Violation of Human Rights By Police Authorities

Police are one of the most important organisations of the society. The policemen, therefore, happen to be the most visible representatives of the government. In an hour of need, danger, crisis and difficulty, when a citizen does not know what to do and whom to approach, the police station and a policeman happen to be the most appropriate and approachable unit and person for him.[1]The police are expected to be the most accessible, interactive and dynamic organisation of any society. Their roles, functions and duties in the society are natural to be varied on the one hand; and complicated on the other. Broadly speaking the twin roles of the police are maintenance of law and maintenance of order. However, the ramifications of these two duties are numerous, which result in making a large inventory of duties, functions, powers, roles and responsibilities of the police organisation. Vesting of varied powers in the hands of police, while necessary to perform their duties on the other hand leaves door to misuse and hence infringement of Human Rights. This article will deal with Powers of Police, incidents of misuse of power, legislative checks and judicial control of police activities.





Definition of Police

The term police have neither been defined in the Criminal Procedure Code nor in the Police Act 1881 nor in any State Police acts provides only the structure and organization of police force in the states.



Blackâ€™s law dictionary defines â€œpoliceâ€ As (1) â€œthe governmental department charged with the perversion of public order, the promotion of public safety, and the perversion and detection of crimeâ€ And (2) â€œthe officers or members of this departmentâ€.[2]



The police force as an organized body came into being in England in the 1820â€™s when Sir Robert Peel established Londonâ€™s first municipal force.[3]Before that, policing had either been done by volunteers or by sliders in the military service.[4]



The UN Code of Conduct for law enforcement officials defines â€œlaw enforcement officialsâ€[5]As including all officials whether they are elected or appointed who exercise police powers, especially the powers of arrest or detention[6]and also include military personnel who exercise police powers whether they are allotted with police uniform or not.[7]



The term â€œpoliceâ€ can simply be defined as any person or body of person created by the authority of the state, obligated and empowered to maintain law and order, prevention and investigation of crimes.[8]



International Commitments

one of the important purpose of the UN charter is to promote and encourage human rights and fundamental freedom which is also included in International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.



Article 3 of the UDHR provides:[9]

Everyone has the right to life, liberty and security.



Similarly, Article 6(1)of the ICCPR provides:[10]

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.



Article 5 of the UDHR provides: [11]

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.



Further right to equality before law and right to effective remedy for acts violating the fundamental right have been guaranteed Article 9 of the Declaration provides:[12]

No one shall be subjected to arbitrary arrest, detention or exile. 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 obligation and of any criminal charge against him. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in public trial at which he has had all the guarantees necessary for his defence. No one shall be held guilty of any offence on account of any act or omission which did not constitute a penal offense under national or international law at e time when it was committed.



Article 7 of the ICCPR further provides:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

It has been further provided that everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. The right of fair hearing and equality before the courts has also been guaranteed.



In addition to this, there are standard minimum rules for the treatment of prisoners; declaration on the protection of all persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment; convention against torture and other cruel, inhuman or degrading treatment or punishment and code of conduct for law enforcement officials.[13]





Nature And Extent of Police Atrocities:

Due to continued police brutality and torture during the past two decades it seems that custodian of law have became the law-breakers. After the eighties the police seem to e more concerned with lathi- wielding attitude and its brutality and use of third degree methods by it has become the order of the day. The mounting police atrocities and other repressive measure are the instances of violations of human rights.



