In Custody: Law, Impunity and Prisoner Abuse in South Asia (SAGE Law)

**In Custody** examines the professed and actual commitment to custodial justice on the part of six South Asian countries. India, Pakistan, Bangladesh, Nepal, Sri Lanka and Afghanistan have all been affected by the geopolitics of colonialism. Nineteenth century Europe is often simplistically seen as the ideological source of the rights discourse in South Asia. But, like any ideological theme, the discourse on rights is also a negotiated space. Resistance created a need to justify imperialism by importing a purpose to it. Regulation of policing was the coloniser's superior norm, and also, his tool of control. The erstwhile colonies inherited the practice of affirming norms while systems enabled their breach. Which is not to say that the purpose of norms is merely hypocritical; political struggles and intellectual discourse have, over the years, ensured the recognition of human rights in international instruments, national charters and even in the very pretexts for their breach. Though human rights are inalienable, the modern state has been uniformly guarded in its response to their imperatives. This book traces the historical and contemporary nature of the conflict between the norm and its practice. Constitutions, statutes and mechanisms of justice are reviewed with case studies and interviews that illustrate the many layers of impunity. Title Page 4 Copyright Page 5 Contents 7 List of Tables 10 List of Cases and Statutes 11 List of Abbreviations 25 Preface 32 Acknowledgements 39 Torture as a Public Secret...An Introduction 42 The International Regime on Torture 53 Section One: India 59 1. India’s Public Secret 60 2. Rights Discourse: Rhetoric and Reality 66 3. The Constitution and Custodial Rights 76 4. The Penal Code and the Law of Evidence 87 5. Due Process: CrPC, Police Acts and Prison Manuals 98 6. State of Custodial Justice 111 7. Judicial Trends 130 8. Perspectives on Torture 178 9. Six Case Studies 204 Section Two: Pakistan 235 10. Pakistan’s Regimes 236 11. Subverting Due Process: The Force of Religion and the Force of Necessity 247 12. The Judiciary 256 13. International and Statutory Commitments 267 14. Correcting the Custodians 282 Section Three: Bangladesh 289 15. Martial Law and Other Regimes: 1971–2010 290 16. International Commitments and Domestic Legal Framework 295 17. Court Directives and Recommendations of Judicial Commissions 307 18. Case Studies 315 Section Four: Sri Lanka 324 19. History and Politics 325 20. The Constitution and Emergency Legislation 331 21. Criminal Law and Custodial Justice 349 22. International Law: Obligations and Compliance 357 23. Enforced Disappearances 369 Section Five: Nepal 376 24. An Overview 377 25. The 1990 Constitution 382 26. Accountability under the Interim Constitution 387 27. The Army 393 28. Nepal’s Legal Framework 401 29. The Torture Compensation Act, 1996 409 30. The Courts and Custodial Justice 414 31. Five Case Studies 421 32. Two Interviews with Law Enforcers 449 Section Six: Afghanistan 457 33. The Land and the People 458 34. The Afghan Nation State and the Great game 466 35. 1920–1978: Challenges to Constitutionalism 474 36. Human Rights and the Soviet Occupation (1978–1992) 485 37. Terror and Counter Terror 493 38. Afghanistan’s Human Rights Norms 504 39. Criminal Justice and the State of Human Rights 513 Epilogue 522 Bibliography 532 Index 549 About the Author 568