Project Status Report Presenter Name Samip Mohan Presentation

Project Status Report Presenter Name: Samip Mohan Presentation Date: 14 th July, 2013 Mentor Name: Shri Jyotiswaroop Pandey Affiliation: Retd. DGP, Chhattisgarh 2012 Rakshak Foundation. All Rights Reserved.

Contents § Project Overview Introduction Goals and Objectives Scope of the project § Research Methodology for the project § Field visits and Mentor Discussion § Key Findings § Results and Discussions § Recommendations, their scope and Strategy for Implementation § Time Line § Looking Ahead § Appendix § References 2012 Rakshak Foundation. All Rights Reserved. 2

Project Overview Process Integrity in Criminal Justice System PROCESS INTEGRITY No Misuse of Law Compliance to Established Procedure 2012 Rakshak Foundation. All Rights Reserved.

Project Overview (contd. ) § Rights of Arrested Persons § Non-Compliance with established laws and procedures that leads to violation of Rights of a person and victimization of people belonging to a lower strata of the society and those belonging to a particular religion. § Cases of False Arrest and False Encounters of Muslim Youth, most of the times immediately after a terror attack to ‘solve the case’ § False implication and torture of poor people to incriminate them in a particular case. § Misuse of Dowry Laws that are prejudicial to the rights of men § Offence being non-bailable and non-compoundable makes it difficult for the married couples who want to get back into their married life and also makes it difficult for the person who has been implicated falsely , to prove his innocence. 2012 Rakshak Foundation. All Rights Reserved. 4

Goals and Objectives § Study about origins of criminal justice legislations. § Find out the causes of misuse of laws recently incorporated e. g. Misuse of Domestic violence Act. Why the legislature was inapt in approving a balanced legislations. § ‘Arrest of a person’. Trace the laws which will be applicable on him till the court hearing actually starts. § Make a final report on proposed changes in the due law process in rule book so as to conform with prevalent law practices. 2012 Rakshak Foundation. All Rights Reserved. 5

Scope of the project § Understanding the Criminal Justice System of the Country § Understanding of various Criminal Law Legislations and § Case Study of False Arrest cases § Case Study of cases relating to misuse of dowry laws. § Prevention of Torture Bill- Salient Features and Loopholes. 2012 Rakshak Foundation. All Rights Reserved. 6

Research Methodology § Following articles and journals were referred to: § Framed, Damned, Acquitted : Dossiers of a very special cell- A report by Jamia Teachers’ Solidarity Association A compilation of cases relating to non compliance of procedural laws by police personnel and subsequent acquittal of the accused persons. All of them being arrested on false pretexts and concocted evidences. § The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases, Manoj Mate— Berkeley Journal of International Law. The article deals with the concept of due process which is a principle followed in USA and slightly different from ‘procedure established by law’ which is followed in India and the manner in which the concept of due process has been internalized in the Indian Legal System by Supreme Court through Judicial Activism, the most important being Maneka Gandhi v. Union of India (1978). 2012 Rakshak Foundation. All Rights Reserved. 7

§ Petition praying for amendments in Section 498 A of IPC by Anupama Singh in association with Rakshak Foundation. A petition was filed with regard to misuse of dowry laws in the country and suggested amendments in the law so as to avoid circumvention of existing laws. § Committee on reforms of Criminal Justice System Malimath committee was established to suggest reforms on Criminal Justice System and the report concentrated on various issues like loopholes in Investigation, Inquiry and Investigation in cases of offences against women. § Apart from these I visited Civil Lines Police Station to understand the procedure followed during an investigation and the entire documentation of each and every facts relating to the case. 2012 Rakshak Foundation. All Rights Reserved. 8

Field visits and Mentor Discussion Sr. No. Date and time Person or Organization Place Aim 1. 17 th May, 2013 Shri. Jyotiswaroop Pandey New Delhi General Understanding of the Project and the roadmap 2. 24 th May, 2013 Ms. Manisha Sethi New Delhi Cases relating to False Arrest Shared a list of cases where Muslim youth were arrested and tortured and the established procedure not followed and were subsequently acquitted by the court. 3. 19 th June, 2013 Mr. Sanjay Sharma New Delhi Documentation in police stations 25 types of registers are maintained in police stations to keep a record of various cases and habitual offenders etc. and a daily diary is also maintained. 2012 Rakshak Foundation. All Rights Reserved. 9 Findings

