HUMAN RIGHTS AND CUSTODIAL VIOLENCE
A right may be defined as claim of an individual but
when we talk about human right it encompasses within its jurisdiction not only
protection of right but also humanitarian values of right. The cultural
philosophy of India lies in the principle of ‘sarve bhavantu sukhina sarve
santu niramaya' . We believe every soul as the part and parcel of the almighty.
It’s our duty and responsibility to change even the evil mind of human being through
our spiritual treasure rather than to torture and exploit them. Custodial violation is one of those human
right violations which is directly concerned with the human values of humanism.
Human rights violations occur
when actions by state (or non-state) actors abuse, ignore, or deny basic human
rights (including civil, political, cultural, social, and economic rights).
Furthermore, violations of human rights can occur when any state or non-state
actor breaches any part of the Universal Declaration on Human Rights (UDHR) or
other international human rights or humanitarian law. In regard to human rights
violations of United Nations laws,
Article 39 of the United Nations Charter
designates the UN Security Council (or an
appointed authority) as the only tribunal that may determine UN human rights
violations.
There are many safeguards which prohibit custodial violation which is
violation of human values. Article 1,3,5,6,7,8,9,10,11
of UDHR especially deals with custodial violence. The article 1 says, ‘All
human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood’. As per the article 3, everyone
has the right to life, liberty and security of person. The right to life
describes the essential right to live, particularly that a human being has the
right not to be killed by another human being. As per the article 5, no one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment. Thus these
articles give strength to humanitarian
rights.
Among custodial violence torture is the most heinous crime on humanity. Though
we have various provisions to curb torture in police custody but despite these
torturing has become routine work in police and judicial custody.
Torture
is prohibited under international law and the
domestic laws of most countries in the 21st century. It is considered to be a
violation of human rights, and is declared to be unacceptable by Article 5 of
the UN Universal Declaration of Human Rights.
Signatories of the Third Geneva Convention and Fourth Geneva Convention
officially agree not to torture prisoners in armed conflicts. Torture is also
prohibited by the United Nations Convention Against torture, which
has been ratified by 147 states.
National
and international legal prohibitions on torture derive from a consensus that
torture and similar ill-treatment are immoral, as well as impractical. Despite
these international conventions, organizations that monitor abuses of human
rights (e.g. Amnesty International, the International Rehabilitation
Council for Torture Victims) report widespread use condoned
by states in many regions of the world. Amnesty International estimates that at
least 81 world governments currently practice torture, some of them openly. The
term ‘torture’ has been defined only in three instruments, namely the
declaration on the Protection of all persons from being subjected to torture or
other cruel, inhuman or degrading treatment or punishment of 1975, the
convention against torture and other cruel, in-human or degrading treatment or
punishment of 1984 and the international convention on the suppression and
punishment of the crime of Aparthied of 1973.
According to Art. 14 of the Convention
against Torture and other cruel, in-human or degrading treatment or punishment,
the term “torture” means :
(1) The intentional infliction of severe pain or
suffering, whether physical or mental upon a person;
(2) The infliction of
pains or sufferings is caused for the purpose of;
(a) obtaining information or
a confession from him or a third person; or
(b) intimidating or coercing him or
a third person;
(c) for any reason based on discrimination of any kind; The
information or a confession should be such as to lead to the punishment for an
act which he or third person has committed or is suspected of having committed;
and Such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity; however; Such pain or suffering does not include pain or
suffering arising only from, inherentance or incidental to lawful sanctions.
In this way “torture” “constitutes an
aggravated and deliberate form of cruel, inhuman or degrading treatment or
punishment.” Torture as such is not only an offence to human dignity but also
constitutes “as a denial of the purposes of the charter of the United Nations
and as a violation of the purposes of human rights and fundamental freedom
proclaimed in the Universal Declaration of Human Rights and other international
human rights instrument. Art. 21 of the Constitution of India, no person can be
deprived of his life or personal liberty except according to procedure
established by law. This means that a person can be deprived of his life or
personal liberty provided his deprivation was brought about in accordance with
the procedure prescribed by law.
