The Police and you
The People’s Union for Human Rights (PUHR) is launching a campaign to ensure greater access, increase communication and assure accountability between the citizen’s and the police. As a rights’ group concerned with the increasing instances of gross lapses in police conduct we feel that it necessary to restore trust between citizens and the police. This can only happen if there is transparency and basic accountability in the day to day functioning of the police and police stations.
In a democracy and under the Indian Constitution, the police as representative of a state who’s sovereignity lies in the Indian people are public servants and the police station public property. The conduct within it needs to conform to law, needs to respect basic human freedoms to ensure a basic confidence between the people of a city, state or region and the wings of the state, the law and order machinery-- the police.
As a rights’ group we are concerned over the serious note of lapses in police conduct, especially in the matter of following the letter and spirit of Indian law when it comes to arrest, the principles and methods followed in granting bail and the conduct of policemen with detainees. The use of torture and illegal treatment, often in detention, are the norm rather than the exception. These lapses have been the subject matter of at least two historic Supreme Court decisions, Joginder Kumar versus State of Uttar Pradesh, 1994 and D.K. Basu versus State of West Bengal, 1997.
Through our experiences as individual rights’ activists we have also been actively campaigning for higher sensitivities to basic rights’s issues among the higher and lower echelons of the police and among the executive and judiciary at large. Lapses in police conduct over the past two decades particularly, have reflected sharp biases in not just the treatment to detainees and civil society by the police in general, but specifically brutalised treatment of sections being targeted and demonised within the polity in particular. Individual activists of the PUHR have been at the forefront of campaigns exposing the communal bias that affects the judgement and conduct of a policeman, under stress, during outbreaks of communal tension or in full-fledged pogroms launched against minority sections.
It is with this experience and understanding behind us that we have begun this police and you campaign. It is nothing short of a campaign for greater accountability between the policeman and civil society, a case for day-to-day transparency in functioning, a line of communication between the officers of the law and the people, the citizenry. Our understanding is that there will not be accountability, transparency and functioning according to the law at times of outbreaks of violence and stress, if there is no transparency and accountability in normal times, that is, at peace time.
The normal functioning of your police station needs to be understood and monitored so that we are informed of and confident that, lawful procedures are being followed. Such a monitoring will also help us in establishing contact with the police station when needed. The police station needs to become a space for the healthy and active interventions by the citizenry and not as a place that symbolises discomfort, fear, and even abject terror.
It is to this conviction that the police and you campaign is dedicated. We appeal and expect the highest co-operation from the police while reserving at all times our duty as independent
members of civil society to struggle for the maintenance of the rule of law, with all it’s
accompanying commitment to egalitarianism and non-discrimination.
Official institutions and organs of the state, quite apart from a spectrum of human rights groups have been raising many of the issues that the police and you campaign wishes to convert into a vibrant movement for accountability and the real establishment of the rule of law.
We have reached a dangerous point where even in urban cities, the utter breakdown of the rule of law is met with harsher punitive measures and terminal solutions that restrict rather than enhance accountability and transparency.
In such an atmosphere of apparent lawlessness, officers of the law have become vocal proponents of swift, terminal solutions that have not borne out the test of careful examination and scrutiny. While the threats posed by organised crime to civil society have created an atmosphere in which such trigger happy, untested and harsh solutions appear to have wider support, voices concerned with both individual freedoms and the lasting health of our institutions -- not too irreconciliable opposites, we believe -- need to step back and provide the dissenting voice.
Any institution granted arbitrary powers, without the requisite checks and balances runs the risk of turning autocratic. Arbitrary methods, designed for exceptional use become the norm. The police, especially, when given the license to function out of the pale of lawful constraints against arbitrary functioning and abuse --albeit for ‘criminals’ alone--is likely to become accustomed to arbitrary methods that seriously affect life and liberty. What are the consequences of a trigger happy police force, given to the use of torture, for future generations?
The time is right for citizens to step forward actively and participate, as active watchdogs, to ensure that all safeguards for protection of an individual’s rights are duly maintained. In the matter of arrest, detention and bail, we have found that there are many lapses in observance of the law.
Moreover, two major Commissions of different wings of the Executive, the National
Police Commission in it’s Third Report and the Law Commission in October 2000 on the Law of Arrest have both identified the quality of arrests (indiscriminate arrests) by the Police in India as one of the chief sources of corruption in the police.
These are some findings of the National Police Commission, Third Report of the NPC :
Ø Nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at page 31 observed thus: "It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention.
Ø Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all."…. (The figures given in the Report of the National Police Commission are more than two decades old. Today, if anything, the position is worse.)
Under Indian law, it is the Indian Constitution, the Criminal Procedure Code, the Indian Penal Code and the Indian Evidence Act apart from the state or city police manuals that govern the law of arrest; that is on what grounds the police can arrest individuals, the basic constraints on police action to prevent arbitrary police conduct and assure the protection of the personal liberty of an individual. It is important to know what these safeguards are to understand what ought to be the mandatory police conduct that every citizen can as a matter of right can insist upon.
This mandatory conduct relates to the registering of complaints and FIRs, the maintenance of custodial records, a transparency in the conduct of policemen with detainees in custody etc.
Grounds for Arrest
Arrests should be made only in the case of grave offences. The Third Report of the National Police Commission has clearly laid this principal out:
"…An arrest during the investigation of a cognizable case maybe 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 a habitual offender and unless kept in custody he is likely to commit similar offences 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 National Police Commission report states clearly that the safeguards and guidelines that it is making are in extension of the already existing powers of individual liberty enshrined in Articles 21 and 22 of the Indian Constitution.
To quote "The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s
complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave Station without permission would do."
Ten years ago, the NPC recommended that some changes be made in law to give teeth to the legal requirements compelling policemen to follow strict procedures regarding arrest, custody and detention to prevent abuse of individual freedoms and personal liberty. This has still not happened.
Legal Protection/Safeguards for Detainees in Custody
To quote the NPC "These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognized and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements:
1. An arrested person being held in custody is entitled, if he so requests to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The Police Officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various Police Manuals. These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance o these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest."
