Human Rights
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Human Rights new look Presented by : M.L.PANDIA Advocate – Rajasthan High Court Mobile : 9049142729 E-mail : [email protected]
India = Complex Country
India is one of the most fascinating country in the world. An area of 32 Lakh Sq. Km. 100 crore population 200 languages are spoken. 19 Official languages. 7,000 Kms. of Sea coast Complex cultures, traditions, etc. Country with a great history dating back to thousands of years.
Police-Judge ratio in India
There are 40 police per 100 Sq. Km area, i.e. 10 x 10 Km. area.
There are 1.4 police men per 1000 people in India = 14 police / 10,000
There are 12 judges per 1 lakh people in India, whereas in US this figure is 108 judges / 1,00,000
Policing a most difficult job
To control over the people of various types, castes, creeds, religion, cultures, traditions, customs, occupations, languages, etc. is difficult job. Common man least aware of the law. Not knowing law, no excuse ! HDI is just 60.2 amongst 176 UN member countries. Maturity level of even educated Indians is very poor. “Spitting’ , ‘Garbage throwing’ ,etc.
Who comes to police station ?
The one who is affected / aggrieved. The one who can’t take law in his own hand. The one who has no ‘power’ or ‘guts’ or ‘money’ to tackle the wrongdoer. The one who believes in ‘Rule of law’. The one who believes that the State must respond to his / her agony
Rule of Law ?
Rule of Law’ is the essence of democracy. Nobody is inferior than anyone. All have equal rights & opportunities. All have access to justice. Laws are meant for the benefit of everyone. It is the responsibility of everyone to obey the law.
Laws control us from birth to death !
The Registration & Birth Act. Schools & Colleges, Universities, UGC Employment / service laws. Business laws : Contract, Sale of Goods, Partnership, Transfer of Property. Industrial laws : Food Laws : Food Adulteration Act. Environment Laws : Pollution. Wild Life : Protection of animals. Etc.
Laws …. : Continued.
Marriage Laws : Registration News papers : Press & Registration Act. Entertainment : Cinema, Cable TV. Municipal : Local authorities. Building permissions, etc. Taxation : Income, Sales, Excise. Drugs : Drugs & Cosmetics, etc. Transport : Aviation, MVA, Voyage Act. Death : Registration of Death
Those who break the laws :
We have Indian Penal Code – 1860, to book the culprit / accused. Criminal Procedure Code 1891, 1973 to lodge an FIR, Investigation & Trial. Evidence Act – 1872 to collect / gather the evidence These were the British creations made more than 125 years ago and their utility is not still diminished.
Crime can’t take place
If a person has any definite objective in his life. He is serious about his life. He is willing to work hard to achieve it. He knows, once if I loose an opportunity, then it would never come. If the person is ‘GOD’ fearing.
India :
Is it unmanageable country?
Country has become unmanageable. The 55 % of our population is less than 35 years of age. Many of them are unemployed. Persons with MA & M.Com. degrees are bus drivers & conductors in Kerala & TN. All this leads to ‘crime’ where one gets an easy money.
Constitution of India.
Our laws flows from Constitution of India, i.e. Parliament & State legislatures. Fundamental rights under our Constitution are much in common with the Universal Declaration of Human Rights in 1948.
Should police be blamed for everything ?
Police department is governed by Old ‘Police Act – 1861’, which is a dead wood. (In Mah. Bombay Police Act -1951 is applicable) Police reforms have not taken place inspite of various recommendations. No Govt. is interested in giving ‘more powers’ to police. Criminalization of politics & politics of criminalization.
People are not getting justice ! Is it true ?
People : Police ratio shows, police can’t just control everything. Police have their own limitations. Police can’t succeed without people’s co-operation. People are unwilling to co-operate with police, but they want police to do everything for them.
Police can’t discipline society
Because of lack of man power. Lack of resources, vehicles, facilities, etc. Unwillingness on the part of the people to change. Our punishments are too small. Hence people are not afraid of law & police. Foreign countries licenses are suspended even for minor offences
Sec. 46 – Use of force while effecting the arrest
There is specific provision in the Cr.P.C. which entitles the police authorities to use ‘bare minimum’ force while effecting the arrest of the accused. After doing so, a Station Diary Entry to that effect be made, lest the Accused get an opportunity to make any allegations against the police, when produced before the Magistrate. A mention be made in Remand Report to that effect as well.
Sec. 46(4) : Arrest of female Accused
No arrest to be made during night time EXCEPT in emergency circumstances, only by Women Police Officer, with the prior permission of the Magistrate where the offence is lodged or where the arrest is to be made.
