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Human Rights And The Criminal Justice System In India Vijay Kumar'"

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Central India Law Quarterly

HUMAN RIGHTS AND THE CRIMINAL JUSTICE SYSTEM IN INDIA VIJAY KUMAR'" The social living of human beings is conditional by economic social political factor. The -development of political "entities from monolithic kingship states to repetitive government states broadened the horizon of basic rights of the people and these rights came to be enshrined into constitutional documents. Since the guarantees of human right basic to social living connote a dignified living of individuals irrespective of caste. Religion. gender or class affiliations human right acquire a broader character having ramifications in economic social and political life However. here we are concerned with the human right in relation to the criminal justice. particularly the police system. 1. Human right perspective . Human right are generally manifested in the individual and collective living of the people with liberty and equality and their concomitant attributes. The contentment of the human rights obviously came to be developed with the development of society Particular with respective representative governments having constitutional norms for governance Consequently, preservation of the basic rights of the people became a basic norm of governance. Since it is the state which came to be entrusted with power to govern, the basic of fundamental rights came to be * M.Com .. LLM. Ph.D. (Law). Reader 111 Law. SJ NPG. 2OOJ.

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Human Rights And The Criminal Justice System In India Vijay Kumar'"

pow ered by

College. Lucknow. J98 CENTRAL INDIA LAW

jealously guarded the state power and the functionaries of the states. The international concern in this respect culminated in the Universal Declaration of Human Rights in 1948 by the General . Assembly of United nation laying down common standards securing universal and effective recognition and observance of human rights. Subsequently, the International Covenants on economic, social and cultural right and civil and political rights of
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Human Rights And The Criminal Justice System In India Vijay Kumar'"

1966 provided specific guarantees in this respect. The Declaration on the Right to Development on the Right to Development (1986) directing the states to eliminate the violations of human rights and making development as the baSIS for promotion of human rights broadened their area. Unlike the western countries having a long history of documented human rights', our country sadly lacks it due to .historical reasons. The legal regime developed in Britishtimes for administrative purposes, obviously, did not provide for basic human rights. Even the Government of Indian Act, 1935 laying down the basic Governmental structure did not contain the guarantees of fundamental rights. It is only after independence from the British rule that these tights could find place in Part Ul of the Constitution of India adopted. in 1950. Even these written constitutional guarantees remained dormant until activated by the supreme Court through its interpretative tool in specific cases broadening 'the contours of human freedom. Thus, the narrow I. Such as the Petition of Right. 1628. The Agreement of the people, 1949. The bill of Rights. 1689 and the habeas Corpus Acts of 1679 and 1816 in England: The Declaration of the rights of Man and citizen, 1789 in France: and The Bill of Rights. 1791 and Civil War Amendments (1865-\.870) in the. Uruted States. Vol. XVI HUMAN RIGHTS AND THE CRIMINAL JUSTICE 399

bodily approach of personal liberty in consonance with. Diceyan principales' A.K. Gopalan's case' could travel through Kharak Singh V. State of U.P. (A.I.R. 1963 S.c. 1295); Maneka Gandhi V. Union oflndia (A.I.R. 1978 S.c. 597); Francis Coralie V. The Administrator, Union Territory of Delhi (A.I.R. 1981 S.c. 746); Bandhua Mukti Morcha V Union of India (A.LR. 1984 S.c. 802) and other cases to become right to live with human dignity. This requires the facilitation of such living of the people by the state and negates all sort, of exploitation and torture. This, in tum implementation infrastructure in consonance with broader connotation of individual freedom as outlined by the supreme Court. But sadly, the hiatus between the judicial norms and imbibing of their content' by the administration, police and the people remains quite vast mainly due to systemic hurdles. Needless to say, the factual availability of the guaranteed freedoms, thus , involves complex societal factors. Even the judicial norms having direct implementability continue to be confined to the theoretical territory as depicted by the routine. handcuffing of the arrested persons accused ofvarious offences and even those arrested in breach ofpeace matters in utter disregard in ofthe supreme Court's direction for not after recording the reasons and getting the judicial approval". 2. The Diceyan meaning of persenal liberty was confined to a
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Human Rights And The Criminal Justice System In India Vijay Kumar'"

person's right of not being subjected to imprisonment, arrest or other physical coercion without legal justification, See A.V. Dicey, Introduction to Study of the Law of the Constitution (published 1968, reprinted 1971) pp. 207-8. 3. A.K. Gopalan V. State of Madras (A.I.R. 1950S.c. 27). .. 4 See Prem Shanker Shula V. Delhi Administration (A.I.R. 1980 S.c. 1535) 400 CENTRAL INDlA LAW 2003

