Lawyers For Human Rights International

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
ATCHANDIGARH

Criminal Misc. Petition No._______M/2001

PUBLIC INTEREST LITIGATION

Lawyers For Human Rights International, Chamber NO.122, District Courts, Sector 17, Chandigarh. Through its President, Amar Singh Chahal.
............Petitioner

Versus

1. State of Punjab, through its Home Secretary, Chandigarh.
2. Director-General of Police, Punjab, Pb. Police Headquarters, Sector 9, Chandigarh.
3. Inspector-General, Litigation & Prosecution, Punjab, Pb.Civil Sectt. Chandigarh.
4. Chairperson, Punjab State Human Rights Commission, SCO 20-21-22, Sector 34-A, Chandigarh.

...........Respondents

AFFIDAVIT OF S.AMAR SINGH CHAHAL, PRESIDENT, LAWYERS FOR HUMAN RIGHTS INTERNATIONAL, CHAMBER NO.122, DISTRICT COURTS, SECTOR 17, CHANDIGARH.

I, the above named deponent do hereby solemnly affirm and declare as under:-

1. That the Petitioner is a registered non-governmental human rights organisation striving hard to promote human rights awareness among the citizens and protect the human rights of the people by providing free legal aid to the poor and indigent persons. The organisation has been actively engaged in educating general public about their human rights through publication of literature, organising human rights workshops and training programmes for imparting training in human rights education. The organisation has also conducted a research and study of many cases of Custodial torture and Custodial deaths in the State of Punjab for the last about a decade. It also provides free legal aid to the poor and indigent persons in case of human rights violations. The organisation has been actively associated with the Punjab State Human Rights Commission in finding ways and means for reducing incidents of Police torture, illegal detentions and custodial deaths which infringes the most cherished human right to live of the citizens. After studying the ground realities and sordid situation prevailing in the State of Punjab for the last about four years, where more than a hundred innocent people have lost their lives in Police custody, the organisation felt deeply concerned at the diabolical reoccurrence of custodial torture, third degree treatment and even custodial deaths and in order to prevent the further loss of valuable human lives, the organisation is filing the present Petition in representative capacity as a Public Interest Litigation as such the required leave may be granted.
2. The Universal Declaration of Human Rights,1948 which marked the emergence of a worldwide trend of Protection and guarantee of certain basic human rights, stipulates in Article 5 that----
No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.
Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading treatment or punishment, defines torture as -----
“Any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidated or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or that person acting in official capacity.”
The Article 4 of the Convention says, “each state party shall ensure that all acts of torture are declared as offence under its Criminal Law. ”

3. That ours is a country where rule of law is inherent in each and every action and right to life and liberty is a prized fundamental right adorning highest place amongst all important fundamental rights and the rights inherent in Article 21 and 22(i) of the Constitution of India require to be zealously and scrupulously protected, instances of torture and using third degree methods upon suspects during illegal detention and police remand casts a slur on the very system of administration. Human rights takes a back seat in this depressing scenario. Use of excessive force and exceeding lawful authority by the police, resulting in death in custody, have become quite common. If torture of a suspect during police custody is inhuman, causing death by beating in police custody is even more inhuman. Custodial death is perhaps one of the worst crimes in a civilized society governed by the Rule of Law. It is indeed a matter of great concern for every human being. Thinking of the pain and trauma that a victim suffers due to torture, the protection of his life and liberty from such inhuman treatment becomes the most sacred duty of every authority who cares for human rights. In custodial crimes, not only the infliction of body pain is worrisome, but also the trauma and mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is third degree torture or death in police custody, the extent of pain caused to the humanity is beyond the purview of law. Repeated incidents of Custody deaths in the country have not only shaken the people’s conscience, forcing them to take to the street against the inhuman torture techniques adopted by the police, but have also highlighted the hostile attitude of law enforcing agencies in containing such heinous crime against the humanity. The sad part of the story is that the force which is supposed to protect the life and liberty of the citizen when behaves inhumanly and perpetrate crime it brings to fore the most crude form of violence against the whole humanity. It undoubtedly, encourages lawlessness and breeds contempt for law.
4. Custodial violence including torture, death and staged encounter, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Showing deep concern over the increasing tendency among the police officials in subjecting third degree torture upon the suspect resulting in the custodial death of the suspect and the suppression of such occurrences by the erring cops, the National Human Rights Commission issued strict directions to all the State governments and Union territories in 1993 that “in view of the rising number of incidents of custodial deaths and custodial rapes and reported attempts to suppress or present a different picture of these incidents with the lapse of time, the commission directs to all the District Magistrates and Superintendents of Police of every district in the country that they should report to the Secretary General of the National Human Rights Commission about such incidents within 24 hours of such occurrence or of these officers having come to know about such incidents. Failure to report promptly would give rise to presumption that there was an attempt to suppress the incident”.

