Human Rights -from Police Perspective

Praveen Dixit (IPS)

In the following lines, I propose to discuss the development of human rights in India, their violations and remedies to reduce the same.

The concept of human rights is in existence in India from ancient times. In fact, Indian Rushis, Munis strongly believed not only humans, but all other living and non-living beings including the earth, water, mountains, air also have inviolable rights which need to be protected by one and all. At the time of independence, many Pundits were identified, having excellent knowledge of Indian scriptures including Ramayana, Mahabharata, different smruti such as Manu Smruti, Yadnyawalkya Smruti, treatises such as Artha Shastra by Chanakya, and Panchatantra by Vishnu Sharma. Many of them were specially co-opted in making the Constitution of India.

Practices followed during different regimes during medieval period including Mughals & Marathas were examined in detail before coming to any conclusions. Ideologies propounded by Western political thinkers such as Machiavelli in his Prince, Hobbes, Rousseau guided the conceptualization. Principles initiated during French Revolution, American War of Independence, First and Second World War, League of Nations and United Nations resulted in the famous Charter of Human Rights adopted in 1948. Members of the Constituent Assembly had vigorously participated in the freedom struggle of India. The drafting committee made in depth comparative study of different democratic constitutions in the world. Culmination of these ideas is reflected in the debates of the Constituent Assembly spread over three years resulting into the emergence of the Constitution of India. Indian Constitution is not only a static book, but it is a dynamic and progressive conviction of the peoples’ aspirations to find solutions to emerging problems in a democratic way.

Part 3 Fundamental Rights and Part 4 Directive Principles of the State:

After a careful study of the prevailing constitutions in several countries in the world, the makers of the Indian constitution prepared two separate parts namely Fundamental Rights and Directive Principles in the Constitution. They together incorporate most of the democratic rights as well as the basic framework of the criminal justice system. The broad dividing line between the two parts is that while the fundamental rights are judiciable, the directive principles are not. In other words, any violation of the fundamental rights can be challenged before the courts of the country, and the courts if required can ensure their enforcement by giving suitable directions to the Executive wing of the Government. On the other hand, the principles mentioned in the Directive Principles are recognized to be of great importance, but in view of the limitation of resources, the State is expected to implement them as per the availability of funds. Thus the Constitution has made the fundamental point in criminal justice system that there would be segregation between the Executive and the Judiciary and the actions of the Executive having bearing on fundamental rights are always open to challenge before the judiciary by any individual whether he is the citizen or alien, an individual or an organization.

Fundamental Rights

The Constitution of India guarantees the right to equality before law, equality of opportunity in matters of public employment, protects freedom of speech and expression, assemble peaceably, form association of unions, move freely throughout the territory of India, reside and settle in any part of the territory of India and to practice any profession, or to carry on any profession or to carry on any occupation. From the criminal justice system, the Constitution significantly provides protection in respect of conviction for offences. It states, “No person shall be convicted of any offence except for violation of a law in force at the time of commission of the act charged as an offence, no person shall be prosecuted and punished for the same offence more than once, and no person shall be compelled to be a witness against himself.” Thus the Constitution provides a guarantee against any arbitrary activity by the executive action and can be considered as the firm foundation for criminal justice system. It further underlines that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The Constitution emphasizes, “No person who is arrested shall be detained in custody without being informed of the grounds of arrest, and he shall not be denied the right to defend by legal practitioner of his choice, every person arrested shall be produced before the nearest magistrate within a period of twenty four hours.” It also provides certain reasonable precautions against preventive detention that it will not be more than three months unless approved by persons of Advisory Board and these persons would be qualified to be Judges of the High Court.

All these principles are the characteristics of democratic system and its criminal justice system. Not only these, but the Constitution goes ahead and guarantees the freedom of conscience and free profession, practice and propagation of religion, freedom to manage religious affairs, freedom as to payment of taxes for promotion of any particular religion, freedom as to attendance at religious instructions or religious worship in certain educational institutions. Taking a bold step far ahead of its times the Constitution provides protection to minorities against the majorities and states that the minorities will have the right to establish and administer educational institutions.

