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Rights, Reforms and Justice

An Essential Handbook Handbook of Human Rights and Criminal Justice in India: The System and Procedure compiled by South Asia Human Rights Documentation Centre; Oxford University Press, 2005;

Rights, Reforms and Justice

An Essential Handbook

Handbook of Human Rights and Criminal Justice in India: The System and Procedure

compiled by South Asia Human Rights Documentation Centre; Oxford University Press, 2005; pp 209, Rs 595.

K S SUBRAMANIAN

T
his handbook fills a “gaping void” in the Indian legal literature as noted by A G Noorani who provides a succinct foreword. It is the brainchild of the redoubtable Ravi Nair, executive director of the South Asia Human Rights Documentation Centre (SAHRDC), New Delhi, an organisation, which has acquired a solid reputation in the field of documentation of human rights violations in the region and has “Special Consultative Status” with the UN Economic and Social Council (ECOSOC). Noorani opines that Nair’s “scholarship and thoroughness in research” lives up to the highest standards set by civil libertarians the world over. The painstaking compilation thus constitutes verily a primer on civil liberties in India. Lucidly written, it is a textbook for students and a guide to journalists and citizens. The plentiful citations of Supreme Court and other cases in the volume makes it a valuable reference volume for trial lawyers, judges and human rights activists. As a further merit, the volume takes adequate note of the critical importance of the role of the police in the Indian polity, which is ostensibly governed by a “rule of law” regime; it throws an illuminating light on criminal procedure and criminal law in the context of human rights.

Economic and Political Weekly February 18, 2006

A practical guide to the Indian criminal justice system, the handbook provides an overview of the Criminal Procedure Code (CrPC) and explains the provisions and rules that the police and the courts must follow while dealing with criminal complaints. It delineates the organisational structure of the police and the judiciary and their functions in the criminal justice system. Drawing attention to the implications of errors and omissions that occur in the course of investigation and trial processes, it identifies the remedies to be found within the Code and in the Constitution of India. It explains the rights of citizens and non-citizens in situations involving arrest, police investigations, and the processes of bail, search, interrogation and trial. The handbook includes a section on the significance of the proposed Code of Criminal Procedure (Amendment) Act, 2005; a glossary of the often-used legal terminology; and the First Schedule of the Code of Criminal Procedure on Classification of Offences under the Indian Penal Code (IPC), which is essential to an understanding of the nature of the offences, punishments prescribed, whether the offences are “cognisable” or “non-cognisable”, and which cases are triable by what court. The introductory section explains human rights, the international law and civil and political rights. While there are two separate kinds of rights, economic, social and cultural rights and civil and political rights, the handbook is devoted exclusively to the latter since they are the rights often subjected to abuse in the criminal justice process. Justice Felix Frankfurter, as noted by Noorani, has rightly observed that “the history of liberty has largely been the history of the observance of procedural safeguards”. The knowledge of the law relating to procedural safeguards for individual liberty is, therefore, of the utmost importance in liberal democracies. This handbook performs a signal service by explaining this law.

It is worth noting here that while the law represents a society’s consensus for the regulation of human activity in various fields often by the deployment of state power, which need not necessarily be violent or be backed by threat of force, it is a fact that expressions such as “law and order”, “public order” or “security of state” often enable the state to employ state violence with impunity. The police frequently use indiscriminately the provisions of Section 144 of the CrPC to disperse so-called unlawful assemblies even when the demands made by the members of the assembly, often composed of the rural and urban poor, are legitimate and lawful such as the payment of minimum wages, the implementation of rural development projects, protection of civil rights and so on. The law in India does not provide any guidelines for the use of force to deal with such assemblies except to say that minimum force should be used when such use of force can often lead to loss of life and liberty guaranteed under Article 21 of the Constitution. Those in authority often tend to view as “incipient insurgency” moderately radical social movements that seek minimum social, legal and human rights guaranteed under the Constitution and the general and specific laws of the land. They fail to separate the ideological postulates of the movement itself from its concrete socio-economic demands,

National Universityof Singapore

Asia Research Institute

POSITIONS AT THE ASIA RESEARCH INSTITUTE NATIONAL UNIVERSITY OF SINGAPORE

Applications are invited for a 3 month (Senior) Visiting Research Fellowships at the Asia Research Institute (ARI), National University of Singapore to commence on 2 January 2007, 2 April 2007, 2 July 2007.

The positions are intended for outstanding active researchers on Asian topics, with a balance anticipated between senior and junior, the Asian region and the world. At least one published outcome is expected, and applicants who do not normally publish in English will be encouraged and assisted to do so. Interdisciplinary interests are encouraged. “Asia” as a research field is defined loosely in terms of the region in which Singapore is positioned.

Interested applicants are invited to consult our website at www.ari.nus.edu.sg for application details.

Closing date: 31 May 2006

Address for applications and references: Human Resources

Asia Research Institute

National University of Singapore AS7, Level 4, 5 Arts Link, Singapore 117570 Fax: (65) 6779 1428 Email: joinari@nus.edu.sg

Economic and Political Weekly February 18, 2006

which may be legal and legitimate. Thus, in a developing society such as India, “developmental” conflicts often lead to the greatest human rights violations. This dimension needs to be kept in view while reading the various laudable provisions of the law enumerated in the handbook.

