January 28, 2011

Constitutionality of anti beggary laws in India; rights of beggars

In a recent article in Asia Pacific Journal of Human Rights and Law, Ashish Goel discusses about criminalisation of beggary in India. He also criticizes the approach of Indian judiciary in dealing with the rights of beggars. 

January 27, 2011

Custodial Torture; Prevention of Torture Bill 2010

Prof. Kavita Singh

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India is the largest democratic country in the world. Yet, custodial torture remains a routine practice. The National Human Rights Commission (NHRC) in its Annual Reports recorded the custodial deaths of 16,836 persons or an average of 1203 persons per year during 1994-2008. "Torture" has not been defined in the Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word torture today has become synonymous with the darker side of the human civilisation.[2]

DEFINITION-

“In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is a physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law.”[3]


SUPREME COURTS GUIDELINE ON CUSTODIAL DEATHS

1.                  Police personnel should have visible and clear identification and name tags with their designations while effecting arrest and intro. Register should be maintained in Police Stations.
2.                  Memo of arrest at the time of arrest and such memo shall be attested by at least one witness. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
3.                  A person who has been arrested detained in police station for interrogation shall be entitled to have one friend.
4.                  The time, place of arrest and venue of custody of an arrestee must be notified by the police within a period of 8 to 12 hours after the arrest to near and dear ones of the arrestee.
5.                  The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6.                  An entry must be made in the diary regarding the arrest of the person with name of next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
7.                  The arrestee should be examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
8.                  The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors.
9.                  Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
10.              The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
11.              Information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Police control room should be provided at all district and state headquarters, where.
These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.

DOCTRINE OF SOVEREIGN IMMUNITY

Doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions of this Court in Rudul Shah and others in that line relate to award of compensation for contravention of fundamental rights, in the constitutional remedy under Articles 32 and 226 of the Constitution.

113 Law Commission Report

Law Commission in its 113th Report Suggested insertion Section 114 B After section 114A of the principal Act, the following section shall be inserted after 114 A for name the Presumption as to bodily injury while in police custody.[4] When a Police Office is to be prosecuted by the Prosecution for custodial death or torture Court would presume the torture was committed by the officer in whose custody the person was. The Court while deciding whether or not it should draw a presumption shall have regard to all the relevant circumstances as follows:
(a) the period of custody.
(b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence.
(c) the evidence of any medical practitioner who might have examined the victim
(d) evidence of any magistrate who might have recorded or attempted to record the victim’s statement.
The Indian Evidence Amendment Bill 2003 in Section 64 also tried to incorporate in the same line as law Commission but the Bill did not see the light of the day. Supreme Court in Shakila Abdul Gafur khan v Raghunath Dhoble,[5]  held that as the case could not be proved due to the delay in one year in filling of the private complaint in case of custodial death after State failed to register the offence due to non complaint of torture. Court expressed its disturbance over the partisan nature of State action in failing to register the FIR.

PREVENTION OF TORTURE BILL 2010

            India is a signatory to an International Convention Against Torture since 1975. In May 2010, after 35 years the government brought a Bill[6] in the Lok Sabha in tune with the Convention.[7] The lower House passed it. In the Rajya Sabha, the friction is over a clause that police and government officials who extract information from suspects ‘intentionally’ through physical or mental torture can be tried after prior ‘sanction’ from relevant authorities. No Court is empowered to cognizance of an offence under this law unless the complaint is made within six months from the date on which the offence is alleged to have been committed.  In criminal law case which are punishable with death, life imprisonment, imprisonment up to ten years, seven years five years or above three years are serious crimes and do not have time limit of taking cognizance by the Court. By putting limitation of six month the legislature are deviating from the general principles of criminal law. No court is empowered to take cognizance of an offence punishable under this law an offence committed by a public servant during the course of his employment, except with the previous sanction of Union Government, State Government or Competent appointing authority.[8]
            Section 3[9] of the Bill defines Torture. A public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act for the purposes to obtain from him or a third person such information or a confession which causes:
(i) grievous hurt to any person; or
(ii) danger to life, limb or health (whether mental or physical) of any person, is said to inflict torture:
Proviso to this section lays that nothing in this section shall apply to any pain, hurt or dangers caused by any act, which is inflicted in accordance with any procedure established by law or justified by law. In the name of procedure established by law or justified by law can State inflict torture is of grave concern.
Punishment for Torture is laid down in Section 4[10] of the Bill. Public servant or any person abetted by or with the consent or acquiescence of such public servant, tortures any person for the purpose of extorting from him or from any other person interested in him, any confession or any information which may lead to the detection of an offence or misconduct. Public servant or any person abetted by or with the consent or acquiescence of such public servant, tortures any person on the ground of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, shall be punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

