CHAPTER-5

ROLE OF POLICE AND JUDICIAL RESPONSE

It is no part of an official’ s duty to commit an offence and never can be.790

The police is charged with the responsibility of maintaining order and enforcing
laws. Therefore, the onus of bringing those who break the law, including laws
which protect peoples’ human rights before the criminal justice system lies on the
police. Governance means respect for human rights. In a democratic society, it is
the responsibility of the State to protect and promote human rights. All State
institutions whether they are the police department, the army, the judiciary or civil
administration have a duty to respect human rights, prevent human rights
violations, and take active steps for the promotion of human rights. The role of the
police is especially significant in this respect.

Unfortunately, while discharging this duty, due to various reasons the

actions of the police conflict with Constitutional and Statutory rights, the police as
protectors of the law have both a legal duty and a moral obligation to uphold
human rights standards and act strictly in accordance with the law and the spirit of
our Constitution.

The Constitution, the supreme law of our country, entitles everyone living
in India to protection of their human rights.791 The Supreme Court and various
High Courts have time and again, explained and elaborated the scope of
Fundamental Rights. The Supreme Court has strongly opposed intrusions upon the
accused by the agents of the State. The Court has laid down certain directives for
law enforcement. These directives deal with various aspects of police work at the
station house level and the senior officers. The Constitution guarantees certain
rights of an accused person viz. grant of bail; questioning of a suspect; and

790
Ratan Lal & Dhirajlal, Code of Criminal Procedure 636 (Wadhwa & Company, Nagpur,
2002).
791
Part III, the chapter on Fundamental Rights, which is referred to as the heart of
Constitution, guarantees basic human rights to all. It pledges that the State will safeguard
human rights and will protect citizens from undue invasions on their liberty, security and
privacy.

267
protection of the rights of women, poor and the disadvantaged. They also have the
force of law.792 An officer who wilfully disobeys the law is liable to be prosecuted
under relevant provisions of the Indian Penal Code and under the Contempt of
Courts Act, 1971.

The National Human Rights Commission addresses violations of human

rights by recommending registration of criminal cases against the guilty;
disciplinary action against errant officers; and payment of compensation to the
victims. Because an overwhelming majority of complaints received by the
National Human Rights Commission concern the police, the Commission has
made it mandatory to report any case of custodial death or rape within 24 hours
and to provide it with a video-film of the post-mortem examination. The National
Human Rights Commission (NHRC) has issued guidelines for police officers.793
The Commission has also issued guidelines to the police on encounter deaths; lie
detector tests; arrest; and police-public relations. Guidelines of the National
Human Rights Commission are increasingly being accorded a positive
interpretation by the Courts. This means that officers accused of violating human
rights may be called upon to explain why these guidelines were not followed.

The Immunity 794 of the Code of Criminal Procedure (CrPC) 795 only
applies to acts done in the discharge of official duty. Assaulting a suspect during
investigation; fabricating a false case; using abusive or threatening language;
demanding a bribe; or indulging in unruly conduct’ are not a part of official duty.

Therefore the question arises how far the Government is liable for the police
atrocities violating the constitutional and legal norms and to what extent the
judiciary has controlled and curbed the irresponsible and illegal action of the
police officials, which are perpetrated by them during the course of the
792
In P.L.O Corp v. Labour Court, (1990) SCC 632, it has been held that this article
recognises the role and power of the Supreme Court to alter the law and in the course of
performing this function, interpret legislation in such a manner that it may be harmonised
with social changes.
793
The Commission has been established under a special Act of Parliament to protect and
promote Human rights of all people living in India.
794
Protection under section 197 of the Code of Criminal Procedure,1973.
795
Immunity from prosecution for public servants without prior sanction of the government/
appointing authority for any offence alleged to have been committed in the discharge of
official duty.

268
performance of their duties.

This is discussed under the following heads:-

The Plea of the Immunity of the Sovereign.

Judicial Activism.
National Human Rights Commission .
National Commission for the Scheduled Castes.
National Commission for the Schedule Tribes
National Commission to Review the Working of the Constitution.
Justice Malimath Committee Report .
The Law Commission Report of the Law Commission.
Role of Public Interest Litigation.
Role of N.G.Os.

The Plea of Sovereign Immunity

In N. Nangendrarao & Co. v. State of A.P.796 while dealing with power of

the Government under section 6-A and 6-A (2) of the Essential Commodities Act,
1955, the Supreme Court of India elaborately discussed the meaning and the
concept of sovereignty and the Supreme Court declared that after the
commencement of the Constitution of India, 1950; or prior to it the distinction
between the sovereign and non sovereign power is not relevant. The Court
observed that the concept of sovereignty underwent a drastic change and
sovereign immunity has no relevance today. Further, in the opinion of the
Supreme Court, the doctrine of sovereignty as pronounced by the theorists in the
medieval period has undergone radical changes. Nowadays sovereignty vests in
the people. Thus, the old and archaic concept of sovereignty does not survive in
the traditional four comers and now people are real sovereign in a set-up where
the Executive, legislature, and Judiciary have been entrusted with their respective
functions to serve the people.797

The doctrine of sovereign immunity completely negates the fundamental

human rights. The doctrine of sovereign immunity is not in synthesis with the
republican polity in India but it also incompatible with the principles of human

796
AIR 1994 SC 2663. 69
797
AIR 1997 Journal Section, pp. 170-171

269
rights jurisprudence. The Supreme Court now does not take cognizance of the
doctrine of sovereign immunity while deciding cases involving violation of any
fundamental rights, it has awarded compensation in number of cases to the
aggrieved persons whose fundamental rights have been violated, such as, in
Nilabati Behara v. State of Orissa.798 In the case of Nilabati Behera v. State of
Orissa, the Supreme Court made this point clear when it observed; “it may be
mentioned straightway that award of compensation in a proceeding under Article
32 by this court or by the High Court under Article 226 of the Constitution is a
remedy available in public lens based on strict liability of contravention of
fundamental rights to which the sovereign immunity does not apply; even though
it may be available as a defence in private law in an action based on tort.”
According to this doctrine, liability of the state for violation of human rights is
absolute and admits of no exception such as sovereign immunity. The Supreme
court has maintained the same interpretation in Bhim Singh v. State of J&K.799,
Saheli and others v. Commissioner of Police, Delhi800 and Rudal Shah v. State of
Bihar. 801 The Supreme Court of India has been judiciously responding to the
situation by giving a decent burial to the doctrine of Absolute Sovereign
Immunity. The doctrine of 'the king can do no wrong' has been interpreted as 'the
king shall do no wrong' and in a number of landmark decisions the Supreme Court
of India has been providing relief to the needy.

Judicial Activism

Mentioned herein under are landmark Supreme Court Directives and

National Human Rights Commission Guidelines802.

In the case, State of Haryana v. Bhajan Lal & Others803 which dealt with
Registration of FIR, the brief facts of which are:

798
AIR 1993 SC 1960.
799
AIR 1986 SC 494.
800
AIR 1990 SC 513.
801
AIR 1983 SC 1086.
802
Human Rights and Policing: Landmark Supreme Court Directives & National Human
Rights Commission Guidelines. by Mandeep Tiwana
803
AIR 1992 SC 604.

270
 A First Information Report (FIR)804 was registered by the Haryana Police
against Ch. Bhajan Lal, on a complaint by a private person that he possessed
assets disproportionate to his known sources of income. Bhajan Lal, the then
Union Minister and former Chief Minister of Haryana went to the High Court
asking for the FIR to be cancelled, saying that it was registered because of the
political rivalry that existed between Ch. Devi Lal, the then existing Chief
Minister of Haryana and him.

The High Court ordered cancellation of the FIR and all proceedings
undertaken on its behalf, on the ground that the allegations did not make up a
cognizable offence 805 to start a lawful investigation. The State of Haryana
appealed to the Supreme Court against the order of the High Court.

The Supreme Court said that the order of the High Court cancelling the
FIR was bad both in law and on the facts. They asserted that everyone, whether
individually or collectively, must abide by the law and even the judiciary cannot
interfere with the investigation process unless police officers improperly and
illegally “exercise their investigatory powers. However, the Supreme” Court
cautioned “that where a police officer transgresses the circumscribed limits” and
causes serious prejudice to the personal liberty and the property of a citizen,
Courts will step in and issue appropriate orders.

The Code of Criminal Procedure, 1973 806 , says that if any information
disclosing a cognizable offence is given at the police station, the officer in-charge
must register it. The Supreme Court asserted that it is not open to the police to
question the reasonableness or credibility of the information at this stage. An FIR
should be registered immediately and even before proceeding with a preliminary
investigation.

804
First Information Report is the earliest and first information that is received about the
commission of a cognizable offence. It sets the ball of the criminal justice process rolling.
805
Cognizable offences are mentioned in the First Schedule of the Code of Criminal
Procedure, 1973. Section 2 (c) of Code of Criminal Procedure defines cognizable offence
as an offence, in which a police officer can arrest a person without a warrant. In practice,
cognizable offences are’ offences in which a police officer can register a ’case and start
an investigation without a magistrate s order and carry out an arrest without a
Magistrate’s warrant.
806
Section 154(1) of the Code of Criminal Procedure,1973.

271
 The Court also commented on Section 157, Code of Criminal Procedure
which says that two conditions must be satisfied before a police officer starts an
investigation:

(i) S/he should have “reason to suspect” the commission of a

cognizable offence. The reason to suspect must arise from the
allegations made in the first information given to a police officer
and at this stage the question of adequate proof of facts alleged in
the FIR does not arise.

(ii) S/he should satisfy her/himself about the “credibility of the

information”. A police officer’ has to draw his (her) satisfaction
(about the credibility of information ) only on materials which were
placed before him(her) at that” stage namely the first information
together with the documents, if any, enclosed.

The Supreme Court issued the following directives:

1. An FIR must be registered as soon as information about a

cognizable offence is received.

2. Before starting an investigation, police officers should make a

“rational inference” that a cognizable offence has been committed.
The inference should be made solely on the basis of facts
mentioned in the FIR.

3. Courts will not as a rule interfere in the investigation process

except in the following circumstances when the High Court807 can
cancel the FIR and other proceedings carried out by the police:

(i) Where the allegations in the FIR do not constitute any

cognizable offence or justify an investigation by the police.

(ii) Where the allegations made in the FIR and the evidence
collected by the police in support of the allegations do not
point towards the guilt of the accused.

807
By issuing a writ to protect the fundamental rights of a person under Article 226 of the
Constitution or by using its powers under Section 482 of the Code of Criminal
Procedure, 1973 to prevent abuse of Court process or secure the ends of justice.

272
 (iii) Where investigation has been carried out by the police in a
non-cognizable offence808 without the order of a magistrate.

(iv) Where the Code of Criminal Procedure or any other law

expressly prohibits carrying out criminal proceedings
against the accused.

(v) Where criminal proceedings have been started with

dishonest intent to take revenge from the accused.

It also observed that Non-registration of First Information Reports (FIR) is

one of the most serious, frequent and common grievances against the police. This
problem is compounded when the person against whom a complaint is made is
rich and powerful. Article 14 of the Constitution guarantees to all persons equality
before the law and equal protection of the laws within the territory of India. Police
officers must register an FIR immediately on receiving information about a
cognizable offence. Persons aggrieved by non-registration of FIR can approach
the District Superintendent of Police809 or the concerned Magistrate810 to get their
complaints registered. Alternatively complaints in this regard can also be filed
before the National or concerned State Human Rights Commission.

In the case State of West Bengal v. Swapan Kumar Guha &

Others 811 ,relating with the basis of investigation the brief facts of which are
that812:

Sanchaita Investments of Calcutta was offering extraordinarily high rates

of interest to attract cash deposits from the public. The Commercial Tax Officer,
Bureau of Investigation suspected some fraud was being committed. He asked the
police to register a First Information Report on the grounds that such high rates of
interest could not be sustained, therefore the deposit scheme was being promoted

808
Non-cognizable offences are mentioned in the First Schedule of the Code of Criminal
Procedure, 1973. Section 2 (1), Code of Criminal Procedure defines non-cognizable
offence as an offence, in which a police officer has no authority to arrest without a
warrant. In practice, non-cognizable offences are offences in which police cannot register
a case without a magistrate s order or carry out an arrest without a Magistrate’s warrant.
809
Section 154(3), Code of Criminal Procedure, 1973.
810
Section 156(3), Code of Criminal Procedure, 1973.
811
(1982) SCC 561.
812
Supra note 753 at 5.

273
with the intention of making quick or easy money, in violation of the Prize Chits
and Money Circulations Schemes (Banning) Act, 1978.

The police registered an FIR and started an investigation on the basis of

the Commercial Tax Officer’s suspicions. However, the High Court cancelled the
FIR and subsequent police proceedings, saying that they were illegal and without
jurisdiction. The State of West Bengal appealed to the Supreme Court against the
decision of the High Court.

The Supreme Court observed that the police do not have unfettered
discretion to start an investigation. Unlimited discretion, the Supreme Court said
is a ruthless destroyer of personal freedom. An investigation cannot be started on
mere unfounded suspicion. They emphasised that fundamental principles of
justice are based on the logic that the process of investigation cannot be used to
harass people against whom no offence is disclosed. Carrying out investigation
without a proper basis imperils the personal liberty and property of the individual,
which are sacred and sacrosanct.

The right of the police to conduct an inquiry must be conditioned by the

existence of reason to suspect the commission of a cognizable offence. Such
reason can be established only if facts in the FIR point towards an offence being
committed. The Supreme Court laid down that an FIR which does not allege or
disclose that the essential requirements of the penal provision are prima facie (on
the face of it) satisfied cannot form the foundation or constitute the starting point
of a lawful investigation.

This case also re-examined the question of when the Courts can interfere
in the investigation process. The Supreme Court said that if after considering all
relevant aspects, the Courts are satisfied that an offence has been committed; they
will allow the investigation to proceed without interference. However, “if no
offence is disclosed, Courts are under a duty to interfere and stop the
investigation” to prevent any kind of uncalled for and unnecessary harassment to
an individual.

274
The Supreme Court issued the following directives813:

1. It is essential before starting an investigation that facts mentioned

in the FIR disclose all the elements that go to make up a cognizable
offence.

2. Powers of investigation must be exercised in strict accordance with

constitutional guarantees and legal provisions.

3. Courts have a duty to intervene in the investigation process to

prevent harassment of individuals if their rights are being violated
and correct procedure is not being followed.

Police officers often find themselves under pressure to register cases on

flimsy grounds. The Supreme Court has laid down that a just balance has to be
struck between fundamental rights of citizens and the expansive power of the
police to investigate an offence.814 Subjecting a person to a police investigation on
the basis of vague and unverified information is a violation of fundamental rights.
It will only lead to censure and ordering of inquiry against the errant officer by the
Courts who are under a duty to ensure innocent people are not harassed by the
investigative process.

In the case T.T. Anthony v. State of Kerala815 relating to the investigation

of offences, the brief facts of which are816:

In a well-known incident in Kannur district of Kerala, five persons were

killed and several injured in police firing. The police fired in order to control
activists belonging to the opposition, protesting the visit of a minister in the ruling
UDF coalition. Cases were registered against eight named and many unidentified
persons belonging to the opposition party for creating the disturbances that led to
the police action. Meanwhile, due to public uproar, the UDF Government
instituted a judicial inquiry into the incident. In the intervening period, the UDF
lost the election and the opposition came to power. The report of the Commission

813
State of West Bengal v. Swapan Kumar Guha & Others (1982) SCC 561
814
T.T. Anthony v. State of Kerala, AIR 2001 SC 2637.
815
AIR 2001 SC 2637.
816
Supra Note 763.

275
of Inquiry, which was released after the new government came to power held the
Executive Magistrate and the Deputy Superintendent of Police responsible for the
deaths. The findings of the commission were accepted by the new government and
cases were registered against the Executive Magistrate and the police officials
involved in the firing. The Executive Magistrate and the police officials appealed
to the Supreme Court after the High Court turned down their request for
cancelling the cases against them.

The appeals raised two significant questions of law:

(i) whether a second First Information Report (FIR) can be registered

in respect of an offence that has already been registered, and if it
can form the basis of a fresh investigation;

(ii) Whether the report of a Commission of Inquiry into the same

incident is binding upon the investigating agency.

The Supreme Court gave the following observations817:

(i) FIR (First Information Report) is the record of the information

received first in time and is written and registered on the basis of
that information. In other words, it is the record of the earliest
information received about a cognizable offence. Therefore, the
Supreme Court affirmed that the question of having a second FIR
does not arise.

However, it is possible that more than one piece of information

may be received from time to time and from different people in
respect of the same’ incident. In such a situation, the Court
clarified, that before submitting the Magistrate’s report, the officer
in charge of a police station must investigate not merely the
cognizable offence reported in the FIR but also other connected
offences found to have been committed in the course of the same
transaction or the same occurrence. They said that, if after filing
the investigation report before the magistrate, the investigating

817
T.T. Anthony v. State of Kerala AIR 2001 SC 2637.

276
 officer comes across further information or material, he (she) need
not register a fresh FIR, he (she) is empowered to make further
investigation, normally with the leave of the Court to collect
further evidence.

(ii) The Supreme Court said that the police is not bound by the findings
of a Commission of Inquiry. The government for varied reasons of
its own sets up a Commission of Inquiry and it is for them to
endorse or reject the findings or recommendations. However, the
police as an independent investigating agency of the State must act
only in accordance with the law and on the evidence before it.
Nevertheless the police can take advantage of the facts and findings
of a Commission of Inquiry as a factor in its own investigations but
the findings should not preclude the investigating agency from
forming a different opinion if the evidence obtained by it supports
such a conclusion.

The Supreme Court issued the following directives:

1. There can only be one FIR in respect of an incident.

2. If any additional information is received after the FIR is registered,

the police can investigate on it and mention the result in the report
to the magistrate818 submitted by the investigating officer.

3. If the investigating officer comes across any evidence after the

report to the magistrate has been sent, s/he can carry out further
investigation and send supplementary reports to the magistrate.

818
Section 173 (2)(i) Criminal Procedure Code, 1973, requires the officer in charge of a
police station to forward a report to the authorised magistrate in the prescribed form as
soon as an investigation is completed. Section 173(8) says that nothing in this Section
shall be deemed to preclude further investigation in respect of an offence after a report
has been filed before the magistrate. It also categorically says that after the report has
been forwarded to the magistrate, if the officer in charge of the police station obtains
further evidence, oral and documentary, s/he should forward report/s to the magistrate
about the evidence.

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 4. Report of a Commission of Inquiry is not binding upon the
investigating agency. The investigating agency can form a different
opinion on the basis of evidence collected by it.

Registration of more than one FIR in respect of a particular incident has

been disallowed by the Supreme Court. However, if any additional information is
received in connection with the incident, it should be recorded under Section 161
of the Code of Criminal Procedure, 1973,819 and mentioned in the charge-sheet.
The Supreme Court has categorically said that the police is under a duty to
investigate not only the cognizable offences that are made out in the FIR but also
any other offences that may have been committed in the same incident or
transaction.

The facts of case dealing with the Right against Self Incrimination titled
as Nandini Satpathy v. P.L. Dani820 are821:

Nandini Satpathy, former Chief Minister of Orissa, against whom a case

had been registered under the Prevention of Corruption Act, was asked to appear
before the Deputy Superintendent of Police (Vigilance) for questioning. The
police wanted to interrogate her by giving her a string of questions in writing. She
refused to answer the questionnaire, on the grounds that it was a violation of her
fundamental right against self-incrimination. The police insisted that she must
answer their questions and booked her under Section 179 of the Indian Penal
Code, 1860, which prescribes punishment for refusing to answer any question
asked by a public servant authorised to ask that question.

