Horrific Brutality in Kashmir

"I will never be the same," says Sameer Khan (name changed), a student in his early twenties. Khan at his age has endured plenty. Behind his soft-spoken exterior lies a resilient interior that surfaces with time and trust. In his late teens, Khan was put through physical and psychological torture by the Indian security agencies in the disturbed region of Kashmir.

"I was thrown into a dark room and tortured. They used gun butts to break my back. While I was still in pain, a stream of blood ran through my nose and head… and when it clotted in my left eye, I went blind. An hour later, some policemen came and began to torture my private parts. This was and will be most shameful experience for me for the rest of my life. When electric shocks were given to my private parts, I felt this is the end of world and it was perhaps,” Khan revealed details after a few months.

The United Nation's Convention Against Torture states that torture cannot be "justified under any exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency”.

Last summer, non-government organizations said several youth and underage boys were picked up by the authorities for participating in street demonstrations against the killings of street protesters in the Kashmir Valley.

Regardless of their age or their role in the freedom struggle in Kashmir, detainees are isolated for days in dark dingy, unhygienic and cramped spaces. Often, under draconian and unconstitutional laws, youth and children as young as 10 are hunted down, held and then not produced in court. Human rights lawyers in Kashmir complain that the details of the detention of these cases are not recorded, giving the forces involved impunity from prosecution.

"Torture is a routine practice that has been going on in interrogation centers, police stations, and army camps throughout Kashmir since the beginning of the conflict in the early 1990s, said Shafat N Ahmad, an advocate and human rights researcher. "However, a different pattern of torture was inflicted on people especially in villages and hills."

Ahmad found during his course of research that the forces would allege that families were supporting the militancy, providing food and shelter and bedding etc, especially targeting the families whose sons had joined.

"Mothers and wives of militants were also targeted and interrogated during search operations. In many cases, parents or other relatives of militants were called to camps, tortured and pressured them to surrender their sons,” he said. "But things are better since the nineties."

Survivors report methods such as choking in water, electric shocks, leg stretching, rolling heavy objects over the body, burning by red hot irons, suspension by cord, and beating on the soles of the feet, Ahmad said. No First Information Report was lodged against the torturer and also special laws like J&K Armed Forces Special Powers Act (Section 4) authorize the arrest without warrant adds to this menace, he added.

US officials had evidence of widespread torture by Indian police and security forces and were secretly briefed about the systematic abuse of detainees in Kashmir, according to leaked diplomatic cables to WikiLeaks released last December. The dispatches revealed that US diplomats in Delhi were briefed in 2005 by the International Committee of the Red Cross (ICRC) about the use of electrocution, beatings, sexual humiliation against hundreds of detainees. Other cables show that as recently as 2007 American diplomats were concerned about widespread human rights abuses by Indian security forces, who they said relied on torture for confessions.

SM Sahai, Inspector General of the Jammu and Kashmir Police, when asked how booking juveniles and putting them in jail with adults contributes to radicalizing them, he replied, "Sending a impressionable boy to Central Jail can only bring out a more hardened criminal. But we are also stuck in a situation where we have to make a difficult choice. We tell the government what are the kinds of problems we are facing. This is definitely being taken into consideration."

On the other hand, Sahai added, "It’s unfortunate that the parents have allowed their children to step out. Kashmir has a very severe parenting problem. You can’t blame the system for everything. This is the basis of fascism. They always use impressionable youth to drive the society in a particular direction, using the fear factor, to their own disaster. It’s a conscious choice that people have to make. It’s not about juvenile homes. The best home for a child is a parents’ home. If they cannot control their children, then what can the state do?"

While the government mulls over finding better ways to deal with the situation, families of most of the 123 killed in this summer's protests reject state compensation.

Khan, who just completed his post-graduation, recalls what he underwent when the authorities finally decided to let him go. "After a month of being released, I recovered from my injuries but everything changed for me. My smile had disappeared. I lost sleep. When I was alone, strange thoughts came to my mind. It was horrible. Then people from the security agencies began to bother me. They made my life hell. I had to give minute details about myself to them every time. This, again, made me depressed.”

For Khan, things got so out of hand that he had to seek help from his cousin, a psychiatrist. In Kashmir, where sexual torture is never discussed due to social stigma, Khan was left with no choice but to confide in his family. "I had to tell my brother how they had tortured my private parts with cigarette butts, electric shocks, copper wire and how much pain I felt while urinating. He took me to a doctor and finally, I was put on medication."

"On one hand, I had to take psychiatric drugs and on other hand, I had to take antibiotics, healers, etc. I recovered after almost a year... but still I get nightmares about it almost every week,” Khan murmured. He feels that his close relationships have been affected because of the torture, "I hate pity. I just hate it when people do that," he says, as he looks away.

