S.O.S e – Voice For Justice – e-news weekly
Spreading the light of humanity & freedom
Editor: Nagaraja.M.R.. Vol.13..Issue.07….….18 / 02 / 2017
Torture Chambers of India
Editorial : Human Rights Vs Police
We respect , salute HONEST , Professional police officials who are sincerely doing their duties to uphold rule of law in india 24 hours X 365 days. Many police police have sacrificed their lives while protecting law , citizens at the hands of mafia , naxals & terrorists. Ou whole hearted respects to them. Due to hard work , sacrifices of our police & military we common people are living peacefully and enjoying our rights , freedom in india. The credit fully goes to them.
Our legal struggle is against the few corrupt police elements within the police force who use illegal methods in league with criminals to suppress commoners , innocents , aggrieved. Nowadays , commoners are meted out injustices by few law enforcement officials themselves. In all such cases , law enforcement officials show utter contempt towards of law of the land “Constitution of India” and orders of the “Supreme Court of India” with regards to HUMAN RIGHTS of a person . Therefore such law enforcement officials are anti nationals and must be legally booked for the contempt , criminal charges.
Jai Hind. Vande Maataram.
Nagaraja Mysuru Raghupathi
Hold officers responsible for caning: Karnataka HC
04th August 2016
BENGALURU: The High Court on Wednesday observed that the officers who monitored the Mahadayi protest at Yamanur in Dharwad district and gave instructions to lathicharge villagers should also be held responsible, and not only the constables who did the caning.
Expressing displeasure at the way the police handled the Mahadayi protest at the village, Justice A N Venugopala Gowda asked the State Human Rights Commission (SHRC) to submit a report on police highhandedness by Friday.
He took the State Police Complaints Authority and Human Rights Commission to task for not initiating suo motu action against police excesses on innocent villagers. The judge wondered how the authorities of both the bodies become mute spectators despite the media exposing police atrocity.
Police Atrocities on Farmers demanding Mahadayi water
Police must issue summons in writing: HC
TNN | Feb 14, 2012
MADURAI: The Madurai bench of the Madras high court on Monday ruled that “the police have no power to require a person to appear in the police station as a routine measure, without issuing summons for such appearance.” The judge clearly stated that “on a cumulative reading of the provisions of the Code of Criminal Procedure, it is evident that the police have no authority to summon a person without issuing a notice in writing.”
Justice K K Sasidharan made these observations while disposing a petition filed by Safurnissa who alleged that her husband, Sulaiman Sait was frequently directed to appear before the police without issuing notice, in the name of enquiry. They alleged that the police was ill-treating them during the course of investigation into the case of pipe bomb targeting BJP leader L K Advani.
“There is no dispute that the accused should not be permitted to avoid prosecution. However, under the guise of investigation, innocent persons should never be subjected to unnecessarily restraint or ill-treatment. The police have every right to require the attendance of a person, who according to them, would be in a position to give information with respect to a case under investigation,” Justice Sasidharan said. He added that as per Section 160 of the Code of Criminal Procedure, 1973, while conferring power on the police to summon a person, equally enjoins the police a duty to see that no person is ordered to appear before the police station without a summons. There should be proper records to show that a person was summoned to the police station in connection with a particular case or incident. The failure on the part of the police to maintain records alone gives them opportunity to use third degree methods and in the event of death during such custody or during the course of investigation, to destroy evidence and to escape from possible legal action.
“Policemen are also public servants. The fact that they are invested with certain powers under the Code of Criminal Procedure, 1973 does not mean that they are all above the law. They cannot expect people to abide by laws, unless they themselves act in accordance with the Code of Criminal Procedure and other relevant enactments,” he added.
Justice Sasidharan pointed out that in case of arrest, the SC has given 11 directions to be followed by the police scrupulously. Hence, the police have to follow detailed guidelines while carrying out an arrest and handling the interrogation.
Traitors in Judiciary & Police
Crimes by Khaki
FIRST Answer Judges Police
“There is a higher court than the court of justice and that is the court of conscience It supercedes all other courts. ”
– Mahatma Gandhi
SUPREME COURT DIRECTION ON ARREST
In view of the increasing incidence of violence and torture in custody, the Supreme Court of India (in D.K.Basu vs. State of West Bengal (1997) AIR 1997 SC 610) has laid down 11 specific requirements and procedures that the police and other agencies have to follow for the arrest, detention and interrogation of any person. These are:
1. Police arresting and interrogating suspects should wear “accurate, visible and clear” identification and name tags, and details of interrogating police officers should be recorded in a register.
2. A memo of arrest must be prepared at the time of arrest. This should Have the time and date of arrest. be attested by at least one witness who may either be a family member of the person arrested or a respectable person of the locality where the arrest was made. be counter-signed by the person arrested.
3. The person arrested, detained or being interrogated has a right to have a relative, friend or well-wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the person to be informed has signed the arrest memo as a witness this is not required.
4. Where the friend or relative of the person arrested lives outside the district, the time and place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. This should be done by a telegram through the District Legal Aid Authority and the concerned police station.
5. The person arrested should be told of the right to have someone informed of the arrest, as soon as the arrest or detention is made.
6. An entry must be made in the diary at the place of detention about the arrest, the name of the person informed and the name and particulars of the police officers in whose custody the person arrested is.
7. The person being arrested can request a physical examination at the time of arrest. Minor and major injuries if any should be recorded. The “Inspection Memo” should be signed by the person arrested as well as the arresting police officer. A copy of this memo must be given to the person arrested.
8. The person arrested must have a medical examination by a qualified doctor every 48 hours during detention. This should be done by a doctor who is on the panel, which must be constituted by the Director of Health Services of every State.
9. Copies of all documents including the arrest memo have to be sent to the Area Magistrate (laqa Magistrate) for his record.
10. The person arrested has a right to meet a lawyer during the interrogation, although not for the whole time.
11. There should be a police control room in every District and State headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer. This must be done within 12 hours of the arrest. The control room should prominently display the information on a notice board.
These requirements were issued to the Director General of Police and the Home Secretary of every State. They were obliged to circulate the requirements to every police station under their charge. Every police station in the country had to display these guidelines prominently. The judgment also encouraged that the requirements be broadcast through radio and television and pamphlets in local languages be distributed to spread awareness.
These requirements are in addition to other rights and rules, such as:
• The right to be informed at the time of arrest of the offence for which the person is being arrested.
• The right to be presented before a magistrate within 24 hours of the arrest.
• The right not to be ill-treated or tortured during arrest or in custody.
• Confessions made in police custody cannot be used as evidence against the accused.
• A boy under 15 years of age and women cannot be called to the police station only for questioning.
Can police search your house or office without a warrant in India?
By Vasu Khera
Let’s start with a basic. What is a search warrant? A search warrant is a court order that a magistrate, Judge or Court issues that authorizes law enforcement officers to conduct a search of a person, location or vehicle for evidence of a crime and to confiscate illegal items or evidence of crime, if they find any. In order to get a search warrant, the police must convince a judge that there is evidence of a crime at that place and if the judge is convinced, he shall issue a warrant and the warrant must be very specific, as it should clearly state where exactly the search should take place, including a specific date and time. In India, Article 19 (Right to Freedom) and Article 20(3) (Protection against Self Incrimination) of the Indian Constitution give protection to the accused person against testifying against themselves which implies protection of citizens from unreasonable searches.
The power to issue search warrant should be exercised with all the care and circumstances. According to the provisions of the Criminal Procedure Code, search warrant can be issued under specific circumstances. Three of the circumstances are covered by section 93 which provides:
(a) Where a court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been addressed will not produce the document as required by such summon.(b) where such document or thing is not known to the court to be in the possession of any person, or(c) where the court considers that a general search will serve the purpose of any inquiry, trial or other proceeding under this code ,it may issue a search warrant.2. Where the court specifies in the warrant the particular place or part to which only the search shall extend.
3. Nothing contained in this section shall authorize any magistrate other than a district magistrate to grant a warrant to search for a document, parcel or another thing in the custody of the postal services.
4. A warrant for search of a place suspected to contain stolen property, forged document can be issued under section 94.
5. If any person is confined under such circumstances that the confinement amounts to an offence, a search warrant shall be issued for the person so confined. This has been provided by section 97.
The law usually makes an exception for hot pursuit as Section 165 of the code has been enacted as an exception to this general law of searches because it is recognized that in certain exceptional emergencies it is necessary to empower police officer to carry out searches without first applying to the courts for authority.
So, the answer of the question as to whether police can search your house without warrant is “Yes”. The police can enter your private residence or office without a warrant, but only under very limited circumstances.