Safeguards/Limitations on Police Conduct
Besides the National Police Commission recommendations, in 1997, the historic judgement of the Supreme Court in D.K. Basu v/s State of West Bengal (AIR 1997 SC 610) compels the Indian police force to follow these requirements. These are:
1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
2. The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the
Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. This has implications for migrant labour from the unorganised sector, and rural populations in general.
5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of
the arrest and the names and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the timeof his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time.
8. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
9. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
10. Copies of all the documents including the memo of arrest, referred to above, should be sent to the concerned Magistrate for his record.
11. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
12. A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control
room it should be displayed on a conspicuous police board."
Implementation and Application of Human Rights’ Safeguards
The Supreme Court in D.K. Basu v/s State of West Bengal (AIR 1997 SC 610)
Judgement itself emphasises implementation and application of the strict guidelines on the laws of arrest as laid down by the Supreme Court. It says:
" Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country , having territorial jurisdiction over the matter.
The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier."
The Judgement further addresses the issue of implementation of the Supreme Court guidelines in a de-centralised fashion so that they percolate down to the local police station as also become accessible as information about our basic rights to individual members of civil society who may not have access to legal documents through simple communication means like radio and television. It says:
The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every State/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on the All India Radio besides being shown on the National Network of Doordarshan and by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes."
Recent (November 2000) recommendations of the Law Commission quote both Supreme Court judgements and the recommendations of the National Police Commission extensively. They also lament that neither the NPC reccomendations nor the interpretation of the law as laid down by the Supreme Court are followed in strict application.
N.R.Madhava Menon, leading legal academic in his preface to "Training Mannual for Police on Human Rights" published by the National Law School commented:" Higher standards have been set in police conduct and better safeguards have been developed to ensure observance of human rights. While all these happened in the Constitutional Jurisprudence of the country, it is unfortunate that the police organization and management continued in the century-old framework under the Police Act of 1861".
The recommendations also clearly state that : Representatives of registered rights groups and NGOs should be entitled, under law, to visit police stations and examine custodial records." This is the latest recommendation of the Law Commission of India based on an assessment of police conduct vis a vis protection of personal liberties as enshrined within the Indian Constitution. It is simply this assessment that the PUHR through it’s Police Accountability Campaign wishes to address.
Arrest and Detention of Women
Section 160(1) of the CrPC allows police to require attendance of witnesses at a police station "provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides." This provision is routinely ignored.
In November 1994, the report of a Commission of Inquiry held into the rape of a woman and the death of her husband in custody in Tamil Nadu in June 1992 was made public Several recommendations were made in the report including the following:
"Whenever female persons are taken to the Police Station for interrogation, W.P.Cs (Women Police Constables) may be immediately posted to guard them till they are kept in the police station.Whenever there is allegation of rape during custody in Police Station the victim should be immediately sent for medical examination to find out whether rape has been committed on that person. Whenever allegation of rape is made during custody and the same was found true after investigation, the victims may be provided with adequate compensation so provided may be recovered from the culprits."
This commission of inquiry also recommended that the police personnel against whom there are allegations of rape should be suspended. Six years later, in July 1998, a similar incident occurred in the same state when a woman and her husband were severely tortured, and the man even died as a consequence of the severity of injury.
Arrest or search of women should only take place in the presence of women police officers and should not take place at night.
Women should be detained separately from men. The effectiveness of this gender-based detention should be monitored by independent mechanisms.
The practice of detaining, illegally, women relatives of alleged accused, or alleged absconding accused, as a means of forcing surrender of suspects should be clearly identified as illegal and constituting the offence of "wrongful confinement." Reports of such practices should be investigated promptly and action also taken against those reposnible.
Arrest and detention of children
It is the Juvenile Justice Act that governs the treatment meted out to "delinquent" and "neglected" children. A new draft legislation is pending before parliament on juvenile justice.
Meanwhile, there have been several reports of the ill-treatment of children by the police on arrest as well as when in custody of Remand Homes (Juvenile homes), particularly of street children. Section 18(2) of the current Juvenile Justice Act states that no child can be put in a jail or a lock-up. However, just as in the procedure of following legal procdures in matters of arresting and detaining adults, there are shocking lapses in the legal safeguards on arrest and custody of children leading to the severe abuse of children who require special protection.
In hearing India submit it’s initial report under the Convention on the Rights of the Child in January 2000, the Committee on the Rights of the Child Recommended that
The registration of each child taken to a police station be mandatory, including date, time and reasons for detention;
That such detention be subject to frequent and mandatory review by a magistrate;
The Committee further recommended that sections 53 and 54 of the CrPC be amended so that the medical examination, including age verification, is mandatory at the time of detention and at regular intervals
Torture
Deep and disparate divisions prevail within Indian society, dividing people sharply on economic/class lines, through tradition-driven caste based discrimination, community-driven biases and gender prejudices. Despite the commitment to democratic norms within the Constitution and within other laws, the political class and other institutions reflect have reflected these biases instead of removing them. These discriminatory factors have lead to the non-application of protectionary and egalitarian measures within the law for marginalized sections. The result is active discrimination on the basis of either sustained non-application or the active connivance of prejudicial factors operating within mechanisms of the state.
Studies of communal violence and juidicial commission reports into communal riots have exposed a deep majoritarian bias that affects the fair and impartial functioning of our police. Caste-driven violence and the non-implementation of laws to protect basic human rights and dignities of Dalits, who are accepted as being at least twenty per cent of our population, is further evidence of social disparities affecting application of egalitarian legal provisions. (see Appendix 2)
Torture and violence feeds off discrimination. The use or application of torture implies the dehumanization of the victim; this process of dehumanization is often easier if the victim hails from what is considered a despised social, caste, religious or economic group. The very existence of discrimination in society and within institutions of the state is conducive to the use of torture against certain groups, vulnerable to such abuse. Apart from detainees per se being easy victims of the application and indiscriminate use of torture, detainees from the sections marginalized by discrimination be they women, Dalits, religious minorities or persons living below the poverty line are far more likely to be the objects of torture than those from other sections of society.
