Ms. Mamata Banerjee, Chief Minister, Government of West Bengal, cm_wb@nic.in

Re: INDIA: Brutal custodial torture by West Bengal Police of a young couple

Dear Chief Minister of West Bengal,
Names of the victims:
1. Mr. Firoj Ahmed aged 23 years, son of Mr.Faijjur Ahmed residing at Srikati village, North 24 Parganas district, West Bengal,India
2. Ms. Achma Bibi wife of Mr. Firoj Ahmed residing at Srikati village, North 24 Parganas district, West Bengal,India

Names of alleged perpetrators: The inspector and other police officers from Basirhat police station serving on duty on 7 February 2012
Date of incident: 7 February 2012
Place of incident: Srikati village and at Basirhat police station, North 24 Parganas district, West Bengal

I am writing to express my concern regarding yet another case of brutal torture committed by officers from Basirhat Police Station. In this case the victims are a husband and wife, whose house was raided by the police in the middle of the night, both husband and wife tortured and later the husband arrested and taken into custody, allegedly on fabricated charges.

I am informed that a fact-finding undertaken by MASUM concerning the case has revealed the following details. On 7 February 2012 at about 2.30 am, a team of 16 police officers reportedly from Basirhat Police Station, raided the house of the victims at night. The police assaulted the victims at their house and later arrested Firoj. The police kicked Firoj and hit him with their riffle butt and wooden batons. Firoj sustained severe injuries in the incident and is reported to be unable to stand or walk.

When Achma Bibi, wife of Firoj, tried to save her husband from the brutality of the police, they assaulted her as well. The police assaulted Achma on her left hand with wooden baton; kicked and thrashed her on the ground. The officers verbally abused the victims in filthy language. The officers did not offer any reason whatsoever for the search or arrest. The police complied with no mandatory procedures at the time of the search and arrest, and no memo of arrest was issued. The officers did not inform the victims where Firoj is taken to or why he is arrested.

On the next day Achma Bibi and relatives went to the local police station to meet Firoj expecting that he would be at Basirhat Police Station. They were at the station at about 10 am. They requested permission to meet Firoj at the station. At this, the officer in charge of the police station once again abused them using filthy language and did not allow them to meet Firoj. After several and repeated requests the police allowed them to meet Firoj.

At the station they found that Firoj had suffered fractures on his fingers on his left hand from torture. The police however had denied any medical treatment to the victim. It is reported that the police also refused to properly feed Firoj while he was in custody. Later they came to know that the police had accused Firoj of having committed offenses under the Narcotic Drugs and Psychotropic Substances Act, 1985. A crime is registered against Firoj as crime number 24 of 2012 under Section 20 (b) of the Act. Firoj is still in custody.

Seeking the legal action against the incident on 20 February 2012, Achma Bibi lodged a written complaint before the Additional Superintendent of Police, Barasat, North 24 Pargans district. But until now no action is taken regarding the above-mentioned complaint.

This is not the first case that the AHRC and MASUM have reported concerning custodial violence perpetuated by Barasat police. A former Urgent Appeal, AHRC-UAC-030-2012 issued on 22 February 2012 speaks about similar facts. In that case however the police were demanding bribe from the accused for not falsely implicating him criminal cases.

The practice of torture is widespread in India. Unchallenged and unopposed, it has become a normal and legitimate practice for the law enforcement agencies in the country. Torture in custody is reported regularly in India and the instances of custodial torture and other forms of violence are at an alarming rate in the country. Reports allege that between 2001-10 more than 14,231 persons have died in police and judicial custody in the country. This means that during the past ten years on an average four persons dies every day while in custody.

In a democratic society, the role of the police is to protect the rights of the citizens. However, in India it is well known that the police systematically abuse their authority and employ custodial torture as part of their investigation and fabricates false cases against persons as they wish. The poor, the deprived, women and children and political activists are mostly the victims of police violence.

