No One Shall be Subjected To Arbitrary Arrest, Detention or Exile

NAME: - JYOTI THAKUR MASW-I Year ROLL NO. : - 14 COURSE: - Professional Social Work: History and Ideologies

INNOCENT TILL HELD GUILTY BAIL IS THE RULE, JAIL AN EXCEPTION

Often treated as legal maxims, such statements become clichs and ironic when jail becomes the rule and innocent are treated in the manner considered too cruel even for persons convicted of heinous crimes. Casting in words the maxims of Criminal jurisprudence, Justice Singhvi and Justice Datt, hearing a bail plea in the widely covered 2G scam noted, Deprivation of liberty must be considered a punishment..... Punishment begins after conviction and that every man is deemed to be innocent until duly tried and duly found guilty... every person, detained or arrested, is entitled to speedy trial1 With the words of Justice Singhvi and Justice Dutt serving as a beacon, we shall examine and comment upon the issue of Arbitrary Arrest, Detention and Exile, covering the history of Human rights and Indian Constitution, the Indian legislative procedures governing the arrest and detention and anti-terror laws, a look at glaring excesses committed by the State machinery, role of National Human Rights Commission and some possible remedies. ___________________________________________________________________________________ Human Rights: The History - from Magna Carta to Universal Declaration of Human Rights to the Indian Constitution It all started in 1100 AD with King Henry Is Charter of Liberties but was soon forgotten. Hundred and fifteen years later, the Magna Carta (1215 AD), signed by King John of England, that casted in ink the earliest declaration of Human Rights: Clause XXIX - No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor [condemn him,] but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.2 Though most of the Magna Carta was repealed over the years, the Clause XXIX continues to be in force and has served is still in force and is said to have inspired later framing of Constitutions including that of United States of America3. In modern world, the shock of immense brutality, war violence and deaths during the world war-I (1914-1918) led to formation of The League of Nations to protect the rights of racial, religious, linguistic refugees and minorities. However, the League failed miserably. The Second World War shook the foundations of humanity. Protracted deliberations and mutual negotiations led to the inception of United Nations Organisation in 1945 as an effort towards establishing global peace and guaranteeing human rights. The UN Charter provided the foundation for a global approach to human rights. The Universal Declaration of Human Rights (hereinafter referred to as The

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http://www.hindustantimes.com/India-news/NewDelhi/Bail-is-the-rule-jail-an-exception-observes-SC/Article1-773199.aspx http://www.legislation.gov.uk/aep/Edw1cc1929/25/9/section/XXIX

http://www.archives.gov/exhibits/charters/constitution_q_and_a.html

Declaration, adopted by UN General Assembly on 10 December 1948, has since become the modern Magna Carta and provides basis for the adoption of human rights framework around the World. The Preamble of the Declaration recognised the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the World.4 Everyone has the right of life, liberty and security of person (Article 3), and No One Shall be Subjected to Arbitrary Arrest, Detention or Exile (Article 9) became fundamental provisions of the Declaration to secure dignity inherent of for all the members of human family. Though India gained independence in 1947, the history of legislative recognition of human rights in India can be traced back to resolution on human rights passed by Karachi Session of Congress (1931). The resolution guaranteed basic civil rights of free speech, free press, free assembly and freedom of association, equality before law irrespective of caste, creed or sex; neutrality of state in regard to all religions, elections on basis of universal adult franchise, and free and compulsory education.5 Indian Constitution6 The principles agreed upon in Karachi Resolution were carried forward and substantially incorporated in the Indian Constitution. Broad provisions of the Constitution dealing with the right to freedom have been discussed below: Preamble The Preamble sets out the tone of the resolve of people of India to uphold the dignity of humankind when declares the having solemnly resolved to secure to all its citizens Justice, social economic and political; Liberty of thought, expression, belief, faith and worship Fundamental Rights Article 19 - Right to Freedom provided all the citizens certain freedoms including freedom of speech and expression, peaceful assembly.. Article 21 serves as a protection of life and liberty no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 Article 22 can be considered as Indian companion of Article 9 of the Declaration. It provides for protection of freedom of a person by making it mandatory for authorities to inform the grounds of arrest or detention, as soon as may be, and to right of the person so detained or arrested to consult legal practitioner of his choice, production of person so arrested before magistrate within twenty four hours of such arrest or detention, to represent against any order providing for preventive detention exceeding three months. Thus, the Indian Constitution recognized the need to restore the dignity of human through comprehensive legislative mechanism and fundamental rights. Whether this intent actually percolated to the ground level is something we shall see in the following pages.
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http://www.un.org/en/documents/udhr/index.shtml http://www.preservearticles.com/2012031527385/at-karachi-in-1931-the-congress-defined-whatswaraj-would-mean-for-the-masses.html 6 Constitutional Law of India H.M. Seervai (Universal Law Publishing & Co.)