I. Police atrocities during emergency:

During the emergency period in march 1976, a satyagrahi was taken into custody by the police, but no case was registered against him. He was kept in illegal confinement for a few days during which he was subjected to various kinds of physical torture like stamping on the bare body with heeled boots, beating with cane on the bare soles of feet, beating on the spine, beating with rifle but inserting live electric wires into body crevices, burning with lighted cigarettes and candle flame, etc.[14]



In Kerala, police atrocities took ugly turn when all prisoners were stripped to their underwear and beaten by group of 10 to 12 constables. No food was provided while in custody. If physical signs of beating are too obvious they were not produced before a magistrate but moved from station to station. Madhya Pradesh was such a state where maximum number of prisoners were kept in jail during the operation of emergency. In Gwalior district jail, political prisoners were kept along with notorious dacoits and were allowed to be abused by them.[15]



II. Nature of police atrocities-after eighties:

After 1980, police has resorted to more repressive techniques as not to leave any scar of police atrocities on the body of victims. Even minors were not spared at the hands of police. Young boys were supplied to convicts for their delectation, some tortured into impotency, hanged upside down, ruthlessly beaten, given electric shocks etc. Brutal methods were adopted for forcing confessions.[16]



III. Death in police custody:

After the seventies death in police custody has became very common. These deaths are usually the result of torture to extort information or to teach the person concerned a lesson.



IV. Torture:

It is a common fact that police brutality and torture have long been widespread throughout India. Such methods are frequently used when people suspected of ordinary criminal offences are interrogated by the police. In order to extract confessions or for purpose of intimidations the police use extreme type of physical harm to the suspected persons. Torture is reported to have taken place in police stations although a few cases of beating in prisons have also been reported.[17]



V. Atrocities against women:

The Mathura rape case was an incident of custodial rape in India on 26 March 1972, wherein Mathura, a young tribal girl, was raped by two policemen on the compound of Desai Ganj Police Station in Chandrapur district of Maharashtra. The Supreme Court ruled in Tukaram Vs. State of Maharashtra,[18]that there were no injuries on the person of the girl, which meant that she did not put upresistance and that the incidence was a "peaceful affair". After the Supreme Court acquitted the accused, there was public outcry and protests, which eventually led to amendments in theIndianrape lawviaThe Criminal Law (Second Amendment) Act 1983 (No. 46).



Rights Interpreted By The Court:

I. Right to remain silent:

India follows adversarial system of trial proceedings[19]in which accused person is presumed to be innocent until the guilt is proved before the court beyond reasonable doubt. As the burden in this system lies on the prosecution and in turn on the police to prove the case before the court to such an extent to remove the shadow of doubt, the police who follow unscientific investigation through torture, threat, assault, harassment, etc. as methods to elicit confessions, facts and information from accused and witness of crimes. The accused has a right to confess or remain silent. However, the right to remain silent is not expressly provided under the Indian constitution. Article 20 (3) protects persons from self-incrimination thereby avoiding to be witness against himself in a crime. The supreme court has interpreted the right to remain silent as implied under article 20(3).



In M.P. Sharma v. Satish Chandra,[20]the court held that a person, whose name was mentioned as an accused in the first information report and an investigation was conducted by the police on the basis of that report, could claim the protection as â€˜accused of an offenceâ€™ under article 20(3).



II. Right to Fair Investigation:

In Babubhai v. State of Gujarat,[21]the Supreme Court reiterated that not only fair trail but fair investigation is also part of constitutional rights guaranteed under article 20 and 21 of the Constitution of India. Thus, from Abdul Rehman Antbulayâ€™s case to Babubhaiâ€™s case the Supreme Court affirmed categorically that speedy investigation is an integral part of speedy trial, and hence delaying investigation process by the police is against constitutional right of the accused. Otherwise the very purpose of constitutional right of speedy trial would be meaningless.



III. Arrest:

Arrest of a person by the police is another controversial area in the criminal justice process due to the wide discretionary powers enjoyed by the police and the practical misuse of those powers by them. According to the national police commissionâ€™s third report the power of arrest is one of the chief sources of corruption by the police and around 60 percent of the arrest made by the police are unnecessary and unjustified.[22]

Even when arrest is necessary the police do not comply with the procedural requirements provided by the Constitution of India and the Criminal Procedure Code as observed by the Supreme Court in different cases. In Bhim Singh v. State of Jammu[23]and Kashmir the petitioner an MLA, was arrested and detained in police custody and deliberately prevented from attending the session of the legislative assembly. The Supreme Court held that the police officials acted deliberately and hence the court awarded compensation to the petitioner.



