Archive for the 'Indian Law' Category

Due Process And The Bill Of Rights In The Indian Context

While preparing to take the test for my US citizenship, I read  its Constitution and the amendments to its Constitution.  Among the many things I learned, there are two words of great relevance to arrests in 498A cases: Due Process.

Due Process” is the principle that the government must respect all of the legal rights that are owed to a citizen in accordance with the law. Due process holds the government subservient to the law of the land.  The term government means any branch of the government, such as the executive (police),  the judicial (judges and magistrates), and the legislative (MLAs and MPs) branches.

Due process protects a citizen from the abuse of power by any branch of the state.

You read about the Indian Suprene Court’s views on Due Process here:

Siddharam Satlingappa Mhetre – The SC on Due Process

In the United States, the phrase, “due process of law“, has been construed to forbid the violation of the rights granted by the Bill of Rights.

So what are the Bill Of Rights?

The Bill of Rights is the name by which the first ten amendments to the United States Constitution are collectively known. The founding fathers of the US, just like Indian freedom fighters such as Gandhi, Nehru, and Sardar Patel, experienced an arrest without just cause. As a result, after the US Constitution was ratified, meaning, after it was accepted as the law of the land, ten amendments were made to it that guaranteed individual protections. These amendments became known as the The Bill Of Rights.

In the context of conferring protections on individuals from the excesses of the state, the following amendments to the US Constitution are of immense importance:

  • 5th Amendment:  no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.
  • 6th Amendment: the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed.

The Indian Constitution confers on Indian citizens, the following FUNDAMENTAL RIGHTS, equivalent to the 5th and 6th amendments:

  1. No citizen can be denied his life and liberty except by law —  Article 21 and enforced through the writ of Habeas Corpus.
  2. No citizen  accused of any offense shall be compelled to be a witness against himself — A fundamental Right and Supreme Court judgment given below.
  3. The right to a speedy trial — see the Supreme Court judgment below.
  4. The right to be tried in the place of proper jurisdiction — explained through a Supreme court judgment.

The Fundamental Rights listed above collectively constitute  the Right To Due Process In India.

In essence the right to “Due Process” in India is enforced by means of the following Supreme Court judgments:

  1. The Right Against Arbitrary Arrest (enforced through Habeas Corpus) — Joginder Kumar Vs State Of UP – 1994:  This judgment resulted from a writ  of Habeas Corpus and it enforces the right against arbitrary arrest. It says: “No arrest can be made because it is lawful for the police officer to do so.  The existence of the power to arrest is one thing.  The justification for the exercise of it is quite another.  The police officer must be able to justify the arrest apart from his power to do so.  Arrest and detention in police lock-up of a person cause incalculable harm to the reputation and self–esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own  interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.”
  2. The Right To A Speedy Trial — Hussainara Khatoon & Ors.Vs.State Of Bihar, 1979:  The accused in these cases might have been on bail – but the injustice of pendency of trial for long periods is the uncertainty and the concomitant anxiety suffered by the under-trial. The under-trial is inhibited in making future plans for his life or executing present ones due to the uncertainty which pendency of trial brings. His confidence starts to erode and at the end of the trial, even if he is honorably acquitted, the scars of the long trial remain. He feels condemned despite the acquittal.
  3. The Right To A Place Of Proper JurisdictionY.Ajith Abraham Vs. Inspector of Police, Chennai, 2004: “Sections 177 to 186 deal with venue and place of trial. Section 177 reiterates the well-established common law rule referred to in Halsbury’s Laws of England (Vol. IX para 83) that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which alleged to constitute the crime. There are several exceptions to this general rule and some of them are, so far as the present case is concerned, indicated in Section 178 of the Code which read as follows:
    Section 178 PLACE OF INQUIRY OR TRIAL

    1. When it is uncertain in which of several local areas an offence was committed, or
    2. where an offence is committed partly in one local area and partly in another, or
    3. where an offence is continuing one, and continues to be committed in more local areas than one, or
    4. where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.”
  4. The Right Against Self-Incrimination— Article 20 of the Indian Constitution and Nandini Satpathy Vs P.L Dani, 1978: The Supreme Court issued the following directives in this judgments:
    1. An accused person cannot be coerced or influenced into giving a statement pointing to her/his guilt.
    2. The accused person must be informed of her/his right to remain silent and also of the right against self incrimination.
    3. The person being interrogated has the right to have a lawyer by her/his side if she/he so wishes.
    4. An accused person must be informed of the right to consult a lawyer at the time of questioning, irrespective of the fact whether s/he is under arrest or in detention.
    5. Women should not be summoned to the police station for questioning in breach of Section 160 (1) CrPC. Children below 15 and women should not be summoned to the police station or to any other place by an investigating officer. They should only be questioned at their place of residence. An essential element of a fair trial is that the accused cannot be forced to give evidence against her/himself. Forcing suspects to sign statements admitting their guilt violates the constitutional guarantee against self-incrimination and breaches provisions of the Code of Criminal Procedure, 1973 [CrPC]. It is also inadmissible as evidence in a court of law. In addition, causing hurt to get a confession is punishable by imprisonment up to seven years.