Torture has not been specifically defined in the Indian Constitution or specifically prohibited in penal laws. However, the Supreme Court has held that the right not to be tortured is enshrined in the right to life guaranteed in Article 21 of the Constitution. Sections 330 and 331 of the Indian Penal Code (IPC) provide for punishment for "voluntarily causing hurt to extort confession or to compel restoration of property" and section 29 of the Indian Police Act 1861 provides for imprisonment not exceeding three months with or without hard labour for offences including "unwarrantable personal violence to any person in his custody". However these provisions are rarely used against police officials.
"Whenever a serious crime like robbery or a major burglary takes place, the area police sweeps on all possible suspects in the vicinity. They are picked from their homes and kept in the police station over several days, not formally in a lock-up, but in some other remote room, to escape detection….As the police is not quite comfortable keeping a man in illegal custody (because of fear of being discovered by the judiciary or magistracy or the media or human rights groups) the tendency is to get over with the whole thing quickly by the short-cut method of third-degree. The fact is that confessions do come easily with third –degree, except in a miniscule number of cases involving hardened criminals." (PadmanabhiahCommittee Report)
Guidelines such as the "Dos and Don’ts" issued to security forces in states of the north-east include instructions such as "do not use torture", but their effect is weakened by continuing barriers to victims of torture who wish to make complaints about the acts of security forces.
Implications of Preventive Detention
However, the powers to preventively detain people provided for in the Indian Constitution involve the suspension of important legal and constitutional safeguards and thereby facilitate torture and cruel, inhuman and degrading treatment of detainees. Clause 3(b) of Article 22 of the Indian Constitution excludes those detained under preventive detention legislation from the right to be informed of the grounds of arrest "as soon as may be", the right to consult and be defended by a legal practitioner of their choice and to be produced before a magistrate within 24 hours guaranteed under Article 22. Internationally it has been well-established that torture is most used when there is preventive detention that is almost always not subject to accepted standards of fundamental rights that protect a person’s life and liberty. The UN Special Rapporteur on torture has noted, "torture is most frequently practised during incommunicado detention [detention without access to the outside world]. Incommunicado detention should be made illegal and persons held in incommunicado detention should be released without delay. Legal provisions should ensure that detainees be given access to legal counsel within 24 hours of detention.
Preventive detention legislation includes the National Security Act, 1980 (which is in force throughout the country) and numerous state legislation including the Jammu and Kashmir Public Safety Act 1978 (PSA), the Tamil Nadu "Goondas" Act, 1982, and the Gujarat Prevention of Anti-Social Activities Act, 1985. Now Maharashtra has added another state preventive detention law, the Maharashtra Control of Organised Crimes Act (MCOCA), 1999.(see Appendix 1)
Prevention detention laws, like TADA was or the MCOCA (Maharashtra Control of Organised Crimes Act, 1999) deny individual freedoms and personal liberties since they invest in the police extraordinary powers that are violative of the individual freedoms enshrined and protected by Articles 21 and 22 of the Indian Constitution and basic criminal law.
The police and the executive both justify preventive detention laws on ground of increasing criminality but most specifically cross-border terrorism and crime that they claim requires special (and indirciminate) powers of detention, arrest, burden of proof and subsequent prosecution.
Despite the Indian government’s consistent laments about cross-border terrorism (the irresponsible dubbing of any and all crime as emanating from the ubiquitous ‘Pakistan-based ISI’ is one example), India today stands out as the only major democratic country not to be part of the International Criminal Court (ICC) which 139 countries have so far backed. Until a few years ago, the USA, Israel and the UK too had refused to back this demand; now all these countries have signed but India still resists. If it is genuinely concerned with tackling cross-border international crime, should not India join the rest of the world in making the International Criminal Court a reality?
Predictably, however the experience of TADA and other preventive detention laws shows that they are rarely if ever used against ‘terrorists’ or cross-border crime; in 99 per cent of the cases they become a powerful tool in the hands of a police already used to functioning out of the pale of basic Indian Constitutional and Criminal Law. The rate of conviction was very low during over 10 years of TADA, again a strong argument against preventive detention law and most serious of all, the law was used against politically inconvenient and dissenting sections of the population – be it Dalits or protestors against GATT or the new economic policy, trade unionists and the religious minorities,
Repealing of all preventive detention laws that severely restrict democratic dissent and invest further authority in an already insensitive police is necessary and must remain the wider focus and campaign of any human rights’ group.
Until that happens, however, a close monitoring of all cases investigated under preventive detention laws (central or state) is equally essential. For a rights’ group, therefore, concerned with transparency and accountability from the police, regular monitoring of arrests under whatever preventive detention law is in force in the state is necessary to ensure that it is applied extremely selectively and with discretion by the police and highest standards of accountability and transparency are maintained.
The safeguards available to citizens in matters of arrest and detention are also critically linked to the issue of conduct by the police with detainees, especially in the matter of torture and ill-treatment. There have been several attempts made by the National Human Rights Commission, other statutory bodies as well as numerous committees to address the issue of torture and ill-treatment that has become unfortunately identified with police behaviour.
Several judgements of the Supreme Court and High Courts have sought to address the issue of torture. The establishment of the National Human Rights Commission (NHRC) under the Protection of Human Rights Act has also helped focused on the issue of torture and ill-treatment of detainees, constituting a serious denial of basic human rights by the police.
The NHRC took prompt measures to monitor incidents of custodial violence leading to death: it ordered that all cases of death or rape in custody should be reported to it within 24 hours. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 passed by the UN General Assembly on December 10, 1984 and came into force on June 26, 1987. India signed the convention ten years later, in 1997.
The International Covenant on Civil and Political Rights (ICCPR)¸obliges signatory states to "ensure" that rights set out in that treaty, including the right to freedom from torture are available to one and all. The NHRC disclosed in August 2000 that between 1999-2000 there were 1,143 deaths in custody reported to them (judicial and police custody). Figures for the number of cases of torture reported to the NHRC were not disclosed by them; the NHRC does not log cases of torture in a separate category of complaints.