The issue before the Supreme Court was whether Nandini Satpathy had a
right to silence and whether people can refuse to answer questions during
investigation that would point towards their guilt.

819
This Section authorises an investigating officer to orally examine any person acquainted
with the facts and circumstances of the case. Section 161 (2) obliges such person to
truthfully answer all questions relating to the case put by the investigating officer except
those which expose her/him to a criminal charge, penalty or forfeiture. Section 161
(3) empowers the investigating officer to reduce into writing any statement made
to her/him in the course of investigation. It also casts a duty on the investigating officer to
make a separate and true record of the statement that s/he has reduced into writing.
820
AIR 1978 SC 1025.
821
Supra Note 767 at 9.

278
The Supreme Court gave the following observations:

Constitution822 lays down that no person shall be compelled to be a witness

against her/himself. Section 161(2) of the Code of Criminal Procedure, 1973, casts
a duty on a person to truthfully answer all questions, except those which establish
personal guilt to an investigating officer.

The Supreme Court accepted that there is a rivalry between societal

interest in crime detection and the constitutional rights of an accused person. They
admitted that the police had a difficult job to do especially when crimes were
growing and criminals were outwitting detectives. Despite this, the protection of
fundamental rights enshrined in our Constitution is of utmost importance, the
Court said that in the interest of protecting these rights, we cannot afford to write
off fear of police torture leading to forced self incrimination.
While any statement given freely and voluntarily by an accused “person is
admissible and even invaluable to an investigation, use of pressure whether subtle
or crude, mental or physical, direct or indirect but sufficiently substantial by the
police to get information is not permitted as it violates the constitutional guarantee
of fair procedure.” The Supreme Court affirmed that the accused has a right to
silence during interrogation if the answer exposes her/him into admitting guilt in
either the case under investigation or in any other offence. They pointed out that
ground realities were such that a police officer is a commanding and authoritative
figure and therefore, clearly in a position to exercise influence over the accused.
The Supreme Court gave the following directives

1. An accused person cannot be coerced or influenced into giving a

statement pointing to her/his guilt.

2. The accused person must be informed of her/his right to remain

silent and also of the right against self incrimination.

3. The person being interrogated has the right to have a lawyer by

her/his side if s/he so wishes.823

822
Article 20(3) of the Constitution of India.
823
This has been clarified/modified in D.K Basu v. State of West Bengal, AIR 1997 SC 610.
The Supreme Court has said that the arrestee (arrested person) may be permitted to meet

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 4. An accused person must be informed of the right to consult a
lawyer at the time of questioning, irrespective of the fact whether
s/he is under arrest or in detention.

5. Women should not be summoned to the police station for

questioning in breach of Section 160 (1) Code of Criminal
Procedure.824

An essential element of a fair trial is that the accused cannot be forced to

give evidence against her/ himself. Forcing suspects to sign statements admitting
their guilt violates the constitutional guarantee against self incrimination 825 and
breaches provisions of the Code of Criminal Procedure, 1973. 826 It is also
inadmissible as evidence in a Court of law.827 In addition, causing hurt828 to get a
confession is punishable by imprisonment up to seven years.829

The facts of Peoples Union for Civil Liberties (PUCL) v. Union of India
and Another830 which deals with the issue of telephone tapping are831:

The People’s Union for Civil Liberties (PUCL) filed a writ petition with
the Supreme Court challenging the constitutional validity of Section 5(2) of the
Indian Telegraph Act, 1882, which authorises the government to intercept
messages on the occurrence of any public emergency or in the interest of public
safety if it is satisfied that it is necessary or expedient to do so in five given

his lawyer during interrogation, though not throughout the interrogation. However, the
National Human Rights Commission in its guidelines dated November 22, 1999 has
insisted that, the person arrested should be permitted to meet his (her) lawyer at any
time during the interrogation.
824
Children below 15 and women should not be summoned to the police station or to any
other place by an investigating officer. They should only be questioned at their place
of residence.
825
Under Article 20 (3) Constitution of India.
826
Section 162 (1) Code of Criminal Procedure, 1973, directs that a statement made to a
police officer during investigation should not be signed by the person making it.
827
Section 25, Indian Evidence Act, 1872.
828
Section 319 of the Indian Penal Code, 1860 defines ‘hurt’ as causing bodily pain, disease
or infirmity to any person.
829
Section 330, Indian Penal Code 1860.
830
AIR 1997 SC 568.
831
Supra note 772 at11.

280
situations.832 PUCL approached the Court on the basis of a report on tapping of
politicians telephones by the Central Bureau of Investigation (CBI). It asked for
the provisions of Section 5(2) to be interpreted in the light of fundamental rights
and read down to include procedural safeguards that would discount arbitrariness
and prevent indiscriminate phone tapping by law enforcement or investigating
agencies.

The Supreme Court Observations are:

The right to have a telephone conservation in the privacy of one’s home or

office is part of the Right to Life and Personal Liberty enshrined in the
Constitution833, cannot be curtailed except according to the procedure established
by law. The Supreme Court asserted that telephone tapping amounts to an
invasion of privacy in violation of this core right.

The Freedom of Speech and Expression guaranteed by Article 19 of the

Constitution includes the right to express one’s convictions and opinions freely by
word of mouth. When a person is talking on the telephone s/he is exercising this
freedom.

Article 17 of the International Covenant on Civil and Political Rights,

1966 expressly forbids arbitrary interference with privacy, family, home or
correspondence and stipulates that everyone has the right to protection of the law
against such intrusions. The Supreme Court affirmed that international law, if it
does not conflict with national legislation will be deemed as municipal
(domestic/national) law.

Elaborating the Indian Telegraph Act, 1882834 the Court clarified that this
Section does not confer unguided and unbridled power on investigating agencies
to invade a person’s privacy. Telephone tapping is only permitted in the following
two circumstances:

832
In the interests of (i) the sovereignty and integrity of India; (ii) the security of the State;
(iii) friendly relations with foreign States; (iv) public order; (v) preventing incitement to
the commission of an offence.
833
Article 21 of the Constitution of India.
834
Section 5(2) of the Indian Telegraph Act,1882.

281
 (i) on the occurrence of a Public Emergency: This means the
prevailing of a sudden condition or state of affairs affecting the
people at large calling for immediate action.

(ii) in the interest of Public Safety: This means the state or condition of
freedom from danger for the people at large .

The test of whether the above circumstances exist would be apparent to a

reasonable person. The Supreme Court strongly asserted, that if the two
circumstances are not in existence, the Central or State Government or their duly
authorised officers “cannot resort to phone tapping.”835

The Supreme Court Directives are:

1. Tapping of telephones is prohibited without an authorising order836

from the Home Secretary, Government of India or the Home
Secretary of the concerned State Government.837

2. The order, unless it is renewed shall cease to have authority at the

end of two months from the date of issue. Though the order may be
renewed, it cannot remain in operation beyond six months.

3. Telephone tapping or interception of communications must be

limited to the address(es) specified in the order or to address(es)
likely to be used by a person specified in the order.

835
In the five given situations allowed by Section 5 (2) of the Indian Telegraph Act, 1882.
836
Under Section 5(2) of the Indian Telegraph Act, 1882.
837
In an urgent case, this power may be delegated to an officer of the Home Department,
Government of India or the Home Department of the State government, who is not below
the rank of Joint Secretary. Copy of this order should be sent to the concerned Review
Committee within one week of passing of the order. This Review Committee shall
consist of the Cabinet Secretary, Law Secretary and the Secretary Telecommunications at
the Central Government. At the state level, the Committee shall comprise of Chief
Secretary, Law Secretary and another member (other than the Home Secretary) appointed
by the State Government. The Committee shall on its own, within two months of the
passing of an order under Section 5(2) investigate whether its passing is relevant. If an
order is in existence, the Committee should find out whether there has been a
contravention of the provisions of Section 5 (2). If the Review Committee on
investigation concludes that provisions of Section 5 (2) have been contravened, it shall
direct destruction of the copies of the intercepted material.

282
 4. All copies of the intercepted material must be destroyed as soon as
their retention is not necessary under the terms of Section 5 (2) of
the Indian Telegraph Act, 1882.

The right to privacy is a sacred and cherished right. There must be strong,
cogent and legally justifiable reasons for law enforcement agencies to interfere
with this right. Even then, proper procedure must be followed as intrusion into a
person’s home, professional or family life in the name of investigation or
domiciliary visits without a proper basis is not permitted.838

The brief facts of rape victims titled as Delhi Domestic Working Women’s
Forum v. Union of India & Others839 are840:

The Delhi Domestic Working Women’s Forum was pursuing a case in

which six girls belonging to a tribal community, travelling by train from Ranchi to
New Delhi were molested and raped by a group of army men in their
compartment. Though they were beaten and threatened by the culprits, the girls
did register a First Information Report. However, because the investigations and
trial dragged on for over six months, the girls who worked in New Delhi as
domestic help were not able to actively assist in the prosecution of the case, which
was being carried out in Aligarh, Uttar Pradesh.

Concerned over unnecessary delays, particularly in the investigation and

trial of rape cases, the Forum petitioned the Supreme Court to frame guidelines for
ensuring a speedy trial so that rape victims are not harassed and allowed to get on
with their lives.

The Supreme Court observed that seedy trial is one of the essential
requisites of law, the Court asserted, in rape cases, the course of justice cannot be
frustrated by prolonged investigations.

The Apex Court said that it is important that investigations and trials
should be carried out expeditiously; otherwise the guarantee of equal protection of

838
Kharak Singh v. State of Uttar Pradesh and Others, (1964) 1 SCR 332.
839
(1995) SCC 14.
840
Supra note 753 at 13.

283
law841 and the guarantee of life and personal security842 under the Constitution are
meaningless.

In view of the seriousness of the crime, the Supreme Court said that rape
shakes the very foundations of victims’ lives. For many, its effects are long-term
and so sustained that they face difficulty in having personal relationships; their
behaviour and values are altered; and they suffer from constant fear and anxiety.

In addition to the trauma of rape itself, victims have to suffer further agony
during legal proceedings as complaints are handled roughly and not given the
attention that they deserve. Victims are more often than not humiliated by the
police and the experience of giving evidence in Court is so distressing, that it puts
severe psychological stress on them.

Because, many of them feel re-victimized after reporting the crime, the Supreme
Court laid down specific guidelines on how to deal with rape victims, which are
given below843:

As soon a rape victim reports the crime at the police station, she must be
informed about her right to get a lawyer before any questions are asked of her.
The fact that she was informed of this right must be mentioned in the police
report.

1. The police should make arrangements to provide the victim with a

lawyer if she does not have access to one.

2. Every police station must maintain a list of lawyers capable enough

to explain the nature of proceedings to the victim; prepare her for
the case; assist her in Court and in the police station; and provide

841
Article 14 of the Constitution of India.
842
Article 21 of the Constitution of India.
843
Apart from the under-mentioned directives, the Supreme Court has also given other
directives, which though not directly related with the police, are of significance. They
have recommended setting up of a Criminal Injuries Compensation Board to award
compensation to the victim whether or not the prosecution is able to secure a conviction.
The compensation amount should take into account the pain, suffering, shock, loss of
earning capacity and expenses that may have been incurred on account of child birth if
the victim has become pregnant. They have also directed that compensation for the
victims must be ordered by the Courts on conviction of the offender.

284
 guidance on agencies and organizations that help in counselling
and rehabilitation of rape victims.

3. The lawyer so chosen by the police to assist the victim must be

approved by the Court. However, in order to ensure victims are
questioned without undue delay, the lawyer may be authorised to
act at the police station before permission of the Court is taken.

4. In all rape trials, anonymity of the victim must be maintained.

Rape cases require extra sensitivity from the police. Care must be taken to
see that the victim is not made to feel small or uncomfortable and her statement is
recorded by a woman. Unnecessary references and passing of derogatory remarks
that the victim contributed to the crime is not permitted. A rape is a rape no matter
what the reputation or profession of the victim is.844

The law favours protection of the victim. It lays down that inquiry and trial
of rape cases should be held in camera 845 (closed Court) and that her identity
should not be disclosed to the media.846

The facts of Joginder Kumar v. State of U.P and Others847 which deals
with the basis of arrest are848:

Joginder Kumar, a young lawyer aged 28 was called to the office of the
Senior Superintendent of Police (SSP), Ghaziabad in connection with some
inquiries. He was accompanied by friends and his brother, who were told by the
police that he would be released in the evening. But Joginder Kumar was taken to
a police station with the assurance that he would be released the next day. Next
day, too he was not released as the police wanted his help in making further
inquiries. When his family went to the police station on the third day, they found
that he had been taken to an undisclosed location. In effect, Joginder Kumar was
illegally detained over a period of five days.

844
Section 155(4) of the Indian Evidence Act, 1872 which allowed admittance of the sexual
history and reputation of the complainant in Court has been scrapped.
845
Section 327(2), Code of Criminal Procedure, 1973.
846
Section 327(3), Code of Criminal Procedure,1973.
847
(1994) SCC 260.
848
Supra note 753 at 15.

285
 His family had to file a habeas corpus writ petition with the Supreme
Court to find out his whereabouts. The Court issued notices to the State of Uttar
Pradesh and to the SSP to immediately produce Joginder Kumar and answer why
he was detained for five days without a valid reason; why his detention was not
recorded by the police in its diary and why he was not produced before a
magistrate.

The Supreme Court Rejecting the police version that Joginder Kumar was
cooperating with them out of his own free will, the Court said that the law of
arrest is one of balancing individual rights, liberties and privileges on the one hand
and individual duties, obligations and responsibilities on the other; of weighing
and balancing the rights, liberties of the single individual and those of individuals
collectively.

They pointed out that the Third Report of the National Police Commission
identifies wrongful use of arrest powers as one of the chief sources of corruption
in the police and that the arrests made by police officers are unnecessary and
unjustified. Strongly opposing the practice of carrying out indiscriminate arrests,
the Supreme Court said that an arrest cannot be made simply because it is lawful
for a police officer to do so. The existence of the power to arrest is one thing, the
justification for the exercise of it is quite another, the police officer must be able
to justify the arrest.849

Arrest and detention in police lock up can cause incalculable harm to the
reputation and self-esteem of a person. Therefore, arrests should not be made in a
routine manner on mere allegation that a person has committed an offence. If
police officers do not wish to face legal or disciplinary action, they should see that
arrests are made only after reaching a reasonable satisfaction about the complaint
being true and the case being bonafide. Even then, the Court said that the officer
making the arrest must function under a reasonable belief both as to the person's
complicity in committing the offence and the need to affect an arrest.850

849
(1994) SCC 260.
850
Supra note 753 at15.

286
 The Supreme Court gave the following directions851:

1. Arrests are not be made in a routine manner. The officer making

the arrest must be able to justify its necessity on the basis of some
preliminary investigation.

2. An arrested person should be allowed to inform a friend or relative

about the arrest and where s/he is being held. 852 The arresting
officer must inform the arrested person when s/he is brought to the
police station of this right and is required to make an entry in the
diary as to who was informed.

3. It is the duty of the magistrate before whom the arrested person is

produced to satisfy her/himself that the above requirements have
been complied with.

Arrests should not be made, unless they are absolutely necessary and there
is no other way except arresting the accused to ensure her/his presence before the
criminal justice system or to prevent her/him from committing more crimes or
tampering with evidence or intimidating witnesses. Unnecessary and unjustified
arrests lead to harassment and loss of faith in the system. On the other hand,
corruptly or maliciously detaining people without recording an arrest is punishable
by a maximum sentence of seven years.853

In D.K. Basu v. State of West Bengal854; D.K Basu - Executive Chairman

of Legal Aid Services, West Bengal - wrote a letter to the Chief Justice of India,
saying that torture and deaths in police custody are widespread and efforts are
often made by the authorities to hush up the matter. Because of this, custodial
crime goes unpunished and therefore flourishes. Some newspaper reports
published in the Telegraph, Statesman and Indian Express newspapers were also
attached to support the contention. Basu urged the Supreme Court to examine the

851
Ibid.
852
Article 22 (1) of the Constitution lays down that no person who is arrested shall be
detained in custody without being informed, as soon as may be, of the grounds of arrest
nor shall s/he be denied the right to consult and be defended by a legal practitioner of
choice.
853
Section 220, Indian Penal Code, 1860.
854
AIR 1997 SC 610.

287
issue in depth and (i) develop custody jurisprudence and lay down principles for
awarding compensation to the victims of police atrocities; (ii) formulate means to
ensure accountability of those responsible for such occurrences855.

The Supreme Court treated the letter as a writ petition. While the writ was
under consideration, the Supreme Court received another report about a death in
police custody in Uttar Pradesh. This prompted the Court to issue notices to all
state governments and the Law Commission of India to submit suggestions on
how to combat this all-India problem.

Supreme Court observed856 that Custodial torture is a naked violation of

human dignity, the Supreme Court said. The situation is aggravated when violence
occurs within the four walls of a police station by those who are supposed to
protect citizens. The Court accepted that the police have a difficult task in light of
the deteriorating law and order situation; political turmoil; student unrest; and
terrorist and underworld activities. They agreed that the police have a legitimate
right to arrest a criminal and to interrogate her/him in the course of investigation.
However, the law does not permit the use of third degree methods or torture on an
accused person. Actions of the State must be right, just and fair; torture for
extracting any kind of confession would neither be right nor just or fair.

(i) The Right to Life guaranteed by our Constitution includes the right
to live with human dignity. The State is not only obliged to
prosecute those who violate fundamental rights, it also has a duty
to pay monetary compensation to repair the wrong done by its
agents in not being able to discharge their public duty of upholding
people’s rights. Compensation, the Court said, is not be paid by
way of damages as in a civil case (the victim is free to file a civil
case to privately recover damages from the wrongdoer for loss of
earning capacity) but under public law for breach of duty by the
State in not being able to protect its citizens. However, there can be

855
Supra note 801.
856
D.K. Basu v. State of West Bengal. AIR1997 SC 610.

288
 no strait-jacket formula as each case has its own peculiar facts and
circumstances.

(ii) The Court recognised that the worst violations of human rights take
place during investigation when the police use torture and third
degree methods to get confessions. In such instances, arrests are
either disguised by not recording them or showing detention as
prolonged interrogation. The Court stressed that no matter what the
circumstances, the State or its agents are not allowed to assault or
torture people. They then laid down an elaborate set of guidelines
in respect of arrest and interrogation. The Court directed that the
guidelines which are given below should be circulated to the
Director General of Police and the Home Secretary of every state
and union territory and it shall be their obligation to have them put
up in every police station at a conspicuous place.

Supreme Court gave the following directions857:

1. Use of third degree methods or any form of torture to extract

information is not permitted.

2. Police personnel carrying out arrest and interrogation must bear

accurate, visible and clear identification/name tags with their
designations.

3. Particulars of all personnel handling interrogation of an arrested

person must be recorded in a register.

4. A memo of arrest stating the time and place of arrest must be

prepared by the police officer carrying out an arrest. It should be
attested by at least one witness who is either a family member of
the arrested person or a respectable person from the locality where
the arrest is made. The memo should also be counter-signed by the
arrested person.

857
AIR1997 SC 610.

289
5. The arrested or detained person is entitled to inform a friend,
relative or any other person interested in her/his welfare about the
arrest and place of detention as soon as practicable. The arrested
person must be made aware of this right as soon as s/he is arrested
or detained.

6. The arrested person may be allowed to meet her/his lawyer during

interrogation but not throughout the interrogation.

7. The time, place of arrest and venue of custody of the arrested

person must be notified by telegraph to next friend or relative of
the arrested person within 8-12 hours of arrest in case such person
lives outside the district or town. The information should be given
through the District Legal Aid Organisation and police station of
the area concerned.