5. That it is a shocking state of affairs in Punjab. The tall claims of the Punjab government of restoration of rule of law have proved a farce with custodial crime becoming an order of the day. Policemen still consider themselves above the law. Their mindset is the same as it was during the earlier days. Their actions are the same. Rather, their authority has become more powerful with no action against their illegal actions. In the forgotten corners of dusty police stations in Punjab, lathi and roller continue to make harsh contact with flesh and bone. So secretly is this done, so discreetly, that the democratic nation which houses these modest citadels of terror can continue to believe that it is indeed a democracy. Anybody having tasted the torture techniques of the Punjab Police, the term “torture” is enough to make his backbone straight for the trauma of such inhuman act leaves a trail of mental disorders throughout the lifetime. Experience shows that worst violations of human rights take place during the course of investigation. The police with a view to secure evidence or confession, often resort to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. Their acts of commission, corruption and barbaric methods of torture, kidnapping and ransom, fake encounter, elimination and custodial deaths etc. put to shame any civilized society. When corruption and greed intermingle in such a state of affairs, many of the actions of the men in uniform take the form of contract killing, extortion etc. That the Police is no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demand of our legal order forbid. No society can permit it. The action of the State, however, must be “right , just and fair”. Using any form of torture for extracting any kind of information would neither be “right, nor just nor fair” and therefore, would be impermissible, being offensive of Article 21. The third report of the National Police Commission in India released in 1996, expressed deep concern at the increasing incidents of custodial violence and deaths in lock-up. It took serious note of the demoralizing effect which custodial torture was creating on the society as a whole. It held that
“The Protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of criminal law”.

6. That in Punjab, the human rights situation today, is alarming. The Police has gone so berserk that resorting to extra-judicial methods has become their favourite sport. There is an un-declared war against human rights by the police force. Innocent people are daily done to death in a very cruel manner which cannot be described in words. Even the women and children are not spared. The victim is tied upside down with pressure put on his head from below, heavy iron roller applied on his sensitive parts. Petrol is put on private and sensitive parts. He is mercilessly beaten with wooden stick and iron rod. The legs are torn apart at 180 degree and then pressure is put on the thighs. The nails are pulled and salt is put on the injuries. Electric shocks are given on the private parts viz. penis and testicle. The victim is more brutally tortured and even killed publicly by the devils in khaki. The deep study of the pattern and modus operandi of the policemen in killing suspects in police custody very recently have not left an iota of doubt that whosoever is taken into custody by the police is sure to loose his life, lest he is too hard to bear the police torture, no matter, whether he is innocent or too poor to bribe the policemen. More than hundred reported custodial deaths in four years and a thousand reported incidents of tortures of innocent people in police custody, casts a slur on the law enforcing machinery in the State. It will be the endeavour of the Petitioner to highlight through this Petition as to how far the State government and its law enforcing agencies are sensitive to the human rights issues and respect the fundamental right to life and liberty of its subjects.

7. Even after four years of the so-called popular rule in the State, the situation has not changed a wee bit. The number of deaths might have gone down, but the killer instinct of a rowdy and inhuman policeman is still the same in the flesh and blood of most of the policemen. When more than a hundred people have lost their lives in Police custody since 1997, it would be a folly to call it a State ruled by law. The moot reality is that the situation has been so badly mis-handled that it has become critical and every peace loving citizen is feeling insecure and prone to police brutality.

