ACHR WEEKLY REVIEW

Embargoed for: 29 December 2011
Review: 235/11

The custodians of death

How NHRC scripts its own undoing by its reinvestigations

The National Human Rights Commission (NHRC) has often been questioned for the failure to effectively intervene in cases of human rights violations. Yet, in a number of cases it does intervene but is unwilling to take these interventions to a logical conclusion. The NHRC’s intervention with regard to the tortured-to-death of Ram Kumar Pal has been commendable but insufficient. On October 13, 2009, the Asian Centre for Human Rights filed a complaint with the NHRC naming the deceased, Ram Kumar Pal, who died in Hardoi district of Uttar Pradesh on October 7, 2009. Pal’s only fault was his refusal to pay a bribe of Rs 20 to sub-inspector Gyan Prakash Tiwari and constable Shiv Chander Mishra. The state government provided an illegible inquest report (IR) that stated the death was caused by shock as a result of antemortem injuries, including an abraded contusion on the back of the left elbow joint; a contusion on the back below the interior angle of the right scapula; and a contused swelling on the right lower limb extending to the upper part of the right thigh, involving the inguinal area and reaching up to the ankle joint. The autopsy further found clotted blood and musculature, and that vessel and nerves were also damaged at several places.

As usually seen, the Uttar Pradesh police denied responsibility. The Superintendent of Police (SP) of Hardoi stated that Ram Kumar injured himself at work and that an alleged criminal, Subhash Pal, who had a grudge against the police, incited a mob of 65 people to protest against the death of Ram Kumar Pal. Thereafter, the NHRC decided to investigate the case and concluded that there was serious lapse while handling the case by the authorities. The NHRC also gave enough evidence that the entire district administration colluded to cover up the culpability of the police. The NHRC recommended appropriate departmental actions against sub-inspector Babov Upadhyay, the Circle Officer and the SP for failing to discharge their duties to supervise fair investigations of the cases in order to protect the guilty policemen. It also formed charges against Anil Kumar Srivastav and Shiv Kumar for negligence in the diagnosis and treatment of the deceased and the then District Magistrate for not ordering a magisterial enquiry despite compelling evidence of unnatural death.

With regard to the prosecution of Gyan Prakash Tiwari and Chander Mishra, the NHRC recommended reinvestigation of the criminal case (No 1356/09) by the Crime Branch-Criminal Investigation Division (CB-CID). This recommendation is contradictory and absolutely uncalled for. First, the NHRC, which earlier blamed the district administration for covering up the crime, now believes that the CB-CID under the same district administration would conduct a fair inquiry. Second, the requirement of another inquiry by the CB-CID implies that the NHRC has doubts about the correctness of its investigation despite compelling evidence collected by its investigative team. Third, the NHRC fails to recognise that once an inquiry conducted by its own investigation wing is completed, it is final under the law. Section 18(a) (ii) of the Human Rights Protection Act, as amended in 2006, relating to steps during and after inquiry empowers the commission ‘to initiate proceedings for prosecution’ upon completion of inquiry. Therefore, logically, the NHRC should either place its findings before the relevant trial courts by itself after seeking permission as provided under Section 12(b) of the Act, or direct the state government to do so for prosecution, rather than recommending another investigation.

On November 2, 2011, the NHRC recommended that the UP government pay Rs 5,00,000 to the next of kin of Ram Kumar Pal. While compensation remains an important palliative measure, the NHRC should consider the following recommendations if deaths as a result of police torture are to be combated. First, since the entire district administration can collude to cover up the culpability of the police, a magisterial inquiry or police inquiry would only cover up further. In most cases, doctors under duress or conniving with the police would manipulate postmortem reports. The hapless victims or their relatives cannot challenge these findings. Therefore, the NHRC investigation remains indispensable. Second, the NHRC ought to realise that once it conducts an investigation it is considered final under the Human Rights Protection Act and must be used for prosecution. There is no need to reinvestigate the cases by the CB-CID or any other State police once the NHRC’s investigation wing has already investigated.

IT MAKES the NHRC subservient to the police and further makes NHRC’s investigation wing inferior to the state police. The NHRC orders investigation simply because the inquiries by the police are insufficient or flawed. Third, once an investigation is completed by the NHRC, the NHRC must either direct the concerned state governments to place the records before the respective trial courts or place the records after taking permission from the court. Once the court takes cognisance, it becomes subjudice and the NHRC’s role effectively ends. Fourth, the NHRC must prioritise to combat torture. It may not investigate 1,200 deaths in prison custody per year, many of which may be attributed to illness, old age, etc. But as a matter of priority, it should investigate all cases of deaths in police custody, which is close to 120 deaths per year, by its own investigative wing. Majority of the deaths in police custody take place within 48 hours of the person being taken into custody and invariably as a result of torture. If the NHRC takes these steps and informs the state governments as addition to its existing Guidelines on Custodial Deaths/Rapes, deaths in police custody can be significantly reduced over the years because the investigation by the NHRC would lead to prosecution of the guilty. But the million dollar question is whether the NHRC is serious about itself and powers and functions bestowed to it under the Human Rights Protection Act.