The barbarity of incarceration is validated by the popular retributive-deterrent philosophy, which is the current sentencing norm in many criminal jurisdictions and India is no exception to this. Fabrication of false cases, custodial violence, including torture and death in police/judicial custody strikes a blow at the rule of law, which demands that the powers of the executive should not only derive from law but also that the same should be limited by law. In this scenario, the lacking of a proper law that criminalises torture creates a congenial environment for the law enforcement agencies to continue with their criminal acts with impunity. Section 54 of the code of the criminal procedure,1973 that mandates examination of an arrested person by a medical officer is essential which has also not complied in this case. Mr.Firoj was denied of medical treatment, which is nothing but the denial of the right to life guaranteed under Article 21 of the Constitution of India, and the legal rules laid down of the Supreme Court of India.

The mandatory requirements prescribed in the Cr.P.C concerning arrest, medical examination and also the rules issued by the Supreme Court in the D.K.Basu vs State of west Bengal 1997 (AIR) SC 610 are not been complied by the police officers in this case.

Section 120B(1) of the Indian Penal Code 1860 mandates; punishment for criminal conspiracy – whoever is a party to criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence.

Section 354 of the code mandates; punishment for assault or criminal force to woman with intend to outrage her modesty -whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extended to two years, or with both.

Section 384 of the code mandates; punishment for extortion that whoever commits extortion shall be punished with imprisonment for a term, which may extend to three years or with fine or with both.

Section 458 of code mandates; punishment for lurking house trespass or house breaking by night after preparation for hurt, assault, or wrongful restraint – whoever commits lurking house by night or house breaking by night having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or assault, or wrongful restraint, shall be punished with imprisonment for life either description for a term which may extend to fourteen years and shall also be liable to fine.

Section 326 of the Code mandates; punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means.

Section 144 of the code mandates: Joining unlawful assembly armed with deadly weapon.-Whoever being armed with deadly weapon or with anything, which used as a weapon of offence is likely to cause death. Is a member of unlawful assembly, shall be punished with imprisonment of either description for a term, which may extend to two years or with fine, or with both.

Article 39A of the Constitution mandates equal justice and free legal aid … the state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislations or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Under section 18(3) of the protection of Human Rights Act, 1993 the National Human Rights Commission is mandated to advance the cause of compensatory justice to the victims of torture.

Article 5 of the Universal Declaration of Human Rights (UDHR) incorporated the right to protection against torture and the same has been sought to be achieved through declaration of the Fifth United Nations Congress held in 1975. UN Convention against torture provides for redress and compensation to the victim. Article 14 of the convention categorically emphasizes that every state party to the convention must ensure that the tortured victim is provided fair and adequate compensation and rehabilitation. The right to be free from arbitrary detention is a fundamental right. Even though the India has not rectified the convention, India torture is a subject of ius cojens that mandates the state to ensure that the torture is prevented in all jurisdictions.

The Supreme Court in Sunil Batra vs. Delhi Administration reported in 1978 (4) Supreme Court Cases 494 has ruled that prohibition against torture is absolute in India. The Supreme Court did not find itself handicapped by the absence of specific provisions against torture in the constitution and gathered support from Article 14 and 19 in holding against the permissibility of torture vis-Ã -vis persons suspected and accused of crime. In Khatri vs. State of Bihar reported in 1981 All India Reporter (Supreme Court) p. 928 is a case where the Court said how cruel and in-human treatment to the prisoners insolates the sprit of constitution and human value as well as Article 21 as far as persons in custody is concerned. The court had held that these rights are available even for prisoners.

In A. Nallassivan vs. State of Tamil Nadu and others reported in 1995 Criminal Law Journal 2754 (Madras) 90 women and 28 children from a village were detained in the office of forest range officer for a night. The court held the detention is illegal, offending fundamental rights and directed enquiry by the Central Bureau of Investigation (CBI) India. The court further added that if a police officer acted contrary to the proviso to Section 160(1) of the Cr.P.C, such deviation should be reason for prompt punishment, since the policemen may not become a law unto themselves while expecting others to obey the law. The supreme court of India in Aravinder Singh Bagga vs. State of Utter Pradesh reported in All India Reporter 1994 laid down that the state shall pay compensation to all persons illegally detained and humiliated for no fault of theirs.

