Mr. Justice A S Anand
Chairman
National Human Rights Commission
Sardar Patel Bhawan
Parliament Street
New Delhi-110001

Subject: Complaint against (1) the inhumane torture and custodial death of Mr Mohan Lal, son of Pheru Ram of Amritsar, Punjab by the Jammu Police on 2 July 2003; and (2) for development of measures for prevention of custodial deaths including the prosecution of the perpetrators of custodial death and implementation of the United Nations Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in association with the Indian Medical Association.

Dear Justice Anand,

I am writing to seek your personal intervention against the inhumane torture and custodial death of Mr Mohan Lal, son of Pheru Ram of Mahal village, Amritsar, Punjab on 2 July 2003 at District Police Lines (DPL) hospital at Jammu, Jammu and Kashmir on 2 July 2003. The 26 years old Mr Mohan Lal was a rickshaw-puller by profession and a Dalit. He was father of three children.

Mr Mohan Lal was one of the suspects rounded up by the Gangyal police in Jammu in connection with the burglaries allegedly committed by the 'Kala Kacha' gang in different parts of Jammu. The police team headed by Station House Officer (SHO), Gangyal police station and Probationary Deputy Superintendent of Police (DSP,) Abrar Choudhary picked him up from Amritsar, Punjab on 21 June 2003. In a First Information Report, Mr Pheru, father of the deceased alleged that when he met the SSP, Jammu and Mr Chaudhary with a request to release his son, they hurled abuses and threatened to hang him upside down.

The complainant alleged that six more youths from Mahal village, including Gollu, Bachan Singh, Rinku, Hira Singh and Gola were picked up from different places. Even Tara Chand, father-in-law of the deceased who was working as sweeper in Army camp (Jammu) was picked up by the DSP and his men. However, he was later released. Mr Tara Chand alleged that the DSP had threatened to hang him upside down if he spoke against the police.

Brutal torture of Mohal Lal

Mr Mohan Lal was brutally tortured by some senior police officials while in custody at Gangyal police station, Jammu. He was hit on private parts and had ruptures on several parts of his body.

The victim reported that he was facing problems in passing urine and blood was oozing out along with urine. Looking at the gravity of the situation, the victim was shifted to DPL hospital, Jammu on 1 July 2003 with grievous injuries due to torture. Although his condition continued to deteriorate, he was not shifted to General Medical College. Finally he succumbed to the injuries at DPL hospital on 2 July 2003.

Questionable post mortem

After the death of Mr Mohan Lal, the police were making all efforts to hush up the case. A post mortem into the death of Mr Mohan Lal was conducted at DPL hospital in Jammu. However, the post mortem report did not find any marks of torture. SSP Kultar Singh of the J&K police had reportedly claimed that Mr Mohan Lal had died of pneumonia!

The body of Mr Mohan Lal was sent to his village. As the villagers protested, the district Magistrate of Amritsar, ordered re-examination (post-mortem) of the body on 4 July 2003.

The three-member medical board comprising of Dr Ashok, Dr Manpreet Kaur and Dr Kirpal Singh reportedly found as many as 36 marks of electric shocks, bruises and torture marks on different parts of the body of Mr Mohan Lal, which had caused the death.

The Punjab Police subsequently booked the DSP, Mr Chaudhary and 13 others under Sections 302 and 344 of the Indian Penal Code.

The fact that the post-mortem conducted at Jammu did not show any mark on the dead body of Mohan Lal raises question about medical ethics of the doctors despite the guidelines issued by the National Human Rights Commission on the issue.

Principle 4 of the United Nations Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Adopted by General Assembly resolution 37/194of 18 December 1982) provides that "it is a contravention of medical ethics for health personnel, particularly physicians:

(a) To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments;

(b) To certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, or to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant international instruments."

By certifying that Mr Mohan Lal did not die of torture, the doctors in Jammu have violated all the principles and medical ethics.

Impunity for custodial death and the role of NHRC

In its 1999-2000 Annual Report, NHRC states, "It is often asked, . . . whether the decisions and recommendations of the Commission are, in fact, acted upon by those to whom they are addressed. An answer can, illustratively be provided by referring to the 176 cases in which the Commission has, over the past five years, specifically directed in payment of interim compensation of an amount totaling Rs 1,33,84,500/-. In all but one case, the concerned authorities complied with the Commissions directions, sometimes after questioning them or seeking clarifications."

