The International Human Rights Organization Amnesty International has again taken note of the violations of human rights in India. In a report titled, “Some recent reports of disappearances’ indexed AsA/20/08/89 they list a number of disappearances in police custody.
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This paper describes seven unresolved cases of “disappearances” which are among dozens of such “disappearances which have been reported from India in recent years. The victims include persons arrested on suspicion of having committed common criminal offenses, as well as political activists suspected of carrying out acts of violence. Members of a minority community have also been victims of “disappearances”. Police have refused to register several complaints of “disappearances” and threatened relatives for bringing such complaints against them. After considerable public pressure, independent inquiries were instituted into some allegations of “disappearances” although their findings were not published in the cases known to Amnesty International. Some “disappearances” were particularly resolved when the detainees were found to have been killed and their bodies were recovered; but the perpetrators were never brought to justice. The best known cases of such “disappearances” in recent years after those of Muslims from the Hashimpura area of Meerut (Uttar Pradesh) who were seen to be arrested there by members of the Provincial Armed Constabulary on 22 May 1987 during communal disturbances. Dozens are believed to have been taken away and shot in secret that same night by members of the Provincial Armed Constabulary who dumped their bodies into a canal outside Meerut. Compensation has now been paid to relatives of 13 of the victims, whose bodies were found at various places along the Ganga canal, and to relatives of 27 others who “disappeared” but whose bodies were never found or could not be identified. In a note of 13 September 1988 the Permanent Mission of India to the United Nations in Geneva informed the United Nations Working Group on Enforced or Involuntary Disappearances that the Uttar Pradesh State Government “had activated a scheme for providing financial relief to the dependents of those who were missing and could reasonably be presumed to have lost their lives in the course of riots and related violent incidents”. But officials still continue to deny that the Provincial Armed Constabulary was responsible for their detention and murder and, after two years, the government has still not published the findings of an official inquiry into the May events which was to ~ have covered the dozens of “disappearances” from the Hashimpura area of Meerut. Moreover, although there are six survivors of the secret shootings who could identify the Provincial Armed Constabulary personnel allegedly responsible no one has been brought to justice for the murder or “disappearance” of Muslim men in Meerut. (See ASA 20/06/87: Allegations of extrajudicial killings by the Provincial Armed Constabulary in and around Meerut, 22-23 May 1987.)
Amnesty International uses the term “disappearance” to describe cases in which the authorities or those acting with their connivance carry out a detention which they subsequently deny has occurred while concealing the actual whereabouts and circumstances of the indicted detainee. A “disappearance” may be resolved by the authorities acknowledging the victim’s detention or by the detainees release or by the discovery that they were the victims of extrajudicial executions. People who have “disappeared” may well have been victims of violent, often illegal, arrest, of torture, unacknowledged detention and, at worst, may have died under torture or have been deliberately killed while in secret detention.
“Disappearances” are not frequently reported in India, but several dozens of cases remain resolved. In its latest report, the United Nations Working Group on Enforced or Involuntary Disappearances recorded that it had so far transmitted 33 cases of “disappearances” to the Indian Government, none of which had been resolved by the government at the time of publication of its report on 18 January 1989. Most of the cases taken up by the Working group concern those who “disappeared” in Meerut in May 1987. Others concern cases reported from Punjab.
In this document, Amnesty International gives details about nine cases of “disappearances” reported in India during 1987 and 1988. Two of these cases have been resolved: the “disappeared” persons were traced after spending several months or weeks in unacknowledged detention. In both these cases, detention was finally acknowledged by officials after concern had been expressed in public about the “disappearances”. But the fate of the seven others remains unknown. Details of their “disappearance” are described in part 3. In all cases, there is strong evidence, sometimes from eye-witnesses; to suggest that the “disappeared” people were taken away by police personnel, sometimes dressed in plain clothes. In several cases police officials apparently first acknowledged their detention but later denied this. In three cases, eye witnesses claim they saw the “disappeared” men while held by the Punjab police.
Amnesty International fears that the seven may have been killed while in custody.
“Disappearance” and the courts
India’s highest courts have, in recent years, confirmed that police or army officials were responsible for some cases of “disappearance” although officials have denied this. The courts have also ordered two states to pay compensation to the relatives concerned.