8. An entry must be made in the diary at the place of detention in

regard to the arrest. The name of the friend/relative of the arrested
person who has been informed and the names of the police
personnel in whose custody, the arrested person is being kept
should be entered in the register.

9. The arrested person should be examined by a medical doctor at the

time of arrest if s/he so requests. All bodily injuries on the arrested
person should be recorded in the inspection memo which should be
signed by both the arrested person and the police officer making
the arrest. A copy of the memo should be provided to the arrested
person.

10. The arrested person should be subject to a medical examination

every 48 hours by a trained doctor who has been approved by the
State Health Department.

11. Copies of all documents relating to the arrest including the memo
of arrest should be sent to the Area Magistrate for her/his record.

290
 12. A police control room should be provided at all district and state
headquarters where information regarding arrests should be
prominently displayed. The police officer making the arrest must
inform the police control room within 12 hours of the arrest.

13. Departmental action and contempt of Court proceedings should be

initiated against those who fail to follow above-mentioned
directives.

Failure to follow proper procedure while arresting and interrogating

suspects is a very serious matter. D.K. Basu’s case lays down specific guidelines
that must be followed while arresting and interrogating suspects. These guidelines
are based on Code of Criminal Procedure, 1973 provisions and are very much a
part of regulations laid down in police manuals and rule books. The Supreme
Court has said that failure to comply with these guidelines not only renders an
officer liable for punishment through departmental action but also amounts to
contempt of Court.858

In Sheela Barse v. State of Maharashtra859; Sheela Barse, a journalist and

activist for prisoners’ rights wrote to the Supreme Court saying that of the 15
women prisoners interviewed by her in Bombay Central Jail, five admitted that
they had been assaulted in police lock-up. Given the seriousness of the allegations,
the Court admitted a writ petition on the basis of the letter and asked the College
of Social Work, Bombay to visit the Central Jail to find out whether the
allegations were true. The College submitted a detailed report which, in addition
to admitting that excesses against women were taking place, pointed out the
arrangements for providing legal assistance to prisoners were inadequate.

Supreme Court observed that Failure to provide legal assistance to poor

and impoverished persons violates constitutional guarantees. Article 39-A
(Directive Principle of State Policy) casts a duty on the State to secure the
operation of a legal system that promotes justice on the basis of equal opportunity.

858
Proceedings under the Concept of Court Act, 1971 can be started in any High Court.
859
(1983) SCC 96.

291
The right to legal aid is also a fundamental right under Articles 14 (Equality
before Law) and 21 (Right to Life and Personal Liberty).

The Court expressed serious concern about the plight of prisoners, unable
to afford legal counsel to defend themselves. They said that not having access to a
lawyer was responsible for individual rights against harassment and torture not
being enforced.

Stressing the urgent need to provide legal aid not only to women prisoners
but to all prisoners whether they were under trials or were serving sentences, the
Court said that an essential requirement of justice is that every accused person
should be defended by a lawyer. Denial of adequate legal representation is likely
to result in injustice and every act of injustice corrodes the foundations of
democracy and rule of law.

Expressing serious concern about the safety and security of women in

police lock-up, the Supreme Court directed that a woman judge should be
appointed to carry out surprise visits to police stations to see that all legal
safeguards are being enforced.

Supreme Court gave the following directions860:

1. Female suspects must be kept in separate lock-ups under the

supervision of female constables.

2. Interrogation of females must be carried out in the presence of

female policepersons.

3. A person arrested without a warrant must be immediately informed

about the grounds of arrest and the right to obtain bail.

4. As soon as an arrest is made, the police should obtain from the

arrested person, the name of a relative or friend whom s/he would
like to be informed about the arrest. The relative or friend must
then be informed by the police.

860
Section 54 Code of Criminal Procedure, 1973, confers the right to an arrested person to
get her/himself medically examined to afford evidence to disprove the commission of an
offence by her/him or establish the commission of an offence by any other person

292
 5. The police must inform the nearest Legal Aid Committee as soon
as an arrest is made and the person is taken to the lock-up.

6. The Legal Aid Committee should take immediate steps to provide

legal assistance to the arrested person at State cost, provided such
person is willing to accept legal assistance.

7. The magistrate before whom an arrested person is produced shall

inquire from the arrested person whether s/he has any complaints
against torture and maltreatment in police custody. The magistrate
shall also inform such person of her/his right to be medically
examined.861
Women in custody are particularly vulnerable to physical and sexual
abuse. Courts take a very serious view of complaints regarding custodial rape862 or
harassment. Of late, the National and State Human Rights Commissions and the
Women’s Commission are also playing an increasingly proactive role to see such
instances do not go unpunished. It is the duty of the officer in-charge of a police
station/post to ensure that women are not harmed and searches of their person are
carried out only by women with strict regard to decency.863
In Icchu Devi Choraria v. Union of India864; Mahendra Choraria, who was
accused with smuggling, was put in preventive detention by the Customs
Department under a special Act (COFEPOSA). 865 The Customs Department
detained him on the basis of two tape-recorded conversations, some documents
and statements of several persons.

Choraria argued before the Supreme Court in a writ petition that his
detention was illegal because he was not provided with copies of statements,

861
Section 54 Code of Criminal Procedure, 1973, confers the right to an arrested person to
get her/himself medically examined to afford evidence to disprove the commission of an
offence by her/him or establish the commission of an offence by any other person
against her/his body. The arrested person can ask to be medically examined either at the
time s/he is produced before a magistrate or at any time during the period of detention.
862
Custodial Rape is punishable by a minimum of ten years rigorous imprisonment under
Section 376 (2) of the Indian Penal Code, 1860.
863
Section 51(2), Code of Criminal Procedure.
864
(1980) SCC 531.
865
COFEPOSA- Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974 is one of several special Acts.

293
documents and other materials that were being relied upon to detain him. The
petition maintained that undue delay in providing these materials amounted to
denying him an opportunity to make a representation before a Court against his
detention.

Supreme Court observed that Article 22(5) of the Constitution lays down
that whenever a person is preventively detained under a special law, the detaining
authority should as soon as possible communicate to the arrested person, the
grounds of detention and afford her/him the earliest opportunity to make a
representation against the detention.

The Supreme Court asserted that if the detaining authority wants to

preventively detain a person, it must do so in accordance with the provisions of
the Constitution and the law and if there is any breach of any such, the rule of law
requires that the detune (detained person) must be set at liberty. They said that it
was the duty of the Courts to satisfy themselves that all procedural safeguards
have been observed in this respect.

Though COFEPOSA was framed to eradicate the evil of smuggling, the

Court said that it must not be forgotten that the power of preventive detention is a
draconian power, justified only in the interest of public security and order and it is
tolerated in a free society only as a necessary evil. Detaining people without trial
constitutes an encroachment on personal liberty, one of the most cherished values
of humankind. They said that personal liberty is a most precious possession; life
without it would not be worth living. Therefore, the Courts have a duty to uphold
it.

Prescribing the under-mentioned procedure, the Supreme Court affirmed

that the law laid down in this case would be equally applicable in the event of
preventive detention under any other Act.

Supreme Court gave the following directions866:

866
(1980) SCC 531.

294
 1. The detained person must be supplied copies of documents,
statements and other materials on the basis of which s/he is being
detained, without delay.

2. The authorities who have preventively detained a person must

consider the representation of the detained person against the
detention as soon as possible.

3. The burden of proving that the detention is in accordance with the

procedure established by law lies on the detaining authority.

Preventive detention is not allowed under normal circumstances. It has to

be authorised under a special Act. Even if an Act specifically provides for
preventive detention, the officer who has preventively detained a person must
furnish convincing proof to the magistrate that the detained person constitutes a
threat to society, and all the procedural requirements of the Act have been
satisfied. The detaining officer must also provide the detained person copies of the
statements, documents or other proof on the basis of which s/he has been
preventively detained. This is part of the detained person s fundamental right to
make a representation against the detention.867

In Gopalanachari v. State of Kerala868; Gopalanachari, a 71 year old man

wrote to the Supreme Court that he was wrongly imprisoned in Kottayam sub-jail,
Kerala after being picked up by the police. He was charged under Section 110 of
the Code of Criminal Procedure, 1973. This Section is supposed to be used by the
police for making people whom they believe to be habitual offenders, desperate or
dangerous persons execute a bond for good behaviour before the Executive
Magistrate. Gopalanachari wrote that though he could not hear or see properly and
constituted no threat to the community, yet he was taken before the magistrate.
The police told the magistrate that he was an ex-criminal, trying to conceal his
presence from a night patrol and on being questioned did not give his correct
name and address. Therefore, he should only be released after he executed a bond

867
Article 22(5) of the Constitution: Protection against arrest and detention in certain cases.
868
(1980) SCC 649.

295
that he will not indulge in any criminal or anti-social activities over the next two
years.

Because, he was unable to immediately arrange for bail and execute the
bond, the magistrate sent Gopalanachari to prison. The Supreme Court admitted
his petition and asked the State of Kerala give a list of prisoners charged under
Section 110 CrPC in Kottayam sub-jail. The Court was informed that there were
six such prisoners in the sub-jail and some of them had been lodged there for
several months.

Supreme Court observed that the Police powers must be exercised in

accordance with the Right to Life and Personal Liberty guaranteed by Article 21
of the Constitution. Actions of the State or its agents must be right, just and fair;
and not arbitrary; fanciful or oppressive, the Supreme Court asserted.

Using Section 110 of Criminal Procedure Code to harass innocent people

violates the spirit of the law. Shocked to discover that there were others like
Gopalanachari, the Court said that if men can be whisked away by the police and
imprisoned for long months and the Court can keep the cases pending without
thought, fundamental rights remain symbolic and scriptural.

They said, unless this Section is prevented from misuse, many a poor
person can be imprisoned by being labelled habitual, desperate or dangerous. It is
not permitted in our free Republic to pick up homeless people or have-nots under
the pretext of Section 110 of Criminal Procedure Code. To be poor is not a crime
in this country.

The Supreme Court directed magistrates to be vigilant and ensure Section

110 is not used randomly as a matter of routine. Courts must insist on convincing
testimony and should not accept readily produced, made to order testimony as was
given by the police in this case. To call a man dangerous is in itself dangerous; to
call a man desperate is to affix a desperate adjective; to stigmatise a person as
hazardous to the community is itself a judicial hazard; unless compulsive
testimony carrying credence is abundantly available.

296
 Supreme Court gave the following directions869:

1. The person being charged under Section 110 and other preventive
Sections of the Criminal Procedure Code must constitute a clear
and present danger to society.

2. The police must lay out specific facts before the magistrate
showing why the person is a threat to the community and should be
made to sign a bond for good behaviour.

3. The person undergoing proceedings under Section 110 Criminal

Procedure Code must be provided with legal aid.

4. The magistrate is under a duty to make sure that Section 110

Criminal Procedure Code is not misused by the police.
870 871
Preventive powers under Sections 107, 109 & 110 Criminal
Procedure Code should be exercised with due caution. Care must be taken to
ensure innocent persons are not harassed and presented before magistrates for
executing good behaviour bonds under the garb that they are suspected persons or
habitual offenders. Power of preventive arrest under Section 151, Criminal
Procedure Code872 should not used randomly by the police to pick people off the
streets, especially those belonging to economically weaker Sections of society.
Unjustified use of these Sections can invite judicial scrutiny. Magistrates have a
duty to ensure that preventive Sections are not being misused by police officers.

869
(1980) SCC 649.
870
Section 107 of the Code of Criminal Procedure, 1973 is supposed to be used by the police
to make a person whom they believe is likely to commit a breach of peace; disturb public
tranquillity; or do a wrongful act – that may cause peace to be breached or public
tranquillity to be disturbed - execute a bond for keeping the peace before the Executive
Magistrate.
871
Section 109, Criminal Procedure Code is supposed to be used by the police to make a
person whom they believe is taking precautions to conceal her/his presence with a view
to committing a cognizable offence, execute a bond for good behaviour before the
Executive Magistrate.
872
Section 151, Criminal Procedure Code authorises a police officer, knowing of a design to
commit a cognizable offence, to arrest the person designing to commit the offence, if it
appears that commission of the offence cannot otherwise be prevented. This Section is
often misused.

297
 In Prem Shankar Shukla v. Delhi Administration873; Prem Shankar Shukla,
an undertrial prisoner at Tihar Jail sent a telegram to the Supreme Court that he
and some other prisoners were being forcibly handcuffed when they were escorted
from prison to the Courts. Shukla pleaded that routine handcuffing and chaining
of prisoners was continuing despite the Supreme Court directive in Sunil Batra’s
case874 that fetters/handcuffs should only be used if a person exhibits a credible
tendency for violence or escape.

Supreme Court observed that Using handcuffs and fetters (chains) on

prisoners violates the guarantee of basic human dignity, which is part of our
constitutional culture, the Supreme Court said. This practice does not stand the
test of Equality before law875, Fundamental Freedoms876 and Right to Life and
Personal Liberty877.

To bind a man hand and foot; fetter his limbs with hoops of steel; shuffle
him along in the streets; and to stand him for hours in the Courts, is to torture him;
defile his dignity; vulgarise society; and foul the soul of our constitutional culture.
Strongly denouncing handcuffing of prisoners as a matter of routine, the Supreme
Court said that to manacle a man is more than to mortify him; it is to dehumanise
him; and therefore to violate his very personhood.

They rejected the argument of the State that handcuffs are necessary to
prevent prisoners from escaping. Insurance against escape does not compulsorily
require handcuffing as there are other methods whereby an escort can keep safe
custody of a detenu (detained person) without the indignity and cruelty implicit in
handcuffs and other iron contraptions.

The Supreme Court asserted that even orders from superiors are not a valid
justification for handcuffing a person. Constitutional rights cannot be suspended
under the garb of following orders issued by a superior officer. There must be

873
(1980) SCC 526.
874
Sunil Batra v. Delhi Administration, (1978) SCC 494.
875
Article 14 of the Constitution of India.
876
Article 19 of the Constitution of India.
877
Article 19 of the Constitution of India.

298
reasonable grounds to believe the prisoner is so dangerous and desperate that s/he
cannot be kept in control except by handcuffing.

Supreme Court gave the following directions:

1. Handcuffs are to be used only if a person is:

(a) involved in serious non-bailable offences, 878 has been

previously convicted of a crime; and/or

(b) is of desperate character – violent, disorderly or obstructive;

and/or

(c) is likely to commit suicide; and/or

(d) is likely to attempt escape.

2. The reasons why handcuffs have been used must be clearly

mentioned in the Daily Diary Report. They must also be shown to
the Court.

3. Once an arrested’ person is produced before the Court, the

escorting officer must take the Court’s permission before
handcuffing her/him to and fro from the Court to the place of
custody.

4. The magistrate before whom an arrested person is produced must

inquire whether handcuffs or fetters have been used. If the answer
is yes, the officer concerned must give an explanation.

Use of handcuffs, chains or ropes to bind prisoners amounts to inhuman

treatment. The rule regarding handcuffs is that they should never be used as a
matter of routine. Their use is permitted only in exceptional cases and that too
with judicial permission, on the grounds that the person poses a clear and present
danger and there are genuine reasons to believe that s/he will attempt escape.

In Citizens For Democracy v. State of Assam879;

878
Non-bailable offences are laid out in the First Schedule of the Code of Criminal
Procedure, 1973. Bail in such offences is given at the discretion of the police or the
Court.
879
(1995) SCC 743.

299
 Kuldip Nayar eminent journalist and president of Citizens for Democracy
wrote to the Supreme Court that he saw seven TADA detainees880 handcuffed and
tied to a hospital bed in Guwahati. He said that this was done despite the fact that
the room in which they were being held, had iron bars, was locked and was
guarded by a posse of armed policemen.

Nayar wrote that he failed to understand how the Assam Government

could treat people in this manner despite Court directives to the contrary. The
government in its defence said that the detainees were hardcore terrorists
belonging to the United Liberation Front of Assam (ULFA) and many dreaded
members of this organisation had previously escaped from custody.

Supreme Court Reiterating the principle in Premshankar Shukla’s case,881

said that indiscriminate use of handcuffs is inhuman, unreasonable and arbitrary.

Relevant considerations for putting a prisoner in chains are character,

antecedents and propensities. Peculiar and special characteristics of each
individual have to be taken into consideration. Laying down the law on use of
handcuffs, the Court said that the nature and length of sentence; or number of
convictions; or gruesome character of the crime are not by themselves relevant
consideration.

The Supreme Court said it understood that the police and jail authorities
have a public duty to ensure safe custody of prisoners and must prevent them from
escaping. However, prisoners rights guaranteed by the Constitution cannot be
trampled upon. While suitable measures can be taken to reduce the likelihood of
detainees escaping, use of fetters or chains purely at the whims or subjective
discretion of authorities is not permissible.

As a rule, handcuffs or fetters must not be used on an under trial or on a

convicted prisoner whether in jail or when being taken to Court, without
authorisation of a magistrate. This authorisation may be given in cases where the

880
Terrorist and Disruptive Activities (Prevention) Act, 1987, which was specially designed
to control insurgency/militant activities.
881
Prem Shankar Shukla v. Delhi Administration, (1980) SCC 526.

300
police or jail authorities have a well grounded basis for drawing a strong inference
that a particular prisoner is likely to jump jail or break out of custody.

Supreme Court gave the following directions882:

1. It is necessary to take the magistrate’s permission before

handcuffing a person who has been remanded to judicial or police
custody.

2. A person arrested in the execution of an arrest warrant (issued by a

magistrate) must not be handcuffed unless prior permission has
been taken from the magistrate.

3. In an arrest without warrant, the police is only allowed to handcuff

on the basis of concrete proof that the person is prone to violence;
has a tendency to escape; or is so dangerous and desperate that
there is no other practical way to restrain her/his movement. Even
then the officer may use handcuffs only till the time the person is
taken to the police station and thereafter to the Magistrate’s Court.

4. Violation of the Court’s directives by a police officer of whatever

rank or any member of the jail establishment is punishable
summarily under Contempt of Courts Act, 1971 in addition to other
provisions of the law.

Handcuffing without a Magistrate’s approval is not permitted, save in rare

instances. In such instances, the burden of proving that the use of handcuffs was
warranted lies on the police. If the detaining authority or escort party fail to satisfy
the Court about the genuineness of the danger or threat posed by the person who
was handcuffed, they will be liable under law.883

In Hussainara Khatoon and Others v. Home Secretary State of Bihar884;

The Supreme Court admitted a writ petition to look into the administration of
justice in Bihar after the Indian Express published a series of news items about
appalling conditions in Bihar jails. The paper reported that a large number of

882
Ibid.
883
Sunil Batra v. Delhi Administration, (1978) SCC 494.
884
AIR 1979 SC 1360.

301
people, including women and children had been in prison for years without trial.
Even though some of them were charged with minor offences carrying
punishment for a few months or couple of years at best, these people had been in
jail awaiting trial for periods ranging from three to ten years.

Supreme Court observed that Article 21 of the Constitution lays down that
no one shall be deprived of their life or personal liberty except according to the
procedure established by law. The procedure should be reasonable, fair and just885
otherwise such deprivation would be illegal.

The Supreme Court said that it is a travesty of justice that certain persons
end up spending extended time in custody, not because they are guilty but because
the Courts are too busy to try them, and they as the accused are too poor to afford
bail. Poor people find it difficult to arrange for bail, because quite often the bail
amount fixed by the magistrate or the police is unrealistically excessive. This
happens due to bail being given using a property-oriented approach. Such an
approach is based on the wrong assumption that risk of monetary loss is the only
deterrent that prevents a person from fleeing the judicial process.