Arrest of female accused by male police
2003 SOL Case No. 636 State of Mah. vs.. Christian Community Welfare Council of India & ors. Arrest of a female accused should made in presence of lady constable. Arrest can however, be made where the presence of lady constable is not possible or delay in arrest would impede investigation. Arrest can be effected any time day or night. Officer to record reasons of non availability of LPC in such cases in Station Diary
Sec. 50 – A : (23.06.2006 Amendment) Notification of arrest of Accused to his relatives, friends etc.
Officer making arrest of accused to intimate the arrest to his relatives, friends, etc. of his choice. Intimation of this right be given to accused after being brought to police station. Entry be made in the SD once intimation is given as required above. Suggestion: The remand report sent to magistrate should reflect the compliance of Sec. 50 A.
Sec. 54 (23.06.2006 Amendment) Medical examination at the instance of the arrested person
Examination at the instance of arrestee to prove his innocence wrt crime. Or which will prove the commission of crime by other person on his body Magistrate must have subjective satisfaction that the arrestee is doing it bona fide & not for delay or defeating the ends of justice. RMP examining such arrestee has to submit report forthwith to him or to the person nominated by him.
Trial by media – SC directive M.P. Lohiya V/s. State of West Bengal (2005 SCC (Cri) 556)
Publication of an article in magazine on issue of dowry death, which was sub judice. Matter is of suicide & reached to SC for bail. Magazine publishes the interview of the victim’s family, which reveals certain facts of the crime, which would be considered at the time of trial. Such article would certainly interfere with the administration of justice SC deprecating such practice & cautions the publishers, editor and journalists.
Bandh directions given by Bombay High Court WP No. 2827/2003 Directions to State, District Collectors & ors.
No political party, organization, association, group or individual can by organizing a ‘bandh’ by force or intimidation, stop or interfere with the road and rail traffic or the free movement of citizens in the city of Mumbai or State.
To take all actions, including arrest, detention and prosecution against those who seek to enforce such ‘band’ or ‘hartals’ by organizing leading or participating in rail in rasta rokos, on trains, buses, other vehicles and private citizens.
Band directions … continued
An enforcement of bandh or hartal would amount to an un- constituonal act and any political party or organization, association or groups or individual giving such call for band or hartal to force or intimidation or otherwise. The concerned political party organization, association, group of individual giving bandh call will be served with a notice U/s. 149 of Cr.P.C. In the notice attention will be drawn to the judgments of the SC & Bom HC regarding the illegality of bandh. The notice will clearly state that such a political party, organization, association, group or individual will be liable for legal action and compensation for loss of life, injury or for loss of livelihood due to bandh.
Bandh directions .. Contd.
The police shall take an appropriate action against the person, persons, involved in such bandh under the provisions of IPC, Cr.P.C. and BP Act and submit action taken report in such cases to the Sessions Judge of the concerned district. The general public be informed by issuing a press note, thorough print & electronic media, informing them about preparation made by the police do deal with band and making people secured. A visible police presence shall be maintained throughout the city prior to the bandh in preference to other police duties. A visible bandobast outside railway station, bus depot, main road, main junction, hospital, courts, schools & colleges will be maintained during bandh. Wireless mobile patroling, beat marshall patroling, fixed point bandobast shall be deployed to curb any untoward incident on the bandh day. Necessary protection be given to market & business places.
Bandh directions .. Contd.
There shall be video recording so as to identify the miscreants and to book under law. All police control room will be fully activated to follow up incidents regarding bandh to take proper stringent and timely action. The Chief Secretary of the Govt. DGMS and other officers to take all necessary steps to give effect to the above directions.
Police & Law Enforcement From Cr.P.C. point of view
Protection against arbitrary arrests Sec. 41.42,43,50,55,56,57,58, 151 Protection against arbitrary searches Sec. 93, 94, 97, 100, 165 & 166 Production before JMFC in 24 hours Sec. 56, 57 & 167 Right to consult advocate Sec. 303, 404 Right to go on bail Sec.436, 437, 438, 439
Police & Law Enforcement From Cr.P.C. point of view
Right not to be prosecuted for more than once for some offence Sec. 300 Right not to be compelled to be witness against himself Article 20 (2) Right not to be punished under a retroactive penal statue Article 20(1) Right not to be surprised at trial Sec. 173 (5), (6), (7), 207, 238
Police & Law Enforcement From Cr.P.C. point of view
Right to insist that evidence be recorded in his presence Sec. 273, 205, 299, 317 Right to examine defence witness Sec. 254, 243, 447, 233 Right to have a notice of charge Sec. 211, 212, 213, Right to test evidence for prosecution Sec.231(2), 246 (4), (5), (6)
Police & Law Enforcement From Cr.P.C. point of view
Right to explain away evidence Sec. 313 Right to approach Higher Court in case of conviction or refusal of bail. Sec. 167(5), 468 Right to be heard on question of sentence before sentence is announced Sec. 235 (2), 248 (2).
