SHRESHTHA GARG & ANAND KR. DUBEY
Editor’s Note: The objectives are to study the role of human rights to improve the criminal justice system in India. And to ascertain the actual position of human rights in criminal justice system of India and the various practical problem regarding the implementation of human rights in the criminal justice system of India. This also summarises positive study of various acts passed by the Indian Legislator, to achieve the goal of protecting human rights and to impress upon the powers that it is high time that legislation is made which guarantees speedy trail of offences because delay in disposal of cases hampers the cause of justice.
A human being is a living creature, and in the same manner, humanity is a living and constantly evolving concept. They by virtue of their being human possess certain basic and inalienable rights which are commonly known as human rights.
On 10th Dec. 1948, UN adopted the Universal Declaration of Human Rights and subsequently adopted two more covenants (one on Economic, Social and Cultural Rights and Other on Civil and Political Rights) on 16th Dec 1966 and they came into force on 3rd Ian 1976 and 23rd march 1976 respectively.
On 3rdMarch, 1978 heinous crime happened in Patna, the Patna police brutally lathi-charged a demonstration of backward classes in front of the Assembly House. On 31st March 1978, police opened fire without warning in Raghunathpur Bazaar, Bhojpur District, killing four persons on the spot. On July 13, 1991 in Pilibhit District of U.P. 10 Sikh pilgrims were killed by U.P. police in false encounters.
In the context of violence in Punjab, Jammu & Kashmir, North-East and Andhra Pradesh, the pressure from the foreign countries and the awareness among the people for protection of human rights led to the creation of a National Human Rights Commission. All these factors made the government to decide and to enact a law on human rights.
The world conference on Human Right in1993 realizing the importance of such an institution or commission stated that, “the world conference on Human Right urges Government to strengthen national structure, institutions and organs of society which play a role in protecting and safeguarding Human Rights.”
On May 14th, 1992, the Human Right Commission Bill was introduced in the Lok Sabha and the bill will refers to the standing Committee of the Parliament on Home Affairs. The pressure from the foreign countries and the domestic front created and urgency for the commission. On Sep 27th, 1993 the president of India promulgated and ordinance for the creation of the National Commission on Human Rights (NCHR) and commissions a state level. After certain amendments, the protection of Human Rights Bill was passed by both the houses of the Parliament to replace the ordinance. On January 8th, 1994 the bill became an Act after receiving the assent of the President, which is known as the Protection of Human Right Act.
Sec 2(d) of the Act defined the expression human rights by stating that “human right means the rights relating to life, liberty, equality and dignity of the individuals guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”.
The above definition limits the scope of the functioning of NHRC and the act set up a National Human Rights Commission and the state Human Rights Commission in the state and the Human Rights Courts in the districts.
FUNCTIONS OF NHRC
The National Human Rights Commission in its 15 annual reports has shown deep concern over the increasing incidents of custodial deaths and torture in the criminal administration. The commission has continued to act with determination to end the terrible occurrences of custodial death, rape and torture that has hampered the order apparatus of our country. The commission has suggested several measures. The commission supported the insertion of section 114 B in Evidence Acts, as recommended by the Law Commission in its 113threport. Also, in section 197 of Code of Criminal Procedure, 1973, to relate the necessity of governmental sanction for the prosecution of a police officer where prima facie case has been established in an enquiry conducted by a Sessions Judge.
The various functions performed by NHRC are to:
inquire, suomotu or on a petition presented to it by a victim or any person on his behalf, into complaint of
(i) violation of human rights or abetment thereof or
(ii) negligence in the prevention of such violation, by a public servant;
intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;
visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon;
review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;
review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
study treaties and other international instruments on human rights and make recommendations for their effective implementation;
undertake and promote research in the field of human rights;
spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;
encourage the efforts of non-governmental organizations and institutions working in the field of human rights;
Such other functions as it may consider necessary for the protection of human rights.
ROLE OF NHRC
The National Human Rights Commission of India has played a very vital and important role in up keeping the faith of a common man in the criminal justice system of India.
