'Disappearance XIV' by Pushpakanthan Pakkiyarajah. Courtesy of the artist.
'Disappearance XIV' by Pushpakanthan Pakkiyarajah. Courtesy of the artist.

The anatomy of a torture complaint

Police brutality in India’s model state.
I waited nervously in the corridors of the district court complex in Thrissur, Kerala, along with Krishnan and his wife, Omana. Omana dabbed her face with a thin handkerchief, crying softly – my nervousness was surely a pale proxy for their grief. It was a hot afternoon in late 2017 and we were waiting for their case to be called by the Kerala State Police Complaints Authority (KSPCA), where I was assisting the lawyers in a case regarding the custodial killing and torture of the Dalit couple's son. Over the next few months, I would accompany them to the Kerala State Human Rights Commission (KSHRC), watching them continue to hope for closure, or perhaps even justice. With this hope, they would look to five different state authorities: statutory, judicial and quasi-judicial.
In July 2017, Vinayakan, their 19-year-old son died by suicide in their home in Engandiyur, Thrissur. Vinayakan had been stopped and questioned by a police officer in plain clothes earlier that month. He was on a motorbike with his friend Sarath, when they stopped on the side of the road to speak to Vinayakan's female friend. They were still chatting when a police officer emerged to question them. Soon, Vinayakan and Sarath were asked to accompany the police officer to the Pavaratty police station for more 'questioning'.

Lately, Kerala has also been lauded for all the good work of the state administration in preventing and combating COVID-19; the 'Kerala model' of development has been widely covered by national and international press. But this progressive front belies deep social and cultural prejudice.

Scared, they went along. At the station, they were accused of being involved in recent 'chain-snatching' (necklace theft) incidents in the area, an accusation they denied. Thus began the horrific ordeal that was to follow.
At the police station, they were interrogated and then tortured – they were verbally abused and beaten, and Vinayakan's hair was pulled. The police officials repeatedly asked the boys to confess to the chain-snatching and confiscated their mobile phones. Then they shamed Vinayakan for his hairstyle, his earrings and his friendship with the girl he was speaking to. The cops expressed disgust at Vinayakan's long, coloured hair, a shame that the district's police officers in 2016 also tried to impose on Oorali Martin, a musician from the popular alternative rock band Oorali known for its protest-folk music. The police verbally abused Martin, pulled his hair, ridiculed his appearance, and, in his words, "exhibited him" to passers-by as if he were a criminal. Reports suggest that the police officers picked him up as part of a general investigation into drug-related offences, as they tended to associate Martin's appearance with criminality.
"In this land, people cannot walk the street,
is what they said, is what the law says."In this land, people cannot walk the street,
In this land, the head on your hair must not grow long,
is what they said, is what the law says.
In this land, you cannot keep your face like this,
is what they said, is what the law says."
Musician Oorali singing outside the Thrissur West police station where he was allegedly tortured by cops – March 2016, Thrissur, Kerala (Translated from Malayalam).
When Vinayakan and Sarath repeatedly refused to accept blame for the crime, the police officers continued to torture them by stomping on their feet and toes with their boots, pinching Vinayakan's nipples and genitals and beating him on the head. Vinayakan's father was summoned to the station, asked to bring a fine of INR 2500 and later ordered to get Vinayakan's hair chopped at a barber shop close by. These 'official orders' were followed by the demand that he be brought back to the station the next week. In parallel, a fine was imposed for missing documents on the motorbike.
The next day, Vinayakan's lifeless body was found at his house by his parents. The post-mortem report confirmed torture – five suspicious injuries on his body, scars on his lower abdomen, forehead and nipple, and abdomen scars caused possibly by 'boots or wooden splinter[s]', according to news reports.
At the time, cases were filed against the two police officers under Indian Penal Code (IPC) Sections 341 (wrongful restraint), 323 (voluntarily causing hurt) and 324 (voluntarily causing hurt by dangerous weapons or means). These were read with Section 34 of the IPC (making each person committing the act liable for it as if it were done by them alone) as well as under Section 3(2)(va) of the Scheduled Caste and Scheduled Tribes (SC/ST) (Prevention of Atrocities) Act, 1989. These sections often apply to relatively less serious crimes with smaller penalties (by contrast, a case for abetment to suicide was not registered).
The myth of the Kerala model
Kerala boasts the highest literacy rates in India, matrilineal family structures, low poverty rates and good education systems. Lately, Kerala has also been lauded for all the good work of the state administration in preventing and combating COVID-19; the 'Kerala model' of development has been widely covered by national and international press. But this progressive front belies deep social and cultural prejudice.
To the untrained eye and ear, Kerala is a beautiful paradise with socialist schemes and a commitment to equality and the upliftment of the downtrodden. But sadly, those who are 'different' in Kerala stick out like sore thumbs and can be ridiculed or shamed. Those with distinctive self-expression are subjected to stares and comments in public – they are too 'Western', too 'mod', too 'forward' – and often experience violence. As a marunaadan Malayalee (which refers to Malayalees who are not living in Kerala) I have frequently been subject to judgmental stares from men, women and children, silently and sometimes not so silently condemning my accent, hairstyle, nose ring or attire. In court, my lack of dupatta (a stole that covers the breasts) was a subject of much concern for the male office clerk.

