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PERSPECTIVE

A Tribune Special
State has to protect its police
The Andhra HC ruling has grave implications for national security, says C.B.S. Venkataramana
T
HE Supreme Court has rightly stayed the Andhra Pradesh High Court ruling, declaring that cases of murder under Section 302 of the Indian Penal Code should be filed against the police in cases where individuals are killed in firing either in law and order situations or extremist operations.

Legal aid and speedy justice: A step forward
by Justice Pritam Pal
T
HE Supreme Court has reminded us several times through landmark judgements that speedy trail and free legal aid to the needy are fundamental rights of an accused who cannot be subject to hardship by delay in proceedings. Most liberal democracies consider it necessary to provide legal aid to those unable to afford legal representation. 



EARLIER STORIES




OPED

Torture in custody
Don’t turn innocent suspects into hardcore criminals
by R.D. Sharma
I
N a recent landmark judgment, the Supreme Court expressed its serious concern over the increasing number of custodial deaths and called upon the law enforcing agency to take remedial measures.

Profile
Belated honour for melody queen
by Harihar Swarup
L
isten to the melodies of yesteryear and you become nostalgic; travel back in time to the younger days when singers like Shamshad Begum were rage. You conjure up images of your own days of love and romance, of tragedies and triumphs.

On Record
Women have greater stake in elections, says Sundararaman 
by Akhila Singh
As the country goes to polls to elect the 15th Lok Sabha, more than 10 women’s organisations have presented a Women’s Charter to 32 political parties drawing their attention to issues affecting women. These organisations have appealed to the parties to ensure that the concerns highlighted in the Charter are also incorporated in the mainstream political agenda.





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A Tribune Special
State has to protect its police
The Andhra HC ruling has grave implications for national security, says C.B.S. Venkataramana

THE Supreme Court has rightly stayed the Andhra Pradesh High Court ruling, declaring that cases of murder under Section 302 of the Indian Penal Code should be filed against the police in cases where individuals are killed in firing either in law and order situations or extremist operations.

Illustration: Kuldeep Dhiman

Indeed, the High Court order has grave implications for the maintenance of public security in the country. If it is enforced, policemen bearing arms — from those escorting VVIPs to those on patrol duty — will be reluctant to open fire. Otherwise, they will face charges of murder and possible life imprisonment for discharging their duty.

It is the state’s responsibility to protect the citizens. Police is the state’s coercive and enforcing arm. If individual police officers have to stand trial and defend themselves for their actions done as a part of their lawful duties, what is the protection and immunity that the society and state offer to them for having acted on their behalf in good faith? Who will come forward in future to act on behalf of the state in the fight against armed extremists, terrorists and anti-social elements and put themselves in risk for life imprisonment?

In the criminal justice system, the entire burden of investigation and proof generally rests with the prosecution and the state. The police will have to prevent, detect, and investigate crimes and maintain public order. If the High Court ruling is implemented, the policeman would probably take the path of least resistance and simply duck the responsibility for such functions by filing innocuous reports.

With over 110 districts in the country being under severe extremist threat and terrorist strikes in some state capitals, an overwhelming negative motivation will permeate the police officers in working in these areas of policing, if the state and society are unwilling to protect and indemnify their actions done in discharge of their official duties.

Peculiar problems will crop up. When police officers involved in deaths due to ‘encounter’ shoot-outs or crowd-control firings are prosecuted for murder, as in other cases, the state has to take up the prosecution. However, if the police have acted on duty as part of their responsibilities on behalf of the state, they would also have to be defended by the state. Or, would they be left to their own?

Moreover, if death in police firing is treated as prima facie murder and case initiated against the policeman involved, why should not the policemen also be charged for assault, etc. for injuries sustained by individuals in police action in crowd control operations? Secondly, there would be no merit in any policeman carrying firearms since a firearm’s purpose is to ‘shoot to kill’, if need be. By logical conclusion, it is pointless to provide armed escort to VVIPs.

The police might even become averse to carrying firearms as being avoidably risky. Shy of using weapons, police will cease to be the state’s coercive and enforcing arm. If the state itself is not to disintegrate, such functions would then have to be necessarily entrusted to some other force, say the army. The whole question of trusting such a force with use of firearms and causing death if need be would again rise and go through the same full circle.

When the trial court magistrate determines that the police shall stand trial for murder for deaths, the investigation has to be entrusted to other officers in the same police department, whose impartiality would naturally be suspect. Would a separate police force be then raised under the courts’ or some other authority’s control to investigate offences determined to have been committed by the police personnel prima facie?

