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PERSPECTIVE

A Tribune Special
To handcuff or not
Parliament should enact a law to prevent the misuse of handcuffs, says Sankar Sen
A
rbitrary arrests and misuse of handcuffs are common
complaints
of abuse of authority against the police. There are a number of judicial pronouncements condemning the police practice of handcuffing the prisoners and criminals and parading them in the streets.  Illustration: Kuldeep Dhiman


EARLIER STORIES

Vanishing jobs
February 7, 2009
Resignation as a farce
February 6, 2009
Shorter the better
February 5, 2009
Trouble in EC
February 4, 2009
Terror networks intact
February 3, 2009
EC in crisis
February 2, 2009
Crisis in higher education
February 1, 2009
Ekla Chalo
January 31, 2009
Kashmir is bilateral
January 30, 2009
Outrage in Mangalore
January 29, 2009
THE TRIBUNE SPECIALS
50 YEARS OF INDEPENDENCE

TERCENTENARY CELEBRATIONS


Diluting rape cases, Noida police style
by Doel Mukherjee
A
21-year-old MBA student was abducted and raped in Sector 58, Noida, by 10 persons when she was going from Noida to Delhi in a classmate’s car at 5 p.m. recently. The accused were in the 18-25 age group and some were under-graduate students. The police swung into action and arrested six of the accused despite local protests and roadblocks.

OPED

Obama shows the way
Giving teaching profession its rightful place
by Amrik Singh
I
t’s time to turn the page on education, to move past the slow decay of indifference that says some schools can’t be fixed, that says some kids just can’t learn. As President, I will launch a campaign to recruit and support hundreds of thousands of new teachers across the country – because the most important part of any education is the person standing in front of the classroom.

On Record
Mohammed Shafi Qureshi
Statutory status for minorities panel on anvil: Qureshi
by Syed Ali Ahmed
M
ohaMmed Shafi Qureshi, Chairman, National Minorities Commission, has served as a Union Minister twice. He believes that political parties and fronts floated by Muslims are not likely to influence the Congress’ fortunes in the ensuing elections.                  Mohammed Shafi Qureshi

Profile
Befitting honour for Hindi writer
by Harihar Swarup
A
LL autobiographies are essentially narratives of the self. More and more women writers in Hindi have been taking to this type of writing. Noted Hindi writer Manu Bhandari has been selected for the prestigious K.K. Birla-instituted “Vyas Samman” for her autobiography Ek Kahani Yeh Bhi.

 


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A Tribune Special
To handcuff or not
Parliament should enact a law to prevent the
misuse of handcuffs, says Sankar Sen

Arbitrary arrests and misuse of handcuffs are common complaints of abuse of authority against the police. There are a number of judicial pronouncements condemning the police practice of handcuffing the prisoners and criminals and parading them in the streets.

The Supreme Court’s ruling in the case of Prem Shankar Shukla vs Delhi Administration (1980) and Citizens of Democracy vs State of Assam (1995) viewed the existing practice of handcuffing as extremely objectionable. It laid down restrictions on the police discretion to handcuff the prisoners.

Prem Shankar Shukla, an undertrial in Tihar Jail, was required to be taken from the jailhouse to the Magistrate’s court and back periodically in connection with certain cases. The escorts handcuffed him during the journey from jails to courts and back. The apex court admitted his telegram as a Habeas Corpus petition.

Justice V.R. Krishna Iyer held that to be consistent with Article 14 and 19 of the Constitution, “no prisoner shall be fettered routinely or for the convenience of the custodian or escort”. He held that merely because a person is charged with grave or serious offences, inference of escape does not follow and on that premise alone he cannot be handcuffed. Even in extreme circumstances where handcuffs had to be put on the prisoner the escorting authority must record “contemporaneously the reasons for doing so”.

The court held that the classification of prisoners for the purpose of handcuffs into “better class” and “ordinarily class” as prescribed in the Punjab Police Manual was arbitrary and hostile to the constitutional ethos. In the case of “Citizens for Democracy,” the Supreme Court reiterated its earlier ruling on handcuffing and made its adherence mandatory. It stated that violation and circumvention of the law as laid down by the Supreme Court shall attract the provisions of the Contempt of Court Act, apart from other penal consequences under the law.