The PCAs are supposed to be independent, to enable victims and their families to file complaints of police misconduct and violence, without fear of reprisal or bias. In reality, many of the PCAs include serving police officers and lack a process of appeal.

It is not surprising then to witness many of these underlying social and cultural biases percolating into our justice system. It is frightening to see how the police, flawed beings like any of us, act out their biases, under the guise of law and order maintenance, and the protection of the law. When I speak to the state's wealthy or upper-caste people about my work, who themselves rarely have negative brushes with the police, they always appear shocked at the frequency of police brutality and its motivations (often the most innocuous of reasons).
Since India's COVID-19 lockdown was announced on 24 March 2020, several incidents of police brutality have been reported in response to lockdown 'violations'. This brutality disproportionately targeted those from vulnerable groups – from vegetable sellers to migrant workers. Prior to the lockdown, people protesting the Citizenship Amendment Act (CAA) were frequently subject to police violence, with young protestors often being vilified as 'anti-national' by the pro-CAA camp.
"We walk the same paths you and I, we walk the same Earth," said Martin Oorali during his protests, referring to the cops. But do we?
Police reforms
India, like many of its Southasian neighbours, has had a clumsy history of police reforms. In 1996, two retired Director Generals of Police (DGP) Prakash Singh and NK Singh filed a Public Interest Litigation (PIL) in the Supreme Court of India asking for directions related to the implementation of police reforms. The PIL relied on recommendations of the National Police Commission set up in the late 1970s to study the issue.

Police torture is usually "a day-to-day occurrence affecting the 'poorest of the poor'."

In 2006, the Supreme Court of India finally passed its judgment, considered landmark in many ways. Most significantly, it mandated the setting up of Police Complaints Authorities (PCAs), independent oversight bodies at the state and district levels across the country. However, compliance is poor across states. Kerala is considered to have made the biggest strides in implementing the directive, with the authorities having been set up and being functional at both state and district levels. Many states do not even have a PCA.
The PCAs are supposed to be independent, to enable victims and their families to file complaints of police misconduct and violence, without fear of reprisal or bias. In reality, many of the PCAs include serving police officers and lack a process of appeal. The PCAs are rooted in the legal provisions of State Police Acts, and so the provisions and powers related to them differ widely from state to state. Many states have interpreted the guidelines of the 2006 judgment differently as well, and a lot rests on how or whether torture is defined in the state police acts, as India's criminal law still does not list torture as a criminal offense.
While I waited with Vinayakan's family for their case to be called before the Kerala State PCA, I caught a glimpse of two men, also waiting. My colleague informed me that they were the two accused police officers in Vinayakan's case. They were suspended then, but were reinstated soon after. I felt a surge of emotion; if I were a member of Vinayakan's family, I don't know if I would have been able to stand so close to them, let alone see them every time there was a hearing.
Torture at the intersections
Custodial torture is an act of violence across many axes of marginalisation – caste, class, gender, occupation, appearance, colour, statehood and nationality, whatever your status of personhood might be in the cop's eyes. Police torture is usually "a day-to-day occurrence affecting the 'poorest of the poor'." This is stated in a 2008 People's Watch report, based on the findings of People's Tribunals on Torture (PTT) that the Madurai-based human-rights organisation conducted in nine states across the country, based on first-hand accounts of torture victims and their families. In Kerala, all the torture survivors who appeared before the PTT were from low-income and marginalised backgrounds, and many did not know why they were arrested. Much like in Vinayakan's case, many were detained for several hours with no cases registered against them.
In India, the many forums available for people who wish to file complaints of police violence and excesses are insufficient and usually ineffective in achieving justice. This is especially true for torture survivors, or as in the case of Vinayakan, families of torture victims, in part because torture is not yet a specific criminal offence on the books. Additionally, when a criminal complaint is filed against a police officer, the ones investigating the complaints are serving police officers, and thus peers, subordinates or even seniors. This creates a serious conflict of interest, with very low chances of an independent investigation being conducted.
Different aspects of Vinayakan's case have been presented as complaints before different authorities: corruption, caste prejudice and violations of human rights.

In 2018, there were 70 custodial deaths reported from across India as per National Crime Records Bureau (NCRB) data.

