Human rights
and
Its Impact in Police work
Compiled by
M. Sethurama Subramanian
Advocate, Madras High Court
Mobile: 9790081051
Human Rights ?
Greek play Antigone
Antigone’s brother, while he was rebelling against
the king, was killed.
His burial was also denied.
In defiance of the order She buried her brother.
She was arrested for violating the order.
She pleaded that She had acted in accordance
with the “immutable, unwritten laws of heaven”
which even the king could not override.
Sophocles – 440 BC
Historical Background of Human rights
Every individual must have some rights against the State or other public authority by
virtue of his being a member of the human family and such rights are ‘ human rights’.
The concept of human rights is as old as ancient doctrine of natural rights based on
natural law.
Human rights emerge from Post- Second World War International Charters and
Conventions.
The first documentary use of the expression ‘ human rights’ is to be found in the
Charter of the United Nations.
Historical Background of Human rights
The UN General Assembly in December, 1948 by adopting the UDHR took concrete
steps by way of formulation various human rights.
UDHR was not legally binding covenant and U.N. had no machinery for its
enforcement.
The deficiency was sought to be removed by the U. N. General Assembly by adopting
in December, 1965 two covenants for the observance of Human rights.
1. The International covenant on Civil and Political rights (ICCPR).
2. The International Covenant on Economic, Social and Cultural rights (ICESCR).
International Human rights Instruments
Universal Declaration of Human Rights
(UDHR) – 10-12-1948
International Convention on Civil and Political
Rights (ICCPR) – 16-12-1966
International Convention on Economic, Social
and Cultural Rights (ICESCR) - 16-12-1966
The Protection of Human Rights Act, 2005
An Act to provide for the constitution of a National Human
Rights Commission, State Human Rights Commissions in
States and Human Rights Courts for better protection of
human rights and for matters connected therewith or
incidental thereto.
Extends to whole of India
Came into Force on 28-09-1993.
Human Rights
• Section-2(d) of Protection of Human Rights Act, 1993
• “Human Rights” means the rights relating to
life,
liberty,
equality and
dignity of the individual guaranteed by the Constitution or
embodied in the International Covenants and
enforceable by courts in India.
National Human Rights Commission (Section -3)
• It is constituted by Central Government.
• The commission shall consists of
A Chairperson who has been a Chief Justice of India or a Judge of the Supreme Court;
one Member who is, or has been, a Judge of the Supreme Court;
one Member who is, or has been, the Chief Justice of a High Court;
three Members out of which at least one shall be a woman to be appointed from amongst
persons having knowledge of, or practical experience in, matters relating to human
rights.
National Human Rights Commission (Section -3)
Deemed Members of the Commission
The Chairpersons of the
the National Commission for Backward Classes,
the National Commission for Minorities,
the National Commission for Protection of Child Rights,
the National Commission for the Scheduled Castes,
the National Commission for the Scheduled Tribes and
the National Commission for Women and
the Chief Commissioner for Persons with Disabilities
Appointment of Chairperson and other Members of NHRC
The Chairperson and the Members shall be appointed by the President by warrant under his
hand and seal.
every appointment under this sub-section shall be made after obtaining the recommendations
of a Committee consisting of-
(a) the Prime Minister —chairperson;
(b) Speaker of the House of the People —member;
(c) Minister in-charge of the Ministry of Home Affairs in the Government of India —member;
(d) Leader of the Opposition in the House of the People —member;
(e) Leader of the Opposition in the Council of States —member;
(f) Deputy Chairman of the Council of States —member:
Resignation and Removal of Chairperson and other Members of NHRC
The Chairperson or any Member may, by notice in writing under his hand addressed to the
President of India, resign his office.
The Chairperson or any Member shall only be removed from his office by order of the
President of India on the ground of proved misbehaviour or incapacity after the Supreme
Court, on reference being made to it by the President, has, on inquiry held in accordance with
the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson
or the Member, as the case may be, ought on any such ground to be removed.