Under international law, operates the concept of due diligence binding on any state that is signatory to any international human rights treaty. Due diligence is supposed to describe the threshold of effort by which a state must undertake to fulfil it’s responsibility to protect individuals from any abuse of their rights. Due diligence by a signatory state includes
Taking effective steps to prevent such abuses;
To investigate them when they occur;
To prosecute the alleged perpetrator and bring them to justice through fair proceedings;
To provide adequate compensation and other forms of redress to the victim;
Above all it means ensuring that justice is done without discrimination of any kind, racial, ethnic, religious, class, gender or caste-based.
Customary international human rights law, contained in article 5 of the Universal Declaration of Human Rights (UDHR) or in article 7 the ICPPR as well as international humanitarian law treatsies to which India is a party is unequivocal on the question of the absolute non-justifiability of torture, cruel or degrading treatment or punishment. Torture is considered unjustified and illegal under any conditions. Despite this acceptance in law, a widespread existence of ill-treatment, brutal violence and torture and it’s acceptance within functionings of both government and state institutions as also in much of civil society is a disturbing reality within India today.
Apart from the more accepted forms of torture and it’s misuse by representatives of the state and within state-run institutions, especially by the police and even armed forces in areas like Jammu and Kashmir, large parts of the North-East that result in beatings, serious injuries resulting even in death in custody, human rights organizations are increasingly concerned with the widely prevalent practice of violence against women both in the home and within the community, the violent ill-treatment of domestic employees, the violence and humiliation against Dalits and Dalit women (by stripping, beating, maiming) as a means of caste-based punishment and the routine use of political groups against one another’s cadres.
An observation in the recently published Padmanabhiah Committee report illustrates the wider consensus to violence and use of violent means against so-called offenders that only works to legitimize the prevalence of means like torture;
"A large section of people strongly believe that the police cannot deliver and cannot be effective if it does not use strong-arms methods against the criminals and anti-social elements of society. And these people include India’s political class, the bureaucracy, and large sections of the upper and middle class…In their own perception, the policemen feel that they are doing a job. They resort to torture for ‘professional objectives’—to extract information or confession in order to solve a case; in order to recover stolen property or weapons of offence; in order to unearth other crimes that an arrested hardened criminal may have committed; in order to ascertain the whereabouts of other criminals; and in order to locate hide-outs..another professional objective that the police often follows, which is to terminate the criminality of a professional criminal, who could be a burglar, a robber or a gangster, or even a terrorist…by maiming him, by making him lame, rendering him incapable of further crime." (Police Reforms Committee presided over by former Home Secretary K.Padmanabhiah appointed by the government in January 2000 which presented its report and recommendations to the government in October 2000).
Although section 25 of the Indian Evidence Act makes it clear that confessions made to police officers cannot be used in evidence against the accused, section 27 of the Act (confessions leading to finding of corroborating evidence) implies that confessions are still of use to the police. If a crime is ‘solved’ on the basis of illegal extraction of evidence, that evidence is still admissible. Section 162 of the CrPC prohibits the use of a statement of an accused recorded by a police officer and prohibits the police officer from obtaining the signature of a person on the statement of an accused. Despite this safeguard, it is common practice for police to force detainees to sign on blank sheets of paper. Section 164 of the CrPC states that Magistrates are required to ensure that confessions are made voluntarily and sections 330 and 331 of the IPC provide for punishment for ‘voluntarily causing hurt" or "grievous hurt" to "extort confession or to compel restoration of property" but these provisions are rarely used against police officers.
"Formal training in the skills of interrogation is hardly imparted to policemen, apart from a few odd lectures during training. As a result, a policeman learns the skills on the job, largely by improvisation and by watching his senior peers successfully extracting confessions by the rough and ready method of torture. Since they have no real experience of scientific and painstaking interrogation and since time is anyhow a premium with the police, they tend to gloss over the merits of sustained interrogation in favour of quick results that torture brings."
(Padmanabhiah Committee report).
In January 1995, the union home ministry of the government of India in correspondence with Amnesty International referred to a set of un-dated guidelines issued to state governments. These guidelines were meant to "curb the use of questionable and coercive methods by police during interrogation." Referring to safeguards within the CrPC, they stated," The instructions contained in the Police Manuals of different states regarding prohibiting or restricting the use of force by the police while effecting arrest, interrogating suspects and accused or during any other stage of police inquiry or investigation, should be brought to the notice of all police officers for strict compliance and if necessary, refresher courses may be conducted for the police personnel"
The right of detainees to legal counsel has been granted in Article 21 of the Constitution and emphasised by the Supreme Court in Nandini Satpathy v/s P.L.Dani (AIR 1978 SC 1025) when it interpreted the right to mean the right of detainees to consult a lawyer of their choices and includes their right to have a lawyer present during interrogation. This is a right well-documented in it’s abuse. Increasing monitoring by human rights groups reveals that legal aid is often denied and the presence of the detainees’ lawyer during interrogation is a legal provision often violated.
Increasingly, the world over, demand for independent inspection mechanisms for all institutions of detention are being made and heard. Such mechanisms would instil a sense of accountability and transparency within mechanisms of the state as also contribute to the prevention of unlawful means like the use of torture in custody. In it’s judgement delivered in Sanjay Suri v/s Delhi Administration (1998 Supple.SSC 160), the Supreme Court had stated that "Visitor Board (to monitor jails) should consist of a cross section of society; people with good background, social activists, people connected with the news media, lady social workers, jurists, retired public officers from the judiciary as well as the executive."
The NHRC under section 12© of the PHRA is empowered to visit custodial institutions but only under intimation to the concerned state authorities. These limitations and restrictions on it’s functions have been seriously questioned by the NHRC in it’s own annual report of 1997-98:"Disturbed by the increasing reports of violence in police lock-ups, the Commission took a decision that it’s officers would make surprise visits to police lock-ups."