A complaint was filed by Vinayakan's father, Krishnan, before Kerala's Lokayukta, the anti-corruption ombudsman for the state. The complaint was against the investigating officer (IO), alleging that he was trying to cover up the incident to "save" the accused officers from charges of abetment to suicide. Authorities reported before the Lokayukta that the investigation was underway and that they were ready to submit a charge sheet before the concerned authorities. On that submission, the ombudsman disposed of the matter. Later, a charge sheet was filed against two of the accused cops under the provisions of the 1989 SC/ST Prevention of Atrocities Act.
The National Commission for Scheduled Castes (NCSC) had also taken up the case suo moto, although it is unclear what its status is. Activists alleged that Vinayakan was targeted because he was a Dalit. A complaint was also filed before the Kerala State Human Rights Commission (KSHRC), where the case was closed without any notice being issued, with the commission stating that the case was already being taken up before another authority.
It is not unusual for complaints before State Human Rights Commissions and the National Human Rights Commission to come to nought, as they have frequently been considered toothless bodies. This is especially so in cases of torture and violence by state officials.
That this case progressed through the justice system at all was likely due to the tremendous media attention surrounding the case. Vinayakan's family also received some compensation from the SC/ST Welfare Fund. Not many cases get this far.
In 2018, there were 70 custodial deaths reported from across India as per National Crime Records Bureau (NCRB) data. The reasons for the deaths included illness, injuries sustained prior to custody, and injuries sustained in police custody due to "physical assault by police" (3 cases were registered in this last category). The 2018 data also shows 89 cases registered against police personnel for human-rights violations, of which 3 were for torture or causing hurt or injury. As of June 2020, there are 347 cases of police custodial deaths pending before the National Human Rights Commission. Meanwhile, Vinayakan's torture case is pending before the KSPCA. Even if successful there, the only available remedy would be directions to the police to open an investigation. This outcome would, of course, bring the investigation back into the hands of the police. The well-established legal principle, nemo judex in causa sua ("no one should be a judge in his own case"), is unfortunately absent here.
Support for navigating the system and following up on the cases has dwindled. Vinayakan's father, who works at the harbour, loading and unloading fish, tells me that he hopes the Crime Branch investigation will proceed. He also spoke to me about the huge attention the case garnered at first – but that now, there was no one to help. T K Naveenachandran, the founder and secretary of the Thrissur-based organisation Nervazhi, which has helped many torture victims with their cases, told me in June 2020 that he is not very hopeful that Vinayakan's case will see justice.
A Subcontinental plague
India is not alone in its poor record of ensuring justice for torture victims. Impunity for torture and the institutionalisation of the use of torture as a tool of investigation and enquiry is widespread across Southasia, and indeed across the world where institutional oversight and rule of law are weak. A remnant of our violent colonial past, torture continues to be used as a means to control, punish and keep people subordinate.
Unlike India, some Southasian countries like Sri Lanka, Afghanistan, Bangladesh and Nepal have all ratified the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). Ratification is an important step, ostensibly legally binding the countries to the provisions of the convention – such as ensuring acts of torture are offences under its criminal law. However, international legal mechanisms are considered 'soft law' instruments, and they cannot replace robust systems of independent investigation and prosecution for torture and custodial violence.

With police brutality resulting in the deaths of George Floyd in the United States and that of Jayaraj and his son Bennicks recently at Sattankulam in Tamil Nadu, conversations on defunding the police have begun.

The higher up the ladder an officer is, the harder it is to ensure prosecution. Across the Subcontinent, judicial delay and backlog is a major impediment for securing justice in torture cases, which, if admitted, can take several years to reach the stage of trial and prosecution. The toll on the victim or their families is tremendous, and includes an ever-present fear of reprisals from the accused officers. Such delays and potential reprisals also impact witness testimony, considerably weakening the case as the years go by.
Justice for torture victims is also impeded by the absence of reliable data on torture cases. Torture in police custody (as well as in in prisons, juvenile homes and de-addiction centers) is severely underreported and inconsistently documented. Several human-rights organisations document cases of torture across Southasia, often at great personal risk. It would be safe to assume that the actual number of torture cases is much higher than what is reported in any country in the region.
Vinayakan's case demonstrates the urgent need for a genuinely independent and impartial authority to investigate complaints against the police. While countries like the United Kingdom and Denmark have been able to make some strides in this direction, Southasia has seen less progress. With police brutality resulting in the deaths of George Floyd in the United States and that of Jayaraj and his son Bennicks recently at Sattankulam in Tamil Nadu, conversations on defunding the police have begun. These activists contend that reform is impossible: for the police are products of, and sustained by flawed and unequal power structures. Perhaps they are right.
***
Vinayakan's mother, Omana died in July last year, around two years after her son's suicide. Vinayakan's father believes she died of heartbreak, depressed about her son's death and the low chances of securing justice. During India's Emergency, a young student named P Rajan was brutally tortured and killed in custody. Although the incident occurred over four decades ago and Rajan's father went to great lengths to unearth the truth, Rajan's body was never found.
Nearly three years later – like so many others before him – Vinayakan's father continues to wait.
***
(Note: This article has been revised to correct an error. Updated on 1 July 2020)
Loading content, please wait...
Himal Southasian
www.himalmag.com