Indian legislative Mechanism Criminal Procedure Code, 1973(CrPC7) CrPC provides for detailed mechanism to be followed for arrest and detention with due consideration being given to the fundamental rights. Chapter V of CrPC provides for the provisions for arrest; segregating crimes into cognizable and non-cognizable offences, separate procedures for each class of crimes, the limitation on time period for detention. Chapter XI provides powers to make arrest to prevent commission of cognizable offences. Preventive Detention Acts While the fathers of Indian Constitution provided for fundamental rights, they never lost sight of misuse of these freedoms and therefore qualified the fundamental rights by giving the power to the legislative bodies to pass appropriate laws to impose reasonable restrictions on the exercise of these rights (Article 19(2,3, 4,5,6) of the Constitution) and also provided for preventive detention, although with severe restrictions on use of it (Article 22 (4 and 5) of the Constitution). What followed, is a series of preventive detention acts enacted by both, the Central and State governments. The first of these was: The Preventive Detention Act, 1950, which was in force till 1969. The Armed Forces (Special Powers) Act 1958 has been used extensively in the seven states of the North-East. The Maintenance ofInterna1 Security Act, 1971 was in force' till 1978 and was used extensively against the political -opponents of the then existing regime. Laws like the Defence of India Act were enacted after the promulgation of internal Emergency in June 1975. The Jamrnu and Kashmir Public Safety Act came into force in 1978, the Assam Preventive Detention Act and the National Security Act, 1980 were both instituted in 1980 and (the latter still continues to exist in the statute book. The Armed Forces (Punjab and Chandigarh) Special Powers Act and the Punjab Disturbed Areas Act were passed in 1983, followed by the Terrorist and Affected Areas (Special Courts) Act, 1984. TADA, POTA, NSA, PSA TADA (Terrorist and Disruptive Activities (Prevention) Act, 1985) and POTA (Prevention of Terrorism Act, 2002), turned the criminal jurisprudence on its head. TADA created new procedures, new hierarchies, new restrictions on the life and liberties of the people, according to the Report. An individual can be kept under detention for two years and this period can be indefinitely extended on the same grounds, any number of times. It shifted the onus of proof on to the accused completely upturning the fundamental norms of justice. Ordinary courts were barred to individuals arrested under the Act. POTA, enacted in response to heightened terrorists activities in 2001, which included an attack on the Indian Parliament, allowed the detention of a suspect for up to 180 days without the filing of charges in court. It also allowed law enforcement agencies to withhold the identities of witnesses and treats a confession made to the police as an admission of guilt. Under regular Indian law, a person can deny such confessions in court, but not under POTA.8

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http://mha.nic.in/pdfs/ccp1973.pdf http://www.rediff.com/news/2004/sep/18spec1.htm