The circumstances in which a police officer does not need a search warrant to conduct a search are stated in section 165, and these grounds are as follows:
1) Whenever an officer in charge of a police station or a police officer making an investigation has a reasonable grounds to believe that anything necessary for the purpose of an investigation into any offence which he is authorized to investigate may be found in any place and that thing cannot in his opinion be obtained without undue delay without a search, such officer may search for such thing in any place within the limits of such station.
2) Police officer proceeding under sub section (1), shall if practicable, conduct the search in person.
3) If police officer is unable to conduct the search in person and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to make the search and order him to search for such thing in such place.
4) If a police officer remained outside the house while the search was being made inside by some subordinate officer, the search was not held to be illegal.
5) Copies of any record made under sub section (1) shall be sent to the nearest magistrate empowered to take cognizance of the offence.
The question arose before the Hon’ble supreme court of India as to whether issuance of search warrant infringes fundamental rights and the Hon’ble apex court held AIR 1954 SC 300 that a search and seizure is only a temporary interference with the right to hold premises searched and the articles seized. Hence, no question of violation of Article 19 is involved. Also search and seizure of documents from accused does not amount to infringement of fundamental rights under Article 20(3) of the constitution.
As a search warrant is drastic invasion upon the privacy of a person, the code has imposed certain limitations upon this powers:
1) The document or the thing being searched for must be distinctly specified.
2) A magistrate other than a district magistrate or a chief judicial magistrate cannot issue a search warrant with a respect to a document of postal authority.
3) The magistrate must exercise his judicial discretion while issuing search warrant.
4) Search and seizure should be made in compliance with the provision to section 100 of Cr.P.C.
Unless the fact-pattern fits one of the exceptions discussed above, a warrant is required to police to conduct a search. But police may not use this as an arbitrary power like as if the police search your home and a court says that the search was unlawful, any evidence they seized during search can’t be used against you in court and some rights are given to an occupant like person can ask for identification and explanation as to why they are at your location and can also restrict the search to the area specified in the warrant or if they search in an area where they are not supposed to or not listed in the warrant then person can challenge the search.
However, in reality, police in India is known to use the power given in Section 165 in a very wide manner to fish for evidence in houses of any suspect or non-suspect, and sometimes even as a tool for harassment and oppression. Due to the general language of Section 165, police can first search your house on a whim and subsequently validate such search retrospectively if the Station In-Charge backs up the search.
It is not a good idea to restrict the police from searching if they demand to search your house or office even if they do not have an warrant to do so, since they can use force with impunity and later on justify the search under Section 165. They can also arrest you for obstruction of a police officer, which is an offence.
At best, you may demand that a police office be present during the search. You can also demand that respectable civilian people in the area be present during the search. Also, the police should prepare a seizure list and make you sign the same.
The real danger is that one may plant evidence against you during a search and police may use this against you in a case. This is why, if possible searches should be video recorded.
If search is not video recorded and it appears that evidence has been planted against you – the best recourse you have is in the court of law, and it is unlikely that you will be able to reason with the police.
It is possible to demand that your lawyer, if immediately available, be present during a search. In fact, it is a great idea to have a good lawyer present during a raid or search of your premises.
“The poor, illiterate and weaker sections in our society in our country suffer day in and day out in their struggle for survival and look to those who have promised them equality- social, political and economic…a very large number of under–trial prisoners suffer prolonged incarceration even in petty criminal matters merely for the reason that they are not in a position, even in bailable offences, to furnish bail bonds and get released on bail.”
Ex-Chief Justice of India Adarsh Sein Anand
In India, eighty percent of the inmates in the jails are under trials. The major problems faced by these inmates are not only of not getting a trial but that of not being granted bail, inhuman treatment in jails, facing poor conditions, lack of proper medical treatment, etc. There are various statutes such as the Prisoners Act, 1894; the Model Manual Prison India, etc. and various precedents which have been laid down in landmark cases which provide for the rights which these prisoners are entitled to. However, the problem today lies not in the availability of these rights but in the implementation of these rights and precedents. We at HRLN, under the Prisoners Rights Initiative work towards helping these prisoners get their rightful treatment in the prisons, safeguard their access to a fair and speedy trial, facilitate bail procedures and work towards various other procedural requirements to ensure that these prisoners make efforts to only achieve reformation and don’t have to fight for their survival.
ISSUES OF CONCERN
80% prisoners are under trials
Even though bail is granted, prisoners are not released.
Lack or insufficient provision of medical aid to prisoners
Callous and insensitive attitude of jail authorities
Punishment carried out by jail authorities not coherent with punishment given by court.
Harsh mental and physical torture
Lack of proper legal aid
High amount of surety ordered by courts which indigent prisoners can’t pay
Rejection of surety bonds due to lack of money or verification of addresses, as indigent prisoners don’t have houses.
Corruption and other malpractices.
WHAT WE DO?
The Prisoners Rights Initiative, in confluence with advocates and social activists working all across India aim at getting prisoners released, especially indigent ones, who are or have been under going trials and have been languishing in the prison for a long period of time. For this purpose, we file bail applications, file for surety bonds and in cases where the indigent prisoners are unable to pay for the same, we provide for monetary assistance in collaboration with our other NGO initiatives.
Since, this initiative deals with problems faced by prisoners, our advocates regularly visit the jails and collect cases and case details from the prisoners.
Apart from providing assistance to prisoners to ensure their safe and timely releases, our constant endeavor is to aspire to safeguard the rights of these prisoners to a fair and speedy trial. So far, in Delhi prison itself, over 500 persons have been provided with legal advice/representation and over 200 indigent prisoners and 150 juveniles have been released on bail. Once the prisoners have been released, we aim at providing facilities to these prisoners so that they are able to get in touch with their family, we counsel them and their families and help these prisoners reach their homes safely by providing monetary assistance which is done with the help of our other partner NGOs.
Our advocates not only fight for indigent prisoners, but also women prisoners, prisoners with disabilities and juveniles We have filed various PILs in Maharashtra, West Bengal and Delhi and have managed to get successful releases of prisoners, inquiries ordered by Courts to look into the matters and provision of legal aid to these prisoners.
HRLN held a National Consultation Conference whereby all advocates and social activists working with various NGOs all across the country came together to discuss the main issues and plan of action to combat the grievances faced by prisoners. The main of the conference was to establish an approach whereby legal teams would be instituted to make frequent visits to police station lock ups and prisons to provide legal advice and representation.
WHAT WE HAVE DONE
As per statistics, we at HRLN have taken up 841 cases so far. This is the number of cases that we have worked upon in eight states including Rajasthan, Madhya Pradesh, Chhattisgarh, Orissa, Delhi, West Bengal, Maharashtra and Andhra Pradesh. The total number of cases taken up until 2011 is 841, wherein the total number of bails granted is 738 which is highly indicative of our success rate. Our basic aim has been from the start to gradually achieve systemic change where legal aid for undertrials will be institutionalized from the point of arrest and the legal aid system substantially reformed and also to raise awareness of prison conditions and the problems faced by undertrials. We believe in the ideology to provide legal aid to indigent undertrials from the point of arrest. To release groups of undertrials who are languishing in jail beyond the maximum possible period of incarceration.
We at HRLN visit jails to have direct communication with the prisoners who have been in these prisons for years due to undertrial. During the jail visits these lawyers or paralegal worker meet the prisoners and under trails directly and not only provide legal aid but also identify areas for work to be done. Many juveniles those were languishing in adult jails were released or transferred to Juvenile Homes. It has been very stately presumed that prisoners have undergone poor upkeep even when they are extremely sick. At HRLN we make it an agenda to ensure that sick prisoners are provided with better treatment.
The prison is supposed to be for reformatory purpose. However the entire purpose fails when the supposed transformation is delayed for more than decades. With people who under trials, their reformation is extended to such long period that their reformation indeed is extended to acute medical issues and these people are absolutely unfit to even survive as normal human beings.
Rights of Prisoners
Treatment And Protection Of Witnesses In India
By : Dhruv Desai
Witness protection program and witness protection laws are simply the need of the hour. In fact, it is the absence of these laws that has helped in further strengthening the criminals and offenders. But ironically in India, such programs and laws are a far cry from reality, where leave alone protection, the witness is not even treated with respect or asked for water.
A criminal case is built upon the edifice of evidence that is admissible in law. For that, witnesses are required, whether it is direct evidence or circumstantial evidence. Today the witnesses are a harassed lot. Not only that the witness is bribed, threatened, abducted, even maimed or done away with. For all these reasons and many more, a person abhors from becoming a witness.