Indian citizens have to understand that the Indian Constitution, derived from the US Constitution and its Bill Of Rights, confers the same essential rights as the US Constitution.

This post is an attempt on my part to encourage Indians to assert their right to Due Process.

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Joginder Kumar Vs State Of UP – 1994

For reasons unknown, I decided to revisit, possibly, the most important judgment ever delivered by an Indian court.

These words of  Justice MN VENKATACHALLIAH renewed my determination to fight.

No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.

Here is this seminal judgment again, reformatted and presented anew:

Joginder Kumar Vs State Of UP – 1994

Original link to Judis: http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=11479

Given below is the 3rd report of the National Police Commission that this judgment draws on:

Third Report Of The National Police Commission (From BPRD)

Also given below is a fragment of the First Police Commission:

First Report Of The National Police Commission (Fragment From BPRD)

Compliance orders:

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A Compilation Of Police Interrogation Tactics

I pulled this from various sites on the net. The most common tactics of interrogation, used by the Indian police, is to beat a confession out of a suspect or intimidate the suspect into signing a confession.

My family was subjected to the tactic of intimidation. Among the many indignities heaped upon them, they were made to watch a suspect subjected to third degree treatment in their presence.

Here is a list of the most common interrogation techniques:

  • Exaggerating the strength of their case: They tell you that they have recordings, fingerprints, documents, eyewitnesses, etc. All of this may true or all may be false but you simply don’t know because you are isolated. They try and get to you as soon as possible to play on your fears and work that confused state of mind to their advantage.
  • Good cop, bad cop: this is an age-old tactic. The police will work in teams of good cop and bad cop. The bad cop will shout at you and attempt to intimidate you, and may even rough you up. The good cop walks in and will apply the healing solution. He may even yell at the bad cop. Apart from exchanging pleasantries, speak to him about all other things at your own risk.
  • Comparison: They will convince you that they think you are the least to blame for what happened and that, therefore, you will not suffer as severe a sentence. It’s the other guys they are really after and if you cooperate, they will put a good word in for you.
  • Small talk/Chit chatting: What is critical to getting the ultimate admission is to get you talking in the first place – about anything – usually in a “friendly” manner. They will try and find something that you have in common and just have a regular conversation. Then, when you feel comfortable just talking, they will move into the area of the crime. It’s the old story about the frog – try and place him in the boiling pot and he will jump out immediately. But put him in a cold pot and then slowly turn up the heat, he will die before he knows what happened to him.
  • Separation: if the accused, like in most 498A cases, belong to a family, then the family members may be separated and each will be told that the other confessed. Watch out for this. This is the most pernicious tactic in my opinion.
  • Threats And Intimidation: This is the standard operating procedure. The police may threaten to book you under more charges. Wish them the best. These charges need to be proven in court and lies don’t stand up to impartial, intelligent scrutiny. There will threats of physical violence, direct or suggested. Just stand up to it.
  • Promises: They will cut a “deal” with you or “put a good word in” for you. Don’t be fooled. They have no power whatsoever to make deals – only prosecutors can do that and, even then, the judge is never bound by any bargain.
  • Furniture And Spatial Psychology: When in the interview room look out for use of furniture. The power of persuasion is greater when the interviewer removes the barrier of the desk that creates a division of “their” space and “your” space. It is common for the interviewers to touch the suspect in a gesture of support and friendship. If the interviewer is on the opposite side of the table, such a gesture is limited. You best defense is to SHOW NO EMOTION. The whole atmosphere inside a police station is geared towards creating an environment of stress so as to break down the suspects morale. It is easy to accept the hand of friendship in such a situation, DON’T break your silence. You, as the suspect, will have your back to the door. This is done to make you feel apprehensive each time someone comes into the room. In addition, the seat for the solicitor will be out of your eye line. The interviewer will often fall silent, putting pressure on you to fill in these “pregnant pauses” – maintain your silence.
  • Expressions Of Approval: Look out for expressions of approval, both verbal and non verbal. Verbal: “That’s good”, “Yes, go on” and “I like that approach”. Non verbal: smiling, nodding, looking at a fellow interviewer as if to say “She’s/he’s right you know.” These are all indications of the frame of mind of the interviewer. You may be offered compliments e.g. “You’re no fool”, etc. Non verbal compliments such as a little shake of the head as if to say that I admire you for saying that. The principle behind all this is to make the suspect feel good and to encourage further dialogue.

CHRI has brought out a flier about police interrogation —> CHRI Police Interrogation

Have your lawyer with you at all times and maintain your silence. The right against self incrimination is a fundamental right.

The police cannot torture you or extract a confession out of you either. This is illegal and if they do so, they are in contempt of the many judgments of the Supreme Court in this regard.

