Human Rights are something we cannot live without. Only by the virtue of being human, we all are equal in dignity and rights, each of us is worth of being honored and living with full enjoyment of life, liberty, equality and dignity no matter how one’s race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status are distinct.
These rights are build based on first – Universality which says we all are equal in dignity and rights irrespective of race, religion, creed, language, geographical condition etc.; second – Democracy that implies human rights and related legal instruments should be of the consent and the mandate of the people; and third Guaranty that fixes the obligation that human rights are given by the State or Government and so is the main responsibility of the protection is should be of the government. Human rights involve a notion of a contract between the State and its Citizens that encoded in its constitution and other legal instruments for protection and deliverance.
These two key points, Guaranty and Contract are the enormous binding forces in the policing domain. It is our common understanding that principal objective of having the system called police is to ensure all the members of our society safety with a sense of environment of secure.
Police are here to protect our lives and property. For this reason to enable them to carry out their duty effectively they have been given some responsibility and some powers. But that does not mean that the police are above the law. They are in fact bound by the law and have to act in accordance with the law. However in order to ensure that police do not abuse the powers given to them it is necessary and rather important for us to know our rights vis-à-vis the police.
Police are important building block of the criminal justice system that supposed to be worked in accordance with the rule of law. The credibility of the criminal justice system depends on the relative strength or weakness of the laws and procedures established for the police, the prosecution and the court system. The police are an arm of the State vested with the primary responsibilities of law enforcement and prevention of crimes against the State and private citizens.
HELPING HUMAN in order to ensure the non- violation of human rights in criminal justice system, settled a cell where relationship of police and public are being watched in its various aspects. The primary issues of concern are:-
- About arrest
- About illegal detention
- About illegal handcuff
- About illegal encounter
- Post -arrest
- Pre –arrest
- Arrest without a warrant
- Medical attention to the person arrested.
- Detention and torture
- Protection of Women
- Discriminating citizens on the basis of cast
- Custodial deaths/rapes
- Ensure that no person is deprived of his/her right to life or personal liberty,except in accordance with the procedure established by law (Art. 21 of the Indian Constitution).
- Ensure that the identity of the police officer effecting arrest is clearly indicated by means of a name plate and rank. (Guidelines on Arrest : DK Basu vs State of West Bengal AIR 1997 SC 610).
- Ensure that the arrestee is informed of the full particulars or the grounds of arrest (Art 22 of the Indian Constitution).
- Ensure that a relative or a friend of the arrestee is informed about the fact of arrest and the place where he/she is being detained (Section 50A (1) Cr. PC)
- Ensure that information regarding the arrest and the person informed about the arrest is recorded in the designated register kept in the police station(Section 50A (3) Cr.PC).
- Ensure that if some injuries are found on the body of the arrested person at the time of arrest, the same are specified in the Arrest Memo and the arrested person is medically examined
- Ensure that no woman is arrested after sunset and before sunrise, other than in exceptional circumstances (Section 46(4) Cr. PC).
- Ensure that a woman police officer is associated while effecting arrest of a woman (Section 46 (4) Cr. PC).
- Ensure that no force or beating is administered under any circumstances while effecting arrest of a juvenile or a child. Respectable citizens may be associated while arresting juveniles and children.
- Protect the human dignity of the person being arrested. Public display or parading of the person arrested should not be permitted.
- Conduct search of the arrested person with due respect to his/her human dignity. Avoid unnecessary use of force and respect his/her right to privacy. Searches of women should be conducted only by other women, with strict regard to decency (Section 51(2) Cr.P.C.)
- In case of a bailable offence, inform the arrested person of his/her entitlement to be released on bail so that (s)he may arrange for sureties.
- Inform the Police Control Room and the District/State Headquarters about the arrest and the place of detention.
- Do not arrest a person without warrant, unless there is a reasonable satisfaction, on the basis of investigation done, about the person’s involvement in a cognizable offence and there is a need to affect his/her arrest. (Section 41, Cr. PC).
- Do not arrest a person unless the commission of an offence cannot otherwise be prevented (Section 151, Cr.PC).
- Do not use more force than is necessary to restrain an arrested person (Section 49 Cr.PC and Art. 21 of the Indian Constitution).
- Do not summon to police station, a woman or any male person, below 15 years of age associated with a case. The questioning of any such person may be done by the police officer only at the place of residence of such woman/minor. (Section 160 (1) Cr.PC).
- Do not detain any arrested person beyond 24 hours without the express Order of a Magistrate (Section 57 Cr.PC).
