HUMAN RIGHTS – ITS VIOLATION AND ROLE OF POLICE IN ENSURING JUSTICE
Wherever there is a transgression of rights by the government/state or any of its agencies with respect to the rights guaranteed by the International, Regional or National Law it is violation of Human Rights. In the violation of human rights the state may be directly involved or the state may fail to exhibit due diligence in protecting its citizens from the violation of their rights or an agent acting on behalf of the state may commit the violation.
All Human Right violations can be classified as Crimes and the State becomes accountable for any excess action or inaction. Wherever police does not follow the correct procedure in identifying the offender and brings to book a wrong person it is a Human Rights Violation. The investigation of a criminal case ends when the perpetrator of a crime is identified and found where as in a case of violation of Human Rights the investigation will continue till such time, the state takes proper action to prevent, investigate and prosecute human rights abuse. The Investigator of Human Rights cases should ensure that the police and the judiciary respect the law, exercise full judicial independence by prosecuting the persons involved in the crime even if they are politically or economically powerful.
In a democratic state, the police which play a very important role have to follow certain internationally accepted principles such as:-
1. It should be well oriented to operate in accordance with the principles of democracy.
2. It should be governed by a professional code of conduct.
3. Protection of life must be the highest priority for the police.
4. Police must serve the public and must be accountable to the public they serve.
5. Protection of life and property should be the primary function of police operations.
6. Police must conduct their activities with respect for human dignity and basic human rights of all persons.
7. Police must discharge their duties in a non-discriminatory manner.
The rights of a victim or an accused in India are protected by the entire Criminal Justice System which is defined and determined by the Indian Penal Code, Indian Evidence Act and the Criminal Procedure Code. The main intention is to ensure that, it is not only the Criminal is punished but the accused is not subjected to undue harassment. It was devised with the objective that the powers of the police and even the courts are restricted to ensure that no excesses occur either in the course of investigation or in the assessment on the seriousness of the offence. The due process of law, there fore constitutes one of the important elements of human rights concept and practice.
The Indian law contains a number of principles that are aimed at ensuring a fair amount of protection to its citizens. The most basic being the fundamental right enshrined in Article 21 of the constitution of India which says that nobody shall be deprived of life or personal liberty except by a procedure laid down by law. Since conviction in a Criminal case leads to deprivation of life or personal liberty, it means that the entire procedure by which a crime is tried and punished must be lawful, that is each and every aspect of the procedure must be laid down by the law and must be followed strictly. The trial and determination of guilt by a procedure which has no sanction in law even to a smallest extent would be considered violation of the fundamental right guaranteed in Article 21 of the constitution. Therefore the law which lays down the procedure must be just, fair and reasonable.
The Indian Penal code, Evidence Act and the Criminal Procedure code were enacted long before India got a constitution and the citizens got their fundamental rights. The intentions behind adopting this procedure is that in a criminal trial, the accused shall be presumed innocent until guilt is proved by the prosecution beyond any reasonable doubt.
Section 25 of the Indian Evidence Act says that confession made to a police officer is not valid as evidence against the person who made it, thus ruling out the possibility of torturing somebody in police custody and extracting a confession
To prove the guilt of the accused it is a common practice for the police in our country, resorting to torture in order to extract information from him because any object recovered as a consequence of the information given by the accused in police custody can be produced as evidence in the court according to Sec. 27 of IEA. This possibility provided by the law to the police has very often resulted in police using excessive force upon persons in their custody. It is here that human rights awareness and vigilance are required, for this custodial torture has frequently resulted in disablement and death of persons in police custody.
The law in order to counter this possibility has laid down in Sec. 330 and 331 of the Indian penal code that an act of torture to extract information is a criminal offence for which the police officer in question can be awarded with a punishment extending unto 10 years imprisonment, depending upon the seriousness of the injury caused.
The criminal procedure code, in order to prevent the possibility of torture of an arrested person in police custody made a provision in section 57 of the Crpc. wherein it says that any person arrested by the police must be produced before the nearest Judicial Magistrate as soon as possible, not exceeding 24 hours from the time of arrest excluding the time of travel.
With regard to the above provision, there has been a complaint from the police very often that, the provisions of this section leaves no time to interrogate the accused and therefore should have reasonable opportunity to interrogate the arrested person. The procedural law has taken this aspect into consideration and balanced it by firstly disallowing the police any opportunity of keeping the arrested person, in their custody in the name of interrogation prior to his being produced before a court and secondly by giving the court, the power under Sec. 167(2) of Cr.pc to handover the accused person to police custody for further interrogation. The provision gives the accused person an amount of protection stemming from the surveillance of the magistrate. The magistrate in his discretion can order for the production of the arrested person before the court every day or for the examination of the accused in private every day by a medical officer in the police station.
In spite of all the above provisions it has been commonly noticed that torture in the police custody is a serious problem which has made a mockery of the principles of fair and reasonable procedure in the investigation and trial of criminal cases. The police in a number of instances rarely follow the directive of Section 57 CrPC to produce the arrested person within 24 hours before the court. Any criticism of torture by the police is immediately countered with the argument that the protestors of custodial torture are accused of being more concerned about the rights of the criminals rather than with the victims of crime. Thus awareness of human rights, vigilance and protest are constantly necessary to prevent torture in police custody.
The problem of arrest by the police is another issue which needs to be given a serious thought as problems arise right at this juncture. The amount of force which needs to be used in effecting the arrest of a person in a criminal case often becomes a very hot topic for debate. The police is often accused of resorting to physical violence such beating or firing upon the person while taking him into custody merely because he is suspected of being guilty of a criminal offence, forgetting the cardinal principle of the criminal procedure that nobody is guilty of an offence in law merely because his guilt is suspected. The criminal procedure clearly defines in Sec.46 of the code the amount of force which can be used by the police while arresting a person who has not submitted to words and has exhibited restraint. Any force used by the police while making an arrest needs to be justified as per law but in common practice, the police apart from using unwarranted and unlawful violence at the very time of arrest also subjects the arrested person to violence in police custody.
Other commonly noticed violations of human rights noticed against the police are with regard to the deviation in the procedure adopted while conducting the search of a premises or a person which has attracted lot of criticism.
An analysis of the above provisions in law goes to show that the criminal law gives the police and the courts, the powers necessary to identify and punish those guilty of criminal offences and at the same time providing protection to the suspect in order to ensure that the innocent are not punished and the punishment is no more than what is sanctioned by the law.
Thus given the situation and prevailing conditions, it becomes the bounden duty of everyone that the rights guaranteed by the constitution are enjoyed by each and every citizen but all this requires human rights awareness and activism without which the rights can neither be achieved nor enjoyed by the citizen.