Treatment of Witnesses
The present judicial system has taken the witnesses completely for granted. Witnesses are summoned to the Court regardless of the fact that they have no money, or that they cannot leave their family, children, business etc. and appear before the Court. But that’s not all. On reaching the Court, some are told that the case has been adjourned (for reasons that may run into infinity) and the respective lawyer politely gives them a further date for their next appearance.
In the matter of Swaran Singh v. State of Punjab, the Supreme Court observed,
“A witness has to visit the Court at his own cost, every time the case is differed for a different date. Nowadays it has become more or less fashionable to repeatedly adjourn a case. Eventually the witness is tired and gives up.”
The Court further held that while adjourning a case without any valid cause, a Court unwittingly becomes party to miscarriage of justice.2 Most witnesses have to wait their turn out. And when their time for deposing or the giving of evidence comes, the lawyers examine and cross examine them as if they themselves are the perpetrators of the crime.
Since the guilt of the accused is proved to a great extent on the basis of the evidence or the information given by such a witness, therefore perjury or the giving of false evidence has to be severely censured.
Perjury today has also become a way of life in the Courts. In some cases the judge knows that whatever the witness is saying is not true and is going back on his previous statement. The Judge here ignores this fact and does not even file a complaint against him.
Section 340 of the Criminal Procedure Code, 1972 states the procedure for the prosecution for contempt of lawful authority of the public servants, for the offences against public justice and for the offences relating to documents given in evidence.
Section 340(3) of Criminal Procedure Code states:
A complaint made under this section shall be signed-
a) Where the Court making the complaint is the High Court, by such officer of the High Court as the Court may appoint;
b) In any other case, by the presiding officer of the Court.
It is respectfully submitted that Section 340(3)(b) needs to be amended, empowering any officer of the Court to file a complaint against such witnesses, thereby putting an end to the notion of bought over or hostile witnesses.
The High Courts also have to be vigilant is these matters if the criminal justice system is to be put on a proper pedestal. The system cannot be left at the mercy of the state machinery. In today’s computer age, it’s about time that all lower courts are linked up with their respective High Courts with a computer. A proper check should be maintained on the adjournments and recording of evidence. Further, the Bar Council of India and the State Bar Councils must play their part and put the criminal justice system back on track.
Instances Where Witness Protection Was Provided
Naroda- Patia: Mohammad Shakur Sayyad, a victim of the Naroda-Patia carnage in the year 2002, who was also a key witness in that case, was attacked and beaten up brutally by a group of thirty people, while he was sitting outside his shop at the Faisal Park Society in Vatva. According to him Akram Ahmed, an anti social element of that locality while assaulting him along with other people of the abovementioned group was shouting “You are very fond of deposing before the Nanavati Commission, aren’t you?”
Sayyad, who lost his three children in the Naroda-Patia massacre, had deposed before the Nanavati Commission on 1st October 2003 naming several persons in the mob. He is one of the key witnesses in the case and had also been provided with one police guard.
The guard however had retired for the day when Sayyad was attacked. The neighbours of Sayyad maintain that Akram Ahmed had been threatening others not to depose before the judiciary during the Naroda trial. About forty-five families of Naroda-Patia have refused to go back to the area after the riots.
What is shocking in this case is that such a key witness (in this case Sayyad), was provided with only one police guard who, surely, would have looked to save his own life rather than that of the witness he was protecting, when the crowd of thirty people attacked.
Ketan Thirodkar case:
In another instance, the Bombay High Court had given police protection to an ex-journalist Ketan Thirodkar, because he had been under threats soon after he had filed the police complaint, which disclosed a series of illegal acts allegedly committed by the police in connivance with the underworld. Thirodkar had filed a petition seeking police protection as well as a police enquiry into the police underworld nexus. However, the public prosecutor opposed the grant of police protection on the ground that Thirodkar himself was involved with the underworld.
Here the public prosecutor failed to comprehend the fact that:
a) Thirodkar has admitted his links with the underworld and is ready to face the legal consequences.
b) That even former criminals/ mobsters are also given police protection if they turn approver.
The High Court, in this case, had given Thirodkar police protection only for a limited period, not realizing that the persons that he is to implicate would cause serious injury to him the moment the temporary police protection is removed.
Twin Blast case:
The role of witnesses and the issue of their protection has come in for much discussion after Shivnarayan Pandey, the taxi driver who gave clues in the August 25th 2003 Twin Blast case had to be given extra protection by the Mumbai Police.
The identity of the witness (Pandey) in this case was leaked to the media by an inspector on the day of the blasts. This officer allegedly circulated Xerox copies of a document bearing the name of the witness and the registration number of his vehicle. A couple of days later, a crime branch officer is believed to have leaked his address in Kandivali- a distant Mumbai suburb- to the media persons.
The police had failed to realize that Pandey was an important prosecution witness in a very sensitive case. Since the police are yet to arrest more persons in regard to this case, Pandey is a crucial witness in identifying such persons. In such cases the police should take extra precaution and issue a circular or directive to all officers in the department to maintain silence on all the investigations.
In this case the Mumbai police have contravened Section 30 of the Prevention of Terrorism Act (POTA), by failing to protect the identity of the prosecution witness.
Section.30 of Prevention of Terrorism Act states:
“Since the life of the witness is in danger, adequate measures should be taken to keep the identity and address of such a witness a secret. The mention of the names and address of the witness should be avoided in any records of the case and even in the Court orders or judgment.”
While Pandey had been kept at an undisclosed place with police guards, his family had not been given protection, whereas, it could have been possible that under the guise of a political activist, some terrorist could have approached Pandey or his family members. They could have bribed Pandey or his family members or for that matter done anything to make sure tat Pandey turns hostile.
The prosecution, in a large number of cases including the BMW and the Jessica Lal murder cases, beside the ones registered under the Terrorist and Disruptive Activities Act (TADA), 1987 has time and again failed due to the backing out of witnesses.
Time and again the prosecution in some of the most sensitive cases had failed because the witnesses, initially responsible for setting into motion the state machinery, had changed their mind when examined in the Court. This has happened in a majority of cases registered in many states under TADA.
In sensational cases like the BMW and the Jessica Lal murder cases; and most recently in the Best Bakery case, wherein the Human Rights Commission intervened when the witnesses changed their statements in the Court due to the lack of protection to them and their families. Whereas in the earlier cases (the BMW and Jessica Lal murder case) most of the eyewitnesses did not open up to pin point the possible reason which compelled them to change their original stand.
The fact is that the accused are able to intimidate the witnesses because there was and is no program available under which, after the assessment of the need for protection to a particular witness, the administration could give him/her the requisite security cover.
In April 2003 a High level Committee headed by Justice V.S. Malimath (former Chief Justice, High Court of Gujarat) was appointed by the Home Ministry to reform the existing criminal justice system. The Commission said that the time has come to enact a law putting in place a Witness Protection Program in India as well.
Recommending the Witness Protection Program, the Malimath Committee however did not focus on any particular case. It spoke generally of the need to check the growing trend of hostile witnesses.
The committee said nothing beyond making a bald recommendation of adopting such a law. It made no effort to go into how the concept of witness protection program can be adapted to the legal topography of India. It did not deal with the obvious issue whether witness protection program is a luxury that a poor country like India cannot afford.
Also, until our police officers are not liberated from the political diktats, as recommended by the National Police Commission over two decades ago, it is not worth our while to try witness protection program even in the gravest of cases.
In recent time the judiciary has been giving significant amount of encouragement to establishing witness protection programs in India.
In one such instance, the Delhi High Court, has on 14th October 2003, issued certain guidelines to the police in providing protection to the witnesses in cases pertaining to life imprisonment or death sentences. The ruling is an attempt to check witnesses from turning hostile under threats from the accused.
The guidelines have been issued by Usha Mehra and Pradeep Nandrajog., JJ on a petition filed by Neelam Kataria, whose son Nitesh was allegedly murdered by Rajya Sabha MP D.P. Yadav’s son Vikas and nephew Vishal.
The Delhi High Court has given the following guidelines in giving witness protection:
1. The Court has also made it compulsory for the investigating officer of a case to inform the witness about the new guidelines.
2. The Court has appointed the Member Secretary of the Delhi Legal Services Authority to decide whether a witness requires police protection or not.
3. The competent authority shall take into account the nature of security risk to him/her from the accused, while granting permission to protect the witness.
4. Once the permission is granted, it shall be the duty of the Commissioner of Police to give protection to the witness.
The High Court said that its order would operate until legislation is passed in this regard.
Initiatives By The Police
With terrorist activities on the rise, the Mumbai police have formulated a four-point plan to protect vital witnesses in the bomb blasts and other sensitive cases. Though this plan is still under deliberation, it shall soon be sent to the State Government for its approval, after which it will be enacted as a law.
