Monday 9 March 2015

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.
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.  
       
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.
STATE
Deaths in police custody (2001-02 to 2009-10)
Deaths in judicial custody (2001-02 to 2009-10)
Andhra Pradesh
109
1037
Assam
84
165
Gujarat
134
458
Jammu and Kashmir
6
6
Karnataka
67
496
Madhya Pradesh
55
520
Maharashtra
250
1176
Manipur
2
1
Nagaland
2
6
Orissa
34
416
Punjab
57
739
Uttar Pradesh
174
2171
West Bengal
98
601
Delhi
30
224
Chhattisgarh
24
351
Jharkhand
41
541
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 counsel
·         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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