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" Introduction
Man is the most accomplished of all creatures of our universe. He is so
immeasurably admirable in his faculties of thought, action and reason
that Shakespeare declares him, as 'the beauty of the world'. It is
perhaps due to this celebrated glory of man that human community, right
from the early days of civilization, has consistently held certain basic
values which are inviolable under any circumstance. These basic values
of life and personal liberty have come to be termed differently as civil
liberties and human rights. History is replete with instances of
successful and relentless struggles whenever persons in authority whose
primary duty is considered the protection of human rights infringed upon
these basic rights of human beings. These persons in authority often
form the core of the criminal justice system in a country, unmistakably
composed of the Police, Judiciary and Correctional Services. It is often
upon them that the responsibility of protection of these basic human
rights rests and when they end up violating these basic rights they are
in violation of the benchmark of human rights - the Universal
Declaration of Human Rights (UDHR), 1948. In what follows, the author
shall discuss how these protectors of human rights in the criminal
justice system, namely the police, the judiciary and the correctional
services, violate the provisions of the UDHR.
" The Police
Justice A N Mulla had once commented, " I say it with all sense of
responsibility that there is not a single lawless group in the whole
country whose record of crime is anywhere near the record of that
organized unit which is known as the Indian Police Force." Indeed the
police force has gained much negative publicity for its lawlessness.
Today, custodial deaths, rapes and tortures have drawn the attention of
the media and the legislature. Efforts are being made to restrict the
occurrence of such unfortunate incidents. The Human Rights Commissions
are playing a great role in this aspect and they have partially
succeeded in containing the violations of civil liberties by the state
agencies like the police.
In my opinion the non-registration of cases by the police constitutes
one of the most serious forms of violation of human rights. According to
the National Police Commission (1978), the most important factor
responsible for non-registration of complaints is the anxiety of the
political executive in the state governments to keep the recorded crime
figures low so that they can claim before the public and the State
Legislature that crime has been well-controlled and is going down
because of the efficiency of the police administration under their
charge. This type of a statistical approach of the political executive
is largely responsible for understating the crime figures in states.
Again it is noticed that subordinate officers try to avoid registration
of cases by pointing out that the offence occurred in the jurisdiction
of another police station. As a result, a complainant has to run from
pillar to post to locate the particular police station and get the case
registered. Under S. 154 Cr P C, the officer-in-charge of a police
station has to register a case and draw up an FIR as soon as a complaint
of cognizable offence is laid at the police station. There is no scope
for non-registration of cases under the pretext of jurisdictional
controversy.
This certainly is a violation of Articles 7 and 8 of UDHR as they speak
about the equality of all before the law and everyone's right to an
effective remedy by competent tribunals for violation of their
fundamental rights.
The National Police Commission in its third report referring to the
quality of arrests in India mentioned power to arrest by the police in
India as one of the chief sources of corruption in the police. The
report suggested that by and large, nearly 60 percent of the arrests
were either unnecessary or unjustified and such unjustified police
action accounted for 43.2 percent of the expenditure of the jails.
Article 3 of the UDHR says, " Everyone has a right to life, liberty and
the security of person." Article 9 too says, " No one shall be subjected
to arbitrary arrest, detention or exile." The police blatantly violate
both these provisions. The Supreme Court in Joginder Kumar v. State of
U.P. explained the powers of the police to arrest an accused. It laid
down that no arrest can be made because it is lawful for the police
officer to do so. The existence of power to arrest is one thing. The
justification for exercise of it is quite another. The police officer
must be able to justify the arrest apart from the power to do so. Arrest
and detention in the police lock-up of a person can bring upon
incalculable harm to the reputation and self-esteem of a person,
sometimes even ending in suicides by such victims. It would be prudent
for a police officer that no arrest is made without a reasonable
satisfaction is reached after some investigation as to the genuineness
and bonafides of a complaint. Denying a person of his liberty is a
serious matter. Highlighting the imperatives of necessity principle, the
Third Report of National Police Commission has suggested:
"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. The accused is likely to abscond and evade the processes 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. The accused is habitual offender and unless kept in custody he is
likely to commit similar offence again.
It would be desirable to insist through departmental instructions that a
police officer making an arrest should also record in the case diary the
reasons for making the arrest, thereby clarifying his conformity to the
specified guidelines."
The right to be informed of the grounds of arrest is a precious right of
the accused. It enables him to approach the court for bail or in
appropriate circumstances for the writ of habeas corpus or make the
expeditious arrangements for his defense. Hence, a duty is cast upon a
police officer, arresting a person without warrant, to forthwith
communicate to him full particulars of the offence and other grounds for
such arrest. In bailable offences police officer is required to inform a
person arrested that he is entitled to be released on bail. If this is
not accomplished then the police officer is in violation of Article 9,
which envisages that "arbitrary arrests" are not made.