Resignation and Removal of Chairperson and other Members of NHRC
The President may, by order, remove from office the Chairperson or any Member if the
Chairperson or such Member, as the case may be,—
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid employment outside the duties of his office; or
(c) is unfit to continue in office by reason of infirmity of mind or body; or
(d) is of unsound mind and stands so declared by a competent court; or
(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the
President involves moral turpitude.
Terms of office of Chairperson and other Members of NHRC
The Chairperson – 3 years or until he attains the age of 70 years and
he is eligible for re-appointment.
The Members – 3 years or until he attains the age of 70 years and
They are eligible for re-appointment.
On ceasing to hold office, a Chairperson or a Member shall be ineligible for further
employment under the Government of India or under the Government of any State.
Officers and other staffs of NHRC
The Central Government shall make available to the Commission—
(a) an officer of the rank of the Secretary to the Government of India who shall be the
Secretary-General of the Commission; and
(b) such police and investigative staff under an officer not below the rank of a Director
General of Police and such other officers and staff as may be necessary for the efficient
performance of the functions of the Commission.
Functions of NHRC
(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf
or on a direction or order of any court, into complaint of—
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights
pending before a court with the approval of such court;
(c) visit, notwithstanding anything contained in any other law for the time being in force,
any jail or other institution under the control of the State Government, where persons are
detained or lodged for purposes of treatment, reformation or protection, for the study of
the living conditions of the inmates thereof and make recommendations thereon to the
Government;
Functions of NHRC
(d) review the safeguards provided by or under the Constitution or any law for the time
being in force for the protection of human rights and recommend measures for their
effective implementation;
(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human
rights and recommend appropriate remedial measures;
(f) study treaties and other international instruments on human rights and make
recommendations for their effective implementation;
(g) undertake and promote research in the field of human rights;
Functions of NHRC
(h) spread human rights literacy among various sections of society and promote awareness
of the safeguards available for the protection of these rights through publications, the
media, seminars and other available means;
(i) encourage the efforts of non-governmental organisations and institutions working in the
field of human rights;
(j) such other functions as it may consider necessary for the promotion of human rights.
Powers relating to inquires of NHRC
The Commission shall, while inquiring into complaints under this Act, have all the
powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908),
and in particular in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of witnesses and examining them on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed.
Investigation by NHRC
The Commission may, for the purpose of conducting any investigation pertaining to the
inquiry, utilise the services of any officer or investigation agency of the Central
Government or any State Government with the concurrence of the Central Government
or the State Government, as the case may be.
The officer or agency shall investigate into any matter pertaining to the inquiry and
submit a report thereon to the Commission within such period as may be specified by the
Commission in this behalf and if no time is specified, within 2 weeks from the date of
order.
Statement made by persons to the Commission
• No statement made by a person in the course of giving evidence before the Commission
shall subject him to, or be used against him in, any civil or criminal proceeding except a
prosecution for giving false evidence by such statement:
• Provided that the statement—
(a) is made in reply to the question which he is required by the Commission to answer; or
(b) is relevant to the subject matter of the inquiry.
Inquiry into complaints
The Commission while inquiring into the complaints of violations of human rights may—
(i) call for information or report from the Central Government or any State Government or
any other authority or organisation subordinate thereto within such time as may be specified
by it:
(a) if the information or report is not received within the time stipulated by the Commission,
it may proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the Commission is satisfied either that no further
inquiry is required or that the required action has been initiated or taken by the concerned
Government or authority, it may not proceed with the complaint and inform the complainant
accordingly.
Steps during and after Inquiry
(a) where the inquiry discloses the commission of violation of human rights or negligence in
the prevention of violation of human rights or abetment thereof by a public servant, it may
recommend to the concerned Government or authority—
(i) to make payment of compensation or damages to the complainant or to the victim or the
members of his family as the Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable action as the Commission
may deem fit against the concerned person or persons;
(iii) to take such further action as it may think fit;
Steps during and after Inquiry
(b) approach the Supreme Court or the High Court concerned for such directions, orders or
writs as that Court may deem necessary;
(c) recommend to the concerned Government or authority at any stage of the inquiry for the
grant of such immediate interim relief to the victim or the members of his family as the
Commission may consider necessary;
(d) provide a copy of the inquiry report to the petitioner or his representative;
Steps during and after Inquiry
(e) the Commission shall send a copy of its inquiry report together with its
recommendations to the concerned Government or authority and the concerned Government
or authority shall, within a period of one month, or such further time as the Commission
may allow, forward its comments on the report, including the action taken or proposed to be
taken thereon, to the Commission;
(f) the Commission shall publish its inquiry report together with the comments of the
concerned Government or authority, if any, and the action taken or proposed to be taken by
the concerned Government or authority on the recommendations of the Commission.
