More than twenty years  ago, the then Chief Justice of India Y.V. Chandrachud passed the popular decision which is known in law circles as the 'Pavement Dwellers Case' affirming the rights of those who have no choice but to live on footpaths and pavements and are constantly perturbed by the civic authorities according to whom they are an encroachment on public pathways. The recently retired Chief Justice of Delhi High Court, Justice A.P. Shah passed a judgment in similar lines enunciating the rights of slum-dwellers. On behalf of these slum-dwellers, it was submitted before the High Court that the applicants were "mainly from the low income groups engaged in peripheral activities in the neighbourhood of their clusters. They are characterized by the term "city service personnel" whose daily chores ensure the health and cleanliness of the households in the neighbourhood where they are employed. There is an element of indispensability of their services for the resident population in the upper-class apartments and households.". 

In this background, it was argued before the High Court that the "action of the government authorities in demolishing the slum clusters without ensuring relocation of its poor residents ("Urban Poor") in total violation of their fundamental right to shelter enshrined in right to life under Article 21 of the Constitution." The Civic Authorities, called upon to justify their actions, contended that such "petitioners were occupying land which comes under the category of „Right of Way and, therefore are not entitled for any compensation or alternative land under any policy or scheme of the rehabilitation and relocation."

The High Court considered the important decisions of the Supreme Court on the issue and Reports of various national and international agencies dealing with the practical problem of urban housing and noted the acute problem in Delhi as under:

"44. In the last four decades, on account of pressure on agricultural land and lack of employment opportunities in the rural areas, a large number of people were forced to migrate to large cities like Delhi. However, in cities, their slender means as well as lack of access to legitimate housing, compelled them to live in existing jhuggi clusters or even to create a new one. They turned to big cities like Delhi only because of the huge employment opportunities here but then they are forced to live in jhuggies because there is no place other than that within their means. These jhuggi clusters constitute a major chunk of the total population of the city. Most of these persons living in the slums earn their livelihood as daily wage labourers, selling vegetables and other household items, some of them are rickshaw pullers and only few of them are employed as regular workers in industrial units in the vicinity while women work as domestic maid-servants in nearby houses. Their children also are either employed as child labour in the city; a few fortunate among them go to the municipal schools in the vicinity. The support service provided by these persons (whom the Master Plan describes as „city service personnel‟) are indispensable to any affluent or even middle class household. The city would simply come to halt without the labour provided by these people. Considerations of fairness require special concern where these settled slum dwellers face threat of being uprooted. Even though their jhuggi clusters may be required to be legally removed for public projects, but the consequences can be just as devastating when they are uprooted from their decades long settled position. What very often is overlooked is that when a family living in a Jhuggi is forcibly evicted, each member loses a „bundle‟ of rights – the right to livelihood, to shelter, to health, to education, to access to civic amenities and public transport and above all, the right to live with dignity.

In this factual backdrop, the High Court brushed aside the submissions of the civic authorities seeking refuge under the right to way of other citizens 

50. In our opinion, the stand of the respondents that alternative land is not required to be allotted to the inhabitants of such land which comes under the "Right of Way" is completely contrary to the State‟s policy which governs relocation and rehabilitation of slum dwellers. State‟s policy for resettlement nowhere exempts persons, who are otherwise eligible for benefit of the said policy, merely on the ground that the land on which they are settled is required for "Right of Way". The respondents‟ have failed to produce any such policy which provides for exclusion of the slum dwellers on the ground that they are living on "Right of Way". We find force in the submission of the petitioners that even if there is any such policy, it may be for those jhuggi dwellers, who deliberately set up their jhuggies on some existing road, footpath etc, but surely this policy cannot be applied to jhuggi dwellers who have been living on open land for several decades and it is only now discovered that they are settled on a land marked for a road under the Master Plan though when they started living on the said land there was no existing road. ...

52. We fail to appreciate how the above letter of the Principal Secretary spells out any policy decision on 'Right of Way'. The letter merely records oral instructions of the Lt. Governor that the jhuggi dwellers on the „Right of Way‟ will not be entitled to relocation. It is also not clear from the letter as to what constitutes 'Right of Way'. When the petitioners set up their jhuggies several decades ago there was no road. It may be that in some layout plan the land was meant for a road but when they started living there, they could not anticipate that the land will be required in future for a road or for the expansion of an existing road. As long as they were not on an existing road, they cannot be denied the benefit of rehabilitation/relocation. The denial of the benefit of the rehabilitation to the petitioners violates their right to shelter guaranteed under Article 21 of the Constitution. In these circumstances, removal of their jhuggies without ensuring their relocation would amount to gross violation of their Fundamental Rights. ...