Investigations into Torture
Investigations into deaths in custody are mandatory in India under Section 176 of the CrPC. However usually such investigations are only held in cases where a death in custody leads to a public outcry. Under law, the investigations can be held by either an executive magistrate (appointed by the state government and therefore under executive control) or by a judicial magistrate (judicial official, independent of the executive and appointed by the High Court). In a vast majority of the cases investigations into torture are conducted by an executive magistrate, however.
The 113th report of the Law Commission of India has recommended thatSection 114(B) be inserted in the Indian Evidence Act to introduce a presumption that injuries sustained by a person while in police custody are presumed to have been caused by a police officer. Several Supreme Court judgements and NHRC recommendations have pressed the issue; the section still remains to be introduced with the Indian Evidence Act.
In March 1999, the NHRC announced the establishment of Human Rights cells within the police departments of all states to deal with all complaints related to human rights violations. To date there is little information on the functioning of these mechanisms conceived to provide protection against increasing rights violations by the police.
Article 12 of the Convention Against Torture requires that "Each State Party shall ensure that its competent authorities proceed to prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under it’s jurisdiction." (see Appendix 3)
Medical Examination of Torture Victims
In its 1995-96 annual report, the NHRC has commented that "The local doctor succumbs to police pressure which results in distortion of facts." The availability of medical reports produced by doctors is crucial to ensure justice for the victims of torture. The lack of professionalism and independence among medical personnel required to comment on police cases have invited comment and censure. In June 1996, the Directorate of Health Services in West Bengal issued a direction that in "no circumstances" should post mortem reports be handed over to the "concerned party"…"The Post Mortem reports should be sent to the concerned police authority only and in special circumstances to the courts on demand. This directive is in contravention to all international standards and norms that state that medical reports should be provided to the subject or his or her nominated representative and to the authority responsible for investigating the allegation of torture or ill-treatment."
The poor quality of post mortem reports has led to a directive from the NHRC to all state governments stating that all post mortems in custodial death cases should be videoed and cassettes sent to the Commission. However medical experts on forensic medicine have expressed reservations about the efficacy of video taping to show details of injuries.
Justice for Victims of Torture
Two sections of the CrPC provide protection from criminal action to members of armed forces and public servants from any action, for anything done or purported to be done in the discharge of their official duties except after obtaining the consent of the Government. These are sections 45 and 197 of the CrPC. In the case of section 45, this immunity can be extended to any forces charged with the maintenance of public order if a state government so desires. Forthcoming legislation (especially the CrPC Amendment Bill) proposes to widen the scope of immunity offered by section 45 of the CrPC. It proposes amending section 197 of the CrPC to ensure that all "public servants" charged with the maintenance of public order rather than just "members of the Forces" should be protected by ensuring that no court should take cognisance of any offence committed while acting or purporting to act in the discharge of his duty.
In almost all cases of custodial torture and deaths, policemen take recourse to the protection of this provision to prevent further investigation. Allegations of torture or ill-treatment should never be considered part of discharge of official duty. Recent rulings of the Supreme Court have also ruled that there should be no time bar in prosecution of cases of torture. Applications for protection from prosecution sought by policemen in cases related to torture or custodial death should not only be summarily dismissed by the Courts but must also invite strict judicial censure.
Reparation to Victims of Torture
The NHRC has called for an amendment in the law so that cases relating to violations of human rights and compensation are tried together in the same court with one set of evidence being led. This was in specific response to ground-level realities : victims of torture were having to endure two sets of civil proceedings; this often prevented persons from seeking redress.
In January 1999, then chairperson of the NHRC, Justice Venkatachaliah stated that "the very concept of immediate interim relief and the purposes for which it is intended would be defeated if the this remedy is interwound with the fortunes of a criminal trial". The case concerned the death in police custody of a denotified tribe, in Maharashtra, where the state government deferred compensation payment saying that it awaited orders of the court. The NHRC considered that this would lead to unnecessary delay.
In October 1995, the NHRC suggested that monetary compensation for victims of police abuse should be taken from those responsible. State governments are reported to have accepted this proposal.
Mahrashtra Citizen’s Charter
To encourage better policing and an awareness of basic rights related to arrest and detention, the present Maharashtra Government, in 1999, released a Citizen’s Charter that also clearly spells out some of the basic codes of conduct for policemen and state functionaries vis a vis the people.
Relevant Sections from The Citizen’s Charter
These sections of the charter, published by the Maharashtra state home department can be used actively in a city–based human rights’ campaign to ensure accountability and transparency from the police.
The Charter Says ......
" WHERE A CITIZEN CAN REGISTER HIS COMPLAINT
(pg 11, Charter)
1.Where should a citizen register his complaint
a) Even if the crime is committed in an area beyond the limits of any police station, a complainant cannot be forced to go to the concerned police station. A citizen can register his complaint at any police station.
b) After registering a complaint of a cognizable offence, a copy thereof must be given to the complainant free of cost.
c) In case of non-cognizable offences the police do not have a right to investigate the complaint without the orders of the Court.
2. Where to register a complaint when an offence is committed within the limits of Railways
When an offence is committed either within the jurisdiction of the railway or in a running train, it is necessary to register a complaint at the concerned railway police station. Similarly "Mobile Police stations" have also been established in some long distance trains. Hence a complaint of an offence committed in these running train can be lodged at the Mobile Police Station. Besides, necessary arrangement to lodge a complaint with the Guards is also available on long distance trains.
If after the commission of an offence, the passenger concerned does not want to alight from that train, he can also lodge the said complaint at the railway police station situated at the place of the destination of his journey. Such offences are later on forwarded to the concerned railway police station for the purpose of investigation and other procedural action. If there is no railway police station at the place of the destination of her/her journey, then he/she can lodge the complaint of the offence at the nearest police station, which is then forwarded to the railway police station concerned.