An example is the 23 April 1984 ruling of the Supreme court that the State Government of Manipur had “misled the court by presenting a distorted version of facts” about two civilians from Nagaland C. Paul and C. Daniel from Huining village in Manipur. They were reportedly taken by members of the 21st Sikh regiment on 10 March 1982 to its base Phungrei Camp, osteney, to identify suspects held there. They have not been seen since and their detention was denied. The Supreme Court acted on a habeas corpus petition of 24 November 5 1983 and ordered the Union Government, the Secretary in the Home Ministry and the Commandant of the Sikh Regiment, Phungrei Camp to produce the two men before the court by 12 December 1983. On that date the court was told by A.V Singh, a director of the Ministry of Defense that the government could not produce the two men. The Defence Ministry reportedly said that they were not in the custody or control of Phungrei Camp officials. A deputy Secretary to the Home Ministry reportedly also told the Supreme Court that the two men were not in their custody. The Supreme Court then ordered further inquiries to be made by the Central Bureau of Investigation which reported in April 1984 that their efforts to locate them had not had any result. The Supreme Court subsequently ruled that the two men could be presumed dead but had not met “their tragic end in an encounter as is usually claimed and the only possible inference that can be drawn is that both of them must have met an unnatural death. Prima facie it would be an offence of murder.” The Supreme Court added that the Union government cannot disown responsibility for the unnatural death, and ordered the Union Government to pay Rs 100,000 compensation to their relatives. It also ordered that a police investigation be carried out. Amnesty International wrote to the then Chief Minister of Manipur expressing concern at the reported “disappearances” and called for a full independent inquiry, and for the outcome of police inquires to make public. To Amnesty International knowledge, this has not happened. In another, more recent case the Madras High Courts held that the Tamil Nadu government was responsible for the “disappearance” of A. Vadivelu, a businessman from Kanchipuram, who had been arrested by the Wallajabad police in February 1985 in connection with a murder. In May 1988, the court held that the explanation given by the police that A. Vadivelu, “had been released on the evening of his arrest” and that he might be absconding, fearing prosecution, was “not at all convincing, satisfactory and acceptable.” In December 1988 the Court stated that “it was for the police who had taken the man into custody, to give an acceptable explanation as regards to the whereabouts of him or as to what had happened to him especially when there were abundant materials to draw the legitimate inference that there was something despicable in the conduct of the officials and they would not have let him off after they had secured him with great difficulty” (Indian Express. 14 December)
The court rejected the argument put forward by tne Advocate General that the government should not be held liable for the conduct of the police, stating that the police officials concerned were “the instrumentalities of the State” and had acted under the power vested in them by the state. The court ordered the Tamil Nadu government to pay Rs 50,000 to the wife of A. Vadivelu within six weeks. The court said that this would not preclude her from bringing a civil case against the state and against the police officers concerned.
But such cases in which the courts hold officials “responsible for “disappearances” are rare and are based on a presumption that the “disappeared” have been killed without resulting in the bodies being located and turned over to the families.
“Disappearances” resolved
‘The detention of people who disappear” after arrest is sometimes officially acknowledged after several weeks -or months. Two of these cases are described in their report in Section 3. The two, both political activists, were arrested respectively in Karnataka in August 1988 and in ~ Punjab in October 1988: police officials continued to deny they were in custody for several weeks or months after their arrest and their relatives believed they had “disappeared”. Both men were eventually released and claimed they were held in incommunicado detention and were tortured. S. Veeramani secretary of the Karnataka unit of the Progressive Youth Centre “disappeared” on 25 August 1988. A eye-witness claimed that he saw Mr. Veeramani taken away from a bus stop in Bangalore by uniformed police accompanied by men in plain clothes. Although colleagues made repeated inquiries on his behalf and filed a habeas corpus petition in court, officials continued to deny knowledge of his arrest or whereabouts until 6 November when he was produced before a magistrate in neighboring Tamil Nadu (for further details of the case see pages 13-17.)
Avtar Singh Sidhu, leader of the Youth Akali Dal, handed himself over to the Director General of Police (DGP), Punjab, in the company of a former member of parliament on 14 October 1988 after he learned the police wanted to arrest him. In response to appeals in early November to the DGP and the Governor of Punjab by his family and others, the authorities continued to deny any acknowledge of his detention. But after reports of his “disappearance” had been published in the Punjab press and a number of leading citizens had appealed for him to be released or to be brought before a magistrate, Avtar Singh Sidhu was unconditionally released on 30 November 1988.