- Do not use handcuffs or fetters on arrested person unless you have recorded reasons and obtained orders of the Court for such use.
A person detained by the police, whether for questioning, for the purpose of verification of identity, to test alcohol level, or any other purpose may be, comes under the custody of police and is, therefore, under the care of the State. It is the responsibility of the State to ensure protection of the human rights of all persons in its custody.
- Ensure that a written order is sent to any person who may be required to come to the police station for the purpose of questioning. (Section 160(1) Cr.PC).
- Ensure that family members or friends of any person detained by the police are aware of his whereabouts.
- Ensure that whenever any person is detained in the police station, proper entry is made in the General Diary.
- Ensure prompt medical attention for anyone detained by the police, in case the need so arises.
- Treat all detainees with the dignity due to any human being.
- Do not subject any person in detention to torture, or to any cruel, inhuman or degrading treatment or punishment.
- Do not compel a person in detention to confess, to otherwise incriminate him/her or to testify against any other person.
- Do not detain anyone for a prolonged period in the name of interrogation as this may amount to harassment and wrongful confinement.
Handcuffs are used frequently during transportation of prisoners from the jail to court, of accused from the site of the alleged crime to the police station or to court, and from the jail/police station to the hospital. During these movements, the use of handcuffs is supposed to be the exception, not the rule.
However, in a large majority of cases, the escorting authorities admit that judicial permission is not received and the reasons for using restraints are not documented in the police station diary.
- Restraints are sometimes necessary for legitimate security reasons.
- Police work can be dangerous, and a small minority of arrestees and detainees are desperate and violent.
- Political considerations also play a vital role in some case.
- They are used many a times by the police personnel, both publicly.
- and privately, to humiliate, debase and intimidate arrestees and detainees.
- Power and corruption also lead to cases of human rights violations
- Regarding handcuffing.
The Law says:
The Supreme Court of India has repeatedly condemned the unnecessary use of handcuffs by the police as a violation of the right to personal liberty guaranteed by Article 21 of the Constitution of India. The landmark Supreme Court case on handcuffing is Prem Shankar Shukla v. Delhi Administration (1980). In this case, the validity of certain clauses of the Punjab Police Rules, which made handcuffing mandatory during arrest, was challenged. In his opinion, Justice V R Krishna Iyer eloquently stated: “The guarantee of human dignity which forms a part of our constitutional culture . . . spring[s] into action when we realize that to manacle man is more than to mortify him, it is to dehumanize him and, therefore, to violate his very personhood too often using the mask of dangerousness and security.” In Prem Shankar Shukla and other leleading cases, the Supreme Court has laid down strict procedural guidelines specifying both when and how the use of handcuffs is appropriate. According to the Court, handcuffing is legal only if the arrestee is –
(a) Involved in serious non-bailable offences; and
(b) Previously convicted of a crime, of desperate character, likely to commit suicide, or likely to attempt to escape. The use of handcuffs and the reasons for their use must be recorded. It is illegal to walk fettered political prisoners through the streets. Furthermore, the police
Must gain judicial permission before they use restraints during an arrest or on a detainee.
The human rights-conscious court summed up its opinion of handcuffs in Sunil Batra (II) v. Delhi Administration (1980):
“To fetter prisoners in irons is an inhumanity unjustified, save where safe custody is otherwise impossible. The routine resort to handcuffs and irons bespeaks a barbarity hostile to our goal of human dignity and social justice.”
The Police Commission Reports and the State Police Manuals too emphasize, that the human rights of prisoners during escorting and handcuffing should be taken care of. The following guidelines must be observed:
- No person shall be handcuffed who, by reason of age, sex or infirmity can be kept in custody without handcuffs.
- Under trial prisoners and other accused persons should not be handcuffed and chained unless there is reasonable doubt that such persons will use violence or attempt to escape. The police escort must be sufficiently strong to prevent escape.
- In no case should prisoners or accused persons, who are aged and bed-ridden in hospitals, or women or juvenile or civil prisoners, be handcuffed or fettered.
Encounter Killings are unfortunately a common practice to wipe out the terrorist outfits, local gangsters, and the easiest way to close the long pending criminal records and most commonly to revenge political rivalry in India and in most South Asian Countries. Most encounters are staged to ingeniously justify the Police actions against the criminals. There were several reports that the government and its security personals committed unlawful killings of suspected criminals and insurgents, especially in areas of conflict such as Kashmir, Punjab, Maharashtra, the Northeastern states, the Naxal belts of Ranchi, Bihar, Orissa and Andhra Pradesh.
