e – Voice Of Human Rights Watch – e-news weekly
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Editor : Nagaraj.M.R………………..vol.3…issue.08…………………05/05/2007
Editorial : FAKE ENCOUNTERS , LOCK-UP DEATHS & 3RD DEGREE TORTURE BY POLICE IN INDIA
Recently, it has been reported in the media , how in gujarath state high ranking police officials took SUPARI to murder & committed the murders by giving it the name of encounter. Nowadays , it has become common place that police take law into their own hands , settle scores , conducts their own courts of justice like compromise panchayaths at police stations. All these acts of police are illegal , the police must first thought the lessons of law before enforcing it. The murderers ,criminals in police uniform must be punished at the earliest. JAI HIND. VANDE MATARAM.
3RD DEGREE TORTURE PERPETRATED BY POLICE IN INDIA- Gross violations of human rights by police
At the outset , HRW salutes the few honest police personnel who are silently doing their duties inspite of pressures , harassment by
political bosses & corrupt superiors , inspite of frequent transfers , promotion holdups , etc. overcoming the lure of bribe ,those few are silently doing their duties without any publicity or fanfare. we salute them & pay our respects to them and hereby appeal to those few honest to catch their corrupt colleagues.
The police are trained , to crack open the cases of crimes by just holding onto a thread of clue. Based on that clue they investigate
like “Sherlock holmes” and apprehend the real criminals. nowadays , when police are under various pressures , stresses – they are
frequently using 3rd degree torture methods on innocents. Mainly there are 3 reasons for this :
1) when the investigating officer (I.O) lacks the brains of Sherlock holmes , to cover-up his own inefficiency he uses 3rd degree
torture on innocents.
2) When the I.O is biased towards rich , powerful crooks , to frame innocents & to extract false confessions from them , 3rd degree
torture is used on innocents.
3) When the I.O is properly doing the investigations , but the higher-ups need very quick results – under work stress I.O uses 3rd
degree torture on innocents.
Nowhere in statuette books , police are legally authorized to punish let alone torture the detainees / arrested / accussed / suspects. Only the judiciary has the right to punish the guilty not the police. Even the judiciary doesn’t have the right to punish the accussed / suspects , then how come police are using 3rd degree torture unabetted. Even during encounters , police only have the legal right , authority to immobilize the opponents so as to arrest them but not to kill them.
There is a reasoning among some sections of society & police that use of 3RD DEGREE TORTURE by police is a detterent of crimes. It is false & biased. Take for instance there are numerous scams involving 100’s of crores of public money – like stock scam , fodder scam , etc involving rich businessmen , VVIP crooks. Why don’t police use 3rd degree torture against such rich crooks and recover crores of public money where as the police use 3rd degree torture against a pick-pocketer to recover hundred rupees stolen ? double standards by police.
In media we have seen numerous cases of corrupt police officials in league with criminals. For the sake of bribe , such police officials bury cases , destroy evidences , go slow , frame innocents , murder innocents in the name of encounter , etc. why don’t police use 3rd degree torture against their corrupt colleagues who are aiding criminals , anti nationals ? double standards by police.
All the bravery of police is shown before poor , innocents , tribals , dalits , before them police give the pose of heroes. Whereas ,
before rich , VVIP crooks , they are zeroes. They are simply like scarecrows before rich crooks.
Torture in any form by anybody is inhuman & illegal. For the purpose of investigations police have scientific investigative tools like
polygraph, brain mapping , lie detector , etc. these scientific tools must be used against rich crooks & petty criminals without bias.
hereby we urge the GOI & all state governments :
1) to book cases of murder against police personnel who use 3rd degree torture on detainees and kill detainees in the name of
2) To dismiss such inhuman , cruel personnel from police service and to forfeit all monetary benefits due to them like gratuity ,
pension , etc.
3) To pay such forfeited amount together with matching government contribution as compensation to family of the victim’s of 3rd degree torture & encounter killings.
4) To review , all cases where false confessions were extracted from innocents by 3rd degree torture.
5) To make liable the executive magistrate of the area , in whose jurisdiction torture is perpetrated by police on innocents.
6) To make it incumbent on all judicial magistrates ,to provide a torture free climate to all parties , witnesses in cases before his court.
7) To make public the amount & source of ransom money paid to forest brigand veerappan to secure the release of matinee idol mr. raj kumar.