Background:

Background: The case of tortured to death of Ram Kumar Pal

On 13 October 2009, Asian Centre for Human Rights (ACHR) filed a complaint with the National Human Rights Commission (NHRC) against torture to death of a labourer, Ram Kumar Pal, by the police in Hardoi district of Uttar Pradesh on 7 October 2009. Ram Kumar Pal’s only fault was to refuse to pay bribe of twenty rupees. Furious with the refusal, Sub Inspector Gyan Prakash Tiwari and Constable Shiv Chander Mishra beat him in full public view which finally resulted in his death.

After the NHRC registered the case No. 30962/24/36/09-10-AD following ACHR’s complaint, the Uttar Pradesh government consistently refused to cooperate. It submitted an illegible Inquest Report after many reminders. Though illegible, the inquest report stated that the death was caused by shock as a result of ante-mortem injuries including an abraded contusion on the back of the left elbow joint; a contusion on the back just below the interior angle of the right scapula; and a contused swelling present on the right lower limb extending to the upper part of the right thigh, involving the inguinal area and reaching up to the ankle joint. The autopsy further found clotted blood and musculature, and that vessel and nerves were also damaged at several places.

The NHRC directed the Uttar Pradesh government to conduct a magisterial enquiry but it refused to comply. Rather, the Superintendent of Police (SP), Hardoi in his report dated the 5th January 2010, disclaimed any responsibility for the death of Ram Kumar Pal. The SP claimed that the victim injured himself at work and an alleged criminal named Subhash Pal, who had a grudge against the police, incited a mob of 65 people to protest against the death of Ram Kumar Pal.

The NHRC having no other option in view of the autopsy report decided to investigate by its own officers. The NHRC’s Investigation Team met the police and district officials, relatives of the deceased, the co-workers who were with the deceased when the incident took place, independent witnesses who saw him being beaten by Constable Shiv Chander Mishra and Sub Inspector Gyan Prakash Tiwari, and the doctors who treated him and conducted the autopsy.

The NHRC’s findings were startling. It found that there was “serious lapse” at every level of handling of the case by the authorities to the point that this “raises the suspicion that the entire district administration colluded to cover up the culpability of the police.” The NHRC’s investigation revealed that (i) on the morning of 07 October 2009,when Ram Kumar Pal could not pay the bribe of Rs. 20/- that had been demanded, he was ruthlessly beaten by Constable Mishra and SI Tiwari; (ii) the beating by the police led to Ram Kumar Pal’s death; (iii) the treatment given by the doctors at the District Hospital, Hardoi, was inadequate as the doctors did not properly examine and treat Pal despite having severe injuries; (iv) the police investigations into the two FIRs  respectively FIR No. 1356/09against the policemen and FIR No. 1356A/09against unknown persons who attacked Semra Chowki police outpost were farcical and the FIRs were filed to willfully cover up the crimes of the accused policemen; (v) The supervisory officers, the Superintendent of Police, Hardoi and Circle Officer, Shri Rampal Singh Sengar, approved contradictory final reports in these FIRs without going into the facts and are culpable for their lapses in supervision and that (vi) despite the compelling evidence that Shri Ram Kumar Pal had died an unnatural death, the District administration did not order a Magisterial Enquiry.

On the basis of the findings of its own investigation team, the NHRC on 21 April 2011 directed the state government of Uttar Pradesh that (i) criminal case No. 1356/09 should be urgently re-investigated by the Crime Branch- Criminal Investigation Division; (ii) disciplinary action should be taken against Sub Inspector Babov Upadhyay who conducted a fraudulent investigation of Case Nos. 1356/09 and 1356A/09 and the Superintendent of Police, Hardoi and the Circle Officer, who failed to discharge their duty to supervise fair investigations of these cases, and tried to protect the guilty policemen; (iii) departmental action should be taken against Dr. Anil Kumar Srivastav and Dr. Shiv Kumar, who were negligent in the diagnosis and treatment of the deceased on his admission at District Hospital; and (iv) departmental action should be taken against the then District Magistrate for not ordering a magisterial enquiry though he was aware of the circumstances in which the victim’s death had taken place.

The Commission also issued show cause notice to the state government of Uttar Pradesh as to why compensation should not be granted to the next of kin of the deceased, who have been left nearly destitute by his death. The Commission sought the state government’s response by 19 May 2011. However, no response was received from the State Government. A final reminder dated 24.8.2011 seeking a report by 30.9.2011 also went unheeded.

On 2 November 2011, the NHRC finally recommended to the state government of Uttar Pradesh to pay a sum of Rs. 500,000 to the next of kin of the deceased, Ram Kumar Pal and submit the status of criminal case No.1356/2009 being reinvestigated by CB CID as well as the status of disciplinary proceedings initiated against delinquent public servants by 16 December 2011.