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NHRC Publications: Priced And Non Priced

NHRC Publications

The Publications brought out by the National Human Rights Commission are either free or priced. In case it is a priced publication, then a Demand Draft for the amount that covers the cost of the book has to be made in favour of the National Human Rights Commission, New Delhi payable at New Delhi . Some Publications are available in electronic format on this website. To view or download, simply click on the appropriate link given below:

http://nhrc.nic.in/publications.htm

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National Human Rights Commission (NHRC) Guidelines On Arrest

Here is the original : Guidelines on Polygraph Tests And Arrests

You can download the pdf of my version, for printing here:

NHRC GUIDELINES REGARDING ARREST (pdf)

Need for Guidelines:

Arrest involves restriction of liberty of a person arrested and therefore, infringes the basic human rights of liberty. Nevertheless the Constitution of India as well as International human rights law recognise the power of the State to arrest any person as a part of its primary role of maintaining law and order. The Constitution requires a just, fair and reasonable procedure established by law under which alone such deprivation of liberty is permissible.

Although Article 22(1) of the Constitution provides that every person placed under arrest shall be informed as soon as may be the ground of arrest and shall not be denied the right to consult and be defended by a lawyer of his choice and S.50 of the Code of Criminal Procedure, 1973 (Cr. PC) requires a police officer arresting any person to “forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest”. in actual practice these requirements are observed more in the breach. Likewise, the requirement of production of the arrested person before the court promptly which is mandated both under the Constitution [Article22(2)] and the Cr. PC (Section 57] is also not adhered to strictly.

A large number of complaints pertaining to Human Rights violations are in the area of abuse of police powers, particularly those of arrest and detention. It has, therefore, become necessary, with a view to narrowing the gap between law and practice, to prescribe guidelines regarding arrest even while at the same time not unduly curtailing the power of the police to effectively maintain and enforce law and order and proper investigation.

PRE-ARREST

Ø The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the genuineness and bonafides of a complaint and a reasonable belief as to both the person’s complicity as well as the need to effect arrest. [Joginder Kumar’s case- (1994) 4 SCC 260).

Ø Arrest cannot be justified merely on the existence of power, as a matter of law, to arrest without a warrant in a cognizable case.

Ø After Joginder Kumar’s pronouncement of the Supreme Court the question whether the power of arrest has been exercised reasonably or not is clearly a justiciable one.

Ø Arrest in cognizable cases may be considered justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc. and it is necessary to arrest the suspect to prevent him from escaping or evading the process of law.

(ii) The suspect is given to violent behaviour and is likely to commit further offences.

(iii) The suspect requires to be prevented from destroying evidence or interfering with witnesses or warning other suspects who have not yet been arrested.

(iv) The suspect is a habitual offender who, unless arrested, is likely to commit similar or further offences. [3rd Report of National Police Commission]

Ø Except in heinous offences, as mentioned above, an arrest must be avoided if a police officer issues notice to the person to attend the police station and not leave the station without permission. (see Joginder Kumar’s case (1994) SCC 260).

Ø The power to arrest must be avoided where the offences are bailable unless there is a strong apprehension of the suspect absconding .

Ø Police officers carrying out an arrest or interrogation should bear clear identification and name tags with designations. The particulars of police personnel carrying out the arrest or interrogation should be recorded contemporaneously, in a register kept at the police station.

ARREST

Ø As a rule use of force should be avoided while effecting arrest. However, in case of forcible resistance to arrest, minimum force to overcome such resistance may be used. However, care must be taken to ensure that injuries to the person being arrested, visible or otherwise, is avoided.

Ø The dignity of the person being arrested should be protected. Public display or parading of the person arrested should not be permitted at any cost.

Ø Searches of the person arrested must be done with due respect to the dignity of the person, without force or aggression and with care for the person’s right to privacy. Searches of women should only be made by other women with strict regard to decency. (S.51(2) Cr.PC.)

Ø The use of handcuffs or leg chains should be avoided and if at all, it should be resorted to strictly in accordance with the law repeatedly explained and mandated in judgment of the Supreme Court in Prem Shanker Shukla v. Delhi Administration [(1980) 3 SCC 526] and Citizen for Democracy v. State of Assam[(1995) 3 SCC 743].

Ø As far as is practicable women police officers should be associated where the person or persons being arrested are women. The arrest of women between sunset and sunrise should be avoided.

Ø Where children or juveniles are sought to be arrested, no force or beatings should be administered under any circumstances. Police Officers, may for this purpose, associate respectable citizens so that the children or juveniles are not terrorised and minimal coercion is used.

Ø Where the arrest is without a warrant, the person arrested has to be immediately informed of the grounds of arrest in a language which he or she understands. Again, for this purpose, the police, if necessary may take the help of respectable citizens. These grounds must have already been recorded in writing in police records. The person arrested should be shown the written reasons as well and also given a copy on demand. (S.50(1) Cr.PC.)

Ø The arrested person can, on a request made by him or her, demand that a friend, relative or other person known to him be informed of the fact of his arrest and the place of his detention. The police should record in a register the name of the person so informed. [Joginder Kumar’s case (supra)].

Ø If a person is arrested for a bailable offence, the police officer should inform him of his entilement to be released on bail so that he may arrange for sureties. (S.50(2) Cr.PC.)