The Apex Court has further laid down the procedure for arrest in
D K Basu v. State of WB .
The right to be brought before a Magistrate within a period of not more
than twenty-four hours of arrest has been created with a view:
1. To prevent arrest and detention for the purposes of attracting
confession or a means of compelling people to give information.
2. To prevent police stations being used as though they were prisons-a
purpose for which they are unsuitable.
3. To afford an early recourse to a judicial officer independent of
police on all questions of bail and discharge.
A police officer often ends up violating this requirement and hence is
in violation of Article 10, which says, "Everyone is entitled in full
equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any
criminal charge against him."
A custodial death is perhaps one of the worst crimes in a civilized
society governed by the rule of law. Custodial death as a result of
police atrocities is the extreme form of police cruelty and as such is a
blatant violation of human rights. Article 5 of UDHR states, "No one
shall be subjected to torture or to cruel, inhuman treatment or
punishment."
Khatri v. State of Bihar, shocked the entire nation. This case depicts
the extent to which police can go in committing atrocities on persons
under its custody. In this case the Supreme Court considered the
question of granting compensation to the victims of police atrocities
and answered it in the affirmative that if it were not so Article 21 of
the Constitution would be reduced to a nullity, "a mere rope of sand."
From Rudul Sah v. State of Bihar to
PUDR v. State of Bihar the apex
court has brought about revolutionary breakthrough in the "human rights
jurisprudence" by evolving the principle that compensation is to be paid
to victims of police atrocities. In SAHELI v. Commr. of Police, Delhi a
child of nine years died because of being battered by a police officer.
The Supreme Court again held that the state is liable to pay
compensation in case of police atrocities and accordingly it directed
the government to pay Rs. 75,000 as compensation to the mother of
victim. Nilabati Behera v. State of Orissa is yet another case of
custodial death where the deceased was taken in police custody and next
day his body was found on railway track with multiple injuries. The
Supreme Court reiterated that in case of violation of fundamental rights
by state instrumentalities or servants, court can direct the state to
pay compensation to victim or his/her heir or legal representative. The
principle of 'sovereign immunity' shall be inapplicable in such cases.
Having regard to the age and income of the deceased, the state was
directed in this case to pay Rs. 1,50,000 as compensation to the
deceased's mother.
In Criminal Justice Administration police through their restrictive and
their coercive authority arrests, interrogates, searches, seizes and
detains people prior to trial. All these actions affect individual's
liberty and when done arbitrarily, individual's dignity. India follows
the accusatorial model of criminal justice, which is different from the
inquisitorial model. Accusatorial model presumes the accused to be
innocent until proved guilty. Even after the acceptance of the human
rights principles in India, police are blamed to have failed to accept
the fact they are accountable to the people for the human rights
violations. There is no substantial change in police behaviour even
after almost six decades of independence.
" Judiciary
One of the most neglected aspects of criminal justice system is the
delay caused in the disposal of the cases and detention of the poor
accused pending trial. Procrastination of trials may sometimes result in
injustice because of a duly prolonged process much of the material
evidence may perish as when witness may die or when situations are
altered.
Long incarceration without trial is not only violative of the
Constitution, but is also against India's commitment to the UDHR.
Article 3 of the declaration reads, "Everyone has a right to life,
liberty and security of a person." Article 5 provides, "No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment." Article 8 envisages, "Everyone has a right to an effective
remedy by the competent national tribunal for acts violating the
fundamental rights granted to him by the constitution or by the law."
Article 9 says, "No one shall be subjected to arbitrary arrest,
detention or exile." Article 10 declares, "Everyone is entitled in full
equality to fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any
criminal charge against him." Article 11(1) stipulates, "Everyone
charged with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which he has had all
the guarantees necessary for his defense."
Thus the letter of law recognizes the right of an accused to speedy
trial, but the problem is how to make it a reality. Mere passing of a
law is not enough. Justice Krishna Iyer while dealing with the bail
petition in Babu Singh v. State of UP , remarked, "Our justice system
even in grave cases, suffers from slow motion syndrome which is lethal
to 'fair trial' whatever the ultimate decision. Speedy justice is a
component of social justice since the community, as a whole, is
concerned in the criminal being condignly and finally punished within a
reasonable time and the innocent being absolved from the inordinate
ordeal of criminal proceedings." Justice Bhagwati in
Hussainara Khatoon
v. Home Secy, State of Bihar declared that the right to speedy trial is
an essential part of fundamental right to life and liberty enshrined in
Article 21 of the Constitution. In Sheela Barse v. Union of India
court
reaffirmed that "the right to speedy trial is a fundamental right
implicit in Article 21 of the Constitution" and observed "the
consequence of violation of fundamental right to speedy trial would mean
that the prosecution itself would be liable to be quashed on the ground
that it is in breach of the fundamental right."