55. We find no difficulty in the context of the present case, and in the light of the jurisprudence developed by our Supreme Court and the High Court in the cases referred to earlier, to require the respondents to engage meaningfully with those who are sought to be evicted. It must be remembered that the MPD-2021 clearly identifies the relocation of slum dwellers as one of the priorities for the government. Spaces have been earmarked for housing of the economically weaker sections. The government will be failing in its statutory and constitutional obligation if it fails to identify spaces equipped infrastructurally with the civic amenities that can ensure a decent living to those being relocated prior to initiating the moves for eviction.

56. The respondents in these cases were unable to place records to show that any systematic survey had been undertaken of the jhuggi clusters where the petitioners and others resided. There appears to be no protocol developed which will indicate the manner in which the surveys should be conducted, the kind of relevant documentation that each resident has to produce to justify entitlement to relocation, including information relating to present means of livelihood, earning, access to education for the children, access to health facilities, access to public transportation etc.

57. This Court would like to emphasise that the context of the MPD, jhuggi dwellers are not to be treated as 'secondary' citizens. They are entitled to no less an access to basic survival needs as any other citizen. It is the State's constitutional and statutory obligation to ensure that if the jhuggi dweller is forcibly evicted and relocated, such jhuggi dweller is not worse off. The relocation has to be a meaningful exercise consistent with the rights to life, livelihood and dignity of such jhuggi dweller.

58. It is not uncommon to find a jhuggi dweller, with the bulldozer at the doorstep, desperately trying to save whatever precious little belongings and documents they have, which could perhaps testify to the fact that the jhuggi dweller resided at that place. These documents are literally a matter of life for a jhuggi dweller, since most relocation schemes require proof of residence before a 'cut-off date'. If these documents are either forcefully snatched away or destroyed (and very often they are) then the jhuggi dweller is unable to establish entitlement to resettlement. Therefore, the exercise of conducting a survey has to be very carefully undertaken and with great deal of responsibility keeping in view the desperate need of the jhuggi dweller for an alternative accommodation. A separate folder must be preserved by the agency or the agencies that are involved in the survey for each jhuggi dweller with all relevant documents of that jhuggi dweller in one place. Ideally if these documents can be digitalized then there will be no need for repeated production of these documents time and again whenever the jhuggi dweller has in fact to be assigned a place at the relocated site.

59. Each member of the family of the jhuggi dweller is invariably engaged in some livelihood from morning to night. It is, therefore, not uncommon that when a survey team arrives at a jhuggi camp, some or the other member may not be found there. By merely stopping with that single visit, and not finding a particular member of that family, it may not be concluded that no such member resides in that jhuggi. Such an exercise, if it has to be meaningful, has to be undertaken either at the time when all the members of the family are likely to be found. Alternatively there should be repeated visits by the survey team over a period of time with proper prior announcement. If jhuggi dwellers are kept at the centre of this exercise and it is understood that the State has to work to ensure protection of their rights, then the procedure adopted will automatically change, consistent with that requirement.

60. The further concern is the lack of basic amenities at the relocated site. It is not uncommon that in the garb of evicting slums and 'beautifying' the city, the State agencies in fact end up creating more slums the only difference is that this time it is away from the gaze of the city dwellers. The relocated sites are invariably 30-40 kilometers away from a city centre. The situation in these relocated sites, for instance in Narela and Bhawana, are deplorable. The lack of basic amenities like drinking water, water for bathing and washing, sanitation, lack of access to affordable public transport, lack of schools and health care sectors, compound the problem for a jhuggi dweller at the relocated site. The places of their livelihood invariably continue to be located within the city. Naturally, therefore, their lives are worse off after forced eviction.

61. Each of the above factors will have to be borne in mind before any task for forceful eviction of a jhuggi cluster is undertaken by the State agencies. It cannot be expected that human beings in a jhuggi cluster will simply vanish if their homes are uprooted and their names effaced from government records. They are the citizens who help rest of the city to live a decent life they deserve protection and the respect of the rights to life and dignity which the Constitution guarantees them.

Being of this view, the High Court also gave directions to the Municipal Corporation of Delhi to provide for alternate sites for the slum-dwellers according to the Master Plan of 2021. 

More than twenty years  ago, the then Chief Justice of India Y.V. Chandrachud passed the popular decision which is known in law circles as the 'Pavement Dwellers Case' affirming the rights of those who have no choice but to live on footpaths and pavements and are constantly perturbed by the civic authorities according to whom they are an encroachment on public pathways. The recently retired Chief Justice of Delhi High Court, Justice A.P. Shah passed a judgment in similar lines enunciating the rights of slum-dwellers. On behalf of these slum-dwellers, it was submitted before the High Court that the applicants were "mainly from the low income groups engaged in peripheral activities in the neighbourhood of their clusters. They are characterized by the term "city service personnel" whose daily chores ensure the health and cleanliness of the households in the neighbourhood where they are employed. There is an element of indispensability of their services for the resident population in the upper-class apartments and households.". 