National Security Act, 1980 permit detention of a person without charge or trial for one year. Public Safety Act, 1978, applicable to Jammu and Kashmir, permit detention up to two years without any legal recourse available to the detainee. Though both TADA and POTA have been repealed, cases initiated under these laws are still pending with the special courts created under the respective legislations. But we have must worse laws, which dwarf the POTA and TADA. AFSPA (Armed Forces Special Powers Act, 1958) gives blanket immunity to armed forces, operating in areas declared as disturbed, from any legal proceedings in any civil court. However, AFSPA and its provisions per say dont relate to arbitrary arrest or detention, it is worthwhile to mention its existence while discussing the laws which abrogate the civil liberties of individuals. We have the Second God: Police! Violation of Individual Rights: Acts of the Executive Despite of all the safeguards provided by the constitution to protect the liberty of persons there is no dearth of incidences where this right was taken away by the state in India. One of the major ways in which rights of individuals may be annulled is through the provisions of Preventive Detention. According to the State of Human Rights in India, 1996 (Legal Resources for Social Action, Chengalpattu, undated), about forty preventive detention laws exist in the statute books in India. In its report on human rights in India during 2010, Human Rights Watch stated India had "significant human rights problems".[3] They identified lack of accountability for security forces and impunity for abusive policing including "police brutality, extrajudicial killings, and torture" as major problems. An independent United Nations expert in 2011 expressed concern that she found human rights workers and their families who "have been killed, tortured, ill-treated, disappeared, threatened, arbitrarily arrested and detained, falsely charged and under surveillance because of their legitimate work in upholding human rights and fundamental freedoms. While many may say that these legislations were the need of the hour, the rampant misuse of the law for vested interests point to different conclusions. The history of Independent India is full of such administrative brutalities. Our first tryst with the abrogation of human rights by state, THE EMERGENCY, shook the basic foundations of Indian democratic setup. The simpleton provisions of CrPC (which was framed by Britishers to maintain their stronghold over Indian dominion) were used to arrest and often terminate political foes, activists etc. Even innocent university students werent left untouched. The famous Rajan case, where P Rajan, an engineering student in Kerala, died in police custody, resulting in resignation of K karunakaran as Chief Minister of Kerala, brought about the abject disregard for human rights during the dark days of the Emergency.9 Though it would be wrong to consider the Emergency as the starting point, but in any case, the abuse of law for vested political games gained traction since then. According to an Amnesty International report, around 1.5 lakh were arrested during emergency period. Surprisingly, forty thousand among them belonged to minority Sikh community. The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and

A heart drenching description of this case is available in the book Memoirs of a Father written by Rajans father, T.V. Eachara Varier

large, nearly 60% of the arrests were either unnecessary or unjustified.10 Though this report was more concerned about the unnecessary arrests in relation to petty or minor crime, it is a worthwhile commentary on the highhanded approach of the police administration. But, high handed approach of police is not the only reason behind the problem of arbitrary arrest or detention. The misuse of police for political/ financial gains is much worse of a cause. Chattisgarh Special Public Security Act, 2005 was allegedly misused to arbitrarily arrest Dr Binayak Sen on flimsy grounds, accusing him of supporting naxal movement. Dr Sen spent almost four years in custody and was released on bail by the Supreme Court of India.11 We have already discussed the Rajan case. There are several other such instances. Irom Sharmila, a decade into her hunger strike against AFSPA, is regularly arrested on the archaic suicide laws and force fed. Moirangthem Ashnikumar Singh an environmental activist was picked up and arrested by Police in April 2010 under NSA. No charges have been framed against him. His current status is unknown.12 Such stories have daily ingredients of our life. Do we really need the National Security Laws? Many of the legislations for prevention of anti-national/ terror activities were framed to serve the expedient problems of the time they were enacted. They may have served the moment but their relevance to all conditions is doubtful. In any case their misuse is rampant. Making mockery of the provisions National Security Act, 1980, in case of murder of a corporator Basti district, Uttar Pradesh, in addition to registering case under Section 302 of IPC, the District Magistrate passed a detention order against the accused under NSA. The Allahabad High Court declared the detention order under NSA as illegal, noting, if the act is restricted to particular individual(s) due to enmity, it breaches the law and order only. A solitary incident directed against a particular individual even if it may cause scare temporarily in the locality cannot be held to affect public order.13 Such misuse of provisions of stringent law grievously effect the basic human liberty but this is not all. According to Amnesty international India Report (December 2008), anti-terror laws are often directed towards religious minorities without any sufficient cause or evidence. Of 29 entities banned under POTA, not even one belonged to religious majority. Hundreds of young muslim teenagers from Uttar Pradesh have been arrested for alleged terrorist activities. Their status is unknown. Many are yet to be chargesheeted. According to some estimates, around seventy five thousand people were detained under TADA. Around seventy three thousand of such cases were withdrawn for lack of evidence.14 No democratic country can call itself humane if with such astounding number of false cases being lodged against innocent people. Subramanian Swamy, commenting upon uselessness of Lokpak agitation said that India has enough laws to take care of every sort of crimes. The same applies to the fight against terror too. Promulgation of multiple draconian regulations have only led to misuse of law and has left more and more innocent souls languishing in jails without charge sheet and without trial.