The right to property is also assured by laying down the provision that no person shall be deprived of the property save by the authority of law. With a view to provide the remedies for enforcement of these rights, it states; “the right to move the Supreme Court by appropriate proceedings for the enforcement of these rights is guaranteed.” Even a cursory look at these provisions will convince anybody that the basic tenets of liberal democratic justice system are not only incorporated in the Indian system, but they have been enhanced in much more concrete manner than many other countries which claim to be democratic. This is particularly true about the rights of religious minorities for propagating their religion or to run their educational institutions as they like. In a historical step, the Constitution nullified all previous laws which went against these rights, and further assured all that in all times to come the Executive is prohibited from taking away these rights. And the duty is cast on the courts, “any law made in contravention shall to the extent of contravention, be void”.

Thus the Constitution provided strongest articulation of its intentions regarding the purpose of the governance, the process and the corrective measures. It emphasized that the cherished goals are equality, non-discrimination, and freedoms of expression, movement, and property rights. The process assures that there would be protection in respect of conviction for offences, protection of life and personal liberty and protection against arrest and detention. The corrective measures are also incorporated expressly in the form of moving the courts for their enforcement. Thus the Constitution makers have left no doubts in the minds of anybody regarding the criminal justice system.
Directive Principles of State Policy
The Constitution does not stop at this, but also lays down the Directive Principles for all future laws. It states that the State shall endeavour for equal distribution of wealth, right to employment, equal pay for equal work for both men and women, protection of children against exploitation, free legal aid, and promotion of instructive and economic interests of depressed classes known as Scheduled castes and scheduled tribes and other weaker sections. Thus inadequacy of means was the most important reason for not making these directive principles as fundamental rights. This was also the rationale for not providing for enforcement of these rights by any courts. Before we look into the aspects of implementation of these rights and principles in reality, we may have a look at the development of human rights scenario at the international level.

Development of Human Rights at the international level:

The history of development of human rights in individual countries goes long back and some important milestones in this regard in the modern times could be recalled as magna carta   and other charters and agreements in the U.K from 12th century in the struggle of people against the monarch, principles for which the French revolution and American war of independence were fought Following the Second World War, the comity of nations came together and formed the United Nations. In 1948, the General Assembly of the United Nations adopted the historic Declaration of Human Rights. It also set up Commission on Human Rights in 1947. In thirty articles, the Universal declaration of Human rights mentions that the human rights are universal, all are equal before law, right of life, liberty and personal security, right against cruelty, torture, right to move national tribunals for remedy against violation of fundamental rights mentioned in the local constitution, prevention against arbitrary arrest and detention. It further states that everyone is entitled to fair and public hearing by an independent and impartial tribunal regarding any criminal charges against him, everyone shall be presumed to be innocent till proved otherwise, prevention against arbitrary interference with privacy, family, or correspondence. It underlines freedom of movement and residence within the state as well as outside the state, right to nationality and marriage. It declares that no one shall be deprived of property arbitrarily. It emphasizes the freedom of thought, religion, opinion and expression as well as peaceful assembly and association. It mentions that everyone has the right of participation in the government and equal access to public services. Everyone has the right to employment and equal pay for equal   work. Everyone has the right to education, leisure and standard of living adequate for the health and wellbeing of himself and his family; everyone has the right to participate in the cultural life of the community.

In addition   to this declaration, the United Nations has also made special efforts through UNESCO for the promotion of rights of women and children to prevent any discrimination against them and to promote their wellbeing. Enforceability of human rights is critical for their realization and hence the United Nations has urged all member countries that they will incorporate these rights in their constitution and provide for remedies against their violations. The United Nations has also set up the High Commission for Human Rights   which have been assisting in promoting and encouraging universal and effective respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. The observations by the Commission are advisory in nature.
Establishment of Human Rights Commission in India:
Meanwhile, in India, there was increasing concern that although the provisions mentioned in the above noted UN Charter were suitably reflected in Indian constitution, the government should take extra efforts to implement these rights. The international non – governmental organizations as well as developed countries led by USA, dominating the IMF and World Bank, which were providing aid to India, were putting continuous pressure on the Indian Government to improve its performance in the field of Human rights. In view of the above facts and changing social realities and emerging trends in the nature of crime and violence, the Government of India considered it essential to review the existing laws and procedures and the system of administration with a view to bringing about greater efficiency and transparency. The Government of India created National Human Rights Commission and enacted Protection of Human Rights Act in 1993. In the words of the First Annual Report by the Commission, “the Protection of Human Rights Act, 1993, provides the strongest reaffirmation by Parliament, since the framing of the Constitution, that respect for the rights of the people of India is central to the nation’s well-being, progress and, indeed integrity.”www.nhrc.nic.in.