In the Valley, even in the 1990s, at the height of the insurgency, stories of torture were passed on from generation to generation, along with accounts of intimidation and humiliation faced by other family members who frequent police stations, military and paramilitary camps and well-known places of interrogation.

{mospagebreak}

There’s no telling when the search for their loved ones would end or if it would end. Without any proof and based on tips from other released detainees, the families cave into demands of bribes from officials, only to be disappointed later on several occasions. Even after their release, detainees are continuously harassed.

Researcher Ahmad feels that in Kashmir judiciary and human rights commissions take no notice of torture. The families of those who survived torture were more interested in seeing the victim back to the family irrespective of his condition, he explained. Torture was the element of every case of human rights abuse, be it enforced disappearance, custodial killing or detention under the draconian Public Safety Act, he added.

Torture in police custody remains a widespread and systematic practice in India, especially in states like disturbed regions such as Jammu and Kashmir, Assam, Chhattisgarh and Manipur. In a report, Suhas Chakma, Director of the Asian Center for Human Rights, which has Special Consultative Status with the United Nations Economic and Social Council, states, "The National Human Rights Commission has recorded 16,836 custodial deaths, or an average of 1,203 per year during the period 1994 to 2008; these included 2,207 deaths in police custody and 14,629 deaths in judicial custody.”

"Given well-established practices and consistent documentation of persons being tortured to death in police and prison custody, it is not unreasonable to conclude that a large number of those who died in custody were subjected to torture. The cases of torture not resulting in death are not recorded by the NHRC. Further, the Central paramilitary forces and the Indian army remain outside the purview of the NHRC under Section 19 of the Human Rights Protection Act, 1993. The actual cases of torture are in reality run into thousands," the Asian Human Rights Commission study says.

"Most of the torture cases came to my knowledge by way of petitions for the release of the persons arrested under various acts like the Public Safety Act, said Fasiha Qadri, a lawyer and human rights activist who has fought cases in Kashmir. "Even random arrests for short periods involved excessive use of torture."

During her documentation of cases for an international non-government organization, Qadri recalls, "The plight of the detainees would itself speak of the third degree torture perpetrated on them. Sometimes they would also tell us about the treatment meted out to them to their family members and lawyers."

Qadri often experienced difficulty in her documentation work as it was difficult to engage in a conversation about the experiences of torture with the victim and/or his family member.

"In my field experience, the aftershocks of torture haunted the victims even years later,” she said. "To narrate the shocking experiences made their trauma more vivid and intense."

She added that almost all the torture survivors were men, and at times were very reserved with her about narrating the full details of the torture, especially about the torture to their private parts, that has left many men incapacitated for life.

Qadri feels a majority of cases do not make it to court. "Most of the victims were unable to carry on the normal work or vocations, seriously cutting down their livelihood prospects. On the top of that, the medical bills and the treatment expenses drain the victims and their families economically. Most of the torture victims suffer from severe anxiety and depression and their life is never normal again. With such destitution and other survival priorities, victims are too pre-occupied to think of fighting a legal battle."

At times, torture victims are continuously harassed after being exonerated by courts. Danish Malik (name changed), a 23-year-old torture survivor recounts what happened after the court granted him bail. "After three months and 10 days of detention, I was produced in court and charged with helping militants with food and shelter. I secured bail and confessed like the police had asked me to because I wanted to be released and not be entangled in some other case. But they didn’t let me go for the next few days."

Malik said he was picked up by the security agencies for talking to armed insurgents in his village, "We make mistakes, we are human after all.” Softly, he added, "I told them, I only spoke to militants as they were in the vicinity. I had no connections with them. They were new people in the village, so I spoke to them. It’s only natural."

On the second day of his detention, Malik said, "They had rollers, and other implements to administer electric shocks. They hung me upside down with my hands tied at the back, naked. This main torture was done once in ten days… otherwise you can die. I was sweating. I had passed out. They told me to put my clothes back on, but I couldn’t even lift my hand."

Malik was then shifted to the lockup.

"There was a small window, which they kept shut. There was no light… only through cracks. I was only let out to wash my face every morning. Had to piss there and sleep with the rats." Malik spent three months and 14 days like this. Then he was produced in court.

Malik's troubles were far from over. The following day, the army picked him up. "They made me lie on ice naked and made me drink cold water and beat me up with sticks for two hours. I went to the doctor. I can’t sit for long or walk for long. These problems start in winter."

Malik, a student of the University of Kashmir who resides in the hostel, still suffers the social implications of his arrest and the torture.

"My friends in the village don’t want to associate with me anymore. They avoid me as I have a record. Their parents also look at me with suspicion. It’s like if a person gets scared of a snake, then even a rope will scare him. I miss my social life... my friends. Everyone has changed. Even my family doesn’t let me step out of the house, fearing I will be picked up. These days, I can’t go home. They still pick me up.”

