assam Rifles without affording Chakma a hearing or access to the state’s reply. A Right to Information Act request he later filed revealed the police’s report had corroborated the victims’ claims of police torture.[358]
In 2006, the Human Rights Act was amended. To the disappointment of many human rights lawyers, the government failed to amend the Act to permit the NHRC to inquire into violations occurring more than one year before the date of the complaint; the current one-year “statute of limitations” is unrealistic given the limited access victims may have to counsel and limited awareness of their rights under the Act.[359]
A 2006 amendment permits the NHRC to transfer complaints to state human rights commissions (SHRCs), undercutting the discretion of complainants who want to pursue their claims with the NHRC in light of its expertise and greater resources. The 18 SHRCs vary greatly in resources and will to act, and some exist only in name.[360] Several lawyers and activists described SHRC staff as inadequate in number, lacking human rights training, and biased against complaints, factors which lead them to routinely defer to police accounts of an incident.[361] Uttar Pradesh SHRC investigator and Additional Director General of Police Shailendra Sagar said his staff of three was sufficient because they do not independently investigate most of the 1700 complaints they receive each month. Instead, they “go by” the police version of events:
The first step is to ask the police district for reports. In a large number of cases, this sorts it out... In most cases, we go by the report from police, we’ll go by the version of subordinate officers and what the records say. Like, if the police detained someone for three days, but the record says 24 hours, we get that report from the district – that it was only 24 hours. Then we naturally write to them that this fellow says this, tell us the facts. The police districts don’t always hide the truth, but in the majority of cases they’ll go by the records or a subordinate.[362]
The NHRC itself has noted the tendency of state governments to try to “conceal the truth of underplay the accountability of those involved for the death in custody due to custodial violence or negligence” by “block[ing] the jurisdiction of the commission,” that is, having a SHRC or other state body take the case.[363]
[337] National Crime Records Bureau, Ministry of Home Affairs, “Crime in India 2007,” http://ncrb.nic.in/cii2007/home.htm (accessed March 28, 2009).
[338] In Prakash Singh, the Supreme Court required each state government to set up a Police Complaint Authority, with a state-level body to investigate complaints of “serious misconduct” by high-ranking police and district-level bodies to investigate any complaints against low-ranking police. Prakash Singh v. Union of India, (2006) 8 SCC 1. According to the Commonwealth Human Rights Initiative (CHRI), as of December 2008 only 15 states had established such bodies. While these bodies have the authority to summon and enforce witness attendance, they are practically limited by a lack of sufficient staff; many do not even have office space. Moreover, contrary to the Supreme Court’s directions, state governments have directly appointed the members of the authorities. According to CHRI: “As these members are essentially political appointees, they are much more likely to behave in accordance with what the executive wishes and do nothing that would displeased the government or the police.” CHRI, Feudal Forces: Reform Delayed (New Delhi: CHRI, 2008), pp. 40-43.
[339] According to the National Crime Records Bureau, police departments initiated action disciplinary proceedings against 19,187 officers in 2007. Proceedings were completed with regard to only 8,595 officers. Of these, only 665 officers were dismissed and 4,650 officers faced “major punishment.” National Crime Records Bureau, Ministry of Home Affairs, “Crime in India 2007.” However, other official data suggests that far more officers have been subject to disciplinary proceedings. See Bureau of Police Research & Development, “Data on Police Organisations in India As on 01-01-2007, http://www.bprd.gov.in/writereaddata/linkimages/All%20Chapters5598831415.pdf (reporting that 56,744 “departmental proceedings” were “processed” during 2006).
[340] For instance, according to the family of Pradeep Singh, whose death in police custody is discussed at p. 72, after a village protest the district magistrate promised them 100,000 rupees (about US$2100) in compensation, which was reported in a local newspaper, but they have never received any money. Ram Chandra Prasad, who was beaten severely by police as described on pp. 70-71, told us that the Station Officer he implicated was transferred from his post and that senior police told him they would order an independent investigation, but that no investigation has occurred and he has received no compensation for medical costs. Sakia Begum, whose husband was killed in an allegedly fake encounter as described on pp. 88-89, told us some police she implicated had been suspended but were later given promotions.
[341] “[T]o ensure a modicum of loyalty,” senior police sometimes fail to order investigations into complaints against lower-ranking police. P.D., Malaviya, “Structural Trouble in Police,” in P. J. Alexander, ed., Policing India in the New Millennium (New Delhi: Allied Publishers, 2002), p. 34.