In this background, it was argued before the High Court that the "action of the government authorities in demolishing the slum clusters without ensuring relocation of its poor residents ("Urban Poor") in total violation of their fundamental right to shelter enshrined in right to life under Article 21 of the Constitution." The Civic Authorities, called upon to justify their actions, contended that such "petitioners were occupying land which comes under the category of „Right of Way and, therefore are not entitled for any compensation or alternative land under any policy or scheme of the rehabilitation and relocation."

The High Court considered the important decisions of the Supreme Court on the issue and Reports of various national and international agencies dealing with the practical problem of urban housing and noted the acute problem in Delhi as under:

"44. In the last four decades, on account of pressure on agricultural land and lack of employment opportunities in the rural areas, a large number of people were forced to migrate to large cities like Delhi. However, in cities, their slender means as well as lack of access to legitimate housing, compelled them to live in existing jhuggi clusters or even to create a new one. They turned to big cities like Delhi only because of the huge employment opportunities here but then they are forced to live in jhuggies because there is no place other than that within their means. These jhuggi clusters constitute a major chunk of the total population of the city. Most of these persons living in the slums earn their livelihood as daily wage labourers, selling vegetables and other household items, some of them are rickshaw pullers and only few of them are employed as regular workers in industrial units in the vicinity while women work as domestic maid-servants in nearby houses. Their children also are either employed as child labour in the city; a few fortunate among them go to the municipal schools in the vicinity. The support service provided by these persons (whom the Master Plan describes as „city service personnel‟) are indispensable to any affluent or even middle class household. The city would simply come to halt without the labour provided by these people. Considerations of fairness require special concern where these settled slum dwellers face threat of being uprooted. Even though their jhuggi clusters may be required to be legally removed for public projects, but the consequences can be just as devastating when they are uprooted from their decades long settled position. What very often is overlooked is that when a family living in a Jhuggi is forcibly evicted, each member loses a „bundle‟ of rights – the right to livelihood, to shelter, to health, to education, to access to civic amenities and public transport and above all, the right to live with dignity.

In this factual backdrop, the High Court brushed aside the submissions of the civic authorities seeking refuge under the right to way of other citizens 

50. In our opinion, the stand of the respondents that alternative land is not required to be allotted to the inhabitants of such land which comes under the "Right of Way" is completely contrary to the State‟s policy which governs relocation and rehabilitation of slum dwellers. State‟s policy for resettlement nowhere exempts persons, who are otherwise eligible for benefit of the said policy, merely on the ground that the land on which they are settled is required for "Right of Way". The respondents‟ have failed to produce any such policy which provides for exclusion of the slum dwellers on the ground that they are living on "Right of Way". We find force in the submission of the petitioners that even if there is any such policy, it may be for those jhuggi dwellers, who deliberately set up their jhuggies on some existing road, footpath etc, but surely this policy cannot be applied to jhuggi dwellers who have been living on open land for several decades and it is only now discovered that they are settled on a land marked for a road under the Master Plan though when they started living on the said land there was no existing road. ...

52. We fail to appreciate how the above letter of the Principal Secretary spells out any policy decision on 'Right of Way'. The letter merely records oral instructions of the Lt. Governor that the jhuggi dwellers on the „Right of Way‟ will not be entitled to relocation. It is also not clear from the letter as to what constitutes 'Right of Way'. When the petitioners set up their jhuggies several decades ago there was no road. It may be that in some layout plan the land was meant for a road but when they started living there, they could not anticipate that the land will be required in future for a road or for the expansion of an existing road. As long as they were not on an existing road, they cannot be denied the benefit of rehabilitation/relocation. The denial of the benefit of the rehabilitation to the petitioners violates their right to shelter guaranteed under Article 21 of the Constitution. In these circumstances, removal of their jhuggies without ensuring their relocation would amount to gross violation of their Fundamental Rights. ...

55. We find no difficulty in the context of the present case, and in the light of the jurisprudence developed by our Supreme Court and the High Court in the cases referred to earlier, to require the respondents to engage meaningfully with those who are sought to be evicted. It must be remembered that the MPD-2021 clearly identifies the relocation of slum dwellers as one of the priorities for the government. Spaces have been earmarked for housing of the economically weaker sections. The government will be failing in its statutory and constitutional obligation if it fails to identify spaces equipped infrastructurally with the civic amenities that can ensure a decent living to those being relocated prior to initiating the moves for eviction.

56. The respondents in these cases were unable to place records to show that any systematic survey had been undertaken of the jhuggi clusters where the petitioners and others resided. There appears to be no protocol developed which will indicate the manner in which the surveys should be conducted, the kind of relevant documentation that each resident has to produce to justify entitlement to relocation, including information relating to present means of livelihood, earning, access to education for the children, access to health facilities, access to public transportation etc.

57. This Court would like to emphasise that the context of the MPD, jhuggi dwellers are not to be treated as 'secondary' citizens. They are entitled to no less an access to basic survival needs as any other citizen. It is the State's constitutional and statutory obligation to ensure that if the jhuggi dweller is forcibly evicted and relocated, such jhuggi dweller is not worse off. The relocation has to be a meaningful exercise consistent with the rights to life, livelihood and dignity of such jhuggi dweller.