8) To make public justice A.J.Sadashiva’s report on “torture of tribals , human rights violations by Karnataka police in M.M.HILLS ,
9) To make it mandatory for police to use scientific tools of investigations like brain mapping , polygraph , etc without bias
against suspects rich or poor.
10) To include human rights education in preliminary & refresher training of police personnel.
11) To recruit persons on merit to police force who have aptitude & knack for investigations.
12) To insulate police from interference from politicians & superiors.
13) To make police force answerable to a neutral apex body instead of political bosses. Such body must be empowered to deal with all service matters of police.
14) The political bosses & the society must treat police in a humane manner and must know that they too have practical limitations. Then on a reciprocal basis , police will also treat others humanely.
15) The police must be relieved fully from the sentry duties of biggies & must be put on detective , investigative works.
The Business Of Encounter Killing By Sorit Gupto
Encounter killing is again a hot topic nowadays but with a little difference. This time it is for the suspension of a sub inspector from Mumbai, Daya nayak, who is better known as a Encounter specialist.
Encounters or extra judicial killings are not a new phenomena for Indian state, though it has changed its position or acceptability in the public psyche for past few years. Thanks goes largely to the Mumbai film industry for making several films ‘inspired’ by the real life of an encounter specialist. After the box office success of such films, one can say that the act of extra judicial killing , which otherwise is a gross violation of the Justice system, the very aspect of our Constitution( by denying the fundamental right to live), the civil liberties and the human rights, now got legitimacy in the Indian society.
The ‘Rise and Fall’ of this Sub inspector is nothing but story of complete violation of the very rule of law , which the police department is supposed to enforce.
We are catered with the biographical sketch of this encounter specialist by different news channels , about how from a humble beginning as a boy in a tea stall he becomes the heroic face of the state police department . According to an unconfirmed ‘estimate’ he has gunned down some 80-90 persons till date.
However the most strange thing about the whole saga is the fact that, every one is bothering about his crime of earning the huge amount of wealth , disproportionate to his known source of income, but no one is giving a damn to his murderous record which is much more disturbing vis-a-vis to his known source of power to do so. Now it is not just a known fact but established fact also that what ever he did in his tenure ,he had actually killed people without having any right ,like many other famous or yet to famous ‘Encounter Specialists’ are doing .Now, they keep on doing because they are doing the same under the full protection and patronage of the state. It is a chilling fact for any civilized society but as far as we are concern , we simply habituated and grasped it.
Be it Ansal Plaza Shoot out in New Delhi , Or Killing of four person in the outskirts of Ahmedabd , more or less after every encounter, the story or the logic provided by the state to the people, is too innocent to compared only with the Aesop’s fables , that there was a bad man who fired at the police, and police in retaliation fired back to him and he died on the spot. Simple. Very simple. And for the sake of the rule of law please do not make complications by raising disturbing quarries as how not even a single police person hurt by the firing of the bad man? Why police did not tried to catch the person alive ? and so on…
However after 9-11, we the people are provided with some upgraded set of logic’s. One can name it Gen X logic’s. These are logic’s with veiled threat. Now it is not just a mere fable but with a strong massage encrypted in it ,’ either you are with us or you are part of enemy’ and that is why if you try to raise all these disturbing question you could be branded as the enemy. Better you believe what the state says.
Now coming again to the very police sub inspector. It is said that he has earned enormous amount of wealth by manipulating his duty of executing extra judicial killings , in other words ,a long list of fake encounters, by favoring one group of criminal against the other. His departmental bosses are very much concern about his alleged misuse of power. The Irony is, being an encounter specialist itself is the product of gross indiscipline and utter misuse of the power provided by the state to the police department .
So, what new thing they are going to get through “the trial”?
If it is proved that this encounter specialist really has earned this huge wealth by manipulating his ability of encounters, by favoring ( read killing) individual of one particular gang of mafia against the other, which is a truth yet to discover, what charges are going to frame against this fellow?
Dealing with this particular case one should have to keep in the mind that , this fellow has acquired this huge amount of sum by simply cold blooded murdering a number of people. Just like any other member of the organized crime he had taken ‘supari’.
This case is a typical in the nature as corruption is just one part of it and the other part is made up of homicide. Part of the media is shrewdly downplaying the later half by overplaying the first half and that is the most dangerous aspect of this particular case.