The Supreme Court further laid down that in cases where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump bail or break out of custody then the said prisoner should be produced before the magistrate and a prayer for permission to handcuff the prisoner should be made before the magistrate.

Though the Supreme Court’s ruling in Prem Shankar Shukla’s case was given in 1980, the Government of India issued guidelines regarding handcuffing only in 1988 which prohibited routine handcuffing for the convenience of the custodian or escort. It added that handcuffing can be avoided by increasing the strength of armed escorts or by taking prisoners in a well-protected van.

The Police Manuals of different states have also framed rules incorporating the rulings of the apex court and the Centre’s directions. The Andhra Pradesh Police Manual Order no 461 lays down that accused persons and prisoners shall not be handcuffed or chained without specific permission by the court and the permission granted by the magistrate should be maintained in a book to be kept by the guard officer.

Unfortunately, all these court rulings and government orders fail to take note of the number of practical difficulties confronted by the police. A large number of escapes of prisoners from police custody do take place and some of these, according to a study of Bureau of Police Research and Development, shows that a number of escapes precisely took place as the handcuffs were not used.

A large number of policemen have to face criminal or departmental action for the escape of prisoners from the custody. An escape from custody can result in prosecution of policemen under Section 221 to 225(A) IPC, which makes both intentional and negligent conduct on the part of the policemen a cognisable offence. Moreover, police regulations of all states make escape from the custody of the police a serious omission. In such cases, policemen are invariably suspended and disciplinary action initiated against them.

Though the Supreme Court says that the use of handcuffs can be minimised by increasing the number of escorts, in practice, it becomes very difficult to augment the strength of the escort party because of manpower shortage. The available strength at each police station is limited and there has been an exponential increase in the commitments of the police.

Again, non-handcuffing of the prisoner does pose threats to the police officers’ security. These days not only the terrorists but ordinary criminals carry firearms and do not hesitate to open fire on the law enforcement officials. Undertrials are also not docile and submissive creatures. Most of them at slightest provocation indulge in violent and mischievous activities. The infrastructural facilities are also inadequate.

Because of inadequacy of jail vans, prisoners are brought to courts in less secure vehicles, requiring deployment of more policemen in the escort party. Policemen are thus exposed to serious security hazards and personal risks if the prisoners are not allowed to be handcuffed.

In countries like the UK and the US, handcuffing is viewed as an accepted practice of the police while effecting arrests and escorting prisoners. In the UK, there are case laws on the use of handcuffs. Handcuffing is justified (Reed vs Wastie, (1972) Crim. L.R. 221) when found reasonably necessary to prevent an escape. American courts have also justified the policy requiring officers to handcuff an arrested person when taking him to the jail so that the suspect may not grab a weapon and fight with the officers.

In Australia, the Police Service Handbook of the State of New South Wales provides that the officer is justified in handcuffing prisoners if they have tried to escape or to prevent escape or injury to themselves and others.

The European Court of Human Rights, in interpreting Article 3 of the Human Rights Convention, which gives freedom from degrading treatment has laid down that handcuffing is to restrain a person to effect a lawful arrest or prevent the escape of person lawfully detained. In another case, it decided that it was not degrading to keep a person handcuffed in a situation where the use of restraint is necessary.

In the present scenario in the country with escalating crime and increasing violence, there is an urgent need to review existing law on handcuffing the criminals. The Supreme Court’s direction has the force of law and it is obligatory for a police officer to make a diary entry at the police station regarding the antecedents of the accused and the reasons why it was necessary to handcuff the accused and produce a copy of the entry before the court. Indeed, it is very difficult for the police to comply with these conditions and the Supreme Court’s fiat is honoured more in breach than in practice.