58. It is not uncommon to find a jhuggi dweller, with the bulldozer at the doorstep, desperately trying to save whatever precious little belongings and documents they have, which could perhaps testify to the fact that the jhuggi dweller resided at that place. These documents are literally a matter of life for a jhuggi dweller, since most relocation schemes require proof of residence before a 'cut-off date'. If these documents are either forcefully snatched away or destroyed (and very often they are) then the jhuggi dweller is unable to establish entitlement to resettlement. Therefore, the exercise of conducting a survey has to be very carefully undertaken and with great deal of responsibility keeping in view the desperate need of the jhuggi dweller for an alternative accommodation. A separate folder must be preserved by the agency or the agencies that are involved in the survey for each jhuggi dweller with all relevant documents of that jhuggi dweller in one place. Ideally if these documents can be digitalized then there will be no need for repeated production of these documents time and again whenever the jhuggi dweller has in fact to be assigned a place at the relocated site.

59. Each member of the family of the jhuggi dweller is invariably engaged in some livelihood from morning to night. It is, therefore, not uncommon that when a survey team arrives at a jhuggi camp, some or the other member may not be found there. By merely stopping with that single visit, and not finding a particular member of that family, it may not be concluded that no such member resides in that jhuggi. Such an exercise, if it has to be meaningful, has to be undertaken either at the time when all the members of the family are likely to be found. Alternatively there should be repeated visits by the survey team over a period of time with proper prior announcement. If jhuggi dwellers are kept at the centre of this exercise and it is understood that the State has to work to ensure protection of their rights, then the procedure adopted will automatically change, consistent with that requirement.

60. The further concern is the lack of basic amenities at the relocated site. It is not uncommon that in the garb of evicting slums and 'beautifying' the city, the State agencies in fact end up creating more slums the only difference is that this time it is away from the gaze of the city dwellers. The relocated sites are invariably 30-40 kilometers away from a city centre. The situation in these relocated sites, for instance in Narela and Bhawana, are deplorable. The lack of basic amenities like drinking water, water for bathing and washing, sanitation, lack of access to affordable public transport, lack of schools and health care sectors, compound the problem for a jhuggi dweller at the relocated site. The places of their livelihood invariably continue to be located within the city. Naturally, therefore, their lives are worse off after forced eviction.

61. Each of the above factors will have to be borne in mind before any task for forceful eviction of a jhuggi cluster is undertaken by the State agencies. It cannot be expected that human beings in a jhuggi cluster will simply vanish if their homes are uprooted and their names effaced from government records. They are the citizens who help rest of the city to live a decent life they deserve protection and the respect of the rights to life and dignity which the Constitution guarantees them.

Being of this view, the High Court also gave directions to the Municipal Corporation of Delhi to provide for alternate sites for the slum-dwellers according to the Master Plan of 2021. 

COMPLAINT MAINTAINABLE AGAINST HUSBAND'S MALE RELATIVES UNDER DV ACT - HC

        The Madras High Court Bench held that the 'respondent' as defined under Section 2(q) of the act includes a female relative of the husband/male partner, and women could be added as respondents in an application under Section 12 of the Domestic Violence Act."

        The Domestic Violence Act comes to the aid of a woman who has lived with her husband/male partner in a shared household and has suffered physical, sexual, verbal, emotional and economic abuse. The aggrieved woman can claim several kinds of relief such as right to remain in the shared household, protection orders, monetary relief towards medical expenses and loss of earnings, custody orders relating to children, and compensation for injuries and mental torture.

NOTE FOR DISCUSSION

 

Some Urgent Reforms Needed in Prisons in Tamil Nadu

 

·                    There is lack of transparency about Jail Administration, maintenance of human rights standards and grievances of prisoners in particular. Torture and denial of fundamental rights in prisons in Tamil Nadu continue.

·                    Government of India has announces that there are more than 2 lakh under-trials in India. A significant proportion of these under-trials are in custodial institutions in Tamil Nadu. Bail not jail is the rule for under-trials and the maximum period for trial and conviction of a case should be 180 days.

·                    Those arrested under "Goondas Act", National Security Act and other detention laws must be reviewed and immediately released. The Madras High Court has from time to time ordered release of hundreds of those detained under the "Goondas Act".

·                    Punishments such as solitary confinement should be abolished. Punishments inside the prisons in the name of disciplinary action amounts to torture, which is violative of international Law. All prison staff involved in punishments must be prosecuted for torture and causing injury and degrading treatment.

·                    Prisoners on admission shall be provided with written information about his/her rights the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints to understand both his/her rights and obligations. Every request or complaint shall be promptly dealt with and replied to without undue delay. The complaint box should be compulsorily sealed and opened only by a judicial officer.

