Commemorating Erwadi Victims of Torture

Commemorating Erwadi Victims of Torture

One kind of violation of the right to Integrity (Article 17 of the UNConvention on the Rights of Persons with Disabilities, referred to as the CRPD) covers a spectrum of experiences ranging from discrimination to exploitation, cruelty, abuse, violence, inhuman degrading treatments, and torture. Article 15 and 16 of the CRPD cover a range of sites where these experiences may occur, including those managed by the state (health care services, institutions run by the state, public sector services) as well as those found in communities (private institutions, commercial spaces, schools, work places, families, public spaces, etc.).

In India, on 6th August, 2001, there was a fire tragedy in a shed where people stigmatised by the local community as ‘paithiyam’ (insane) were incarcerated. Those people were chained to cots and pillars, and could not escape when the fire consumed the premises. People in the locality assumed that the pained cries, which rent the air were the cries of the insane, and did not intervene.

In the decade following, while we were expecting the government of India to develop a national plan for strong and robust community mental health services in response to this tragedy, the government liberalised the licensing procedure for building private mental institutions. And also made it easierto institutionalise a person involuntarily. While earlier involuntary admission was a constitutional matter (Article 21), requiring court arbitration and oversight, and often lengthy court inquiry to safeguard against abuse of a constitutional right; in the post-Erwadi / post-CRPD India, involuntary admission has become a routine clerical matter, to be managed by (private) psychiatrists alone, without any reference to Article 21 or to the constitution[i].

In this way, the state washed its hands off, with administrative orders, the little responsibility it had as parenspatriae,with respect to Article 21,to private parties, who run institutions on a business model. By 2009, several state governments filed affidavits before Supreme Court, giving information on the hundreds of private institutions licensed by them in the decade. In the Northern states, the North East, Tamil Nadu and other parts of India, mental institutions are coming up by the dozens, as they are a lucrative business. Newly released budgets of the state are being consumed by making architectural and other changes to old asylum structures; and putting up district level mental asylums. I once visited a local mental hospital with a proposal to work with them on reintegrating the women there, into the communities where we work. The Superintendent, who was about to retire, advised me that in present times, it is best to start a private institution, and he is willing to serve as a visiting psychiatrist and get the license for me.

A variety of small to big; simple to plush mental custodial businesses may be found in India today offering, for a fee (15000 INR to 50000 INR), involuntary commitment, ‘ambulance, guard and sedation services’ and a variety of hazardous treatments, which middle class families accept, as ‘modern mental health care’. The system has never offered or informed them of anything else, so what else can they ask for? The service structures holding up these admissions are no more humane than they were: closed door institutions, no consent procedure,no due process, no information given to families, solitary confinement, secure vans, lies and deceit in ‘rounding up’ people, use of physical force and intimidation, open violence, sexual abuse, neglect, deaths, over-drugging and shock treatments. The private facilities have their own trained ‘bouncers’ or ‘collectors’ who help in the round up and in ‘patient management’. If nothing else, erstwhile ‘patients’ of these loony bins quickly learn how to take better care of themselves because ‘They never ever want to go to that place again’. Those who were bombed out of their wits with the drugs and the abuse, have no further will to resist.

Recently, and shamefully, the Indian Association of Private Psychiatry, the Indian Association of Biological Psychiatry and the Indian Association of Psychiatry, have issued a joint statement, advocating for direct shock treatment, a mode of ‘treatment’ referred to in the European CAT as a form of torture. Today, in India, there are over 500 institutions, legalised by the Mental Health Act.

With the new mental health legislation (Mental health care Bill) coming, the institutional system of taking people with disabilities into custody is expected to rise exponentially, as the little oversight provided for in the extant MHA is further diluted, and institutional violations such as lack of licensing are covered only with a monetary fine; and no penalties or criminal proceedings. For example, if someone running a mental institution is caught without a license, for the 1st time offence they pay 25000 INR; if caught second time, they pay 0.2 mn INR; and for the 3rd time and thereafter, maximum fine that can be imposedis 0.5 mn INR. Some of us in India see this as a way of legalising corruption. No mention in this new legislation of redressal or penalties in case of abuse, violence, exploitation and use of cruel, inhuman, degrading and torturous treatments.

Recently, the Supreme Court has held that in view of “The provisions of Article 21 of the Constitution of India, any form of torture or cruel, inhuman or degrading treatment is inhibited.... The State must protect victims of torture, ill treatment as well the Human Rights defender fighting for the interest of the victims... Therefore the State must ensure prohibition of torture, cruel, inhuman or degrading treatment to any persons particularly at the hands of any State agency/police force [ii]. The Supreme Court has chastised state authorities and the police in recent times for not serving the role of protectors and infact, becoming perpetrators of torture and custodial deaths and further clarified through a series of judgments, what constitutes torture, cruel, inhuman and degrading treatments. Life or personal liberty has been held to include the right to live with human dignity and includes within its ambit a personal guarantee against torture or to cruel, inhuman or degrading treatment or punishment. Torture is not merely physical but may consist of mental and psychological torture calculated to create fright to submit to demands; forcible intrusion into a person’s mental processes; illegal detention; forcible use of scientific techniques [iii]; etc.

The UN CRPD Monitoring Committee has also issued unambiguous messages on abolition of forced treatment and institutionalisation. Ms. RasheedaMajnoo, the Special Rapporteur on Violence against Women, who visited India has like-wise commented on the violence of some of these practices. Special Rapporteur on Torture has post-CRPD commented comprehensively on these practices as a form of ‘torture’.