  
CONCLUTION

Definition of torture is in consistent with the definition given in Convention against Torture.[11] Many acts presently punishable under the Indian Penal Code are not included in the Bill for example Section 330[12], 331[13], 348[14] Intention of the accused to commit torture is required to be proved this is not required under the Indian Penal Code or ordinary criminal law of the Country. Grievous hurt does not include mental suffering.[15] The Bill dilutes existing laws by imposing a time limit of six months and requiring prior government sanction for trying those accused of torture. Existing laws do not have such requirements. There is no independent authority to investigate complaints of torture, and no provision for granting compensation to torture victims has been made.  The 152nd Report of the Law Commission on ‘Custodial Crimes’ not taken in to consideration while drafting this Bill. No provision for compensation. The victims will not be able to get any relief. There is no independent authority to investigate complaints of torture, and no provision for granting compensation to torture victims has been made in the Bill. To sum up in the words of Justice V.R.Krishna Iyer,

‘the old penal blinkers and judicial limitations no longer operate now that human rights have achieved a fair amount of attention. The road is long, and not everyone looks upon human rights with the same positivity. It is recognized, however, that the true manifestation of a country's civilization is measured by the completeness of the relief and the comprehensiveness of the habilitation that criminal justice affords to all affected sections- those who are the victims of crimes and offences and those who have been punished, are serving their sentences and then are realized to return to society as law abiding citizens.’




[1] Olmstead v. U.S. (1928) 277 US 438.
[2] D. K. Basu v State of WB, AIR 1997 SC 610
[3] Ibid, PARA 12 OF D.K. Basu Case.
[4] Law Commission 113th Report, Section 114B in Indian Evidence Act, (1) In a prosecution of a police officer for an offence committed by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the Court may presume that the injury was caused by the police officer having custody of that person during that period.
(2) The Court, in deciding whether or not it should draw a presumption under sub-section (1), shall have regard to all the relevant circumstances including, in particular,
(a) the period of custody;
(b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence;
(c) the evidence of any medical practitioner who might have examined the victim; and
(d) evidence of any magistrate who might have recorded or attempted to record the victim’s statement .”
(3) For the purpose of this section, the expression ‘police officer’ includes officers of the para-military forces and other officers of the revenue, who conduct investigation in connection with economic offences.”
[5] (2003) 7 SCC 749.
[6] Prevention of Torture Bill, 2010, Bill No. 58 of 2010.
[8] Section 6 of the Prevention of Torture Bill, 2010, “ No court shall take cognizance of an offence punishable under this Act, alleged to have been committed by a public servant during the course of his employment, except with the previous sanction,—
(a) in the case of a person, who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person, who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.” 
[9] Section 3 of the Prevention of Torture Bill, 2010, “Whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act for the purposes to obtain from him or a third person such information or a confession which causes,—
(i) grievous hurt to any person; or
(ii) danger to life, limb or health (whether mental or physical) of any person,
is said to inflict torture:
Provided that nothing contained in this section shall apply to any pain, hurt or danger as aforementioned caused by any act, which is inflicted in accordance with any procedure established by law or justified by law.
Explanation.—For the purposes of this section, 'public servant' shall, without prejudice to section 21 of the Indian Penal Code, also include any person acting in his official capacity under the Central Government or the State Government.”
[10] Section 4 of the Prevention of Torture Bill, 2010, Where the public servant referred to in section 3 or any person abetted by or with the consent or acquiescence of such public servant, tortures any person—
(a) for the purpose of extorting from him or from any other person interested in him, any confession or any information which may lead to the detection of an offence or misconduct; and
(b) on the ground of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, shall be punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

[12] Section 330 of Indian Penal Code, herein after referred as IPC, Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, shall also be liable to fine.
[13] Section 330 of IPC, Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security, or to satisfy any claim or demand or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
[14] Section 348 of IPC, Whoever wrongfully confines any person for the purpose of extorting from the person confined or any person interested in the person confined any confession or any information which may led to the detection of an offence or misconduct, or for the purpose of constraining the person confined or any person interested in the person confined to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
[15] Section 320 of IPC, Grievous hurt- The following kinds of hurt only are designated as "grievous"

First. - Emasculation.

Secondly. - Permanent privation of the sight of either eye.
Thirdly- Permanent privation of the hearing of either ear.
Fourthly. - Privation of any member or joint.
Fifthly. -Destruction or permanent impairing of the powers of any member or joint.
Sixthly. - Permanent disfiguration of the head or face.
Seventhly. - Fracture or dislocation of a bone or tooth.
Eighthly. - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Section 322 of IPC, Voluntarily causing grievous hurt-Whoever voluntarily causes hurt, if the hurt which the intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt". Explanation. - A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind; he actually causes grievous hurt of another kind.