There are
some of the constitutional safeguards provided to a person with a view to
protect his personal liberty against any unjustified assault by the State. In
tune with the constitutional guarantee a number of statutory provisions also
seek to protect personal liberty, dignity and basic human rights of the
citizens. Chapter V of the Criminal Procedure Code, 1973 deals with the powers
of arrest of person and the safeguards, which are to be followed by the police
to protect the interest of the arrested person. Section 41, Criminal Procedure
Code confers powers on any police officer to arrest a person under the
circumstances specified therein without any order or warrant of arrest from a
Magistrate. Section 46 provides the method and manner of arrest. Under this
section no formality is necessary while arresting a person.
Under S. 49, the police are not
permitted to use more restraint than is necessary to prevent the escape of the
person. Section 50 enjoins every police officer arresting any person without
warrant to communicate to him the full paticulars of the offence for which he
is arrested and the grounds for such arrest. The police officer is further
enjoined to inform the person arrested that he is entitled to be released on
bail and he may arrange for sureties in the event of his arrest for a
non-bailable offence. Section 56 contains a mandatory provision requiring the
police officer making an arrest without warrant producing the arrested person
before a Magistrate without unnecessary delay and S. 57 echoes Cl. (2) of Art.
22 of the Constitution of India. There are some other provisions also like Ss.
53, 54 and 167, which are aimed at affording procedural safeguards to a person
arrested by the police. Whenever,a person dies in custody of the police,
S.167 requires the Magistrate to hold an enquiry into the cause of the death.
However, in spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidents of the torture and deaths in police custody have been a disturbing factors. Experience shows that worst violations of human rights take place during the course of investigation, when the policy with a view to secure evidence or confession often resorts to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation.
However, in spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidents of the torture and deaths in police custody have been a disturbing factors. Experience shows that worst violations of human rights take place during the course of investigation, when the policy with a view to secure evidence or confession often resorts to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation.
A reading
of the morning newspaper almost everyday carrying reports of dehumanizing torture,
assault, rape and death in custody of police or other governmental agencies is
indeed depressing. The increasing incidence of torture and death in custody has
assumed such alarming proportions that it is affecting the credibility of the
Rule of Law and the administration of criminal justice system. The community
rightly feels perturbed. Society’s cry for justice becomes louder.India is
party to the international covenant on civil and political rights and the
international covenant on economic, social, and cultural rights, adopted by
General Assembly of the United Nations on the 16th December, 1966. The human
rights embodied in the aforesaid covenant stand substantially protected by the
constitution.
However,
there has been growing concern in the country and abroad about issues relating
to the human rights. Having, regard to these changing social realities and the
emerging trends in the nature of crime and violence Government has been
reviewing the existing laws, procedures and system of administration of
justice; with a view to bringing about greater accountability and transparency
in them, and1 devising efficient and
effective methods of dealing with the situation. The President of India
promulgated the Protection of Human Rights Ordinance, 1993 under Article 123 of
the Constitution of India on 28th September, 1993 to provide for the
constitution of a National Human Rights Commission, State Human Rights
Commissions in States and human rights courts for better protection of human
rights and for matters connected therewith or incidental thereto. To replace
this ordinance the Protection of Human Rights Bill, 1993 was introduced in the
Lok Sabha. The Protection of Human Rights Bill, 1993 was passed by both the
houses of Parliament received the assent of the President on 8th January, 1994
and became the Protection of Human Rights Act, 1993 (10 of 1994).
Despite the protections and safeguards provided under the Constitution of India and despite the passage of Protection of Human Rights Act, 1993, the problem of arbitrary arrest and custodial violence are prevalent throughout the country.
Despite the protections and safeguards provided under the Constitution of India and despite the passage of Protection of Human Rights Act, 1993, the problem of arbitrary arrest and custodial violence are prevalent throughout the country.
A report
by the Asian Centre for Human Rights (ACHR) has brought into sharp focus the
issue of custodial deaths again. According to the report, “Torture in India
2011”, four custodial deaths occurred daily over the past decade.
A total
14,231 persons died in police and judicial custody in India from 2001 to
2010—1,504 deaths in police custody and 12,727 in judicial—according to the
cases submitted to the National Human Rights Commission (NHRC).
