Kandy police directed to pay compensation to petitioner Sivakumar in latest SC judgment on torture

Court held act of assaulting and verbally abusing the petitioner was malicious and completely unwarranted

The Supreme Court ( SC) has held that several officers of the Teldeniya police in Kandy violated the fundamental rights of petitioner Suppiah Sivakumar by subjecting him to torture and ordered compensation to him totalling Rs 95,000.

This is the latest in a series of recent SC judgments on torture. Justice Buwaneka Aluwihare, PC, directed the State to pay the petitioner Rs 20,000. A sergeant and two civil security constables attached to the Teldeniya police were separately ordered to pay him Rs 25,000 each out of their personal funds.

Justice Aluwihare concluded that the respondents had “heedlessly assaulted” Mr Si va kumar. Justices LT B Dehideniya and Murdu NB Fernando, PC, agreed.

“The act of assaulting and verbally abusing the petitioner was malicious and completely unwarranted,” the Court held. “When a man is assaulted, taken into custody, and locked up in a cell, simply because he happened to be in the vicinity of a riot, in my view, he has been subjected to ‘ degrading treatment’,” Justice Aluwihare said.

The case dates back to May 15, 2011, when Mr Sivakumar was watching ‘ theru’ celebrations at Bambaragala junction with his wife and daughter. A riot broke out around 1.30am. As he was taking his family to safety, he was alleged to have been assaulted with a club by the three respondents. He also states he was subjected to continuous verbal and physical abuse for about 20 minutes by the policemen.

Mr Sivakumar was subsequently dragged down the road towards a kovil which was eight kilometres away. He alleges that the beating continued. He was made to wait outside the temple for over one hour and felt humiliated as several of his relatives had seen him there. The Teldeniya police turned his wife away, saying they will not entertain a complaint against a fellow police officer.

Mr Sivakumar and his assailants were at the kovil till about 6.30 a. m. after which he was forced to mount into a jeep and taken to the police station. He was asked to sign a statement saying he was beaten by three persons ( not police) during the riot. He refused. When his wife also objected, she was chased out by the sergeant who used foul language and threats.

The sergeant then coerced him into signing a Sinhala language statement, the petitioner states. He was locked up. Two others who had been involved in the riot were put into the same cell and notified police that he was not a party to it. That afternoon, he was directed to be released after providing a statement.

Mr Sivakumar needed assistance to walk out of the station. He was treated for contusions and swellings as an in-patient at the Menikhinna hospital. He was transferred to the Kandy general hospital on May 18 and was discharged after tests the following day. Thereafter, he had intermittent admissions to hospital as well as clinic visits.

The petitioner’s wife complained to the Human Rights Commission ( HRC) while he wrote to the Chief Justice, Attorney General, Deputy Inspector General of Police and Inspector General of Police regarding his experience. An inquiry was initiated at the Teldeniya police.

While investigations were progressing, three people visited their home and abused and assaulted the petitioner. When he threatened to complain, they said the police had ordered the attack. On September 23, when his wife was alone at home, they came again and abused the residents.

In their objections, the three respondents claimed they arrested Mr Sivakumar on a complaint lodged about the riot. They said they saw him being restrained at the site while people there said he and several others had instigated the riot. They claimed they used “minimum force” on the petitioner.

The Court observed that a commotion had occurred after midnight on the day of the incident and the place had been swarming with people. The eight respondents named in the petition had to act according to exigencies of the situation.

“They had the onus of maintaining peace and bring order upon an essentially chaotic situation,” the ruling held. “In those circumstances, errors in judgment could take place. However, such errors in judgement cannot under any circumstance condone the subsequent conduct adopted by the respondents.”

The prohibition in Article 11 of the Constitution against degrading treatment is absolute and the guarantees therein must be protected irrespective of the victim’s conduct, the Court points out. Even if the respondents had their grounds for suspecting the petitioner of being involved in the riot, they could have resorted to the procedure established by law to dispel their suspicion without physically and verbally assaulting him.

Ermiza Tegal with T Piyadasa and Shalomi Daniel appeared for the petitioner. P L Gunawardena appeared for the first to third respondents and Suharshie Herath for the fourth to seventh respondents.