The Concept of Aarakshan & Dalit Rights -Part-II

The Concept of Aarakshan & Dalit Rights -Part-II

The Manu Classification of Varna : Brahmin-the priests &Vedic scholars;Kshatriya, warriors and nobility;Vaisya, farmers, traders and artisans; and Shudra, menial labour &servants  for upper caste ,lowest  in the caste system. They were called as "untouchables."

Who are dalits ?

Dalit, also called Outcaste, is a self-designation for a group of people traditionally regarded as Untouchables[1]. Manu described them as Shudra[Chandala &Melanchas] and lowest rated caste among four caste  viz.Brahmin, Kshatriya , Vaishya, Shudra.

The father of nation Mahatma Gandhi once describe Dalits as ‘Harijan[children of God] The constitution of India ,which was drafted by drafting committee under chairmanship of Dalit Intellectual Dr. Bhim Rao Ambedkar recognizes them as ‘Scheduled Castes’ [S.C] and ‘Scheduled Tribes’[S.T],even during British rule they were called as S.C &S.T under Act of 1935.

170 million Dalit people, formerly known as “untouchables,” are at the bottom of the Hindu caste system. They are victims of the most extreme form of caste discrimination. It is, in many ways, analogous to racism. By virtue of their birth into a Dalit family and community, they are condemned forever to a life of social stigma, exclusion and victimization [2]

Human Rights Watch has condemned India’s abuse of its Dalit people as a “hidden apartheid,” comparable to the institutional discrimination of pre-democratic South Africa[3]

There are hundreds of cases reported from India about discrimination and violence against Dalits. The most cases, offenders go unpunished, because of weak laws and weak enforcement mechanism. The conviction rate in S.C and S.T atrocities cases negligent [ 3 %or below 3 %],despite the enactment of special laws and formation Special courts.

On December 27, 2006, for the first time in history of India, Prime Minister of India  officially admitted there is discrimination of Dalits in India, Dr.Man Mohan Singh openly admitted and described “untouchability” as a “blot on humanity” adding that “even after 60 years of constitutional and legal protection and state support, there is still social discrimination against Dalits in many parts of our country.”

Famous Dalit uprising in India:

1. Halba rebellion (1774–79)
2. Bhopalpatnam Struggle (1795)
3. Bhil rebellion (1822–1857)
4. Paralkot rebellion (1825)
5. Tarapur rebellion (1842–54)
6. Maria rebellion (1842–63)
7. First Freedom Struggle (1856–57)
8. Bhil rebellion, begun by Tantya Tope in Banswara (1858)
9. Koi revolt (1859)
10. Gond rebellion, begun by Ramji Gond in Adilabad (1860)
11. Muria rebellion (1876)
12. Rani rebellion (1878–82)
13. Bhumkal (1910)

How caste can be categorized as  S.C &S.T & the Concept of Affirmative Action by State :

The Indian Constitution 1950, Article 366 (24) defines Scheduled Castes and Article 341 and identifies the process through which such groups will be identified. The provisions have been made for Scheduled Tribes in Article 366(25) and Article 342 respectively.

The Categorization of caste as S.C &S.T differs state to state, there is plethora of litigation on categorization and number of commissions was formed by state and central government to recognize particular caste as S.C and S.T. A caste can be and quite often is a social class in India. If it is backward socially, it would be backward class for the purpose of Article 16(4) Among non-Hindus, there are several occupational groups, sects and denominations, which, for historical reasons, aresocially backward. They too represent backward social collectives for the purpose of Article 16(4)[ Indra Sawhney case ]

1902, for the first time, officially ,the state provided reservation to unprivileged sections of society by Chatrapati Sahuji Maharaj, Maharaja of Kolhapur in Maharashtra by introducing reservation in favour of backward classes to eradicate poverty from amongst them and to give them their due share in the State administration.

Hunter Committee was appointed  headed by William Wilson Hunter[ he was Collector of  Birbhum  of Bengal];Mahatma Jyotirao Phule made a demand of free and compulsory education for all along with proportionate reservation/representation in government jobs.