1. Death in police custody-
The commission observed that death in police custody is one of the worst kinds of crimes in a civilized society governed by the rule of law and poses a serious threat to an orderly civilized society.
Torture in custody flouts the basic rights of the citizens and is an affront to human dignity. The National Police Commission in its 4th Report of June, 1980, noticed the prevalence of custodial torture and observed that nothing is “ so dehumanizing” as the conduct of the police in practicing torture of any kind on the person in their custody, based on the following cases :
Death of Sher Mohammad in police custody by torture: Uttar Pradesh
Custodial death of Haji Mohammad Tent wala in police custody: Ahmadabad, Gujarat
Illegal detention, torture and death of Shah Mohammad in police custody and negligence on the part of doctors for not conducting a thorough post mortem: Madhya Pradesh
The National Human Rights Commission having been constituted under the 1993 Act for better protection of Human Rights and civil liberties of the citizen has not only the jurisdiction but also an obligation to grant relief in appropriate cases to the victims or the heirs, whose Right to Life under Article 21 of the Constitution has been flagrantly infringed by the State functionaries by calling upon the State to repair the damage done by its officers to the Human Rights of the citizens.
The Hon’ble Supreme Court in the case of-
Neelbati Behra v. State of Orissa, 1993, SCC 746, observed and ordered as under:
a) The commission has taken a consistent stand that the obligation of the State to ensure safety of persons while in its custody is strict and absolute and admits no exception. The infeasible Right to Life of every citizen, including convicts, prisoners or under trials cannot be taken away except in accordance with the procedure established by law, while the citizen is in the custody of the State.
b) It is now an established law that the failure of the State to take all possible steps to protect the life of the citizens while in its custody makes the state vicariously liable for its action or omission.
c) “Immediate interim relief” envisaged in section 18(3) of the Act has to be correlated to the injury or loss which the victim or members of his family have suffered owing to the violation of Human Rights by public servants.
A meaningful and harmonious construction of this clause would leave no doubt that the Commission is entitled to invoke its benevolent sweep on prima-facie view of the matter irrespective of whether there is any litigation- civil or criminal relating to the matter.
d) The idea of immediate interim relief does not therefore, presuppose the establishment of criminal liability of the offender in a court of law as a precondition for the grant of the relief nor does it depend on whether any civil litigation is either pending or prospective.
The term torture with reference to police custody implies infliction of severe pain or suffering whether physical or mental torture. Custodial torture became a common phenomenon and routine police practice of interrogation these days. It causes momentary public uproar but once the incident fades away from the public everything is forgotten. The magnitude of police custodial torture in India is indicated by the Report of Amnesty International (1992) which says that “415 persons died in the custody of police and security forces due to torture during 1985-91”.
The Government itself admitted in Rajya Sabha that 46 persons died in police custody due to torture within three months that is January to march 1993 in Delhi alone. These figure point at the alarming dimensions of the problem.
As per the crime statistics of the year 2002 published by NCRB, 84 custodial deaths were reported, 34 cases were registered, 32 policeman were charge-sheeted but none was convicted during that year.
The Supreme Court in case of Raghubir Sing v. State of Haryana, emphasized the need to organize special strategies “to prevent and punish brutality of police methodology otherwise the credibility of rule of law would deteriorate”.
Third degree methods of torture and custodial deaths have become an intrinsic part of the police investigation. In fact section 23 of the Indian Police Act, 1861 envisages the duties of police officer which should be carried out and enforced with purity, vigilance and discretion.
The word torture today has become synonymous with the darker side of human civilization and custodial violence including torture and death in the lock-up strikes a blow at the rule of law.
The court noticed that these directives would help curb, if not totally eliminate, the use of questionable methods during interrogational an investigation leading to custodial violence.
