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There can be no gain saying that freedom of
an individual must yield to be security of the State. The Courts have upheld the
right of preventive detention of individuals in the interest of security of the
State in various situations prescribed under different statutes. The right to
interrogate the detenus, culprits or arrestees in the interest of the nation,
must take precedence over an individual's right to personal liberty. The Latin
maxim salus populi est suprema lex (the safety of the people is the supreme law)
and salus republicae est suprema lex (safety of the State is the Supreme law)
co-exist and are not only important
and relevant but lie at the heart of the doctrine that the welfare of an
individual must yield to that of the community. The action of the State,
however, must be "right, just and fair". Using any form of torture for
extracting any kind of information would neither be 'right nor just nor fair'
and, therefore, would be impermissible, being offensive to Article 21. Such a
crime-suspect must be interrogated - indeed subjected to sustained and
scientific interrogation - determined in accordance with the provision of law.
He cannot, however, be tortured or subjected to third degree methods or
eliminated with a view to elicit information, extract confession or drive
knowledge about his accomplices, weapons etc.
His Constitutional right cannot be abridged
except in the manner permitted by law, though in the very nature of things there
would be qualitative difference in the method of interrogation of such a person
as compared to an ordinary criminal. Challenge of terrorism must be met with
innovative ideas and approach. State terrorism is no answer to combat terrorism.
State terrorism would only provide legitimacy to 'terrorism'. That would be bad
for the State, the community and above all for the Rule of Law. The State must,
therefore, ensure that various agencies deployed by it for combating terrorism
act within the bounds of law and not become law unto them. That the terrorist
has violated human rights of innocent citizens may render him liable for
punishment but it cannot justify the violation of his human rights except in the
manner permitted by law. Need, therefore, is to develop scientific methods of
investigation and train the investigators properly to interrogate to meet the
challenge.
In addition to the statutory and
constitutional requirements to which I made a reference, I am is of the view
that it would be useful and effective to structure appropriate machinery for
contemporaneous recording and notification of all cases of arrest and detention
to bring in transparency and accountability. It is desirable that the officer
arresting a person should prepare a memo of his arrest at the time of arrest in
the presence of at least one witness who may be a member of the family of the
arrestee or a respectable person of the locality from where the arrest is made.
The date and time of arrest shall be recorded
in the memo, which must also be counter signed by the arrestee. All these
provisions of law have been declared by the Honble Supreme Court in various
cases and are to be followed strictly in order to make the law and order as well
as rule of law in the society and here comes into the picture the role of Human
Rights Agencies.
Country Reports on
Human Rights Practices - 2003 Released on February 25, 2004
The law prohibits torture, and confessions extracted by force generally are
inadmissible in court; however, authorities often used torture during
interrogations. In other instances, authorities tortured detainees to extort
money and sometimes as summary punishment. The U.N. Special Rapporteur on
Torture has reported that the security forces systematically tortured persons in
Jammu and Kashmir to coerce confessions to militant activity, to reveal
information about suspected militants, or to inflict punishment for suspected
support or sympathy with militants.
In a 1996 report, the U.N. Special
Rapporteur on Torture noted that methods of torture included beating, rape,
crushing the leg muscles with a wooden roller, burning with heated objects, and
electric shocks. Because many alleged torture victims died in custody, and
others were afraid to speak out, there were few firsthand accounts, although
marks of torture often were found on the bodies of deceased detainees. For
example, in February, there were protests in the villages of Handwara and Trial,
after a Rashtriya Rifles unit detained two villagers, allegedly tortured them
for 2 days and then released them. There were no
reports of action taken in any of these cases. Unlike in 2001, the Home Ministry
again did not extend an invitation to the U.N. Special Rapporteurs on Torture
and on extra judicial Killings.
The prevalence of torture by police in
detention facilities throughout the country was reflected in the number of cases
of deaths in police custody. New Delhi's Tihar jail was notorious for the
mistreatment of prisoners, with approximately 10 percent of custodial deaths
nationwide occurring there. Police and jailers typically assaulted new prisoners
for money and personal articles. In addition, police commonly tortured detainees
during custodial interrogation. Although police officers were subject to
prosecution for such offenses under the Penal Code, the Government often failed
to hold them accountable. Torture usually takes place under two scenarios: In
the course of regular criminal investigations, and following unlawful and
arbitrary arrests. For example, during criminal investigations, police
frequently resorted to torture to extract information from suspects while in
custody.
The family of the 14-year-old girl allegedly
abducted, tortured, and raped for 6 days by Patiala police in Punjab in 2001
filed a report with the state authorities to press for prosecution of the
responsible police officer. The state government at years end took no action.
Human rights training for new recruits,
middle ranks, and long-serving officers continued at the National Police
Academy. The training has raised police awareness of human rights, and there was
some decrease in police use of physical force. According to the NHRC, complaints
of police harassment and abuse generally declined over a 3-year period. In
April, the Home Ministry reported that from 2002 until April, there were 28,765
complaints lodged against police, compared with 29,964 in 2001-2002, and 32,123
in 2000-2001. Some militant groups in the northeast used rape as a tactic to
terrorize the populace; however, no cases were known to be reported during the
year.