THE CIRCUMSTANCES IN WHICH “DISAPPEARANCES” OCCUR
Legal background
Both -the Constitution and the Code of Criminal Procedure safeguard human rights by requiring that any -arrested person has to be brought before a magistrate within 24 hours of his or her arrest (Art 22 Constitution Art., 56 and 168 Code of Criminal Procedure): Arrested persons can be kept in police custody for up to fifteen days without charge on the basis of a formal request by a senior police officer authorized by a judicial magistrate. After that, those arrested must be transferred to judicial custody. The maximum period of remand on the orders of a magistrate cannot exceed 60 days. The magistrate shall not authorize any remand of a suspect unless he or she is brought before him (Art. 167 (1) and (2) (a) (b) Code of Criminal Procedure).
But these safeguards do not apply to people arrested under various laws permitting detention or imprisonment on grounds relating to national security. The Constitution specifically provides that “any person who is arrested or detained under any law providing for preventing detention “ does not have to be brought before a magistrate within 24 hours of arrest as normally stipulated, nor does such a person have the right to consult a lawyer of his or her choice (Art 22 (3) Constitution). This applies to people held under the National Security Act, “with a view to preventing him from acting in a manner prejudicial for the defense … or the security of India.” Furthermore, some customary legal safeguards are also inapplicable for those arrested under the 1985 Terrorist and Disruptive Activities (Prevention) Act (TADA) a law frequently used in Punjab to detain suspected Sikh extremists. Those arrested under TADA do not have to be brought before a judicial magistrate after arrest to authorize their remand; instead they can be brought before an executive magistrate (a judicial magistrate is a judicial official, independent of the Executive whereas an executive magistrate is appointed by the Executive and remains under Executive control). The
TADA also permits a confession made to a senior police Officer to be considered as evidence, although the Evidence Act, a long standing legal safeguard of the rights of accused people in India, excludes such confessions as admissible evidence in court proceedings on the grounds that they are unreliable. The TADA rule has been criticized in India because of fears that it could act as an incentive to the police to obtain “confessions” by illegal means, including torture.
Various international human rights instruments, including the International Covenant on Civil and Political Rights and most recently the Body of Principles for the Protection of all persons under any Form of Detention or Imprisonment adopted by the UN General Assembly in December 1988 have recognized that the appearance before a judicial or other independent authority promptly after arrest is an important legal safeguard. If a person is brought before an independent magistrate he or she has the opportunity to complain of duress or torture and seek redress. In one case described police stopped torture and improved treatment apparently in order to bring the detainee before the magistrate without visible signs of torture. Equally important is prompt access to a lawyer and relatives. In Amnesty International’s experience, such legal safeguards are crucially important to halt or prevent torture. Suspending them facilitates torture and other grave human rights abuses, such as extrajudicial executions and “disappearances.”
Effective legal remedies?
Even though legal safeguards exist in India’s ordinary criminal law and procedure code, a number of cases are known in which they were simply not applied in practice. Avtar Singh Sidhu, whose case history is described, was not brought before a magistrate until at least three weeks after his arrest and was denied access to lawyers and friends during that period when he was tortured and had “disappeared”. Apparently no official records were kept of his unacknowledged detention. The Indian Post in an editorial of 2 May 1989 about his case, commented:
“It is commonplace in Punjab to hear of young men being picked up and interrogated and tortured to elicit information about “suspected terrorists” or in order to get them to incriminate themselves. The families of these young men are not informed about their arrests; they are Not produced in court but are held illegally and incommunicado for weeks together … They (senior police officials of the state) declared in defense of themselves that no records are kept of persons arrested and detained for interrogation, irrespective of the duration of their detention.”
In southern India, S. Veeramani, who “disappeared” for about three months and whose case history is described says that the first time that he was brought before a magistrate was six weeks after arrest; until then he was kept incommunicado. He was also reportedly subjected to torture.
“It is commonplace in Punjab to hear of young men being picked up and interrogated and tortured to elicit information about “suspected terrorists” or in order to get them to incriminate themselves. The families of these young men are not informed about their arrests; they are not produced in court but are held illegally and incommunicado for weeks together … They (senior police officials of the state) declared in defense of themselves that no records are kept of persons arrested and detained for interrogation, irrespective of the duration of their detention.”
Amnesty International uses the term “disappearance” to describe cases in which the authorities or those acting with their connivance carry out a detention which they subsequently deny has occurred while concealing the actual whereabouts and circumstances of the indicted detainee.
Article extracted from this publication >> August 25, 1989