The Supreme Court said that it was saddened that even after re-enactment
in 1974,886 the Code of Criminal Procedure, 1973 continues to require people to
be released on a personal bond that pledges a certain amount of money. While
they expressed the hope that the Parliament would bring about suitable
amendments in the law, the Court asserted that even under the law as it stands
today, Courts must abandon the antiquated concept under which pre-trial release is
ordered only against bail with sureties. They affirmed that what they have said in
relation to the Courts also applies to the police.

885
Maneka Gandhi v. Union of India, (1978) SCC 248.
886
From the old Code of Criminal Procedure, 1898, which was enacted by the British.
Though this Code did get amended many times, most notably in 1923 and 1955, many of
its provisions remained unchanged till the Code of Criminal Procedure, 1973, was
enacted on January 25, 1974.

302
Supreme Court gave the following directives887:

1. If the accused have roots in the community that would deter them
from fleeing, they may be released on bail by furnishing a personal
bond without sureties. The following facts may be taken into
account in this regard:

(i) the length of residence of the accused in the community

(ii) the employment status and history of the accused

(iii) family ties and relationships of the accused

(iv) the reputation, character and monetary condition of the

accused

(v) any prior criminal record including record of prior release

on bail

(vi) the existence of responsible persons in the community who

can vouch for the reliability of the accused

(vii) the nature of the offence that the accused is charged with;
probability of conviction; and likely sentence insofar as
these are relevant to risk of non-appearance of the accused.

2. The bond amount should not be based merely on the nature of the
charge but should be fixed keeping in mind the individual financial
circumstances of the accused.
If the offence is bailable,888 the police is duty bound to release the arrested
person if s/he is willing to give bail.889 In addition, the amount of bail should be
decided keeping in mind the paying capacity of the accused. 890 Far too many
people spend time in prison simply because the bail amount is fixed too high, and
they are unable to arrange for the money. Police officers and magistrates have a
duty to see that bail conditions are not so harsh, that the very purpose behind
887
AIR 1979 SC 1360.
888
Bailable offences are laid out in the First Schedule of the Code of Criminal Procedure,
1973. Bail may be claimed as a matter of right in bailable offences.
889
Section 436(1), Code of Criminal Procedure, 1973.
890
Section 440(1) Code of Criminal Procedure, lays down the amount of bail bond shall be
fixed with due regard to the circumstances of the case and shall not be excessive.

303
giving bail is defeated. The High Court and the Sessions Court are empowered to
reduce the bail amount fixed by the police or the magistrate.891
In Motiram and Others v. State of M.P.892 Motiram, a mason appealed to
the Supreme Court that despite being granted bail by the Court, he was unable to
secure his release because the Chief Judicial Magistrate fixed an exorbitant sum of
Rs 10,000, as the surety amount. Motiram said that the magistrate rejected the
suretyship offered by his brother simply because his brother resided in another
district and his assets were located there. Motiram wanted the Supreme Court to
either reduce the surety amount or order his release on a personal bond.

The Court had to decide: (i) whether a person can be released on bail under
the Code of Criminal Procedure, 1973, on a personal bond, without having to get
people to stand as surety for her/him; (ii) the criteria for fixing the bail amount;
(iii) whether a surety offered by a person can be rejected because s/he resides in a
different district or state or because her/his property is situated in a different
district or state.

Supreme Court Observations were that Article 14 (Equality before Law) of

the Constitution protects all citizens within the territory of India, the Supreme
Court asserted. Many a poor person is forced into cellular servitude for little
offences because trials never conclude and bail amounts are fixed beyond their
meagre means.

The Court observed that the poor were being priced out of their liberty in
the justice market. Whenever, excessive amounts are fixed as surety for bail, the
victims invariably happen to be from disadvantaged sections of society; belong to
linguistic or other minorities; or are from far corners of the country.

(i) Bail provisions contained in Chapter XXXIII 893 of the Criminal

Procedure Code must be liberally interpreted in the interest of
social justice, individual freedom and indigent persons’ rights894 to

891
Section 440(2), Code of Criminal Procedure.
892
AIR 1978 SC 1594.
893
Sections 436-450 of Code of Criminal Procedure, 1973, deal with bail and bonds.
894
Referring to bail related provisions of the Criminal Procedure Code, the Court said that
the truth perhaps, is that indecisive and imprecise language is unwittingly used, not

304
 enable release of poor and impoverished people on a personal bond
without having to arrange for surety.

(ii) Bail amounts should be fixed after ascertaining the paying capacity
and monetary condition of the accused. The Court said that it
shocks one’s conscience to ask a mason to furnish a sum as high as
Rs 10,000 for release on bail.

(iii) There is no sanction in any law to make geographical

discriminations such as not accepting sureties from another part of
the country or not accepting an affirmation in a language other than
the one spoken in the region. India is one and not a conglomeration
of districts untouchably apart. A person accused of a crime in a
place distant from her/his native residence cannot be expected to
produce sureties who own property in the same district as the trial
Court. The Supreme Court asserted that provincial or linguistic
divergence cannot be allowed to obstruct the course of justice.

Supreme Court gave the following directives895:

1. Bail should be given liberally to poor people simply on a personal

bond, if reasonable896 conditions are satisfied.

2. The bail amount should be fixed keeping in mind the financial

condition of the accused.

knowing the draftsman’s golden rule: In drafting it is not enough to gain a degree of
precision which a person reading in good faith can understand, but it is necessary to attain
if possible, a degree of precision which a person reading in bad faith cannot
misunderstand .
895
Hussainara Khatoon and Others v. Home Secretary, State of Bihar (1), AIR 1979 SC
1360 lays down that the length of residence of the accused in the community; the
employment status and history of the accused; family ties and relationships of the
accused; the reputation, character and monetary condition of the accused; any prior
criminal record including record of prior release on bail; the existence of responsible
persons in the community who can vouch for the reliability of the accused; the nature of
the offence that the accused is charged with; probability of conviction; and likely
sentence insofar as these are relevant to risk of non-appearance of the accused should be
taken into account while determining bail conditions.
896
Ibid.

305
 3. The accused person should not be required to produce a surety
from the same district especially when s/he is a native of some
other place.

The Supreme Court has strongly condemned the practice of asking

migrants or tourists to arrange for financially sound sureties from the same district
to stand bail for them. It is unreasonable and leads to unnecessary and undue
harassment. Many a time, poor people go to jail despite being granted bail because
no one comes forward to stand as surety for them. If it can be found out that the
accused is connected to the community through family or other emotional ties,
which will prevent her/him from fleeing, bail should be given simply on a
personal undertaking to abide by bail conditions.897

In a case dealing with compensation titled as Nilabati Behera v. State of

Orissa 898 ; Nilabati Behera, a distressed mother, wrote a letter to the Supreme
Court asking that she be monetarily compensated for the death of her 22 year old
son in police custody. She said that her son, Suman Behera was beaten to death at
a police post after being detained in connection with a theft.

The Supreme Court immediately admitted a writ petition on her behalf and
took up the case. Rejecting the police version that Suman Behera was killed by a
running train after he escaped from police custody, the Court asserted that the
post-mortem report clearly showed that he died as a result of being beaten up. The
question before the Court was whether Nilabati Behera had a right to claim
compensation for the wrongful acts of the policemen who caused her son s death.

Supreme Court Observations

Article 9 (5) of the International Covenant on Civil and Political Rights,

1966 lays down that anyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensation. This Covenant has

897
In addition, the proviso to Section 436 (1) Criminal Procedure Code states that if the
police officer or Court thinks fit, an arrested person who is accused of a bailable offence
may be discharged on executing a bond for appearance without sureties in lieu of bail.
898
(1993) SCC 746.

306
been ratified by India,899 which means that the State has undertaken to abide by its
terms.

The Supreme Court asserted that convicts, prisoners or under trials are not
denuded of their fundamental rights under Article 21 (Right to Life and Personal
Liberty) of the Constitution and there is a corresponding responsibility on the
police and prison authorities to make sure that persons in custody are not deprived
of the Right to Life.

The State has a ‘duty of care’ to ensure that the guarantee of Article 21 is
not denied to anyone. This duty of care is strict and admits no exceptions the
Court said. The State must take responsibility by paying compensation to the near
and dear ones of a person, who has been deprived of her/ his life by the wrongful
acts of its agents. However, the Court affirmed that the State has a right to recover
the compensation amount from the wrongdoers.

They said that the purpose of law is not only to civilize public power but
also to assure people that they live under a legal system which protects their
interests and preserves their rights. Therefore the High Courts and the Supreme
Court as protectors of civil liberties not only have the power and jurisdiction but
also the obligation to repair the damage caused by officers of the State to
fundamental rights of citizens.

Supreme Court gave the following directions:

1. The State has an obligation to give compensation to a victim or to

the heirs of a victim whose fundamental rights have been violated
by its agents.900

2. The State has a right to recover the compensation amount from the
guilty officials after appropriate proceedings or inquiry.

899
Though India had expressed reservations to this particular article at the time of
ratification, the reservations have ceased to have meaning as an enforceable right to be
compensation has come to be accepted as a part of ’international customary law. Also the
Supreme Court in various judgements even before Nilabati Behera’s case has upheld the
right to be compensated for wrongful acts of State agents. See Rudul Sah, (1983) 4 SCC
141; Sebastian M. Hongray, (1984) 1 SCC 339; Sebastian M. Hongray (II), (1984) 3 SCC
82; Bhim Singh, (1985) 4 SCC 677; Ravikant S. Patil, (1991) 2 SCC 373.
900
This principle has been reaffirmed in D.K. Basu v. State of West Bengal, AIR 1997 SC
610.

307
 3. An order of compensation by the State in a criminal case901 does
not prevent the victims or their heirs from claiming further
compensation in a civil case (for loss of earning capacity).

While it is mandatory to conduct a magisterial inquiry into every case of

custodial death,902 the State also has a duty not only to register criminal cases, but
also to pay monetary compensation where human rights are violated by its
officers.903 Courts and human rights commissions regularly give directions to the
government to monetarily compensate victims or their families for incidents of
custodial death, rape, violence or assaults on dignity. In the majority of these
cases, compensation amounts are recovered from the salaries and other benefits of
the guilty officials.

While addressing the issue of encounter deaths the National Human Rights
Commission issued Guidelines On Encounter Deaths March 29, 1997 And
Revised Guidelines December 2, 2009043, the brief facts of which are905:

The Andhra Pradesh Civil Liberties Committee (APCLC) complained to

the NHRC that the police was killing people whom they suspected to be members
of the People’s War Group, a militant organisation, in fake encounters. The police
said that the deaths took place when armed militants resisted arrest but the Andhra
Pradesh Civil Liberties Committee insisted that these were extra-judicial killings
amounting to unjustified and unprovoked murders. They gave details of 285 such
incidents. The NHRC was unable to take up all the cases because many of them
had occurred prior to one year, which is the limitation 906 period for taking up

901
Section 357 (1) (b) of the Code of Criminal Procedure, 1973 (CrPC) also empowers
criminal Courts, at the time of sentencing, to make the perpetrator pay a fine which may
in whole or in part be paid to the victim for any loss or injury caused by the offence
committed.
902
Section 176, Code of Criminal Procedure, 1973
903
In State of Maharashtra v. Ravikant S. Patil, (1991) SCC 373, the Supreme Court upheld
the award of compensation by the High Court for violation of the fundamental right to
Life and Personal Liberty (Article 21of the Constitution) of an undertrial prisoner, who
was handcuffed and taken through the streets in a procession by the police.
904
Available at : http//;www.nhrc.nic.in (accessed on September 15, 2016).
905
Supra note 753 at36.
906
Section 36 (2) of the Protection of Human Rights Act, 1993 lays down that human rights
commissions cannot take up a fresh complaint if more than one year has elapsed since the
human rights violation was committed.

308
complaints by human rights commissions. Ultimately six cases involving the
death of seven people were taken up by the NHRC and guidelines detailing the
procedure in respect of encounter deaths were issued in 1997.

However, in 2003, the NHRC noting that matters in respect of encounter

deaths were not encouraging, as the guidelines were not being followed in their
true spirit, made some additions to its existing guidelines. The Commission also
expressed concern that all states were not sending information about deaths in
encounters and asserted that availability of proper statistics was necessary for the
effective protection of human rights and discharge of the NHRC’s duties.

Under the law, no one including the police has an unqualified right to take
the life of another person. Death of a person by a police officer amounts to
culpable homicide not amounting to murder, unless it is established that the
causing of death is not an offence in law. If a police officer kills someone in an
encounter, s/he must prove that the death was caused either in the legitimate
exercise of the right of private defence907 or in the use of force, proportional to the
resistance offered, while arresting a person accused of an offence punishable with
death or life imprisonment. 908 This can only be ascertained by a proper
investigation and not otherwise.

First Information Reports (FIR) recorded at police stations invariably say

that, on sighting the police, the other party opened fire with a view to kill. They
give the impression that the concerned officers are justified in causing death,
exercising their right of self-defence. So, no attempts are made by the police to
find out whether officers who fire the bullets are justified in law to doing so.

Responding to public concerns that in reported encounters, sufficient

efforts are not made to ascertain the cause of death and whether the deceased have
committed any offences, the National Human Rights Commission has directed all

907
Sections 96-106 of the Indian Penal Code, 1860 (Private Defences).
908
Section 46 (1) of the Code of Criminal Procedure, 1973, empowers a police officer to
touch or confine the body of a person being arrested if s/he does not submit to the
officer’s custody by word or action; (2) empowers a police officer to use all means
necessary to effect “an arrest if the person being arrested forcibly resists the endeavour to
arrest him; (3) includes a rider that nothing in this Section gives a right to cause death of
a person who is not accused of an offence punishable with death or with imprisonment
for life.

309
states and union territories to ensure adherence to proper police procedure and
conduct of impartial investigations.

NHRC Guidelines909

1. As soon as information about death being caused in a police

encounter is received, the officer in-charge of a police station must
record it in the appropriate register.

2. It is desirable that the investigation should be handed over to an

independent investigation agency such as the Criminal
Investigation Department (CID), if members of the encounter party
belong to the same police station.

3. Whenever a specific complaint is made against the police for

committing a criminal act that amounts to culpable homicide, an
FIR should be registered under appropriate Sections of the Indian
Penal Code and investigation should invariably be handed over to
the CID.

4. A magisterial inquiry must invariably be held in all cases where

death has occurred in the course of police action. The next of kin of
the dead person must invariably be associated with the inquiry.

5. Prompt prosecution and disciplinary action must be initiated

against the officers found guilty in the magisterial inquiry/police
investigation.

6. The question of compensation being given to the dependents of the

dead person will depend on the facts and circumstances of each
case.

7. No out of turn promotion or instant gallantry rewards will be given

to the concerned officers soon after the occurrence. It must be
ensured (at all costs) that they are given only after the gallantry of
the officer concerned is proven beyond doubt.

909
National Human Rights Commission issued Guidelines On Encounter Deaths March 29,
1997 And Revised Guidelines December 2, 2003.

310
 8. A six monthly statement of all cases of deaths in police action in
the state shall be sent by the Director General of Police to the
NHRC by January 15 and July 15 every year. The statement may
be sent in the following format along-with post-mortem reports and
inquest reports (wherever available) and also the inquiry reports:

(i) Date and place of occurrence

(ii) Police station and district

(iii) Circumstances leading to death:

(a) self defence in encounter

(b) in the course of dispersal of unlawful assembly

(c) in the course of effecting arrest

(iv) Brief facts of the incident

(v) Criminal case number

(vi) Investigating agency

(vii) Finding of the magisterial inquiry/ inquiry by senior

officers:

(a) disclosing in particular names and designations of

police officials, if found responsible for the deaths;
and

(b) whether use of force was justified and action taken

was lawful.

Eliminating suspected members of outlaw or militant organisations by

staging fake encounters amounts to murder. Article 21 of the Constitution lays
down that no one shall be deprived of life or personal liberty, except according to
the procedure established by law. The Supreme Court has said that even a person
under death sentence has human rights which are non-negotiable and even a

311
dangerous prisoner, standing trial has basic liberties which cannot be bartered
away.910

National Human Rights Commission (NHRC) Guidelines on Polygraph

(Lie Detector) Tests January 11, 2000911

Complaints came to the NHRC that the police, without explaining to

people, the full implications of a lie detector test - which requires prior injection a
drug – was making them take it, in violation of their fundamental right against
self-incrimination.

Since lie detector or polygraph tests are not regulated by any particular law
as such, the NHRC has laid down guidelines for the conduct of these tests. While
issuing these guidelines, the NHRC followed the principle: in the absence of a
specific law, any intrusion into fundamental rights must be struck down as
constitutionally invidious (violative).912

Lie detector tests can become an instrument to compel the accused to be a

witness against her/himself, in violation of Article 20(3) of the Constitution (Right
against Self-Incrimination).

The NHRC said that it was aware that lie detector tests have been held
consistent with due process of law by Courts in the United States, on grounds that
they are a part of everyday life.913 However, in India’s context the immunity from
invasiveness (as an aspect of Article 21 (Right to Life and Personal Liberty) and
from self-incrimination must be read together .

General powers of the State cannot intrude upon the liberty or

constitutional rights of a person. The invasiveness of a lie detector test overrules
the argument of the police that the authority to use lie detector tests comes from

910
Sunil Batra v. Delhi Administration, (1978) SCC 494.
911
Supra note 753 at 39 also at Available at : http//;www.nhrc.nic.in (accessed on
September 15, 2016).
912
Ram Jawaya Kapur, (1955) 2 SCR 225; Kharak Singh, (1964) 1 SCR 332; Benett
Coleman, (1972) 2 SCR
288; Thakur Bharat Singh, (1967) 2 SCR 454; Bishamber Dayal, (1982) 1 SCC 39;
Naraindass, (1974) 3 SCR; Satwant, (1967) 3 SCR 525.
913
Breithbaupht v. Abram, (1957) 352 US 432.

312
their powers under the Code of Criminal Procedure (CrPC) 914 to question and
interrogate suspects.

Holding of such tests is the prerogative of the individual and not an

empowerment of the police, it must perforce be regarded as illegal and
unconstitutional unless it is voluntarily undertaken under non-coercive
circumstances.

NHRC Guidelines915

1. Lie detector tests must not be carried out without the consent of the
accused.

2. If the accused volunteers to take a lie detector test, s/he must be

given access to a lawyer to explain the physical, emotional and
legal implications of the test. The implications must also be
explained by the police.

3. Consent to take a lie detector test must be recorded before a

Judicial Magistrate.

4. The magistrate must take into account, the time the accused has
been in detention and the nature of her/his interrogation. This
should be done to find out whether the accused is being coerced
into giving consent.

5. At the time of recording consent, the accused must be represented

by a lawyer. The lawyer will explain that the statement (given
during the test) does not have the status of a confessional statement
given to a magistrate.916 It will have the status of a statement made
to the police.917

914
Section 160-167, Code of Criminal Procedure.
915
Supra note 753 at 39 also at Available at : http//;www.nhrc.nic.in (accessed on September
15, 2016).
916
Section 164, Criminal Procedure Code, this statement is admissible as evidence in a Court
of law.
917
Section 161, Criminal Procedure Code, this statement is not admissible as evidence in a
Court of law.

313
 6. The actual recording of the lie detector test should be done by/in an
independent agency (such as a hospital) and in the presence of a
lawyer.

7. A full medical and factual narration of the manner in which

information is received must be taken on record.

Forcing a person to take a lie-detector test is illegal. Consent must be taken

before subjecting a person to a lie-detector test. Also, there is no scientific
evidence to prove that results obtained from polygraph tests are conclusive.
Failing a lie-detector test does not mean that the person is guilty. Polygraph tests
measure responses on the premise, that a person is being untruthful, if there are
sudden changes in her/his breathing, heart and blood pressure rates. A truthful
person can fail the test if s/he is nervous, has health problems or is just surprised
by the question.