Though there are number of punishments prescribed in IPC for killing a fellow human being starting to rigorous imprisonment for years to death penalty, but our encounter specialist do not have to be worry about all that , rather he knows it very well that he will face some petty charges of corruption to maximum.
A simple sub inspector can not become an encounter specialist over night if there is no political patronage behind him. As far as patronage is concern we have this news published in The Hindu on 23 Nov ’03, which says that, The then Home Minister of Karnataka, M. Mallikarjun Kharge, ruled out a probe into the encounter killing of two alleged women naxalites in a village near Karkala in Udupi district . In a press conference Mr. Kharge said, “We cannot disbelieve the version of police officials who witnessed the encounter. We have to believe somebody.”
And last but not least ,If a mere police sub inspector can doctor or manipulate this phenomena of ‘Encounter’, It would be a chilling realization for anyone that magnitude wise how much scope of manipulation is there for the state to eliminate their political rivals through this ‘simple’ mechanism of extra judicial killings.
Today, Daya nayak has been arrested after a prolonged drama of “to arrest and not to arrest’.
JUDICIAL PROPRIETY AND TEHELKA By: Rajeev Dhavan
India needs a policy of embargoing post-retirement jobs for judges whilst increasing their retiring age.
THE JUDICIARY is in the news in ways that do not do it credit. Beginning with the `defeated’
Justice V. Ramaswamy impeachment in the early 1990s, the last decade portrays scandals. These include the Bombay Pay-off Scandal of 1990, the controversy over the Bombay High Court Chief Justice Bhattacharjee receiving large “foreign” royalties in 1995, controversies, however founded or unfounded, over Justices Punchi and Anand – both Chief Justices of India – and Justice Bharucha’s declaration that 20 per cent of judges are corrupt. The year 2002 has been a bad year. In Punjab, High Court judges are accused of having received favours from the Chairman of the Public Service Commission. In Rajasthan, the allegations countenance a High Court judge and his Deputy Registrar soliciting sexual favours. In Karnataka, allegations canvass compromising sexual conduct involving High Court judges. In Patna, there are serious allegations of corrupting the legal process by lawyers and the registry. Public confidence is shaken.
Judges reign and rule – with little external effective oversight over their conduct. Judicial independence cannot encompass judicial lawlessness, rampant corruption or conduct unbecoming. Justice Ramaswamy’s impeachment suffered defeat in Parliament. The Supreme Court’s Committee opined he could not be denied work. In Bombay, resignations took place. Using the `transfer’ policy – now abandoned – does not satisfactorily deal with serious allegations against judges. Corruption is transferred, not dealt with. In the mid-1990s, the Supreme Court felt that the Chief Justice of India (CJI) could use his prestige to persuade judges to resign or not attend court, But, such an approach eludes results if the delinquent tells the CJI to mind his own business.
Witness the cases of Hastings and Clairbourne in America where judges refused to demit office until impeachment – in one case, even though the judge was imprisoned! Informal methods have failed; and do not command confidence in India.
An intermediate method has to be created so that judges are answerable and can be disciplined without compromising their independence. But, it is not just a question of disciplining judges; but, also of dealing with complaints against them in a swift and effective way. Such mechanisms exist for the lower judiciary, but not for High Court and Supreme Court judges. From the supercession controversy of 1973 when three judges were superceded for the post of CJI, there have been calls for a National Judicial Commission both to (a) make judicial appointments (which after the 1982, 1993 and 1998 judgments are – and, that too, not quite satisfactorily – in the hands of a conclave of Supreme Court judges) and (b) deal with complaints, corruption and misconduct. But, ongoing suggestions for a National Commission have fallen on fallow ground. Having wrested the patronage of appointment, the judges have dragged their feet on issues of judicial discipline except to produce unenforceable codes of conduct. What are required are constitutional and statutory amendments.
Recent history shows that where there is a will, constitutional amendments are possible. But, there is a lack of political and judicial will to introduce changes. Today, judges collectively and in judicial orders make all kinds of suggestions on their pay, salary, perks and other things. But no consensus suggestion to interrogate judicial indiscipline emerges with credible clarity. Individually India‘s Chief Justices provide evasive and contradictory answers.
