Tihar Jail personnel liable for custodial violence, misleading court: Fact-finding committee’s report into attack on Kashmiri inmates

By Sagar | 21 July 2018

On 10 July, the Central Bureau of Investigation informed the Delhi High Court that it had registered a preliminary enquiry into an attack on 18 inmates of Tihar Jail’s high-security ward. The jail’s security personnel had severely beaten the inmates, a majority of whom were Kashmiri Muslims, after prisoners allegedly objected to their pillow covers being seized, during a routine search in November last year. In May, the court directed the CBI to conduct an inquiry to ascertain the culpability of the jail officials and security personnel involved. According to RK Gaur, the CBI’s public-relations officer, the investigating body’s report merely states that a “preliminary enquiry has been registered and the investigation is going on.” Gaur refused to disclose any details about what the CBI had done in the past two months.

The pace of the CBI investigation is surprising because of the context in which the court mandated the inquiry. After a damning report into the incident by one court-appointed committee, which described the attack as a “gross violation of fundamental human rights,” the court appointed a second committee to conduct a “more serious probe.” This committee, too, minced no words in its report—explicitly detailing the inconsistent testimonies of the jail officials, the culpability of the security personnel, and identifying individuals against whom a first information report ought to be registered. The report is a serious indictment of the jail’s administrative, security and medical staff, and describes their alleged complicity in both, the custodial violence inflicted on the prisoners and the subsequent efforts to cover it up.

Yet, Chinmay Kanojia, a lawyer and the petitioner in the case, also told me that the CBI’s report “only mentions that a prelim enquiry is underway, but doesn’t give any detail.” Kanojia had learnt of the incident during a visit to Tihar Jail to meet his then client Shahid Yusuf, one of the prisoners assaulted in the jail. The National Investigation Agency arrested Yusuf, a former employee of the Jammu and Kashmir government’s agriculture department, in October last year, in a seven-year-old case of terror financing. He has been lodged in the high-security ward ever since, while the case shows little sign of progressing—the court is yet to hear arguments on the framing of charges against him.

When Kanojia visited Yusuf, on 22 November, he was made to wait for over two hours at Tihar Jail before he met his client. Yusuf immediately handed him a blood-soaked vest and recounted, as described in an order passed by the Delhi High Court, a “horrific tale” of the custodial violence inflicted on the prisoners the previous night. The next day, Kanojia presented the vest before the Delhi High Court and filed a writ petition expressing his concern with regard to the “life and safety of the prisoners lodged in Jail No. 1.”

The court appointed a three-member preliminary enquiry committee, or PEC, which submitted a report four days later. The PEC’s findings, which I reported for The Caravan in January this year, described the attack as “acts of unilateral aggression against unarmed prisoners.” Noting that the PEC’s report were “extremely serious in nature,” the court constituted a second fact-finding committee comprising Brijesh Sethi, a district judge, Mrinal Satish, a professor at National Law University Delhi, and Sumeet Verma, a legal-aid lawyer. The fact-finding committee submitted its report to the court in February, and spared nobody—indicting the police personnel responsible for the attack, the jail officials in-charge during the incident, and the doctors who attended to the prisoners.

The committee began its inquiry on 2 December. Over the next ten days, it examined 49 witnesses, including 28 prison inmates and 17 TSP personnel. It also questioned four jail officials—the assistant jail superintendent Bijender Kumar Kundu, the assistant superintendent Jaiveer Singh, the deputy superintendent Satyavir Singh Yadav, and the head warden, Satbir Singh. It also examined the material supplied by the jail officials, such as the CCTV footage of the high-security ward and the medical reports of the prisoners. The committee’s report is extensive and divided into nine chapters, each individually addressing the evidence presented before the committee, the law governing the standard operating procedures in the jail, the submissions of the inmates’ lawyers, and finally, the committee’s findings.

The report noted: “It is amply clear from the evidence produced before this committee that the inmates lodged in Blocks C and F of the high security ward of central jail no 1, Tihar Prisons were subjected to brutal beatings by TSP personnel on the night of 21.11.17.” The Tamil Nadu Special Police, or TSP, is a part of the jail’s security personnel, and had conducted the search in the jail’s high-security ward. “Lathis, batons, badminton racquets and buckets were used to beat the inmates,” the report continued. “One of the inmates, Ahtisham was kicked repeatedly even after he had fallen on the floor, unconscious.”