During
the ten-year period, Maharashtra recorded the highest number of deaths in
police custody with 250 deaths, followed by Uttar
Pradesh (174), Gujarat (134), Andhra Pradesh (109), West Bengal (98) and Tamil
Nadu (95). “Though Maharashtra has a total population of 112 million in
comparison to 199 million in Uttar Pradesh, according to 2011 census, the fact
that 76 more persons were killed in police custody in Maharashtra shows that
torture is more rampant in Maharashtra than Uttar Pradesh,” Suhas Chakma,
director of the ACHR, pointed out.
UP tops in judicial custody deaths with 2,171 deaths, followed by Bihar
(1,512), Maharashtra (1,176), Andhra Pradesh (1,037), Tamil Nadu (744), Punjab
(739), West Bengal (601), Jharkhand (541) and Madhya Pradesh (520).
“About 99.99% of deaths in police custody occur due to torture within 48
hours of victims being taken into custody,” Chakma said. Shockingly, figures
for Jammu and Kashmir show that only six custodial deaths occurred during the
same period. The ACHR, which has a consultative status with the United Nations,
has pointed out in the report that the number of deaths in police custody
recorded from conflict-hit states like J&K and Manipur do not reflect the
gravity of the situation. The report adds that in March, J&K Chief Minister
Omar Abdullah in a written reply to the Legislative Council stated that 341
persons had died in police custody in the state since 1990.
“A large majority of these deaths are a direct consequence of custodial
torture. These deaths reflect only a fraction of the problem as not all deaths
in police custody and prisons are reported to the NHRC. Further, the NHRC does
not have jurisdiction over the armed forces and also does not record statistics
of torture not resulting in death,” Chakma added. Denial of medical facilities
and sub-human conditions in jails is another reason for the alarming figures.
The NHRC has framed guidelines for reporting all deaths and cases of
custodial deaths, whether natural or otherwise, within 24 hours of their
occurrence, and also prepares reports to ascertain any foul play by the police
and government officials. Besides, as per Section 176 of the Criminal Procedure
Code, the district administration is required to conduct mandatory judicial
enquiry into cases of death, disappearance or rape of an inmate and conduct a
thorough medical examination within 24 hours in case of any death. The district
administration has the sole authority to register such cases and order
enquiries. However, these norms are brazenly flouted with actual number of
cases never reported to the NCHR, which is not empowered to take punitive
action against offenders.
Despite repeated efforts by activists, including those of NHRC, India
has not ratified the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment although it is a signatory since
October 1997. Consequently, laws have not been modified accordingly to hold
perpetrators accountable.
“The failure of the Ministry of Home Affairs to introduce the Prevention
of Torture Bill—drafted by the Rajya Sabha Select Committee, headed by Minister
of State for Planning Ashwani Kumar in December 2010—in the winter session of
Parliament demonstrates India’s lack of political will to end torture,” Chakma
said.
The Bill is the first step towards ratification of the UN Convention,
which was adopted by the United Nations General Assembly in December 1975.
Ratification of the convention requires enabling legislation that would be necessary
to give effect to the Articles of the Convention. The ACHR has called upon the
government to enact the Bill without any dilution, and recommended to the NHRC
to suggest prosecution of guilty public officials in cases in which
compensation has been recommended.
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The
report Torture in India 2011 published by Asian centre For Rights are alarming
and shocking which gives vivid pattern of torture in India vis-a-vis painful
cases of individual torture.
Torture of women in custody including
rape is reported regularly in India. Custodial rape remains one of the worst
forms of torture perpetrated on women by law enforcement personnel.
On 9 March 2010, Mr Ajay Maken, then
Minster of State in the Ministry of Home ffairs, Government of India stated in
the Lok Sabha that the National HumanRights Commission registered 39 cases of
rape from judicial and police custodyfrom 2006 to 2010 up to 28 February 2010.