FUNCTIONS OF THE COMMISSION:

The Commission was assigned following functions:
Section 12 of the Act, states:
(a) Inquire, suo motu or on a petition presented to if by a victim or any person on his behalf, into complaint of –

i) Violation of human rights or abatement thereof or

ii) Negligence in the prevention of such violation, by a public servant;

b) Intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

c) 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;

d) 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;

e) Review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate measures;

f) Study treaties and other international instruments on human rights and make recommendations for their effective implementation;

g) Undertake and promote research in the field of human rights;

h) 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;

i) Encourage the efforts of non-governmental organisations and institutions working in the field of human rights;

j) Such other functions as it may consider necessary for the promotion of human rights.

Enforcement of human rights in practice:

In the scheme of things, there are major Acts including Representation of the Peoples Act, IPC, Cr. P.C. passed by the Union Government and minor or State Acts passed by the State governments. These pertain to prohibition, prevention of gambling, regulation of assembly and many more aspects. In addition pronouncements by various High Courts, Supreme Court, and international covenants entered into by the Indian government, advisories by NHRC, National Women’s Commission (NWC), National Children Commission (NCC), SC& ST commission, Minorities Commission, Tribunals elaborate these rights from time to time. These are further coded by government resolutions, orders, Manuals by respective departments such as Police or Prison and standing orders by the Head of the Forces from time to time. Law enforcing agencies including security agencies, armed forces, Central Armed Police Forces such as CRPF, BSF, ITBP CISF and State Police Forces have greater responsibility in protecting and promoting the human rights. State police are first respondents to public and personal grievances. Police have the duty to register various offences and investigate these offences. They are the only authority who can prosecute the accused before the Court of law.  Maintenance of law & order is a State subject and this is done by police.

Violations of human rights:
Real or artificially created perception among a section of the population has tremendous potential to disturb peaceful situation. This may be due to political clashes between Union and State ruling parties, sharp differences between followers of different religions and many other reasons. The situation is aggravated further by IT revolution by way of social media doctored by elements abroad as well as within the country. They have a toolkit to systematically create violence and damage the democratic fabric so that the democratically elected government and its representatives are not permitted to take decisions opposed by these vested interests.   As we are living in a global village, developments in any part of the world impact us almost immediately forcing police to resort to use of force to quell violent situations. Violent reactions in the form of lynching by mobs against attempts to convert Hindu women, tribal or scheduled caste persons by Christian missionaries or Islamic activists are frequently reported from various parts of the country. In many situations, political agitations turn violent.   Misuse of the freedom of expression to hurt the sentiments of persons from other religion is resorted to by a section of fanatics and radical elements to influence the youth to disturb peace.
Freedom of expression and right to wield stick ends where the nose of other person starts. Freedom of expression is subject to reasonable restrictions as laid down by the Constitutional provisions. In spite of these, Incidents of hate speech, war of words, rumours, fake videos, viral fake news are frequently orchestrated by a section of the propagandists for their vested interests.
The situation gets aggravated when inimical countries including Pakistan, China and a few others indulge in low cost proxy wars through targeted killings of innocent persons or terrorist incidents.  An armed attack by Maoists on policemen and police stations is their declared strategy ‘to overthrow the borzois’ regime’.  In addition, attacks on traffic policemen or policemen going for raids by anti-social elements is a common feature in many urban and rural police stations.  In such circumstances, police have no alternative but to resort to lethal as well as non-lethal use of adequate and minimum force in self-defence and/or to save public & private property.  Agitators and their supporters allege that the demonstrations were peaceful and in pursuit of their right to protest. But this is subject to satisfaction of the enquiring magistrate.

At the level of individual grievances, there are abuses of children, women, old age persons, scheduled tribe and scheduled caste as well as differently/specially abled persons.  Apart from these traditional offences, technology driven cyber offenses and economic offenses are also multiplying every year. The CR.P.C. makes a distinction between cognisable offences, and non-cognisable offences  depending on the nature of gravity of the offence as understood by the police personnel at the police station.
Annually approximately 3 lakh offences are registered under Major Acts, and 2 lakh offences are registered under State/Special/Minor acts. This is in addition to law & order duties, patrolling, VIP arrangements, elections, examinations requiring the policemen to work for more than 12 hours every day.
In this background, the major violations of human rights can be summarised as denial of civil & political rights, influencing voters through violence or inducements besides pressurising tactics. At the police station level, there are few   aberrations, in the form of non-registration of offences,  lowering of offences by putting milder sections, threat of arrest, custodial violence, custodial rapes, custodial deaths, deaths in prisons, detaining of children in police station, violation of orders related to women such as not to arrest them or call to police stations after sun-set, assaulting innocent persons, non-arresting genuine offenders, preparing fabricated evidence, tattooing on forehead of accused as thief as well as   corruption in omission or commission of duty. Registering multiple offences for the same action resulting in police custody of helpless victims at the behest of political masters is also misuse of the authority and is a violation of human rights.