In 1908, The Reservations were introduced in favour of a number of castes and communities that had little share in the administration by the British.

In 1921, Madras Presidency introduced Communal G .O in which reservation of 44 per cent for non-Brahmins, 16 per cent for Brahmins, 16 per cent for Muslims, 16 per cent for Anglo-Indians/ Christians and eight per cent for Scheduled Castes.

The Communal Award was announced by the British Prime Minister Ramsay Macdonald on 4 August 1932 to grant separate electorates to minority communities in India, including Muslims, Sikhs, and Dalits (then known as the Depressed Classes or Untouchables) in India.Mahatma Gandhi objected to the provision of separate electorates for the Scheduled (formerly “untouchable”) Castes, which in his view separated them from the whole Hindu community. Though in prison, Gandhi announced a fast unto death, which he began on September 18,1932.

The Indian National Congress [INC]passed resolution called The Poona Pact[4] to allocate separate electoral constituencies for depressed classes. An agreement between the lower caste Untouchables lead by Dr.B.R Ambedkar and the upper Caste lead by Mahatma Gandhi on 24 September 1932 at  Yerawada Jail in Pune 

Some provisions was made in Government of India Act 1935 and in 1942,Dr. B.R Ambedkar established the All India Depressed Classes federation to support the advancement of the scheduled castes. He also demanded reservations for the Scheduled castes in government services and education.

After  independence ,the provisions was made in the Articles 16, 335, 338, 340, 341 & 342 of the Indian Constitution ,1950 related to reservation, protection and safeguards, in public employment in respect of the persons belonging to the SCs/STs and other backward classes.

The Reasonable classification was upheld by Hon'ble Supreme Court of India in Yusuf V. State of Bombay, AIR.1954 S.C. 321

The Constitutional protection provided to S.C &S.T :

Constitution of India, 1950: Parts III, IV, IX, IX- A, Fifth and Sixth Schedule of the Constitution reinforce these arrangements.

1. Right to Equality: States shall not deny any person equality before law or the equal protection of laws within the territory of India. [Article 14] The concept of equality is operationalised  in Article 15 :The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to - (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
2. Prohibition against discrimination[Article 15] &State to make special provisions for advancement of any socially and economically backward classes or citizens and for Scheduled Castes/ Scheduled Tribes[Article 15(4)]
3. Equality of opportunity [Article 16] any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. It is through this provision only the reservations in appointments & promotions for S. C & S .T and for OBCs in the matter of recruitment have been made.
4. The reservation in the matter of promotion has been extended to Scheduled Castes and Scheduled Tribes.[Article 16 a]
5. Permit backlog vacancies as a separate category in any year for determining the ceiling of 50% reservation on total number of vacancies that year [Article 16 (4) (b)]
6. The Untouchability is abolished[Article 17]
7. Prohibition of traffic in human beings and ‘begar’ and forced labour[Article 23] religious Institutions of a public character shall be open to all classes and sectionsof Hindus.
8. Prohibition of child labour below the age of 14 years[Article 24]
9. Right to conserve culture ,distinct language ,script [Article 29[1]]
10. Right to Constitutional Remedies [Article 32]
11. Equal Justice and free legal aid [Article 39 A]
12. Compulsory Education to children below the age of 14 yrs. [Article 45]
13. Free and State shall promote with special care the educational and economic interests of weaker sections[Article 46]
14. Specific States there shall be a Minister in charge of tribal welfare who may, in addition be in charge of welfare of Scheduled Castes, Backward Classes or any other work[ Article 164(1) ]
15. Provisions have also been made for administration of tribal areas in the 6^th Schedule[Article 244]
16. State has been empowered to make any relaxation for qualifying mark[Article 335]  82nd Amendment Act, 2000, amended the Article 335,after S.Vinod Kumar Vs. U.O.I case ,which held lowering qualifying marks is not permissible .
17. Article 330 of Constitution of India 1950 provides for reservation of seats for SC’s and ST’s in the Lok Sabha .
18. Article 332 of Constitution of India 1950 provides for reservation in the state legislatures in proportion to the population in the state.
19. Article 338 of Constitution of India, provides for formation of special commission to safe guard and protects the rights of S.C&S.T community.
20. Some seats are reserved to S.C&S.T in the states [Article 243 D]
21. The seats are reserved for S.T&S.T in every Municipality in a [Article 243 T]