8. That the Punjab Police, notorious for its fake encounters, custodial deaths and other heinous crimes, received a blow, when the encounter theory of killing a youth, Kashmir Singh of Pandori Rukman in Hoshiarpur district on 14th March, 1997 came out to be a false one. Even the Sessions Judge, Hoshiarpur held the incident to be a cold blooded murder of an innocent youth by the policemen and convicted the police party. He sentenced all the guilty police personnel to life imprisonment for the offence of murder. A compensation of Rupees five lacs was also awarded by the National Human Rights Commission to the next of kin of the deceased. Similarly, the tale of torture method described by Sapinder Singh, the brother of a victim of Police torture, Devinder Singh alias Bhola, a youth of village Hassanpur in Ropar district who was tortured to death on September 18, 1999 made a hair raising revealtions of torture techniques of Punjab police even today. According to the eye-witnesses who were also tortured during illegal custody, the victim Devinder Singh, was tied upside down with pressure put on his head from below, heavy iron roller was applied on his sensitive parts. His flesh was cut with sharp blade and Petrol was put on his bleeding injuries and private parts. He was mercilessly beaten with wooden stick and iron rod. His legs were torn apart at 180 degree and then pressure was put on the thighs. His nails were pulled and salt put on the injuries. Electric shocks were given on his penis and testicle. Not bearing the inhuman torture, the victim succumbed to his injuries then and there. The accused policemen who were arrested and brought to trial, have recently been sentenced to life imprisonment for the custodial death. Many victims of police brutality have even gone un-noticed. What was the fault of Iqbal Singh of Jaitu in Faridkot when he was picked up by the Muktsar police on January 5,2001 and was so badly tortured that he died in the lock-up? But the police is so hardened liar that it claimed that the victim had committed suicide by hanging himself in the bathroom of the lock-up. Similar story was cooked up by the Police in the case of Surinder Pal who died in Police Station Dasuya in District Hoshiarpur on 7th January, 2001. The same day Avtar Singh, a 21 year old boy of Ludhiana was shot dead by an ex-militant, who is now a Police Inspector, Gurmeet Singh Pinky in Ludhiana because he objected to their drinking session at a public place. Is the life of these victims so valueless that the State government or the Police authorities could not afford to pay ex-gratia compensation to the next of the kin of the deceased killed by the Policemen ? The tragedy does not end here. Exactly a month later in 2001, Jaspal Singh, a 17 year old Dalit youth of Village Saheri in District Ropar fell to the torture methods of Punjab police and died in Police Station Morinda on 7th February, 2001. To add insult to the injury, every organ of administration including the civil and police administration in the district tried their level best to save their policemen who were responsible for the tragic death. Yet another dalit youth, Madan Lal of Kapurthala was tortured to death in Police Station Kapurthala on 15th February, 2001.What happened in Kapurthala was horrifying, but the death of Jaspal Singh, a dalit boy in police custody in Morinda Police Station on February 6, 2001 has revived the memories of the dark period in the history of Punjab when countless innocent young men were killed in false encounters, but police records turned them into ruthless terrorists. The list goes on and on. It should set alarm, bells ringing. One thing quite similar in all these incidents was that except in very few cases, the police authorities and district administration failed to take necessary action against the guilty persons and even left no stone unturn to save the erring policemen. No action was taken against any of the guilty policemen, unless the masses came to the street and protested by laying road blockades, dharnas and even gheraoed the police station. In other words, the public outcry and street protests played an important role for forcing the authorities to take strict action against the erring cops. An exhaustive list of all the persons killed in Police Custody between Ist January 1997 to 31 July, 2001 is appended as Annexure P-1. The repeated incidents of Custodial deaths have once again underlined the need to bring about reforms in police functioning. Besides bringing the guilty policemen to book, the Petitioner wish this Hon’ble High Court to address the most piquant question of changing the very approach to policing, because police reforms calls for a nationwide debate and initiative.