Ø Apart from informing the person arrested of the above rights, the police should also inform him of his right to consult and be defended by a lawyer of his choice. He should also be informed that he is entitled to free legal aid at state expense [D.K. Basu’s case (1997) 1 SCC].

Ø When the person arrested is brought to the police station, he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed of this right. Where the police officer finds that the arrested person is in a condition where he is unable to make such request but is in need of medical help, he should promptly arrange for the same. This must also be recorded contemporaneously in a register. The female requesting for medical help should be examined only by a female registered medical practitioner. (S.53 Cr.PC.)

Ø Information regarding the arrest and the place of detention should be communicated by the police officer effecting the arrest without any delay to the police Control Room and District / State Headquarters. There must be a monitoring mechanism working round the clock.

Ø As soon as the person is arrested, police officer effecting the arrest shall make a mention of the existence or non-existence of any injury(s) on the person of the arrestee in the register of arrest. If any injuries are found on the person of the arrestee, full description and other particulars as to the manner in which the injuries were caused should be mentioned in the register, which entry shall also be signed by the police officer and the arrestee. At the time of release of the arrestee, a certificate to the above effect under the signature of the police officer shall be issued to the arrestee.

Ø If the arrestee has been remanded to police custody under the orders of the court, the arrestee should be subjected to medical examination by a trained Medical Officer 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 State or Union Territory. At the time of his release from the police custody, the arrestee shall be got medically examined and a certificate shall be issued to him stating therein the factual position of the existence or nonexistence of any injuries on his person.

POST ARREST

Ø The person under arrest must be produced before the appropriate court within 24 hours of the arrest (Ss 56 and 57 Cr.PC).

Ø The person arrested should be permitted to meet his lawyer at any time during the interrogation.

Ø The interrogation should be conducted in a clearly identifiable place, which has been notified for this purpose by the Government. The place must be accessible and the relatives or friend of the person arrested must be informed of the place of interrogation taking place.

Ø The methods of interrogation must be consistent with the recognised rights to life, dignity and liberty and right against torture and degrading treatment.

ENFORCEMENT OF GUIDELINES

1. The guidelines must be translated in as many languages as possible and distributed to every police station. It must also be incorporated in a handbook which should be given to every policeman.

2. Guidelines must receive maximum publicity in the print or other electronic media. It should also be prominently displayed on notice board, in more than one language, in every police station.

3. The police must set up a complaint redressal mechanism, which will promptly investigate complaints of violation of guidelines and take corrective action.

4 The notice board which displays guidelines must also indicate the location of the complaints redressal mechanism and how that body can be approached.

5. NGOs and public institutions including courts, hospitals, universities etc., must be involved in the dissemination of these guidelines to ensure the widest possible reach.

6. The functioning of the complaint redressal mechanism must be transparent and its reports accessible.

7. Prompt action must be taken against errant police officers for violation of the guidelines. This should not be limited to departmental enquiries but also set in motion the criminal justice mechanism.

8. Sensitisation and training of police officers is essential for effective implementation of the guidelines.

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Orr vs Orr: The US Supreme Court Landmark Judgment On Alimony-Mar ’79

The significance of this judgment is that it rejected the premise that married women are necessarily dependent upon their husbands for financial support.

Lillian and William Orr divorced in Alabama on 26 February 1974. The decree directed William to pay Lillian $1,240 per month in alimony. Soon he either fell behind or stopped paying altogether, and Lillian brought contempt proceedings against him in the Circuit Court of Lee County, Alabama, demanding back payments.
In defense, William claimed that Alabama’s alimony statutes violated the Equal Protection Clause of the Fourteenth Amendment, since they required only husbands–never wives–to pay alimony. Lillian believed the law was constitutional. The court agreed with her and ordered William to pay the back alimony plus Lillian’s legal fees. William promptly appealed the judgment to the Court of Civil Appeals of Alabama.
On 16 March 1977, the court ruled that alimony laws–“designed” to help “the wife of a broken marriage who needs financial assistance”–were constitutional. The judgment against William must stand. William next petitioned the Supreme Court of Alabama for a writ of certiorari–an order that the lower court send the trial records to the superior court for review. In May, the state supreme court granted this writ–only to reverse itself six months later, saying the writ had been “improvidently granted.” William then appealed to the U.S. Supreme Court, which agreed to hear the case.

The US Supreme Court concluded the discussion with a few remarks about women’s “proper place”:

“Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the “proper place” of women and their need for special protection .. . Thus, even statutes purportedly designed to compensate for and amelioratethe effects of past discrimination must be carefully tailored. Where, as here, the State’s compensatory and ameliorative purposes are as well served by agender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex.”

A Divorce Decision Changes the Meaning of Marriage
The laws governing marriage are more often evaluated during divorce proceedings than during the life of an intact marriage. Thus, in settling the Orrs’ dispute about their divorce decree, the Supreme Court radically changed the legal basis of marriage in America. As editor Leslie Friedman Goldstein points out, Anglo-American law had held that the “legal core” of marriage was a woman’s obligation to provide sexual and domestic services and a man’s obligation to provide financial support. The Court’s ruling in Orr v. Orr was a complete rejection of such assumptions and one that, in Goldstein’s words, “seismically altered” the marriage institution.”