A research study by a senior police officer in Chaapra, Siwan and Gopalgunj districts of Bihar during 1990-2000 reveals that the use of handcuffs continues in different places, notwithstanding the apex court’s direction. Undertrials are routinely taken to court premises while being handcuffed. Official records show that not a single request has been filed in any of the district courts by the police for handcuffing the undertrials during the said period.

Some senior police officers and eminent lawyers are of the view that the Supreme Court’s directions are somewhat impracticable, based on unrealistic expectations and stem from the distrust of the police. This distrust is not only hampering police work and operations but also weakening the foundations of the criminal justice system.

It is necessary for Parliament to pass a comprehensive law on the subject replacing the Prisoners (Attendance in court) Act and clear up all ambiguities. The law should take into account the operational problems of the police and contain provisions to prevent misuse of handcuffs by the police.

Significantly, Justice R.S. Pathak, while giving concurring judgment in the case of Prem Shankar Shukla, observed that whether handcuffs or other restraints should be imposed on the prisoners is primarily a matter for the decision of the authority responsible for his custody.

This supervisory jurisdiction should be left with the senior police officers. If the enactment of the new law takes a long time, a larger bench of the Supreme Court may be moved to review its decision and observations in the light of the ground realities and practical difficulties faced by the police in implementing the court directions.

The writer, a former Director-General of the National Human Rights Commission,
is currently Senior Fellow, Institute of Social Sciences, New Delhi


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Diluting rape cases, Noida police style
by Doel Mukherjee

A 21-year-old MBA student was abducted and raped in Sector 58, Noida, by 10 persons when she was going from Noida to Delhi in a classmate’s car at 5 p.m. recently. The accused were in the 18-25 age group and some were under-graduate students. The police swung into action and arrested six of the accused despite local protests and roadblocks.

Predictably, in less than three days into the investigation, the Mahapanchayat in Garhi Chowkhandi, Noida, asked the police to release the culprits. The police was pulled in all ways by the media, strong caste groups, their supporters and the politicians.

The panchayat says that it isn’t possible for all 10 boys to be involved in the gang rape and that the couple was found in a “compromising position” which had so angered the educated youth — all from good families — that they had attacked them with cricket bats.

The other side says that the girl and her friend were spotted near a shopping mall and their car was stopped and a few boys forcibly got into the car, assaulted them and took them to a lonely stretch of road where others joined them to gang rape the girl. Later they left the couple after relieving them of their mobile phones.

The real story probably falls somewhere in the middle and requires clean and unbiased investigation to come to some probable conclusion. Ultimately, all police actions, good or bad, will be suspect because they have no credibility. On the one hand, the police are well known for their refusal to file even genuine complaints.

Victims, especially vulnerable ones like women, Dalits and minorities, routinely experience police as very reluctant investigators who will jettison an investigation at the drop of a political hint.

On the other, the accused and their supporters find justification for their suspicions in the well known proclivity of police for making false arrests and unnecessarily detaining people on the principle that if they take friends and relatives hostage, someone will tell them something to get out of the standard violence that takes place in police cells.

The problems of policing have been known for a long time. Also well known is that they are no longer a public service but bootlicking brigade of the political class. The factors for this have been well analysed by committee after committee. Every few years, every expert comes to the same conclusions.

The police don’t have the training, the provisioning or the internal leadership to do their job. But most of all it is the outside interference that the police are subject to that has destroyed their discipline, their ability to respond to crime, and their willingness to do an honest straightforward job. Whether it is dealing with serial killers at Nithari or casual sex offenders in Noida or trained terrorists in Mumbai, the police fail us all.

The Noida Mahapanchayat knows well that it can sway outcomes and hence has the boldness to make a completely partisan push to keep itself from the law. A state where the police has floundered several times over as seen in the investigations in the murder case of a young Arushi Talwar or the Nithari serial killings of young children where the Uttar Pradesh police were shoddy till the case was taken over by the CBI.

Or the recruitment scam of 22,000 police constables which not only had political flavour but also there were strong allegations of large-scale monetary and sexual gratification made to political bosses. Naturally, the people in Uttar Pradesh have little or no faith in their police.