An important reason for reluctance of the public to cooperate with the
criminal justice system is the fact that their attendance in court
entails a lot of inconvenience and harassment. In Bhim Singh v. State of
J&K the Supreme Court deprecated the manner of passing remand order by
the Judicial Magistrate without physical production of the accused
person. The arrested accused has a right to medical examination during
his detention in custody. In Sheela Barse's Case , the Supreme Court has
made it obligatory on the part of the magistrate to enquire from the
arrested person whether he has any complaint of torture or maltreatment
in police custody and to inform him that he has a right to be medically
examined.
Right to privacy has been recognized as both a fundamental right and a
right guaranteed under the UDHR. Article 12 of UDHR reads, "No one shall
be subjected to arbitrary interference with his privacy everyone has a
right to the protection of the law against such interference or
attacks." The Supreme Court has accepted it as a fundamental right for
the first time in Kharak Singh's case where UP Police regulation
authorizing surveillance by way of domiciliary visit and secret
picketing were declared ultra-vires the Constitution. In
Raja Gopala's
case the apex court has observed that a citizen has a right to safeguard
the privacy of his own, his family, marriage procreation, motherhood,
child-bearing and education among other matters, because right to
privacy implicit in the right to life and liberty guaranteed to the
citizen of this country under Article 21 of the Constitution. The
privacy of a rape victim is violated during a criminal case. Taking
advantage of the lacunae in legal procedure the shrewd defense lawyer
will invariably encroach upon the privacy of the prosecutrix. It is time
we ponder over this problem faced by the victims of rape during court
trial and make in-camera trial mandatory for all rape cases. To protect
the privacy of the rape-victims, it is desirable that the identity of
the victims must not be published in any manner by any agency at any
time.
To fulfill the constitutional obligations, the apex court must evolve a
policy of giving mandatory instructions to the lower judiciary to abide
by the principles enshrined in UDHR namely the right to speedy trial,
right to fair trial and the right of defense.
" Correctional Services
The criminologists maintain that Indian jails have grown onto new crime
factories, producing hardened criminals. The horrifying stories of
prison management hardly need any documentation.
In Prem Shankar Shukla v. Delhi Administration the Supreme Court gave a
number of directions with a view to reforming and humanizing the jail
administration. Unfortunately, for a variety of reasons, the directions
of the Supreme Court are not being followed properly in most of the
jails in the country. Similarly, in the case of Sheela Barse the Court
dealt with the question of treatment of women in police lock-ups and
gave detailed directions for improving conditions in the lock-ups and
providing adequate protection of the arrested persons and particularly
to women kept in the lock-ups. Describing the conditions of police
lock-ups, Justice A N Mulla Committee on Jail Reforms has pointed out, "
most of these lock-ups have insufficient accommodation and are without
even such basic facilities as lavatories, light, water and ventilation.
Sanitary conditions in these lock-ups are also utterly unsatisfactory.
The very first encounter of a person with the criminal justice system
thus invokes in him a reaction of abhorrence for and distrust in the
criminal justice system. Conditions of police lock-ups need to be
urgently improved." He has further added that, " the conditions of
living in sub jails are worse than in many bigger jails mainly because
the buildings are old, improvised and badly maintained. There is acute
paucity of funds and facilities; and the management is left to the care
of ill-paid, low level staff with remote or indifferent supervision.
There are no adequate arrangements for preparing food for the prisoners
within the sub-jail premises and sub-standard cooked food is supplied
through contract system."
The presence of a large number of under-trial and unconnected prisoners
has continued to be a scandal for long. A mention of the state of
under-trials and the victims of procrastination in trials is
inescapable. The Mulla Committee again observed that the presence of an
excessive number of under-trial, remand and other unconvicted prisoners
has created, and not wrongly, an increasing public and professional
concern about the non-observance of human rights, as guaranteed in the
UDHR, in these institutions. The plight of Dhananjoy Chatterjee (the
infamous person guilty of raping and murdering a 14-year old) who
languished in Alipore Jail awaiting his execution for 14 years because
of the sheer amount of time taken in litigation is a case in point.
Justice Krishna Iyer is right when he says, " these institutions and not
the inmates are criminals." The situation could be summed up in one
sentence: the human rights violations in custodial and correctional
institutions (the kinds of which we have), are not stray phenomena, but
widespread and deep-rooted in the system.
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The
author can be reached at: jayparikh@legalserviceindia.com /