Role of NHRC

Significant in connection with the publication of this volume, is the emergence of the National Human Rights Commission (NHRC) in 1993, which largely coincided with the publication of the celebrated Amnesty International report on custodial violence and torture in India: the report had gone into over 400 cases of custodial violence and had concluded that in a majority of cases the victims of torture in police custody belonged to the most vulnerable sections of the community such as SCs and STs; tribal women in the north-east; migrant workers; and landless labourers. The main reason why torture continued to be practised by the Indian police on a wide scale was that they perceived themselves to be “immune”. Amnesty placed the blame for the distressing situation on inadequate and halfhearted measures to punish the guilty.

One may feel that NHRC has gone some way in filling a gap in the national political response to the distressing human rights situation highlighted in such reports as that of Amnesty by at least seeming to respond, if not being fully effective, in dealing with them. The NHRC has its own built-in handicaps and weaknesses noted in its annual reports. On completion of the 10th year of its existence in 2003, the commission reviewed its evolution and principal concerns. A body initially viewed with “unconcealed scepticism”, the commission claimed to have evolved into one that was seen as an “instrument of good governance”. The number of complaints received and acted upon during the 10year period had totalled over 3,75,700 indicating the increasing awareness of their rights on the part of the people of India. This had led to a deepening of the meaning of democracy and had promoted a feeling that the rule of law, justice and the protection of human rights were the heart and soul of the democratic enterprise. In a major intervention on the human rights situation in Gujarat, the commission in 2003, had filed a special leave petition in the Supreme Court of India appealing for the setting aside of the judgment of the trial court in the Best Bakery case and the ordering of a re-trial in a competent court located outside the state. It had also prayed that guidelines and directions be issued for the protection of witnesses and victims of crime in criminal trials, which must be adhered to by the prosecuting and law enforcement agencies as well as the subordinate judiciary, thus enhancing the efficacy of the criminal justice delivery system. On the vexed issue of terrorism, the commission had argued that those in authority must take the greatest care to ensure that counter-terrorism measures do not mutate into measures that cloak or justify the violation of human rights.

Further, in order to promote the “better protection” of human rights, the NHRC, in its sixth year, had made a comprehensive assessment of the need for structural changes and amendments in the Protection of Human Rights Act 1993. However, the proposals were still pending consideration since the government felt that they were “very sensitive and had far-reaching consequences”. Principal among these were the proposal to re-define the term “armed forces” in such a way as to include only the “naval, military and air forces” and to exclude the central paramilitary police forces whose role performance could be looked into by the NHRC; to expand the definition of “international covenants” to include, not just the International Convention on Civil and Political Rights, 1996 and International Convention on Economic, Social and Cultural Rights, 1996 but “any other Covenant or Convention which has been, or may hereafter be, adopted by the General Assembly of the UN”; to rectify the procedure to be followed with respect to the armed forces, which had resulted in instances of lack of accountability and even of opacity in dealing with allegations of human rights violations; to avoid delay in the presentation of the annual reports of the Commission to Parliament and consequent delay in making the reports available to the public; to empower the NHRC to acquire “over-arching ability to oversee issues of human rights violations and their remedies”; to provide the NHRC powers of superintendence to prevent the adoption of “erroneous positions on human rights violations” by other constitutional bodies and commissions; to empower the commission to take cognisance of matters even after the expiry of the one year of a case as presently provided; and to provide, finally, for the NHRC to establish uniformity in respect of the handling of cases that raise similar issues.

Human rights commissions do not resolve political crises. In this sense, the setting up of the NHRC may be viewed as having been a palliative and a rhetorical device to deflect criticism of state inaction or worse, state complicity, as human rights violations grow apace in a situation of increasing dissonance, conflict and violence in society. The professionalism, impartiality, dedication and commitment to rule of law on the part of the police, always problematic, took a nosedive during the events at Ayodhya (1992), Mumbai (1993) and above all, during the massive state-sponsored violence in Gujarat (2002), which witnessed a total collapse of the criminal justice system, putting, as it were, justice itself on trial.

Police Reforms

The issues of the rule of law and the role of the police in independent India had come to a crisis point as early as the mid1970s with the Emergency. The accounts of police atrocities during those dark days were documented by the Shah Commission of Inquiry, which, however, did not suggest any concrete remedies. The Janata regime in 1977 set up the National Police Commision (NPC) and the L P Singh Committee to look into the misuse of the Intelligence Bureau (IB), the Central Bureau of Investigation (CBI) and the Research and Analysis Wing (RAW). These bodies came out with several concrete recommendations along with a legal framework and a charter of duties for the IB. These were ignored by the Congress government, which returned to power in New Delhi in 1980.

The communal violence of the 1990s followed by the Gujarat massacre of 2002, lent urgency to police reforms while civil society itself, where the reform calls originated, became, in the meanwhile, further polarised and violent. Reform committees followed each other in succession starting with the public interest petition to the Supreme Court of India by Prakash Singh and another in 1996, the Julio Ribeiro Committee of 1998, the Padhmanabiah Committee of 1999, the Malimath Committee of 2000, the several recommendations of the NHRC, all of them leading to the setting up of the Soli Sorabji Committee of 2005, which is still at work! Committees, it seems, are indispensable if no decisions are to be taken!

Economic and Political Weekly February 18, 2006

The current discussions on police reforms organised in New Delhi and elsewhere by prominent NGOs, however, appear largely elitist and top-down, not going into the problem of the constabulary at the bottom which constitutes over 90 per cent of the total police personnel. Most policemen in India are recruited as constables and retire as constables; a large number of the human rights violations, which take place in India, occur at this level of the police hierarchy. Structural changes in police organisation at the lowest levels are thus equally, if not more important than, the currently debated changes at the higher levels of the organisation.

EPW

Email: kssubramanian_1999@yahoo.com

Economic and Political Weekly February 18, 2006

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