Key Findings § Four under trials die in police custody every day in India — a disturbing number for one of the oldest judicial systems in the world. Between 2001 and 2010 the National Human Rights Commission (NHRC) registered 14, 231 custodial deaths. Source- NHRC website § D. K. Basu v. State of West Bengal (1997), the Supreme Court laid down certain guidelines for protection of rights of arrested person. However, these guidelines are often not followed. § Every police station is supposed to maintain a Daily Diary, wherein the record is kept of each and every police officer as to the time he left the station for investigation, time an accused is brought to station, all the details regarding the goods confiscated or brought as evidence etc. § The officer in charge of maintaining the diary is also liable to be punished in case if he doesn’t make entry for any reason. 2012 Rakshak Foundation. All Rights Reserved. 10

Table 1 : DEATH OF PERSONS IN POLICE CUSTODY (OF PERSONS REMANDED TO POLICE CUSTODY BY COURT) 2012 Rakshak Foundation. All Rights Reserved. 11

Table 2 : DEATH OF PERSONS IN POLICE CUSTODY (OF PERSONS NOT REMANDED TO POLICE CUSTODY BY COURT) 2012 Rakshak Foundation. All Rights Reserved. 12

§ On comparison of Table 1 and Table 2, while there are total 29 deaths reported in custody in cases where the person is remanded to police custody by court there are 74 deaths reported in cases where the custody is not remanded by courts with Maharashtra that tops the list with 32 deaths which is even more than the entire country as compared to deaths in Table 1 which is not surprising considering the fact that Maharashtra Control of Organized Crime Act has given wide range of powers to police officials. § Source: http: //ncrb. nic. in/CD-CII 2011/Statistics 2011. pdf § Table 2 shows that only in Punjab and Uttar Pradesh were certain police officers charge-sheeted whereas no other state especially in Maharashtra no police officer was charge-sheeted. 2012 Rakshak Foundation. All Rights Reserved. 13

Universal Instruments Relating to Torture and Illegal Detention § The Universal Declaration of Human Rights, 1948 § The International Covenant on Civil and Political Rights, 1966 § The Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, 1988; § The Declaration on the Protection of All Persons from Enforced Disappearance, 1992; § The Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions, 1989 § The American Convention on Human Rights, 1969 § The European Convention on Human Rights, 1950 2012 Rakshak Foundation. All Rights Reserved. 14

Salient Features Prevention of Torture Bill, 2013 § The Prevention of Torture Bill, 2010 introduced by the Ministry of Home Affairs seeks to provide punishment for torture committed by public servants or with their consent. § This Bill has been introduced to allow India to ratify the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. § A public servant or any person with a public servant’s consent commits torture if all three conditions are met: a. An act results in (I) Grievous hurt to any person or (ii) danger to life, limb or health of any person, and b. The act is done intentionally, and c. The act is done with the purpose of getting information or a confession 2012 Rakshak Foundation. All Rights Reserved. 15

Inconsistency with UN Convention Against Torture 2012 Rakshak Foundation. All Rights Reserved. 16

Misuse of Dowry Laws especially S. 498 A § How a complaint under S. 498 A is filed: • A wife/daughter-in-law can file a complaint of dowry harassment to a nearby police station. • The husband, his old parents and relatives are immediately arrested without sufficient investigation and put behind bars on non-bailable terms. • Even if the complaint is false, the person shall be presumed guilty until you prove that you are innocent. § The offence is non-bailable and non-compoundable and there is no provision in law for filing a false complaint even after knowing the fact that only in 20% of the cases, the accused is convicted and majority of the cases turn out to be frivolous and malicious. Source – National Crime Records Bureau, 2011. 2012 Rakshak Foundation. All Rights Reserved. 17

Guidelines By Delhi High Court (Justice Kailash Gambhir) § Social Workers/ NGOs The Delhi Legal Service Authority, National Commission for Women, NGOs and social workers working for upliftment of women should set up a desk in crime against women cell to provide them with conciliation services, so that before the State machinery is set in motion, the matter is amicably settled at that very stage. § Police Authorities Apex Court has given certain directions to Police Authorities before filing a complaint under this law which includes prior permission of ACP/ DCP before arresting a person, every possible effort should be made before filing the FIR that the reconciliation is done and the IO should move ahead with FIR in cases where there is strong allegation of physical and mental harm etc. 2012 Rakshak Foundation. All Rights Reserved. 18