Ajay Kashyap, the director general of Tihar Jail, told me that “eight people were suspended and one superintendent of Jail Number 1 was transferred out” after the incident. The fact-finding committee’s report, however, only noted that three TSP personnel had been suspended. But the committee recommended the registration of an FIR against 11 police officers, including the sub-inspector MuthuPandi, under whose supervision the TSP personnel had conducted the search of the ward that led to the attack on the prisoners. The other officers named in the report are: P Kumar, P Kabilan, M Ragul, C Prabhu, A Elumalai, S Vishnu, and N Perumal, and the suspended TSP personnel—T Sivaraman, R Balamurugan and R Dhanasekhar. Kashyap did not respond to subsequent phone calls or messages asking him to clarify whether three or eight people were suspended.

For its inquiry, the committee first summoned the station house officer of Hari Nagar Police Station, which has jurisdiction over Tihar Jail, who informed the members that no FIR had been registered into the 21 November incident. The members then conducted a site visit to the jail. According to their report, “What emerged during the jail visit was that the inmates had a consistent version of the course of events. They alleged that the beatings began after a few of them objected to their pillow covers being seized.” In contrast, the report continues, “the jail authorities, and the TSP personnel described a version of events which was completely new, and different from the version stated to the Preliminary Enquiry Committee.”

In fact, in addition to the inconsistencies with their statements to the PEC, the committee noted that “the Prison Officials and TSP personnel have provided differing versions of what led to the incident.” The report details the conflicting accounts:

One version is that a TSP official was coercively pulled into a cell by one of the inmates. The Block in which this occurred differs too in different versions. There is also an allegation of water being thrown on the search party. Another version introduced was that SI Muthu Pandi and a few other TSP personnel were beaten by inmates Ahtisham, Hakim and Mushtaq. There was also an allegation that the inmates raised anti India slogans. The Committee rejects all these versions as discussed earlier in the Report. Even if anti-India slogans were raised, beating the inmates was not the course of action to be employed.

To determine the truth of the officials’ claims, the committee repeatedly asked for CCTV footage of all the cameras looking over the cells, verandahs, and the open courtyard where Pandi had allegedly been slapped by some of the inmates. It requested for the footage from all available CCTV cameras of the high-security ward, but the members were unable to view the recordings from certain key cameras. The committee’s report noted that the jail officials gave contradictory reasons for not providing all the required footage.

For instance, the jail administration told the PEC that the footage was available but “not visible.” But on the day of their visit to the jail, in December, the then jail superintendent, Subhash Chander, told the fact-finding committee that the cameras covering the courtyard had been defunct for six months. On the same day, Dinesh Dahiya, who is in charge of the jail’s CCTV cameras, told the committee that the cameras were functional but the footage was not recorded from 19–22 November. Eight days later, Chander wrote to the committee claiming that the footage was, in fact, available, but it had not been preserved.

Taking note of the contradictions, the committee wrote, “The varied versions about the footage … exhibits a reluctance to share the footage with the Hon’ble High Court, the PEC, as well as this Committee. This exhibits negligence, and a sense of impunity by the Tihar administration, specifically the staff of Central Jail No.1.” The committee also took note of “an attempt by the Superintendent and the Deputy Superintendent to shift blame for their negligence.” But the committee found them responsible, noting that the “alleged failure of the subordinate staff to undertake tasks given to them, ultimately indicates bad management skills of the superior officer.”

Chander, the jail superintendent, was on leave on the day of the attack, and K Sreekumar, a TSP inspector posted at the jail, had written to him about the incident. The committee examined various documents, including Sreekumar’s letter, the deputy superintendent Yadav’s letter to the Ramesh Kumar—a district judge who makes mandatory periodic visits to the jail—the note-sheet of the superintendent’s office, and a letter by M Selvamani, an assistant commandant with the TSP, to his commandant. It found that none of these documents, all of which were written immediately after the incident, mentioned any physical assault on the officer in-charge Pandi.

