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The Ferreira Case: All That Is Wrong with Torture and Narcoanalysis

The case of Arun Ferreria, a Mumbai-based social activist who was arrested on 8 May 2007 on allegations of being communications and propaganda head for the Naxalites, is a textbook example of everything that is wrong with India's criminal justice system. Against the backdrop of the recent Supreme Court judgment prohibiting the use of narcoanalysis, this article calls upon the governments of India and Maharashtra to investigate Ferreira's claims of torture and cruel, inhuman and degrading treatment in jail.

COMMENTARY

The Ferreira Case: All That Is Wrong with Torture and Narcoanalysis

SAHRDC

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common in such cases, swallowed the police’s claims.1

Torture and Denial

The government has yet to put forward sufficient evidence supporting the police claims. Ferreira had never been involved in or suspected of being involved in any criminal activities. Indeed, according to

The case of Arun Ferreria, a Mumbai-based social activist who was arrested on 8 May 2007 on allegations of being communications and propaganda head for the Naxalites, is a textbook example of everything that is wrong with India’s criminal justice system. Against the backdrop of the recent Supreme Court judgment prohibiting the use of narcoanalysis, this article calls upon the governments of India and Maharashtra to investigate Ferreira’s claims of torture and cruel, inhuman and degrading treatment in jail.

SAHRDC is South Asia Human Rights Documentation Centre, New Delhi.

T
he recent Supreme Court judgment prohibiting the use of narcoanalysis, brain mapping and polygraph tests could not be more timely. The problems with such tests were evident in a number of cases, including in the case of Arun Ferreira which is discussed here.

Ferreira’s case is a textbook example of everything that is wrong with India’s criminal justice system. Not only was the 39-year-old Mumbai resident forced to undergo the tests now banned by the Supreme Court, but he was also subjected to torture in custody and was denied due process – both endemic problems that need to be urgently addressed.

Ferreira was arrested along with three others in Nagpur on 8 May 2007 on allegations of being a communications and propaganda head for Naxalites. Ferreira was charged with violating various sections of the Indian Penal Code, the Arms Act, the Unlawful Activities (Prevention) Act, the Indian Railways Act, the Bombay Police Act and Loss of Public Property Act in eight separate cases filed against him. The police said Ferreira was allegedly carrying a “pen drive” containing information that was evidence of “anti-national” activities. The media, shorn of all objectivity and reason, as is increasingly

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informed sources neither his name nor description was in any of the police intelligence files or in any Naxal-related crime records throughout the country prior to his arrest. Moreover, the charge sheets filed against Ferreira have various problematic elements that cast doubts on their validity. For example, in some of the cases against him, Ferreira’s name or physical description is absent in all of the first information reports. In addition, the prosecution witnesses who claimed to identify Ferreira only did so after being shown his photograph and after he was arrested. In another case, Ferreira was accused of a crime which he could not have committed as he was already held in Nagpur jail at the time.

Meanwhile, Ferreira was subjected to various forms of torture by police and intelligence officials following his arrest. He was repeatedly slapped and punched and his head banged against a wall. He was seriously beaten on the soles of his feet with a bajirao, a one and a half foot whipping strip made from conveyor belt material. This form of torture, called falanga, has been found to cause severe pain as well as long-term damage without showing external marks of injury.

In addition, Ferreira faced long harsh interrogations, for 16 to 20 hours a day. He was often forced to remain in painful

COMMENTARY

positions. For example, he was made to sit for extended periods of time on the ground with his back against the wall and his hands handcuffed above his head, while two security guards stood on his thighs, causing severe pain. Similarly, at times he had his hands handcuffed on the floor for interrogation sessions that lasted days, was made to stand for entire days, and was forced to stand with his arms parallel to the ground for extended periods, all of which caused significant pain and all of which were forced under threat of beating.

Ferreira was also deprived of adequate sleep for days on end, and he was constantly issued various threats – that his family members would be arrested or raped in front of him, or that he would face electrocution of his genital organs or have ice cubes laced in his underwear to cause permanent impotency.

Ferreira believes that he was targeted and arrested under false charges because of his work as a social activist. He is known to have campaigned for the rights of slum-dwellers against forcible eviction and has highlighted the plight of victims of religious and caste violence.

Ferreira’s own claims and the police allegations notwithstanding, the use of torture and the denial of due process are unacceptable.

Right to Life

The Supreme Court has recognised that the right to life under Article 21 protects individuals from torture.2 In Mullin vs Union Territory of Delhi, the Supreme Court ruled that:

any form of torture or cruel, inhuman, or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman, or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.3

Similarly, in D K Basu vs State of West Bengal,4 the Supreme Court found that:

Using any form of torture for extracting any kind of information would neither be ‘right nor just fair’, and therefore, would be impermissible, being offensive to Article 21.5

Under international law, the injunction against torture widely recognised as a jus cogens norm that states are prohibited from breaching.6 Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 5 of the Universal Declaration of Human Rights also prohibit torture and cruel, inhuman or degrading treatment.