The abovementioned 4-point plan is made on the following guidelines:
1. Transferring the witness from his city of residence to another city.
2. Government will provide the witness with a job similar to the one he is/was doing.
3. The witness shall be given a new name, identification, ration card; and a new passport.
4. The government will accept the responsibility of the witness’s entire family and provide it with security cover.
In other countries like America even plastic surgery of the witness for his new identity is considered as an option. However, the Mumbai police it seems has not thought about this. But as stated by Rakesh Maria (Additional Commissioner of Police, Crime), if need be, the police shall take it under consideration.
Therefore, a person who has given or has agreed to give information or evidence or participates or has agreed to give information or evidence or participates or has agreed to participate in a matter pertaining to inquiry into the investigation or prosecution of an offence and who may require protection because of the risk to the security of the person arising in relation to the inquiry, investigation or prosecution be given witness protection by the police. Which as observed from the above instances may include relocation, accommodation, and change of identity in order to ensure the security of the protectee or to facilitate the protectee’s re-establishment or his/her becoming self-sufficient.
Today, under present circumstances, the Indian Government is evaluating the American laws pertaining to witness protection, where gang men after turning approver are given a new name and identity and relocated to a new place. In the USA, the Federal Witness Protection Program was created in response to the dangers faced by the witnesses who testified against mobsters. In a high threat environment including pre-trial conferences, trial testimonials and other court appearances, a round the clock protection is provided to all the witnesses through the U.S Marshall Service.
The Witness Protection Program has been in existence in the United States since 1967. It has so far been used to rehabilitate not more than eight thousand witnesses and their fifteen thousand family members. The American system employs witness protection program typically to help a mafiso who turned approver in the Court, whereas it also employs witness protection program to crack down on drug and international terrorist activities.
Recently Canada gave witness protection cover under its Witness Protection Act, 1996 to a Sikh woman, Satnam Kaur Reyat, who threw fresh light in theKanishka Bombing Case.
While the government is presently deliberating over making laws pertaining to hostile witnesses and laws for witness protection, it is imperative to note that witness protection program works on the premise that all the officials involved in the secret exercise of changing somebody’s identity are absolutely trustworthy. The plain fact is that the level of professionalism demanded by the witness protection program is considered to be beyond the capability of our police in the existing system, making it as susceptible as it is to extraneous influences.
In a recent case, where an IIT engineer (Satyendra Dubey) who was working as a manager in the NAHI; and had filed complaints to the Prime Ministers’ office, regarding the misappropriations in the prestigious Golden Quadrilateral Highway project, was murdered, simply because he had filed those complaints. Today, the National Human Rights Commission has taken note of the media reports into the ‘Lapses’ on part of the Bihar Police; and has asked it to submit a report explaining its failure to investigate the case properly3. Therefore, if the Prime Ministers’ Office can be penetrated, it is little wonder, which other place cannot be.
Today, stringent laws against persons giving false evidence and against witnesses that turn hostile are very much the need of the hour. In many cases, it is on the basis of the evidence given by witnesses that the State initiates the prosecution process. However, during the trial of those accused, it is often the case that those witnesses (on the basis of whose evidence the prosecution was initiated), turn hostile. Resulting in the acquittal of the accused. An instance of such happening is available in the recent times, wherein, in trial of one Mr. Mukhtar Ansari (legislator- Bahujan Samaj Party, Lucknow), who was being tried for the murder of a Jail Superintendent (Mr. R.K Tiwari), was acquitted because all the witness in the case (36 in number) turned hostile. It could also perhaps be because of the inadequate protection given to the witnesses, because of which they were influenced to change their earlier statements. But either ways this case portrays the inadequacy of the present justice system in India.
It is therefore not a question of funds, as they could be generated in due time by some means or the other; but a question put to the integrity of the system upon which thrives the sustainability of the witness protection program as well as the life of the witness and his family.
1. All prisoners shall be treated with the respect due to their inherent dignity and value as human beings.
2. There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
3. It is, however, desirable to respect the religious beliefs and cultural precepts of the group to which prisoners belong, whenever local conditions so require.
4. The responsibility of prisons for the custody of prisoners and for the protection of society against crime shall be discharged in keeping with a State’s other social objectives and its fundamental responsibilities for promoting the well-being and development of all members of society.
5. Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.
6. All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.
7. Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged.
8. Conditions shall be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the country’s labour market and permit them to contribute to their own financial support and to that of their families.
9. Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
10. With the participation and help of the community and social institutions, and with due regard to the interests of victims, favourable conditions shall be created for the reintegration of the ex-prisoner into society under the best possible conditions.
11. The above Principles shall be applied impartially.
Standard Minimum Rules for the Treatment of Prisoners
Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977
1. The following rules are not intended to describe in detail a model system of penal institutions. They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.
2. In view of the great variety of legal, social, economic and geographical conditions of the world, it is evident that not all of the rules are capable of application in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations.
3. On the other hand, the rules cover a field in which thought is constantly developing. They are not intended to preclude experiment and practices, provided these are in harmony with the principles and seek to further the purposes which derive from the text of the rules as a whole. It will always be justifiable for the central prison administration to authorize departures from the rules in this spirit.
4. (1) Part I of the rules covers the general management of institutions, and is applicable to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to “security measures” or corrective measures ordered by the judge.
(2) Part II contains rules applicable only to the special categories dealt with in each section. Nevertheless, the rules under section A, applicable to prisoners under sentence, shall be equally applicable to categories of prisoners dealt with in sections B, C and D, provided they do not conflict with the rules governing those categories and are for their benefit.
5. (1) The rules do not seek to regulate the management of institutions set aside for young persons such as Borstal institutions or correctional schools, but in general part I would be equally applicable in such institutions.
(2) The category of young prisoners should include at least all young persons who come within the jurisdiction of juvenile courts. As a rule, such young persons should not be sentenced to imprisonment.
RULES OF GENERAL APPLICATION
6. (1) The following rules shall be applied impartially. There shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
(2) On the other hand, it is necessary to respect the religious beliefs and moral precepts of the group to which a prisoner belongs.
7. (1) In every place where persons are imprisoned there shall be kept a bound registration book with numbered pages in which shall be entered in respect of each prisoner received:
(a) Information concerning his identity;
(b) The reasons for his commitment and the authority therefor;
(c) The day and hour of his admission and release.
(2) No person shall be received in an institution without a valid commitment order of which the details shall have been previously entered in the register.
Separation of categories
8. The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus,
(a) Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate;
(b) Untried prisoners shall be kept separate from convicted prisoners;
(c) Persons imprisoned for debt and other civil prisoners shall be kept separate from persons imprisoned by reason of a criminal offence;
(d) Young prisoners shall be kept separate from adults.
9. (1) Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.
(2) Where dormitories are used, they shall be occupied by prisoners carefully selected as being suitable to associate with one another in those conditions. There shall be regular supervision by night, in keeping with the nature of the institution.
10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.
11. In all places where prisoners are required to live or work,
(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.
12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.
13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.
14. All parts of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.
15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.
16. In order that prisoners may maintain a good appearance compatible with their self-respect, facilities shall be provided for the proper care of the hair and beard, and men shall be enabled to shave regularly.
Clothing and bedding
17. (1) Every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Such clothing shall in no manner be degrading or humiliating.
(2) All clothing shall be clean and kept in proper condition. Underclothing shall be changed and washed as often as necessary for the maintenance of hygiene.
(3) In exceptional circumstances, whenever a prisoner is removed outside the institution for an authorized purpose, he shall be allowed to wear his own clothing or other inconspicuous clothing.
18. If prisoners are allowed to wear their own clothing, arrangements shall be made on their admission to the institution to ensure that it shall be clean and fit for use.
19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.
20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.
(2) Drinking water shall be available to every prisoner whenever he needs it.
Exercise and sport
21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.
(2) Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end space, installations and equipment should be provided.
22. (1) At every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry. The medical services should be organized in close relationship to the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.
(2) Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.
(3) The services of a qualified dental officer shall be available to every prisoner.
23. (1) In women’s institutions there shall be special accommodation for all necessary pre-natal and post-natal care and treatment. Arrangements shall be made wherever practicable for children to be born in a hospital outside the institution. If a child is born in prison, this fact shall not be mentioned in the birth certificate.
(2) Where nursing infants are allowed to remain in the institution with their mothers, provision shall be made for a nursery staffed by qualified persons, where the infants shall be placed when they are not in the care of their mothers.
24. The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical or mental illness and the taking of all necessary measures; the segregation of prisoners suspected of infectious or contagious conditions; the noting of physical or mental defects which might hamper rehabilitation, and the determination of the physical capacity of every prisoner for work.
25. (1) The medical officer shall have the care of the physical and mental health of the prisoners and should daily see all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.