National Human Rights Commission guidelines on police-public relations 918 .

These guidelines are of particular relevance to officers at the cutting edge level,
i.e. those who are posted at police stations. These guidelines have been
communicated to all chief secretaries and police chiefs. They are in an invaluable
aid for police officers to perform their duties in a manner compatible with
prevailing human rights standards.

Toll free telephone number for the public to convey crime information to
the public

Police services of all states should set up a toll free telephone number for
the public’s convenience. The National Human Rights Commission has
recommended that for the purpose of uniformity, all states should have the same
number i.e 1090. They have advocated that919:

 The number should be dedicated to public use and installed in the

Police Control Room/Police Station/ Sub-Divisional Office.

918
Supra note 753 at 39 also available at : http//;www.nhrc.nic.in (accessed on September
15, 2016).
919
National Human Rights Commission guidelines on police-public relations

314
  The number should be toll free within the state, enabling people
from remote parts or interiors of districts to access it.

 Callers should not be compelled to reveal their identity. They may

be given a code number to identify themselves to know the result
of the investigation. Callers should be rewarded for their public-
spirited service by issuing commendation certificates if the
information results in detection of crimes.

Registration of offences and information about progress in investigation920

Transparency in the investigation process must be maintained. The

Commission has stressed that complainants must have access to information about
their cases. They have said that921:

 A First Information Report (FIR) should be registered promptly on

receiving a complaint about a cognizable offence.922

 A copy of the FIR should be given to the complainant and an entry

about this should be made in the First Case Diary.923

 If the complaint does not make out a cognizable offence, the police
should explain to the complainant, the reasons why the complaint
cannot be registered924.

 If investigation is not completed within three months of the FIR

being registered, the complainant should be informed in writing
giving specific reasons for the delay.

 Proof of having informed the complainant (postal

acknowledgement or written acknowledgement) about reasons for
the delay in investigation should be kept on the Case Diary file.

920
Supra note 753 at 39 also available at : http//;www.nhrc.nic.in (accessed on September
15, 2016).
921
Ibid.
922
State of Haryana v. Bhajan Lal, AIR 1992 SC 604.
923
Section 154(2), Code of Criminal Procedure, lays down that a copy of the FIR shall be
given free of cost to the complainant.
924
Supra note 832.

315
  If investigation is not completed within six months of registering
the FIR, the complainant should be informed again in writing about
the reasons for non-completion of investigation, and the
acknowledgement should be kept on the Case Diary file.

 If the investigation is not completed within one year, a more

detailed intimation (memo) should be prepared by the investigating
officer giving reasons for the delay to the complainant. The
intimation should be endorsed by a gazetted officer who directly
supervises the work of the investigating officer. The gazetted
officer should personally verify the reasons for delay given by the
investigating officer. A record of the intimation and its
acknowledgement by the complainant should be kept on the Case
Diary file.

 The complainant should be informed once the investigation is

completed and a charge-sheet is filed before the Court. A copy of
the charge-sheet should be given to the complainant by the police.
In case the complainant is not available for some reason, her/his
family should be informed.

Meeting of Station House Officers with the Public

In order to strengthen police-public relations, Station House Officers

(SHO) must hold regular monthly meetings in areas falling under their
jurisdiction. This will enable people to voice their grievances to the SHO. It will
also give the police an opportunity to inform people about law and order issues
and enlist their cooperation in maintaining peace and preventing crime. The
Commission has advocated that senior officers should also take part in these
meetings along-with Station House Officers.

In a democratic nation, people’s participation in governance is of utmost

importance. As a vital component of the governmental machinery, the police too,
are under an obligation’ to take into account community aspirations and tailor
policing to serve the community s needs best. Transparency and openness in

316
functioning are excellent ways to break barriers and engage in people-oriented
policing.

National Human Rights Commission Guidelines ON Arrest November 22,1999925.

Concerned with the large number of complaints about abuse of police

powers, particularly in relation to arrest and detention, the National Human Rights
Commission has drawn up a set of guidelines. They are based on constitutional
provisions, existing laws, Supreme Court decisions and National Police
Commission recommendations.

The Commission has said that these guidelines should be translated into
regional languages and made available in all police stations throughout the
country. They have also said that the police must set up a complaints redressal
mechanism to promptly and effectively investigate complaints regarding violation
of NHRC guidelines.

Procedure to be followed prior to arrest926

The Supreme Court has laid down ‘in Joginder Kumar’s case927 that arrest
without warrant should be carried out only after reasonable satisfaction is reached
about the genuineness of a complaint; a person s complicity in the offence; and the
need to make an arrest.

The National Human Rights Commission on its part has asserted that
arrests in bailable offences must be avoided unless there is a strong possibility that
the person will run away. A police officer must be able to justify an arrest. An
arrest without warrant can be justified only in the following circumstances:

(i) Where the case involves a grave offence such as murder, dacoity,
robbery, rape etc. and it is necessary to arrest the suspect to prevent
her/him from escaping or evading the process of law; and/or

(ii) Where the suspect is given to violent behaviour and likely to

commit more offences; and/or
925
Supra note 753 at 39 also available at : http//;www.nhrc.nic.in (accessed on September
15, 2016).
926
Supra note 753 at 42 also available at : http//;www.nhrc.nic.in (accessed on September
15, 2016).
927
Joginder Kumar v. State of U.P., (1994) SCC 260.

317
 (iii) Where the suspect needs to be prevented from destroying evidence;
interfering with witnesses; or warning other suspects who have not
yet been arrested; and/or

(iv) The suspect is a habitual offender, who unless arrested is likely to

commit similar or further offences. (3rd Report of the National
Police Commission.928

Procedure to be Followed at the Time of Arrest929

Human dignity must be upheld and minimal force should be used while
arresting and searching suspects.

 As a rule, use of force should be avoided while making an arrest.

 In case the person being arrested offers resistance, minimum force

should be used and care should be taken to see that injuries are
avoided.

 Dignity of the arrested person should be protected. Public display

or parading of the arrested person is not permitted.930

 Search of the arrested person should be carried out with due respect
for her/his dignity and privacy. Searches of women should only be
done by women, with strict regard to decency.931

 Women should not be arrested between sunset and sunrise. As far

as practicable, women police officers should be associated when
the person being arrested is a woman.

 Force should never be used while arresting children or juveniles.

Police officers should take the help of respectable citizens to ensure

928
Government of India, 1980.
929
Supra note 753 at 43 also available at : http//;www.nhrc.nic.in (accessed on September
15, 2016).
930
State of Maharashtra v. Ravikant S. Patil, (1991) SCC 373.
931
Section 51(2), Code of Criminal Procedure.

318
 children and juveniles are not terrorised, and the need to use
coercive force does not arise.932

 The arrested person should be immediately informed about the

grounds of arrest in a language s/he understands.933

 In case a person is arrested for a bailable offence, s/he must be

informed about her/his right to be released on bail.934

 Information regarding arrest and detention should be

communicated without delay to the police control room and to the
district and state headquarters. A round-the-clock monitoring
mechanism should be put in place in this regard.935

Procedure to be followed after arrest936

Constitutional and legal provisions requiring an arrested person to be

informed about the grounds of arrest, her/his right to be represented by a lawyer
and to be promptly produced before a Court must be strictly followed.

Article 22 (1) of the Constitution lays down that an arrested person must
be informed as soon as possible about the grounds of arrest; s/he must not be
denied the right to consult and be defended by legal counsel of her/his choice.
Section 50 (1) of the Criminal Procedure Code, requires a police officer to
communicate to the arrested person, grounds of the arrest and full particulars of
the offence under which s/he is being arrested.

Article 22 (2) requires an arrested person to be produced before the nearest

magistrate within 24 hours. Section 57 of the Criminal Procedure Code says that

932
Section 10 (1) of The Juvenile Justice (Care and Protection of Children) Act, 2000 lays
down that as soon a juvenile in conflict with the law is apprehended by the police, s/he
should be placed under the charge of the special juvenile police unit or the designated
police officer who shall immediately report the matter to a member of the Juvenile
Justice Board.
933
Sheela Barse v. State of Maharashtra, (1983) SCC 96.
934
Section 50(2), Criminal Procedure Code. Section 436 (1), Criminal Procedure Code lays
down that when a person is arrested for a balaible offence, s/he has a right to be released
on bail upon arrest.
935
D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
936
Supra note 753 at 44 also available at : http//;www.nhrc.nic.in (accessed on September
15, 2016).

319
an arrested person cannot be in kept in custody for more than 24 hours without the
order of a magistrate.

Procedure in respect of interrogation937

Methods of interrogation must be consistent with individual rights relating

to life, liberty and dignity.

 Torture and degrading treatment of suspects is prohibited.938

 Interrogation of an arrested person should be conducted in a clearly

identifiable place, which has been notified for the purpose by the
government.

 The place of interrogation must be accessible. Relatives or a friend

of the arrested person must be informed where s/he is being
interrogated.

 An arrested person should be permitted to meet a lawyer at any

time during the interrogation.

NHRC Directions on Mandatory Reporting of Custodial Death/ Rape and Video-

Filming of Post Mortem Examinations939

All cases of custodial death and custodial rape whether in police lock-up or
in jail must be reported to the NHRC within 24 hours of occurrence by the
concerned District Magistrate or Superintendent of Police. Failure to report
promptly will give rise to the presumption that there is an attempt to suppress the
incident.940

937
Supra note 753 at 45 also available at : http//;www.nhrc.nic.in (accessed on September
15, 2016).
938
Article 21 of the Constitution lays down that No person shall be deprived of his (her) life
or personal liberty except according to procedure established by law. When constitutional
rights of a person are invaded, the Court has the jurisdiction to compensate the victim by
awarding monetary compensation. Bhim Singh, 1986 Cri LJ 192 (SC); Nilabati Behera,
(1993) SCC 746; D.K. Basu, AIR 1997 SC 610; PUCL, AIR 1997 SC 568.
939
Supra note 753 at 45 also available at : http//;www.nhrc.nic.in (accessed on September
15, 2016).
940
This was communicated by the Commission to Chief Secretaries of all states and union
territories in its letter dated December 14, 1993.

320
 All post-mortem examinations in respect of custodial deaths should be
video-filmed and a copy of the recording should be sent to the NHRC along-with
the post mortem report.941

Autopsy Report forms prescribed by the NHRC should be used to record

the findings of the post-mortem examination.942

Good policing involves respecting human rights and upholding the Rule of
Law. This has been strongly emphasised by the Supreme Court and the National
Human Rights Commission. As protectors of people’s rights, police officers are
expected to display integrity, transparency, accountability and most of all respect
for human dignity. Rule of Law requires that the police as an integral part of the
criminal justice system must respect and uphold the rights and liberty of
individuals.

Sadly, despite democracy and freedom, there still is a lot of distrust

between the public and the police. People see the police as an authoritarian
organisation, removed from society, with little or no respect for the rights of the
ordinary person. However, today we live in a democratic country and the police as
a vital component of the State must operate according to democratic norms.
Individual rights occupy a pride of place in our constitutional culture. Any
encroachment upon them, whether it is non-registration of a First Information
Report (FIR); launching a malicious investigation; illegally detaining suspected
persons or their families; carrying out an improper arrest; using excessive force; or
torturing suspects to extract confessions goes against the basic principles of
democratic policing.

In a democratic society, the police serve to protect, rather than impede,

freedoms. The very purpose of the police is to provide a safe, orderly environment
in which these’ freedoms can be exercised. A democratic police force is not

941
The Commission in its letter dated August 10, 1995 to Chief Ministers of all states has
recognised that video-filming involves extra cost. But human life is more valuable than
the cost of video-filming and incidents when video-filming is warranted are limited.
942
These forms have been developed by the NHRC after obtaining views of experts. The
Commission has written to Chief Ministers/ Administrators of all states and union
territories in its letter dated March 27, 1997 to prescribe its model autopsy form and
inquest procedure.

321
concerned with people’s beliefs or associates, their movements or conformity to
state ideology. It is not even primarily concerned with the enforcement of
regulations or bureaucratic regimens. Instead, the police force of a democracy is
concerned strictly with the preservation of safe communities and the application
of criminal law equally to all people, without fear or favour.943

Code of Conduct for the Police in India944

1. The police must bear faithful allegiance to the Constitution of India

and respect and uphold the rights of the citizens as guaranteed by
it.

2. The police should not question the propriety or necessity of any

law duly enacted. They should enforce the law firmly and
impartially, without fear or favour, malice or vindictiveness.

3. The police should recognise and respect the limitations of their

powers and functions. They should not usurp or even seem to usurp
the functions of the judiciary and sit in judgement on cases to
avenge individuals and punish the guilty.

4. In securing the observance of law or in maintaining order, the

police should as far as practicable, use the methods of persuasion,
advice and warning. When the application of force becomes
inevitable, only the irreducible minimum of force required in the
circumstances should be used.

5. The prime duty of the police is to prevent crime and disorder and
the police must recognise that the test of their efficiency is the
absence of both and not the visible evidence of police action in
dealing with them.

6. The police must recognise that they are members of the public,
with the only difference that in the interest of the society and on its

943
United Nations International Police Task Force, 1986.
944
Issued by the Ministry of Home Affairs and communicated to Chief Secretaries of all
States/ Union Territories and Heads of Central Police Organisations on July 4, 1985

322
 behalf they are employed to give full time attention to duties which
are normally incumbent on every citizen to perform.

7. The police should realise that the efficient performance of their

duties will be dependent on the extent of ready cooperation that
they receive from the public. This, in turn, will depend on their
ability to secure public approval of their conduct and actions and to
earn and retain public respect and confidence.

8. The police should always keep the welfare of the people in mind
and be sympathetic and considerate towards them. They should
always be ready to offer individual service and friendship and
render necessary assistance to all without regard to their wealth and
/ or social standing.

9. The police should always place duty before self, should maintain
calm in the face of danger, scorn or ridicule and should be ready to
sacrifice their lives in protecting those of others.

10. The police should always be Courteous and well-mannered; they

should be dependable and impartial; they should possess dignity
and courage; and should cultivate character and the trust of the
people.

11. Integrity of the highest order is the fundamental basis of the

prestige of the police. Recognising this, the police must keep their
private lives scrupulously clean, develop self-restraint and be
truthful and honest in thought and deed, in both personal and
official life, so that the public may regard them as exemplary
citizens.

12. The police should recognise that their full utility to the State is best
ensured only by maintaining a high standard of discipline, faithful
performance of duties in accordance with law and implicit
obedience to the lawful directions of commanding ranks and
absolute loyalty to the force and by keeping themselves in the state
of constant training and preparedness.

323
 13. As members of a secular, democratic state, the police should strive
continually to rise above personal prejudices and promote harmony
and the spirit of common brotherhood amongst all the people of
India, transcending religious, linguistic or Sectional diversities and
to renounce practices derogatory to the dignity of women and
disadvantaged Sections of society.

United Nations Code of Conduct for Law Enforcement Officials945

Article 1

Law enforcement officials shall at all times fulfil the duty imposed upon
them by law, by serving the community and by protecting all persons against
illegal acts, consistent with the high degree of responsibility required by their
profession.

Article 2

In the performance of their duty, law enforcement officials shall respect

and protect human dignity and maintain and uphold the human rights of all
persons.

Article 3

Law enforcement officials may use force only when strictly necessary and
to the extent required for the performance of their duty.

Article 4

Matters of a confidential nature in the possession of law enforcement

officials shall be kept confidential, unless the performance of duty or the needs of
justice strictly require otherwise.

Article 5

No law enforcement official may inflict, instigate or tolerate any act of

torture or other cruel, inhuman or degrading treatment or punishment, nor may
any law enforcement official invoke superior orders or exceptional circumstances
such as a state of war or a threat of war, a threat to national security, internal

945
Adopted by General Assembly resolution 34/169 of 17 December 1979.

324
political instability or any other public emergency as a justification of torture or
other cruel, inhuman or degrading treatment or punishment.

Article 6

Law enforcement officials shall ensure the full protection of the health of
persons in their custody and, in particular, shall take immediate action to secure
medical attention whenever required.

Article 7

Law enforcement officials shall not commit any act of corruption. They
shall also rigorously oppose and combat all such acts.

Article 8

Law enforcement officials shall respect the law and the present Code.
They shall also, to the best of their capability, prevent and rigorously oppose any
violations of them.

Law enforcement officials who have reason to believe that a violation of

the present Code has occurred or is about to occur shall report the matter to their
superior authorities and, where necessary, to other appropriate authorities or
organs vested with reviewing or remedial power.

Concept of Public Interest Litigation

Since early 1980s the Supreme Court of India has developed a procedure
which enables any public spirited citizen or social activist to mobilise favourable
judicial concern on behalf of the oppressed classes. The medium through which
the access to justice has been democratized is called 'Public Interest Litigation'
(PIL). Indian PIL is home grown and in the product of direct social, historical and
political forces and has nothing in common with American Public Interest
Litigation, Professor Upendra Baxi, one of India's foremost legal scholars,
preferred to describe the new legal phenomenon as 'Social Action Litigation
which was desired to be used only as an instrument of Social change genuinely on
behalf of the victimized and oppressed class. 946 The concept of Public interest
litigation is a public redress system unique to India. It cuts through the usual

946
K.L. Vibhuti, Criminal Justice 200 (2004)

325
lengthy and costly legal formalities by allowing the protest victims of human
rights abuses to approach the Supreme Court directly, or if the victim cannot do so
himself or herself, through a bonafide organisation or person. The Supreme Court
has even acted on a simple letter or postcard written by a prisoner. The Supreme
Court's Judgement in the Sheela Barse947 case resulted from a letter of journalist
who had written to the court complaining of custodial violence to which women
were subjected in the Bombay Police station.
Traditionally, only a person whose own right was in jeopardy was entitled
to seek a remedy. However, the Supreme Court through its rulings in the People's
Union for Democratic Rights and other v. Union of India 948 has considerably
relaxed this traditional rule. The Court was permits PIL or Social interest litigation
at the instance of "Public spirited citizen" for the enforcement of constitutional
and legal rights of any person or group of persons who because of their socially or
economically disadvantage position are unable to approach court for relief. In the
Sunil Batra case.949 The Supreme Court accepted a letter of one prisoner as writ
petition, complaining of a brutal assault by a Head Warden on another co-
prisoner. The Court held:
"Technicalities and legal niceties are no impediment to the court
entertaining even an informal communication as proceeding for Habeas
Corpus if the Basic facts are found".

In People Union Case,950 the Court laid down the scope and nature of PIL Justice
Bhagwati observed thus:

PIL which a strategic arm of legal movement and which is intended to

bring justice within the reach of poor masses, who constitute the low
visibility area of humanity, is a totally different kind of litigation from the
ordinary traditional litigation which is essentially of an adversary character
where there is a dispute between litigating parties. PIL is brought before
the court not for the purpose of enforcing the right of one individual

947
Sheela Barse v. State of Maharashtra, AIR "1983 SC 378-80.
948
AIR 1982 SC 1473.
949
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675:1978 CrI.LJ, 1745.
950
AIR 1982 SC 1473.

326
 against another as happens in the case of ordinary litigation's, but is
intended to promote PIL which demands justice to large number of people
who are poor and ignorant.

The first reported case of PIL in 1979 focused on the inhuman conditions
of prisons and under trial prisoners. In Hussainara Khatoon v. Home Secretary.
State of Bihar,951 the PIL was filed by an advocate on the basis of a news report
highlighting the plight of thousands of under trial prisoners languishing in various
jails in Bihar. This litigation exposed the failure of the criminal justice system and
led to chain of proceeding resulting in the release of over 40,000 under trial
prisoners. Right to speedy justice emerged as basic fundamental right which had
been denied to these prisoners. This litigation also generated public debate on
prison reform.