Similarly, if the passenger is not in a position to go personally to the police station, he/she can send the complaint in the form of a written application to the concerned railway police station. If the passenger concerned has no knowledge of the particular railway police station he can send his written complaint to any railway police station or to the office of the Mumbai Railway Police Commissioner or to the office of the Special Inspector General of Police, Railways, Mumbai. Action is then initiated to get the complaint registered at the concerned railway police station in respect of complaints received in this manner."
Is the procedure followed?
Join the Police and you campaign to find out.
The Charter Says…………
"WORK ENTRUSTED TO POLICE STATIONS
(pg 13, Charter)
At the Police Station, immediate cognizance is taken of the complaint received there and action is initiated on it. Some special noteworthy features in this respect are as detailed below :-
1. Every citizen has a legal right to lodge an oral or a written complaint of an offence to the Station House Officer or his superior at any police chowky or a police station.
2. It is the duty of all the police officers and the police personnel to give a patient hearing to all citizens who visit or come to complaint at the police stations, to take immediate legal action thereon and to clearly inform them about the action taken on the complaint.
3) After a complaint of a cognizable offence is given, it should be immediately registered and it is the right of a complainant to receive a copy of the First Information Report (FIR). Similarly, in the case of a non-cognizable offence, after registering the same in the register of non-cognizable offence registered is given to the complainant and he is advised to approach the Court.
4) Police cannot evade registering an offence on the plea of want of jurisdiction. It is necessary that the offence is registered and the same is sent to the police station concerned.s
5) To understand the mode of working of the different sections of the police station, boards displaying general information in this regard are displayed in the police stations as well as in the office of Deputy Commissioner of Police. In addition to it, notice boards displaying information in regard to the Protection of Human Rights have also been displayed for the benefit of the citizens.
The Station House Officer also acts as a "Public Relation Officer", with a view to assist the common man in getting information about the general working of the police station and also for the immediate redressal of their complaints or grievances whenever they come to the police station.
If the complainant is not satisfied about the action taken on his complaint by the Station House Officer, he should approach the Senior Police Inspector. Despite this if he is not satisfied, he can approach the Assistant Commissioner of Police/Deputy Superintendent of Police or the Deputy Commissioner of Police or the Superintendent of Police."
The Charter is explicit on the people-friendly attitude that the Police is required to have.
Boards are supposed to be displayed prominently explaining basic facets of the law of arrest and related to the protection of Human Rights.
The Charter Says……..
"ARREST
(pg 15, Charter)
The Constitution of India guarantees the fundamental rights to every citizen of India even if he is an accused in a criminal case. Therefore the police are duly bound to take the following action as mentioned below :-
1) When an accused is arrested he should be informed of the offence for which he is arrested and also about the section of the Act pertaining to that offence.
2) While making an arrest or investigating a crime the police officers or personnel should show their identity cards and also display the nameplate showing their name and desig nation on their uniforms so as to be clearly visible.
3) If requested by the accused person, the information of his arrest should be given to his relatives or persons at his home and a note of having done so should be made in the police station diary.
4) While arresting a person, medical examination of all the old and fresh injuries on his body should be done and a note thereof be taken.
5) An arrest accused should be medically examined once in every 48 hours, while in police custody.
6) While an accused is in the police custody, his lawyer should be permitted to visit him.
7) Information of the arrest of an accused should be given to the District Control Room and the State Police Headquarters.
8) The accused should be presented before the judicial Magistrate/Judge concerned within 24 hours of his arrest.
Regarding handcuffing of an accused
Decision regarding handcuffing of an offender is taken after considering the nature of his offence, past history of the accused, his conduct and possibility of his escaping. Handcuffing after an arrest is not necessary in the case of each and every offence. Women, Juvenile offenders, lepers should not be handcuffed. "
Are these procedures followed in the matter of arrest?
This is what the Police and you Campaign Intends to Monitor
The Charter says………
" BAILABLE AND NONBAILABLE
(pg 17, Charter)
Under the Code of Criminal Procedure offences have been classified as ‘bailable’ and ‘nonbailable’ offences. In the case of bailable offenes it is binding upon the investigating officer to grant bail. But in case of a nonbailable offence the police do not grant bail, the decision is taken by a Judicial Magistrate/Judge only.
1) In the case of a bailable offence, if the accused produces proper surety after his arrest, it is essential to release him. If the Station House Officer creates obstacles, the accused or his relatives can approach the Senior Officer of the police station concerned and lodge necessary complaint.
2) In the case of a nonbailable offence, it is necessary to produce the accused before the Judicial Magistrate/Judge concerned within 24 hours of the arrest. At that time, the accused has a right to apply for bail himself or through his representative/lawyer. Similarly if he has been subjected to beating or any torture by the police after arrest, he has an opportunity to complain against the same before the Judicial Magistrate/Judge.
The Charter says……
"SEARCH
(pg 18, Charter)
1) Any officer, who is in charge of a police station or an investigation officer, has the authority to conduct search of any place situated for anything connected with the offence.
2) It is necessary that the police officers concerned should show their identity cards before conducting search. Similarly it is also necessary that the name plates alongwith their designations should be displayed on their uniforms. While conducting a search two respectable Panchas/Witnesses should remain present. After the completion of a search, the officer concerned should prepare a search-panchanama detailing therein the particulars of the seized articles and obtain thereupon the signatures of the two Panchas/Witnesses and the owner. The Panchanama of the seized articles must be prepared at the site itself. It is necessary to give a copy of the said Panchanama to the person concerned.
3) The procedure detailed herein above should also be followed while carrying out physical search of a person. However, the physical search of Woman must always be conducted by a woman police officer or any lady available at the time of the search.
PANCHANAMA
(pg 20, Charter)
1) It is essential that a panchanama in respect of an arrest, search, seizure etc. should always be done at the site and the signatures of the Panchas should be obtained thereon.
2) The Panchanama should normally be prepared during the day but where the circumstances do not permit it may be done at night as well.
3) It is necessary that two panchas remain present while a Panchanama is being drawn and their signatures should be obtained on it, then and there only.
4) After paying the fees, in form ‘AA’ , a copy of the Panchanama drawn at the site of the accident can be obtained.