In India, a Working Group on Human Rights has brought to the notice of OHCHR, the forms of torture in police custody, institutions, and brutalities in conflict zones by the armed forces. The WGHR submission to the UN for the Universal Periodic Review (2011) of India review notes[iv]: “India committed to expedite ratification of the Convention against Torture (CAT). "Prevention of Torture Bill, 2010 (PTB) was referred to a Parliamentary Select Committee of the Upper House in August 2010.” The relevance of the discourse on Torture is increasingly evident in the case of state apathy towards the brutal violence, rape and killings of women (recent ‘Delhi rape’ and ‘Kolkatta rapes’); and the kinds of brutalities exhibited by the state in conflict affected areas, as described in the WGHR report for the UPR, 2011[v].

Examples of atrocities show an overwhelming and shocking universal pattern, requiring further inquiry and investigation at a systemic level, as such instances are not exceptional, nor are they impacting few lives.Since 2010, Masina hospital, a private asylum in Mumbai has been repeatedly exposed for fraudulent admissions, illegal detentions, overuse of shock treatments, overuse of medication and various other abuses [vi]. In July 2012, a woman with psychosocial disability was raped and killed in a rehab home in Kolkatta. In this instance two other bodies were found on the premises and cruelty, starvation and torture exposed[vii]. Over 100 people were rescued in a raid from a mental health rehabilitation center in Karnataka, near Hoskote: They were abused, stripped and humiliated, and lived in inhuman and degrading conditions [viii]. Around 41 people with psychosocial disabilities were rescued from a squalid center in Thrissur district in Kerala in January, 2012. The inmates reported torture, removal of kidneys and sale of cadavers to the nearby medical hospital [ix].

Children in India are exposed to atrocities within penal institutions[x]. Women with mental disabilities and hearing impairment were tortured and raped in a rehabilitation home in Hooghly[xi]. Activists have been up in arms against AshaKiran in Delhi where disabled children were “treated like animals” [xii]. In early 2012, 5 girl children with mental disabilities were raped in a shelter home in Panvel, near Mumbai; and reports of starvation and abuse at Kavda orphanage in Shahpur. The High Court appointed a committee to investigate shelter homes in Maharahstra[xiii]. Around 35 children with mental disabilities were starved, tortured and abused in a home in Mankhurd[xiv]. 19 girls with mental disabilities were rescued from Navi Mumbai in February of 2011. They were physically and sexually tortured with cigarette butts, hot spoons, safety pins, etc.[xv] Also see, rape and sadistic torture of blind and hearing impaired children in Chandigarh, Lucknow and Allahabad[xvi]. In Haryana, similar cruel treatment was meted out to elderly within an institution for the physically and mentally disabled[xvii].

On this day of commemorating torture victims, I submit that forced institutionalisation practices leading to extreme violence as used in India is very much like the ‘enforced disappearances’ and ‘missing persons’ found in conflict zones and in areas of army occupation. And, mental health legislations are no different from AFSPA (Armed Forces Special Protection Act), which give overriding powers to state machinery in investigations, observations, round up, arrest, detention, incarceration, and colluding in apathy, neglect, use of hazardous physical, electrical, chemical restraints, creating iatrogenic disabilities and deformities, custodial brutalities, torture and deaths.

We have often had to search for a friend or a peer, who has been ‘forcibly disappeared’. It takes days or months to figure out that someone in our circles have been thus disappeared. I recall this story about my friend, happened 3-4 years ago. She was around 55 years old, I myself nearing 50. Her mom was around 90. After my friend’s enforced disappearance, about which we were concerned, I called her mom, and she warned me off, saying that I have no further business with her daughter! It took us days of investigative work to figure where she was incarcerated and that she was okay. She was in a private lock up where they shoved some papers pushing her to sign: Those papers would have kept her there life long! Another friend naively called his enforced disappearance as ‘kidnap’. The legal formats and outcomes on people are the same, though the mechanics used may be different.

A vigilant soul has started a ‘Helpline to protect victims of forced institutionalisation’ from Mumbai. Some courts have started hearings on this matter, though with mixed outcomes so far. The community of human rights lawyers are starting to notice something amiss in these laws.

[i]Davar, Bhargavi V. (2012). “Legal frameworks for and against persons with psychosocial disabilities”.Economic & Political Weekly, December 29,2012volXLVIINo.5, pp. 123-131.

[ii]See Prithipal Singh Etc v. State of Punjab & Anr Etc, Criminal Appeal No. 528 of 2009, Supreme Court of India, Criminal Appellate Jurisdiction, 4 November 2011, para 7.

[iii]Dr.MehmoodNayyarAzamvs State Of Chattisgarh And Ors on 3 August, 2012, in the Supreme Court of India, CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 5703/2012, (Arising out of SLP (C) No. 34702 of 2010).

[iv] Pledge made by India at the UN GA in February 2011 at the time of its re-election at the Human Rights Council. See Sixty-fifth session Agenda item 112 (c), A/65/758, UNGA, “Elections to fill vacancies in subsidiary organs and other elections: election of fifteen members of the Human Rights Council: Note verbale dated 16 February 2011 from the Permanent Mission of India to the United Nations addressed to the President of the General Assembly”. Voluntary Pledges and Commitments by India, as found on 14th January 2013, available at:

[v]Human rights in India. Joint Stakeholders’ Report, for the Universal Periodic Review Report, by Working Group on Human Rights in India and the UN (OHCR), submitted to UNOHCR on 28th November, 2011.

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[vii] as found on 19/01/2013

[viii] found on 19/01/2013

[ix] as found on 19/01/2013

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