·                    The system of combining convicted prisoners and under-trials must be abolished. Separate housing facilities should be provided for under-trials. Prison administration must notify under-trial prisoner's next of kin about a transfer, serious illness or death of a prisoner within 24 hours.

·                    Discretionary powers of a Superintendent in the name of discipline inside the jail should be abolished. The Superintendent should only record the offence for reference to a Magistrate. No offence should be punished without affording an opportunity to the alleged offender in an inquiry.

·                    Separate visitors committee of non-officials be formed for each jail in the State. This should be announced with addresses in 4 leading newspapers. Committee Members would be given the right to inspect the prison without notice at any time. They should be allowed into any part of the prison and also permitted to inquire and interview all the prisoners. The functions of the visitor's committee should be also include the tasks enumerated by the Supreme Court in Sunil Batra II AIR, 1980 SC 1579 at PP 1598/99.

·                    The Reports of Prison inspection by the Board of Visitors should be made public so as to be made accessible to any citizen's body or human rights group that requires assessing it.

·                    The Prison manual should be placed in several places in the prison accessible at all time by all prisoners. For prisoners with no formal education awareness camps must be organized to explain the rights.

·                    Whenever a report of physical abuse, sexual assault is reported by the Press, Domestic of International Human rights Organizations an independent Investigation commission should be established. Officials responsible for the said abuses should be subjected to both, departmentary disciplinary action and criminal prosecution.

·                    Classification and discrimination in terms of facilities for prisoners should be abolished.

·                    Open jail system should be developed. Need for scientific sensitization of prison staff to ensure human rights compliance. The entire vocational skills programme implemented in jail is outdated not benefiting the prison inmate and hence must be reviewed and based on modern requirements.

·                    The various judicial pronouncements on prisoners' rights to be operationalised by incorporating it into rules-Jail Manual.

·                    Legal Aid facilities have to be more practical. Visits of a lawyer from the Tamil Nadu State Legal Aid Board is not sufficient. Interview facilities are not congenial in the prisons. A system of providing easy entry and interview have to be devised to meet the prisoners. The Duty Counsel appointed by the State legal Aid Board, should have access in its true sense, meaning thereby, the right to freely move about in the prison and meet and interview any prisoner of his choice.

·                    Jails exist with unhygienic toilet conditions, acute lack of water, safe drinking water and overcrowded. Facilities to meet the Advocates is even more appalling. There are only 2 long benches available in the interview hall, which is dark. There are no sports activity nor any sports aids or equipments available. Only one doctor is available. We recommended that all these basic needs must be mandatorily provided according to established human rights standards.

·                    Present day wages at the rate of Rs.5/-, 4/- and 2/- per head per day for the skilled, semi-skilled and unskilled are unrealistic and offer no incentives to work. The wages should be based on minimum wages structure as fixed by the government from time to time.

·                    Annual assessment of Prisons based on scientific management principles to be done by an independent team of experts which is multi disciplinary in nature.

·                    Probation system should be made an autonomous body and adequately strengthened in order to ensure transparency of custodial institutions.

·                    Provisions of Legal Services Authorities Act to be used to hold Prisoners Lok Adalats to reduce overcrowding, facilitate speedy trial, monitor under-trial court appearances and assist in timely release.

·                    Restriction of visits by the relatives, friends and lawyers with regard to days and time in a week to be liberalized.

·                    Urgent Abolishment of Death Penalty in India, is specifically to commute death sentence of all persons in Tamil Nadu Prisons to life imprisonment. We also urge political parties to demand the ratification of the Union Government of Optional Protocol II of the ICCPR and the Convention Against Torture.

·                    There is a need for redrafting the Prison Act and the Prison Manual as per human rights standards. The Prison Bill as drafted by the NHRC be reviewed as against International Human Rights Standards, Indian Constitution and Supreme Court Judgements. The Jail manual should be reviewed according to Human Rights Standards. To this the recommendations of the Justice Ismail Committee Report should be implemented. The voting rights of prisoners in the General Elections should be guaranteed.       

*SC Atrocities States Ranking*
**
*State                                            Rank*

Rajasthan                                         1

Gujarath                                          2

    MP                                                 3

*Kerala                                             4*

UP                                                  5

  Andhra                                             6

Karnataka                                     7

Tamilnadu                                   8

Orissa                                       9

Sikkim                                     10

Maharashtra                             11

Pondichery                           12

Bihar                                     13

Haryana                                  14

J&K                                       15

source: www.combatlaw.org

TAMIL NADU'S NEW INITIATIVES ON POLICE REFORMS -

A COMMONER'S PERSPECTIVE: EXERCISES IN SUBTERFUGE

By V.P.SARATHI, - July 22, 2008

 

         The seven directives of the Supreme Court on bringing new reforms in the functioning of the police in India were issued on 22.09.2006 in Writ petition No. 310 of 1996 filed by Prakash Singh & ors versus U.O.I & ors. The court set 31.12.2006 as the time limit for compliance of directives, which are as follows:

1. Constitute a State Security Commission to:

(i) ensure that the State Government does not exercise unwarranted influence or pressure on the police

(ii) lay down broad policy guidelines

(iii) evaluate the performance of the State police

2. Ensure that the Director General of Police is appointed through a merit-based, transparent process and enjoys a minimum tenure of two years.

