Human Rights new look

Presented by :
Ganesh K. Sovani
Advocate – Bombay High Court
Thane – 400 602
Mobile : 98209 28507
Off: 2294 8304
E-mail : ganesh_sovani@rediffmail.com
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