State Human Rights Commission (Section -21)
• It is constituted by State Government.
• The commission shall consists of
A Chairperson who has been a Chief Justice or a Judge of the High Court;
one Member who is, or has been, a Judge of the High Court or District Judge (7 years
experience).
One Member to be appointed from amongst persons having knowledge of, or practical
experience in, matters relating to human rights.
A State Commission may inquire into violation of human rights only in respect of
matters relatable to any of the entries enumerated in List II and List III in the Seventh
Schedule to the Constitution.
Appointment of Chairperson and other Members of SHRC
The Chairperson and the Members shall be appointed by the Governor by warrant
under his hand and seal.
every appointment under this sub-section shall be made after obtaining the
recommendations of a Committee consisting of-
(a) The Chief Minister —chairperson;
(b) Speaker of the Legislative Assembly —member;
(c) Minister in-charge of the Department of Home Affairs in that State —member;
(d) Leader of the Opposition in the Legislative Assembly —member;
Resignation and Removal of Chairperson and other Members of SHRC
The Chairperson or any Member may, by notice in writing under his hand addressed to the
Governor, resign his office.
The Chairperson or any Member shall only be removed from his office by order of the
President of India on the ground of proved misbehaviour or incapacity after the Supreme
Court, on reference being made to it by the President, has, on inquiry held in accordance with
the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson
or the Member, as the case may be, ought on any such ground to be removed.
Resignation and Removal of Chairperson and other Members of SHRC
The President may, by order, remove from office the Chairperson or any Member if the
Chairperson or such Member, as the case may be,—
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid employment outside the duties of his office; or
(c) is unfit to continue in office by reason of infirmity of mind or body; or
(d) is of unsound mind and stands so declared by a competent court; or
(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the
President involves moral turpitude.
Terms of office of Chairperson and other Members of SHRC
The Chairperson – 3 years or until he attains the age of 70 years and
he is eligible for re-appointment.
The Members – 3 years or until he attains the age of 70 years and
They are eligible for re-appointment.
On ceasing to hold office, a Chairperson or a Member shall be ineligible for further
employment under the Government of India or under the Government of any State.
Officers and other staffs of SHRC
The State Government shall make available to the Commission—
(a) an officer not below the rank of a Secretary to the State Government who shall be the
Secretary-General of the State Commission; and
(b) such police and investigative staff under an officer not below the rank of an Inspector
General of Police and such other officers and staff as may be necessary for the efficient
performance of the functions of the State Commission.
Powers and Functions of SHRC
The Powers and Functions of the state Human Rights
Commission are similar to the Powers and functions of
the National Human Rights Commission.
Protection of Prisoners in India
People’s Union of Democratic Rights Vs Union of India, 1982
“ The Right to life guaranteed under Article-21 is not confined merely to physical
Existence or to use of any faculty or limb through which life is enjoyed, it also includes
within its scope and ambit the right to live, with basic human dignity and the State
cannot deprive any one of this precious and invaluable right without just, fair and
reasonable procedure established by law.”
Protection of Prisoners in India
State of Andhra Pradesh Vs Challa Ram Krishna Reddy, 2000
“ Even a prisoner, be he a convict or under- trial prisoner or detenu continues to enjoy
all his fundamental rights including the right to life guaranteed to him under the
Constitution. However, convicts by mere reason of their conviction are deprived of
some of their fundamental rights such as right to move freely through out the territory
of India or the right to practice a profession.”