In Punjab, cases of torture were
inadequately prosecuted, and victims frequently refused to accept compensation
out of fear of retribution. Allegations by human rights activists that victims
were hounded and harassed by government agents were common.
The 1,157 deaths in judicial custody
reported to the NHRC in March included a large proportion of deaths from natural
causes that in some cases were aggravated by poor prison conditions. Deaths in
police custody, which typically occurred within hours or days of initial
detention, more clearly implied violent abuse and torture. However, in January
2001, the NHRC requested that the Commission be informed of any custodial death
within 2 months and that a post-mortem report, magisterial inquest, and a video
of the post-mortem be provided to the NHRC.
The NHRC identified torture and deaths in
detention as one of its priority concerns. In February, the Government disclosed
plans to supplement state funds to effect prison reforms. Noting that Orissa
demonstrated a particular need for assistance, the Home Ministry reported that
it had provided $5,000 (233,078 Rs) for the modernization of the prison
administration between 1993 and 2002.
Role of National
Human Right Commission
International convention and norms, in case of void in the domestic law, when
there is no inconsistency between them have been used to fill the void or
enlarge the meaning and the content of the fundamental rights, as a canon of
construction. The award of compensation as a public law remedy, distinct from,
and in addition to private law remedy in torts or damages, has been held to be a
mode of enforcement of a fundamental right. In this manner, award of
compensation as a remedy in public law for custodial death is recognized.
It may be mentioned that the provision to
award immediate interim relief under Section 83 of the protection of Human
Rights Act 1993 available to the NHRC. In addition to power under Section 18(1)
to recommend the initiation of proceedings for prosecution or such other action
as the commission may deem fit against the person responsible for the violation
of Human Right, or negligence in the prevention of Human Right.
NHRC took certain
steps to put restriction on police that is discussed below: --
1.) 14 Dec, the commission has required all District Magistrate\
Superintendent of Police to report any instance of Custodial Death or Rape,
directly to the commission with in 24 hours of occurrence. Failure to send such
report, it has been emphasized, would lead to presumption by the commission that
an effort was being made to suppress the occurrence.
2.) The commission recommended some
amendment in law to put certain restriction on police:
a.) Insertion of S 114 (b) in Indian Evidence Act
1872 to introduce a rebuttal presumption that the injury sustained by a person
in police custody may be presumed to have been caused by the police officer.
b.) The
commission and support the recommendation of ILC that S 197 of Cr.P.C. be
amended to obviate the neccesi9ty of governmental sanction for the prosecution
of the police officer where the prima facie case has been established, in one
enquiry conducted by the session judge, of a commission of a custodial offence.
c.) Commission
has taken the view that the compensation due to the next of kin of those who
have died custody, should be liability not just of the state government, but of
the police officer them selves.
d.) Another
suggestion by the commission was that, there should be a mandatory enquiry by a
session judge in each case of custodial death, rape or grievous hurt.
3.) In respect of custodial death
cases, the present instructions of the National Human Rights Commission could be
changed .to the effect that the State, authorities could be instructed to also
inform the concerned State Human Rights Commission of custodial deaths in
respect of that particular State.
4.) Guidelines need to be framed for
videotaping the post-mortems, in order to make the videotape effective and
useful in processing custodial death cases.
Conclusion
After adoption of UDHR near about 57 years have passed. This period was the
period of movement of Human Rights all over the world. This movement started as
the reaction of world against Nazis atrocities and large-scale violations of
Human Rights during the Second World War. This helped in making Human Rights as
permanent part of international law and domestic
law. Today the world menaced by weapons of mass destruction, nuclear weapons,
wide spread violence terrorism, torture etc, respect for and observation of
Human Rights is the only hope which can save this advanced civilization from
annihilation. For this the opening address of Boutrs Boutros Ghali, former UN
Secretary General, at the world conference on Human Right, June 14, 1993 are
notable: --
Not a day goes by the scene of warfare. Not
a day goes by without the reason of attack on most fundamental freedom. Not a
day goes by with out reminders of racism and the crimes it spawns, intolerance
and the excesses it breeds, under development and the ravages it causes.
Therefore going through the above
observation of former Secretary General of UN we can understand the vitality of
the Human Rights and various Human Right Agencies. But at the same time as we
are fighting Terrorism, Naxalites problem as well as communal riots for which we
had to have a strict interrogation process in order to save the life of innocent
individuals. As we can see that today the terrorism is spreading outside the
boundaries of one country to another, which is an alarming situation for the
world and is demanding stricter punishment for them. We cannot take one corner
either protect the human rights in one hand and at other hand can give them
license to do whatever they want. For this we had to have a balancing approach
for overcoming the problem of terrorism and Human Rights. |
The
author can be reached at: DSM@legalserviceindia.com
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