22. Grant-in aid from Consolidated Funds of India schemes of development and for promoting the welfare of Scheduled Tribes in the State and Similar provision exists for such special grants for the 6th scheduled area[Article 275 (1)]

23. The Governor can direct that a particular law or notification passed by Parliament or Legislative Assembly shall not apply to the scheduled area or any part thereof or shall apply subject to certain exceptions and modifications. Governor is also authorized to make regulation for peace and good government in the scheduled areas of the State[Article 244(1]

24. Indra Sawhney’ case: Supreme Court of India held that reservation in promotion is unconstitutional but permitted the reservation, for Scheduled Castes and Scheduled Tribes to continue for a period of five years(From 16.11.92)

Special Laws for S.C &S.T :

1. The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

This act was passed with objective of providing of separate courts for offences relating to atrocities on S.C&S.T by forward caste community. The Offences of atrocities under act include [a]causing injury [b]even insult to any SC or ST by forcibly removing his clothes or to parade him naked. [c]dump excreta waste matter, carcass or any other obnoxious substance in his premises or neighborhood[d] many other offences causing insult or injury deliberately, the act describes details of punishment for such offences and  enhanced punishment for subsequent conviction . As per act, the Special Courts can impose punishment which will be not less than one year.

The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 were framed.

2.The Protection of Civil Rights Act, 1955[earlier Known as Untouchability Act]

An Act to prescribe punishment for the (Preaching and Practice of “Untouchability”) for the enforcement of any disability arising there from and for matters connected therewith.The practice of Untouchability is offence on following grounds: [a] Insulting a member of S.C &S.T[b] Practicing Untouchability [c] Justifying the Untouchability on historical,  religious or Philosophical grounds. The Section- 2 of act defines Civil Rights  “Civil Rights” means any right accruing to a person by reason of the abolition of “untouchability” by article 17 of the Constitution; The Section 7- Punishment for other offences arising out of" untouchability" Punishment is imposed on persons who enforces disability on all spheres religion,  society, public space, institutions such as hospitals and educational establishments.  Social boycott of untouchables was also penalized

3. DevDasi System

The laws were made to prevent sexual exploitation &Servitude of women belonging to weaker sections in name of Dev Dasi [servant of God& women dedicated to temple] , many states like viz  A.P, enacted special  act “Andhra Pradesh Devdasi (Prohibition of Dedication) Act, 1988” and similarly Karnataka is enacted special law for curbing practice of Dev Dasi system

4. Human Rights Act, 1993

An objective of act is to provide for the constitution of a National Human Rights Commission. State Human Rights Commission in States and Human Rights Courts for better protection of Human Rights and for matters connected therewith or incidental thereto.

Other important enactments

• Bonded. Labour System (Abolition) Act, 1976: The bonded labour is outcome of feudal system like Zamindari system and social inequalities prevailing due to prevalence of caste system. This act addresses the issue of exploitation of  labour.
• Manual scavenging is banned under The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993
• Minimum wages Act 1948 : This act provides for fixation and enforcement of minimum wages in respect of scheduled employment

Institutional protection of S.C &S.T

1.National Commission for S.C &S.T [Art 338]: The Commission has power to investigate and monitor all matters relating to the safeguards provided for the SCs/ STs under this Constitutional or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of SCs/ STs;

A SC/ST employee can write directly to the Commission on matters relating to appointments, confirmation, promotion and grant of other concessions available to SCs/STs, without any prior permission from the concerned administrative Ministries/Departments. [MHA O.M.No17016/1/76-SCT(i) dt.8.4.1976]

Article 338 (9) of Constitution lays down that the Union and every State Government shall consult the Commission of all major policy matters affecting SCs/STs.