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Joginder Kumar vs State Of U.P (1994 AIR 1349) http://www.pucl.org/Topics/Human-rights/2007/sen-case-analysis.html 12 http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-092-2010 13 Zakaullah (In Jail) vs Superintendent, District Jail (2005 CRILI 2021) 14 http://www.rediff.com/news/2004/sep/18spec1.htm

But is that the only solution? Apparently not. There other avenues too. Supreme Court: Justice Does Prevail Supreme Court has steadfastly played its role of the guardian of the Indian Constitution and the fundamental rights. More often than not, the abuse of fundamental rights has been corrected by the August court of our country. Whether it was disbanding of Salwa Judam15 or clearly restricting the powers to arrest under Chapter V of CrPC when it noted No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom16 But then, Supreme Court can only cure the disease. What we need is the prevention of abuse of fundamental rights of a human being! National Human Rights Commission: Another Hope National Human Rights Commission (hereinafter referred to as NHRC), established under The Protection of Human Rights Act, 1993, has the mandate to play proactive role in safeguarding the fundamental rights, promote awareness among masses about their basic rights, review roadblocks in enjoyment of fundamental rights and recommend appropriate remedial measures, etc.17 The mandate of NHRC was always to play an active role in prevention of human rights abuse. That it appears to play role of an investigative agency is another issue. There is still some hope that NHRC shall start playing a preventive role soon.

Remedial Measures India as a nation has made huge progress in the field of human rights. Prohibition of untouchability (through the Constitution) and other measures have definitely helped in providing for basic human rights to its citizens. However, given what we have noted above, there is huge for improvement too. For the starter, impending police reforms need to be urgently taken up. Reduction of work pressure on policemen, sensitization about human rights, separation of investigative agencies from political class, could lead to reduction in insensitivity of policemen towards human rights. We further need to strengthen our judicial system, make it work faster and efficiently; fast- tracking of preventive detention cases, strict adherence to bail is the rule, jail an exception principle (except for appropriate cases.
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http://articles.timesofindia.indiatimes.com/2011-07-06/india/29742942_1_spos-anti-maoist-maoist-violence Joginder Kumar vs State Of U.P (1994 AIR 1349) 17 http://nhrc.nic.in/

Reconciliation: A majority of human rights violation in India happen in disturbed states of J&K, North-eastern states, and Naxal affected areas. Reconciliation with fighting factions in these areas could lead to a stable and peaceful environment, reduction of military and police presence; build confidence among the natives and hopefully, lesser human rights violation. Phasing out of draconian laws such as AFSPA: Phasing out of laws that give excessive powers to police and administration is necessary for building confidence and to allow peaceful enjoyment of fundamental rights.

Swaraj is my birthright, and I shall have it May the words of Bal Gangadhar Tilak become true for every human beings real freedom. An afterthought Just an afterthought .Though we didnt discuss the topic of exile, a smell incident aptly sums up the attitude of Indian administration towards exile. Universally acclaimed painter M.F. Hussain was forced to live away from India till his death. Though he was never officially exiled, Indian governments inability to provide him peaceful stay in India reflects its callous attitude towards forced exile.

References.......
Human Rights In India Bhattacharya and Ghose . Rethinking Human rights- Sethi and khotari. Human rights concept and issues J-Shivananda. Fundamental Human rights Deshta and Deshta . International Law , Protection From Arbitrary Arrest and Detention Lawrent Marcoux .Jr . Amnesty International Report on India, 2008 . Oxford Advanced Learners' Dictionary. Human Rights Report India 2010 US dept of State Diplomacy In Action. Human Rights , Gender and Environment Pawan Sinha , Foundation Course , University of Delhi . Human Rights In Police Custody N . Krishna Kumar , Research Scholar , Cochin University of Science and Technology .