Here is the link to the analysis of this judgment: Orr v. Orr

Here is the link to the full text : Orr Vs Orr, Full Text

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Justice Dhingra Orders A CBI Inquiry Into The Conduct Of Some Corrupt Delhi Cops

Here is the news coverage. This judgment has a significant importance to me as the cops and the bastard of a magistrate pulled a similar stunt with my family.

High Court directs CBI to inquire into Delhi Police conduct Monday, February 25, 2008 :

Taking exception to the manner in which the Delhi police is handling petty cases and pushing the innocent behind bars, Delhi High Courthas directed the Central CBI to inquire into the conduct of the police in this matter. Justice S N Dhingra directed the Delhi Government to pay a compensation of Rs 25,000 each to two people who were confined illegally in police custody, for petty offences just because the police official wanted to settle scores with them. The incident related to one Sanjeev Kumar Singh and his friend, who were picked up by the Delhi police on February 4, 2007, at Samaypur Badali police station. They were apprehended by the police under Section 107/151, CrPC on the charge of abusing, threatening and quarrelling with each other. They were produced before ACP J S Vaid, who was working as Special Executive Magistrate (SEM) on February 4. The SEM sent them to Judicial Custody (JC) till February 17. Though they were asked to furnish a surety of Rs 5000 each, the record showed that the bail bond was accepted by furnishing a surety of Rs 15000 from each. In his petition, Sanjeev Kumar had alleged that the police officials had not only incorporated these sections to illegally detain and harass them, but have also encroached upon their fundamental right. They were friends but the police wanted to settle scores with them and booked them illegally. Justice Dhingra observed the case showed high-handedness of the police and the SEM concerned. The petitioner was kept in illegal confinement because of the SEM’s illegal action of not accepting the bail bond on the same day. The court directed the CBI to investigate the matter and submit its report to the Metropilitan Magistrate concerned within 120 days.

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Nandini Satpathy Vs PL Dani: Right Against Self Incrimination

Nandini Satpathy – former Chief Minister of Orissa – against whom a case had been registered under the Prevention of Corruption Act, was asked to appear before the Deputy Superintendent of Police [Vigilance] for questioning. The police wanted to interrogate her by giving her a string of questions in writing. She refused to answer the questionnaire, on the grounds that it was a violation of her fundamental right against self-incrimination. The police insisted that she must answer their questions and booked her under Section 179 of the Indian Penal Code, 1860, which prescribes punishment for refusing to answer any question asked by a public servant authorised to ask that question. The issue before the Supreme Court was whether Nandini Satpathy had a right to silence and whether people can refuse to answer questions during investigation that would point towards their guilt.
Supreme Court Observations:
Article 20 (3) of the Constitution lays down that no person shall be compelled to be a witness against her/himself. Section 161 (2) of the Code of Criminal Procedure, 1973 [CrPC], casts a duty on a person to truthfully answer all questions, except those which establish personal guilt to an investigating officer.
The Supreme Court accepted that there is a rivalry between societal interest in crime detection and the constitutional rights of an accused person. They admitted that the police had a difficult job to do especially when crimes were growing and criminals were outwitting detectives. Despite this, the protection of fundamental rights enshrined in our Constitution is of utmost importance, the Court said. In the interest of protecting these rights,we cannot afford to write off fear of police torture leading to forced self incrimination.
While any statement given freely and voluntarily by an accused person is admissible and even invaluable to an investigation, use of pressure whether ?subtle or crude, mental or physical, direct or indirect but sufficiently substantial? by the police to get information is not permitted as it violates the constitutional guarantee of fair procedure. The Supreme Court affirmed that the accused has a right to silence during interrogation if the answer exposes her/him into admitting guilt in either the case under investigation or in any other offence. They pointed out that ground realities were such that a police officer is a commanding and authoritative figure and therefore, clearly in a position to exercise influence over the accused.
Supreme Court Directives
1. An accused person cannot be coerced or influenced into giving a statement pointing to her/his guilt.
2. The accused person must be informed of her/his right to remain silent and also of the right against self incrimination.
3. The person being interrogated has the right to have a lawyer by her/his side if she/he so wishes.13
4. An accused person must be informed of the right to consult a lawyer at the time of questioning, irrespective of the fact whether s/he is under arrest or in detention.
5. Women should not be summoned to the police station for questioning in breach of Section 160 (1) CrPC.14
An essential element of a fair trial is that the accused cannot be forced to give evidence against her/himself. Forcing suspects to sign statements admitting their guilt violates the constitutional guarantee against self incrimination and breaches provisions of the Code of Criminal Procedure, 1973 (CrPC). It is also inadmissible as evidence in a court of law. In addition, causing ‘hurt’ to get a confession is punishable by imprisonment up to seven years.