Another implication of the High Court ruling relates to the degree of trust and distrust that ought to be placed by society in the police force vis-à-vis other wings of the state. Considered together with an earlier Supreme Court order that no member of the judiciary, judge or magistrate, shall be arrested by the police for any offence whatsoever without the permission of the higher courts, the law of the land as laid by these two judgments is that, on one hand, absolute trust shall be placed by society in the judiciary, and judges not arrested or cases filed for any offence small or big, even murder committed by them in their private capacity, without prior permission from the higher judiciary.

On the other, while police shall be trusted with the use of weapons that are used to kill, the police force itself shall be completely distrusted, and it be left to the judgment and discretion of a trial court magistrate whether the policeman’s version of facts and events should be believed or not.

A better alternative to this total distrust of the police force could be to compulsorily arrange for a judicial magistrate and a press television crew team to accompany every posse of armed police force proceeding on mob control functions or extremist and terrorist control patrolling tasks. Only then would the judicial magistrate or judge be able to take the sum total of circumstances of the incident, together with the extreme agitation and terror of the moment and the scent of fear of life and death that the police personnel face, in determining whether or not the action taken by them, leading to causing of a death, did actually occur in bona fide discharge of their lawful functions.

No individual or judge, sitting in the cool confines of his office or court, doing a legalistically clinical post mortem of events basing merely on reported descriptions of the event, do any justice in deciding whether the acts that were done by the police personnel under tension, facing the risk of death, were justified or otherwise. It has to be inferred, albeit sadly, that the High Court order shows an impractical and armchair approach to the matter.

A further alternative could be that instead of a case of murder being automatically initiated in the appropriate trial court in every case of death in police firing (death in police lock-up being excluded), a permanent statutory commission could be constituted for each state to scrutinise and review all such cases. The commission could have a reputed retired member of the higher judiciary as chairperson, reputed retired administrators and police officers with experience of working in districts with extremist/terrorist violence, and one or two reputed dispassionate members of the civil society as members.

The commission could scrutinise and review every case of death in police firing and give their finding to the government whether a prima facie case of abuse of powers is involved, and such finding could be binding on the government. This commission could be given statutory status through appropriate provisions to the Criminal Procedure Code.

Also, where criminal cases of murder are initiated against police officers in instances of death in police firing, the onus of proof of self-defence might be shifted from the individual police officer to the prosecution to prove that the said acts were not done in self-defence. For, it would be grossly unfair and impractical to put a police officer in the same situation as that of a private individual, who, if had killed another in self-defence, has to prove the same, the prima facie assumption being that that act was not in self-defence.

The issue in question is whether the state has the right and duty to protect itself and its very existence; and if so, what means are just in that process. A demoralised and psychologically disengaged police force can be the weakest link of the chain, however strong it may be, in its ability and resolve to defend the state.n

The writer, a senior IAS officer, is Joint Director-General, Ministry of Shipping, Government of India, Mumbai

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Legal aid and speedy justice: A step forward
by Justice Pritam Pal

THE Supreme Court has reminded us several times through landmark judgements that speedy trail and free legal aid to the needy are fundamental rights of an accused who cannot be subject to hardship by delay in proceedings. Most liberal democracies consider it necessary to provide legal aid to those unable to afford legal representation. Failure to do so would deprive them of access to the court system.

This would also violate the principles of equality before the law and due process under the rule of law. The concept, however, finds its traces in Rig Veda and the social system of ancient India having operated along the principles of “Dharma”.

The Legal Service Authorities Act, 1987, is aimed at ensuring equal opportunities for procuring justice irrespective of the weak or economic conditions and social deprivation of the litigants. The committee for implementing legal aid schemes is actively working to catalyse the efforts of the state schemes or statues, and to bring about the desirable uniformity in their programmes and provisions.

Legal aid implies giving free legal services to those who cannot engage a lawyer in any court, tribunal or authority. It is the state’s duty to ensure that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must, therefore, arrange to provide free legal paid to those who cannot access justice due to economic and other disabilities.

Article 39A of the Constitution states that if the accused does not have sufficient means to engage a lawyer, the court must provide one for the defense of the accused at the state’s expense. Section 304 of the Criminal Procedure Code casts the constitutional duty to provide legal aid arises from the time the accused is produced before the magistrate for the first time and continues whenever he is produced for remand.

In Suk Das vs Union Terrotory of Arunachal Pradesh (1986) 2 SCC 401, the Supreme Court held that the police must inform the nearest Legal Aid Committee about a person’s arrest. The magistrates and sessions judges must inform every accused who appears before them and who is not represented by a lawyer on account of his poverty that he is entitled to free legal services at the state’s cost. Failure to provide legal aid to an indigent accused, unless it was refused, would vitiate the trial. It might even result in setting aside a conviction and sentence.