3. Death in judicial custody-
When the death of the deceased takes place in the police custody, Commission issues a show-cause notice to the State government as to why an immediate interim relief under section 18 (3) of The Protection of Human Rights Act, 1993 be not granted to the next of the kin of the deceased. The Commission held that the State is vicariously liable for the death of the under trial prisoner and if the death of the deceased was due to the negligence on the part of the jail authorities, State had to pay a sum reasonable to the next of the kin of the deceased under section 18(3) of the Act.
The following cases has been reported:
Death of an under trial prisoner, Tachi Kaki: Arunachal Pradesh
Custodial death of under trial prisoner, Harjinder, due to negligence: Uttar radish
Death of Sanjay Sharma in District jail, Mathura: Uttar Pradesh
Death of Jasveer Singh in judicial custody due to negligence in providing timely medical aid: Uttar Pradesh
4. Police harassment:
Law enforcement agents are hired to serve the public. It is their duty to enforce the law, but that does not give them the authority to act lawlessly. They must also abide by the regulation outlined by the government and accord people certain rights. When officers act contrary to law and abuse their powers, they are often guilty of police harassment.
The Commission on 9 May 2001, reiterated the underlying principle and object of enacting section 18 (3) in The Protection of Human Rights Act 1993. The Commission observed that-
(i) The object of section 18(3) of the Act is to provide immediate interim relief in a case where strong prima facie case of violation of Human Rights, has been made out, so that the complainant is provided immediate relief which need not avail determination in another proceeding of the full compensation awardable or identification of the particular public servant guilty of the violation and determination of his liability in another proceeding.
(ii) A welfare state recognising its obligation to afford “relief” to its citizens in distress, particularly those who are victims of violation of their Human Rights by public servants, has made this law under which government seeks advice from the National Human Rights Commission as to what in this view, is reasonable “immediate interim relief”, so that the State can act on the recommendation.
(iii) The meaning to be given to the section 18(3) by any State professing to be welfare state should ensure a liberal construction to promote the philosophy of the statute and to advance its beneficent and benevolent purposes.
The view implies that administration of such “immediate interim
relief ” could only be at the end of the day, after the guilt of the offending public servant is established in a criminal trial on the standards of criminal evidence would nullify the great humanism which the statute seeks to enshrine in the following cases:
Suicide by Vinod Kumar due to police harassment: Madhya Pradesh
False implication of Rajinder Singh: Haryana
Suicide by Vinod Kumar Rajput due to police harassment: Madhya Pradesh
5. Illegal detention and torture-
Illegal Detention and Torture in Police Station, Shikarpur: Uttar Pradesh (Case No.17171/24/1999-2000)
The Commission received a complaint from Ganga Prasad a resident of District Bulandshahar, Uttar Pradesh alleging illegal detention and torture of his son PrahladSwaroop and one Satish, son of Chiranjilal by Police personnel belonging to police Station, Shikarpur at the instance of Zamindars in the village.
It directed the State Government of Uttar Pradesh to show cause as to why an immediate interim Relief under section 18(3) of the Act be not awarded to the victims in this case.
The Commission did not receive any response from the Chief Secretary, Government of Uttar Pradesh. However, the Senior Superintendent of Police, Bulandshahar forwarded an inquiry report submitted by Additional Superintendent of Police of District, Khurja.
Keeping in view the findings recorded by the Additional Superintendent of Police, District Khurja and taking note of the fact that the chief Secretary, Government of Uttar Pradesh had not shown any cause against the grant of immediate interim relief, the Commission vide its proceedings dated 23 July 2003 directed that a sum of Rs. 10,000/- be awarded to each of the two victims viz. Prahlad Swaroop and Satish by the State of Uttar Pradesh. The case is being monitored by the Commission.
SAFEGUARD AVAILABLE AGAINST THE ILLEGAL ARREST AND DETENTION
The constitution contains some minimum procedural requirements which must be complied by procedure established by law Article-22 provides procedural safeguards against arrest or detention.