Analysis of human rights violations:
Close examination of these aberrations reveals that these are the result of undue influence from influential persons to arrest persons to recover property. In a few cases, these can be attributed to false sense of justice among the police officers under the societal pressure to teach lessons to suspects involved in brutal rapes and murders. In another few cases, it is the result of registration of false cases to harass estranged relatives including spouses, or members of housing cooperative societies. Increasingly there is a political pressure to arrest or release persons from opposition parties. It is also noticed that there is increasing tendency to convert civil cases as criminal offences to overcome delays in civil courts or misuse of police machinery to settle scores with opponents. In several cases, false offences are registered to prevent employment to close relatives with whom there may be property dispute.  There is also a tendency to tendency of offenders to induce corruption at various levels including police station, investigating officers, prosecutors and in some cases judicial officers to influence the outcome of the trials.
Limitations:
When the criminal case is sub-judice, the NHRC & SHRC prefer to stay away from the trials. However as seen above, the Human Rights Act Section 12 states: “Intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court.” Hence it is imperative that in sample cases, the Commission should engage special counsel to represent the victim and to ensure that his human rights are protected.

Secondly the directive by NHRC and SHRC to pay compensation to the diseased in police action is frequently challenged in High Courts as there is a perception that the police action in self-defence doesn’t entitle the victim’s family/dependents to claim compensation. More over this also adversely affects the morale of the force. It also raises the question about human rights of police. Are the police not entitled to have protection of their human rights from such desperados? With a view to provide micro-justice to service related grievances of individual police officers and men, the Government has established Central and State administrative tribunals. However, a few State governments have dispensed with these.
Thirdly deaths of prisoners may be due to natural reason even after taking all precautions and providing all possible medical assistance. Subjecting prison officers for these deaths definitely leaves adverse impact on the discipline and morale of the prison officers. .
Remedies:
To overcome these aberrations, and to ensure no incidents of police torture takes place, it is necessary that the State police machinery in hotly contested elections be placed under the Election Commission superseding the elected body. Attempt should be made to reduce human interface as much as possible and provide online registration facility. As DG Anti-corruption Bureau and DGP Maharashtra, I had launched www.acbmaharashtra.net for reporting cases of corruption and www.wahanchori.com, www.mobilechori.com for registering the offences without any hassle. Similarly most of the government services are being arranged online.
A few other measures which have been implemented recently include installation of CCTV in police stations, submission of reports to NHRC and SHRC regarding custodial death, magisterial and CID enquiry in custodial death, installation of CCTNS throughout the country, providing of 112 India app in smart phones and cyber helplines valid for the entire country.

Apart from these measures, orientation/training programmes for newly recruited policemen & officers, periodical induction training course e arranged to emphasise importance of human rights on all police officers.
I had also implemented a scheme Involving common people in policing as police Mitra to remove distrust and create an atmosphere of trust and bonding among the police and people. The scheme was a great success and is operating in several states.
Strict supervision by senior officers, deterrent action including filing of criminal action against erring police officers and men, visits by NHRC and SHRC to police stations, display of instructions given by NHRC at police stations has also helped to a great extent in reducing the numbers of violations. In another experiment implemented in Maharashtra, I ensured video linking of prisons and medical colleges/district hospitals. Prior to Corona pandemic, in two years, 11000 prisoners benefitted from this scheme. Similarly, NHRC needs to issue advisory to video-link prisons and medical colleges. This would prevent deaths of prisoners to certain extent.
Lastly, as suggested by the Supreme Court, aggrieved persons can approach Police Complaints Authority at State level as well as District level to seek remedy.

I would conclude by observing that protection and promotion of human rights demands constant efforts and every concerned person should actively participate in this exercise.

{The author is DGP (Retired) Maharashtra State.}