Here is the judgment: Nandini Satpathy Vs PL Dani: Right Against Self Incrimination

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Police Interrogation & The Role Of Judiciary

Here is the link: http://thedailystar.ws/law/2004/11/03/index.htm

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The Definition Of Torture, As Per The Supreme Court Of India

The Supreme Court in Arvinder Singh Bagga v. State of U.P, 1994, described how the police treated Nidhi, the victim, in the following manner:

“On a careful consideration of all the evidence on record in the light of the surrounding circumstances I accept the claim of Nidhi that she was tortured by the police officers on 24th, 25th and 26th July, 1993. On 24.7.93 she was pressurised by J.C. Upadhyaya S.H.O., Sukhpal Singh, S.S.I, and Narendrapal Singh S.I. and threatened and commanded to implicate her husband and his family in a case of abduction and forcible marriage thereafter. She was threatened with physical violence to her husband and to herself in case of her default and when she refused her family members were brought in to pressurise her into implicating them. On 25th July 1993 she was jolted out of sleep by Sukhpal Singh S.S.I. and made to remain standing for a long time. She was abused and jostled and threatened by J.C. Upadhyay, Sukhpal Singh and Narendrapal Singh with injury to her body if she did not write down the dictated note. Sukhpal Singh SSI even assaulted her on her leg with Danda and poked it in her stomach. She did not yield to the pressure.”

The Ho’nble judge then went on to define torture:

“Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave”

From this judgment, it is very clear that each time our families are threatened by the police with the old threat of “Pay up, or else…”, they are subjecting them to torture.

Torture, in the words of the Supreme Court of India is “is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands”

SC: The Definition Of Torture Given In Arvinder Singh Bagga v. State of U.P

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SC: Compensation For Illegal Detention-1994

Here is the judgment of the Arvinder Singh Bagga v. State of U.P, 1994. In this judgment, the SC laid down that the state shall pay compensation to all persons illegally detained and humiliated for no fault of theirs. A perfect remedy for all the parents and siblings arrested in 498A cases despite the judgment of Joginder Kumar Vs State of UP.

This judgment takes on greater importance in light of the murder of Rizwanur. The cops didn’t torture Priyanka Todi because she happened to be the daughter of an industrialist. Unfortunately, Nidhi, the victim in this case, didn’t have the privilege of being born into the house of a rich industrialist.

Here are a couple of excerpts:

  • Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave.
    5. This clearly brings out not only highhandedness of the police but also uncivilised behaviour on their part. It is difficult to understand why Sukhpal Singh, S.S.I. assaulted Nidhi on her leg with Danda and poked it in her stomach. Where was the need to threaten her? As rightly pointed out in the report that torture is not merely physical but may even consist of mental and psychological torture calculated to create fright to make her submit to the demands of the police. A further reading of the report shows:
    (i) fabrication;
    (ii) illegal arrest;
    (iii) without personal knowledge or credible information that the arrested persons were involved in a congnizable offence; and
    (iv) illegality of verbal order of arrest not contemplated under Section 55 Cr. P.C.
    This again is a blatant abuse of law.
  • The detention of a married woman in custody who is not an accused on the pretext of her being a victim of abduction and rape which never was to her knowledge and to the knowledge of the police officers concerned aforesaid is itself a great mental torture for her which cannot be compensated later but here we have found that she was tortured otherwise also by threats of violence to her and to her husband and his family and was given physical violence calculated to instil fear in her mind and compel her to yield and to abandon her marriage with Charanjit Singh Bagga which had been duly performed in Arya Samaj Bhoor and which had been duly registered in the office of Registrar of Hindu Marriages under the U.P. Hindu Marriage Registration Rules, 1973 framed by the Governor in exercise of the powers conferred by Section 8 of the Hindu Marriage Act, 1955 (Act No. XXV of 1955). She was made to write a statement as commanded by J.C. Upadhyay S.H.O. and Sukhpal Singh SSI on 26.7.93 which was reproduced by the I.O. in the case diary as her statment under Section 161 Cr. P.C. The physical and mental torture was given to Nidhi on 24th July, 1993 and 25th July, 1993 by J.C. Upadhyay S.H.O., Sukhpal Singh and SSI and Narendrapal Singh S.I. but on 26.7.93 it was done by only J.C. Upadhyay S.H.O. and Sukhpal Singh S.S.I. and there was no participation of K.C. Tyagi I.O. in the torture and harassment dated 24.7.93, 25.7.93 and 26.7.93.

The hon’ble judges directed the state govt to pay compensation to the victims. Here is the excerpt:

“2. The State shall pay a compensation of Rs. 10,000 to Nidhi, Rs. 10,000 to Charanjit Singh Bagga and Rs. 5,000 to each of the other persons who were illegally detained and humiliated for no fault of theirs. Time for making payment will be three months from the date of this judgment. Upon such payment it will be open to the State to recover personally the amount of compensation from the concerned police officers.”

