Practice of Torture Persists in Nepal’s Custody

Writer: Bindesh Dahal

Security personnel in Nepal continue to practice torture and ill-treatment on detainees. Various reports indicate that police torture detained individuals to obtain evidence, intimidate, or during detention. A non-governmental organization working against torture- Advocacy Forum Nepal, sheds light on the ongoing nature of this issue in its annual reports.

Defining Torture

The Constitution of Nepal (2015), the Criminal Code of 2074, and several international conventions to which Nepal is a signatory, delineate the precise definitions of torture. Article 22 of the Constitution safeguards against torture. It specifies that (1) no individual who is apprehended or detained shall be subjected to cruel, inhuman, or degrading treatment, physical or mental torture. Moreover, actions that contravene subsection (1) shall be subject to legal consequences, and the individual who is harmed in this manner shall be eligible for recompense in accordance with the the Act.

Similarly, torture is prohibited under Article 167 of the Criminal Code. It specifies that (1) an officer authorized to conduct investigations, prosecutions, law enforcement, control, detention, or imprisonment shall not subject any individual to physical or mental torture, cruel, inhuman, or degrading treatment, or both. An elucidation within the section provides further clarification. Torture is defined as any intentional infliction of physical or mental anguish or suffering, or the subjecting of another person to cruel, inhuman, or degrading treatment, for the following purposes:

(a) obtaining information on any subject,

(b) proving any offense,

(d) showing forceful oppression or terror, or

(e) performing any other act against the law

The provision for punishing those who commit such acts is also mentioned in the section. Likewise, (2) a person who commits an offense under sub-section (1) shall be punished with a sentence of up to five years or will be fined up to Rupees fifty thousand, or both, depending on the seriousness of the offense. (3) A person who orders the commission of an offense under sub-section (1) or who is an accomplice to such an offense shall be punished in the same way as the main offender. (4) No person who commits an offense under sub-section (1) shall be entitled to claim that they committed the offense by obeying the orders of a superior officer, and they shall not be exempt from punishment on such grounds.

Further, Section 2(a) of the Torture Compensation Act, 2053 defines torture as any physical or mental torture inflicted on a detained person in the course of investigation, prosecution, or in any other manner, and includes cruel, inhuman, or degrading treatment.

Likewise, Article 5 of the United Nations Charter, which Nepal has adopted, states that no one shall be subjected to torture, inhuman or degrading treatment, or punishment. To clarify, Nepal became a party in 1991 to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the Torture Convention), passed by the United Nations General Assembly in 1983. This Convention gives a clear definition of torture.

As mentioned in Article 1 of the Convention, for the purposes of this Convention, the word ‘torture’ means obtaining information or evidence by a public official or any other person acting in a governmental capacity, or with their consent or tacit approval, by inflicting severe physical or mental pain or suffering on any person. This includes punishment for an act suspected to have been committed, or intentionally inflicting severe physical or mental pain or suffering on that person for any reason based on any kind of discrimination, or for the purposes of terrorizing or oppressing them or a third person.

In addition, Article 7 of the International Covenant on Civil and Political Rights, to which Nepal is a member, states – “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Even though Nepalese law and the international laws that Nepal adheres to, prohibit such torture and inhumane treatment, the practice of torture continues in the detention centers.

Practice of Custodial Torture

Monitoring conducted by Advocacy Forum has shown that torture is inflicted both physically and psychologically in police custody. In 2023, when Forum advocates visited prisons in different parts of the country and interviewed the prisoners, 102 of the total 1,845 they met, said that they were tortured and treated humiliatingly.

According to the data collected from these interviews, police officers typically slap detainees two or three times on the cheek, kick them with boots, trample on their feet, and pull out their hair and mustache. Some detainees are forced to clean dirty dishes, rooms, toilets, and police office premises, or to beat other detainees.

More severe forms of torture include beatings with batons, plastic pipes, or iron rods on the feet, legs, arms, back, and other parts of the body. In the interrogation room, police often try to coerce detainees into giving evidence by kicking them, hitting their thighs with plastic pipes, slapping them, and punching them. Detainees have also complained that affidavits are not read to them and they are forced to sign or put their fingerprints on them.

Similarly, prisoners have been subjected to rigorous physical exercises, made to stand up by jumping and then beaten on their feet with sticks or pipes, forced to jump like frogs, and made to stand in awkward positions for several hours.

In addition to physical torture, police inflict mental torture by using profanity and insulting words, threatening to file false charges, to kill, or to spread false information on social media. Some are even threatened with shooting and asked for their last wish. They are often lured with good jobs, prison release, and various benefits in return given they admit to the crime or charges. It is also learned that some female prisoners were raped in custody under the pretext of being freed from charges.

When examining which prisoners are most frequently tortured, it was found that economically weak, socially marginalized, Madhesi and indigenous people were the primary victims. The prevalent caste discrimination in the country may play a role in this, and it requires further detailed study.

Case Descriptions of Torture Victims

The torture victims met by the Advocacy Forum have recalled the atrocities committed against them. Here, we present two representative incidents from the last six months, shared with the permission of the victims. During the interviews with these two victims, a female colleague accompanied the interviewer.

Manisha Sah

Manisha Sah arrived at the District Police Office, Dhanusha on June 15, 2023, accompanied by her parents and brother, following the suspicious death of her elder sister Aarati. Following the police obtaining her mother’s statement, there were differences found between her statements and the police record. Despite attempts to rectify the difference, Manisha’s mother refused to abide by what the police said, prompting the latter to resort to physical violence and mental coercion.