In 1981 the case of Anil Yadav v. State of Bihar952 exposed horrific police
Brutalities. A news report revealed that about 33 suspected criminals were blinded
by police in Bihar by putting acid into their eyes. In response to a PIL, the
Supreme Court deputed its Registrar to visit Bhagalpur and investigate the truth.
Through interim orders the court quashed the trial of blinded persons condemned
the police for their cruel act and directed the state government to bring the blinded
men to Delhi for medical treatment. It also ordered speedy prosecution of the
guilty policemen. The Court read right to free legal aid as a fundamental right of
very accused. Session judges throughout the country were directed to inform each
accused about his fundamental right to legal aid.

The response of the courts in handling cases of police excesses has been
mixed one. Immediately after assassination of Prime Minister Indira Gandhi in
1984 a communal riot occurred in Delhi and other parts of the country in which
many members of the Sikh community lost their lives. A civil liberties group
approached the Delhi High Court for appointment of a Commission of inquiry and
a direction to the CBI to conduct an investigation into the role of police. Rejecting
their prayers, the High Court held that in PIL there could be no Precedents and

951
(1980)1 SCC 98.
952
(1982)2 SCO 195

327
direction in PIL could be given only if they were effective.

According to the court, there was no need to distrust the police and
politicians as they were equally concerned with human rights."953

In striking contract to the above approach of judicial reluctance to make

police their adversaries, the Supreme Court became very critical about the 'Police
Raj' in the country while hearing a P1L alleging Police Brutalities on a judicial
officer in Gujarat. In this case telegram was sent by an association of Delhi
judicial officer to the Supreme Court alleging assault, handcuffing and brutal
torture of the Chief Judicial Magistrate, Nadiad, in the streets by certain police
officers. The Supreme Court condemned the police Brutalities in strong term and
ordered their punishment in the exercise of its contempt power.954
A Civil liberties group through PIL drew the Supreme Court attention to
the police atrocities committed against poor people who were forcibly taken to a
police station in Delhi to work there without wages. One person died of police
beating. The court awarded Rs.50,000 as interim compensation to the next of kin
of deceased and ordered the recovery of the amount from the policemen. 955 A
nine-year old child was beaten to death by the police. In response to a PIL the
mother of the child got Rs. 95.000/- as interim compensation.956 Illegal detention
of a youth aged 21 years was reported to Delhi police commissioner who paid no
heed to complaint. The Court ordered an inquiry which revealed 51 injuries on the
person of the youth as a result of which he died. The High Court of Delhi awarded
Rs.5,50,000/- as compensation to the next kin of the deceased.957
PIL has undoubtedly producing astonishing results which were
unthinkable two decades ago. Tortured under trials humiliated inmates of
protective women's home, blinded prisoners, exploited children and many other
have liberated through judicial intervention. The great contribution of PIL has
been to enhance the accountability of governments towards human rights of the

953
PUCL v. Ministry of Home Affairs, AIR 1985 Del- 268.
954
Delhi Judicial Services Association v. State of Gujarat, (1991 )4 SCC 406.
955
PUDR v. Commissioner of Police, Delhi, (1989). Scale 114.
956
Saheli v. Commissioner of Police, Delhi, (1980) 1 SCC 422; 1990 SCC Cr.U 145.
957
Geeta v. Lt. Governor, Delhi, 1998, Delhi Law Times, 822.

328
poor.

The Law Commission Report

The Law Commission in its report has stated that, the principles of
victimology have foundation in India Constitutional jurisprudence. The provisions
of fundamental right (Part-Ill) and directive principles of state policy (Part IV) of
the Indian Constitution form the bulwark for a new social order in which social
and economic justice blossom in the national life of the country. Article 41
mandates, inter alia, that the state shall make effective disablement in other cases
of undeserved want.958

The Report had said further that, the principles of compensation to crime
victims need to be reviewed and expanded to cover all cases. The compensation
should not only be limited to fines, penalties and forfeiture realized. The state
should accept the principles of providing assistance to victims out of its own funds
(i) in cases of acquittals, or (ii) where the offence is not traceable, but the victim is
identified, or (iii) and also in cases when the offence is proved." In view of the
lacunae in the existing provision for compensation to crime victims under the
criminal law, the Law Commission of India had stated that it is necessary to
incorporate a new section 357 A in the code of Criminal Procedure to provide for
a comprehensive scheme of payment of compensation for all victims fairly and
adequately by the Court. As result section 357 A was inserted by Act 5 of 2009.959

Justice Malimath Committee Report

Malimath Committee had made recommendations of far reaching

significance to improve the position of victims of crime in the criminal justice
system and to provide justice to the victims. The committee focused on justice to
victims and made many recommendations, including the victim's right to
participate in cases involving serious crime to adequate compensation. Some of
the significant recommendation includes:960

(i) The victims and if he is dead, his legal representative shall have the right

958
Supra note 79 at 452.
959
Sec 28(w.e.f 31/12/2009).
960
Justice Malimath Committee Report.

329
 to be impleaded as a party in every criminal proceeding.

(ii) In select cases notified by the appropriate government with the permission
of the court, an approved voluntary organization shall also have the right
to implead in court proceedings.

(iii) The victim has a right to be represented by an advocate of his choice;

provided that an advocate shall be provided at the cost of the state if the
victim is not in a position to afford lawyer.

(iv) The victim's right to participate in criminal trial shall, inter alia, include:

(a) To produce evidence, oral or documentary, with leave of the court

and/or to seek directions for production of such evidence.

(b) To be heard in respect of the grant or cancellation of bail.

(c) To be heard whenever prosecution seeks to withdraw and to offer

to continue the prosecution.

(d) To adverse arguments after the prosecutor has submitted

arguments.

(v) The victims shall have a right to prefer an appeal against any adverse order
passed by the court acquitting the accused, convicting for a lesser offence,
imposing inadequate sentence, or granting inadequate compensation. Such
appeal shall lie to the court to which an appeal ordinarily lies against the
order of conviction of such court.

(vi) Victim compensation is a state obligation in all serious crimes, whether the
offender is apprehended or not, convicted or acquitted. This is to be
organized in a separate legislation by parliament. The draft bill on the
subject submitted to Government in 1995 by Indian Society of
Victimology provides a tentative framework for consideration.

(vii) The victim compensation law will provide for the creation of a Victim
Compensation fund to be administered possibly by the Legal Service
Authority. The law should provide for the scale of compensation in
different offences for the guidance of the court. It may specify offences in
which compensation may not be granted and conditions under which it

330
 may be awarded or withdrawn.

The Report, while proposing ways to augment the state's resources for
compensation fund, emphasized that dispensing justice to victims of crime cannot
be ignored any longer on grounds of scarcity if resources.

National Commission to Review the Working of the Constitution

The Commission to review the working of the constitution (Government of

India, 2002) has advocated a victim orientation to criminal justice administration.
In views of the commission, 'Victim Orientation includes greater respect and
consideration towards victims and their rights in the investigative and prosecution
processes, provision for greater choices to victims in trial and disposition of the
accused, and a scheme of reparation/ compensation particularly for victims of
violent crimes. According to the Commission, the case for a viable, social justice -
Oriented and effective scheme for compensation to victims was widely felt. The
commission recommended to the union and state governments that under the
directive principles of state policy and under international human right
obligations, it should legislate on the subject with an effective scheme of
compensation for victims of crime without further delay. The commission felt that
if the compensation scheme were to be introduced even in a modest scale, the
criminal justice system might receive tremendous support from the people as it
will ensure social justice, therefore, there is a strong Justification for the state to
find resources to float the scheme immediately.961

National Human Rights Commission

Every individual must have some rights against the State or other Public
authority by virtue of his being a member of the human family and such rights are
‘Human Rights’. The concept of human rights is as old as ancient doctrine of
natural rights based on natural law. Human Rights as are known now are of recent
origin. They emerge from Post Second World War International Charters and
Conventions. The first documentary use of the expression ‘human rights’ is to be
found in the Charter of the United Nations, which was adopted after the Second

961
Supra note 79 at 454.

331
World war at San Fransisco on 25th June, 1945.962 This Charter was not binding. It
merely stated the ideals which were to be later developed by different agencies
and organs. The U.N. General Assembly in December, 1948, by way of
formulating the various human rights. It was to be followed by an International
Bill of Rights which could be binding on the covenanting parties. Universal
Declaration of Human Rights was not legally binding covenant and U.N had no
machinery for its enforcement. The deficiency was sought to be removed by the
U. N. General Assembly by adopting in December, 1965 two Covenants for the
observance of human rights- (i) The Covenant on Civil and Political Rights, (ii)
963
the Covenant on Economic, Social and Cultural Rights. The first one
formulated legally enforceable rights of the individual and the second one was
addressed to the States to implement them by legislation. The two Covenants
came into force in December, 1976, after the requisite number of member States
ratified them. Many States ratified the Covenants subsequently at the end of 1981.
These Covenants are, therefore, legally binding on the ratifying States. India being
a party to the said Covenants, the President of India promulgated the Protection of
Human Rights Ordinance, 1993 under Article 123 of the Constitution of India on
28th September, 1993 to provide for the constitution of a National Human rights
Commission, State Human Rights Commissions in States and Human Rights
Courts for better protection of human rights and for matters connected therewith
or incidental thereto. To replace this Ordinance the Protection of Human Rights
Bill, 1993 was introduced in the Lok Sabha. The Protection of Human Rights Bill,
1993 was passed by both the Houses of Parliament, received the assent of the
President on 8th January, 1994 and became The Protection of Human Rights Act,
1993. 964 The National Human Rights Commission is a statutory body. It was
established in 1993 under a legislation enacted by the Parliament, namely, the
Protection of Human Rights Act, 1993. 965 The commission is the guardian of

962
From the Bare Act, Introduction to the Protection Of Human Rights Act, 1993.
963
Ibid.
964
(10 of 1994).
965
The President promulgated an ordinance the Protection of Human Rights Ordinance on
September 28,1993. Subsequently, the Protection of Human Rights Bill, 1993, was
passed by both the Houses of Parliament and received the assent of the President on

332
human rights in the country, that is, the rights relating to life, liberty, equality and
dignity of the individual guaranteed by the Constitution or embodied in the
international covenants966 and enforceable by the courts in India.

The specific objectives of the establishment of the commission are :

a) To strengthen the institutional arrangements through which human rights

issues could be addressed in their entirety in a more focused manner;
b) To look into the allegations of excesses, independently of the government,
in a manner that would underline the government’s commitment to protect
human rights; and
c) To complement and strengthen the efforts those have already been made in
this direction.

Composition of the Commission

The national Human Rights Commission has been constituted under the
Protection of Human Rights Act, 1993. In the Act it is provided that the
commission shall consist of:967

i) A Chairperson who has been a Chief Justice of the Supreme Court;

ii) One member who is; or has been' a Judge of the Supreme Court;

iii) One Member who is, or has been, the Chief Justice of a High Court;

iv) Two members to be appointed from amongst persons having

knowledge of, of practical experience in, matter relating to human
rights.

In addition to these full time members, the commission also has four ex
officio members- the Chairman of the National Commission for Minorities, the
Chairman of the National Commission for SCs, the Chairman of the National
Commission for STs and the Chairperson of the National Commission for

January 8,1994. The act came into force with retrospective effect from September 28,
1993.
966
‘International covenants’ means the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights adopted by the
General Assembly of the United Nations as the Central Government may specify. The
Indian government acceded to these two International Covenants on April 10, 1979.
967
Section 3(2) of the Protection of Human Rights Act, 1993.

333
Women.968 The Chairman and the members of the commission are appointed by
the President on the recommendations of a six member committee consisting of
the Prime Minister as its head, the Speaker of the Lok Sabha, Deputy Chairman of
the Rajya Sabha, leaders of Opposition in both the Houses of Parliament and the
Central home minister. Further, a sitting judge of the Supreme Court or a sitting
chief justice of a high court can be appointed only after consultation with the
Chief Justice of India.969 The Chairman and the members hold the office for a
term of five years or until they attain the age of 70 years, whichever is earlier.
After their tenure the Chairman and members are not eligible for further
employment under the Central or a State government. The President can remove
the Chairman or any member from the office under the following circumstances:

a) If he is adjudged an insolvent; or
b) If he engages, during his term of office, in any paid employment outside
the duties of his office; or
c) If he is unfit to continue in office by reason of mind or body; or
d) If he is of unsound mind and stand so declared by a competent court; or
e) If he is convicted and sentenced to imprisonment for an offence.

In addition to these, the President can also remove the chairman or any
member on the ground of proven misbehaviour or incapacity. However in these
cases the, the President has to refer the matter to the Supreme Court for an
inquiry. If the Supreme Court, after the inquiry, upholds the cause of removal and
advises so, then the President can remove the Chairman or a Member. The
salaries, allowances and other conditions of service of the Chairman or a member
are determined by the Central Government. But they cannot be varied to his
disadvantage after his appointment. All the aforementioned provisions are aimed
at securing autonomy, independence and impartiality in the functioning of the
commission.

968
Section 3(3) of The Protection of Human Rights Act, 1993.
969
Section 4 of the Protection of Human Rights Act, 1993.

334
Functions of the Commission

The functions of the Commission are970 :

a) To inquire into any violation of human rights or negligence in the

prevention of such violation by a public servant, either suo motto or on a
petition presented to it or on an order of a court.
b) To intervene in any proceeding involving allegation of violation of human
rights pending before a court.
c) To visit jails and detention places to study the living conditions of inmates
and make recommendation thereon.
d) To review the constitutional and other legal safeguards for the protection
of human rights and recommend measures for their effective
implementation.
e) To review the factors including acts of terrorism that inhibit the enjoyment
of human rights and recommend remedial measures.
f) To study treaties and other international instruments on human rights and
make recommendations for their effective implementation.
g) To undertake and promote research in the field of human rights.
h) To spread human rights literacy among the people and promote awareness
of the safeguards available for the protection of these rights.
i) To encourage the efforts of non-governmental organizations working in
the field of human rights.
j) To undertake such other functions as it may consider necessary for the
promotion of human rights.

Working of the Commission

The commission’s headquarters is at Delhi and it can also establish offices

at other places in India.971It is vested with the power to regulate its own procedure.
It has all the powers of a civil court and its proceedings have a judicial character.
It may call for information or report from the Central and State governments or
any other authority subordinate thereto. The Commission has its own nucleus of

970
Section 12 of the Protection of Human Rights Act,1993.
971
Section 3(5) of The Protection of the Human Rights Act, 1993.

335
investigating staff for investigation into complaints of human rights violations.
Besides, it is empowered to utilise the services of any officer or investigation
agency of the Central government or any State government for the purpose. It has
also established effective cooperation with NGOs with first hand information
about human rights violations. The commission is not empowered to inquire into
any matter after the expiry of one year from the date on which the act constituting
the violation of human rights is alleged to have been committed. In other words, it
can look into a matter within one year of its occurrence.972

The Commission may take any of the following steps during or upon the
completion of an inquiry 973:

a) It may recommend to the concerned government or authority to make

payment of compensation or damages to the victim;
b) It may recommend to the concerned government or authority the initiation
of proceedings for prosecution or any other action against the guilty public
servant;
c) It may recommend to the concerned government or authority for the grant
of immediate interim relief to the victim;
d) It may approach the Supreme Court or the High Court concerned for the
necessary directions, orders or writs.

The Commission has, from its inception, been playing a pivotal role in
developing a culture of Human Right System in the Country. It has built edifice of
Human Rights accountability on the foundation of autonomy and transparency.
The commission has been discharging its vast and varied functions entrusted to it
under Section 21 of the Act in a quite methodological and systematic manner.974

The Commission has set the broad terms of its agenda as under:975

(i) Protection of civil liberties.

(ii) Review of laws, implementation of treaties and other instrument of

972
T.K.Thommen, “Human Rights Commission,” 67-68, Cochin University Law Review,
Vol. XVII).
973
Section 18 of the Protection of Human Rights Act 1993.
974
Mohinder Singh Malik, Human Rights, 298-99(2004).
975
Ibid.

336
 HRs.

(iii) Right of the vulnerable.

(iv) Promotion of HRs literacy and awareness.

(v) State Human Rights Commissions and District Human Rights Courts.

(vi) Interaction with external groups and organizations.

(vii) Inquiry into complaints.

National Human Rights Commission has shown deep concern with the
existence of the evils of police torture and violence in custody in the country and
has strongly pleaded for their abolition and avoidance from time to time, it has
either been taking cognizance of these violations on the basis of the complaints
made to it by private persons or on the basis of the report sent by the government
officials.976

According to the NHRC, "Custodial Violence is a calculated assault on

human dignity and "whenever human dignity is wounded, civilization takes a step
backward." According to the commission and rightly so, the "flag of humanity on
each occasion must fly half mast."

The Commission also drew attention to the Supreme Court of India's

views, notably in the case of Kishore Singh v. State of Rajasthan977 wherein the
apex court had observed that “nothing is more cowardly and unconscionable than
a person in police custody being beaten up and nothing inflicts a deeper wound on
our constitutional rights.”

The NHRC further expressed that its concern in this matter was heightened
by awareness that most of those who were victims of police brutalities and
custodial deaths belonged to the economically poor or disadvantaged sections of
society.978

According to the commission, the country must signify to itself and to the
world that it will not countenance brutality in custody. The commission has

976
National Human Rights Annual Report, 16(-1994-95).
977
AIR 1982 SC 625.
978
National Human Rights Annual Report, 1995-96, New Delhi, pp. 13-14.

337
impressed on the need for great care in the observance of the U.N. Body of
Principals for the protection of all persons under any form of Detention and
imprisonment and implementation of the UN Standard Minimum Rules for the
treatment of Prisoners.979 There are number of other measures which have been
recommended by N.H.R.C. one of such measure, to which the N.H.R.C has
attached particular importance, relates to the implementation of decision of the
Supreme Court in the case of Joginder Singh v. Uttar Pradesh, 980 wherein it was
held down that an arrested person being held in custody was entitled, if he so
requested, to have a friend, relative or any other person who was known to him, or
likely to take an interest in his welfare, to be informed that he had been arrested
and told of where he had been detained.

Annual report of the Commission

The Commission is required to submit an annual report to the Central

Government and to the State Government concerned. However, the Commission
may submit special reports on matters which are of such urgency or importance
that should not be deferred till the submission of the annual report. The Central
Government and the State Government concerned shall place the annual report
and special reports of the commission before each House of Parliament or the
State Legislature respectively along with a memorandum of action taken on the
recommendations of the commission and the reasons for non acceptance of any of
such recommendations981.

NHRC as appropriate investigating body

The task of an investigator lies in identifying and gathering or collecting

the data that brings home the entire sequence of events that constituted the offence
under investigation in question and furthers the comprehensive and reliable as
well as scientific method that is pursued to accomplish that task.

In all cases where involvement of public officials is suspected, including

possible orders by persons in high political or administrative or other positions of

979
Ibid.
980
National Human Rights Annual Report, 1995-96, New Delhi, pp. 14-15.
981
Section 20 of the Protection of Human Rights Act, 1993.

338
authority or by their aides or by officers working with the knowledge of such
positions, it seems natural that any normal investigating agency may not find it
easy to get to the truth of the allegations and therefore it is necessary to have a
Special Commission of enquiry or such other independent body which can fulfil
those objectives of establishing the truth of the matter and for initiating steps
necessary to enforce the rule of law. From that standard international viewpoint
we can say that the establishment of the National Human Rights Commission does
meet the expectations both from the point of view of the legal standards and also
from the point of view of public credibility of such institutions. The fact that a
person who is necessarily a retired Chief Justice of the Supreme Court heads the
National Human Rights Commission makes the credibility aspect beyond doubt.
The international Standards call for such a body particularly in cases:982

1. Where the victim was last seen unharmed in police custody or detention;

2. Where the modus operandi is recognizably attributable to state sponsored

torture;

3. Where investigation by regular investigating agencies is in question

because of lack of expertise or lack of impartiality or for other reasons
including:

i) The importance of the matter, or

ii) The apparent existence of a pattern of abuse or

iii) Complaints from the person or the above inadequacies, or

iv) Other substantial reasons.