(2) The medical officer shall report to the director whenever he considers that a prisoner’s physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.
26. (1) The medical officer shall regularly inspect and advise the director upon:
(a) The quantity, quality, preparation and service of food;
(b) The hygiene and cleanliness of the institution and the prisoners;
(c) The sanitation, heating, lighting and ventilation of the institution;
(d) The suitability and cleanliness of the prisoners’ clothing and bedding;
(e) The observance of the rules concerning physical education and sports, in cases where there is no technical personnel in charge of these activities.
(2) The director shall take into consideration the reports and advice that the medical officer submits according to rules 25 (2) and 26 and, in case he concurs with the recommendations made, shall take immediate steps to give effect to those recommendations; if they are not within his competence or if he does not concur with them, he shall immediately submit his own report and the advice of the medical officer to higher authority.
Discipline and punishment
27. Discipline and order shall be maintained with firmness, but with no more restriction than is necessary for safe custody and well-ordered community life.
28. (1) No prisoner shall be employed, in the service of the institution, in any disciplinary capacity.
(2) This rule shall not, however, impede the proper functioning of systems based on self-government, under which specified social, educational or sports activities or responsibilities are entrusted, under supervision, to prisoners who are formed into groups for the purposes of treatment.
29. The following shall always be determined by the law or by the regulation of the competent administrative authority:
(a) Conduct constituting a disciplinary offence;
(b) The types and duration of punishment which may be inflicted;
(c) The authority competent to impose such punishment.
30. (1) No prisoner shall be punished except in accordance with the terms of such law or regulation, and never twice for the same offence.
(2) No prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his defence. The competent authority shall conduct a thorough examination of the case.
(3) Where necessary and practicable the prisoner shall be allowed to make his defence through an interpreter.
31. Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.
32. (1) Punishment by close confinement or reduction of diet shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he is fit to sustain it.
(2) The same shall apply to any other punishment that may be prejudicial to the physical or mental health of a prisoner. In no case may such punishment be contrary to or depart from the principle stated in rule 31.
(3) The medical officer shall visit daily prisoners undergoing such punishments and shall advise the director if he considers the termination or alteration of the punishment necessary on grounds of physical or mental health.
Instruments of restraint
33. Instruments of restraint, such as handcuffs, chains, irons and strait-jackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other instruments of restraint shall not be used except in the following circumstances:
(a) As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority;
(b) On medical grounds by direction of the medical officer;
(c) By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.
34. The patterns and manner of use of instruments of restraint shall be decided by the central prison administration. Such instruments must not be applied for any longer time than is strictly necessary.
Information to and complaints by prisoners
35. (1) Every prisoner on admission shall be provided with written information about the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution.
(2) If a prisoner is illiterate, the aforesaid information shall be conveyed to him orally.
36. (1) Every prisoner shall have the opportunity each week day of making requests or complaints to the director of the institution or the officer authorized to represent him.
(2) It shall be possible to make requests or complaints to the inspector of prisons during his inspection. The prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director or other members of the staff being present.
(3) Every prisoner shall be allowed to make a request or complaint, without censorship as to substance but in proper form, to the central prison administration, the judicial authority or other proper authorities through approved channels.
(4) Unless it is evidently frivolous or groundless, every request or complaint shall be promptly dealt with and replied to without undue delay.
Contact with the outside world
37. Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.
38. (1) Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong.
(2) Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.
39. Prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorized or controlled by the administration.
40. Every institution shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books, and prisoners shall be encouraged to make full use of it.
41. (1) If the institution contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed or approved. If the number of prisoners justifies it and conditions permit, the arrangement should be on a full-time basis.
(2) A qualified representative appointed or approved under paragraph (1) shall be allowed to hold regular services and to pay pastoral visits in private to prisoners of his religion at proper times.
(3) Access to a qualified representative of any religion shall not be refused to any prisoner. On the other hand, if any prisoner should object to a visit of any religious representative, his attitude shall be fully respected.
42. So far as practicable, every prisoner shall be allowed to satisfy the needs of his religious life by attending the services provided in the institution and having in his possession the books of religious observance and instruction of his denomination.
Retention of prisoners’ property
43. (1) All money, valuables, clothing and other effects belonging to a prisoner which under the regulations of the institution he is not allowed to retain shall on his admission to the institution be placed in safe custody. An inventory thereof shall be signed by the prisoner. Steps shall be taken to keep them in good condition.
(2) On the release of the prisoner all such articles and money shall be returned to him except in so far as he has been authorized to spend money or send any such property out of the institution, or it has been found necessary on hygienic grounds to destroy any article of clothing. The prisoner shall sign a receipt for the articles and money returned to him.
(3) Any money or effects received for a prisoner from outside shall be treated in the same way.
(4) If a prisoner brings in any drugs or medicine, the medical officer shall decide what use shall be made of them.
Notification of death, illness, transfer, etc.
44. (1) Upon the death or serious illness of, or serious injury to a prisoner, or his removal to an institution for the treatment of mental affections, the director shall at once inform the spouse, if the prisoner is married, or the nearest relative and shall in any event inform any other person previously designated by the prisoner.
(2) A prisoner shall be informed at once of the death or serious illness of any near relative. In case of the critical illness of a near relative, the prisoner should be authorized, whenever circumstances allow, to go to his bedside either under escort or alone.
(3) Every prisoner shall have the right to inform at once his family of his imprisonment or his transfer to another institution.
Removal of prisoners
45. (1) When the prisoners are being removed to or from an institution, they shall be exposed to public view as little as possible, and proper safeguards shall be adopted to protect them from insult, curiosity and publicity in any form.
(2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited.
(3) The transport of prisoners shall be carried out at the expense of the administration and equal conditions shall obtain for all of them.
46. (1) The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of the institutions depends.
(2) The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.
(3) To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison officers and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.
47. (1) The personnel shall possess an adequate standard of education and intelligence.
(2) Before entering on duty, the personnel shall be given a course of training in their general and specific duties and be required to pass theoretical and practical tests.
(3) After entering on duty and during their career, the personnel shall maintain and improve their knowledge and professional capacity by attending courses of in-service training to be organized at suitable intervals.
48. All members of the personnel shall at all times so conduct themselves and perform their duties as to influence the prisoners for good by their example and to command their respect.
49. (1) So far as possible, the personnel shall include a sufficient number of specialists such as psychiatrists, psychologists, social workers, teachers and trade instructors.
(2) The services of social workers, teachers and trade instructors shall be secured on a permanent basis, without thereby excluding part-time or voluntary workers.
50. (1) The director of an institution should be adequately qualified for his task by character, administrative ability, suitable training and experience.
(2) He shall devote his entire time to his official duties and shall not be appointed on a part-time basis.
(3) He shall reside on the premises of the institution or in its immediate vicinity.
(4) When two or more institutions are under the authority of one director, he shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these institutions.
51. (1) The director, his deputy, and the majority of the other personnel of the institution shall be able to speak the language of the greatest number of prisoners, or a language understood by the greatest number of them.
(2) Whenever necessary, the services of an interpreter shall be used.
52. (1) In institutions which are large enough to require the services of one or more full-time medical officers, at least one of them shall reside on the premises of the institution or in its immediate vicinity.
(2) In other institutions the medical officer shall visit daily and shall reside near enough to be able to attend without delay in cases of urgency.
53. (1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
(2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.
54. (1) Officers of the institutions shall not, in their relations with the prisoners, use force except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. Officers who have recourse to force must use no more than is strictly necessary and must report the incident immediately to the director of the institution.
(2) Prison officers shall be given special physical training to enable them to restrain aggressive prisoners.
(3) Except in special circumstances, staff performing duties which bring them into direct contact with prisoners should not be armed. Furthermore, staff should in no circumstances be provided with arms unless they have been trained in their use.
55. There shall be a regular inspection of penal institutions and services by qualified and experienced inspectors appointed by a competent authority. Their task shall be in particular to ensure that these institutions are administered in accordance with existing laws and regulations and with a view to bringing about the objectives of penal and correctional services.
RULES APPLICABLE TO SPECIAL CATEGORIES
A. Prisoners under sentence
56. The guiding principles hereafter are intended to show the spirit in which penal institutions should be administered and the purposes at which they should aim, in accordance with the declaration made under Preliminary Observation 1 of the present text.
57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.
58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.
59. To this end, the institution should utilize all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.
60. (1) The regime of the institution should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.
(2) Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release regime organized in the same institution or in another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid.
61. The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it. Community agencies should, therefore, be enlisted wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners. There should be in connection with every institution social workers charged with the duty of maintaining and improving all desirable relations of a prisoner with his family and with valuable social agencies. Steps should be taken to safeguard, to the maximum extent compatible with the law and the sentence, the rights relating to civil interests, social security rights and other social benefits of prisoners.