Acknowledging that the police are in crises and the country and its people in peril, the Supreme Court issued directive in 2006 to constitute a State Security Commission to ensure that the state government or any other interested parties do not exercise unwarranted influence on the police. States such as Uttar Pradesh have been completely non-compliant to these directives.

Justice will remain elusive and the voice of the vulnerable will weaken further unless the justice delivery system becomes effective, efficient and provide equitable justice as assured under the Constitution. Appallingly, there is a gang rape but even more shocking is the way the community leaders, the political parties and the government are conducting to dilute the case and thereby reduce the magnitude of crime.

As the nation goes for general elections in a few months, it is our turn as citizens to evaluate the performance of not only political parties in power but all those who are contesting as national parties for a stake in the government.

It is time we wake up and demand for all those unfulfilled promises, better law and order and for a complete systemic overhaul for creating a strong base for good governance.

Democracy will be strengthened only when we believe in our constitutional values, making a strong case for equitable justice as enshrined in Article 14 of the Constitution.

The writer is Consultant, Access to Justice Programme, Commonwealth
Human Rights Initiative, New Delhi


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Obama shows the way
Giving teaching profession its rightful place
by Amrik Singh

It’s time to turn the page on education, to move past the slow decay of indifference that says some schools can’t be fixed, that says some kids just can’t learn. As President, I will launch a campaign to recruit and support hundreds of thousands of new teachers across the country – because the most important part of any education is the person standing in front of the classroom.

It’s time to treat teaching like the profession that it is. It’s time to pay our teachers what they deserve. Pay them more money. And when it comes to developing the high standards we need, it’s time to stop working against our teachers and start working with them.

These words come from American President Barack Obama. There is nothing new or original about what he said. The important thing is that it is some one in authority who is saying it.

Since there is a gap of more than three months between the US President being elected and taking the oath of office, every word that he says before he takes office is of considerable interest. As a matter of policy, Obama has been careful not to say anything which would create controversy.

But when it came to the profession of teaching, there could be nothing controversial about what has been said for thousands of years. Thus, Obama saying these cannot be an occasion for controversy. The important thing to watch is how does he actually act upon these words.

An enterprising scholar has put together some of his recent statements on the profession of teaching. At this stage of the argument, what needs to be noted is that if Obama’s past conduct is any guide, several other statements that he has been making are likely to be implemented before long.

Here is another of his statements: “We are going to have to take the teaching profession seriously. This means paying teachers what they are worth. There is no reason why an experienced, highly qualified teacher shouldn’t earn $100,000. In exchange for more money, teachers need to become more accountable for their performance, and school districts need to have greater ability to get rid of ineffective teachers”.

Will these words be actually put into effect? The answer will be known within a couple of years. The situation in India today is that is only the university and college teachers also are being paid reasonably well.

All other levels of teaching are more or less neglected except for some favoured categories like teachers in engineering, medicine, business management etc. Teachers of the required calibre in these specialisations are not available with the result that those who are available virtually command the price that they ask for.

But what about primary school teachers who number 3.8 million today and another million or so who man the secondary and upper secondary levels of teaching. Not only are they seriously underpaid but grievously under-trained. Are levels of teaching equally important? When it comes to the training of teachers, it is an uncommonly neglected area of work, particularly at the school level.

This is how Obama puts it: “We’re going to have to pay our teachers more; we’re going to have to give them more professional development, and we’re also going to have to work with them rather than against them to improve standards. We’ve got to improve early childhood education, because that’s the area where we can probably most effectively achieve the achievement gap that exists right now.”

Not only has Obama written these words, he has put it even more strongly by saying that “what we don’t have is a sense of urgency in the White House”. Having said that, he refers to his early childhood period and the kind of experience that he went through.

In fact, he goes on to say that, “If we’re serious about building a twenty-first century school system, we’re going to have to take the teaching profession seriously”.

The issue now is: will our political rulers in India learn from what is being said. For six decades, they have neglected what required to be done and there would be nothing surprising if we continued to be negligent. In this connection, a few important points may be made.

One cannot pay high salaries to one sector of education and ignore the rest. Each level of teaching leads to the other. Unless the linkage between them is well recognised and appropriately graded, there would always be problems.