In the midst of all this comes the controversy over the commendable resignation of Justice Venkataswami who was the sole Commissioner of the Tehelka Commission. Three issues arise. The first is: what went wrong? Something did. Sometimes judges do hold two post-retirement posts – without conflict or demur. But, the Tehelka Commission was not just an inquiry but an inquisition in which the Government had a massive political stake. The proposal to give another assignment to Mr. Venkataswami whilst he investigated Tehelka and its discontents should never have been made. The next slip up was Chief Justice Bharucha’s recommendation behind which the Government seeks refuge. No less, the offer of appointment should have been declined. This is not a case of conspiracy, corruption or misconduct. Mr. Venkataswami integrity is beyond dispute.
The famous Pinochet case (1991) was re-heard because Lord Hoffman had broad links with a charity which, though not before the ‘Lords’, had a stake in the cause. In the Curative Petition case (2002), the Indian Supreme Court drew sustenance from the `Pinochet’ example on the premise that justice must not only be done but always appear to be done. This sets the tone. Mr. Venkataswami has led by example. Purity is as important as cleanliness. At least one present judge of the Supreme Court declined an above board invitation to a seminar from an American university on the basis that it was unacceptable that anyone other than the Government of India should pay for such trips. This sets a standard.
The second issue that arises out of Tehelka is whether Mr. Venkataswami can simply be replaced by another judge. There is a stateable case that he cannot. Section 8A of the Commission of Inquiry Act, 1952, was amended in 1971 to permit a Commission to continue if a vacancy arose in a multi-member Commission. The assumption of continuity would survive because a member or members would continue. But, section 8A is inapplicable for a single-member Commission or where an entire Commission ceases to exist. It becomes non-existent (non est) and ceases to function (functus officio). Continuity is broken. Replacing Commissions afresh contrives its own politics. There is an even chance that any replacement appointment would be challenged to the discomfiture of any new appointee. This does not mean that the records of the Commission are not available for public use. So far, the only real public interest part of the Commission’s work was over the military deals – which was heard in camera. These can be examined by a Joint Parliamentary Committee as raw evidence to interrogate lapses. The other aspect of the Commission’s inquiry investigates Tehelka’s journalistic conduct and wild, unfounded allegations that Tehelka tried to destabilise the stock exchange and personally benefit Tehelka’s people and financiers. A lot of this is humbug. The `journalistic’ ethics issue does not need a Commission’s wisdom, but along with the accountability of the electronic media should be generally examined by public discourse. There are enough legal provisions to deal with `destabilising’ frauds; but, the Government knows that they do not have a credible leg to stand on. On this basis, the Tehelka Commission needs to be wound up; but the `defence deals’ examined by Parliament.
The third issue relates to the desirability of post-retirement appointments for judges. There is a dilemma here. Although Inquiry Commission reports generally gather dust, there is a public faith that only judges should head such inquiries – indeed, that is what made the T.T. Krishnamachari and Kairon inquiries of the 1950s credible. The answer lies in less inquiries and carefully chosen incumbents. Today, an inquiry is a general panacea to avoid any public allegation. The Commission process has been devalued. Several statutes – such as the Human Rights and others – necessitate judicial appointments. Such jobs cannot be multiplied as inducements.
India needs a policy on embargoing post-retirement jobs for judges whilst increasing their retiring age. The Public Commission procedure came to the fore in 1921 after the Marconi scandal around 1918 because Parliament could not be wholly trusted. Parliament needs to be more rigorous and credible – even though the nation was let down by the Bofors Joint Committee which wrongly absolved the, then, Prime Minister and others in 1987.The Indian judiciary has to confront its public image. India‘s judges
are massively powerful. They both compensate bad governance as well as fulfil the judicial quest for power. Judges may err in their judgments. But, if confidence in the Judiciary abates, Indian governance is in peril.
Are our Indian Judges Dictators? No.. – BY JOY KAIDARATH
Do we have Dictators in India?
For this question we will have to find out what are the qualifications of a Dictator.
Dictator is a person who makes laws. Dictator is a person who interprets laws. Dictator is a person who executes laws. A person behaves in an tyrannical manner. A ruler who is unconstrained by law
If this is true who makes laws in India? We say it is the Legislature. But Legislator is an elected body and people at least have a vague hope that one day we can change a Legislative body if that body is corrupt one. People can Criticize Legislative actions if they are wrong. They can go to Courts if they violate any rights. Opposition is there to check the uncontrolled behavior of a Ruling party. So Actually Legislature is checked by Courts and opposition and they can be thrown out if they are wrong. (Whatever may be the thing our polititians and Babus are afraid of courts. poor people are not even able to make good laws without fearing the court)
Executive: Again executive body is also under check. You can criticize them openly. (You can even criticize Indian President) They get all the criticism. There are many ways to check their power if one wants to.