The victim in this case is still in prison and denied of bail, while bail is the rule and committal to jail an exception. In the words of Justice V.R. Krishna Iyar “…the issue is one of liberty, justice, public safety, and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.” The Supreme Court of India in Moti Ram vs. State of MP Supreme Court Cases p. 47, held that the consequences of pretrial detention are grave. Defendants presumed innocent are subjected to psychological and physical deprivation in life during their time in jail. Conditions during pretrial detention in India are sometimes worse than those imposed upon convicted defendants. The jailed defendants loose their job, if the person has one, and is prevented from contributing to the preparation of his defence. Equally important, is the burden of rescuing the person from detention falls heavily on innocent members of his family.

Had the police in West Bengal been operating in compliance with the law, incidents as reported in this case would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the police against the poor and other forms of corruption and crimes committed by the police with impunity is a threat to the the rule of law. Such a force is a threat to the entire country.

I therefore request you:

1. That the complaints of custodial torture in this case be investigated by an independent agency;
2. That the statements of the victims recorded immediately by a judicial officer;
3. The alleged officers placed on immediate suspension;
4. The victims should be produced before appropriate medical officer for treatment;
5. The victims and the witnesses shall be provided adequate protection immediately;
6. The victim released on bail without further delay;
7. The entire investigation supervised by a judicial officer and the victim or a member of their family is informed about the progress of the investigation:
8. The government pay an interim compensation to the victim pending the final disposal of their complaints by a court of law.

AUTHOR: William Nicholas Gomes
URL: www.williamgomes.org
E-MAIL: williamgomes.org [at] gmail.com

Dear Chairperson of NHRC,

INDIA: Investigate the case of custodial rape and torture by the Hariharpara police in Murshidabad of West Bengal
Name of victim: In order to prevent social victimization of the victims involved in sexual offences The AHRC takes the stand of non-disclosure of the Identity of the victim.
Names of alleged perpetrators: The inspector and other police officers on duty on 29 and 30 November Hariharpara police stations Murshidabad District West Bengal.
Date of incident: 29 and 30 November 2011
Place of incident: In the house of the victim and under the custody of the Hariharpara police of Murshidabad District in West Bengal

I am writing to express concern regarding yet another incident of torture and custodial rape reported by the West Bengal police within the Hariharpara Police Station, Murshidabad District West Bengal.

I am informed that the incident happened between 29 and 30 November, 2011. At about 12 midnight a group of police officers from the Hariharapara Police Station entered the victim’s house illegally. The victim says that they were verbally abusive, physically assaulted her and destroyed many household articles. They then dragged her to a police vehicle in which they continued to beat her. She was then taken to the police station where they raped her.

On 30 November 2011 at about 10.30pm the victim was taken into the Hariharapara Block Primary health centre but the Officer-in-Charge of the police station threatened the victim to keep silent. She was told to make a false statement in order to save the policemen from any trouble. Then later, at around 11.30pm she was taken back to her house.

As her condition worsened as a result of the brutal torture and rape she was admitted to the Baharampur New General hospital on 2 December 2011. On 5 December 2011, she made a complaint to the Superindent of Police and the District Magistrate, Murshidabad about the torture and rape by the policemen. Even though the complaint was duly accepted she was not sent to the government hospitals for a medical examination in time and from the given information provided, MASUM and the AHRC is of the opinion that the governmental bodies in the above mentioned district are trying to protect their fellow policemen. It is also reported that the victim was tortured because the police officers were not able to catch her husband who is implicated as an accused in a bailable offence.

Rape is the fastest growing crime in the country and India stands third, leaving behind countries like Sri Lanka, Jordan and Argentina, when it comes to the cases of rape, according to the latest data of the Union Home Ministry suggest. Ahead of India is only the United States and South Africa where custodial rape remains one of the worst forms of torture perpetrated on women by the law

The police officers have violated the basic rights of a poor village woman, whom the police are legally obliged to protect. Torture of women in custody including rape is reported regularly in India.