4. Where persons in the State or associated with the State have attempted to
obstruct or delay the investigation of the torture;

5. Where the public interest would be served by an independent body

The above, together with similar considerations should weigh when a state
(country) decides to establish an independent commission (like the National
Human Rights Commission - in so far as India is concerned) of inquiry. It is

982
S. Krishna Murthy, Investigation of Human Rights Abuses Committed by law
Enforcement Agency 104 (2003)

339
equally necessary to ensure that:

1. The investigators should receive the full scope of the state's resources and
power.

2. The investigators should have the power to seek help from international
community for experts in law and medicine.

3. Investigators functioning for the Commission should have the support of

adequate technical and administrative personnel as well as access to the
objective, impartial legal advice to ensure that the investigation will
produce admissible evidence in, criminal proceedings.

4. The persons who are subjected to the enquiry are guaranteed the minimum
procedural safeguards protected by international law (which is also
reflected in the Constitution of India and other relevant procedural laws of
the country) and at all stages of the investigation by the Commission.

There is also provision for inquiry into allegation of police torture by the
National Human Rights Commission under the Protection of Human Rights Act,
1993 (Act No. 10 of 1994). The Commission is doing commendable work to
prevent the abuse of human rights by the police, by clearly monitoring case of
custodial torture, custodial death and rape, all over the country and asking the
State Government to take corrective measures, including strict action against the
non serious officers. States have urged to establish district level Committees for
effective and speedy redressal of complaints of human rights violations.983

The Protection of Human Rights Act984 requires the Commission to:

(a) inquire, suo motu or on a petition presented to it by a victim or any person

on his behalf, into complaints of:

(i) violation of human rights or abetment 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 before a court with the approval of such Court.

983
Ibid.
984
Sub Sections 12(a) and 12(b).

340
 The Commission has been discharging this responsibility since its
inception in 1993. The Commission continues to receive an increasing number of
complaints of human rights violation from all over the country. The nature of the
cases include custodial deaths, rapes and torture, fake encounters, police
harassment, human rights violations by security forces, violation of rights of
women and children, dalits, schedule tribes, minorities, disables and others. Since
1993, the Commission has made concerted efforts to safeguard civil liberties of
the citizens.

Human Right Commission in the states

The Protection of Human Rights Act, 1993 envisages the setting up of not
only the National Human Rights Commission but also a State Human Rights
Commission at the State level985 because being near to the people of the respective
states they should be able to provide speedier and less expensive redress of
grievances. However, a number of states are yet to set up Human Rights
Commission. The NHRC in the meanwhile has been holding meeting with the
Chairperson and members of the existing State Human Rights Commission with a
view to developing healthy convention in the functioning of the various
commissions and to ensure that, in their effort to promote and protect human
rights in the country. The presumption is that the redressal of grievances must be
fast and inexpensive; the message of human rights must reach the grass-root level
in the language of the people of the country.

Composition of the Commission

The State Human Rights Commission is a multi member body consisting

of a chairperson and two members.986 The Chairperson should be a retired Chief
Justice of a High Court and members should be a serving or retired Judge of High
Court or a District Judge in the State with a minimum experience of seven years
as District Judge and a person having knowledge or practical experience with
respect to human rights. The Chairperson and members are appointed by the

985
This Act was amended in 2006.
986
The 2006 Amendment reduced the number of members of State Human rights
Commission from five to three and also changed the eligibility condition for appointment
of member of the Commission. Section 21(2).

341
Governor on the recommendations of a committee consisting of the Chief
Minister as its Head, the Speaker of the Legislative Assembly, the State Home
Minister and the leader of Opposition in the Legislative Assembly. In the case of a
state having Legislative Council, the Chairman of the Council and the leader of
the Opposition in the Council would also be the members of the committee.
Further, a sitting judge of a High Court or a sitting District Judge can be appointed
only after consultation with the Chief Justice of the High Court of the concerned
state. The Chairperson and members hold office for a term of five years or until
they attain the age of 70 years, whichever is earlier. 987 After their tenure the
chairperson and the members are not eligible for appointment under a State
government or the Central Government.

Although the chairperson and members of a State Human Rights

Commission are appointed by the Governor988, they can be removed only by the
President. The President can remove them on the same grounds and in the same
manner as he can remove the Chairperson or a member of the National Human
Rights Commission. Thus, he can remove the Chairperson or a member under the
following circumstances989:

a) If he is adjudged an insolvent; or
b) If he engages, during his term of office, in any paid employment outside
the duties of his office; or
c) If he is unfit to continue in office by reason of infirmity of mind or body;
or
d) If he is of unsound mind and stands so declared by a competent court; or
e) If he is convicted and sentenced to imprisonment for an offence.
In addition to these the President can also remove the chairperson or a
member on the ground of proved misbehaviour or incapacity. However, in these
cases the, the President has to refer the matter to Supreme Court for an inquiry. If
the Supreme Court, after the inquiry, upholds the cause of removal and advises so,

987
A member is eligible for re-appointment for another term of five years subject to the age
limit of 70 Years.
988
Section 22(1) of The Protection of Human Rights Act, 1993.
989
Section 23 of The Protection of Human Rights Act, 1993.

342
then the President can remove the chairperson or a member. The salaries,
allowances and other conditions of service of the chairman or a member are
determined by the state government. But, they cannot be varied to his
disadvantage after his appointment.
Functions of the Commission
The functions of the commission are 990:
a) To inquire into any violation of human rights or negligence in the
prevention of such violation by a public servant, either suo motto or on a
petition presented to it or on an order of a court.
b) To intervene in any proceeding involving allegation of violation of human
rights pending before a court.
c) To visit jails and detention places to study the living conditions of inmates
and make recommendation thereon.
d) To review the constitutional and other legal safeguards for the protection
of human rights and recommend measures for their effective
implementation.
e) To review the factors including acts of terrorism that inhibits the
enjoyment of human rights and recommend remedial measures.
f) To undertake and promote research in the field of human rights.
g) To spread human rights among the people and promote awareness of the
safeguards for the protection of these rights.
h) To encourage the efforts of nongovernmental organizations working in the
field of human rights.
i) To undertake such other functions as it may consider necessary for the
promotion of human rights.

Working of the Commission

The Protection of Human Rights Act, 1993 provides for the constitution of
State Human Rights Commission which may inquire into violation of HRs only in
respect of the entries in the State list (List II) and Concurrent list (List 111) of the

990
Section 29 of the Protection of Human Rights Act. 1993.

343
Seventh schedule of the Constitution 991 . Provided that if any such matter is
already being inquired into by the National Human Right Commission or any
other commission duly constituted under any law for the time being in force, the
state Commission shall not inquire into the said matter.992 There is a great defect
in the provision of act thus it depends upon the discretion of the state to constitute
a State Human Rights Commission.

Section 36(1) of the Act 993 provides that the National Human Rights
Commission shall not enquire into any matter which is pending before a State
Commission or any other Commission duly constituted under any law for the time
being in force. Besides this, Act provides that both the National Human rights
commission and State Human rights Commission shall not enquire any matter
after expiry of one year from the date on which the act constituting violation of
human rights alleged to have been committed. Practical arrangements have been
made to exchange information, twice a month between the NHRC and the State
Commissions so that depending upon which the commission take cognizance of a
case earlier, it could be decided as to where the matter should be pursued.
The Commission is required to submit its annual reports to the State
Government and it may submit at any time special reports on any matter which in
its opinion is of such urgency or importance that it should not be deferred till
submission of the annual report. 994 The State Government shall submit these
report before each house of State Legislature with a memorandum of action taken
or/and the reasons for non-acceptance of the recommendation, if any.995
Human Right Courts in the District

Section 30 of the Protection of Human Rights Act, 1993, envisages the

notification of Human Rights Courts for the purpose of providing speedy trials of
offences arising out of violation of human rights. While a number of states have
notified the constitution of Human Rights Courts, an ambiguity remains as to the

991
Section 21 of the Protection of Human Rights Act. 1993.
992
Section 25 of the Protection of Human Rights Act. 1993.
993
National Human Rights Protection Act, 1993.
994
Section 28(1) of National Human Rights Protection Act, 1993.
995
Section 28(1) of National Human Rights Protection Act, 1993.

344
precise nature of the offences that should be tried in such courts and other details
regarding conduct of their business.996 For every Human Rights Court, the State
Government in accordance with section 31 of the Act shall appoint a Public
Prosecutor or an advocate who has been in Practice as an advocate for not less
than seven years for the purpose of conducting cases in the Human Rights Courts.
Such a person shall be called a special Public Prosecutor. For the purpose of
providing for speedy trial of offences arising out of violation of human rights, the
state government may, with the concurrence of the Chief Justice of the High
Court, by notification, specify for each district a court of session to be a Human
Rights Court to try the said offences. However, this shall not apply in two
conditions i.e. (i) if a Court of Session is already specified as special court (ii) if a
special court is already constituted.997 Thus, we find that it is not mandatory but
discretionary to specify any court of session to be Human Right Courts for trying
the offences dealing with human rights violations. The provision in section 30 is
weak, for it uses the word "may" that is to say, it is not mandatory for the State
Government to establish Human Rights Courts, in each District.

National Commission for Scheduled Castes

The National Commission for Scheduled Castes is a constitutional body in

the sense that it is directly established by Article 338 of the Constitution. 998On the
other hand, the National Commission for Women (1992), the National
Commission for Minorities (1993), the National Commission for Backward
Classes (1993), the National Human Rights Commission (1993) and the national
Commission for Protection of Child Rights (2007) are statutory bodies in the
sense that they are established by acts of the Parliament.999

Evolution of the Commission

Originally, Article 338 of the Constitution provided for the appointment of

a Special Officer for Scheduled Castes and Scheduled Tribes to investigate all

996
Section 30 of Protection Human Rights Act, 1993.
997
Section 2-C read with Section 30 of the Protection Human Rights Act, 1993.
998
Article 338 is contained in Part XVI entitled as ‘Special Provisions Relating to Certain
Classes.’
999
The years in the bracket indicate the years of their establishment.

345
matters relating to the constitutional safeguards for the Scheduled Castes and
Scheduled Tribes and to report to the President on their working. 1000 He was
designated as the commissioner for SCs and STs and assigned the said duty.

In 1978, the Government (through a Resolution) set up a non statutory

multi member Commission for SCs and STs; the Office of Commissioner for SCs
and STs also continued to exist. In 1987, the Government (through another
Resolution) modified the functions of the Commission and renamed it as the
National Commission for SCs and STs.

Later, the 65th Constitutional Amendment Act of 19901001 provided for

the establishment of a high level multi member National Commission for SCs and
STs in place of a single Special Officer for SCs and STs. This constitutional body
replaced the Commissioner for SCs and STs as well as the Commission set up
under the Resolution of 1987.

Again, the 89th Constitutional Amendment Act of 2003 1002 bifurcated the
combined National Commission for SCs and STs into two separate bodies namely,
National Commission for Scheduled Castes 1003 and National Commission for
Scheduled Tribes.1004

The separate National Commission for SCs came into existence in2004. It
consists of a Chairperson, a Vice Chair person and three other members. They are
appointed by the President by warrant under his hand and seal. Their conditions of
service and tenure of office are also determined by the President.1005

Functions of the Commission

The functions of the Commission under the Constitution of India are 1006:

a) To investigate and monitor all matters relating to the constitutional and

other legal safeguards for the SCs and to evaluate their working;

1000
The Constitutional safeguards for the SCs and STs are explained in the Constitution.
1001
The Act came into force on 12/03/1992.
1002
The Act came into force on 19/02/2004.
1003
Under Article 338 of the Constitution of India.
1004
Under Article 338-A of the Constitution of India.
1005
Under the Rules, they hold the Office for a term of three years.
1006
Under Article

346
 b) To inquire into specific complaints with respect to the deprivation of rights
and safeguards of the SCs;
c) To participate and advise on the planning process of socio economic
development of the SCs and to evaluate the progress of their development
under the Union or a State;
d) To present to the President, annually and at such other times as it may
deem fit, reports upon the working of those safeguards.
e) To make recommendations as to the measures that should be taken by the
Union or a State for the effective implementation of those safeguards and
other measures for the protection, welfare and socio economic
development of the SCs; and
f) To discharge such other functions in relation to the protection, welfare and
development and advancement of the SCs as the President may specify.

Report of the Commission

The Commission presents an annual report to the President. It can also

submit a report as and when it thinks necessary. The President places all such
reports before the Parliament, along with a memorandum explaining the action
taken on the recommendations made by the Commission. The memorandum
should also contain the reasons for the non acceptance of any of such
recommendations. The President also forwards any report of the commission
pertaining to a State government to the State Governor. The Governor places it
before the State Legislature, along with a memorandum explaining the action
taken on the recommendations of the Commission. The memorandum should also
contain the reasons for the non acceptance of any of such recommendations.

Powers of the Commission

The Commission is vested with the power to regulate its own procedure.
The Commission, while investigating any matter or inquiring into any complaint,
has all the powers of a civil court trying a suit and in particular in respect of the
following matters:

a) Summoning and enforcing the attendance of any person from any part of
India and examining him on oath;

347
 b) Requiring the discovery and production of any document;
c) Receiving evidence on affidavits;
d) Requisitioning any public record from any court or office;
e) Issuing summons for the examination of any witness and documents; and
f) Any other matter which the President may determine.

The Central Government and the State governments are required to consult
the Commission on all major policy matters affecting the SCs. The Commission is
also required to discharge similar functions with regard to the Other Backward
Classes and the Anglo Indian Community as it does with respect to the SCs. IN
other words, the Commission has to investigate all matters relating to the
constitutional and other legal safeguards for the OBCs and the Anglo Indian
Community and report to the President upon their working.1007

National Commission for the Scheduled Tribes

The National Commission for Scheduled Tribes is a Constitutional body in

the sense that it is directly established by Article 338 A of the Constitution.1008
The National Commission for SCs and STs came into being consequent upon
passing of the 65th Constitutional Amendment Act of 1990.1009Geographically and
culturally, the STs are different from the SCs and their problems are different
from those of SCs. In 1999, a new Ministry of Tribal Affairs was created to
provide a sharp focus to the welfare and development of the STs. It was felt
necessary that the Ministry of Tribal Affairs was created to provide a sharp focus
to the welfare and development of the STs. It was felt necessary that the Ministry
of Tribal Affairs should co ordinate all activities relating to the STs as it would
not be administratively feasible for the Ministry of Social Justice and
Empowerment to perform this role.1010 Hence in order to safeguard the interests of

1007
Clause 10 of Article 338 reads as follows: “In this article, references to the Scheduled
Castes shall be construed as including references to such other backward classes as the
President may, on receipt of the report of a Commission appointed under clause(1) of
article 340 by order specify and also to the Anglo Indian Community.
1008
Article 338A is contained in Part XVI entitled as ‘Special Provisions Relating to Certain
Classes’. This Article was inserted by the 89th Constitutional Amendment Act of 2003.
1009
The Act came into force on 12/03/1992.
1010
The Ministry of Social Justice and Empowerment coordinates all activities relating to the
SCs.

348
the STs more effectively, it was proposed to set up a separate National
Commission for STs by bifurcating the existing combined National Commission
for SCs and STs. This was done by passing the 89th Constitutional Amendment
Act of 2003. This Act further amended Article 338 and inserted a new Article 338
a in the Constitution. The separate National Commission for STs came into
existence in 2004. It consists of a Chairperson, a Vice Chairperson and three other
members. They are appointed by the President by warrant under his hand and seal.
Their conditions of service and tenure of office are also determined by the
President.1011

Functions of the Commission

The functions of the Commission under the Constitution of India are 1012:

a) To Investigate and monitor all matters relating to the constitutional and

other legal safeguards for the STs and to evaluate their working;
b) To inquire into specific complaints with respect to the deprivation of rights
and safeguards of the STs;
c) To participate and advise on the planning process of socio economic
development of the STs and to evaluate the progress of their development
under the Union or the State;
d) To present to the President, annually and at such other times as it may
deem fit, reports upon the working of those safeguards;
e) To make recommendations as to the measures that should be taken by the
Union or a State for the effective implementation of those safeguards and
other measures for the protection, welfare and socio economic
development of the STs; and
f) To discharge such other functions in relation to the protection, welfare and
development of the STs as the President may specify.

Report of the Commission

The commission presents an annual report to the President. It can also

submit a report as an when it thinks necessary. The President places such reports

1011
Under the Rules, they hold the office for a term of three years.
1012
Article 338 A Clause 5 Of the Constitution of India defines the duties of the Commission.

349
before the Parliament, along with a memorandum explaining the action taken on
the recommendations made by the Commission. The memorandum should also
contain the reasons for the non acceptance of any of such recommendations1013.

The President also forwards any report of the Commission pertaining to a

state government to a state governor. The Governor places it before the State
Legislature, along with a memorandum explaining the action taken on the
recommendations of the Commission. The memorandum should also contain the
reasons for the non acceptance of any of such recommendations1014.

Powers of the Commission

The Commission is vested with the power to regulate its own procedure.
The Commission while investigating any matter or inquiring into any complaint,
has all the powers of a civil court trying a suit and in particular in respect of the
following matters1015:

a) Summoning and enforcing the attendance of any person from any part of
India and examining him on oath;
b) Requiring the discovery and production of any document;
c) Receiving evidence on affidavits;
d) Requisitioning any public record from any court or office;
e) Issuing summons for the examination of witnesses and documents; and
f) Any other matter which the President may determine.

The Central Government and the State Governments are required to consult the
Commission on all major policy matters affecting the STs.

Role of NGO's in Protection and Promotion of Human Rights

Many organizations around the world dedicate their efforts to protecting

human rights and ending human rights abuses. Globally, the champions of human
rights have most often been citizens, not government officials. In particular,
nongovernmental organizations (NGOs) have played a primary role in bringing

1013
Under Article 338A Clause 6 of the Constitution of India.
1014
Under Article 338A Clause 7 of the Constitution of India.
1015
Under Article 338A Clause 8 of the Constitution of India.

350
 the focus of the international community on human rights issues. NGOs monitor
the actions of governments and pressure them to act according to human rights
principles.1016

Human Rights and NGOs

Human Rights are rights inherent to all human beings, whatever our
nationality, place of residence, sex, national or ethnic origin, colour, religion,
language or any other status. We are all equally entitled to our Human Rights.

The Protection of Human Rights Act, 1993 has defined the term “Human
Rights” as follows1017:

“Human rights mean the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the constitution or embodied in international covenants
and enforced by courts in India.”

Fundamental Human Rights

Human rights are the most fundamental and important of rights. They are the
rights that the United Nations aims to protect for all people. These rights would
exist even without government protection or intervention.

Some examples of human rights include 1018:

 The right to life

 The right to liberty and freedom
 The right to the pursuit of happiness
 The right to live your life free of discrimination
 The right to control what happens to your own body and to make medical
decisions for yourself
 The right to freely exercise your religion and practice your religious beliefs
without fear of being prosecuted for your beliefs
 The right to be free from prejudice on the basis of race, gender, national origin,
colour, age or sex

1016
Available at : https/www.humanrights.com, Accessed on Oct 4, 2016.
1017
Section 2(d) of the Protection of Human rights Act, 1993.
1018
Available at : https/www.examples.yourdictionary.com, Accessed on Oct 4,2016.