The trial should not be delayed so much as to cause grievance to the victim and add to his agony. The right to speedy trial has been implicitly read in Article 21. The Supreme Court in Hussainara Khatoon’s case held that any accused who has been denied this right, the state is under a constitutional mandate to take all necessary measures for securing this right to the accused.

Thus, the letter of law recognises the right of an accused to speedy trial, but the problem is how to make it a reality. The test of a good law is that it must be able to achieve its goals, that is, the dispensation of justice to the individual and society.

The apex court has decried administrative and judicial indolence in several of its decisions. Justice V.R. Krishna Iyer once remarked in a judgement: “Our justice system, even in grave cases, suffers from a low motion syndrome which is lethal to “fair trial” whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings”.

The Supreme Court ruled that to put a man in prison and forget his personhood thereafter, to deprive a man of his personal liberty for an arbitrary period without monitoring by law, to keep a man in continued custody unmindful of just, fair and reasonable procedure would shake in the rule of law and is totally against the mandates of Part III of the Constitution. The trial should be disposed of expeditiously for which the government has taken adequate steps.

Lok Adalats are result of one such initiative. Its objective, as enunciated in the statute, is to promote “a compromise or settlement between the parties” and deliver justice with “utmost expedition” treading on the path of legal principles and the principles of justice, equality and fair play.

These are judicial bodies set up for the purpose of facilitating peaceful resolution of disputes between the litigating parties. They have the powers of an ordinary civil court, like summoning, examining evidence etc. Its orders are like those by the court, but the parties cannot appeal against them.

Lok Adalats can resolve all matters except criminal cases that are non-compoundable. Either one or both parties to litigation can make an application to the court for transferring the case to a Lok Adalat. Where no compromise or settlement is made, the case is transferred to the court which deals with the litigation from the stage the Lok Adalat had reached.

The Legal Services Authorities Act makes an effort for a countrywide legal aid movement. It broadens the ambit and umbrella of legal aid and seeks to encourage community participation in the legal aid services. This establishment is a signal to a bright future and a giant step forward in the march towards the rule of law.

The writer is Judge, Punjab and Haryana High Court, Chandigarh

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Torture in custody
Don’t turn innocent suspects into hardcore criminals
by R.D. Sharma

IN a recent landmark judgment, the Supreme Court expressed its serious concern over the increasing number of custodial deaths and called upon the law enforcing agency to take remedial measures.

A Bench sconsisting of Justice Arijit Pasayat and Justice A.K. Ganguly observed, “Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/ undertrial prisoners or suspects tarnish the image of any civilised nation and encourage the men in ‘khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves”.

Quite close on the heals of it, another apex court Bench directed all the state governments to file their status reports detailing the exact number of such incidents and steps taken to check them at their end.

The use of brutal force and third-degree methods on suspects and undertrials remains one of the major and at times sole weapons of the Indian police. Reports of states/Union Territories reveal that the enforcers of the law are among the major perpetrators of crime against humanity. Extreme torture or assault in custody often results in grievous injuries including death. Police lock-ups and prison cells in the country are only mirrors reflecting a deeper malaise and telling a story that to be imprisoned in India can by itself amount to a death sentence.

The number of custodial deaths is steadily increasing despite the National Human Rights Commission’s watchful role and repeated strictures from the judiciary against police brutality and repression. Worse, several such deaths are not factually reported and are brazenly dismissed as suicides or encounter killings.

The police is notorious in its use of the third degree — a short-cut to investigation. Unable to cope with rising crime and hierarchical pressures from above, the police resort to it to produce quick results. Those subjected to such torture often breakdown and confess to crimes they may have never committed. Not hardcore criminals but first-time offenders and petty criminals from the poor and vulnerable sections of society are the easiest victims — be they children, women or members of marginalised communities.

It is scandalous that there is no proper mechanism in place to check such brutality. Though India has signed the Convention Against Torture, it has refused to ratify it on the plea that there are enough laws and safeguards against police torture!

The Supreme Court had made several suggestions to check police atrocities which include additional powers to the NHRC and the CBI so that they can take stern and immediate action on public complaints against the police. Yet, nothing has changed. The reasons are not far to seek why the menace still persists.

Our jail manuals are outdated. Policemen are not trained in the methods of modern scientific investigation aimed at checking the use of force. Rules and laws are flouted with impunity in the belief that the men in uniform are accountable to none. There is no forum where the detainee can seek redress. Since there are no witnesses to contradict the police version in the event of a custodial death, the accused often goes scot-free. Rare indeed is the case in which the guilty is brought to book.