62. The medical services of the institution shall seek to detect and shall treat any physical or mental illnesses or defects which may hamper a prisoner’s rehabilitation. All necessary medical, surgical and psychiatric services shall be provided to that end.
63. (1) The fulfilment of these principles requires individualization of treatment and for this purpose a flexible system of classifying prisoners in groups; it is therefore desirable that such groups should be distributed in separate institutions suitable for the treatment of each group.
(2) These institutions need not provide the same degree of security for every group. It is desirable to provide varying degrees of security according to the needs of different groups. Open institutions, by the very fact that they provide no physical security against escape but rely on the self-discipline of the inmates, provide the conditions most favourable to rehabilitation for carefully selected prisoners.
(3) It is desirable that the number of prisoners in closed institutions should not be so large that the individualization of treatment is hindered. In some countries it is considered that the population of such institutions should not exceed five hundred. In open institutions the population should be as small as possible.
(4) On the other hand, it is undesirable to maintain prisons which are so small that proper facilities cannot be provided.
64. The duty of society does not end with a prisoner’s release. There should, therefore, be governmental or private agencies capable of lending the released prisoner efficient after-care directed towards the lessening of prejudice against him and towards his social rehabilitation.
65. The treatment of persons sentenced to imprisonment or a similar measure shall have as its purpose, so far as the length of the sentence permits, to establish in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so. The treatment shall be such as will encourage their self-respect and develop their sense of responsibility.
66. (1) To these ends, all appropriate means shall be used, including religious care in the countries where this is possible, education, vocational guidance and training, social casework, employment counselling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner, taking account of his social and criminal history, his physical and mental capacities and aptitudes, his personal temperament, the length of his sentence and his prospects after release.
(2) For every prisoner with a sentence of suitable length, the director shall receive, as soon as possible after his admission, full reports on all the matters referred to in the foregoing paragraph. Such reports shall always include a report by a medical officer, wherever possible qualified in psychiatry, on the physical and mental condition of the prisoner.
(3) The reports and other relevant documents shall be placed in an individual file. This file shall be kept up to date and classified in such a way that it can be consulted by the responsible personnel whenever the need arises.
Classification and individualization
67. The purposes of classification shall be:
(a) To separate from others those prisoners who, by reason of their criminal records or bad characters, are likely to exercise a bad influence;
(b) To divide the prisoners into classes in order to facilitate their treatment with a view to their social rehabilitation.
68. So far as possible separate institutions or separate sections of an institution shall be used for the treatment of the different classes of prisoners.
69. As soon as possible after admission and after a study of the personality of each prisoner with a sentence of suitable length, a programme of treatment shall be prepared for him in the light of the knowledge obtained about his individual needs, his capacities and dispositions.
70. Systems of privileges appropriate for the different classes of prisoners and the different methods of treatment shall be established at every institution, in order to encourage good conduct, develop a sense of responsibility and secure the interest and co-operation of the prisoners in their treatment.
71. (1) Prison labour must not be of an afflictive nature.
(2) All prisoners under sentence shall be required to work, subject to their physical and mental fitness as determined by the medical officer.
(3) Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day.
(4) So far as possible the work provided shall be such as will maintain or increase the prisoners, ability to earn an honest living after release.
(5) Vocational training in useful trades shall be provided for prisoners able to profit thereby and especially for young prisoners.
(6) Within the limits compatible with proper vocational selection and with the requirements of institutional administration and discipline, the prisoners shall be able to choose the type of work they wish to perform.
72. (1) The organization and methods of work in the institutions shall resemble as closely as possible those of similar work outside institutions, so as to prepare prisoners for the conditions of normal occupational life.
(2) The interests of the prisoners and of their vocational training, however, must not be subordinated to the purpose of making a financial profit from an industry in the institution.
73. (1) Preferably institutional industries and farms should be operated directly by the administration and not by private contractors.
(2) Where prisoners are employed in work not controlled by the administration, they shall always be under the supervision of the institution’s personnel. Unless the work is for other departments of the government the full normal wages for such work shall be paid to the administration by the persons to whom the labour is supplied, account being taken of the output of the prisoners.
74. (1) The precautions laid down to protect the safety and health of free workmen shall be equally observed in institutions.
(2) Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to free workmen.
75. (1) The maximum daily and weekly working hours of the prisoners shall be fixed by law or by administrative regulation, taking into account local rules or custom in regard to the employment of free workmen.
(2) The hours so fixed shall leave one rest day a week and sufficient time for education and other activities required as part of the treatment and rehabilitation of the prisoners.
76. (1) There shall be a system of equitable remuneration of the work of prisoners.
(2) Under the system prisoners shall be allowed to spend at least a part of their earnings on approved articles for their own use and to send a part of their earnings to their family.
(3) The system should also provide that a part of the earnings should be set aside by the administration so as to constitute a savings fund to be handed over to the prisoner on his release.
Education and recreation
77. (1) Provision shall be made for the further education of all prisoners capable of profiting thereby, including religious instruction in the countries where this is possible. The education of illiterates and young prisoners shall be compulsory and special attention shall be paid to it by the administration.
(2) So far as practicable, the education of prisoners shall be integrated with the educational system of the country so that after their release they may continue their education without difficulty.
78. Recreational and cultural activities shall be provided in all institutions for the benefit of the mental and physical health of prisoners.
Social relations and after-care
79. Special attention shall be paid to the maintenance and improvement of such relations between a prisoner and his family as are desirable in the best interests of both.
80. From the beginning of a prisoner’s sentence consideration shall be given to his future after release and he shall be encouraged and assisted to maintain or establish such relations with persons or agencies outside the institution as may promote the best interests of his family and his own social rehabilitation.
81. (1) Services and agencies, governmental or otherwise, which assist released prisoners to re-establish themselves in society shall ensure, so far as is possible and necessary, that released prisoners be provided with appropriate documents and identification papers, have suitable s and work to go to, are suitably and adequately clothed having regard to the climate and season, and have sufficient means to reach their destination and maintain themselves in the period immediately following their release.
(2) The approved representatives of such agencies shall have all necessary access to the institution and to prisoners and shall be taken into consultation as to the future of a prisoner from the beginning of his sentence.
(3) It is desirable that the activities of such agencies shall be centralized or co-ordinated as far as possible in order to secure the best use of their efforts.
B. Insane and mentally abnormal prisoners
82. (1) Persons who are found to be insane shall not be detained in prisons and arrangements shall be made to remove them to mental institutions as soon as possible.
(2) Prisoners who suffer from other mental diseases or abnormalities shall be observed and treated in specialized institutions under medical management.
(3) During their stay in a prison, such prisoners shall be placed under the special supervision of a medical officer.
(4) The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment.
83. It is desirable that steps should be taken, by arrangement with the appropriate agencies, to ensure if necessary the continuation of psychiatric treatment after release and the provision of social-psychiatric after-care.
C. Prisoners under arrest or awaiting trial
84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as “untried prisoners” hereinafter in these rules.
(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.
(3) Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only.
85. (1) Untried prisoners shall be kept separate from convicted prisoners.
(2) Young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions.
86. Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.
87. Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food.
88. (1) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.
(2) If he wears prison dress, it shall be different from that supplied to convicted prisoners.
89. An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.
90. An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.
91. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.
92. An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.
93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.
D. Civil prisoners
94. In countries where the law permits imprisonment for debt, or by order of a court under any other non-criminal process, persons so imprisoned shall not be subjected to any greater restriction or severity than is necessary to ensure safe custody and good order. Their treatment shall be not less favourable than that of untried prisoners, with the reservation, however, that they may possibly be required to work.
E. Persons arrested or detained without charge
95. Without prejudice to the provisions of article 9 of the International Covenant on Civil and Political Rights, persons arrested or imprisoned without charge shall be accorded the same protection as that accorded under part I and part II, section C. Relevant provisions of part II, section A, shall likewise be applicable where their application may be conducive to the benefit of this special group of persons in custody, provided that no measures shall be taken implying that re-education or rehabilitation is in any way appropriate to persons not convicted of any criminal offence.
Custodial Torture And Its Remedies
By Rukmani Seth
“Torture is wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself”.-Adriana P. Bartow
Custodial torture ranging from assault of various types to death by the police for extortion of confessions and imputation of evidence are not uncommon. Such a method of investigation and detection of a crime, in the backdrop of expanding idea of ‘humane’ administration of criminal justice, not only disregards human rights of an individual and thereby undermines his dignity but also exposes him to unwarranted violence and torture by those who are expected to ‘protect’ him.
