A disturbing trend, noticed in most of the cases examined by us, was the failure of the police to follow the safeguards against arbitrary arrests and ill-treatment of those arrested. Guiding principles laid down in the DK Basu's case by the Supreme Court were thrown over board. Not even in one case, the person detained was told about the reason for his arrest nor the person interested in his welfare informed about the place of detention. In a number of instances, the police officials were in mufti and without proper identification, Arrest memo to show the physical condition of the person at the time of the detention were rarely prepared. In flagrant violation of the rules laid down in the Joginder Kumar case, arrests were done in a routine manner and not for valid reason recorded in writing.
There are cases of torture before us from Uttar Pradesh where police officers have used caste abuse in police station as part of practices of torture. These experiences come within the meaning of "atrocity" under Section 3 of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989 which also calls for the immediate registering of cases under the abovementioned special legislation. All the survivors who appeared before the jury belonged to extremely poor and marginalized sections and in most instances they did not know why they had been arrested, nor were they informed of the same. In several instances, cases had also not been registered, but persons were detained for hours and days in police stations where they were tortured.
The importance of overcoming impunity has been emphasized in repeated UN resolutions stressing that "those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished". The main actions which the authorities must take to overcome impunity are the prohibition of torture in law; ensuring that all complaints and reports of torture are investigated effectively; bringing those responsible to justice; and affording reparation to victims. All these measures are obligations under the Convention against Torture. In accordance with other international treaties and under general international law, they should be considered obligatory for all states.
When state officials are responsible for torture or ill-treatment, the state must be ready to provide reparation to the victims. Victims should be treated at all times with respect, and reparations should take into account their needs and wishes as far as possible. The UN Special Rapporteur on the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms has prepared a draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (draft Basic Principles on Reparation). This draft instrument distinguishes five forms of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
In practice, it is usually very hard for victims of torture or ill-treatment to obtain compensation. The authorities will not want to admit, even implicitly, that their agents were guilty of serious crimes; they may also be reluctant to spend the money. Victims suffer harassment, intimidation and reprisals if they pursue their claims. They may be offered ex gratia payments without any admission of wrong-doing, or compensation on condition that they drop any attempt to press criminal charges.
Where the state has been responsible for torture or ill-treatment, the authorities should ensure that victims so desiring are afforded medical care and rehabilitation, in accordance with Article 14 of the Convention against Torture and Article 11 of the Declaration against Torture. The authorities should ensure that the necessary facilities can be provided and should be ready to pay for the treatment.
NHRC mandated to promote and protect human rights in this country, as such has got an important role to play to bringing desirable changes in our rights scenario, with its regular intervention in different areas of concern. Because NHRC has been not able to play any meaningful role, the high hopes and expectations of the people suffering and facing different forms of violations is belied. The Commission is eager to get large number of complaints for the purpose of showing high statistical data of cases dealt with them. Most of the cases are being referred to the same person or that set up against whom the allegation of violation have been levelled. The late registration of the cases and routine replies have been have been unnecessarily delaying the efficient administration of justice.
Since a large amount of public resources has been spent on the NHRC, it is high time to call for a social auditing of the NHRC to make them accountable to the public-interest for which they represent.
The jury would like to stress the vital importance and urgency for the Government of India to ratify all relevant treaties regarding torture, including the ICCPR, its First Optional Protocol, the CAT and the Optional Protocol to the Convention Against Torture (OPCAT).