The increasing complaints of human rights violations with the National Human Rights Commission) e~tablished under the provisions of the Protection of Human Rights Act, 1993 are quite revealing and call for the establishment of such bodies upto the lower level. The Human Right Act is a retrograde one in this respect as it leaves the establishment of the state Human Right Commission at the discretion of the state government Unlike the mandatory provision for the establishment of the National Commissions". The declining tendency of the states to establish these commissions is quit obvious. Though the National Human Right Commisssion has been active in taking cognizance of human right violations", its actions are limited by the recommendatory nature of its directions7a and the broader systemic hurdles. 5. It may be mentioned that during the year 19\)5-96. 9751 complaints and 444 custodial death/custodial rapes were registered by the Commission. See Annual Report. 1995-96. pp. 87-88 The number of cases registered pertaining to complaint and custodial death/custodial rapes increased to 39427 and 1297 respectively during the year 1988-99. See National Human Rights (Commission. Annual Report 1998-99. p.21 6. See sections 21 and 3. 7. For instance. the Commission has been taking cognizance of cases pertaining to police torture. custodial death and rapes. female foeticide and infanticide. child marriage. child prostitution. Child labour. bonded labour inhuman conditions in prisons and remand homes and starvation deaths. See National Human Rights Commission Annual Reports. 1995-96 to 1998-99. 7a. See The Protection of Human Rights Act. 1993. Section 18. Vol XVI HUMAN RIGHTS AND THE CRIMINAL JUSTICE

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II. Pasllinkal~ The State structure of the criminal justice system connoting
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Human Rights And The Criminal Justice System In India Vijay Kumar'"

the criminal law and its implementing machinery - mainly the police, court and jails-obtaining in our country is a legacy of the British and it obviously has the colonial roots. The criminal justice system of Muslim rulers prevalent before the British system was in a chaotic state and the British, from the very beginning of their arrival in Surat, tried to develop their own system. The felt need to have a systematic legal system started the reformative process through the Law Commissions resulting in the codified laws and the hierarchy of courts. The draft of the Penal Code prepared by the First Law Commission in 1837 was enacted in ] 860 The Criminal Procedure Code came in 186] and The Evidence Act in 1872 with revision and reenactment of the Criminal Procedure code the same year. The amending and consolidating process brought forth. Firstly, the Criminal Procedure Code, 1882 and ultimately The Criminal Procedure Code, ]898 which remained operational for three quarters of a century including two and a half decades even after independence of the country from the British rule. The Code obviously contained colonial norms for prevention, investigation, arrest and trial of offences, bails and bonds, the hierarchy of criminal courts and the appellate procedure etc. The police and the jail system came to be structured through. The Police Act. 186) and the Indian Prisons Act. )894 and the jail manuals. III. Va.. arresti_. powers or police It is The Criminal Procedure Code, 1973 which presently provides for norms of arrest. Various offences under the Indian . Penal Code and other laws have been divided into cognizable and CENTRAL INDIA LAW 2003

non-cognizable according to their gravity. In a cognizable offence, a police officer is empowered to arrest without warrant while in a non-cognizable offence, he is not so empowered". However, the 1973 Code enacted after revision of the Criminal Procedure Code, 1898 basically retains the old provisions particularly relating to arresting- and detaining powers of police. The vast Discretionary powers of arrest available to a police officer even without a warrant or an order from a magistrate and detention of the arrested persons at the police station for 24 hours" are the basic sources of unjustified arrests and detention and human rights violations by the police. Section 41 of the Code of Criminal Procedure 1973 authorises a police officer to arrest any person without an order from a magistrate and without a warrant, inter alia, for being concerned in any cognizable offence, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned; or for" having in his possession anyimplement of housebreaking; or> for being found in possession of suspected 'stolen
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Human Rights And The Criminal Justice System In India Vijay Kumar'"

property and being reasonable suspected of having committed an offence with reference to such thing; or for obstructing a police officer in the execution of his duty or escaping 8. See the First Schedule to the Code of Criminal Procedure, 1973 and \ 55. 2 (c) and 2( I). 9. In terms of Article 22(2) of the Constitution of India, an arrested person is to be produced before"the nearest magistrate within a ; period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of magistrate. Detentionbeyond the said period requires th4

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