The committee also rejected the other official claims about the incident. According to their report, the CCTV footage did not show the inmates being aggressive, throwing water on the security personnel or beating them with wipers as claimed in different accounts of the jail officials. The committee dismissed all the allegations against the prisoners, describing the claim that a TSP official was pulled into a cell as “false and misleading.” The report also noted that “some of the versions put forward are afterthoughts and seem to have been manufactured after the Hon’ble High Court took cognizance of this episode, and ordered a fact-finding enquiry into it.”

The fact-finding committee found the jail officials individually culpable for failing to discharge their duties. The committee found Chander liable for disregarding the court’s orders by not providing the CCTV footage when it was sought, which, it said, “led to the committee not getting a complete picture of the events” of that day. Yadav, the deputy superintendent, too, was found responsible for “misleading courts” by providing “a version of events which are not true.” The sub-inspector Pandi, under whose supervision the attacks took place, was found “culpable for all the incidents that occurred during the search that night.”

The committee’s conclusions about the role of medical personnel at the jail and the doctors of the All India Institute of Medical Sciences are also pertinent. It found that the jail’s medical staff attended to the injured inmates over two hours after the incident and that “inmates with grievous injuries like fractures were not referred to an Orthopaedic surgeon immediately.” The surgeon only attended to some of the prisoners, including two who had sustained fractures to their hands, on the day after the incident. The committee added that “only a medically qualified professional” could conclude whether the delay was reasonable, adding that the issue “needs to be probed by a team of doctors.”

In the order constituting the committee, the court had also directed a medical board of AIIMS doctors to treat the inmates. The medical board’s report noted, “All the injuries sustained by the examined persons could be produced by mild application of force/baton force in order to restrain a suddenly aggravated and violent prisoner, which is consistent with the history mentioned in the order of the Hon’ble High Court.

The fact-finding committee questioned a suspicious detail in the AIIMS report: “The portion in italics is a curious observation, since the order of the Hon’ble High Court does not state that the inmates were violent, and that the mild application of force/baton force was used to restrain a suddenly aggravated and violent prisoner.” The committee recommended that the anomalies be brought to the doctors’ notice. It further stated, “It appears that this version was provided to them by personnel who had accompanied the inmates for their medical examination.”

In the final section of its conclusions, the committee discussed the necessary steps that the jail administration needs to adopt “to ensure that such incidents do not recur.” The committee referred to the landmark Supreme Court judgment in the case of Sunil Batra vs Delhi Administration, in which the court had discussed the protection of prisoners’ rights in significant detail. The committee observed, “The state of affairs in Tihar prisons reflected in that judgment delivered four decades ago, do not seem to have changed (at least in the High Security Ward of the prison) inspite of multiple orders of the Hon’ble Supreme Court.”

The committee proposed a series of measures to prevent a similar potential incident of custodial assault.“The role of official and non-official visitors to the prison is crucial,” the report said. Visitors are external authorities appointed to maintain a check on any excesses committed by jail officials and security personnel. Noting that no official except the jail-visiting judge had inspected the jail in the previous three months, the committee recommended that official and non-official visitors should be appointed to the jail immediately and provided access to the high-security wards.

The committee also recommended improving access to facilities in the prison, reminding authorities that “the core issue that led to this incident of violence is the prohibition on inmates keeping a pillow.” In its other receommendations, the committee proposed increasing the prisoners’ access to their counsel—the prevailing rules restrict it to one hour per week—increasing the opportunities for physical exercise for prisoners, providing effective training for prison officials, and installing new CCTV cameras with a more effective storage of footage.

While discussing the prisoners’ need for better access to their lawyers, the committee also referred to judgments that discussed the inability of inmates to meet their family members. I spoke to Ahtisham’s father, Farooq Malik, and Yusuf’s brother-in-law Umar, both of whom told me that they could speak to their respective relatives only once a week and for approximately five minutes before the line is automatically disconnected. Umar said, “Usme toh haal-chaal puchne mein hi waqt nikal jaata hai. Case ke barein mein kya puchen?” (The time runs out in asking about his well-being. What do I ask him about the case?)

The next hearing in Kanojia’s petition is scheduled for 21 August. The court has directed the CBI to file an action-taken report.

Sagar is a staff writer at The Caravan.

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