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Violation of UDHR

Violation of UDHR in
Criminal Justice System

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Written By : Jay Parikh - 4TH year, National University of Juridical Sciences

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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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