These included 9 cases, including 2in judicial custody and 7 in police custody,
in 2006-2007; 17 cases, including 2 injudicial custody and 15 in police
custody, in 2007-2008; 7 cases, including 2 injudicial custody and 5 in police
custody, in 2008-2009; and 6 cases, including 1 in judicial custody and 5 in
police custody in 2009-2010 up to 28 February 2010.
In another incident in July 2010, a
woman Chandrawati (name changed) was subjected to torture at a Mahila Thana
(Women Police Station) in Moradabad district, Uttar Pradesh. In her complaint
to the police, the victim stated that shewas taken to the police station for
questioning, illegally detained for seven days and tortured. The victim was
hanged upside down from the ceiling and beatenwith a cane. The police also
poured petrol and chilly powder in her private parts.She was released with
threats. Signs of torture were found during medical checkup.
The Deputy Inspector of Police ordered
an enquiry. On 11 August 2010, Miss Maman Das (19 years), a Class XII student,
committed suicide after being allegedly forced by police to file an attempt to
rape case in Burdwan, West Bengal. The girl went to the Burdwan Town police
station to file a case after she was molested by a person on 10 august 2010.
However, the police allegedly forced her to file a rape case and sent for a
medical test against her wish. The girl’s relatives alleged that unable to bear
the humiliation by the police, she took the extreme step.
Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial tribunal, in the determination
of his rights and obligations and of any criminal charge against him. The right
to a fair trial has been defined in numerous regional and international human rights instruments. It is
one of the most extensive human rights and all international human rights
instruments enshrine it in more than one article. The right to a fair trial is
one of the most litigated human rights and substantial case law has been
established on the interpretation of this human right. Despite variations in
wording and placement of the various fair trial rights, international human
rights instrument define the right to a fair trial in broadly the same terms.
The aim of the right is to ensure the proper administration of justice. As a
minimum the right to fair trial includes the following fair trial rights in civil and criminal
proceedings:
·
the right to be heard by a
competent, independent and impartial tribunal
·
the right to a public hearing
·
the right to be heard within a
reasonable time
·
the right to interpretation
Many human rights organizations such as Amnesty International and the Human Rights Watch (HRW) have condemned human
rights abuses in Kashmir by Indians such as "extra-judicial
executions", "disappearances", and torture; the "Armed
Forces Special Powers Act", which "provides impunity for human rights
abuses and fuels cycles of violence. The Armed Forces Special Powers Act
(AFSPA) grants the military wide powers of arrest, the right to shoot to kill,
and to occupy or destroy property in counterinsurgency operations. Indian
officials claim that troops need such powers because the army is only deployed
when national security is at serious risk from armed combatants. Such
circumstances, they say, call for extraordinary measures." Human rights
organizations have also asked Indian government to repeal the Public Safety
Act, since "a detainee may be held in administrative detention for a
maximum of two years without a court order.". One 2008 report determined
that Indian Administered Kashmir, was
'partly Free', (where as Pakistan administered Kashmir was
determined 'Not Free').
It has been found that more than half of the
prisoners of the country are detained without adequate evidence. Unlike in
other democratic countries, the investigation in India generally commence with
the arrest of the accused. As the judicial system is understaffed and sluggish,
it is not uncommon to find innocent civilians languishing in jail for many
years. For instance, the Bombay high court in September 2009 asked the
Maharashtra government to pay Rs 1 lakh as compensation to a 40-year-old man
who languished in prison for over 10 years for a crime he didn’t commit.
To
curb custodial violence we need various reform movements within our system like
giving training of humanitarian values to police officer, providing adequate
psychological environment to prisoners, adequate medical facilities to
prisoners and financial aid to their families, to maintain proper cleanliness, sanitation
within prison avoid overcrowded prison, fair justice and immediate justice because
delayed means justice denied. Instead of torturing in police custody prisoners
should be given positive and creative external environment and above all to
treat them as human being.
References:
1. Human Rights and Custodial Death by V.K Krishna Iyer
2. www.tehelka.com
3. Torture in India 2011, Asian Centre for Human
Rights
4. www.wikipedia.org
5. UDHR (Universal Declaration of Human Rights)
6. ACHR (Asian
Centre of Human Rights) report
7. NHRC ( National Human Rights Comission) report
8. Amnesty International report
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