The question is how many police officials have so far been prosecuted out of 176 cases as of today?

The United Nations Working Group on Enforced or Involuntary Disappearances stated that perhaps the single most important factor contributing to the phenomenon of disappearances is that of impunity. Perpetrators of human rights violations, whether civilian or military become all the more irresponsible if they are not held to account before a court of law. The Working Group further urged that impunity could also induce victims of those practices to resort to a form of self-help and take the law into their own hands, which in turn exacerbates the spiral of violence.

By failing to ensure that the perpetrators of torture are actually prosecuted, both the government of India and various quasi-judicial bodies including the NHRC effectively condone the practice of torture and contribute to increasing custodial death. The inability to prosecute leads the perpetrators to believe that they are beyond the reach of the law. In any event, it is the State which pays the compensation. There, it is not only in internal armed conflict situations such as Jammu and Kahsmir, North East India or Telangana region of Andhra Pradesh but across India, police continue to enjoy impunity. Unless the law of the land is upheld against the guilty law enforcement personnel, custodial death cases will continue to rise.

At present, NHRC intervenes only after the custodial death has taken place. Whether it is the requirement of the District Collectors to report to the NHRC of any custodial death within 24 hours of the incident, other suo moto actions by the NHRC or filing of complaints by victims, relatives or civil society groups, NHRC's intervention takes place after the custodial death had already taken place.

The NHRC needs to go beyond interventions after the custodial death has taken place and awarding of compensation.

While it is the NHRC that is in the ideal position to assess the effectiveness of its fast track system of dealing with custodial death complaints, NHRC should consider moving towards prevention of custodial death. The NHRC may consider to take following measures, inter alia, (1) establishing accountability for custodial deaths through prosecution of the guilty personnel; (2) ensuring that compensation for custodial deaths are not paid by the tax payers i.e. the State but the individual police personnel responsible for custodial death; (3) developing measures with Indian Medical Association for full implementation of the United Nations Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (4) development of authorised teams of NHRC for surprise visits to police stations/lock up/chowkies/outposts; and (5) wide public campaigning in all the police stations/lock ups/chowkies/outposts to clearly state that it is the individual police personnel who will be held responsible for custodial death whether in terms of prosecution or paying of compensation for any custodial death.

NHRC must intervene with the courts under Section 12(b) of the Human Rights Protection Act, 1993 for prosecution of the culprits responsible for custodial deaths. While the NHRC may not intervene in all cases of custodial deaths, it must intervene with the courts or file petitions with the courts in the cases, which have adequate evidence that can stand judicial scrutiny for prosecution of the culprits responsible for custodial deaths.

I shall be grateful if your honour could kindly take up the custodial death of Mr Mohan Lal as a test case for development for development of measures for prevention of custodial deaths by taking the following measures:

-         Order an inquiry by the investigation wing of the NHRC to enable the NHRC to intervene with the court under section 12(b) of the Human Rights Protection Act of 1993 for prosecution of the culprits responsible for the custodial death of Mr Mohal Lal;

-         Direct the State government of Jammu and Kashmir to suspend all the police personnel who have been charged by the Punjab Police for the custodial death of Mohan Lal, with immediate effect;

-         Direct the State government of Jammu and Kashmir to pay an interim compensation of Rs 500,000 (five lakhs) to the family of Mr Mohan Lal within six weeks from the issue of notice by the NHRC and that the same be recovered from the guilty police personnel;

-         Direct the Indian Medical Association to conduct an inquiry into the violation of medical ethics during the conduct of postmortem of Mr Mohan Lal and take appropriate actions against the guilty doctors including cancellation of the registration certificates;

-         Develop appropriate programmes with the Indian Medical Association for elaboration and promotion of the United Nations Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Adopted by General Assembly resolution 37/194of 18 December 1982);

-         Establish a legal cell within the NHRC for prosecution of the culprits responsible for custodial death;

-         Direct the Government of India to ratify the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; and

-         Take any other measures that the NHRC deems fit.

With kind regards,

Yours sincerely

 

Suhas Chakma
Director