IV. Handcuffing:

The police generally believe that handcuffing is a necessity in effecting the arrest and do consider the humiliation and embarrassment suffered by the handcuffed person and the disrepute of his family. In Prem Shankar v. Delhi Administration,[24]the supreme court held that handcuffing is prima facie inhuman, unreasonable and over harsh and it is permitted only in exceptional circumstances where there is a reasonable apprehension of escape of the detainee.



The court observed: â€œHandcuffing is prima facie inhuman and therefore unreasonable is over harsh and at the first blush arbitrary. Absent fair procedure and objective monitoring to inflict irons is to resort to zoological strategies repugnant to article 21. Surely the competing claims of securing the prisoner from fleeing ad protecting his personality from barbarity have to be harmonized. To prevent the escape of an under trial is in public interest, reasonable, just and cannot by itself be castigated. But to bind a man hand and foot, fetter with limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture.â€



V. Torture and death in police custody:

The Constitution in India does not contain an express prohibition of torture. However the supreme court has construed Article 21 of the Constitution as including a prohibition torture. The Supreme Court in Francis Coralie Mullin v. Union of India,[25]held â€œnow obviously any forum of torture or cruel inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would on this view be prohibited by Article 21 unless it is in accordance prescribed by law, but no law which authorizes and no procedure which leads to such torture or cruel inhuman or degrading treatment can ever stand the test of reasonableness and non- arbitrariness: It would plainly be unconstitutional and void as being violation of articles 14 and 21.



VI. Fake Encounter:

Fake encounter is another area where the police commit glaring human rights violations by way of atrocities and arbitrary killings against persons. In Peopleâ€™s Union for Civil Liberties v. Union of India,[26]the Supreme Court held that killing of two people in fake encounter by Imphal police was clear violation of right to life guaranteed by Article 21 of the Constitution of India and defence of sovereign immunity does not apply in such cases. The court awarded rupees 1,00,000 as compensation for the defendants of each of the deceased.



Constitutional Rights:

The Constitution has guaranteed certain rights to the arrested and detained persons such as:

i) The right to be informed of the ground of arrest as soon as possible,

ii) The right to consult a lawyer and to be defended by a lawyer of his choice,

iii) The right to be produced before a magistrate within twenty four hours and

iv) The right to be released from custody beyond the period of twenty hours if not produced before a magistrate.



I. Right to know the grounds of arrest :

It is important for an arrested person to know the ground of depriving his liberty immediately on arrest so that he can assess whether the arrest is arbitrary or not, and he can prepare for his defence. Article 22 requires the arresting officials to disclose the ground of arrest soon as may be to the arrested person. In Re Madhu Limaye, [27]the supreme court held that the requirement of article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding on the part of the authorities who made the arrest. He gets opportunity to prepare himself and to engage a lawyer to defend his side before a court of law. Thus, article 22(1) embodies the fundamental safeguards of the personal liberty of an arrested person.



II. Right to consult a lawyer:

The right to consult a lawyer is a constitutional safeguard guaranteed to arrest a person by the constitution under article 22. The supreme court in D.K. Basuâ€™s case issued directives that in the event of arrest, the arrestee can ask the police to allow him to consult his lawyer. It provides that the arrestee maybe permitted to meet his lawyer during interrogation though not throughout the interrogation.



III. Right to be produced before a magistrate:

Failure to comply with the requirements of Article 22 (2), which mandates producing the accused before a Magistrate, will attract the police officer liable under section 340 of the Indian Penal Code for wrongful detention. In the case of Khatri v. State of Bihar,[28] the supreme court observed that the state and its police authorities must see that this constitutional and legal requirements to produce an arrested person before a judicial magistrate within 24 hours of the arrest must be scrupulously observed. The court further observed that the provision inhibiting detention without remand is a very healthy provision which enables the magistrate to keep check over the police investigation and it is necessary that the magistrate should try to enforce this requirement and where it is found to be disobeyed come down heavily upon the police.