The safeguard contained under this article is available for every person that is citizen or non-citizen. The main object to provide these safeguard are available only for a criminal or quasi-criminal offences. Therefore, it does not apply when arrest is made under civil matters. Article 22 guaranteed the following safeguard against arrest or detention made under the Right to be informed as soon as possible of the grounds of arrest or detention.
a. Right to consult and to be defended by a legal practitioner of his choice.
b. Right to be produced before the nearest magistrate within 24 hours of arrest.
c. Right not be detained in custody beyond- 24 hours without the authority of the magistrate.
6. Violation of rights of SC/ST-
The National Human Rights Commission is expanding in the field of violation of rights of the Scheduled Castes and the Scheduled Tribes.
In case- Death of workers in silicon factories of Madhya Pradesh:
The report indicated that there were 134 slate factories which were set up in Mandsaur District of Madhya Pradesh. The health of the majority of the workers employed in these factories was affected due to inhalation of silicon dust. The Government had taken steps to provide medical facilities and ensure that all these workers were covered under the Employees State Insurance (ESI) scheme. The district administration had advised owners of these factories to install BHEL machinery to minimise dust particles. However, many of the owners of these factories were unable to meet the cost of the sophisticated machinery; this resulted in the spread of silicosis dust and affected the workers’ health.
Having regard to the provisions of the Indian Constitution as well as to the International Human Rights instruments with regard to the right to life, the Commission gave the following directions to the State for compliance in future:-
1. To ensure the establishing of BHEL machinery in the factories to prevent dust pollution and to ensure that pollution free air is provided to workers.
2. Periodic inspection, on a monthly basis, by the Labour Department and reports made to the State Human Rights Commission for monitoring.
3. Widows and children of deceased workers to be taken care of by the factory owner by providing assistance.
4. To ensure that child labour is prevented by the following methods:
(a) Establishing schools at the cost of factory owners, with assistance from the State for the education of workers’ children.
(b) The provision of periodic payments for their education and insurance coverage at the cost of factory owners.
(c) The position of mid-day meals and clothing to dependent children or children of deceased workers.
In examining this matter, the Commission observed that the Right to Health and Medical Care is a fundamental right under Article 21, read with Articles 39(e), 41 and 43 of the Constitution. The Right to Life includes protection of the health and strength of workers and is a minimum requirement to enable a person to live with human dignity. The Universal Declaration of Human Rights as well as other International Instruments also speak of this right. Continuous exposure to the corroding effect of silicon dust can result in the silent killing of those who work in such an environment. The duty of the State, under the Directive Principles of the Constitution, is to ensure the protection of the health of workers employed in such Slate factories in Mandsaur and elsewhere in the State.
Atrocities on Scheduled Castes/Scheduled Tribes – killing of five Dalits: Haryana (Cases No.1485/7/2002-2003)
The Commission took suomotu cognizance of a newspaper report entitled “five dalits lynched in Haryana” published in The Indian Express of 17 October 2002. The report stated that five dalits, all in their twenties, were beaten to death on 15 October 2002 in Jhajjar District, Haryana and that two of them had been torched.
The victims were reported to have been dragged by a mob out of a police post where they had taken refuge and lynched in the presence of the City Magistrate, the Deputy Superintendent of Police of Jhajjar and Bahadurgarh, the Block Development Officer and at least 50 Policemen.
7. Juvenile Justice:
The Juvenile Justice towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system.
Rights of Juveniles:
Condition of Child inmates in Juvenile Home, Meerut: Uttar Pradesh-
The commission on 26th Sep. 2005 took suo-motu cognizance of a news item published in “Amar Ujala” on 21st September 2005, captioned “Massoomo k e Liye Kale se Kam Nahi Hai Jail”. According to the news item, 59 child accused were taken to the Meerut court for appearances before the magistrate on 20 September 2005. The van carrying 59 children was parked in an open area outside the court premises under direct sun for five hours and the inmates were not given food and water.
It is a serious issue about violation of Child Rights the Commission directed its investigation team to visit Govind Ashram located at Juvenile court Saket. The team inquired about the factual allegations contained in newspaper within two weeks.
