Torture prevails in Nepali custody
Ranjan Kumar Mishra, 27, a permanent resident of Siddharthanagar Municipality, Rupandehi district, was arrested on 16 April 2017. The police accused him of taking unauthorised pictures of the police. Plain-clothed policemen arrested him from Rupandehi district and took him to District Police Office (DPO). There, Mishra was verbally abused by a Deputy Superintendent of Police who called him ‘antinationalist’ and shouted foul words at him. During the detention period the police asked other detainees to beat him up. They obliged and kicked his head and slapped his ears. They even caned him. Consequently his eardrum is damaged. He was released after two days of detention.
Mishra’s story is emblematic of prevalence of torture in Nepal. There is a worrying trend of state forces resorting to meting out torture to detainees. Terai Human Rights Defenders Alliance (THRDA) in 2017 has documented 118 cases of torture after interviewing 882 detainees in different detention centres located in Tarai districts. Torture victims have complained that they were not provided with medical treatment and in most of the cases they were not produced before the court within 24 hours of their arrest. However, this data does not represent the overall scenario of the custodies as most of the times human rights defenders with THRDA were not allowed by the police authorities to meet the detainees.
The situation in the Tarai region appears to be worse than in other parts of Nepal. Many instances of torture being employed by the police are seen here. Detainees are tortured in order to obtain bribes and confessions or to obstruct the administration of justice. Sometimes, the motivation is sexual pleasure or pure frivolity.
Torture in Nepal is well documented. The United Nations Committee against Torture concluded in 2011 that “torture is being systematically practiced in the territory of Nepal… mainly in police custody”. Towards the end of the Maoist conflict, the Special Rapporteur on Torture found that torture was systematic and used to extract confessions and obtain intelligence. In the years following the conflict, human rights organisations in Nepal have extensively documented a persistent trend of the use of torture by the state security forces.
While Nepal has adopted Compensation for Torture Act, 1996 to enhance the country’s implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention in short), the compensation payments made to torture victims are very limited. The 35-day statute of limitations for filing a complaint defeats the purpose of the law. Ironically, the defence counsel for the perpetrator is the state prosecutor and the victim has to pursue the claim using his or her own resources. There are also no witness protection laws, which results in many victims being reluctant to come forward or file compensation claims because of a real fear of antagonising the perpetrator or courting revenge from the police.
In 2017 the legislature parliament of Nepal passed the long pending bills of criminal code known as Country Criminal (code) Act, 2017, Country Criminal Procedure (code) Act, 2017 and Criminal Offence (Determination of Punishment and Implementation) Act, 2017. The code has been authenticated on 16 October 2017. As per the provision of the code, it will be enforced only from 17 August 2018. Thus it will take time to experience how these provisions are implemented. However, there is significant progress in terms of criminalisation of torture and inhuman or degrading treatment which human rights defenders in Nepal have been demanding for long. A separate bill of anti-torture law is still pending in the parliament and human rights defenders have raised a strong voice to pass it.
Furthermore, there is strong political and community pressure to tackle the problem of widespread criminality in the Tarai where there has been historically little presence of the state which subjects the inhabitants to a persistent sense of vulnerability. There has, therefore, been tacit support for the use of strong-arm tactics by the police. Consequently, in several cases, human rights defenders have been unable to carry out effective investigation due to a fear of reprisals and resistance from the local community. In addition, such societal attitudes encourage impunity and continued use of torture by the state security forces.
First and foremost, the draft bill criminalising torture should be honestly implemented. Clause 22 of the Criminal Procedure Code has made provision for the examination of wounds of victims. However, it is important to note that this clause specifically mentions only ‘physical examination’. Torture leaves a huge scar on the victim’s mental condition. But there is no legal provision for mental examination in this clause.
Furthermore, the state must ratify the Optional Protocol on CAT [OPCAT] and form a National Monitoring Mechanism for all detention centres. Similarly, state should make anti-torture legal provisions fully compliant with international human rights conventions and need to enact a separate anti-torture law in compliance with international human rights standards. Likewise, National Human Rights Commission (NHRC), national human rights unit of police as well as the Attorney General and Chief Attorney General at provincial level need to carry out effective and transparent monitoring of detention centres and also collaborate with NGOs working in human rights sector. Last but not the least, Government of Nepal needs to investigate all allegations of torture and implement the decisions of NHRC as well as courts and provide justice to the victims.
Reforms should be conducted so that Nepal adheres to the following statement written by Jeremy Waldron, a New Zealand professor of law and philosophy: “Law is not brutal in its operation; law is not savage; law does not rule through abject fear and terror, or by breaking the will of those whom it confronts. If law is forceful or coercive, it gets its way by methods which respect rather than mutilate the dignity and agency of those who are its subjects.”
The writer is a freelancer.
Published on 26 June 2018
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