2.National Human Rights Commission  formed under Human Rights Act, 1993

3.National Commission for Women  formed under National Commission for Women Act, 1990

4.National Commission for Safai Karamcharis is formed under  National Commission for Safai Karamcharis Act, 1993

5.State Commission for S.C&S.T

6.State Human rights Commission& State Women Commissions

Important International  Human Rights Conventions &Dalits

1. Universal Declaration of Human Rights is international binding human rights law and India is signatory to said declaration, 1948.
2. International Covenant on Civil and Political Rights 1966
3. International Covenant on Economic, Social and Cultural Rights 1966.
4. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ratified by India in 1968. It guarantees rights of non-discrimination on the basis of “race, colour, descent, or national or ethnic origin.
5. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1981
6. United Nations Convention Against Torture[1987]
7. Convention on Rights of the Child 1989
8. Convention on the Prevention and Punishment of the Crime of Genocide[1951]
9. International Labour Conventions

Political empowerment:

Even after 64 yrs of Indian independence and the enactment of the constitution of India in 1950 ,which was drafted under chairman ship of Dalit intellectual  Dr. Bhim Rao Ambedkar and affirmative action by founding fathers by providing reservation in jobs and legislation ,ironically , it is fact that still Dalits are socially,economically,political, educational backward in the country. Even today, the un-touchability and discrimination is rampant in rural areas of the country.

The Dalit still faces discrimination at all levels and all spheres of life. They are regarded as merely vote bank by political parties; it is well established fact that most mainstream political parties are dominated by forward caste people. Even after First Dalit women became Chief Minister of Uttar Pradesh Ms.Mayawati, U.P is unable to achieve objectives of social justice as enshrined in the constitution of India, in all spheres of life, her party came to power by using a pro-Dalit sentiment to garner votes, she has only succeeded in erecting her own statues at cost state exchequer.


Unless, there is a revolutionary changes in the society and change of mindset of people,Dalit still faces discrimination and human rights abuses in the hands of forward &affluent caste.

References &Further Reading :

1. Wikimedia
2. http://news.bbc.co.uk/1/hi/world/south_asia/7616281.stm
3. http://hrw.org/english/docs/2007/02/13/india15303.htm
4. http://www.britannica.com/EBchecked/topic/469892/Poona-Pact
5. P.M Bakshi ;The Constitution of India ,Universal Law Publishing Co  Pvt Ltd ,2010
6. Indra Sawhney Vs UOI Writ Petition(Civil) No.930 of 1990
7. http://persmin.nic.in/otraining/UNDPProject/undp_modules/Reservation%20in%20Service.pdf

Your are under Arrest- How to protect your self from police harassment

Your are under Arrest- How to protect your self from police harassment?

Introduction:

Your are under Arrest [it sounds like a movie dialogue] ,most people have no idea what it means in real sense. Normally people get nervous or panicky, once, they see the policeman near their door steps, don’t know how to react to the situation. The tempers run high in entire family, once unexpected guest in police uniform lands in your house in the name of arrest or search or enquiry .The on-lookers and neighbhors gather to watch the entire drama. Everyone starts raising their eyebrows, its time to hold your nerve and act wisely. The police has unlimited power to arrest in cognizable offences without permission of magistrate and police can also detain any suspected person as preventive or precautionary measure. One should know rights under our legal system and constitutional protection accorded to accused persons.It may be the case of false implication or harassment by corrupt police man. It’s time to act prudently. Police also behaves with brutality while arresting a person or during law& order enforcement.

The Constitution of India, The Criminal Procedure Code, 1973, and The Indian Evidence Act, 1872, expressly provided special safeguards to accused persons during investigation, enquiry or trial of an offence and also prevent the misuse of powers by state machinery like police. The article 19-22 of Indian Constitution guarantees the rights of the accused and the Art. 20 and 21 (Constitution of India) provide the basis for Human Rights of an accused under the Indian Criminal Jurisprudence. 

The Supreme Court of India and High Courts has power to issues writs under Article 32&Article 226 of Indian Constitution to prevent the abuse of fundamental rights.  