In India where rule of law is inherent in each and every action and right to life and liberty is prized fundamental right adorning highest place amongst all important fundamental rights, instances of torture and using third degree methods upon suspects during illegal detention and police remand casts a slur on the very system of administration. Human rights take a back seat in this depressing scenario. Torture in custody is at present treated as an inevitable part of investigation. Investigators retain the wrong notion that if enough pressure is applied then the accused will confess. The former Supreme Court judge, V.R. Krishna Iyer, has said that custodial torture is worse than terrorism because the authority of the State is behind it.
It is a paradox that torture continues to exist in India. This is because India is a liberal democracy with very clearly articulated constitutional and statutory provisions against torture that are constantly being developed and monitored by a strong and independent judiciary. This raises the question: how does torture continue to persist in India?
The crudity of criminal investigation is often blamed on the crudity of resources: the lack of scientific equipment and professionally-trained persons to do the job properly. Although this is an element in the problem, it is not the central one. More important is the sheer impunity enjoyed by law enforcers. This impunity is allowed to flourish for want of laws criminalising and punishing custodial torture, and also due to corruption and the wanton degeneration of courts and other institutions for the maintenance of law in India. Where a torture victim must wait for years in hope that a judge may one day take up his/her case, while meanwhile the perpetrator is being promoted, the very concept of justice is undermined.
Custodial torture is universally held as one of the cruellest forms of human rights abuse. The Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC) and the United Nations forbid it. But the police across the country defy these institutions. Therefore, there is a need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach.
Custodial Torture and Death-The Current Status:
The World Medical Association, in its Tokyo Declaration, 1975, defined “torture” as
“the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons, acting alone or on the orders of any authority to force another person to yield information, to make a confession or for any other reason”.
Custodial torture, often known as extra-judicial executions has been on a rise in India especially between 2002 and 2007. According to Asian Centre for Human Rights, the nationwide figures are four custodial deaths per day. There have been 7468 reported custodial deaths in this five year period. However, the severity of the torture in India is far worse than statistics suggest. This is because victims rarely report cases against the police due to fear of reprisals. More than half the cases of custodial torture are not even reported.
While award of compensation in 684 cases of custodial violence was given by the National Human Rights Commission alone from 1994 to 2007, conviction of only seven police personnel in 2004 and 2005 took place as against these overwhelming figures of custodial torture and subsequent deaths. This has led to a deep concern among the authorities.
The explanations for torture can be broadly discussed under categories such as role of media, colonial origins, and institutional weaknesses. Firstly, there is a strong sense that the media exaggerates the incidents of torture and creates a negative image of the police. Second, scholars contend that the current police still suffer from the impact of their colonial origins as a repressive instrument of the police raj (rule). As a result, the “police mindset is steeped into colonial era when the police were supposed to treat every Indian as an enemy of the state.” Third, there is constant pressure on the police from all quarters including politicians and bureaucrats to show instant results. The lack of adequate facilities and personnel for investigation and the extremely high case load with an inefficient supervisory structure also hinders the ability of the police to produce the results required of them, prompting them to take short cuts. In addition, the lack of training in human rights is considered a primary reason why third degree torture continues to exist in India.
For instance, the recent cases of custodial killings reported from the state of Gujarat show a consistent and alarming pattern of tolerance of the use of torture by the government and promotion of it as if it is an essential element of law enforcement and investigation of crime. In Gujarat, the interrogation centres — often torture chambers — of the state police have been functioning in full public view. The suspects are brought in, kept in illegal detention and tortured as part of questioning and later killed and declared as killed in encounter. This procedure is public knowledge, yet no one dares to challenge it. Officers, right from the top are involved in this endeavour.
In a proceeding in the Supreme Court regarding this, the state government admitted in court that it was aware of the existence of the interrogation and torture centres. The government also admitted that in several cases the officers might have also killed the witnesses of arrest and detention in order to avoid questions at a later stage. The Gujarat experience, while being a shocking revelation of the state of policing in that state is also the proof that the public could be forced to silence, if the state so requires, by imparting fear.
Interrogation centers in India are run in the cover of prevention of terrorist activities. Interrogation centers are not limited to the state of Gujarat. In several other states like Uttar Pradesh, Madhya Pradesh, Uttaranchal, Chhattisgarh, Andhra Pradesh and Rajasthan the state governments run similar centres. In some states these centres are run in the name of anti-naxalite action.
In the state of Chhattisgarh for example, the naxalite and anti-naxalite activity has killed hundreds of innocent people. Use of brute force by the state and non-state actors irreparably destroys the social fabric. Besides promoting private armed groups, the state has also pressed into use questionable legislations like the Chhattisgarh Special Public Security Act, 2005. This statute is so loosely worded that anyone could be charged for a crime in this law. Many accepted legal norms in criminal law like non-retroactivity is negated in this statute.
Violence is used widely with impunity in the North-Eastern states. The state of Manipur in particular, is completely militarised. The paramilitary and the army detachments stationed in that state is notorious for the use of torture and violence as the only tool for investigation. Cases reported from Manipur, are mostly involving the armed forces, the Assam Rifles in particular.
Administrative neglect promoting the use of torture is misused by the police and other law enforcement agencies as an excuse for demanding bribe and for not doing their job according to the law. Continuing neglect by the government has also considerably reduced the morale of the law enforcement agencies. Rather than being considered as an essential state service police and other law enforcement agencies are viewed as state sponsored terror agencies mostly filled with criminals.
Remedies Against Custodial Torture:
There are two approaches with respect to the remedies provided for against custodial torture and subsequent death as well. These two approaches are – legal regime and judicial precedents. They can be explained as follows:
It has been held in a catena of judgements that just because a person is in police custody or detained or under arrest, does not deprive of him of his basic fundamental rights and its violation empowers the person to move the Supreme Court under Article 32 of the Constitution of India. Detention does not deprive one of his fundamental rights. They don’t flee the persons as he enters the prison although they may suffer shrinkage necessitated by incarceration. However, the extent of shrinkage can and should never reach the stage of torture in custody of such a nature that the persons are reduced to a mere animal existence.
Article 20 of the Constitution of India:
Article 20 primarily gives a person the rights against conviction of offences. These include the principle of non-retroactivity of penal laws (Nullum crimen sine lege) i.e. ex-post facto laws thereby making it a violation of the persons fundamental rights if attempts are made to convict him and torture him as per some statute. Article 20 also protects against double jeopardy (Nemo debet pro eadem causa bis vexari). This Article most importantly protects a person from self-incrimination. The police subject a person to brutal and continuous torture to make him confess to a crime even if he has not committed the same.
Article 21 of the Constitution of India:
This article has been understood in the Indian judiciary to protect the right to be free from torture. This view is held because the right to life is more than a simple right to live an animalistic existence. The expression “life or personal liberty” in Article 21 includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person.
Article 22 of the Constitution of India:
Article 22 provides four basic fundamental rights with respect to conviction. These include being informed of the grounds of arrest, to be defended by a legal practitioner of his choice, preventive detention laws and production before the nearest Magistrate within 24 hours of arrest of the person. Thus, these provisions are designed to ensure that a person is not subjected to any ill-treatment that is devoid of statutory backing or surpasses prescribed excesses.
Other Statutory Safeguards:
Indian Evidence Act, 1872:
A confession to police officer cannot be proved as against a person accused of any offence (Sec. 25 Evidence Act) and confession caused by threats from a person in authority in order to avoid any evil of a temporal nature would be irrelevant in criminal proceedings as, inter-alia, provided in Sec. 24. Thus, even though custodial torture is not expressly prohibited by law in India, the evidence collected by illegal means, including torture is not accepted in courts.
Code of Criminal Procedure, 1973:
Sec. 46 and 49 of the Code protect those under custody from torture who are not accused of an offence punishable with death or imprisonment for life and also during escape. Sec. 50-56 are in consonance with Article 22. Sec. 54 of the Code is a provision that to a significant extent corresponds to any infliction of custodial torture and violence. According to it, when an allegation of ill-treatment is made by a person in custody, the Magistrate is then and there required to examine his body and shall place on record the result of his examination and reasons therefore. It gives them the right to bring to the Court’s notice any torture or assault they may have been subjected to and have themselves examined by a medical practitioner on their own request. A compensatory mechanism has also been used by courts. When the Magistrate does not follow procedure with respect to entertaining complaint of custodial torture, it calls for interference by the High Court under Sec. 482 of the Code.
Another significant provision with respect to custodial torture leading to deaths is Sec. 176 of the Code where a compulsory magisterial inquiry is to take place on death of an accused caused in police custody. Sections 167 and 309 of the Code have the object of bringing the accused persons before the court and so safeguard their rights and interests as the detention is under their authorisation.