Paying well is important but evolving a system of self-scrutiny as also public scrutiny are equally important. This is an area of activity which has been consistently neglected.

Rules and regulations are important but not more important than the objective that they seek to achieve. The dominant role of bureaucracy at the cost of these objectives is an example of having overlooked the objectives and focused on the mechanics of work.

Changing the system, therefore, is not going to be easy. It would amount to going back on six decades in India and almost a 100 years of indifferent performance before that.

The training of teachers is exceedingly important. Indeed this is the core of what needs to be done.

Above all, no educational policy has worked successfully unless teachers have a role in how it is framed and implemented. Over the years, the government has created a situation where teachers fight one another and the job remains undone.

That the American political system could produce a man of talent and vision like Obama is a credit to it. In the same measure, it is a discredit to our political system that we still continue to function in the old, unproductive way and do not yet see that the system has to change and change radically.

Our politicians never understood one thing. Anyone who gets education invariably performs better than before. If for six decades, we have continued to bungle, that is no reason we cannot change now.

If an advanced country like the US thinks that further changes are required in its educational system, this is all the more reason why he should think and move in that direction.

An important objective that has to be recognised is which profession attracts talent. Education in India is not one of the top professions whereas it is so in the US. In fact, they want it to be even more attractive than it is at the moment.

The issue to decide, therefore, is how we in our country can also move in that direction. Obama has shown the way. Can we also do the same? Do we have the right kind of commitment? Equally important, do we have the right kind of leadership? These two questions need to be answered.

The writer is a former Vice-Chancellor of Punjabi University, Patiala

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On Record
Statutory status for minorities panel on anvil: Qureshi
by Syed Ali Ahmed

MohaMmed Shafi Qureshi, Chairman, National Minorities Commission, has served as a Union Minister twice. He believes that political parties and fronts floated by Muslims are not likely to influence the Congress’ fortunes in the ensuing elections.

A septuagenarian, he has been active in politics since his college days. Hailing from the Kashmir valley, Qureshi was twice MP from Anantnag. He has also been the Governor of Bihar, West Bengal, Madhya Pradesh and briefly of UP in 1996. He speaks to The Sunday Tribune on various issues concerning the Muslims.

Excerpts:

Q: Muslims are launching their own political parties since they believe that they are not being given due representation in proportion to the population ratio. Already, there is a UDF in Assam. Besides, the Ulema Council, the Jamiat Ulema-e-Hind and the Jamat-e-Islami Hind are on way to launch political parties. Won’t this development harm the Congress in the ensuing elections?

A: There is a multi-party system in India. Everyone and every community has a right to launch political parties. They will not harm the Congress. There are a number of parties today but not all are voted to power. The mandate depends on the voters’ choice. People will give their vote to those who work.

The Congress is always for the country’s development. It has launched a number of welfare schemes. Industries and business are flourishing in the country due to the good policies of the government.

Q: The Samajwadi Party is an ally of the Congress-led UPA government at the Centre. Will Mulayam Singh- Kalyan Singh tie-up not desist Muslims from the Congress?

A: This tie-up is called political churning. This happens before and after every election. The Samajwadi Party is an ally of the UPA. It has nothing to do with the Congress. Kalyan’s tie-up with Mulayam is limited to the Samajwadi Party.

Q: Muslims are demanding a nodal agency to spend Rs 400 crore allocated for their welfare and development on the recommendation of the Sachar Committee. It said that the 90 Muslim majority districts are suffering from lack of development. What is your comment?

A: Muslims are neglected educationally, economically and socially. They are either not aware of the government’s welfare schemes or are not availing themselves of the benefits.

Moreover, the government’s procedures to avail of these benefits are very cumbersome. A matriculate or intermediate pass cannot understand complicated application forms and go through the rigours required to avail these opportunities. They need simplification.

The government asks for a guarantee certificate to prove that the applicant is a deserving candidate. But the majority of Muslims are in no position to provide such a guarantee certificate. As the Chairman of the National Minorities Commission, I have recommended simplification of the scheme.

