This article is written by Harita Mehta, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.
Table of Contents
Introduction
In today’s times, discussing human rights feels excellent as long as we foreground how we can secure what needs the most protection: our lives and our dignity. Tolerating that we experience in daily life where most human rights get disregarded is a harsh pill to swallow, yet considerably more troublesome it is for us to deal with the thought that examples exist to these human rights violations. Impunity is understood as a systematic exemption from punishment and denial of redress works as a double betrayal of our sense of justice: a violation has occurred, which is not yet rectified.
In the politically charged environment of human rights talk in India, the affirmation that wrongs have been committed and needs to be remedied is hard to come by. Generally, proof on human rights misuse is barely revealed in the mainstream media. The gravest form of human rights violations found to have happened includes people vanishing, getting sexually assaulted, getting tormented in hands of the authorities. When inquired about these things these assaults are either classified as “deviations” or approved in light of a legitimate concern for “more noteworthy causes.”
Hence in an attempt to understand this similar aspect, this article will discuss the landscapes of fear by understanding the meaning of impunity in detail.
Meaning of impunity
In human rights circles, impunity means the “freedom of state or non-state actors to inflict harm, loss, and violation without fear of consequence. The UN Commission for Human Rights (2005) puts it, the “impossibility, de jure or de facto, of bringing the perpetrators of violations to account and rendering them answerable.” To any such inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to make reparations to their victim.” Definitions set the stage for reflection and action, but the listing and linking of keywords hardly informs an organic understanding of the broader concept. Impunity is not just a legal term; it works at multiple, mutually reinforcing levels.
The uncompromising narratives by the state and non-state forces produce a state of impunity. Both not only can inflict violence, but they also project brutality, justifying their course of action. The rule comes down with a heavy hand on those who challenge its legitimacy to protect “national security.” On the other hand, non-state forces justify violence to obtain their “inalienable” right to self-determination. With both protagonists following the same logic but striving in opposite directions, the conflict inevitably looks like a fight to the finish. But for some reason, this has not quite happened. Instead, over the last two decades, a strange politics of violence has emerged, making the armed conflict murky and complicated. The contestation has not only become multi-cornered but takes different shapes, not to mention a violent form. Even the violation of human rights has become more complex.
Regional pattern of impunity
The root causes of conflict vary from region to region. So do the manifestations of violence; hence it is important to understand the various types of abuse carried out against human life by the authorities in the name of state impunity.
Constant surge in custodial death numbers – need for reforms
The advent of Custodial death and torture has peaked in its crisis, as reported by the National Campaign Against Torture, which states that 1,731 persons died in custody in the year 2019 alone, estimating five deaths every day of the year. These constituted 1,606 deaths in judicial custody and 117 deaths in police custody in total. The police’s maltreatment of law and 1 authority is certifiably not a challenging subject as police are regularly expected to utilize violence to counter crimes. There is an egregious presumption that police officers are bound to use counter-violence to incapacitate lawbreakers to keep them from further hurting innocent residents. This assumption has prompted a rotting of the set of principles among officials driving numerous to submit rotting decay of the code of conduct among officers leading many to commit terrible breaches of such authority to assert their dominance over the public.
There is a rising need to bring in reforms in this aspect by introducing a check and balance system that ensures there is no abuse of power.
Inflicting torture/ grievous harm – a good form of reform
In India, torture remains an entrenched and often routine law- enforcement strategy, despite India’s status as the world’s largest democracy. In the name of investigating crimes, extracting confessions, and punishing perpetrators, torture is inflicted upon the accused and bona fide petitioners, complainants, informants, and innocent bystanders. Frequent police practices include assault, physical abuse, custodial death, rape, threats, psychological humiliation, and deprivation of food, water, sleep, and medical attention. Torture is also inflicted on women and girls in the form of custodial rape, molestation, and other forms of sexual harassment.