Rape is the fastest growing crime in country India stands third, leaving behind countries like Sri Lanka, Jordan and Argentina, when it comes to the cases of rape, the latest data of the Union Home Ministry suggest. Ahead of India only United States and South Africa custodial rape remains one of the worst forms of torture perpetrated on women by the law enforcement personal. National Human Rights Commission India has reported 39 cases between the years 2005-2010. In fact, the actual number of cases is much higher than the reported statistics.

Section 46(4) of the code of criminal procedure mandates: save in exceptional circumstances no women shall be arrested after sunset and before sunrise and where such exceptional circumstances exist the women police officer shall by making a written report, obtain the prior permission of the judicial magistrate of the first class the offence is committed or the arrest is to be made. Article 21of the Constitution of India mandates: No person shall be deprived of his life or personal liberty except according to procedure established by law.

The mandatory requirements prescribed in the code of criminal procedure for arrest and also guidelines made by the supreme court of India reported in D.K.Basu vs State of west Bengal 1997All India Reporter Supreme Court 610 has not been complied by the aforesaid police officers.

Section 450 of the Indian penal code 1860 mandates punishment for house trespass in order to commit offence punishable with imprisonment for life. Section 450 of the code prescribes by way of imprisonment for a term of not exceeding ten years and shall be liable to fine.

Section 326 of the Code mandates punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means.

Section 366 of the code mandates punishment for kidnapping, or abducting or inducing women to compel her marriage etc. The Section mandates: whoever kidnaps a woman knowing that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either a description of a term, which may extend to ten years.

Section 376(2) (a) of the code mandates: Whoever being a police officer commits rape Section 376(2) (a) (i) of the code mandates: within the limit of the police station to which he is appointed or Section376 (2) (a) (ii) of the code mandates: in the premises of any station house whether or not situated in the police station to which he is appointed: or Section376 (2) (a) (iii) of the code mandates: on a woman in his custody or in the custody of a police officer subordinate to him: or Section376(2)(b) of the code mandates: being a public servant takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him Section 376(2) (g) of the code dealt with commits gang rape.

Anyone who commits any of the afore said offences shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.

Section 195A of the code mandates Threatening or inducing any person to give false evidence and it prescribes punishment for a term, which may extend to seven years.

Section 34 of the code mandates: acts done by several persons in furtherance of common intention that whenever several persons in furtherance of do a criminal act the common intention of the all each of such person is liable for that act in the same manner as if it were done by him alone.

The supreme court of India in Visveswaran vs State Represented by S.D.M. reported in 2003 All India Reporter 2471 confirmed the conviction of a police officer involved in a rape case.

The Committee on the Elimination of all forms of Discrimination against women stated in its general recommendation No.19 that gender based violence is a form of discrimination of all forms of discrimination against woman (CEDAW) requires its member parties to eliminate in all its forms. The declaration on the elimination of violence against woman (DEVAW) Article 2(c) makes clear that ‘physical, sexual and psychological acts of violence perpetrated or condoned by the state wherever it occurs’ also fall within the definition of the violence against woman .In order to take all measures to eliminate violence against woman states must ‘refrain from engaging in violence against woman’. (Article 4(b)) and exercise due diligence to prevent, investigate and in accordance with the national legislation, punish acts of violence against woman, whether those acts are perpetrated by the state or by private person (Article4(c)).While India is a member nation of the Convention the state is having an obligation to make it sure that the recommendations are enforced, as not withered away by any governmental mechanism.

Had the police force in Bengal been operating in compliance with the Bengal police Act 2007 and its rules, such incidents would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the police against the poor village woman and other forms of corruption and crimes committed by the police force with impunity is a threat to the justice-oriented law enforcing system. Such a force is a threat to the entire country.