Indian Police Act:
Sections 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. This can be seen in the light of the police officers violating various constitutional and statutory safeguards along with guidelines given in D.K Basu v. State of West Bengal.
Indian Penal Code (IPC), 1860:
After the controversial Mathura Rape case, an amendment was brought about in Sec. 376 of the IPC. Sec. 376(1)(b) penalises custodial rape committed by police officers. This was a welcome change made to the section in question as it finally condemns the acts of police officers who take advantage of their authority.
Sections 330, 331, 342 and 348 of the IPC have ostensibly been designed to deter a police officer, who is empowered to arrest a person and to interrogate him during investigation of an offence from resorting to third degree methods causing ‘torture’.
The Supreme Court is heralded as a beacon of rights against torture. Indeed, since the 1990s, the Supreme Court has come up with two innovative ways of dealing with custodial torture and custodial death cases namely, the right to compensation for custodial death and torture and the formulation of custody jurisprudence.
The case of Sheela Barse v. State of Maharashtra has provided for guidelines on rights of the arrested persons especially women. The court in this case also emphasised on the need for Magistrates to inform all arrested persons of their rights. Guidelines were also given by the Supreme Court in D.K Basu v. State of West Bengal with respect to rights of arrested persons. The most significant one being the arrestee should be subjected to medical examination every 48 hours during his detention by a doctor from the approved panel of doctors and copies of all prescribed documents should be sent to the concerned Magistrates. Also, the arrestee may be permitted to meet his lawyer during interrogation.
It has been recommended in the 177th Law Commission Report by the 16th Law Commission that requisite amendments should be brought about in the Code of Criminal Procedure making it the duty of the police officers in whose custody there are arrested persons that they should ensure their safety and holding them responsible for failure of the same. Thirty years hence, this amendment has still not been incorporated. The presence of an advocate during interrogation of the arrested person is also a recommendation that has been made. The 185th Law Commission Report also makes recommendation regarding rights of arrested persons with respect to the Indian Evidence Act, 1872 which are with respect to s. 27. The Malimath Committee Report has also emphasised on the need for codification of the rights of the arrested persons.
Despite the above, the abominable figures regarding custodial torture have still not improved. One very simple reason behind this could be that persons who are supposed to protect people are themselves the wrongdoers. The criminal justice system in India is supposed to use the reformist approach; however, the approach is such that animals get better treatment.
The very ideas of a human being in custody save for protection and nurturing is an anathema to human existence. The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody.
In a complaint of custodial torture, the court should not adopt a casual approach to it on the ground that it has been made by a habitual offender. It is a perennial problem of statecraft. It therefore, becomes imperative to evolve a system of state governance that allows the police to effectively maintain law and order and to prevent and detect the commission of a crime without jeopardizing legal rights; privileges and claims of laymen. Such a system obviously warrants appropriate control over the police in order to discourage them from exercising their power in a capricious manner. Similarly, an effective institutional grievance-redressal mechanism to vindicate ‘police excesses’ is also the need of the hour.
As held by the Supreme Court, “custodial torture” is a naked violation of human dignity and a degradation which destroys, to a very large extent human personality.
First, custodial torture must be made a crime. This could be brought in by way of a special law. Secondly, many cases of custodial torture could be prevented if law-enforcing agencies followed the existing laws relating to arrest and detention. The rules established by the Supreme Court–though not a complete remedy–should be applied without failure. Those who fail to comply must be prosecuted.
Thirdly, the public–and especially concerned professional groups, including rights groups and the media–must closely monitor police practices to see that government promises are upheld. The political opposition must also see to it that the Director General of Police submits a report to the legislative assembly, and an investigative report, on every case of custodial death and torture.
Fourthly, the central government should be urged to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The government has failed to ratify the treaty on spurious grounds that existing laws are good enough to prevent custodial torture which is evidently not the case. Were that the case, 60 years after independence and despite numerous concerns and guidelines issued by courts all over India, torture would not persist unabated as it does today.
We live in a shady and messed up world, where life of a person is taken away by a loved one, where goddesses are worshipped while women (of any age) are maimed and harassed. The only way out to keep an eye on such horrific happenings is to make laws and rules stricter to keep a check on the horrendous crimes.
Having laws doesn’t suffice when they are broken. Most people are unaware of their legal rights until they hire a legal firm for their problems. Merely a handful of them would say, ‘Yes, we know’ to this and most of them are not women. So, to help women know their rights and to help them fight back, here are 10 legal rights that they should know.
Right to free aid
When a woman goes to the police station without being accompanied by a lawyer she is either quoted wrong, ignored or humiliated for her statements. She should be aware of the fact that she has a right to get the legal aid and that she should demand for it. “According to a Delhi High Court ruling, whenever a rape is reported, the senior house officer has to bring this to the notice of the Delhi Legal Services Authority. The legal body then arranges for a lawyer for the victim,” says Saumya Bhaumik, a women rights lawyer.
Right to privacy
A woman who has been raped has a right to record her statement in private, in front of the magistrate without being overheard by anyone else. She also has a freedom to record her statement with a lady constable or a police officer in personal. Under section 164 of the Criminal Procedure Code, the cops will have to give the privacy to the victim without stressing her in front of masses.
Right to untimely registration
There are many reasons as to why a woman would postpone going to the police to lodge a complaint. She considers her reputation, dignity of the family and threats from the culprit to take her life away. Police in any way cannot say no to register her complaint, no matter if it’s too late to register. The self-respect of women comes before anything else. She cannot be denied of anything.
Right to virtual complaints
According to the guidelines issued by the Delhi Police, a woman has the privilege of lodging a complaint via email or registered post. If, for some reason, a woman can’t go to the police station, she can send a written complaint through an email or registered post addressed to a senior police officer of the level of Deputy Commissioner or Commissioner of Police. The officer then directs the SHO of the police station, of the area where the incident occurred, to conduct proper verification of the complainant and lodge an FIR. The police can then come over to the residence of the victim to take her statement.
Right to Zero FIR
A rape victim can register her police complaint from any police station under the Zero FIR ruling by Supreme Court. “Sometimes, the police station under which the incident occurs refuses to register the victim’s complaint in order to keep clear of responsibility, and tries sending the victim to another police station. In such cases, she has the right to lodge an FIR at any police station in the city under the Zero FIR ruling. The senior officer will then direct the SHO of the concerned police station to lodge the FIR,” says Abeed. This is a Supreme Court ruling that not many women are aware of, so don’t let the SHO of a police station send you away saying it “doesn’t come under his area”.
Right to no arrest
According to a Supreme Court ruling, a woman cannot be arrested after sunset and before sunrise. There are many cases of women being harassed by the police at wee hours, but all this can be avoided if you exercise the right of being present in the police station only during daytime. “Even if there is a woman constable accompanying the officers, the police can’t arrest a woman at night. In case the woman has committed a serious crime, the police requires to get it in writing from the magistrate explaining why the arrest is necessary during the night,” says Bhaumik.
Right to not being called to the police station
Women cannot be called to the police station for interrogation under Section 160 of the Criminal Procedure Code. This law provides Indian women the right of not being physically present at the police station for interrogation. “The police can interrogate a woman at her residence in the presence of a woman constable and family members or friends,” says Abeed. So, the next time you’re called to the police station for queries or interrogation when you have faced any kind of harassment, quote this guideline of the Supreme Court to exercise your right and remind the cops about it.
Right to confidentiality
Under no circumstances can the identity of a rape victim be revealed. Neither the police nor media can make known the name of the victim in public. Section 228-A of the Indian Penal Code makes the disclosure of a victim’s identity a punishable offense. Printing or publishing the name or any matter which may make known the identity of a woman against whom an offense has been committed is punishable. This is done to prevent social victimization or ostracism of the victim of a sexual offense. Even while a judgment is in progress at the high court or a lower court, the name of the victim is not indicated, she is only described as ‘victim’ in the judgment.
Right towards crime and not a medical condition
A case of rape can’t be dismissed even if the doctor says that rape has not taken place. A victim of rape needs to be medically examined as per Section 164 A of the Criminal Procedure Code, and only the report can act as proof. “A woman has the right to have a copy of the medical report from the doctor. Rape is crime and not a medical condition. It is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion and the doctor can’t decide on this,” explains Bhaumik.
Right to no sexual harassment
It is the duty of every employer to create a Sexual Harassment Complaints Committee within the organization for complaints. According to a guideline issued by the Supreme Court, it is mandatory for all firms, public and private, to set up these committees to resolve matters of sexual harassment. It is also necessary that the committee be headed by a woman and comprise of 50% women, as members. Also, one of the members should be from a women’s welfare group.
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