5) A copy of the Panchanama should be given to the person concerned even if he does not ask for it.
The Maharashtra Government Citizen’s Charter envisages the following Committees/Cells to ensure prevention of atrocities on women, oppressed castes and Mohalla and Peace Committees to ensure communal harmony.
The Charter Says…..
"SOCIAL SECURITY COMMITTEE
(pg 24, Charter)
For the prevention of atrocities against women, social security committees have been established in all the Police Commissionerates and district headquarters in Maharashtra. Their composition is an under :-
n Commissioner of Police or … Chairman
Superintendent of Police.
n Deputy Superintendent of … Member-Secretary
Police or Police Inspector
(Protection of Civil rights)
n Women Social Workers (Two … Members to five)
n Police Inspector/Police Sub- … Member
Inspector or Assistant Comm-
issioner of Police (Local Crime
Branch)
Once in a month this Committee takes a review of atrocities inflicted on women. Legal provisions are brought home to the women so as to enable them to deal with the atrocities inflicted on them. Similarly sensitive cases are discussed and proper measures taken.
Similarly social security committees, have also been set up at taluka level under the suprevision of the Circle Police Inspector. These consists of one woman constable and two women social workers.
‘Women Security Committee’ is similarly constituted in every police station comprising as following :-
n Sub Inspector/Assistant Police Inspector Head
of the Police Station.
n 5 Women workers Members
The members to be appointed on the Committee should be active, trustworthy, non political and committed to the welfare of women.
Scheme to establish harmony between the Police and the citizens
With a view to establish harmony between the Police and the citizens and with a view to remove the misunderstandings in the minds of the citizens in respect of the police personnel and the police department and to create confidence in the minds of the public about the police department, the senior Police Inspector of the Police Station shall make himself available to the public on every Saturday evening, from 5.00 to 8.00 p.m. where the complainant can discuss and inquire about the progress of enquiry into his complaint atleast a week after registering the same. The Senior Police Inspector shall, during this time, answer as per lawful provisions all the questions put to him by the public and make the latest position of their complaint known to them.
Establisment of Action Force to curb the Atrocities against women in the State of Maharashtra (pg 14, Charter)
Most of the crimes pertaining to atrocities against women are regarding dowry deaths and harassment of women. The task has been set up to curb these crimes. The constitution of the task-force shall be as under :-
1) Additional Chief Secretary (Home) … Chairman
Home Department, Mantralaya,
Mumbai.
2) Principal Secretary, Law & Judiciary … Member
Department, Mantralaya, Mumbai
3) Secretary, (Appeals and Security) … Member
Home Department, Mantralaya, Mumbai.
4) Secretary, Home Department (Special) … Member
Mantralaya, Mumbai.
5) Secretary, Department of Women and … Member
Child Welfare, Mantralaya, Mumbai.
6) Chairperson, State Women’s Commission. … Member
7) Director General of Police, Maharashtra … Member
state, Mumbai.
8) Commissioner of Police, Greater Mumbai. … Member
9) Director, Public Prosecution, Mumbai … Member
10) Deputy Inspector General of Police … Member
(Prevention of Atrocities on Women),
Maharashtra state, Mumbai.
11) Director, Women & Child Welfare, Pune … Member
12) Deputy Secretary (Desk-Pol XIII), Home … Secretary Member
Department, Mantralaya, Mumbai.
This Committee takes decision on policy matters after detailed discussion on the same.
The Citizen’s Charter requires that every Police Station sets up a Social Service Cell. (pg 16, Charter)
"On the establishment of the Greater Mumbai Police the Social Security Cell is a part of the Crime Branch. The main responsibility entrusted to this Cell is that to creating cordial relations with the citizens. Similarly delicate issues such as the atrocities inflicted on women, family disputes etc. are also handled by it. The Social Service Cell deals with the following cases :-
1) Atrocities on women :
a) Domestic violence.
b) Disputes between husband and wife.
c) Harassment for Dowry.
d) Sexual harassment of women at the place of their service or work.
e) Harassment caused to women by telephone calls or by letters.
2) Cruelty to senior citizens.
3) Action against obscene literature.
4) Action against obscene audio-video cassets/blue films.
5) Copyright infringements.
6) Black marketing of cinema tickets.
7) Betting on cricket matches, unauthorised lottery and unauthorised gambling on races.
8) Crimes on Internet.
9) Enforcement of Cable Network Regulation Act.
10) Any other social issue in which police intervention is necessary.
A Social Service Cell has been set up as above at every District Police Headquarters."
The Charter has a separate section on ‘Protection of Civil Rights’
To quote:
"12. Protection of Civil Rights
(pg 7, Charter)
With a view to prevent injustice and atrocities against the Scheduled Castes/Schedule Tribes a protection of Civil Rights Cell has been set up under the Special Inspector General of Police (Protection of Civil Rights) at each Range head quarter and under a Deputy Superintendent of Police and at each district head quarter. If an offence is committed under the Civil Rights Protection. Act of 1955 or the Scheduled Castes/Tribes (Prevention of Atrocities) Act of 1989, the person should lodge a complaint thereof, at the nearest police station. The offences registered under the above Acts are investigated by an officer of the rank of the Deputy Superintendent of Police.
The Protection of Civil Rights Cell takes necessary action to prevent atrocities and to investigate all the offences committed under the Act.
Peace Committee
(pg 27, Charter)
A "Peace Committee" has been established at every district with a view to create communal harmony and peace. This Committee consists of members belonging to all castes/communities and religions. Police Commissioner/Superintendent of Police is the Chairman of this Committee. On these lines Peace Committees are also established at each police station.
Mohalla Committees
Mohalla Committees have been set up at each of the Police stations with a view to maintaining peace and communal harmony amongst the citizens belonging to different castes, creed and religious. Meeting of this "Mohalla Committee" is held before the onset of every festival to maintain peace and communal harmony in the locality.
In this way, every beat officer should hold a meeting of the "Mohalla Committee" once in every month. Likewise the Senior Inspector of Police of the concerned police station concerned should hold meeting at least once in every three months which should also be attended by the Assistant Commissioner of Police/Deputy Commissioner.