The National Project on Preventing Torture in India (NPPTI’s) NPPTI ’s fact-finding data suggest that 1.8 million people fall victim to police torture each year in India. Many victims fear further prosecution or retribution, and so suffer in silence.
Challenges in proving sexual violence
Impunity suffered on the ground by women and men who survive sexual violence and their families who continue to struggle for justice in the unfortunate event of the victims’ dying. There is a blurring of the acknowledgment of sexual violence within the perpetration of torture wherein other aspects of pain obscure it. Notably, these cases of sexual violence and torture were perpetrated as part of the interrogation of suspect’s families. Still, because they were not the first acts of violation, they seem to lie buried in the narratives generally collected. In the Mathura Rape case, the Supreme Court’s denied the charge of custodial rape by a policeman because there were no marks to suggest that the woman was raped because there were no visible marks of resistance. Thus, they are making it clear that the men and women who refer to sexual violence as part of torture and interrogation of suspects would fall into this clichéd category of the police and the courts.
Understanding the networks of complexity
Most state terror victims do not visualize their perpetrators as abstract representatives of institutions meant to protect law and order. Instead, those who survived the arbitrary power over them remember the faces and persons of the people who were responsible for it. The familiarity between victim and perpetrator, between powerless and powerful, friend and foe, appears fleetingly in detailed discussion on impunity. Where litigation is involved, familiarity is either highlighted or underplayed by the parties involved in the case. In any case, the outcomes of such cases are almost always predetermined by legal jurisprudence. However, when there is no possibility of institutional redress, or when familiarity is used as an instrument to further a state policy, the outcomes are both tragic and uncanny. When governments decide on a course of action, especially on matters related to combating insurgency, its considerations favor using local knowledge to reshape political conditions. Hence, there is still an accelerated output of experience in the form of books, articles, and broadcasted debates-about a particular place that has been corralled by the government.
What are the minimum interrogation standards
Interrogation is questioned by a public official where there is suspicion that a person is involved in an offense. When such interrogations in carried on then some specific points have to be borne in mind by the police:
1) The State must not inflict any sort of harm on the person, taken for interrogation.
2) Interrogation should never take place at secret interrogation centers. If a person is detained for interrogation, relatives, or a third person of the person’s choice should be informed.
3) There should never be a threat of the removal of necessities such as hygiene provisions, food, exercise, rest, sleep, in exchange for information or cooperation.
4) A person under 18 years of age, suspected of involvement in any offense, should not be questioned without an adult of their choice.
5) Before any interrogation commences, the interrogated person should be informed (in a manner that is understandable to him or her) for the interrogation and any charges against him or her.
6) In case of issues with a person’s understanding of his or her rights or interrogation process or questions asked, an interpreter should be provided.
7) A person should be told of his or her right and not be compelled to testify against himself or herself or confess guilt.
8) Officials must facilitate contact with a lawyer of choice, for example, by providing a list of available lawyers, access to a telephone, and reasonable conditions of privacy for any consultation.
9) Interrogation should begin with the identification of all persons present and the recording of their names and any official position held and the place of interrogation.
10) Person should be given the right to undergo a medical examination by a competent and impartial medical practitioner to provide a point of reference for their condition before the commencement of any interrogation.
Conclusion
The violence of contestation has reached a point where it shows a state of multiple contestations and the intermingling of forces that may have very little in common. The crisis is about the faceless presence of violent forces. In most cases, the perpetrator of violence is unknown, but even if the perpetrators are identified, they carry multiple identities and play different roles. There is no clear distinction between friend and foe, no clarity about who to align with and who to fight.
There are multiple state forces—the military, the paramilitary and the police, each functioning within their hierarchy but operations being conducted under one unified command.
Is there a way out of the crisis? How can impunity be stopped? Can ordinary people shake themselves free of their state of indifference? The questions are many and varied. A two-track solution might work:
(a) legal intervention, and (b) bringing morality back into politics.
While the former demands specific changes in legislation and administrative procedures, the latter requires a difference in a political culture shaped by moral principles.
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