The commission considered the report with a further spot investigation report in the light of assurance before the enquiry team. Action taken report called from the chief Secretary, Government of U.P. is awaited.
The Former Chairman of the National Human Rights Commission (NHRC) Chairman Justice A.S. Anand stated, “Overcrowding throws every system out of gear and is found to be the root cause of the deplorable conditions in our jails”
Justice Anand has written letters to the chief justices of all high courts suggesting regular holding of special courts in jails and their monitoring by either the chief justices themselves or a senior judge.
Asking the Judiciary to address this problem, Justice Anand has proposed fast track courts to be held inside the prisons for the benefit of the under trails, which alone will help decongest the prisons.
The survey mentioned that “Slow progress of the cases and operation of the bail system to the disadvantage of the poor and illiterate is responsible for the plight of others who continue to suffer all the hardships of incarceration although their guilt is yet to be established”.
The Commission chairman has proposed a four-track strategy to deal with the situation. Beside special courts to be held inside jails, and also wants the courts to release under trail on the personal surety bonds, in case of self-confessed first timers and petty offenders.
CONCLUSION AND SUGESSTION
After going through the whole study in this segment we find that the structure of the commission shows, it is a fully independent body and based on two conceptual pillars, i.e., autonomy and transparency. From the establishment of the NHRC, it played very important role to protect the Human Rights in the functions of Criminal Administration of Justice. After going through the cases decided by the NHRC mentioned in this segment we find that the commission many times took action on the various complaints by the affected person, on the information received from the state mechanism, took action on the demand of NGO’s, conduct investigation on the direction of the Supreme Court and many a times took suo moto action on the News published in the various Newspapers.
Therefore being a recommendatory and investigatory body, the recommendation of the commission are of great importance to the Government in order to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial object it has in view.
The creation of NHRC in India can be an important mechanism to strengthen Human Rights protection but can never replace nor should it in any way diminish the safeguards inherent in comprehensive and effective legal structure enforced by an independent, impartial and accessible judiciary.
Suggestion Regarding NHRC
The National Rights Commission should be authorised to take action against the persons who are found guilty of making false complaint against security personnel, armed forces, Para military forces and other law enforcement agencies. Due to false complaints sometime they have humiliations which are violation of their human rights.
Finally it is suggested that the knowledge and awareness of human rights is most important for a democratic country. Accused should be made aware of the human rights available to them under the International human rights instruments as well as National Laws.
Both the print and electronic media owe the responsibility and the duty towards the society, in controlling the crime effectively. The various political parties, activists, human rights organizations etc. should come forward to make accused aware of human rights.
Like the National Human Rights Commissions at the national level, Human Rights Commission are also required to be created in all the states as envisaged in the Protection of Human Right Act, 1993.
Lawyers should also play a constructive role in bringing justice to the individuals.
Hence a collective effort is required to justify the existence of human rights.
Human rights like Fundamental Rights are paramount, safe and transcendental in nature and ought to be treated as inalienable and inviolable for preserving the dignity of the people.
B. Shivarao : The Framing of India’s Constitution
Universal law publishing 2012.
Kapoor S.K : International law and human rights
(15thEd) Allahabad, Central Law
Dr. Tripathi P.K : The book Jurisprudence (legal theory)
(21st Ed) Faridabad, Allahabad law
Dr. Agarawal H.O : Human Rights (13th Ed) Allahabad
Central law agency, 2011.
Reports / Articles
NHRC Annual Report 2010.
Cr L.J March 1990, Vol. 96 p.28
AIR : All India Reporters
CCR : Current Criminal Reports
CrLJ : Criminal Law Journal
IILJ : Indian Law Journal
IPJ : Indian Police Reports
SSC : Supreme Court Cases
Universal Declaration of Human Rights 1948
The Protection of Human Right Act, 1993
The Indian Police Act, 1861
The Code of Criminal Procedure Act 1973
The Indian Penal Code, 1860
The Indian Evidence Act, 1872
The Hindustan Times (Delhi).
Indian Express (Delhi).