The Charter has a section on the Anti-Corruption Bureau.
" Anti-Corruption Bureau, Maharashtra State
(pg 8-9, Charter)
Anti Corruption Bureau has separately been established at the State Level in 1957. The headquarters of the Anti Corruption Bureau is at Mumbai and the Director General of Police, Anti Corruption Bureau is the head of this Bureau. A Superintendent of Police, Anti Corruption Branch is posted at each Range headquarters at Pune, Aurangabd, Thane, Nagpur, Nashik and Amravati and under him at each district there is an office of the Anti Corruption Bureau headed by the Deputy Superintendent of Police. The office of the Anti Corruption Bureau for Greater Mumbai is located at the headquarter headed by officer of the rank of an Additional Commissioner of Police.
Not only public servants working in the Government/semi-Government offices but those working in the Municipal Councils, Zilla Parishads, Corporations, Municipalities, Panchayat Samitis, Village Panchayats autonomous Corporations such as the Maharashtra State Electricity Board, Maharashtra State Transport Corporation, Cotton, Marketing Federation etc. are also covered under the jurisdiction of the Anti Corruption Bureau. Besides in such district/place, where there is no office of the Central Bureau of Investigation, complaints of corruption against the officials and personnel of the Central Government or employees of public undertakings of the Central Government such as the Telephone Nigam, Life Insurance Corporation etc. can also be lodged with the Anti Corruption Bureau. Such complaints can be made to any of the offices under the Bureau. Cognizance of all such complaints is taken in confidence. Secrecy is maintained about the names of confidence. Secrecy is maintained about the names of complainants and utmost care is taken to see that the complainant does not face any sort of incovenience.
Complaints, in respect of demand of bribe accumulation of wealth by resorting to corrupt practices, acquistion of unaccounted property, misuse of office by a public servant etc. can be lodged with the Anti Corruption Bureau. While dealing with Government offices, if any demand for bribe is made by a public servant or a group of public servants, this bureau should be immediately contacted. The officers of the Bureau successfully set up a secret trap, and take action under the Anti Corruption Act. In the case of bribes, action is taken even at a day’s notice. Similarly in the case of a trap the final report of the Anti Corruption Bureau is expected to be ready within a period of three months. When there is planned corruption on a large scale anywhere or a public servant has acquired unaccounted or disproportionate assets, if detailed information thereof is reported to the Bureau, then inquiry becomes easy and it is possible to take effective action in such cases. The Anti Corruption Bureau is expected to complete its investigation within a period of one year.
For prevention and eradication of corruption, it is necessary that public should fearlessly come forward and register their complaints with the Bureau. The Bureau is bound to keep the complaint a guarded secret.
Over the years, the human rights movement has been suggesting for serious reforms within our structures to ensure great sensitivity to human rights issues.
Police
Serious lapses assaults on basic personal liberties of individuals, especially persons from the marginalized sections have been acknowledged in matters of arrest, detention and torture by representatives of the state.
Can these lapses be seriously addressed without considering the issue of police reforms that has been demanded by sections within the police, human rights organizations and other bodies?
The Police are not the only perpetrators of torture. However, the system under which they operate on a day to day level facilitates torture and other abuses.
The National Police Commission published eight comprehensive reports between 1979 and 1981 in which they made numerous practical recommendations for reform. Twenty years later there is no systematic action been systematically taken to implement them twenty years later.
In 1996, a writ petition was filed in the Supreme Court by two retired officers requesting that the Government of India be ordered to implement the recommendations of the NPC. On the basis of the Supreme Court’s orders in this matter, a Committee on Police Reforms was set up under J.F.Ribeiro a retired police officer. The committee finalized it’s report in October 1998. However the Supreme Court has given no orders on the findings of the committee and the matte remains pending in court. One of the main issues raised by different voices on police reform has been on the issue of establishing a State Security Commission as a means of insulating the police from political influence.
For all human rights groups and other organizations concerned with issues of personal liberty, equality before the law, the dignity of life and accountability from institutions of governance and public servants the structure and content of Police Reforms are of critical importance.
The government of India, must consult the NHRC, other independent human rights organizations, and members of civil society before instituting police reforms, including training programmes and amendments to laws. The move for reform must be through wide and transparent public debate so that all parts of civil society can influence and have a say in the change that is envisaged.
Police reforms should specifically address the problem of human rights violations in custodial situations and structural problems which have been identified as facilitating torture and abuse of power.
Criminal Justice System
Delays and overload of the courts must be urgently addressed. Lack of appointment of lower and higher members of the judiciary are only one cause. Often judges are extremely pliant and accomodatory on matters of repeated adjournments contributing to the delay in completition of trial.
Such interminable and often unforgiveable delays in dispensing with cases related to serious crimes contribute to justify ‘instant punishmen’ methods by the police among the public and also prevent victims of torture and abuse from obtaining prompt redress.
Emphasis must be laid within courts and by judicial magistrates in ensuring that the collection of evidence is by legal means and proper investigtion; that torture is not used and sanctioned. The police, lawyers (including those provided through legal aid), prosecutors and judicial officers play a pivotal role in ensuring that such actions do not form part of processes of bringing persons to trial.
Cases of public servants being accused of rights violations including torture and illtreatment must be pursued within the existing court system and not in courts where the aim is to reach compromise.
In Sheela Barse v/s State of Maharashtra (AIR 1983 SC 378) the SC clarified that section 54 of the CRPC required that "the Magistrate before whom an arrested person is produced shall enquire from the arrested person whether he has any complaint of torture or maltreatment in the police custody and inform him that he has right under section 54 of the CrPC to be medically examined".
Detainees are regularly threatened by
the police not to make complaints of torture and brought before
Magistrates by the same police who have ben responsible for their
interrogation and torture. Hence, if they are not placed in a safe
environment where they do not fear reprisal, and if not specifically asked
by the Magistrate about such misconduct, they may out of fear not
make the complaint.