According to the WikiLeaks cables, the ICRC staff told the US diplomats they had made 177 visits to detention centers in Jammu and Kashmir and elsewhere in India between 2002 and 2004, and had met 1,491 detainees. They had been able to interview 1,296 privately.

In 852 cases, the detainees reported ill-treatment, the ICRC said. A total of 171 described being beaten and 681 said they had been subjected to one or more of six forms of torture. These included 498 on which electricity had been used, 381 who had been suspended from the ceiling, 294 who had muscles crushed in their legs by prison personnel sitting on a bar placed across their thighs, 181 whose legs had been stretched by being "split 180 degrees", 234 tortured with water and 302 "sexual" cases, the ICRC were reported to have told the Americans.

{mospagebreak}

"Numbers add up to more than 681, as many detainees were subjected to more than one form of IT [ill-treatment]," the cable said. The ICRC said all branches of the Indian security forces used these forms of ill-treatment and torture, adding: "The abuse always takes place in the presence of officers and ... detainees were rarely militants (they are routinely killed), but persons connected to or believed to have information about the insurgency".

The cable said the situation in Kashmir was "much better" as security forces no longer roused entire villages in the middle of the night and detained inhabitants indiscriminately, and there was "more openness from medical doctors and the police." Ten years ago, the ICRC said there were some 300 detention centers, but there are now "a lot fewer". The organization had never however gained access to the "Cargo Building", the most notorious detention centre, in Srinagar. The abuse continued, they said, because "security forces need promotions," while for militants, "the insurgency has become a business".

In the same cable, American diplomats approvingly quoted media reports that India's army chief, Lieutenant-General Joginder Jaswant Singh, had "put human rights issues at the centre of an [recent] conference of army commanders."

In India, since 2000, according to the statistics submitted to the Indian Parliament by the Ministry of Home Affairs, prison custody deaths increased by 54.02 percent by 2008, while police custody deaths during the same period have increased by 19.88 percent. In fact, from 2004-2005 to 2007-2008, prison custody deaths have increased by 70.72 percent while police custody deaths during the same period have increased by 12.60 percent.

Data from the National Crime Records Bureau (NCRB) also reveals the sorry state of affairs – 1,424 prisoners died in 2006, 1,387 prisoners in 2005, 1,169 prisoners in 2004, and 1,060 prisoners in 2003, in India. Of the 1,423 prisoners who died in 2006, 80 died as a result of "unnatural” causes.

Prevention of Torture Bill

Recently, India's Prevention of Torture Bill , 2010 was introduced and passed without a debate and consultation with the stakeholders. Considering that the bill fails to comply even with the existing Indian Penal Code and the Criminal Procedure Code, necessary interventions have been recommended by human rights groups to the Indian government to ensure that the PTB complies with national and international laws.

Chakma argues that the bill blatantly violates the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment that India sought to ratify through enactment of the PTB, 2010.

The armed forces enjoy impunity under Armed Forces Special Powers Act (AFSPA), which makes it mandatory to seek prior permission of the Central government to initiate any legal proceeding. Even the National Human Rights Commission (NHRC) does not have the power to investigate the armed forces under Section 19 of the Human Rights Protection Act 1993 (as amended in 2006).

The current definition does not comply with the UN Convention Against Torture and the amended/recommended text reproduces the text of the UN Convention Against Torture.

By restricting the definition of torture to "(i) grievous hurt to any person; or (ii) danger to life, limb or health (whether mental or physical) of any Person”, the PTB excludes a number of offences recognized under the Indian Penal Code (IPC). The IPC also provides sentences for voluntarily causing hurt (Section 323), voluntarily causing hurt by dangerous weapons or means (Section 325), voluntarily causing hurt to extort property, or to constrain to an illegal act (Section 327), causing hurt by means of poison etc with an intent to commit an offence (328). However, by restricting definition of torture strictly to "grievous hurt”, the Prevention of Torture Bill, 2010 has excluded other forms of hurt recognized under Indian Penal Code.

By lessening the punishment to 10 years under the PTB, 2010 the Government of India has effectively kept the menace of custodial death out of the purview of the Prevention of Torture Bill, 2010 and grievous hurt with dangerous weapons. Under Section 5 of the PTB, 2010 "no court shall take cognizance of an offence under this Act unless the complaint is made within six months from the date on which the offence is alleged to have been committed”.

Section 6 of the PTB, 2010 states that "no court shall take cognizance of an offence punishable under this Act, alleged to have been committed by a public servant during the course of his employment, except with the previous sanction” of the government.

As thousands of youngsters are still being picked up as "preventive arrests”, to prevent unrest next summer, authorities continue to use brutal methods, flouting laws and cultivating a culture of impunity in the world’s largest democracy.