Thus the right to be produced before the magistrate is a safeguard available to the arrested person under article 22(2) even if the investigation cannot be completed within twenty four hours,. It is illegal for the police to keep a person in custody beyond the period of twenty four hours without producing before a magistrate. Though the constitutional mandate is like this but in reality there is always hue and cry of illegal arrest and detention by the police.



Conclusion

Providing a sense of security to ordinary citizens and attending to their grievances is dependent on the establishment of a police force which is efficient, honest and professional. The fact that such a police force does not exist in India, as attested by the findings of various commissions and committees, the complaints received by the human rights commissions, the stories reported by the press and the experiences of the common people on the street. The need for police reform is self-evident and urgent. There are two directions in which police reforms must be pursued simultaneously.



one is to establish statutory institutional arrangements that will ensure that the power of superintendence of state governments over their police forces provides police performance that is in strict accordance with the law. In other words, the police function to establish and maintain the rule of law, not the rule of politics. This break with past and present practices would require insulating them from outside illegitimate control and influence and giving them functional autonomy. once the police are given functional independence, they must be held accountable for the wrongs they do. The existing mechanisms of accountability must be strengthened and improved. In addition, new mechanisms, working independently to monitor the operations of the police and to inquire into public complaints against the police, must be established. The performance of the police as an institution and the behaviour of police personnel as individuals both need constant monitoring.



The other direction is to do everything possible to strengthen and improve policing under the existing system and structure. In addition to upgrading recruitment, training and leadership standards, the working and living conditions of lower police personnel need vast improvement-an exercise that should start with raising the status of the constabulary.



End-Notes

[1]Phani Mohan K, Functions, Roles and Duties of Police in General.

[2]The Blackâ€™sLaw Dictionary, (8thEd. 1999).

[3]David H. Bayley, Police For The Future (1994).

[4]Id., P. 27.

[5]The Code of Conduct For Law Enforcement officials Was Adopted By The General Assembly By Resolution 34/169 of December 1979.

[6]See The Un Code of Conduct For Law Enforcement officials, Commentary (A) To Art. 1.

[7]Id., Art. 1, Commentary (B)

[8]Dr. H. Abdul Azeez, Human Rights and The Police, 6.

[9]http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng

[10]

[11]http://www.ohchr.org/EN/UDHR/Documents/60UDHR/leafleten.pdf

[12]http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

[13]Nigel Rodley and Matt PollardThe Treatment of Prisoners under International Law (3rded.).

[14]Katar Singh v. State of Punjab (1994) 3 SCC 569. A. R. Desai, Violation of Democratic Rights in India, Vol. 1.

[15]Extracted from â€˜Human Rights in Indiaâ€™, Hearing before the Sub- Committee on International Organisation of the Committee on International Relations, U.S. House of Representatives, 1976.

[16]B. P. Sehgal, Human Rights in India, Problems and Perspectives, 226-7.

[17]â€œBlack Laws 1984- 85â€, Peopleâ€™s Union for Civil Liberties, 69- 70, New Delhi.

[18]AIR 1979 SC 185; (1979) 2SCC 143; 1978 CrLJ 1864; 1979 SCC 143

[19]Common Law System.

[20]1954 S.C.R. 1077.

[21]Supreme Court, Judgement Delivered on 26, August, 2010.

[22]Joginder Kumar v. State of U.P , (1994) 4 S.C.C. 260, para 12.

[23](1985) 4 S.C.C. 730.

[24]1980 S.C.R (3) 855.

[25]1981 S.C.R (2) 516.

[26]AIR 1990 SC 513.

[27]1969 CLJ 1440.

[28]1981 SCR (2) 408.