The Minority Commission is trying to add more districts in the list in which Muslims are in good number. Modern education is the only way out of the community’s weakness. Stress should be given on good schooling and professional education. The youths are coming forward but slowly. They will pick up if good arrangements for modern education are made for them.

Q: The National Minorities Finance Development Corporation is devoid of a chairman since the UPA came to power at the Centre. The same is the case with the Delhi State Haj Committee. What are you doing for them?

A: I am not aware of this. No one has brought this to my notice. Had I been informed, I would have persuaded the government for appointment of chairmen to both organisations.

Q: The NMC and state minority commissions are seeking judicial powers. What is the progress in this regard?

A: The proposal for granting statutory status to the Minorities Commission has been sent to the Union Government. It will be taken up in the coming session of Parliament.

Q: Muslims are seeking reservations in government jobs and educational institutions. They are also demanding their inclusion in the category of Scheduled Castes and Scheduled Tribes. What is your comment?

A: The National Minorities Commission has done a study of backward classes among the Muslims and Christians. The government has been informed that the communities have a large number of backward classes.

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Profile
Befitting honour for Hindi writer
by Harihar Swarup

ALL autobiographies are essentially narratives of the self. More and more women writers in Hindi have been taking to this type of writing. Noted Hindi writer Manu Bhandari has been selected for the prestigious K.K. Birla-instituted “Vyas Samman” for her autobiography Ek Kahani Yeh Bhi.

Bhadari’s memoirs mark a departure from the traditional autobiographical writing techniques. She delves on her life experiences to the present Indian women’s oscillation between work and domestic responsibilities.

She would not like to call her memoirs an autobiography. “This is my inner journey, journey of a writer”, she says. Manu has a tough married life. She and her husband, Rajendra Yadav, an eminent writer himself, have been living separately for years even though credit for establishing her as a writer goes to Yadav.

In the preface to what Bhandari calls her inner journey, she writes: “Till now I have been writing stories based on others’ lives. Now I have mustered courage to write the story of my life. In doing so, I have to keep aside all my imagination because I am the means as well as the objective. This is purely the story of my life and I have no right to prune it or change it. I have to faithfully and truly reproduce the rough and tumble through which I have undergone. This is the story of my life literally, my experiences — both bitter and pleasant.”

She confesses unhesitatingly that she married Rajendra Yadav because she thought vast vistas would open up as a writer for her following the wedlock. “I do not know, how I forgot that the moment I am married my personality will split into two — a writer and a wife.”

“Doubtless, my personality as a writer drew inspiration and encouragement from Rajendra. But my personality as a wife was subjected to continuous attack by him and the writer in me had to suffer".

Manu taught Hindi at Miranda House College in Delhi for over three decades and bore all household expenditure and responsibility of a wife. It must be appreciated to the credit of the couple, even though they have been living separately, they are living as friends. They come to each other’s help in the event of necessity”, says Ms Kamal Agarwal, a well-known writer.

Born in Banupura in Madhya Pradesh, Manu attended school in Ajmer and graduated from the Calcutta University followed by an MA degree in Hindi from the Banaras Hindu University. She later took to teaching in Miranda House.

Manuji’s writings have punch and gripping description of events. One such event took place when she was living in Ajmer. An elderly Muslim “Rangraaj” (dyer) used to visit her locality everyday and the womenfolk gave their clothes to be designed and dyed. Suddenly his voice every morning — Rangraaj — was not heard for many days. Those were the gruelling ways of partition but no communal riots had taken place in Ajmer.

The old man, called ‘Baba’, had migrated to Pakistan. Manu left for Calcutta to take up a job. She came to Ajmer on vacation after two years and one morning she was surprised to hear the familiar voice — Rangraaj.

Manu came out of her house rushing and so were other ladies. A spate of questions were fired at Baba: Where did you go? Why did you go? What was the need for you to go? The Baba burst into tears, rubbing the soil on his forehead. He replied in halting voice — can anybody leave his soil and live? Can anybody abandon his mother?

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