351
 The right to grow old
 The right to a fair trial and due process of the law
 The right to be free from cruel and unusual punishment
 The right to be free from torture
 The right to be free from slavery
 The right to freedom of speech
 The right to freely associate with whomever you like and to join groups of which
you'd like to be a part.
 The right to freedom of thought
 The right not to be prosecuted from your thoughts

A non-governmental organization (NGO) is a “not-for-profit organization”

that is independent from states’ and international governmental organisations.
They are usually funded by donations but some avoid formal funding altogether
and are run primarily by volunteers. NGOs are highly diverse groups of
organizations engaged in a wide range of activities, and take different forms in
different parts of the world. Some may have charitable status, while others may be
registered for tax exemption based on recognition of social purposes. Others may
be fronts for political, religious, or other interests1019.

The term 'NGO' is not always used consistently, in some countries the term
NGO is applied to an organization whereas in another country it may be called
an NPO (non-profit organization).1020 There are many different classifications of
NGO in use. The most common focus is on "orientation" and "level of operation".
An NGO's orientation refers to the type of activities it takes on. These activities
might include human rights, environmental, improving health, or development
work. An NGO's level of operation indicates the scale at which an organization
works, such as local, regional, national, or international.1021

1019
Available at : https/www.wikipedia.org, (accessed on October 4, 2016).
1020
Vakil, Anna (1997). "Confronting the classification problem: Toward a taxonomy of
NGOs". World Development.
1021
Vakil, Anna (1997). "Confronting the classification problem: Toward a taxonomy of
NGOs". World Development.

352
 The term "non-governmental organization" was first coined in 1945, when
the United Nations (UN) was created. 1022 The UN, itself an inter-governmental
organization made it possible for certain approved specialized international non-
state agencies — i.e., non-governmental organizations — to be awarded observer
status at its assemblies and some of its meetings. Later the term became used more
widely. Today, according to the UN, any kind of private organization that is
independent from government control can be termed an "NGO", provided it is not-
for-profit, non prevention, and not simply an opposition political party.1023

The Economic aid social council of the United Nations by adopting a

resolution [288 (X)] on February 27, 1950 defined the non-governmental
organizations as private associations and they denote significant resources to the
promotion and protection of human rights. They are independent of both
government and all political groups which seek direct political power. Human
Right NGO'S are different from NGO'S involved in other fields in the sense that the
former seek to protect the right of all members of the society and not a particular
group or constituents.1024

N.G.O's, whether their activities are spread worldwide or confined to one

country, contribute substantially in different ways in the promotion and protection
of human rights. They perform different functions depending upon the purpose for
which they are established. NGO'S can have a dialogue with government to respect
international standards for human rights. NGO's may work directly with victims
and assist in solving their problems. Thus, they may perform the task of service
providers; they may take initiative in bringing those cases before the courts of law
where a right has been violated but no action has been taken by the victims to
secure the redress either because of the lack of resources or because of the
ignorance; NGO'S may file writ petitions before the courts by way of public interest
litigation for the purpose of providing access to Justice; NGO'S may perform the
task of processing of information, i.e. educating people about the extent of their

1022
Davies, Thomas (2014). NGOs: A New History of Transnational Civil Society. New York:
Oxford University
1023
Supra note 892.
1024
Ibid.

353
rights and disseminating information about rights violation.1025

NGOs works in different fields such as 1026:-

-Civil and Political rights

– Women’s Rights
– Children’s Rights
– Minority Rights
– Labour Rights
– Health Rights
– Right to Education
– Right to Liberty and Security
– Right to due process and fair trial
–Freedom of Religion
– Freedom of Expression
– Right to Food
– Peace
– Environment
– Humanitarian Issues.

Human rights violations occur when actions by state (or non-state) actors
abuse, ignore, or deny basic human rights (including civil, political, cultural,
social, and economic rights). Furthermore, violations of human rights can occur
when any state or non-state actor breaches any part of the UDHR treaty or other
international human rights or humanitarian law. In regard to human rights
violations of United Nations laws, Article 39 of the United Nations
Charter designates the UN Security Council (or an appointed authority) as the
only tribunal that may determine UN human rights violations.

There are various types of Human Right abuses such as Police torture,
Sexual Violence, Forced Labour which includes Debt Bondage, Child Labour,
Human Trafficking, Religious Violence, Freedom of Expression, LGBT Rights
and so on. N.G.O's, whether their activities are spread worldwide or confined to

1025
ld .
1026
Available at : https/www.jus.uio.no

354
one country, contribute substantially in different ways in the promotion and
protection of human rights. They perform different functions depending upon the
purpose for which they are established. NGO's may work directly with victims
and assist in solving their problems or have a dialogue with government to respect
international standards for human rights. NGO’s take initiative in bringing those
cases before the courts of law where a right has been violated but action has not
been taken by the victims to secure the redress which may be because of lack of
resources or because of the ignorance; hence they file various cases, writs and
public interest litigations for the purpose of providing access to Justice; NGO'S also
perform the task of processing of information, i.e. educating people about the
extent of their rights and disseminating information about rights violation.
According to the Protection of Human Rights Act, 1993; the National
human Rights Commission shall inquire, suo motu or on a petition presented to it
by a victim or any person on his behalf into complaint of violation of human
rights or abetment; or negligence in the prevention of such violation, by a public
servant.1027
Here any other person may be NGO also. Non Governmental human rights
groups have contributed to the cause of human rights through independent and
non-biased investigation into the allegations of violence and injustices. These
groups have exposed the involvement of the State and its institutional enforcement
agencies in the abuse of people's rights and freedom.

Further according to The National Human Rights Commission (procedure),1028

the Commission can, in any given case have in its team an appropriate number of
outsiders to be associated with the investigation. 1029 Thus NGOs are also
associated with the investigation team.

Thus NGOSs act by:--

-Identifying and Exposing various issues which need attention.

-Pressurising the Government to act.

1027
Sec 12(a) The Protection of Human Rights Act, 1993.
1028
Regulation No. 18.
1029
Regulation 18 of The National Human Rights Commission (Procedure) Regulations,
1994.

355
-Approaching the Judiciary for seeking redresses of the grievances.

-Asking for submission of reports.

-Organise conferences, and Awareness programmes; and

-Publish their own reports and journals that address human rights issues.

- Studying and making recommendation on specific issues.

The Supreme Court and various High Courts have also in various land
mark judgements lauded the role of NGOs a few of them are P.U.C.L v. Union of
India, Vishaka & Ors v. State of Bihar & Ors, Peoples’ Union for Democratic
Rights v. Union of India, Bandhua Mukti Morcha v. Union of India & Ors, Saheli
v. Commissioner of Police, Peoples Union for Democratic rights v. Police
Commissioner Delhi Headquarters, PUDR v. State of Bihar etc.

The Government of India has already had the benefit of interacting with a
large number of NGO's both Indian and foreign. To the cause of human rights we
can evaluate the role of some Non-Governmental Organizations (NGO's) an Civil
Rights Group and their vital role in disclosing the various incidents of police
atrocities and violence. These organizations have played a crucial role in
monitoring and spreading awareness among peoples of their rights and exposing
the violent nature of the state. The most prominent of these groups are the Peoples
Union for Democratic Rights (PUDR) and the People Union for Civil Liberties
(PUCL) were formed after the split in the first and only national human rights
organizations, the People Union for Civil Liberties and Democratic Rights
(PUCLDR). The PUCL and the PUDR have widely contributed to the civil rights
movement. Other civil rights groups had emerged in the wake of state oppression
and repression in West-Bengal, Andhra Pradesh and Punjab. They are the
Association for the Protection of Democratic Rights (ADPR) in West Bengal, the
Andhra Pradesh Civil Liberties Committee (APCLC) and the Association for
Democratic Rights (AFDR) in Punjab. Some International Civil Rights Group -
Amnesty International (AI), the Human Rights watch Asia (HRWA) and the
International Commission of Jurists (ICJ) have also actively engaged in
monitoring violations. Amnesty's contribution lies in its examination of specific
issue of human rights concern, such as detentions without trial, systematic use of

356
torture, disappearances and extra judicial execution of political activities.

There are various independent groups operating throughout India in

investigating abuses and publishing their findings which are often the basis for
reports by international human right groups. Some of them are discussed
subsequently.

Role of International Human Rights Group Active in India

Amensty International1030

A number of international organizations have begun focusing their

attention on the question of torture, in recent years. Some non-governmental
organizations having their network throughout the world have been very active.
They include the Amnesty International, the international Commission of Jurists,
the International Catholic Movement for Intellectual and Cultural Affairs etc. one
of the basic objectives of the Amnesty is:
Opposing by all appropriate means the imposition and inflection of death
penalties and torture or other cruel, inhuman and degrading treatment or
punishment of prisoners or other detained or restricted persons whether or not they
have used or advocated violence.1031
Right from the beginning, it has been guided by the principle, "that every
man, woman, and child is of value, that none should be made to suffer for holding
or expressing his own opinions."1032

Amnesty International is a worldwide movement of people campaigning to

protect human rights. It was started in 1961. Peter Benson an advocate wrote an
article in the Observer news paper and started a campaign appeal for amnesty
because two students who raised voice for independence were arrested; this was
the reason for writing the article. It has a vision of a world in which every person
enjoys all of the rights stated in the Universal Declaration of Human Rights and
other international human rights standards.

The basic objective of the Amnesty International is to oppose by all

1030
Available at : https/www. amnesty.org., (accessed on August 25, 2016).
1031
Clause 1 of Amnesty Statutes setting out its objectives at the website of Amnesty.
1032
Amnesty Report on Torture, 7-8(1973).

357
appropriate means the imposition and inflection of death penalties and torture or
other cruel, inhuman and degrading treatment or punishment of prisoners or other
detained or restricted persons whether or not they have used or advocated
violence.1033

The Indian Section of the Amnesty International was founded in Delhi in

September, 1968 at the initiative of Shri Jai Prakash Narain and Mrifula Sarabhai,
Mrs. Matti Singh, was the founder president of the Indian Section of the Amnesty
International.

Amnesty International is a worldwide movement of people campaigning to

protect human rights. It has a vision of a world in which every person enjoys all of
the rights stated in the Universal Declaration of Human Rights and other
international human rights standards.

When Human Rights are violated, it 1034:

Searches out the facts;

Exposes what is happening: and

Mobilises people to pressure on governments and others to stop violations.

Role of Amnesty International 1035:-

• It calls on governments or companies to uphold create or change laws or

policies that will protect human rights.

• It works with the media to expose human rights abuses and call the guilty
to justice.

• Their supporters sign petitions, write letters or take online actions directed
at governments, groups or individuals.

• It supports human rights advocates and activists defending human rights in

their own countries.

1033
Clause 1 of Amnesty Statutes setting out its objectives available at the website of
Amnesty.
1034
Supra note 895.
1035
Ibid.

358
• Its sections around the world campaign in their countries on global and
local issues.1036

Around the world it protects people and communities who come under
attack, encourage governments and others to respect human rights. They are
currently the world’s largest grassroots human rights organization, and have
received the Nobel Peace Prize for their work.

Amnesty International India investigates and exposes human rights abuses

in India, mobilizes people to stand up for freedom and equality, and work with
schools to create a safer and more just society.1037

The Amnesty International focused its attention on India with Publication

of its book entitled India - Torture Rape and Death in Custody' and also declared
1992 as the year of India. They also utilized their network of members worldwide
to disseminate information over the alleged poor record of India on the question of
HRs.1038
CRY

It was formerly known as Child Relief and You till 2005 but is now known
as Child Rights and You. It was founded in 1979 by Rippan Kapoor. Its
headquarters are in Mumbai.1039It is a voluntary organisation committed to the
upliftment of millions of children who have been deprived of their childhood due
to various reasons.

Vision
A happy, healthy and creative child whose rights are protected and
honoured in a society that is built on respect for dignity, justice and equity for all.

1036
Available at : https/www.amnesty.org.in/history/, (accessed on August 25, 2016).
1037
Ibid.
1038
H.M. Scoble & L.S. Wiseberg, “Human Rights NGOs; Notes towards comparative
analysis.” Human Rights Journal, Vol. IX, 611-614(1976).
1039
Available at : https/www.cry.org, (accessed on December 4, 2016).

359
Mission
To enable people to take responsibility for the situation of the deprived Indian
child and so motivate them to seek resolution through individual and collective
action thereby enabling children to realise their full potential

To make people discover their potential for action and change

To enable peoples’ collectives and movements encompassing diverse segments, to

pledge their particular strengths, working in partnership to secure, protect and
honour the rights of India’s children.

It focuses mainly on the 4 basic rights of survival, development, protection and

participation which were defined by the United Nations Convention on the Rights
of the Child (CRC), an international human rights treaty which has been ratified
by 192 countries.1040

The CRC is built on certain "foundation principles" that underpin all other
children's rights. The CRC confers the following basic rights on all children across
the world, without discrimination

 the right to survival, to life, health, nutrition, name including nationality,

 the right to development of education, care, leisure, and recreation,
 the right to protection from exploitation, abuse and neglect,
 the right to participation in expression, information, thought and religion.

CRY works to ensure these rights to all categories of children, who could be street
children, children bonded in labor, children of commercial sex workers, physically
and mentally challenged children and children in juvenile institutions, or even
children in privileged homes.

Campaign against Child Labour

CACL is a joint venture of Youth for Voluntary Action, Pune and Tere des
Homes, Germany; India Programme. It is working for the progressive eradication

1040
Available at: www.wikipedia.org, (accessed on October 4, 2016)

360
of child labour through provision of education, organisation of awareness
programmes, promotion of legislative changes and rescuing children in bondage
or victims of abuse.

Bandhua Mukti Morcha

It is also known as Bonded Labour Liberation Front. It is a NGO working

to end bonded labour. It was founded in1981 by Swami Agnivesh. Bonded labour
was legally abolished in 1976 but it remains prevalent due to weak
implementation of laws.

South Asian Forum for Human Rights (SAFHR)

It is a regional HRs Organization - a Conglomerate of 36 NGO's from
SAARC Countries - which was established at Kathmandu in 1993. The aims and
objects of the organization are1041:

a) To work for the realization, promotion and promotion of HR's in the

SAARC region;
b) To work for the implementation of all national, regional and international
human rights instruments, standard, norms and declarations and of
international humanitarian law;
c) to engage in studies and research in the field of human rights and to
educate the public to support the cause of human rights through talks,
seminars, training, publications, uses of mass media and similar activities;
d) to hold a people's SAARC at the time of the annual SAARC summit
meeting in order to project the view point of the general public on selected
human rights issues;

e) to seek affiliation with ECOSOC for making representations to various UN

committees;

f) to investigate violation of human rights especially those of a class nature,

and;

g) to receive donation in cash or kind, operate bank account and invest

money and pursue the other activity which is necessary, incidental or

1041
Available at : http:// www.safhr.org, (accessed on August 15, 2016).

361
 conducive to fulfilling the aims and object of the society.

People’s Union for Civil Liberties (PUCL)1042

It came into existence in 1976 as People’s Union for Civil Liberties and
Democratic Rights. Its founder was Jai Prakash Narain. It aimed at bringing those
concerned with defending civil liberties and human rights to a common platform.
Ever since 1980, the organisation has been expanding its membership and has
established branches in all most all the states of India. Some of them have been
good at mobilising public opinion through public demonstrations, while others
have more successfully pursued public interest litigation in the courts. Their area
of interest varies according to the interests and capacities of the elected office
bearers and active members.

These cases are prepared and argued by the lawyer members of the PUCL
in the local courts, High Courts, or the Supreme Court. They meet all the expenses
of fighting these cases, from their own pocket.

It organises seminars, Lectures, etc., for focusing attention on the problems

concerning its area of work. It has raised its voice against various oppression laws
and retrograde amendments to the Constitution. It has tried to find the causes of
communal riots and tried to create amity amongst various sections of society. It
also organises observer teams at the time of Elections from sensitive
constituencies. It has, from time to time, taken up issues to courts at various
levels. The PUCL has, more than once, taken up the cause of pavement dwellers.

Since the establishment of the National Human Rights Commission the

PUCL has made a lot of effort in utilising this forum for redressal of grievances
against violation of the rights of the people. Besides the NHRC, the PUCL also
keeps in touch with the National Commission for Women, the National
Commission for Minorities, National Commission for Scheduled Castes and
Scheduled Tribes, and the National Commission for Safai Karmacharis. Some
States have established State Human Rights Commissions, as provided in the

1042
Available at : www.pucl.net, (accessed on July 16, 2016).

362
Protection of Human Rights Act, 1993. The PUCL is campaigning for its
establishment in the remaining States also. The PUCL also takes care to see that
the establishment of such Constitutional fora does not slow down its work, as
there is no substitute of voluntary and dedicated work.1043

People’s Union for Democratic Rights1044

It came into existence in 1976-77 as the Delhi unit of a large national

forum and became PUDR on 1st February 1981. It has taken up cases of violations
of democratic rights of many sections of society. It conducts investigations,
distributes leaflets, organizes public meetings, demonstrations and dharnas and
fights legal cases to highlight the violation of people’s rights and seek redresses. It
also takes issues of general importance that affect the rights of people through
general campaigns, publication and legal interventions. These include gender
equality, rights of forest dwellers and forest policy, working class rights, caste
oppressions, torture in police custody, undemocratic legislation etc.1045

Commonwealth Human Rights Initiative (CHRI)

Commonwealth Human Rights Initiative is an independent, non partisian,
international non-government organisation and was formed in 1987 by a group of
Commonwealth NGO's 1046 , viz. the Commonwealth Journalists Association,
Commonwealth Lawyers Association, Commonwealth Legal Education
Association, Commonwealth Parliamentary Association, Commonwealth Press
Union and Commonwealth Broadcasting Union1047 to support human rights and
particularly to implement Universal Declaration and Harare Declaration. In 1993
CHRI was established in New Delhi. The initial plan was to move the CHRI
secretariat every five years in order to deepen expertise on all regions of the
Commonwealth but the plan was abandoned.
The main objectives are1048 ;

1043
Available at : www.pucl.net, (accessed on July 16, 2016).
1044
Available at : www.pudr.net, (accessed on July 16, 2016).
1045
Ibid.
1046
Available at: www.humanrightsinitiative.org, (accessed on October 4, 2016).
1047
Available at: www.wikipedia.org, (accessed on October 4, 2016) .
1048
Supra note 904.

363
a) promote awareness of the UN Declaration and other internationally
recognized human rights instruments;

b) to gather, evaluate and disseminate information in this regard;

c) to advocate approaches and measures which may prevent human rights

abuses, and to secure redress;

d) to advise national and international authorities on human rights issues;

e) to promote national legislation to conform to international human rights

standards.

Thus, because of their gross-root contacts, NGOs can most effectively

identify human rights violations, articulate them and seek redress. The high level
of expertise of individual NGO's in specific areas of human rights work is of great
benefit as it studies and makes recommendations on specific issues and problems.
Non Governmental human rights groups have contributed their might to the cause
of human rights through independent and non-biased investigation into the
allegations of violence and injustices. These groups have exposed the involvement
of the State and its institutional enforcement agencies in the abuse of people's
rights and freedom. They have also organized conferences and published reports
that address human rights issues and their widespread successive infringement. In
this way they have aroused awareness for human rights.

Conclusion

All these initiatives of the Supreme Court, NHRC, NGOs (National and
International) reveals the firm determination of all these to eliminate the illegal
actions of the police and these efforts will go a long way in protection the
innocent and helpless people of the country from the violation of their basic
Human Rights, viz., the right to life. The time has come when the people of the
country have identified the higher judiciary and the NHRC as the last resort for
ventilating their grievance against the State Police.

364