Right of the child / juvenile not to be hanged or imprisoned
India = Complex Country
India is one of the most fascinating country in the world. An area of 32 Lakh Sq. Km. 100 crore population 200 languages are spoken. 19 Official languages. 7,000 Kms. of Sea coast Complex cultures, traditions, etc. Country with a great history dating back to thousands of years.
Police-Judge ratio in India
There are 40 police per 100 Sq. Km area, i.e. 10 x 10 Km. area.
There are 1.4 police men per 1000 people in India = 14 police / 10,000
There are 12 judges per 1 lakh people in India, whereas in US this figure is 108 judges / 1,00,000
Policing a most difficult job
To control over the people of various types, castes, creeds, religion, cultures, traditions, customs, occupations, languages, etc. is difficult job. Common man least aware of the law. Not knowing law, no excuse ! HDI is just 60.2 amongst 176 UN member countries. Maturity level of even educated Indians is very poor. “Spitting’ , ‘Garbage throwing’ ,etc.
Who comes to police station ?
The one who is affected / aggrieved. The one who can’t take law in his own hand. The one who has no ‘power’ or ‘guts’ or ‘money’ to tackle the wrongdoer. The one who believes in ‘Rule of law’. The one who believes that the State must respond to his / her agony
Rule of Law ?
Rule of Law’ is the essence of democracy. Nobody is inferior than anyone. All have equal rights & opportunities. All have access to justice. Laws are meant for the benefit of everyone. It is the responsibility of everyone to obey the law.
Laws control us from birth to death !
The Registration & Birth Act. Schools & Colleges, Universities, UGC Employment / service laws. Business laws : Contract, Sale of Goods, Partnership, Transfer of Property. Industrial laws : Food Laws : Food Adulteration Act. Environment Laws : Pollution. Wild Life : Protection of animals. Etc.
Laws …. : Continued.
Marriage Laws : Registration News papers : Press & Registration Act. Entertainment : Cinema, Cable TV. Municipal : Local authorities. Building permissions, etc. Taxation : Income, Sales, Excise. Drugs : Drugs & Cosmetics, etc. Transport : Aviation, MVA, Voyage Act. Death : Registration of Death
Those who break the laws :
We have Indian Penal Code – 1860, to book the culprit / accused. Criminal Procedure Code 1891, 1973 to lodge an FIR, Investigation & Trial. Evidence Act – 1872 to collect / gather the evidence These were the British creations made more than 125 years ago and their utility is not still diminished.
Crime can’t take place
If a person has any definite objective in his life. He is serious about his life. He is willing to work hard to achieve it. He knows, once if I loose an opportunity, then it would never come. If the person is ‘GOD’ fearing.
India :
Is it unmanageable country?
Country has become unmanageable. The 55 % of our population is less than 35 years of age. Many of them are unemployed. Persons with MA & M.Com. degrees are bus drivers & conductors in Kerala & TN. All this leads to ‘crime’ where one gets an easy money.
Constitution of India.
Our laws flows from Constitution of India, i.e. Parliament & State legislatures. Fundamental rights under our Constitution are much in common with the Universal Declaration of Human Rights in 1948.
Should police be blamed for everything ?
Police department is governed by Old ‘Police Act – 1861’, which is a dead wood. (In Mah. Bombay Police Act -1951 is applicable) Police reforms have not taken place inspite of various recommendations. No Govt. is interested in giving ‘more powers’ to police. Criminalization of politics & politics of criminalization.
People are not getting justice ! Is it true ?
People : Police ratio shows, police can’t just control everything. Police have their own limitations. Police can’t succeed without people’s co-operation. People are unwilling to co-operate with police, but they want police to do everything for them.
Police can’t discipline society
Because of lack of man power. Lack of resources, vehicles, facilities, etc. Unwillingness on the part of the people to change. Our punishments are too small. Hence people are not afraid of law & police. Foreign countries licenses are suspended even for minor offences
Sec. 46 – Use of force while effecting the arrest
There is specific provision in the Cr.P.C. which entitles the police authorities to use ‘bare minimum’ force while effecting the arrest of the accused. After doing so, a Station Diary Entry to that effect be made, lest the Accused get an opportunity to make any allegations against the police, when produced before the Magistrate. A mention be made in Remand Report to that effect as well.
Sec. 46(4) : Arrest of female Accused
No arrest to be made during night time EXCEPT in emergency circumstances, only by Women Police Officer, with the prior permission of the Magistrate where the offence is lodged or where the arrest is to be made.
Arrest of female accused by male police
2003 SOL Case No. 636 State of Mah. vs.. Christian Community Welfare Council of India & ors. Arrest of a female accused should made in presence of lady constable. Arrest can however, be made where the presence of lady constable is not possible or delay in arrest would impede investigation. Arrest can be effected any time day or night. Officer to record reasons of non availability of LPC in such cases in Station Diary
Sec. 50 – A : (23.06.2006 Amendment) Notification of arrest of Accused to his relatives, friends etc.
