Question:
Can I write a letter to Supreme Court to file a Public Interest Litigation?
Answer:
Yes. Supreme Court may treat a letter as a petition – if it wants to.
Question:
So it is better to write a letter to Supreme Court rather than going through trouble of filing petitions. Right?
Answer:
Wrong. Don’t expect Supreme Court to deal with every matter as a PIL. In rare cases Supreme Court takes up letters to be treated as a PIL.
Question:
Can you explain about custodial deaths?
Answer:
Well deaths in the custody of police are called custodial deaths.
Question:
Why do custodial deaths happen?
Answer:
Death in police custody may happen on account of any reason just as deaths can happen anywhere. However, we all know (including people who are just not connected with courts or police in any way) that police uses torture as means of extracting information or various other dubious reasons. The police in India uses force, bad treatment, abusive language, threats, physical torture and all such words that can be used to explain inhuman behavior. This leads to custodial deaths.
Question:
Is it lawful for police to torture people?
Answer:
Obviously – it is not lawful for the police to maltreat people; rather courts are very against any inhuman behavior – if they are found (and they are rarely found-out). But the fundamental make-up of courts as institution and police department as institution are basically very different. Courts have empathy and are governed by strict rule of law. The judicial officers (judges) are far more humane, they are highly educated people with a law background and on other side the police authorities particularly on the grass root are brutal.
Question:
I have often heard people say that “Human rights” are non-sense. The activist support criminals while they are demoralizing police in their work. Is that right?
Answer:
It is true to say that many times human rights are pressed with bad intentions on hind side by some people advocating them. It is equally true that police misuses its authority to protect and support real criminals while harassing totally innocent people. If both are compared the “police supported crime” is highly prevalent and “human right supporting crime” is rare. Human rights to the contrary under NHRC are absolutely necessary. You will agree with this if in India you unfortunately mess up with police some day. They will show you how bad they can be with some of their people having great ability to fiddle with law. Remember: when you are fighting against police department – you spend money from your pocket and police uses government money, government transport, government given lawyers.
No body can really have problems if terrorist or real criminals are taken to task. But that does not always happen. In fact real criminals go unabated and most of the time innocent people have to go running from pillar to post. That is what hurts most – particularly to the intelligent and justice loving people. People will have high respect for police authorities – if they become real saviors. But people are full of sarcasm for police just because of various practical experiences they have with Indian Police.
Saying that human rights are non-sense is therefore not true. With the way police authorities are functioning today – human rights are very essential in addition to courts that guard human liberty.
Question:
Is there anybody to check the police atrocities?
Answer:
Yes and no.
If you are strong enough to fight back – police can be restrained. Otherwise - no.
The basic reason behind this is very simple. Most of police authorities (particularly at grass root level) are conditioned to treat people badly. Some of them take corruption as a matter of right. Some allow crimes after accepting bribes. There is a regular wholesaler-retailer like chain in these areas. This it is so normal for them to mistreat people. I have not heard their people (police personnel) regularly receiving training on human psychology (necessary for crime prevention) and other things like human values. They simply do not know any concept of reformative punishments or reformative behavior.
In India there is a joke – it goes like this: An American said their police is so alert that they catch criminals within one hour of crime. A Briton brags that they do same thing within half an hour. An Indian said – you guys are slow. We are aware when a criminal will commit crime even before he has done it.
Second reason why police goes unchecked is slow progression of cases in Indian Courts. Third reasons, is high illiteracy. Fourth reason: fear. People fear police same way as they fear criminals. Even if police calls them or sends them a notice u/s. 160 or 91 – they will just fear. This fear is not ungrounded.
Question:
Can you explain court’s view on custodial death?
Answer:
Broadly answer is simple: Court’s frown very strongly when they find police doing hanky-panky and wrong. This happens too often.
Let us take an example from a prior Supreme Court Judgment in case of Basu Versus West Bengal (for entire judgment text, please refer to prior post). Some newspaper reported regarding custodial death. A public spirited person knowing no other way simply wrote a letter to Supreme Court of India drawing attention of the judge. The Court treated this letter as a PIL and a long spate of legal rounds went thereafter.
Supreme Court framed following guidelines in Basu's case:
1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
11. A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.
Note:
The above guidelines (1) through (11) are part of the Judgment of Court. Remember and draw attention of authorities if you find any of the above guidelines not being complied. Not following the above, can lead to contempt of court proceedings. Police should not mistake the word guidelines as optional recommendations. According to court - these requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.
Question:
Are these guidelines being implemented?
Answer:
Yes they are always implemented on paper. In reality – they are mostly implemented! ! ! ! !
But the police custody continues to be a dreaded place for every subject of India, particularly those subjects who are innocent.
Question:
How do the Supreme Court requirements help me, if I want to do anything about custodial death?
Answer:
You get a short cut in that you can straight away apply to high court for contempt and actions on custodial death. The High Court will be obliged to follow the Supreme Court Order. You can also demand departmental actions against police officers who are responsible for custodial death. You can use this judgment to support your legal grounds and factual matrix. Entire text of judgment as stated can be found in prior post.
You get a short cut in that you can straight away apply to high court for contempt and actions on custodial death. The High Court will be obliged to follow the Supreme Court Order. You can also demand departmental actions against police officers who are responsible for custodial death. You can use this judgment to support your legal grounds and factual matrix. Entire text of judgment as stated can be found in prior post.
Question:
Does this apply to cases where there is custodial torture but not death?
Answer:
It may not apply squarely. Never mind – you still have option to fight back using the broader sense given in the judgment and ask for departmental inquiry and personal complaints against police officers joining them as party in personal capacity through routine complaint route via trial court. Kindly note that it is not as easy as it sounds while you fight in the battle ground. Personal complaints make police officers more vindictive. So when you take such legal actions, make sure you are well prepared with sufficient legal material for a sound case. Talk to your lawyer openly, prepare points and work with a responsive lawyer who is willing to explain things to your satisfaction. During your first meeting with your lawyer – make your expectations out of him very clear.
Question:
I have a similar case; can you study my papers and help me? Can you provide me judgment of XYZ Court in ABC Versus EFG?
Answer:
I cannot - please read “Specific Note” below "End Note" hereunder.
End Note:
I have received a lot from internet community and I feel I owe to this community what it gave me.
In my initial days of career, I was secretive about what I learnt. For example: if I spotted a great book that explains criminal law - I would not share the book with my friends fearing they may learn things just as easily as I could. I refrained from sharing and always opted to get knowledge from others. It is more than 10 years now as I was then. Over a period of time as my maturity continuum grew and as I have seen other people do wonderful work on internet, I have found that my knowledge is essentially not mine, it is built on lot of peoples' experience, their teaching and their kindness to enlighten me on various thought processes. So why hold and stagnate what is not mine essentially. Why not let knowledge flow? It is this process that taught me - "Knowledge Sharing" is power. If I do not share- I am a biggest loser. If I share - I get greatest benefit. So even from pure selfish point of view, sharing is essential. Without sharing "knowledge" is of no use. Without sharing- this world would be a bad place to live. Now therefore I have become a strong proponent of open source, sharing and a patent-free world.
Thanks to every netizens who have unknowlingly always helped me when-ever I wanted information of any type.
In my humble attempt - I have written this post. I also recommend the reader to share his / her experience on internet so that togeather - we can make a beautiful world.
SPECIFIC NOTE:
It is clarified that author of this blog is not available for any professional work to "non-lawyer clients" or "lawyers / solicitors without prior references" and neither gives any counsel on case-by-case basis to direct clients. Not making any inquiry is therefore highly recommended.
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