Joginder Kumar v. State of U.P. (1994)and D.K. Basu(1997) are landmark judgements in India pertaining to arrest. In Maneka Gandhi case ,Hon’ble Supreme Court of India opined that every individual have right to just, fair and impartial trail[1] and dignity of individual is respected under constitutional laws. 


The Article 21 of the Indian Constitution asserts the importance of due process. It says:  “no person shall be deprived of his life or personal liberty except according to procedure established by law”.

What is arrest?

Arrest means apprehending a person by legal authority resulting his deprivation of his/her liberty[2].

When a person can be arrested?

• Securing a person who is suspect of crime or trial of crime
• Preventive or precautionary measure to stop committing a crime
• For obtaining correct name &address[if person refuses to give address]
• If person obstruct police man on duty, while discharging duties.
• Taking person under custody, who has escaped from police or prison?

Who can arrest?

• A police officer may arrest a person without warrant [cognizable offences or apprehension of committing a crime or preventive measure for public order  or other purposes],
•  Police officer in charge of police station may arrest a person as preventive measure without warrant
•  A private person
•  Any magistrate may arrest a person without warrant

Arrest &Powers of Police 

• A person can be arrested with or with out warrant from magistrate
• Power to use force, there is resistance or evades arrest. 
• Power to search place acting under warrant power. 
• Power to arrest &pursue such person any place in India 
• Power to seek assistance of any person for arrest or preventing the escape of person. 
• Power to re-arrest escapee

Some of important rights of accused persons.

The constitutional protection of accused starts the movement a formal accusation is made or an First Information Report [FIR] registered against person, before or after commencement of proceeding against person.

1.Right to know the grounds of Arrest& police can not resort to arrest without probable cause.

2.Right against arbitrary arrest[3]  

3.Right to consult legal practitioner& have him during questioning.[Article 22][4]-Right to free legal assistance [5][6][7]

4.Double Jeopardy[8] :No person shall be convicted for same offence more than once& no one should be compelled to witness against himself[9]-Article 20

Doctrine of autrefois  convict or autrefois acquit[offence must be same involving same ingredients ]

5.Right to be medically examined[10].

6.Right to remain silence[remember anything you say ,it can be used against you, caution to be  silent is not unconstitutional ][11]

7.Accused should not detained beyond period of 24 &should be produced before magistrate within 24 hrs[12]

8.Right to speedy trial 

9.Right to bail [not a absolute right]

10.Right to confront witnesses[13]

11.Prohibition against unreasonable search &seizure 

12.Right to Appeal against Conviction [14]

13.Male police should not arrest accused women& no arrest of  accused women during night hours.

14.Women accused should be placed in separate cell .when under police custody.

15.Right to compensation for illegal detention[15]

16.Its illegal to imprison insane person[16]

17.Right to claim compensation for police excesses &fundamental rights violation

   [17][18]

 

18.No torture in prisons –right to seek compensation[19]

19.A punishment which is too cruel or torture some is unconstitutional[20]

20.Inordinate delay in trial is unconstitutional[21]

21.Right to pre -trial release on personal bond ,where is no risk of absconding[22]  

22.Right against custodial violence[23]& Compensation for custodial death, custodial death is one of worst crime in a civilsed  society [24]

23.Right against handcuffing[25] ;

 

24.Unreasonable Delay in execution is unconstitutional[26]

25.Right against handcuffing[27]. 

Supreme Court of India guidelines in D.K Basu vs. State of West Bengal [28]

The Hon'ble Supreme Court of India in "D.K. Basu v. State of West Bengal   laid down the following guideline:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2.That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

3.A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4.The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

6.An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7.The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/ her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer affecting the arrest and a copy provided to the arrestee.

8.The arrestee should be subjected to medical examination every 48 hours during his detention in custody by a trained doctor on the panel of approved doctors appointed by the Director of Health Services of the concerned State or Union Territory. The Director of Health Services should prepare such a panel for all Tehsils and Districts, as well. 