Officer making arrest of accused to intimate the arrest to his relatives, friends, etc. of his choice. Intimation of this right be given to accused after being brought to police station. Entry be made in the SD once intimation is given as required above. Suggestion: The remand report sent to magistrate should reflect the compliance of Sec. 50 A.
Sec. 54 (23.06.2006 Amendment) Medical examination at the instance of the arrested person
Examination at the instance of arrestee to prove his innocence wrt crime. Or which will prove the commission of crime by other person on his body Magistrate must have subjective satisfaction that the arrestee is doing it bona fide & not for delay or defeating the ends of justice. RMP examining such arrestee has to submit report forthwith to him or to the person nominated by him.
Trial by media – SC directive M.P. Lohiya V/s. State of West Bengal (2005 SCC (Cri) 556)
Publication of an article in magazine on issue of dowry death, which was sub judice. Matter is of suicide & reached to SC for bail. Magazine publishes the interview of the victim’s family, which reveals certain facts of the crime, which would be considered at the time of trial. Such article would certainly interfere with the administration of justice SC deprecating such practice & cautions the publishers, editor and journalists.
Bandh directions given by Bombay High Court WP No. 2827/2003 Directions to State, District Collectors & ors.
No political party, organization, association, group or individual can by organizing a ‘bandh’ by force or intimidation, stop or interfere with the road and rail traffic or the free movement of citizens in the city of Mumbai or State.
To take all actions, including arrest, detention and prosecution against those who seek to enforce such ‘band’ or ‘hartals’ by organizing leading or participating in rail in rasta rokos, on trains, buses, other vehicles and private citizens.
Band directions … continued
An enforcement of bandh or hartal would amount to an un- constituonal act and any political party or organization, association or groups or individual giving such call for band or hartal to force or intimidation or otherwise. The concerned political party organization, association, group of individual giving bandh call will be served with a notice U/s. 149 of Cr.P.C. In the notice attention will be drawn to the judgments of the SC & Bom HC regarding the illegality of bandh. The notice will clearly state that such a political party, organization, association, group or individual will be liable for legal action and compensation for loss of life, injury or for loss of livelihood due to bandh.
Bandh directions .. Contd.
The police shall take an appropriate action against the person, persons, involved in such bandh under the provisions of IPC, Cr.P.C. and BP Act and submit action taken report in such cases to the Sessions Judge of the concerned district. The general public be informed by issuing a press note, thorough print & electronic media, informing them about preparation made by the police do deal with band and making people secured. A visible police presence shall be maintained throughout the city prior to the bandh in preference to other police duties. A visible bandobast outside railway station, bus depot, main road, main junction, hospital, courts, schools & colleges will be maintained during bandh. Wireless mobile patroling, beat marshall patroling, fixed point bandobast shall be deployed to curb any untoward incident on the bandh day. Necessary protection be given to market & business places.
Bandh directions .. Contd.
There shall be video recording so as to identify the miscreants and to book under law. All police control room will be fully activated to follow up incidents regarding bandh to take proper stringent and timely action. The Chief Secretary of the Govt. DGMS and other officers to take all necessary steps to give effect to the above directions.
Police & Law Enforcement From Cr.P.C. point of view
Protection against arbitrary arrests Sec. 41.42,43,50,55,56,57,58, 151 Protection against arbitrary searches Sec. 93, 94, 97, 100, 165 & 166 Production before JMFC in 24 hours Sec. 56, 57 & 167 Right to consult advocate Sec. 303, 404 Right to go on bail Sec.436, 437, 438, 439
Police & Law Enforcement From Cr.P.C. point of view
Right not to be prosecuted for more than once for some offence Sec. 300 Right not to be compelled to be witness against himself Article 20 (2) Right not to be punished under a retroactive penal statue Article 20(1) Right not to be surprised at trial Sec. 173 (5), (6), (7), 207, 238
Police & Law Enforcement From Cr.P.C. point of view
Right to insist that evidence be recorded in his presence Sec. 273, 205, 299, 317 Right to examine defence witness Sec. 254, 243, 447, 233 Right to have a notice of charge Sec. 211, 212, 213, Right to test evidence for prosecution Sec.231(2), 246 (4), (5), (6)
Police & Law Enforcement From Cr.P.C. point of view
Right to explain away evidence Sec. 313 Right to approach Higher Court in case of conviction or refusal of bail. Sec. 167(5), 468 Right to be heard on question of sentence before sentence is announced Sec. 235 (2), 248 (2).
Right of the child / juvenile not to be hanged or imprisoned
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