3. Ensure that other police officers on operational duties (including Superintendents of Police in charge of a district and Station House Officers in charge of a police station) also have a minimum tenure of two years.

4. Set up a Police Establishment Board which will decide on all transfers, postings, promotions and other service related matters of police officers of and below the rank of Deputy Superintendent of Police and make recommendations on postings and transfers of officers above the rank of Deputy Superintendent of Police.

5. Set up a National Security Commission at the Union level to prepare a panel for selection and placement of Chiefs of the Central Police Organisations (CPO) who should also be given a minimum tenure of two years.

6. Set up independent Police Complaints Authorities at the state and district levels to look into public complaints against police officers in cases of serious misconduct, including custodial death, grievous hurt or rape in police custody.

7. Separate the investigation and law & order functions of the police.

         When the matter came up for hearing on 11.01.2007, the court had extended the time upto 11.02.2007 for compliance of directive Nos.2,3 & 5 which relate to the selection and minimum tenure of police officers, and for redress of their grievances through Police Establishment Board.

         As regards other directives, time for compliance was extended upto 30.04.2007. The  matter stands adjourned.

         Direction No.6 (setting up a Police Complaints Authority) is the only relevant part in the judgment which has a bearing on the day-to-day interaction of a commoner with the police. We should read the implications of this direction along with the Model Police Act proposed by PADC (Soli Sorabjee Committee), though none of the directions of  Supreme Court refer to this Act, since it had been referred to in the obiter dicta.

                                                                    1/5

         Since 'Police' is a State subject under the Constitution of India, State Govts. are framing their own Police Acts. ( Look for these details in CHRI papers).

         It should be noted that the Cr.P.C. as amended in 2005, has been enforced only partially by some States and the Cr.P.C. amendment in 2006 is not yet a law in many States. (For instance, the Govt. of Tamil Nadu vide its notification in its Gazette ,extraordinary,Part IV,Section 1,Iss No.227,pages 165-167, dated September 2, 2006, has omitted certain sections of the Central Act 25 of 2005). The Protection of Human Rights Act,1993, provides for the prosecution of erring public servants including police officers in 'human rights courts' at the district level under the Cr.P.C. for any violation of human rights. The phrase 'human rights' is also defined under the Act. The Act also provides for legal assistance to the victim through the provision of a special public prosecutor by the govt for taking legal action against the erring police officer.

         The Model Police Act uses the terms 'MISCONDUCT', 'SERIOUS MISCONDUCT' and  'DERELICTION OF DUTY', defining them as follows:

Section 167 (1) Explanation: "Serious misconduct" for the purpose of this chapter shall mean any act or omission of a police officer that leads to or amounts to:

(a) death in police custody;

(b) grievous hurt, as defined in Section 320 of the Indian Penal Code, 1860;

(c) rape or attempt to commit rape; or

(d) arrest or detention without due process of law.

Section 167 (3) Explanation: "Misconduct" in this context shall mean any willful breach or neglect by a police officer of any law, rule, regulation applicable to the police that adversely affects the rights of any member of the public, excluding "serious misconduct" as defined in sub-Section (1).

Section 199. Dereliction of duty by a police officer

(1) Whoever, being a police officer:

(a) wilfully breaches or neglects to follow any legal provision, procedure, rules, regulations applicable to members of the Police Service; or

(b) without lawful reason, fails to register a First Information Report as required by Section 154 of the Code of Criminal Procedure, 1973; or

(c) is found in a state of intoxication, while on duty; or

(d) malingers or feigns illness or injury or voluntarily causes hurt to himself with a view to evading duty; or

(e) acts in any other manner unbecoming of a police officer; shall, on conviction, be punished with imprisonment for a term which may extend to three months or with a fine or both.

(2) Whoever, being a police officer:

(a) is guilty of cowardice; or

(b) abdicates duties, or withdraws from duties, or remains absent without authorisation from duty for more than 21 days; or

                                                              2/5

(c) uses criminal force against another police officer, or indulges in gross insubordination; or

(d) engages himself or participates in any demonstration, procession or strike, or resorts to, or in any way abets any form of strike, or coerces or uses physical force to compel any authority to concede anything; or

(e) is guilty of sexual harassment in the course of duty, whether towards other

police officers or any member of the public;

shall, on conviction, be punished with imprisonment for a term which may extend to one year or with a fine or both.

         However, under the caption 'Offences by the Police', Section 199(1) (a), (b) & (e)

        and Section 200 mention the following acts by the police as 'offences':

Section 199: See definition of 'Dereliction of Duty' above.