Protection of Prisoners in India
Sunil Badra Vs Delhi Administration, 1978
“ Conviction for a crime does not reduce the person into a non-person whose rights are
subject to the whim of the prison administration and therefore, the imposition of any
major punishment within the prison system is conditional upon the observance of
procedural safeguards.”
Right to free Legal Aid
M. H. Hoskot Vs State of Maharashtra, 1978
“ The right to free legal aid to the citizen at the cost of the state is implicit in
Article-21 and is part of reasonable, fair and just procedure.”
Right to Speedy trial
Hussainara khatoon Vs Home Secretary Bihar, 1979
“ A procedure which does not ensure a reasonable speedy trial and holds the
detenu behind the bars for a long time without trial cannot be regarded as ‘
reasonable, fair and just procedure under Article-21.”
A.R. Anthulay Vs R.S. Nayak, 1992
“ Fair, just and reasonable procedure as implicit in Article-21 of the
Constitution creates a right in favour of the accused to be tried Speedily. Right
to Speedy Trial is the right of the accused.”
Custodial Torture by police
Munshi Singh Gautam Vs State of M.P, 2005
Facts: On the intervening night of 19th and 20th june, 1984, the deceased Sambunath
Tyagi was brought to the police Station to extort Confession he was beaten up, as a
consequence he died. To conceal the crime and to remove traces of offence body of the
deceased was thrown near a nala. The 5 accused police officers were held guilty and
punished accordingly.
“ The right to life and personal liberty as enshrined in Article – 21 of the Indian
Constitution provide an in built guarantee against torture or assault by the State or its
Functionaries.”
Right against Hand Cuffing
Prem Shankar Shukla Vs Delhi Administration, 1980
“ Ordinarily Prisoners should not be handcuffed as it amounts to
their torture, violation of their dignity and also infraction of just,
fair and reasonable procedure under Article-21 of the Constitution.”
Right against Hand Cuffing
Sunil Gupta Vs State of M.P., 1990
The petitioners were taken to court from jail and back to jail in
handcuffs.
They were arrested while staging a “dharna” for a public cause and
volunteered themselves for arrest.
Practically there was no possibility of their run away.
It held that handcuffing them was violative of Article-21 of the
Constitution as reasons for the necessity of handcuffing them were
not recorded in writing.
Right against Hand Cuffing
State of Maharastra Vs Ravikant, 1992
The petitioner was an under trial prisoner.
He was handcuffed and paraded in the street by police.
The Court awarded Rs.10,000/- to the victim to be paid by the State
Government.
Right against Hand Cuffing
Citizen for Democracy Vs State of Assam, 1995
Seven TADA detenues were lodged inside the ward of the Guwahati
Medical College Hospital.
They were handcuffed and tied with rope to contain their movement
The reasons is, they were hardcore ULFA activists accused of
terrorist and disruptive activities, murder, extortion, hoarding and
smuggling of arms and ammunition etc.
Right against Hand Cuffing
Citizen for Democracy Vs State of Assam, 1995
It was held by the court that there was nothing on the record to
show that the detenues were prone to violence or they were likely to
jump jail or break out of custody, “they were hardcore activists of
ULFA, accused of serious offences were not sufficient to keep them
in handcuffs and tied with ropes while lodged in a closed ward of
the hospital as patients.
It is Inhuman and is utter violation of the human rights guaranteed
to an individual under the international law and the law of the land.
Hand cuffing
Section-43 of BNSS,2023- Arrest how made.
(3)The police officer may, keeping in view the nature and gravity of the offence, use handcuff
while making the arrest of a person or while producing such person before the court
who is a habitual or repeat offender, or
who escaped from custody, or
who has committed offence of organised crime, terrorist act, drug related crime, or illegal
possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and
currency-notes, human trafficking, sexual offence against children, or offence against the
State.
Right to compensation for wrongful arrest, detention and torture.
Article-9(5) of the Convention on Civil and Political Rights
It provides that “ Any one who has been victim of unlawful arrest or
detention shall have enforceable right of compensation.