Police Brutality &Human Rights abuse : 




According to Jerome Herbert Skolnick,”in dealing largely with disorderly elements of the society, some people working in law enforcement may gradually develop an attitude or sense of authority over society, particularly under traditional reaction-based policing models; in some cases the police believe that they are above the law”

The landmark Supreme Court case on handcuffing is Prem Shankar Shukla v. Delhi Administration (1980). In this case, the validity of certain clauses of the Punjab Police Rules, which made handcuffing mandatory during arrest, was challenged. In his opinion, Justice Krishna Iyer eloquently stated:  “The guaranty of human dignity which forms a part of our constitutional culture . . . spring[s] into action when we realize that to manacle man is more than to mortify him, it is to de-humanise him and, therefore, to violate his very person- hood too often using the mask of dangerousness and security.”[29]

Police brutality and uncivilised behavior includes 

1.False arrest,

2.False &unlawful detention,

3.Intimidation,

4.Corruption  

5.Excessive use of force,

6.Unnecessary/unwanted  use of force ,

7.Unnecessary surveillance,

8.Vulgarly abusive words

9.Calling first name ,racial &caste abuse [calling person by caste name &abusing on religious identity&regional identity,

10.Abusive treatment of female by male police[unwanted touching or pushing /touching private parts /pulling dress ] including sexual abuse

11.Frisking of female by male police, unneccsssary frisking people without any reasonable cause.

12.Unnecessary lath charge[beating on private /sensitive parts ,endangering life]

13.Hurling back stones in retaliation  to violent protest,

14.Excessive use of teargas shells jeopardizing the health of people,

15.Sudden &un-provoke firing without any warning [with out following due procedure &with out permission of lawful authority ]

16.killing unarmed innocents with out any provocation,

International Human Rights Instruments& Torture Convention :

Article 5 of the Universal Declaration of Human Rights (UDHR), Article 7 of the International Covenant on Civil and Political Rights (ICCPR), and forms the basis for the Convention against Torture (CAT). The ICCPR also contains the related right of ““[a]ll persons deprived of their liberty [to] be treated with humanity and with respect for the inherent dignity of the human person.” These international instruments are all binding on India:[30]
 

The UDHR is considered part of customary international law and the Indian Government has ratified the International Covenant on Civil and Political Rights [ICCPR] on 10 April 1979 and signed the Convention against Torture on 14 October 1997.

UN Instrument on Treatment of Prisoners:

The Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations in 1955, addresses restraints in Sections 33-34. According to the Rules, instruments of restraints can never be used for punitive purposes, or for longer than is strictly necessary. Although the Rules do allow the use of restraints during transfer to prevent escape.[31]

European Union[32] &Accused persons:

The right to an effective remedy and to a fair trial , presumption of innocence and a right of defence are laid down in The Charter of Fundamental Rights of the EU and The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR).

•  Rights to a fair trial& Right to legal assistance : 

• Article 6 of the ECHR' (which protects the right to a fair trial) applies to the pre-trial stage of criminal proceedings:
  

• A suspect must be able to benefit from the assistance of a lawyer already at the initial stages of police interrogation and as soon as he is deprived of his liberty, irrespective of any interrogation.

• Protection against ill-treatment in custody& prevent intimidation, including threats and abuse, notably by police in the crucial period immediately following arrest.
  

• Family members and employers to be informed of the detention

• Detained person is a non-national, it is appropriate for the consular authorities of the person's home state to be informed.

• Foreign suspects and defendants are an easily identifiable vulnerable group who sometimes need additional protection such as is offered by the Vienna Convention on Consular Relations (VCCR)

New Initiatives of E.U:

2011, the Commission will be presenting draft legislation covering these rights.The draft Directive proposes that a suspect can see a lawyer before the first police interview.It covers:

• what activities a lawyer can carry out on behalf of his client;
• confidentiality;
• waiver/mandatory defence;
• notification of the custody to the detainees relatives and consular authorities; and
• legal representation in European Arrest Warrant (EAW) cases.

Miranda Rights &US protection of Accused: 

The Miranda warning[33] (also referred to as Miranda rights) is a warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to inform them about their constitutional rights. In Miranda v. Arizona[34], the Supreme Court of the United States held that an elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel (hence the so-called "Miranda rights"), and makes a knowing, intelligent and voluntary waiver of those rights.

