Human Rights of The Accused And The Police Investigation Process
"All men are born free but everywhere they are in chains " - - Rousseau
"Human rights" as the expression goes, means certain rights which are considered to be very basic for an individual's full physical, mental and spiritual development. Human rights encompasses the fundamental principles of humanity and these are the rights which every human being is entitled to enjoy on the basis of the fact of being born human. Indeed, the conception of rights, which every human being is entitled to enjoy by virtue of being a member of human society, has evolved through the history of struggles for the recognition of these rights. In plain simple words, human rights are the rights which every human being possesses by virtue of being a human.
The very idea of human being in custody save for protection and nurturing is an anathema to human existence. The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law postulates custodial cruelty- an inhuman trial that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the one who is empowered or collective wrath of hypocritical thinking.
The attack on human dignity can assume any form and manifest itself at any level. It is not merely the negative privilege of a crude merciless display of physical power by those who are cast in a role play of police functioning, but also a more mentally lethal abuse of position when springing from high pedestals of power in the form of uncalled for insinuation, unjustified accusations, unjust remarks, menacingly displayed potential harm, that can strike terror, humiliation and a sense of helplessness that may last much longer than a mere physical harm and which brook no opposition. The idea of human dignity is in one's sacred self and that field is quite a part and distinct from the field of considerations of rights and duties, power and privileges, liberties and freedoms or rewards and punishments wherein the law operate. If a person commits any wrong, undoubtedly he should be penalized or punished, but it is never necessary to humiliate him and maul his dignity as a human being.
The Universal Concern :
The Universal Declaration of Human Rights 1948, adopted and proclaimed by the General Assembly Resolution of 10* December, 1948 declared in the preamble that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Article 1 proclaimed that all human beings are born free and equal, in dignity and rights. Article 3 proclaimed that everyone has the right to life, liberty and security of person, and in Article 5 that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The presumption of innocence of a person charged with a penal offence until proved guilty as contained in Article 11(a) is meant to insulate him against any high¬handed treatment by the authorities dealing with him in the matter.
Article 7 of the International Covenant on Civil and Political Rights, 1966 adopted by the General Assembly Resolution dated 16* December, 1966 covenanted that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Under Article 10 of the said covenant all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person and the accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as convicted persons. The minimum guarantees to which everyone charged with a criminal offence, is entitled in full equality covenanted in Article 14(3), inter alia, provide that no one shall be compelled to testify against himself or to confess guilt, which obviously will rule out use of force of any kind on a person accused of any crime. Respect for human dignity is thus not a matter for any deep study in axiology for an estimate of comparative values in ethical, social or an aesthetic problem but a matter of acknowledging a simple truth already recognized by our national document when opening chant exudes the cultural nobility of a fraternity that assures the dignity of the individual. The Constitution recognized it to be fundamental in the governance of the country that the State shall direct its policy to secure conditions of freedom and dignity and insulates against all forms of tyranny against mind.
Accused right to Silencer :
History of mankind is replete with instances where under every type of regime the accused in custody was tortured within the four corners of the cell for forcing him to confess or disclose information. When there is none to hear his cries or to his rescue. The right not to be compelled to testify against himself is a universally recognized right of the accused under Article 14 of the International Convention on Civil and Political Rights and is a fundamental right conferred by the Constitution. Article 20(3) of Indian Constitution says that "no person accused of any offence shall be compelled to be witness against himself. This is often described as right to silence.
No person accused of any offence shall be compelled to be witness against himself as per the protection granted by Article 20(3) of the Constitution. Therefore, a suspect of the crime can not be compelled to disclose facts, which he can recall from his memory, likely to implicate him in a crime in which he was involved. A person accused of an offence, therefore, can not be compelled to subject himself to brain fingerprinting test for finding out whether the information relating to the offence is stored in his brain. When on seeing the object familiar to the offence, his brain emits a microvolt response of recognition, he may refrain from disclosing that fact under the constitutional guarantee. If he is agreeable to the knowledge of the crime being detected by subjecting him to the computer brain testing, he would rather give his version in response to an oral interrogation. Before subjecting a person accused of an offence to brain fingerprinting test, he should, therefore, be told in no uncertain terms that the information connected with the offence if it is stored in the memory of his brain get detected and this would be done without his becoming aware of such information being extracted from his memory. Anything short of obtaining informed consent of the accused might raise a constitutional issue of violation of the fundamental right guaranteed by Article 20(3) of the Constitution. It is to be noted here that article 20(3) does not prohibit the accused being questioned during investigation or trial. When questioned the accused may deny or make a confession. The Supreme Court in Smt. Selvi and Others v. State of Karnataka has prohibited the narcoanalysis test, brain mapping test and lie-detector test on the basis of right to privacy and right against self-incrimination. But the voluntary admission of test is permitted under certain safeguards. The national human right commission (NHRC) published the safeguards under the title "The Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused" in 2000. The Supreme Court has directed the investigation agencies to follow these safeguards while conducting any test on the accused. The court observed that even when the accused has given consent to undergo the test, the results by themselves can not be admitted as evidence because the subject does not exercise conscious control over responses during the administration of test. However any information or material that is subsequently discovered with the help of voluntary polygraph test or narco¬analysis test can be admitted in accordance with Section 27 of the Indian Evidence Act.