In India, there is no specific provision incorporated in the
Constitution but the Supreme Court has made it clear that payment
of compensation for wrongful arrest or detention is important mode
to prevent the violation of the right to life and personal liberty
under Article-21 of the Constitution.
Rudul shah Vs State of Bihar, 1983
“ The petitioner Rudul shah was acquitted by the Sessions Court on
June 30, 1968 but he was released from jail on October 16, 1982 after
a period of more than 14 years. The court awarded compensation of
Rs. 30,000/- to the Petitioner.”
Bhim Singh Vs State of J & K, 1985
The petitioner, an MLA while going to attend the assembly session was
arrested and detained in police custody and consequently he was
prevented from attending Session of the Legislative Assembly.
It was held that when there is invasion into the constitutional rights of
the victim, the malice or invasion can not be washed away by setting him
free free.
In such cases, the court has power to award monetary compensation to
the victim. The Court thus awarded Rs.50,000/- by way of compensation
to the petitioner for violation of Article-21 of Constitution.
Nilabeti Behera Vs State of Orissa, 1993
One Suman Behera aged about 22 years was taken into police custody in
connection with the investigation of an offence of theft and detained at
the Police Outpost.
Next day, his dead body was found on a railway track.
The Body when found bore multiple injuries leading to the conclusion
that his death was unnatural caused by those injuries which were
inflicted to him while he was in Police Custody.
The Court awarded Rs.1,50,000/- as compensation to the mother of the
Suman Behera.
Whether compensation should be awarded for every violation of Article-21
where illegal detention or custodial violence is alleged??????
Where Custodial death or custodial torture or other violation of the rights
guaranteed under Article-21 is established. Compensation may be awarded in
Proceeding under Article-32 or 226.
However, before awarding compensation, the court will have to pose to itself the
following questions:
Whether the violation of Article-21 is patent and incontrovertible.
Whether the violation is gross and of a magnitude to shock the conscience of
the Court.
Whether the custodial torture alleged has resulted in death or
Whether the custodial torture is supported by medical report or visible marks or
scars or disability.
No arrest without the prior permission
Section-35 of BNSS,2023 - When police may arrest without warrant.
(7) No arrest shall be made
without prior permission of an officer not below the rank of Deputy Superintendent of
Police
in case of an offence which is punishable for imprisonment of less than three years and
such person is infirm or is above sixty years of age.
Police Custody vs Judicial Custody
Section-187 when investigation cannot be completed in twenty-four hours.
The Magistrate to whom an accused person is forwarded under this section may,
irrespective of whether he has or has no jurisdiction to try the case, after taking
into consideration whether such person has not been released on bail or his bail has
been cancelled, authorise, from time to time, the detention of the accused in such
custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the
whole, or in parts, at any time during the initial forty days or sixty days out of
detention period of sixty days or ninety days, as the case may be, as provided in sub-
section (3), and if he has no jurisdiction to try the case or commit it for trial, and
considers further detention unnecessary, he may order the accused to be forwarded
to a Magistrate having such jurisdiction.
Police Custody vs Judicial Custody
Investigation relates to Number of days of
detention in custody
an offence punishable with 90 days
death, imprisonment for life or
imprisonment for a term of
ten years or more
any other offence 60 days
Person arrested not to be detained more than 24 hours
Section-58- Person arrested not to be detained more than 24 hours.
No police officer shall detain in custody a person arrested without warrant for a longer
period than under all the circumstances of the case is reasonable, and such period shall
not, in absence of a special order of a Magistrate, under Section-187, exceed 24 hours
exclusive of the time necessary for the journey from the place of arrest to the
Magistrate’s Court, whether having jurisdiction or not.
Protection against arrest and detention
Article22 - Protection against arrest and detention in certain cases.
(1) No person who is arrested shall be detained in custody without being informed,
as soon as may be, of the grounds for such arrest nor shall he be denied the
right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before
the nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the court
of the magistrate and no such person shall be detained in custody beyond the said
period without the authority of a magistrate.
Thank you!!!
M. Sethurama Subramanian
Advocate, Madras High Court
Mobile: 9790081051