Judiciary – they are people who are not elected. They make hundreds of laws (in the name of precedents). They interpret laws as they like or as per the rules of interpretation (May be some of the time no rules of interpretation is followed, that must be mistake – will not anyone think?). Do they Condon delays and denies justice to the worthy person without even asking explanation from the guilty , i do not think so.
Even in the cases where the legislature has given remedy to the people to have speedy remedy do they delays the matters forever? I do not think so. Does any one has a different openion? There is no real move from the part of the judiciary to fasten up the matters. Can we actually say this? They say the Government does not take steps to speed up the matters, and the governments say that they are not guilty. Do you think that this blame game is going on? Ultimately what happens, in India you can do any thing if you have money and know how to manage? That must be a wrong statement. (Even if this may not be the case this is want I may tend to think from the affairs I am seeing in the court.)
Recently I was sitting in a Court Room of Bombay High Court. Matters of 1980 and 1983 are being examined now. These matters are suppose to be under the title of Commercial Causes. In one Case a government body (or Bank) has to get back 37 lacks. Please consider the fact that the matter is that of 1980ees. In 1980ees the amount 37 is equal to more or less our 37 crores in the present time. Now the preciding judge was asking the plaintiff (Government Body or Bank), how they are going to get back the money. And the person appearing of the Government body or bank was playfully saying that it would be impossible to execute the decree even if they get a favorable judgment, because according to him they do not know where many of the defendants are. Then Judge asked why they are not withdrawing the matter. Then person appearing was saying that since it is Govenrnment matter it cannot be withrawned. So an Advocate is arguing a matter where he gets his fees, and ultimately Govenement or (Government Body would lose). (Is that violation of Chapter XV, Commercial Causes, Rules 228 to 236 OF THE BOMBAY HIGH COURT (ORIGINAL SIDE) RULES? It must not be. There must be some other provisions which the Judges and Court officers know. Because Our courts would not do any thing illegal. They are guardians of Justice. If I doubt and say something against it, it would be contempt of court. So I say that the courts are not violating anything)
Now who lost the money? Government – that is the public lost the money. Who cares? No one cares. The persons who got money are wise people, because they do not have to pay it back. Why? because of the long duration. Now they cannot even punish the Bank or Government officers, because most of them might be dead or by the time all appeal and all are over all will be dead.
Nobody cares, Even now this is happening. Long delays you make, you can escape with everything. Even if this may not be the case this is want I may tend to think from the affairs I am seeing in the court
Just think According to the preset way of running of the court and from the information I gathered, commercial causes are being dealt with by a judge twice a week. Even if a judge decide on 25 matters per week at least 1000 cases (I am calculating 25 X 40 weeks) would be over. If even this cannot be done, then why do we need a judiciary, just for incurring expenditure? (Are our judges so incapable of producing the results? I do not think so) If this could be done, then how this back log has come? Then what is the difference between commercial causes cases and other cases?
No body can criticize the judges (Because it would be contempt of Court). Even if a judge make a judgment violating all kinds of interpretation rules it is very difficult to complain against that judge. CBI will not take case, no executive can take case against them, Even if you complain to Chief Justice (Even Cheif Justice of India) they would not take any action. Even many judges have pointed out that there are corrupted judges among them (Cannot prove becasue none say these things on record). This is not only in the Lower courts, but also even in the Higher courts. From High court judges How many have ever been caught because of the corruption? Not many any way. Personally I cannot remember any High court judges name who was caught in Corruption. Is that because there is no corruption in the judiciary? May be because of that. But for me it is very hard to believe. May be I have paranoia . If I am not Paranoid, then I think we Indians are ruled by Dictators, I must be wrong. Becuase otherwise there are ways to find out all these things. At leaset that is everybody is saying.
When British went from here they gave us Laws and a court system. (May not be efficient once as Indians are capable of making). Even after 55 + years of Independence we are still cricising the inefficiency of their laws and their systems. We are not capable of making a good system. And when we criticise we do not have any shame.
Now Are we ruled by Dictators? Are our judges dictators according to the defenitions given above – not in theory but in practice? I think I am not able to decide. I do not know the answer. I do not think that they are dictoctors. I think our judges are good judges, without having any kind of corruption, otherwise they would have find it out.
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