§ Lawyers should not unnecessarily suggest incorporation of wild allegations, or in character assassination of any of the parties or their family members whatever the case may be. Lawyers are also to endeavor to bring about amicable settlement. § Courts First endeavor should be for possible reunion and restitution of the parties and as a last endeavor to bring about peaceful separation. The courts are overburdened with the work, then necessary assistance of Mediation and Conciliation cells should be sought. 2012 Rakshak Foundation. All Rights Reserved. 19

Results and Discussions Procedural Lapses Misuse of Law Violation of Rights 2012 Rakshak Foundation. All Rights Reserved. 20

Results and Discussion (Cont. ) Rise in cases of Custodial torture Victimization of Muslim youth and Sapping of Social Energies Lack of sensitivity among Police Officers Violation of Rights of an accused Non-adherence to established guidelines and procedures Most of the cases of custodial torture and false arrest comes from Maharashtra where MCOCA has been enacted 2012 Rakshak Foundation. All Rights Reserved. 21

Recommendations regarding Custodial Death, Torture and False Arrest § Recommendation : Amendment to Torture Bill, 2010 in accordance with the provisions of Convention against Torture and the Ratification of the same by the parliament § Scope: Torture Bill to be amended and ratified § Flowchart: • Restrictive Definition (Grievous Hurt does not include mental suffering and various other ways of Torture which does not have long term effect) • The Bill dilutes existing laws by imposing a time limit of six months and requiring prior government sanction for trying those accused of torture. • No independent authority for investigation of complaints and no provisions for compensation to the victim. 2012 Rakshak Foundation. All Rights Reserved. 22

§ Recommendation : An obligation on states parties to set up, designate or maintain one or several national visiting mechanisms, which can conduct more regular and independent visits. § Scope: An independent body of such a nature can go a long way in reducing the cases of custodial torture, since, there will always be a fear of inspection among the police officials. § Flowchart: Characteristics of Such a team shall be: 1) Independent 2) Expert 3) Direct Contact with the detainees 4) Regular and Unannounced 5) Access to all parts of the facility 6) Regular Reports 2012 Rakshak Foundation. All Rights Reserved. 23

Recommendation regarding Misuse of S. 498 A § Recommendation: Change the nature of offence under Section 498 A IPC § Scope: Offence under section 498 A should be made compoundable with the permission of Court. § Flowchart: • Section 498 A is non- bailable and non-compoundable. • Being non compoundable, it becomes difficult for the couples to get back into matrimonial relationship. • Section 498 A should be made compoundable with the permission of the Court. 2012 Rakshak Foundation. All Rights Reserved. 24

§ Recommendation: Punishment for those who have filed the complaint maliciously. § Scope: If it prima facie appears to the court during the proceedings that the complainant filed the complaint under S. 498 A maliciously, she should be punished accordingly and the other party must be entitled to compensation. § Flowchart: • Although the victim of such a frivolous prosecution is empowered with filing a complaint of Malicious Prosecution. • Amendment to Section 498 A with respect to the punishment for those who indulge in such frivolous prosecution. (Also Compensation) • Malicious Prosecution is not feasible for a person who has already been victimized by lengthy judicial process specially elder people. 2012 Rakshak Foundation. All Rights Reserved. 25

Timeline (Tasks Completed) Week 1 Read articles and journals and various newspaper reports. All the major provisions regarding the Rights of Arrested persons Week 2 Filed an RTI. Compilation of all the articles journals and reports. Week 3 Read various case studies relating to false arrest and misuse of dowry laws Week 4 Compilation of all the literature and mid term report submission 2012 Rakshak Foundation. All Rights Reserved.

Looking Ahead Week 5 Field visit to Civil Lines police station to understand the procedure followed by the police during investigation. Week 6 Some more case studies and government reports relating to Misuse of Laws especially Acts like MCOCA and UAPA and also S. 498 A of IPC. Week 7 Worked on Salient features of Torture Bill and suggested Recommendation regarding the same. Week 8 Compilation of all the articles and studies and Final Report Submission. 2012 Rakshak Foundation. All Rights Reserved.

Questions? ? 2012 Rakshak Foundation. All Rights Reserved.