I therefore request you:

1. That the complaints of torture and custodial rape in this case be investigated by an independent agency:
2. That the statements of the Victim recorded immediately by a judicial officer:
3. The alleged officers placed on immediate suspension:
4. The victim should be produced before appropriate medical officer for treatment and to give evidence regarding rape and all sorts of torture:
5. The victim and the witnesses shall be provided adequate protection immediately:
6The victim shall be allowed to be represented in such proceedings by a lawyer of her choice:
7. The entire investigation supervised by a judicial officer and the victim or a member of their family is informed about the progress of the investigation:
7. The government pay an interim compensation to the victim pending the final disposal of their complaints by a court of law:

Yours sincerely,

AUTHOR: William Nicholas Gomes
URL: www.williamgomes.org
E-MAIL: williamgomes.org [at] gmail.com

Though child marriage is outlawed in many states, it continues to thrive in the dark of night or in the rural villages often out of reach of the rule of law.  In India, Parliament passed the Child Marriage Restraint Act in 1978, setting the minimum age for women to get married at 18 and 21 for men. Despite the law, child marriages still continue, especially in populous northern states such as Rajasthan, Madhya Pradesh, Uttar Pradesh, Bihar and West Bengal.  According to a  2010 study in India one-fifth of married women were wed before they were 15 years-old and half of those surveyed were married before they turned 18 years-old.  The study was conducted by the Population Council of India and released by Union Health Minister Ghulam Nabi Azad in Febu. It also found that 47 percent had their first pregnancy in the first year of their marriage, while a quarter of those who were married as children also experience some form of physical violence in the marriage (Hindu).

Child marriages violate the rights of the child in many ways, but the most concerning violation is a girl’s right to consent. How do we end this outdated practice, that continues to harm girls across the globe?  One Indian state believes that they may have found a viable solution to help curb child marriage.  In the state of Haryana, child marriage is on the decline, a rare victory in this battle against.

Haryana instituted a cash-incentive program to prevent child marriage in 1994 called Apni Beti Apni Dhan, which translates to mean “Our Daughters, Our Wealth”. The program provides families with 500 rupees ($11, the equivalent of less than half a week’s pay) when a female child is born, and creates a savings bond account for the child.  Once the girl is 18, if she has remained unwed, then she is eligible to redeem the bond, worth 25,000 rupees (roughly $500, or one third of an average yearly income). Whether it can be tied directly to Apni Beti or not, child marriage is on the decline in Haryana. The state saw an 18 percent drop in the practice between 1992 and 2006. Haryana community workers say that thus far none of the program’s beneficiaries have been married off by their parents, who know of the program’s promised payout (The Daily Beast).  Many of the girls graduating the program have expressed that they would like to use the money for education; however, it is still unclear how the the first graduates of the program will use their incentives and if they will be able to  allocate the funding as they choose or if family values and opinions will hinder many of the young women.

Will monetary incentives work in other Indian states and countries?  It has become clear in other limited testings that such cash incentives, as I wrote in the piece Using Food to Increase Birth Registration, are proving successful in a number of areas of development.  However, while the incentive may be a substantial asset in the fight against child marriage, it cannot be a one size fits all band-aid approach.  The causes and implications of child marriage are complex and interconnected, thus there is no simple solution to eradicate child marriage.

In order to end this tradition for good we must look at all the reasons that people continue to practice child marriage: poverty, marginalization of girls, illiteracy, lack of education, poor health, among other factors. States and the international community must ensure that families are educated about the true effects of child marriage and see that sustainable solutions are put in place, while also enforcing the rule of law and ensuring violators are prosecuted for their roles in child marriage. Making education available for girls, seeing that families have alternatives methods to repay debts, eliminating poverty, providing health education on HIV/AIDS and other diseases, are all needed to end the suffering of girls across the globe, and put child marriage in the past, where it belongs.  While support is growing to ban child marriage the fight is far from easy.

For more information on this global fight, please see previous posts on Child Marriage.

AUTHOR: Cassandra Clifford
URL: www.bridgetofreedomfoundation.org and http://children.foreignpolicyblogs.com
E-MAIL: Cassandra [at] btff.org