Section 200: Arrest, search, seizure and violence

Whoever, being a police officer:

(1) without lawful authority or reasonable cause enters or searches, or causes to be entered or searched, any building, vessel, tent or place; or

(2) unlawfully and without reasonable cause seizes the property of any person; or

(3) unlawfully and without reasonable cause detains, searches, or arrests a person; or

(4) unlawfully and without reasonable cause delays the forwarding of any person arrested to a Magistrate or to any other authority to whom he is legally bound to forward such person; or

(5) subjects any person in her/his custody or with whom he may come into contact in the course of duty, to torture or to any kind of inhuman or unlawful personal violence or gross misbehaviour; or

(6) holds out any threat or promise not warranted by law; shall, on conviction, be punished with imprisonment for a term which may extend to one year and shall be liable to fine.

         The Model Police Act has the following provisions for redressal of grievances

         against police:

Section 159. Police Accountability Commission

The State Government shall, within three months of the coming into effect of this Act, establish a State-level Police Accountability Commission ("the Commission"), consisting of a Chairperson, Members and such other staff as may be necessary, to inquire into public complaints supported by sworn statement

against the police personnel for serious misconduct and perform such other functions as stipulated in this Chapter.

Section 173. District Accountability Authority

(1)   The State Government shall establish in each police district or a group of districts in a police range, a District Accountability Authority to monitor

                                                       3/5

 

departmental inquiries into cases of complaints of misconduct against police personnel, as defined in Section 167(3).

            But under Sn.167, only in four circumstances shall an inquiry be held by it viz.

Section 167. Functions of the Commission

(1) The Commission shall inquire into allegations of "serious misconduct" against police personnel, as detailed below, either suo moto or on a complaint received from any of the following:

(a) a victim or any person on his behalf;

(b) the National or the State Human Rights Commission;

(c) the police; or

(d) any other source.

Explanation: "Serious misconduct" for the purpose of this chapter shall mean any act or omission of a police officer that leads to or amounts to:

(a) death in police custody ;

(b) grievous hurt, as defined in Section 320 of the Indian Penal Code, 1860;

(c) rape or attempt to commit rape; or

(d) arrest or detention without due process of law.

Provided that the Commission shall inquire into a complaint of such arrest or detention, only if it is satisfied prima facie about the veracity of the complaint.

Please note the proviso to this section.   

         As per the Model Police Act, the prosecution of an erring police officer under S.197 of the CrPC is not possible unless prior government sanction is got. S.330 & S.331 of the  IPC prescribe a punishment of 10 years for offences by a police officer, but S.199 & S.200 of the model act punishes violence, dereliction of duties, threats, illegal search,

seizure, arrest or  detention and sexual harassment etc. with only 1 year's imprisonment or fine or both. Intoxication on duty and feigning illness are punishable with 3 months imprisonment. To punish a police officer not adhering to legal procedures, provisions and rules etc. it must be proved that the negligence was willful.

         A Police Accountability Commission (PAC) is to be set up in every State to enquire into allegations of "serious misconduct" against a police officer. However, the PAC shall only inquire into a complaint of illegal arrest or detention if it has prima facie satisfaction of its veracity as per S.167. The PAC is not empowered to take any action against the erring police officer for the offence of 'Misconduct'. S.171(b) allows the PAC to direct initiation of departmental enquiries. This power is not mentioned under S.167 which lists the PAC's functions. S.171(b) does not clarify the matter as it fails to mention the circumstances in which the PAC may exercise this power.

         When it has not been given power to inquire into a complaint of refusal of registration of FIR, S.171 states that it may pass a direction to have that done. As regards the offence of misconduct, the Commission 'may monitor' the departmental inquiries if any, instituted. (Pls. Refer to the Writ petition filed by CHRF in the Madras

                                                                    4/5

High court challenging the dropping of a departmental action by the govt against around 350 policemen.)

         The provisos to S.171 which state that the PAC should consider the opinion of the DGP before finalising its own, significantly reduces the import of its  findings as does S.172, which states that the PAC's order to compensate victims is only recommendatory. While complaints may be lodged with the PAC under S.177, this is meaningless as the PAC can not take any departmental action. The provision allowing the filing of complaints with the District Accountability Commission is also meaningless as the DAC only has the power to forward them to the PAC or the DSP – truly a 'post office job'. 

         A major grievance of the public against the police is that they entertain matters of a civil nature, often at the behest of a complainant who has bribed them. Police Standing

Orders in some states do prohibit this illegality but neither the Model Police Act nor the amendment to the CrPC contain any provisions in this regard.

         Most human rights violations begin with a person is being taken into police custody without being told whether he is taken  for enquiry or is being arrested. Though S.160 of the CrPC requires that the police summon any person to the police station for investigation, in writing, this is observed more in the breach. The DK Basu guidelines,  & the Model Police Act are all silent on this aspect. Regarding medical examinations of arrestees, S.54 of the CrPC provides for the same to take place, in addition to laying down that the arrestee must also be furnished a copy of  the said report .