Encounter killings are pre-planned and authenticated murder. International Human Rights Law prohibits the arbitrary deprivation of life of any person under any circumstances. Article 3 of UDHR and Article 6 of ICCPR states that ‘everyone has the right to life’ and it shall be protected by law. Right to Life is ensured in Article 21 of the Indian Constitution. Depriving of life in any form is a violation of human rights.
Encounter killing is total violation of our Constitution and deprives a person of his right to life. No one who respects human rights would ever agree to this form of extra-judicial killing. Unfortunately our courts which are supposed to be guardian of our Constitution often accept uncritically the police version of encounter killing. The police often argue, there was encounters, the ‘criminal’ fired and police returned firing killing the person. The police never gets even bruised, let alone hurt.
As a rule of force should be avoided while effecting arrest. However, in case of forcible resistance to arrest, minimum force to overcome such resistance may be used, care must be taken to ensure that injuries to the person being arrested, visible or otherwise, is avoided. The dignity of the person arrested should be protected. Public display or parading of the person arrested should not be permitted at any cost. Searches of the person arrested must be done with due respect to the dignity of the person, without force or aggression and with care for the person’s rights to privacy searches of women with strict regard to decency. (s.51(2)cr.p.c.). The use of handcuffs or leg chains should be avoided. As far as practicable women police officer should be associated where the person or persons being arrested are women. Where the arrested is without a warrant, the person arrested has to be immediately informed of the ground of the arrest in the language he or she understands. Again, for this purpose, the police, if necessary may take the help of respectable citizens. The grounds must have already been recorded in writing in police records. The person arrested should be shown the writings reasons as well and also and given a copy on demand. (s.50(1)cr.pc) A person can, on a request made by him or her demand that a friend relative or other person known to him be informed of the fact of his arrest and the place of his detention. The police should record in a register the name of the person so informed. If a person is arrested for a bailable offence, the police officer should inform him of his entitlement to be realized on bail so that he may arrange for sureties. Apart from informing the person arrested of the above rights, the police should also inform him of his rights to consult and be defended by a lawyer of his choice. He should also be informed that he is entitled to free legal aid at state expense.
When the person arrested is brought to the police station he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed of his rights. Where the police officer finds that the arrested person is in a condition where he is unable to make such request but is in need of medical help, he should promptly arrange for the same. This must also be recorded in a register. The female requesting for medical help should be examined only by a female registered medical practicener.
Information regarding the arrest and the place of detention should be communicated by the police officer affecting the arrest without any delay to the police control room and district/state headquarters. There must be a monitoring mechanism round the clock. As soon as the person arrested, police officer effecting the arrest shall make a mention of the existing or non-existing of any injury(s) on the person of the arrestee in the register of arrest. If any injuries are found on the person of the arrestee, full descriptions and other particulars as to the manner in which the injuries were caused should be mentioned in the register which entry shall also be signed by the police officer and the arrestee. At the time of realize of the arrestee a certificate to the above effect under signature of the police officer shall be issued to the arrestee. If the arrestee has been remanded to police custody under the orders of the court the arrestee should be subjected to medical examination by a trained medical officer 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. At the time of his real ease from the police custody the arrestee shall be got medically examined and a certificate shall be issued to him, stating therein the factual position of the existence or on- existence of any injuries on his body.
The person under arrest must be produced before the appropriate court before 24 hours of the arrest. The person arrested should be permitted to meet his lawyer at any time during the interrogation. The interrogation should be conducted in a clearly identifiable place, which has been notified for this purpose by the government the place must be accessible and the relatives or friend of the person arrested must be informed of the place of interrogation taking place. The methods of interrogation must be consistent with the recognized rights to life dignity and liberty and rights against torture and degrading treatment.
The power of arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the genuineness and bonafide of a complaint and a reasonable belief as to both the person’s complicity as well as the need to effect arrest. The arrest cannot be justified merely on the existence of the power, as the matter in law, to arrest without a warrant in a cognizable offence.
When the person arrested is brought to the police station he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed of his rights. Where the police officer finds that the arrested person is in a condition where he is unable to make such request but is in need of medical help, he should promptly arrange for the same. This must also be recorded in a register. The female requesting for medical help should be examined only by a female registered medical practicener. If the arrestee has been remanded to police custody under the orders of the court the arrestee should be subjected to medical examination by a trained medical officer 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. At the time of his real ease from the police custody the arrestee shall be got medically examined and a certificate shall be issued to him, stating therein the factual position of the existence or on- existence of any injuries on his body.