In March last year, the Delhi High Court observed that courts must not overlook the fact that custodial death is the worst crime in a civilised society. It called for an amendment in the Evidence Act so that the policemen guilty of custodial torture do not escape for lack of evidence.

The National Police Commission (NPC) long ago recommended surprise visits by senior officers to police stations to deter the use of excessive force in lockups. The Law Commission too recommended that custodial deaths should be deemed as murder unless proved otherwise, placing the onus of disproving it on the police. The Jiwan Commission, which had investigated cases of torture in Punjab some years ago, suggested payment of compensation to victims and its recovery from the guilty cops and jail personnel.

Custodial crimes infringe upon human rights and the confessions so extracted often fail to stand the legal scrutiny. Violence at the hands of the police is counter-productive. It can turn innocent suspects into hardcore criminals. The grouse they have against a particular policeman motivates them to rebel against the country.

The government may boast it has the Press and the judiciary as safeguards against human rights violation. But the lack of media scrutiny in remote areas, coupled with the failure to hand down exemplary punishment to the perpetrators of violence, has not made any difference to the steadily growing menace of custodial violence.

Disciplinary action is seldom taken against the guilty cops. The inquiry proceedings are often shelved. Transfers and suspensions are just routine measures to buy time. Cases are swept under the carpet before long as public memory is short and media outcry short-lived. Such cases must be investigated expeditiously by an independent agency — perhaps the NHRC’s investigative wing — rather than the police who tend to go soft on crime committed by colleagues.

After all, a policeman is a custodian of law and an offence on his part, as observed by the NPC, is inexcusable due to the power of suppression and repression he wields. In a civilised police set-up, people don’t get killed in fake encounters or lock-ups. Nor do enforcers of the law use third-degree methods to make the undertrials confess. A professional police force presupposes better methods to collect information. If the investigation is efficient and foolproof, there will be more convictions and fewer acquittals.

Training and recruitment are the other important areas that need to be addressed promptly. The training programme should be reoriented to bring about a change in the police attitude and mindset in regard to investigations. They must recognise and respect human rights and adopt scientific investigation methods. Arguably, a dramatic improvement in the working conditions of the police could lessen brutality.

Simultaneously, the recommendations on police reforms made by the NPC and the Soli J. Sorabjee Committee must urgently be implemented to impart greater accountability and transparency in the functioning of the force. There is a strong case for insulating the police from executive control and political influence. It should operate under an independent commission on the pattern that exists in Britain, with little or no scope for pulls and pressure from above.

The writer is Senior Advocate and Consultant, Delhi High Court

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Profile
Belated honour for melody queen
by Harihar Swarup

Listen to the melodies of yesteryear and you become nostalgic; travel back in time to the younger days when singers like Shamshad Begum were rage. You conjure up images of your own days of love and romance, of tragedies and triumphs.

Listen to Shamshad Begum’s memorable song in the film Khazanchi (cashier)…Ek Kali Nazon Se Pali or the hit song in the film Zamindar… Duniya me Ghareebon Ko Aram Nahin Milta. Her immortal song — Chod Babul ka Ghar… in Mother India rings a bell. The song depicts poignantly how a bride leaves her parents’ house to the abode of her husband.

The Government of India has recognised the talent in Shamshad Begum too late — she has just turned 90 — and gave her too little. President Pratibha Patil decorated her with the Padma Bhushan award at an investiture ceremony the other day. The Begum is now totally out of the media glare and film world but she enjoys, like her fans of bygone era, the memory of golden past even today.

She listens to the old melodies of yesteryear and lives peacefully in Mumbai with her daughter, Usha Ratra and son-in-law ever since her husband Ganpat Lal Batto died in 1955.

Begum was born in Amritsar. She was a big fan of K.L. Saigal. She watched the immortal film Devdas as many as 14 times. There was a time when she earned Rs 15 per song and was awarded Rs 5,000 on the completion of her contract. She was one of the first playback singers in the Hindi film industry.

A few years back, she was the victim of an hoax; she was pronounced dead by the media. A decade back, a controversy erupted when several publications gave the news of her death. It was later clarified that Shamshed Begum, who died in 1998, was Saira Banu’s grandmother with the same name, and that the legendary playback singer is very much alive and kicking.

Begum started her career on Peshwar Radio. She worked in Lahore and Delhi among other stations of All India Radio. She made her debut on radio in Lahore on December 16, 1937, captivating the hearts of listeners with the enchanting depth of her voice. Shamshad was very much conscious of her not-so-beautiful face and she never posed for any picture and not many people saw her pictures anywhere.

