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Torture, Terrorism & Police: A need for Balancing of Human Rights

Written by: Durga Shankar Mishra and Gayatri Mishra
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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.

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.

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