Here is this judgment: SC: Compensation For Illegal Detention Arvinder Singh Bagga v. State of U.P

Justice Dhingra explains when to file for compensation in case of illegal arrest in this judgment:

Delhi HC: When To File For Compensation On Illegal Arrest/False Complaint

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The Murder Of Rizwanur Rahman

I am almost certain that he was murdered. The Indian police have a long history of filing charges of abduction and forcible marriage against young grooms in cases of elopement.

In one such case, in 1994, the goons in uniform illegally detained and tortured a young bride, in order to force her to renounce her marriage. Fortunately, the story had a happy ending. The Supreme Court stepped in upon being approached, and granted her compensation and gave the goons what was due to them. Despite a judgment like this, former Kolkota Commissioner and moron, Prasun Mukherjee, had Rizwan persecuted by his goons. I hope that the CBI nails his sorry ass to the wall.

Here is a picture of former Kolkota Police Commissioner, Prasun Mukherjee:

You can read about it here: Arvinder Singh Bagga v. State of U.P-1994. The Rizwanur Story With A Happy Ending
Earlier this year (2007), Justice Dhingra had ruled that: A Minor can elope to save her love: Justice Dhingra
Priyanka and Rizwanur were not minors. So what gave the police the right to persecute them? Worse, Prasun Mukherjee, walked away from the press conference when faced with a bunch of questions:

Questions For Prasun Mukherjee

Can the netizens and citizens of Kolkota file a contempt of court petition against this moron and his goons for willfully ignoring orders of the Supreme Court of not harassing young couples that choose their partners ?

Here is the link to the full story:

You can catch up on developing news about Rizwanur here:

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Allahabad HC-No Arbitrary Arrests In Cognizable Cases – 2004

Here is a judgment by Justice Markandeya Katju while he was serving as a judge of the Allahabad HC.
He says:
“After the promulgation of the Constitution individual liberty has become of great importance particularly in view of Article 21, which is a fundamental right. Hence it cannot be lightly interfered with. Moreover, section 157(1) Cr.P.C. States :-

“157. Procedure for investigation – (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officer not being below such rank as the State Government may, by general or special order, prescribe in this behalf to proceed, to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.”

The above provision clearly shows that it is not necessary to arrest in every case wherever a FIR of cognizable offence has been registered. No doubt investigation has to be made in every case where a cognizable offence is disclosed but in our opinion investigation does not necessarily include arrest. Often the investigation can be done without arresting a person, and this legal position becomes clear from section 157(1) of the Cr.P.C. because that provision states that the Police Officer has to investigate the case, and, if necessary, to take measures for the arrest of the offender. The use of words ‘ if necessary’ clearly indicates that the Police Officer does not have to arrest in every case wherever FIR has been lodged and this position has been clarified in Joginder Kumar’s case (supra).

In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it s against the decision of the Supreme Court in Joginder Kumar’s case, and it is also in violation of Article 21 of theConstitution as well as section 157 (1) Cr.P.C. No doubt section 157(1) Cr.P.C. gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily and it must be exercised in accordance with the principles laid down in Joginder Kumar’s case (supra).”

Here is the judgment: Allahabad HC-No Arbitrary Arrests In Cognizable Cases

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Delhi HC: Politicians Should Stay At Home If They Feel Threatened

25 Oct 2007

PTI

NEW DELHI: Observing they were not a “national asset”, the Delhi High Court on Friday took the politicians head on over having their security guards on tow when they step out and wryly told them to remain in the confines of their homes and offices if they feel threatened by citizens.
“You should not let these men (politicians ) to come out. Their presence in public places itself threatens the common men. I do not know why it has become a matter of prestige for them to move with 10-15 uniform security personnel carrying lethal weapon,” a Bench comprising Justice T S Thakur and Justice Veena Birbal told the Centre.
The court made these harsh observations while expressing displeasure over the inconvenience the public have to put up by the overwhelming presence of security guards accompanying politicians at public places.
The Court’s observation came while hearing a PIL on police reforms seeking separation of force into two wings to deal with law and order and Investigation independently.
In sharp remarks laced with sarcasm, the judges could not hide their dismay when they said “If these people feel so threatened they should not come out in public places.”
The judges said they (politicians) were not a national asset which should be protected and if they were, the citizens would protect and there was no need to be threatened by them (public).
“It has become fashionable and a status symbol. The more people(security men) surrounds these people(politicians) the more prestigious they feel. It is obnoxious that common men are forced to stay on the sidelines and are prevented to walk on the pavements when the politicians pass through”, the Court said.

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e-Governance In Indian Courts

Here is the link which details what is going on with the computerisation of the Indian courts.

http://legalbanter.wordpress.com/2007/10/08/e-governance-in-indian-courts/ 

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Understanding Issues Of Jurisdiction In A 498A Case

Here is a pdf that explains the rules governing jurisdiction of cognizable offenses (498A cases).

Understanding Issues Of Jurisdiction In A 498A Case

Here are a couple of the judgments of Justice Dhingra where I pulled all this information from.

  1. Delhi HC: 498A Jurisdiction Explained
  2. Justice Dhingra Settles Jurisdiction In NRI 498A Case- Jan 2008

I couldn’t find the Satvinder Kaur Judgment, but here is another judgment on jurisdiction by the Supreme Court, the Ajith Abraham case (Chennai).