[342]Human Rights Watch interview with sub-inspector, details withheld, Lucknow, January 11, 2009.
[343] Human Rights Watch interview with assistant sub-inspector, Bangalore, December 10, 2008. Additional Director General of Police in Karnataka Dr. Guruprasad denied low-ranking police would follow illegal orders: “If the constable doesn’t want to, he proceeds on leave. He doesn’t need permission. He will have to go a medical board when he comes back.” But he acknowledged that a constable would have to present a medical certificate before the board and, if unable to do so, would face discipline. Human Rights Watch interview with Dr. Guruprasad, Bangalore, December 11, 2008.
[344] Human Rights Watch interview with Bhageran Mato, Varanasi, January 15, 2009.
[345] Redress, “Taking Complaints of Torture Seriously,” September 2004, http://www.redress.org/publications/PoliceComplaints.pdf (accessed April 5, 2009), pp. 51-52.
[346] Criminal Procedure Code, Sec. 197 states: “No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.”
[347] Protection of Human Rights (Amendment) Act, 2006, http://nhrc.nic.in/HRAct.htm.
[348] The NHRC may also intervene in any court proceeding involving an allegation of a human rights violation. Ibid., sec. 12-14.
[349] Protection of Human Rights (Amendment) Act, 2006, sec. 18(c).
[350] Ibid., sec. 17-18.
[351] Ibid., sec. 12(d). Pursuant to this authority, the NHRC has issued procedural guidelines to police regarding deaths in police custody and alleged encounter killings. For instance, the NHRC requires that police report any case of custodial death or rape to the NHRC within 24 hours of its occurrence, and provide video-film of the post-mortem examination. Police must notify the NHRC of any death from a police encounter and register an FIR whenever a culpable act of homicide is alleged; the case must be investigated by a police station or agency other than the one implicated. See NHRC, “On Custodial Deaths/Rapes,” March 1997, http://nhrc.nic.in/Documents/sec-1.pdf (accessed April 5, 2009) NHRC, “Revised Guidelines/Procedures to be followed in dealing with deaths occurring in encounter deaths,” December 2003 http://nhrc.nic.in/Documents/RevisedGuidelinesDealingInEncounterDeaths.pdf (accessed April 5, 2009); see also National Human Rights Commission, "NHRC's Recommendations on Custodial Justice," http://nhrc.nic.in/disparchive.asp?fno=1375 (accessed June 24, 2008) (encouraging police to adopt a “scientific, professional and humane approach towards persons detained for investigations”).
[352] According to its 2004-2005 Annual Report, which is the most recent publicly available report as of April 2009, the NHRC has awarded compensation in 617 cases since 1993. Although the NHRC has not disclosed the number of cases in which it ordered other action, it is telling that in each of the 12 cases of police abuses and negligence the NHRC chose to highlight in its annual report, it ordered only compensation. National Human Rights Commission, Annual Report 2004-2005, paras. 4.7, 4.21-4.52, 4.66-4.92. According to the Asian Center for Human Rights, its examination of NHRC orders between April 2003 and March 2006 showed that “in a great many cases” the NHRC closes cases once immediate interim relief is paid, rather than ordering final compensation or further prosecution. ACHR, Torture in India 2008, pp. 90-91. However, the NHRC has also noted the refusal of the Uttar Pradesh government to comply with orders to initiate criminal prosecution against police. NHRC, “NHRC camp at Lucknow - draws authorities' attention to failure in filing FIRs and delay in compliance,” January 21, 2007, http://nhrc.nic.in/disparchive.asp?fno=1367 (accessed April 23, 2009).
[353] Under article 2 of the ICCPR, administrative institutions such as the NHRC must ensure victims reparations including “restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.” ICCPR art. 2(3) and Human Rights Committee, General Comment No. 31, para. 15-16.
[354] See Human Rights Committee, General Comment No. 31, para. 16 (The ICCPR “requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by [specific ICCPR articles], the Committee considers that the Covenant generally entails appropriate compensation.”). The Basic Principles on the Right to a Remedy and Reparation states that “Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law … occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property…. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law.” Ibid. paras. 19 & 20.