Deputy Superintendent of Police DSP Bed Prakash Gautam was present during the altercation. He allegedly assaulted Manisha on the staircase leading to the main entrance of the building, injuring her left ear. Additionally, he struck and kicked members of Manisha’s family. Later that evening, Superintendent of Police Bishwaraj Khadka intervened, releasing them from custody.

Although Manisha attempted to file a complaint regarding the torture inflicted upon her and her family at the District Police Office Dhanusha, authorities declined to accept the same. Despite sending a formal complaint, she did not receive any confirmation of its receipt. Consequently, she invoked her Right to Information, seeking updates on the status of her complaint, yet received no response.

On July 18, 2023, Manisha lodged an application under the Compensation Relating to Torture Act, 2053 (1996) at the District Court, Dhanusha. However, the court has yet to hear the case.

Former Chief Superintendent of Police Bishwaraj Khadka refuted Manisha’s claims, asserting that she and her family had not been subjected to any form of torture. Khadka accused the Sah family of instigating violence against the police, resulting in injuries to policewomen. He maintained that the police employed reasonable force to quell the situation.

Following SP Khadka’s removal from his position due to his mishandling of Aarati Sah’s death case, SP Mitrabandhu Sharma assumed the role of police chief of Dhanusha from November 9, the same year. When questioned about Manisha’s complaint, SP Sharma cited ongoing legal proceedings, refraining from commenting extensively, however assuring that the police are taking appropriate action.

Sarika Lama (Name Changed)

Advocate Bhagwati Pandey ‘Sheetal’ made offensive remarks against the Magar and Tamang communities, which led members of both communities to assemble at the Metropolitan Police Range in Teku on August 2, 2023, to protest. Sarika took part in the demonstration. Declaring that they had arrested Pandey, the police told the demonstrators to call off. The demonstrators started to scatter following the police’s order, and Sarika found herself at Teku Chowk.

Male police officers abruptly pointed at her and yelled, “There she is, arrest her!”. They then pulled her toward a policewoman, and both male and female cops started to beat her. She lost consciousness time and again, thinking as though someone had slapped her thigh with the end of a gun.

Sarika came to know she had been beaten with boots and sticks on her hands, knees, and other areas of her body after waking up. They hauled her inside the police station and kept attacking her even when she was unconscious. She tried to protect herself from their punches, but their forceful separation of her hands and fingers caused extreme edema.

The cops verbally assaulted Sarika, claiming their authority, when she said she preferred death to ongoing suffering. Two police then grabbed her by the hands; two more grabbed her ankles and carried her to a detention room, orienting her near the toilet. The torture of other inmates in the cell caused them to scream in agony as well.

Sarika and two others were taken by the police to the hospital for a health check-up following repeated appeals. But reckless driving on the way to the hospital caused Sarika’s suffering to be worsened. Sarika had money in her jacket, but the police denied her when the staff requested payment for treatment. They deliberately turned aside her misery. At last, Sarika and the other prisoners signed the paperwork and were released late at night.

When questioned about the incident, DSP Anil Adhikari of the District Police Range Kathmandu denied allegations of police brutality against the demonstrators. Adhikari claimed that two protestors injured in the clash had been rescued by the police and taken to Bir Hospital for treatment. He further argued that 18 policemen had been injured by stones and bricks hurled by the demonstrators.

Home Minister Narayankaji Shrestha committed to take action against the policemen responsible for the beatings and torture, however, no action has been taken as of yet. Sarika is taking steps to file a complaint regarding the brutality she has faced.

Status of Torture compensation cases

Victims have submitted petitions to the court demanding compensation for the torture inflicted by the police or other security personnel. The Advocacy Forum has assisted 152 torture victims in filing lawsuits in various courts for compensation. However, the court has ordered compensation in only 46 cases till date. Only seven victims in the 46 cases have received compensation.

The failure of the executive body to comply with the court order has led to frustration with the judicial system among the victims and has also undermined the rule of law. The incident details explained above also show many challenges faced by victims in getting justice.

The path ahead

Restoring the rule of law in Nepal requires that the police and other security personnel be made more cognizant of the issue of torture. It is critical that police receive training in conducting scientific investigations and preparing comprehensive reports for prosecution, as opposed to relying solely on witness statements.

It is possible to address improper practices, including compelling detainees to sign forged documents, preventing them from reading documents, and denying them simple access to legal representation. The human rights sections of the Nepal Police and the Nepal Army should take decisive action to prevent such practices.

Furthermore, it is crucial to establish an autonomous body charged with conducting unbiased investigations into instances of custodial maltreatment and bringing offenders to accountability. As the incident involving Manisha Sah unfolded, victims who report torture frequently encountered obstacles such as police retaliation and denial of complaint filing.

Consistent and covert visits to detention facilities by the Attorney General’s Office and the National Human Rights Commission (NHRC) have the potential to alleviate instances of police torture. The persistence of custodial torture can be attributed not only to the abuse of authority by law enforcement, but also to political apathy, the inability to enforce court decisions, and a deficient justice system. In light of these circumstances, it is imperative that the government approaches these concerns with utmost diligence.

The writer is working as a Documentation and Communication Officer at Advocacy Forum-Nepal.

Translated by Smithu Ghising

Original Article: The Practice of Torture Inside Nepal’s Custody Still Persists