In 2010, In Berghuis v. Thompkins[35] case, the United States Supreme Court declared that criminal defendants who have been read the Miranda rights (and who have indicated they understand them and have not already waived them), must explicitly state during or before an interrogation begins that they wish to be silent and not speak to police in order for that protection against self-incrimination to apply. If they speak to police about the incident before invoking the Miranda right to remain silent, or afterwards at any point during the interrogation or detention, the words they speak may be used against them if they have not stated they do not want to speak to police.

Conclusion: 


The Hon'ble Supreme Court of India cautioned the police for  indiscriminate use of arrest , preventive custody ,use of force during agitations and also  warned custodial death &extra -judicial killing [fake encounters]

V.R Krishna Iyer. J, delivering the judgement of Nandini Sathpathy v. P L Dani[36] held that the prohibitive sweep of Art 20 (3) goes back to the stage of police interrogation- not commencing in court only.

The words used for such subversion have always been "law and order", "Public Order" and "security of State" As Noam Chomsky described, these are powerful semantic tools, which define and justify themselves.[37]

---

[1] Maneka Gandhi  v. Union of India. AIR 1978 SC 597

[2] R.V Kelkar :Lectures on Criminal procedure code ; 4th Edition 2006,EBC.

[3] Joginder Kumar Vs State Of UP , 1994 AIR 1349 1994 SCC (4) 260

[4] Article 22 of Part-III of  Indian constitution

[5] Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) 1 SCC 98

[6] Khatri[II] v state of Bihar[1981]1SCC627

[7] Khatri v state of Bihar,AIR 1981SC 928

[8] Makbool v state of Bombay,[1953]SCR 730;AIR 1953 SC 325:56 Bom LR 13

[9] Dastagiri v state of Madras ,AIR 1960 SC 756,;palani.[in re ]AIR 1955 Mad 495;56Cri LJ 1197

[10] Sheela Barse v State of Maharashtra,[1983]2 SCC 96 ,1983 Cri LJ 642

[11] Sampath Kumar V Enforcement Directorate ,Madras ,AIR 1998 SC 16;(1997) 8 SCC 358.

[12] .Article 22[1] &Sec 303 ,State of Bombay v. Kathi Kalu, AIR 1961 SC 1808:

[13] Section 138 of Indian evidence act, 1872, Section 33 of Indian evidence Act tells when witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing commission

[14] Section 374 of the Criminal Procedure Code, 1973

[15] Meera V state of Tamil Nadu ,[1991]Cri LJ 2395

[16] Veenu v state of Bihar ,AIR 1983 SC 339

[17] People’s Union for Democratic Rights v Police Commissioner ,[1989]4SCC 730 under Article 32

[18] Bhim Singh V state of Jammu &Kashmir,1986 Cri LJ 

[19] Sheela Barse v state of Maharashtra,AIR 1983 SC 378

[20] Inderjeet V State of Uttar Pradesh ,AIR 1979 SC 1867

[21] Rudul Shah v state of Bihar AIR 1983 SC 1086

[22] Supra 3

[23] Supra 17

[24] D.K Basu v ,AIR 1997 SC 610,(1997) 1SCC, 416

[25] A person is arrested based on a warrant of arrest that is issued by a Magistrate, the police shall not handcuff the said person unless the Magistrate has ordered handcuffing-Citizens for Democracy v State of Assam, (1995) 3 SCC 743,

[26] Sher Singh v state of Punjab ,AIR 1983 SC 465

[27] Prem Shankar Shukla v. Delhi Administration (1980

[28] Supra 22

[29] http://www.hrdc.net/sahrdc/hrfeatures/HRF63.htm

[30] ibid

[31] ibid

[32] http://ec.europa.eu/index_en.htm

[33] http://en.wikipedia.org/wiki/Miranda_warning

[34] 384 US 436.

[35] 560 U.S. (2010) (docket 08-1470)

[36] AIR 1978 SC 1025

[37] http://www.pucl.org/Topics/Law/2003/malimath.htm