The trauma and agony of an accused Undertrial prisoner and of his family members is beyond to be described and no amount of money compensation can bring back the valuable years of the innocent accused. The damage inflicted by unlawful detention is massive and ruthless. It bleeds the soul of the victim and may occasion the loss of livelihood of a family resulting in trap of ugly poverty.
- In the historic judgment of Hon SC in D K Basu Vs State of West Bengal, among other things, directed-
That Policemen must wear visible and legible identification when arresting a person and when carrying out interrogation. Names and Particulars of police personnel handling interrogation must be recorded in the register.
- It is the right of every person detained or questioned by Police to know the grounds for detention or questioning.
- The Person arrested must be made aware of his right to have someone informed of his arrest Or detention as soon as he is put under arrest or detention.
- A person arrested must be produced before a Judicial Magistrate/ Judge within 24 hours of his/her arrest.
- A person arrested should be medically examined at the time of arrest and major & minor injuries on arrested person be recorded in Inspection Memo duly signed by both Police Officer carrying out the arrest and the person arrested and the copy of this memo be provided to the person arrested.
- Any person arrested must be medically examined by a doctor from an independent and approved panel of doctors, every 48 hours during detention.
- Arrest or Search of women should only take place in presence of Women Police Officers and it should not take place in night. And women should be detained separately from men.
- While an accused is in Police custody, his lawyer should be permitted to visit him.
- Information of the arrest of accused person should be given to the district Control Room and the State Police Headquarters.
In the words of Justice MN VENKATACHALLIAH in Joginder Kumar Vs State Of UP – 1994 “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 the Station without permission would do.
Police cannot summon to police station, a woman or any male person, below 15 Years of age associated with a case. The questioning of any such person may be done by the police officer only at the place of residence of such woman/minor. (Section 160 (1) Cr.PC).
Ensure that no woman is arrested after sunset and before sunrise, other than in exceptional circumstances (Section 46(4) Cr. PC). Ensure that a woman police officer is associated while effecting arrest of a Woman (Section 46 (4) Cr. PC). Any search of women strictly is conducted by a female police officer. There shall not be any arresting of women after the sunset, except the procedure laid in the law.
According to S. 51(2) when it is necessary to cause a female to be searched, the search shall be by another female with strict regard to decency.Body searches of females should only be carried out by women and with strict regard to decency.
The Hon’ble Supreme Court in Sheela Barse vs St. of Maharastra, it was held that It is the duty of the police officer making arrest to see that arrested females are segregated from men and kept in female lock-up in the police station. In case there is no separate lock–up, women should be kept in a separate room. According to Proviso, Section 160(1) Code of Criminal Procedure, 1973, Women should not be called to the police station or to any place other than their place of residence for questioning in as much as it says that no male person under the age of fifteen or woman shall be required to attend at any place other than the place in which such male person or woman resides.
Women should be guarded by female constables/police officers. They must be questioned in the presence of policewomen.
All necessary pre-natal and post-natal care should be provided to females who are arrested. Restraints should only be used on pregnant women as a last resort. Their safety or the safety of their fetus should never be put at risk. Women must never be restrained during labour.
According to Section 53(2) of Code of Criminal Procedure, 1973. and 10 Basic Standards for Law Enforcement Officials Proposed by Amnesty International, Medical examination of women should be carried only under the supervision of female medical practitioners.
India is indeed incredible in a way it treats its vulnerable citizen particularly lower caste and poor people. Discrimination, torture, enforced disappearance, police injustice, impunity cases of arbitrary detention are rampant and enough to substantiate. Universal Declaration of Human Rights (1948) in article 5 stress on “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Further this element of rights solidifies in International Covenant on Civil and Political Rights (1976) article.7 which illustrates “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”‘. However, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment clearly elaborates that “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction (art. 2(1))” Even Convention forbids the practice of torture in every circumstance including emergency (art.2 (2)) and no public authority can justify torture (art. 2(3). Nonetheless, on discrimination, Universal Declaration of Human Rights (1948) says ‘All human beings are born free and equal in dignity and rights…” (art.1). Further, Convention on the Elimination of All Forms of Racial Discrimination in its various articles (art.1 (2), art. 2(1(a). art.4) condemn the practice of discrimination.
However, article 15 of the Indian constitution prohibits discrimination on grounds of religions, race, caste, sex or place of birth. The Indian Constitution outlaws caste based discrimination as well as practice of “untouchability”. In addition, under ‘article 21’ no one shall be deprived of his life or personal liberty. But there are many examples where discrimination on the basis of human rights found to be a regular exercise of police administration which is a gross violation of HUMAN RIGHTS.