SC Judgment On Jurisdiction-Ajith Abraham (Chennai)

Finally, NRIs, you are governed by Section 188 of the IPC and to understand it, please read this judgment by Justice Dhingra:

  1. Justice Dhingra Denies A 498A FIR Quash Petition Citing Section 188
  2. Justice Dhingra Settles Jurisdiction In NRI 498A Case- Jan 2008

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Understanding The Law Of Arrest

Almost everything you need to know about the Laws On Arrest is given in this document.

Understanding The Law Of Arrest

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Types Of Parliamentary Questions

1.QUESTIONS:-

A Question is one of the devices available to a Member of Parliament to seek information on matter of public importance concerning subjects detail with by the Ministries and Departments and to force on the omissions and commissions of the government.

2.TYPES OF QUESTIONS:-

There are three type of Question:-

(a) STARRED QUESTIONS Started questions are required to be answered orally by the concerned Minister. These Questions are distinguished by an asterisk (*) mark. Members of Parliament have the option to raise the Supplementary Questions based on the replies to the started Questions. These Questions for which a notice period of minimum 10 days and maximum 21 days has been prescribed are asked during the question Hour on the fixed days allotted to the Ministry/Department. Started Questions from Lok Sabha are printed on green paper and those of Rajya Sabha questions on pink paper.

(b) UNSTARTED QUESTION: Un-started Questions do not carry asterisk (*) mark and only a written answer is given. The notice period is the same as that for the started Questions and these are also asked on the allotted days of the Department/Ministry during Question Hour. Lok Sabha Unstated Questions are printed during Question hour. Lok Sabha Unstated Questions are printed on white paper and those of Rajya Sabha on yellow paper. The replies to the Unstated Questions are laid on the Table of the House.

(c) SHORT NOTICE QUESTIONS: Short Notice Questions relate to a matter of urgent public importance and can be asked with a notice shorter than 10 days. These Questions are answered orally by the Minister concerned and Supplementary Questions can also be asked. However, a Short Notice Question can be asked only with the concurrence of the Minister. The Short Notice questions from Lok Sabha are printed on pinky white paper and those of Rajya Sabha on white paper.

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Bombay HC: Detention In Custody For Interrogation Purposes Unlawful

This is another judgment from the website of the APCID.

This case, Ashak Hussain Allah Detha Alias Siddique Vs Assistant Collector of Customs Private, Bombay is an important judgment that shows that the police cannot hold a person in detention for the purpose of interrogation.

Here is an excerpt from this very important judgment from the Bombay HC fron 1989.

“8. The Investigating Officers may lawfully detain a suspect for an offence. But detention in custody for interrogation is not authorised by law. The Investigating Officers may detain for an offence only. In an English Case where the Customs Officers detained a person “for helping with their inquiries”, it was held that there was no authority in the Customs Officers to detain a person except for an offence (R. v. Lemsatef – 1976 Indlaw CA 62.
“If the idea is getting around amongst either customs and excise officers or police officers that they can arrest or detain people, as the case may be, for this particular purpose, the sooner they disabuse themselves of that idea the better”

The principle that emerges is this : Any restraint on a person’s liberty except for an offence is illegal. There is no authority in the Investigating Officers to detain a person for the purpose of interrogation or helping them in the enquiry. On this principle it follows that”

Here is the judgment (pdf): Detention In Custody For Interrogation Purposes Unlawful

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Judgments On NRI Cases By The Courts In India

I thank Ms Girija Vyas for this document. I extracted this information from the MOIA document she sponsored in a misdirected zeal to paint all NRIs men with marital issues as crooks, liars and cheats.

I thought, I’d perform a public service by sparing the public from the vitriol and the smug faces of netas, contained in this otherwise excellent document, by extracting and presenting the excellent parts.

Here is the document: Judgments On NRI Cases By The Courts In India(pdf)

Read this judgment of Justice Shiv Narain Dhingra: Justice Dhingra Quashes An NRI 498A Case

Read this judgment as well:   Delhi HC: Beniwal Vs Beniwal 1989

Also read this news. The Supreme Court is looking into the issue of women who live abroad, fight their divorce/custody battles abroad, lose their cases, land in India and file 498A or whatever against their husbands.

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Some Interesting Stats On Arrests Of Women

In 1930, the British govt arrested 17,000 women for their involvement in the Dandi Yatra (Salt March). During 1937 to 1947 (10 Years), they arrested 5,000 women involved in the freedom struggle. From 2004 to 2006, the govt of India arrested 90,000 women of all ages under 498A. On the average, 27,000 women per year are being arrested under this flawed law. These are stats from the NCRB.

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Disclaimer:

The family of the writer was tortured by the Indian Police in an attempt to extort over a $100,000 by holding them in custody for over a week. The police, in cahoots with the magistrate and the PP, did this due to the ridiculous allegations made in a 498A case by his embittered ex-wife. She filed the case years after he and his family had last seen her. Thousands of 498A cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.

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