[355] As the NHRC has noted, in some cases the state governments have refused to comply with interim compensation orders or simply been non-responsive. NHRC, “NHRC pulls up UP Government for insensitivity in cases of human rights violation of citizens and custodial crimes Calls for immediate payment of compensation to victim of police excess,” undated, http://nhrc.nic.in/disparchive.asp?fno=110 (accessed April 23, 2009); NHRC, “NHRC recommends two lakhs rupees to the next of kin of a custodial torture victim,” July 3, 2007, http://nhrc.nic.in/disparchive.asp?fno=1428 (accessed April 23, 2009) (noting lack of response to show-cause notice for interim relief); NHRC, “Illegal detention of 2 Adivasi boys by Kerala police, interim relief recommended,” May 26, 2004, http://nhrc.nic.in/disparchive.asp?fno=758 (accessed April 23, 2009) (noting Kerala government’s response to show-cause notice that compensation not be given while a criminal case is pending).
[356] Between 2004 and 2005, “766 intimations relating to custodial deaths, 46 cases of encounter deaths and 24,936 other cases were also disposed of after calling for reports from the concerned authorities.” National Human Rights Commission, Annual Report 2004-2005, para. 4.5. Part of the problem may be that the NHRC relies on police reports in lieu of an independent investigation because it lacks sufficient staff. See National Human Rights Commission, Annual Report 2004-2005, Sec. 4.19 (“That the Commission has been making certain recommendations through its annual reports for strengthening the Investigation Division by sanctioning additional posts and bringing about changes in the conditions of service of its personnel with a view to facilitate the appointment of well qualified and trained man power. The Commission is still awaiting the Government to fulfill its assurance”).
[357] Human Rights Watch interview with Suhas Chakma, ACHR office, New Delhi, December 6, 2008. See also ACHR, ACHR’s Actions Against Torture and Other Forms of Human Rights Violations in India (New Delhi: ACHR, 2009), p. 152. According to ACHR, the NHRC has also failed to provide reasons for declining to register 123 of its complaints, more than a fifth of the total number it has filed since 2002. Ibid., p. 1.
[358] ACHR, Torture in India 2008, p. 92.
[359] Protection of Human Rights (Amendment) Act, 2006, sec. 4(2).
[360] For instance, the Himachal Pradesh SHRC has not functioned since 2003, but the Lokayukta, another government body, has apparently handled complaints sent to the SHRC since 2006. Human Rights Watch interview with Justice Bhawani Singh, Chairperson, Lokayukta, December 17, 2008. The Chhattisgarh State Human Rights Commission has not investigated any human rights abuses on its own initiative and complainants say it has failed to investigate their claims. Human Rights Watch, India - Being Neutral is Our Biggest Crime, July 14, 2008, http://www.hrw.org/en/reports/2008/07/14/being-neutral-our-biggest-crime-0, pp. 74-75. In contrast, the Karnataka SHRC has conducted surprise inspections of police stations and raided stations where complainants allege there are ongoing violations. See Times of India, “SHRC rescues minors from Ulsoor police,” April 2, 2009.
[361] Uttar Pradesh SHRC Deputy Director of Research Sunil Prasad appeared to confirm these reports of bias, telling Human Rights Watch that 80 percent of complaints the agency received were “frivolous,” filed by “criminals, so just to show the court that they have done it,” with the result that, according to Prasad, in the 48, 682 cases the SHRC has disposed of since its inception, 21, 947 of which implicate police, it has ordered compensation in only 38 and disciplinary action in 100. Human Rights Watch interview with Sunil Prasad, SHRC, Lucknow, January 12, 2009. Gujarat SHRC Secretary Dr. R. L. Meena responded to an NHRC report finding a large number of human rights violations by appearing to his agency’s regard dismissal of complaints as a success: “Of a total of 610 cases, we were able to dismiss 419 by 2007-end while 80 cases are being heard in the courts. The dismissal rate with only four dealing hands at our disposal is quiet satisfactory.” Indian Express, “NHRC ranks Gujarat third in rights violations,” March 20, 2009; The Hindu, “SHRC inquiring into alleged illegal detention at police station,” December 3, 2008.
[362] Human Rights Watch Interview with Additional Director General of Police Shailendra Sagar, SHRC, Lucknow, January 12, 2009.
[363] National Human Rights Commission, Annual Report 2004-2005, para. 19.5. The NHRC cannot investigate any cases that are pending before other commissions, including the state human rights commissions. Protection of Human Rights Act, sec.36(1).