Right against Handcuffing :
Handcuffing of accused persons by escorts taking them from jail to court and back in absence of there being a compulsive need to do so has been disapproved by the Supreme Court in Prem Shanker v. Delhi Administration , It has been expressed in no uncertain terms that to handcuff is to hoop harshly and to punish humiliatingly and that it is necessarily implicit in Article 14 and 19 of the Constitution that when there is no compulsive need to fetter person's limbs, it is sadistic, capricious, despotic and demoralizing to humble a man by manacling him. The minimal freedom of movement, which even a detainee, is entitled to under Article 19, can not be cut down by application of handcuffs. A malicious use of the power to restrain a person by handcuffing him or otherwise can bring Section 220 of the Indian Penal Code into play. The object of imposing restraint on the person of the prisoner while in continued custody is to prevent his escape and that object itself defines at once the bounds of the power to keep the person in custody.
Right against Torture and Assault:
"It has always been a mystery to me how man can feel honoured by the humiliation of their fellow beings. " - - Mahatma Gandhi
Violence and inhuman treatment to the prisoners under police custody is nothing new in our country. There are thousands of examples where police himself is violator of human rights. The arrest of the person suspected of crime does not warrant any physical violence on the person or his torture. But when the captive exercises his fundamental right to silence against self-incrimination during his interrogation, the police often abuse their authority by use of criminal force to extort information. The tyrannical way of custodial interrogation that exposes the suspect to the risk of abuse of his person or dignity has prompted the Supreme Court to ordain that interrogation should not be accompanied with torture or use of "third degree" methods, The Constitution as well as the statutory laws condemn the conduct of any official in extorting the confession or information under compulsion by using any "third degree" methods. A confession to any police officer can not be proved as against a person accused of any offence . A confession caused by threats from a person in authority in order to avoid any evil of temporal nature would be irrelevant in criminal proceedings as, inter-alia, provides in Section 24 of the Indian Evidence Act. Section 330 and 331 of the Indian Penal Code provide for punishment to one who voluntarily caused hurt or grievous hurt to extort the confession or any information which may lead to detection of an offence or misconduct. The expression "life or personal liberty" in Article 21 of the Constitution includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person. The Supreme Court in D. K. Basu v. State of West Bengal held that "custodial torture" is a naked violation of human dignity and degradation which destroys to a very large extent human personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backwards- flag of humanity must on each such occasion fly half-mast. The convicts, undertrials, detenues and other persons in custody can not be denied the precious right to live with human dignity. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. "State terrorism" is no answer to combat criminality.
Right against Arbitrary Arrests:
A large number of complaints pertaining to human rights violations are in the area of abuse of police powers, particularly those of arrest and detection. It has, therefore, become necessary, with a view to narrowing the gap between law and practice, to prescribe guidelines regarding arrest while at the same time not unduly curtailing the power of the police to effectively maintain and enforce law and order and proper investigation.
In modem society liberty is absolutely essential for progress. The exercise of liberty, however, is only possible if some limitations are placed on it. Absolute liberty only leads to anarchy and lawlessness. It is where we have to strike the balance which is the matter of great importance. In Joginder Kumar v. State of U. P. and Others , the Supreme Court observed: "To strike the balance between the needs of the law enforcement on the one hand and protection of citizen from oppression and injustice at the hands of the law enforcement machinery on the other is a perennial problem of statecraft".
In India the practice of police force is that whenever a cognizable offence is reported, the police arrests the accused person without even making a preliminary inquiry whether there is a prima facie evidence of guilt. This was rightly criticized in Joginder Kumar case in which the Supreme Court quoting the report of the Third Report of the National Police Commission held that on an average 60% of the arrests are either unnecessary or unjustified. In this connection it may be pointed out that in Section 157 of Criminal Procedure Code it is mentioned that that the police may make investigating of a cognizable case and if necessary arrest the offender. Thus arrest is not must in every case where a cognizable case is reported. Despite this clear provision the practice of the police has been to arrest the accused in all cases of cognizable offences. Unlawful and unjustified arrest may irreparably harm the reputation of a person. Arrest should not be arbitrary and in deciding whether to arrest or not the police officer must be guided by the principles laid down in Joginder Kumar case.
An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances :-
(1) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(2) Accused is likely to abscond and evade the process of law.
(3) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(4) Accused is habitual offender and unless kept in custody he is likely to commit similar offences again.
The above guidelines have been followed in various other cases. It may be suggested that suspected that suspected person should be arrested after preliminary enquiry. A basis tenet of our criminal justice system is: 'Let hundred guilty walk free but do not punish an innocent.' The police, which is a part of criminal justice system, functions exactly the other way round. Liberty is an important feature of civilized society and it should not be lightly transgressed. When we have to enforce the criminal law in a fair and just manner, we must never give up our civil liberties which were won by our founding fathers after great sacrifices, as these are essential for the progress of nation.
*Article Written by: Savita Kumari, Research Scholar Kurukshetra University Kurukshetra
Criminal Appeal No. 1267 of 2004, Supreme Court of India,
AIR 1980 SC 1535
Kartar Singh v. State of Punjab, (1994) 3 SCC569.
Section 25 of Indian Evidence Act, 1872.
AIR 1997 SC 610.
AIR 1994 SC 1349.