         The National Human Rights Commission has also issued certain guidelines pertaining to the procedures of arrest alone, not for any of the later stages of public interaction with the police. In the Jail Manual, District Judges have been authorised to conduct surprise checks in prisons. In Tamil Nadu, the High Court issued circulars to all Judicial Magistrates to make surprise visits to police stations and file reports on the same every month. This has been a major step in ensuring that incidents of torture and custodial violence are brought to notice. Finally, the amendment to the CrPC also lays down that judicial enquiries shall be held by a magistrate even when a person disappears, i.e. he is kept in 'incommunicado detention'.

                                    IN A NUTSHELL, even the existing human rights safeguards and provisions for prosecution of erring police officials under various laws are sought to be taken away through  the Tamil nadu Police Bill,2008. The result will be disastrous since the new law will be an impediment in taking recourse to the above-said existing laws for redressal of any violations of human rights.

 

 Though the 'IPS Officer's Club' through Mr.Prakash Singh may succeed in securing their grip over the elected representatives of the people, 'full compliance of the SC guidelines in the case' will only mean weakening of the existing human rights instruments and machinery.

LATEST INDIAN LAW ON CUSTODY OF MUSLIM MINOR CHILD

 

Athar Hussain Appellant versus Syed Siraj Ahmed and others Respondents
Date of Decision(mm/dd/yy): 1/5/2010.Civil Appeal No. 11 of 2010

Judge(s): Hon'ble Mr. Justice Tarun Chatterjee and Hon'ble Mr. Justice V.S. Sirpurkar.

Guardian and Wards Act, 1890 — Section 12 — CPC, 1908 — Order 39 Rule 1 and 2 — application filed under — for interim protection of the persons and properties of the minor children and also restraining the appellant from interfering or disturbing the custody of two children till the disposal of the application filed under Sections 7, 9 and 17 of the Act — Family Court passed an ex parte interim order restraining the appellant from interfering with the custody of the two children of the appellant — appellant filed application for vacation of interim order of injunction passed against him — Family Court found the balance of convenience leaning in favour of the appellant and vacated the ad-interim order of temporary injunction — High Court set aside the order of the Family Court vacating the interim order of injunction — appeal — held the question of custody distinct from guardianship. Further held that the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference, thus, no reason to override the rule of Mohammedan Law — irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings — order of the High Court giving the interim custody of the minor children to the respondent till the disposal of the proceedings, modified to the extent of the visitation rights granted to the appellant and the order of the Family Court vacating its injunction order set aside — appeal dismissed — no costs.

Successive Presidents of India, Prime Ministers and Chief Justices of India have addressed the people of this country since August 15, 1947. Is there a study on what follow-up actions, if any, were taken for solving the problems raised in their speeches? Is it not a right as well as a duty of all citizens to know whether their speeches had any meaning or were simply rhetoric?  

 NHRC & IGNOU join hands for rights training for police

The Indira Gandhi National Open University will join with the National Human Rights Commission to soon launch sensitisation programmes in human rights for police.

The Indira Gandhi National Open University (IGNOU) along with the National Human Rights Commission (NHRC) will soon launch sensitisation programmes in human rights for policemen, said Vice Chancellor V.N. Rajsekharan Pillai.

A memorandum of understanding was signed between the IGNOU and the NHRC for launching the programmes at three levels - basic course for constables/sub-inspectors, advanced course for middle level police officers, and training of trainers.

"This will be the first effort of NHRC along with IGNOU to incorporate human rights culture among the Indian police and to develop people-friendly practices," said Pillai.

The first such training programme will be launched for police constables at the Haryana Police Academy in Madhuban.

The programmes will be offered in both distance education and online modes, followed by interactive workshops.

"IGNOU has developed a human rights training portal along with interactive self-instructional materials. E-Gyankosh and School of Law, IGNOU will provide technical online support and develop interactive self-instructional materials for the course," Pillai said.

The NHRC will help in the development of the courses in the initial period in the form of resource support and funding the development of course materials, its printing, development of audio-visual materials and video lectures.

Warm regards,

 

V.P.SARATHI
Chairperson: Coimbatore Human Rights Forum
Old No. 23/1, Govt. Arts College Road,
Coimbatore - 641 018, Tamil Nadu, India.
Office Tel : +91- 422 - 4394101
Mobile: +91 98422 49605
Fax : +91 - 422 - 4377125
Website : www.coimbatorehumanrights.org
e-mail : chrfindia@hotmail.com
CAUTION:This e-mail may contain privileged and confidential information. If you receive it in error please tell the sender and do not copy, distribute or take any action by relying on it. You should ensure this e-mail and any attachments are virus free.  It is your responsibility to ensure that viruses do not adversely affect your system and that your messages to us meet all  security requirements. We reserve the right to read any e-mail or attachment entering or leaving our systems without notice.