Until the end of 1970s, nobody knew her face but everyone could recognise her melodious voice as it was used by great maestros like Naushad and O.P. Nayyar. Eve today her songs from 1950s, 1060s, and early 1970s are popular and remixed by upcoming music directors.

Her crystal clear voice caught the attention of sarangi maestro Ustad Hussain Bakshwale, who took her as her disciple. Lahore-based Ghulam Haider used her voice skillfully in some of his earlier films like Khazanchi and Khandaam. When he shifted to Bombay in 1994, Shamshad followed him as a member of his team, leaving behind the family and staying with her chacha (Maternal uncle). She is credited with singing one of the first Westernised songs — Annna Meri jaan…Sunday ke Sunday. O.P. Nayyar describer her voice as that of a “temple bell” for its clarity of tone.

Begum became a national rage between 1940s and the late 1950s rendering songs with her nasal voice, which helped her carve out her independent image — a voice different from her peers, Lata Mangeshkar, Asha Bhonsle, Geeta Dutt and Amirbai Karnatki.

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On Record
Women have greater stake in elections, says Sundararaman 
by Akhila Singh
Sudha Sundararaman
Sudha Sundararaman

As the country goes to polls to elect the 15th Lok Sabha, more than 10 women’s organisations have presented a Women’s Charter to 32 political parties drawing their attention to issues affecting women. These organisations have appealed to the parties to ensure that the concerns highlighted in the Charter are also incorporated in the mainstream political agenda.

AIDWA general secretary Sudha Sundararaman talks about the alternative that women look forward to. She believes that the outcome of these elections will greatly influence women’s struggle for equality and progress.

Excerpts:

Q: How crucial are the general elections for women?

A: They are very crucial. A development agenda favouring marginalised sections is missing among the priorities of two major political parties — the Congress and the BJP. There is also a huge attempt to dispossess the weaker sections. It is important to choose representatives who could effectively fight for equal rights for women.

Q: What do women expect from these elections?

A: Most are extremely distressed with the intense price rise. Nobody who plans to come to power can ignore it. A large number of poor are denied subsidised ration because of Below Poverty Line (BPL) and Above Poverty Line (APL) distinction made by the government. Proper distribution of supplies would have to be guaranteed.

Q: How has the women’s status shaped up over the years?

A: More women are coming out and breaking barriers. They are entering fields considered male domain so far. Of course, these are exceptions. Most women still don’t have access to education and health. A large number of Indian women are suffering from anaemia. The Maternal Mortality Rate at 300 is the highest in the country. Human trafficking has increased considerably. Violence against women has increased in the last five years. Commercialisation has put everything up for sale. Though women are pushing their boundaries, the government’s help has been inadequate.

Q: What are your major demands?

A: We want the Public Distribution System to be strengthened and the Women’s Reservation Bill providing 33 per cent reservation to be passed. We also want a check on liquor vends as a source of revenue mobilisation.

Q: Does election of women help your broader cause?

A: Women’s representation in panchayats and nagarpalikas has proved that they can deliver the goods. These women have taken up issues of drinking water, sanitation and health in the villages. However, those unfamiliar with the women’s issues should not be expected to take up women’s cause.

Q: What is the Centre’s track record in addressing women’s issues?

A: The UPA government’s greatest betrayal is not implementing the 33 per cent reservation for women. The AIDWA has been demanding comprehensive laws on sexual harassment and rape. The Supreme Court’s guidelines against sexual harassment at workplace in the Vishakha v/s the State of Rajasthan have not been implemented. There is no follow-up on even the existing laws like Domestic Violence Act. We also want special laws on acid attacks and honour killings.

Q: What is the effect of recession on Indian women?

A: Soon after the bubble burst in the US, Jet Airways fired hundreds of women employees here. The first victims in India were women. Subsequently, the unorganised sector was deeply affected by recession. As many as 40,000 hosiery workers were rendered jobless in Tirupur; 60 per cent of them being young women. Even if a man loses a job in the family, maximum burden is bore by the women. Unemployment also leads to increasing crime against women.

Q: Does fielding more women candidates indicate a political party’s better understanding of women’s issues?

A: Certainly. It is indicative of how inclusive the political party is. Parties should put up more women, Dalits, Adivasis and minority candidates. The disadvantaged sections should be brought to the mainstream for the survival of democracy.

Q: Any message for the youth?

A: The youth must apply their mind and distinguish between the commercialised image of India and the real India. The heart of India still works in the fields and mills.

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