On the 19th of March, a young schoolteacher named Rizwan Asad Pandith died in police custody. The disturbing aspect about his death is that it might have been caused due to torture as he was taken by the police to CARGO, SOG camp and once an infamous torture center. To even think of what happens to someone in a torture centre shocks human imagination. The incident represents a dangerous moment for all the young men in Kashmir and raises questions about the abuse of power by police. Why was he arrested in the first place? What were the grounds for his arrest? Was the police justified enough to arrest him? The magisterial inquiry ordered into the case should address all such questions.
Criminal Justice System-
Non-compliance with the criminal justice system is an attribute of a failed state. It often leads to the denial of political freedoms, civil rights, and collective safety. The Constitution of India recognizes the rights of an arrested person under the ‘Fundamental Rights’ chapter which applies to the State of Jammu and Kashmir. Similarly, the J&K Criminal Procedure Code recognizes the rights of an arrested person under different heads, including her prompt production before a Magistrate to make sure that the judicial authority has the final say in deciding whether the arrest of the person is justified. An arrest is not made because it is lawful, the police officer must be able to justify the arrest. The existence of such power is one thing, the justification another. This was laid down in Joginder Kumar(1994). Reports seem to suggest that the bail order in his favor had not been complied with. These questions should be the priority of the magisterial inquiry so that the curse of having a dominant executive in Jammu and Kashmir is recognized.
Torture- A study –
Torture, once a way of life in Kashmir, continues to be practiced with impunity and design in some parts. In a study on the subject conducted last year via a project by Kaiser Iqbal, an LL.M. scholar at Law Department, Central University of Kashmir, he found that fifty percent of the victims were between the age group of 15-25 years and more than thirty-five percent fell in the age group of 25-35 years. About forty percent of the victims were students and fifteen percent were teachers. The methods that were employed included beating with whips and gun butts (83
percent), use of roller over the body (80 percent), beating after being hung upside down(60 percent), electric shocks(40 percent), including plucking of nails and water cure using cement water. More than 90 percent of the victims had bone fractures all over the body, particularly in legs, and faced partial disabilities and had hearing impairments and sexual issues as well. Many hesitated while talking about the sexual problems they had developed. More than 60 percent of the victims said that they were not allowed to meet their families and their families were not informed about their arrest. It is pertinent to mention that these rights of an arrested person are recognized under J&K CrPC. Almost 90% percent of the victims were not given the treatment they required. It’s another flaw of the J &K CrPC. There are no express provisions to provide compensation to such victims. 60% of his victims said that they did not approach any court or rights body. None of the victims received any help from NGOs. Almost all of them live under constant fear and face issues of mental health.
The UN General Assembly adopted the Convention against Torture on December 10, 1984. India signed the Convention but did not ratify it. The Indian state has no domestic legislation to that effect amid rising cases of custodial torture and deaths. The Supreme Court has on multiple occasions called for legislations on such laws of international stature and has expressed its inability to make any reform without domestic laws in place. It is high time that the Indian state ratifies the Convention against Torture (1984) so that unseen victims of violence come to be recognized and such violations of human rights are addressed.
The judiciary has often decided on the life and liberty of citizens. The right to treatment with dignity (Sunil Batra(1980)) and protection from custodial violence(Sheela Barse(1983)) have already been made the part of the right to life under Article 21 by the Supreme Court. D.K.Basu(1997), a case par excellence, laid down The ‘Eleven Commandments’ asking the police to be extraordinarily careful while arresting a person. The reason why there are inconsistencies is that such procedure often remains in the books and executive continues to hoodwink lower judiciary in a state like Jammu and Kashmir. Ironically, the custodial violence continues and the recent custodial death of Rizwan is an indication enough as to why the Honorable High Court of Jammu and Kashmir needs to intervene so that people do not become targets of state violence. The Court has a public duty to protect the civil and political rights of all the citizens as the legislature has not been able to do so in an effective way.