A total of 14,231 persons i.e. more than four persons per day died in police and judicial custody in India. From 2001 to 2010. This includes 1,504 deaths in police custody and 12,727 deaths in judicial custody from 2001-2002 to 2009-2010 as per the cases submitted to the National Human Rights Commission (NHRC). The failure of the Ministry of Home Affairs to introduce the Prevention of Torture Bill drafted by the Rajya Sabha Select Committee headed by Shri Ashwani Kumar, the Minister of State for Planning, in December 2010 in the parliament session beginning on 22 November 2011 demonstrates India’s lack of political will to stamp out torture.
During 2001-2010, Maharashtra recorded the highest number of deaths in police custody with 250 deaths; followed by Uttar Pradesh (174); Gujarat (134); Andhra Pradesh (109); West Bengal (98); Tamil Nadu (95); Assam (84); Karnataka (67); Punjab (57); Madhya Pradesh (55); Haryana (45); Bihar (44); Kerala (42); Jharkhand (41); Rajasthan (38); Orissa (34); Delhi (30); Chhattisgarh (24); Uttarakhand (20); Meghalaya (17); Arunachal Pradesh (10); Tripura (8); Jammu and Kashmir (6); Himachal Pradesh (5); Goa; Chandigarh and Pondicherry (3 each); Manipur, Mizoram and Nagaland (2 each); and Sikkim and Dadra and Nagar Haveli (1 each).
About 99.99% of deaths in police custody can be ascribed to torture and occur within 48 hours of the victims being taken into custody. Though Maharashtra has a total population of 112 million in comparison to 199 million in Uttar Pradesh according to 2011 census, the fact that 76 more persons were killed in police custody in Maharashtra shows that torture is more rampant in police custody in Maharashtra than Uttar Pradesh.
Custodial rape remains one of the worst forms of torture perpetrated on women by law enforcement personnel and a number of custodial rapes of women take place at regular intervals. The NHRC recorded 39 cases of rape from judicial and police custody from 2006 to 28
Private defence or murder:
As a necessary corollary to such defence it is imperative that there is a registration of a First Information Report (FIR) considering such a death as murder or culpable homicide not amounting to murder. In order to claim a right of private defence to cause death, the person must show that there were circumstances giving to reasonable grounds for apprehension that death, or other acts described earlier would have resulted if the right was not exercised. Courts have held that if medical examination of the person reveals superficial or simple injuries, there can be no right to private defence. The violence used to defend oneself must not be unduly disproportionate to the injury that is sought to be averted and should not exceed its legitimate purpose.
But in order to prove that it was a legitimate exercise of the right, it is necessary to have an investigation with the burden of proof shifting to the person who claims this right. This right to private defence cannot be used to punish a suspect.
However FIRs, in most encounter cases, invariably state that on seeing the police the other party opened fire with a view to kill or threatened to kill. The issue of considering whether the death was a result of private defence or was one of murder is never factored in the FIR. Family members of the deceased or human rights activists who wish to reopen such cases find it an uphill task to get even a death certificate or post-mortem report and are thwarted at every stage, often facing threats to their life.
In response to a complaint from the Andhra Pradesh Civil Liberties Committee (APCLC) relating to encounter killings of suspected members of the Peoples’ War Group (PWG), the National Human Rights Commission (NHRC) issued a series of guidelines that required all police stations to immediately record such deaths and hand over investigation to an independent agency such as the CID if the persons concerned were from the same police station. The NHRC guidelines also directed that in cases of specific complaints of fake encounters it was necessary to register and investigate the case by a special agency such as the CID. Family members of the deceased are required to be associated with the magisterial enquiry that must be conducted in encounter deaths and prompt disciplinary action must be taken against errant officers.
While these guidelines were issued in 2003, the commission now seems to be condoning such violence. Recently, the Chairperson expressed his view that extrajudicial executions could solve law and order issues and cited examples of “encounter” deaths of persons suspected of being members of the Mumbai underworld and Maoists.
Tamil Nadu and filed a public interest litigation seeking the appointment of a retired High Court Judge to investigate “encounter deaths” in Tamil Nadu and to register a FIR in every such case. The writ is still pending.
A lay person faces a trial if claiming right to private defence if it results in death. But despite being trained in combat and armed with weapons, those who indulge in encounters do not even face an investigation. Hence, the test for “reasonable apprehension” of imminent danger cannot be the same for such persons and needs to be addressed with a categorical shift in burden of proof in cases of such custodial violence.