Focus on Rights

Biting the victim and not the perpetrators?

Custodial violence has been for long, a serious human rights issue in both Sri Lanka and India. The contrasting manner in which national mechanisms have dealt with this problem is however, interesting. While the extent of police brutality in India is grave, a strong response to this is manifested by state monitoring bodies, activists and judges.
In this country however, the problem is yet, unrecognised in its severity. Consequently, the death of a lottery award winner in police custody recently, occasioned no real shock. Probably, if and when this case goes to court and judgement is delivered, this too will pass, like many of its kind before, largely unremarked except as a passing sensation.

In India, one case in point was D K Basu v. State of W.B. [(1997)1 SCC),} where the court laid down certain mandatory requirements to be adopted by authorities in all cases of arrest or detention. These included the warning that all personnel carrying out arrests and interrogations must bear clear identification with name and designation. At the time of arrest, an arrest memo should be prepared containing the time and date of arrest, which had to be signed by a witness and countersigned by the arrestee.

Upon arrest, a friend or relative of the arrestee should be informed of the arrest and the place of detention. An entry should be made at a diary in the place of detention regarding the arrest, recording also the name of the friend or relative of the arrestee who had been informed.

The arrestee should meanwhile, be examined at the time of arrest and any injuries present on the person should be recorded in an inspection memo to be signed by the arrestee and the officer effecting the arrest. Thereafter, the arrestee should be subjected to medical examination every forty eight hours during his detention by a doctor from the approved panel of doctors and copies of all the aforesaid documents should be sent to the concerned magistrates.

Importantly, the Court took note of the fact that these directions may not be complied with by police officers at the ground level. Consequently, it was expressly ruled that failure on the part of any police officer to comply with these requirements shall, apart from making the official concerned liable for departmental action, also render him liable for contempt of court.

Even more interestingly, the Court directed that these requirements laid down in the aforesaid matter be forwarded to the Home Secretary of every State. The Secretaries were obliged to circulate this to all police stations under their charge. All State Governments were moreover directed to file affidavits to ascertain the extent of compliance of the directions issued by court.

In Sri Lanka, the approach to this problem has been far more lackadaisical. While we have had extremely progressive judgements of the Supreme Court on individual cases, these have remained confined to the law for the most part.

In the process, monitoring bodies that have been set up in this country to deal with rights abuses, share a large part of the blame. This is increasingly a serious concern as appropriately reflected upon in its second publication on "Sri Lanka; Legal Reforms and Human Rights" by the Asian Human Rights Commission which has thought it fit to specifically concentrate on National Human Rights Commissions in general and the Sri Lankan Commission in particular. Its critique is biting, concluding that the performance of the Commission hereto has been dismal and disappointing.

It gives specific reasons for this indictment. In one statement, for example, issued along with two domestic community based organisations, Janasansadaya and Niveka, the point is made that such rights commissions are supposed to be watchdogs, monitors, advocates and promoters of rights. It is from these basic expectations that the National Human Rights Commission (NHRC) of Sri Lanka, set up under Act No 21 of 1996, is measured and found to be wanting.

Following extensive work with torture victims in Sri Lanka, eight particular complaints are made by these organisations with regard to the manner in which the NHRC has been functioning so far.

These complaints are based following assessment of actual practices followed by officers of the NHRC, which have been monitored by these community based organisations.

Firstly, NHRC officers are accused of often violating principles of international and national law in dealing with torture cases by allowing perpetrators to escape criminal punishment by paying small sums in compensation. Such sums, in certain instances, are as small as Rs 1,000/=. This, as correctly pointed out, runs contrary to the rationale behind the enactment of the Torture Act No 22 of 1994, according to which torture is a crime punishable with a mandatory prison sentence of seven years and a fine. Damagingly, as a result of such settlements, victims are prevented from pursuing criminal cases.

Secondly, recorded instances of the manner in which NHRC officers have dealt with complainants, indicate that victims are often pressurised to accept settlements. In one striking example, a complainant who had been thrown into a river by a police officer was told by the inquiring officer that he really did not have a case and that it was consequently better for him to accept a small payment and be done with the matter.

Thirdly and even more seriously, NHRC is accused of taking a soft attitude towards police officers who violate human rights. The hard allegation is, indeed, that there are close links, if not collusion, between commission officers and offending police officers.

It is also pointed out that the investigations proceed more on labour tribunal lines rather than engaging pro-actively in the process of investigations and that complaints are trivialised in a manner that violates international standards (as well as pronouncements of the Sri Lankan Supreme Court, for that matter), when acts of torture that do not have evidence of physical injury are rejected.

The AHRC complaints will be difficult to refute, given that they arise from consistent monitoring and actual involvement with victims unlike the abstract papers and theories that litter the offices of Colombo's non governmental organisations,

In this sense, it could be justly and fairly said that standard setting by Sri Lanka's NHRC, particularly in respect of the physical life and liberty rights, has been inadequate during the seven years of its existence. In the minimum, evolving consistent procedures for the police, for example, in respect of arrests and detention much along the lines expounded in the Basu Case and examining in the process, the substantial case law of the Sri Lankan Supreme Court in this regard, would have been extremely useful.

As for now, whether the NHRC would play a much more pro-active role in terms of its mandate under Act No 21 of 1996 than what we have seen so far, remains a question yet unanswered.

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