In more explicit terms, the United Nations Convention against Torture (uncAT), which India has signed and reportedly intends to ratify and implement through the above-mentioned Prevention of Torture Bill, 2010, prohibits:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has com mitted or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suf fering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.7

Further, the United Nations General Assembly’s Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment also prohibits torture and cruel, inhuman, and degrading treatment, and states that, the latter is intended “to extend to the widest possible protection against abuses, whether physical or mental” (Principle 6).8

Narcoanalysis, Brain Mapping, Polygraph Tests

Ferreira also underwent – without his consent – narcoanalysis, brain mapping and polygraph tests at the Mumbai and Bangalore Forensic Science Laboratories (FSLs). The Supreme Court recently proclaimed that all of these tests violate an individual’s right against self-incrimination under Article 20(3) of the Constitution and the right to substantive due process under Article 21.9

Ferreira was reportedly forced to sign a letter of consent for narcoanalysis testing and when he refused, the prosecution presented his forged signature to the magistrate in question. When he denied in court that he had given consent, the magistrate still allowed the tests to be conducted, and Ferreira forcibly underwent psychological profiling, narcoanalysis, brain mapping, and polygraph tests at the Mumbai FSL. When the authorities did not receive what they perceived as satisfactory results from the tests, the Maharashtra police secretly obtained permission from a lower court in Bhandara, without the knowledge of Ferreira or his legal counsel, to have additional tests done at the Bangalore FSL. Ferreira was again forced to undergo these tests.

Under the Supreme Court’s judgment, this forced confinement at the FSLs as well as the forced conducting of the tests violated Ferreira’s right to privacy and amounted to cruel, inhuman, and degrading treatment. While he was reportedly forced to sign a consent form just prior to the tests under threat, the signatures obtained do not amount to voluntary consent given that a court order had already overruled his refusal to consent. Indeed, Ferreira issued an additional note upon signing, stating that he was not giving consent but was only following the court orders. Moreover, as noted above under the Supreme Court’s judgment, regardless of whether Ferreira allowed the tests to go forward, they were not voluntary in a true sense and still amounted to an invasion of privacy and cruel, inhuman and degrading treatment.

Moreover, the way in which the tests were conducted further infringed upon Ferreira’s rights. For example, there was no physician present during the narcoanalysis test at the Bangalore FSL. As another example, during the polygraph test at the Bangalore FSL, 60 questions were asked, no control questions were used, and questions were difficult to understand, allowing the presiding doctor to reach a predetermined conclusion that the tests showed signs of deception. Similarly, during the brain mapping test at the Bangalore FSL, the report astonishingly turned out to be an identical photocopy of that of his co-accused, and the final report indicated that audio stimuli had been presented even though none had.

Denial of Due Process Rights

Subsequent to his arrest in May 2007, Ferreira remained in detention, subject to torture and other harsh treatment described above, for two and a half years before one trial was completed in December 2009. More significantly, despite his acquittal upon the completion of that trial, Ferreira

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continues to be in detention without trial on the remaining charges against him.

Moreover, the media’s near wholesale acceptance of police claims has infringed upon the presumption of innocence and Ferreira’s ability to receive a fair trial in the future. The media has frequently asserted Ferreira’s guilt and involvement in illegal Naxalite activities, thereby allowing cover for police officials aiming to continue to hold and abuse Ferreira and making it more difficult for Ferreira to receive fair trials in pending matters. Moreover, the Nagpur police have overtly issued threats to arrest Ferreira’s friends and others who have come forward in Mumbai to publicly support Ferreira and denounce the slanderous campaign of the police.

Ferreira has been denied bail in the cases pending against him. The additional charges under which he is held include those of “Naxal-related” crimes in Gondia, Gadchrioli and Chandrapur, with the police still unable to proffer any new evidence.

If the governments of India and Maharashtra are serious about tackling torture and taking remedial measures in view of the narcoanalysis decision, they must:

(1) Investigate Ferreira’s claims of torture and cruel, inhuman and degrading treatment through a judicial officer; (2) Order the payment of compensation to Ferreira and/or his family if a prima facie case of torture and/or cruel, inhuman, or degrading treatment is established; (3) Recommend immediate prosecution of the perpetrators of the torture and/or cruel, inhuman, or degrading treatment; and (4) Request the government of Maharashtra to refer all cases pending against Ferreira to a fast track court and ensure that the cases are heard expeditiously.

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Notes

1 See “Convicted by the Media”, Human Rights Features (South Asia Human Rights Documentation Centre), 6 August 2007. Available at http://www. hrdc.net/sahrdc/hrfeatures/HRF171.htm.

2 See Raj Kumar, “State Torture in India: Strategies for Resistance and Reparation”, Australian Journal of Asian Law, 5, 162-63, 2003.

3 Mullin vs Union Territory of Delhi, AIR 1981 SC 746 at 753.

4 D K Basu vs State of West Bengal, (1997) 1 SCC 416.

5 Id, at 14.

6 See, e g, Prosecutor vs Anto Furundzija, International Criminal Tribunal for the former Yugo slavia (ICTY), IT-95-17/1-T, 10 December 1998, available at: http:// www.unhcr.org/refworld/docid/ 40276a8a4.html.

7 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/46, (annex, 39 UN GAOR Supp (No 51) at 197, UN Doc A/39/51, Art 1 (1984), entered into force 26 June 1987.

8 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, A/ RES/43/173, 9 December 1988, Available at: http:// www.un.org/documents/ga/res/43/a43r173.htm.

9 Smt Selvi & Ors vs State of Karnataka, Criminal Appeal No 1267 of 2004, Supreme Court of India, available at: http://www.scribd.com/doc/ 30932587/Narco-Analysis-Decision-Selvi-vState-of-Karnataka-2010#fullscreen:on.

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may 22, 2010 vol xlv no 21

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