9. That the police force which has no checks and balances is sure to become lawless. As per the detailed investigation conducted by the Petitioner, there are, at present, more than five hundred policemen of Punjab facing criminal cases for different offences including fake encounter, custodial death and corruption etc. It has further come to notice that in most of the cases of Custodial deaths, the first reaction of the officers was to hush up the incident. The Police had not even registered an F.I.R. in relation to the death of the victim. For instance, the case of Custodial death of Pala Singh, son of Gurcharan Singh of village Bhai Bakhtaur in District Bathinda on 1st September, 1997. Even after the matter was taken firstly to Punjab State Human Rights Commission and then to the Hon’ble High Court, the Punjab police neither registered the F.I.R. nor admitted it to be a custodial death. No policeman was indicted nor prosecuted for the death, even though the Punjab State Human Rights Commission, held the policemen guilty of the custodial death and awarded a sum of Rs.50,000/- to the next of the kin of the deceased. Even that recommendation of the Commission was not complied with and the matter ends there. In yet another case of the custodial death of Ram Kumar son of Sadhu, a resident of Ludhiana at the hands of CIA staff, Sirhind officials on April 23, 2000, the police failed to register any F.I.R. against the guilty police officials, nor prosecuted any body for the death. In both the above cases, the version of the police was that “ the deceased consumed poison before being arrested apprehending their implication in the case”. In another case of Custodial death of Bhola Singh, son of Gurdial Singh, resident of village Matti, District Mansa on 27th October,1998, the District Magistrate, Mansa, after submitting the Magisterial enquiry report in the case made the following observations which needs to be taken note of :-
“ However, as a matter of abundant caution in future, the officials on duty be asked to be little more vigilant. In the instant case if a proper and regular watch could have been maintained, the effort of Bhola Singh to commit suicide could have been averted initially when he started making an attempt to commit suicide. It would be proper if general instructions are issued to all Police Stations that duty officials remain more vigilant regarding persons under custody in the lock-ups. It has also been found that the information of death was not sent to the undersigned by duty officials immediately. In this regard, I would suggest that the explanation of the S.H.O. and duty officials may be called and your findings on this may kindly be sent to me for further necessary action. Although no foul or malafide involvement has been found in this case, it is felt that delayed report in such matter can always raise a doubt and suspicion. In view of the above it is also suggested that all the S.H.O.’s and other officials may also be directed that such information be simultaneously sent either on wireless or telephone to the undersigned and Sub-Divisional Magistrate/Illaqa Magistrate within 10 to 15 minutes of such occurence.”

10. That in order to make every violator of law in uniform accountable for any illegal and cruel act, it is most urgently required that some appropriate directions may be issued for prosecution and conduct of trial, besides payment of ex-gratia compensation to the families of the victims from the pocket of the erring cops. For this purpose, the Petitioners state that out of One hundred custodial deaths reported in the State since 1997 only four cases have so far been decided and many cases have not even taken to the court and even many more cases are pending in the court, due to lack of interest of prosecution agency as the accused are their colleagues. It is therefore, a fit case where a complete list of persons killed in Police Custody from January 1997 till August, 2001 be called for alongwith the status report on each case and the copies of the F.I.R. and the details of compensation if any paid by the State.
11. That the Petitioners further pray that some suitable directions based on study of international laws in similar situations may be passed so that in future the number of incidents of police atrocities could be controlled.
12. That the Petitioners have been left with no other alternative or more efficacious remedy but to approach this Hon’ble High Court by way of the present Criminal Misc.Petition. No remedy of appeal or revision is available to the Petitioners in the present case.
13. That the Petitioners have not filed any other or similar petition either in the Supreme Court of India or in any other High Court or this High Court on the same subject matter.

CHANDIGARH DEPONENT
DATED;

VERIFICATION:-

Verified that the contents of above paras no.1 to 13 of my affidavit are true and correct to my knowledge and belief and nothing has been concealed therein and no part of it is false or mis-stated.

CHANDIGARH DEPONENT