Concerns over civil and
political rights in Assam[1]
Ratification of the Convention Against Torture and
Its Optional Protocol
Though torture is absolutely
prohibited now, throughout history, it has often been used as a method of
political re-education, interrogation, coercion and punishment. Deliberately
painful methods of execution for severe crimes were taken for granted as part
of justice until the development of Humanism in 17th century philosophy, and
"cruel and unusual punishment" came to be denounced in the English
Bill of Rights of 1689. The Age of Enlightenment in the western world further
developed the idea of universal human rights. The adoption of the Universal
Declaration of Human Rights in 1948 marks the recognition at least nominally of
a general ban of torture by all United Nations member states[2]. Now in the 21st
century the prohibition of torture has been recognized as a peremptory norm of
international law and a number of international, regional and domestic courts
have held the prohibition of cruel, inhuman or degrading treatment or
punishment to be customary international law. [3] Some other legally binding
international treatises, to which India is a state party, prohibits
torture which include Geneva Conventions[4], International Covenant on
Civil and Political Rights.[5]
Though the constitution of India does not
expressly prohibit torture, the constitutional jurisprudence prohibits torture
absolutely. According to the Supreme Court, any form of torture or cruel,
inhuman or degrading treatment fall within the ambit of Article 21[6] of the Constitution – whether
be it during interrogation, investigation or otherwise. A person does not shed
his fundamental right to life when he is arrested. Article 21 cannot be denied
to arrested persons or prisoners in custody (D K Basu v State of West Bengal[7]).
Despite such constitutional and
judicial denunciation of torture, it is routinely practiced by law enforcement
officials and security forces in India. However, there is no
accurate data on the use of torture in the country since the Government does
not have an unambiguous and strong policy against torture. The National Human
Rights Commission (NHRC) gathers figures on custodial deaths. Based on these figures,
the Asian Centre for Human Rights (ACHR) estimated that between 2002 and 2008,
over four people per day died while in police custody, with
"hundreds" of those deaths being due to police use of torture.[8]
Over the days, with the war on
terror, practice of torture is becoming more wide spread and there is no legal
instrument and mechanism to combat it in India. The CAT and its Optional Protocol
provide such mechanism at the international level. The convention was adopted
on 10 December, 1984 and came into force on 26 June, 1987. It has 78
signatories and 149 States Parties.[9] India signed the CAT on 14 October
1997, but is yet to ratify it. Advocacy and lobbying from all quarters
including NHRC has succeeded and India decided to ratify CAT. The
Prevention of Torture Bill, 2010 was introduced in the Lok Sabha on April 26,
2010 and was passed by that house on May 6, 2010 without referring it to the
Standing Committee. It was a misnomer to call it the Prevention Torture Bill.
It appeared to have been designed to promote torture. The definition of torture
(a) was inconsistent with the definition of torture in the Convention against
Torture, (b) it required the intention of the accused to be proved, (c) did not
include mental pain or suffering, and (d) did not include some acts which may
constitute torture. The Bill diluted existing laws by imposing a time limit of
six months and requiring prior government sanction for trying those accused of
torture. Existing laws do not have such requirements. There was no independent
authority to investigate complaints of torture, and no provision for granting
compensation to torture victims has been made.[10] When it was introduced in the Rajya Sabha
fortunately the house referred it to the Select Committee and which came up with
fairly sensible suggestions and submitted its report on 6 December, 2010.[11] It changed the definition of
torture to make it consistent with the definition given in the CAT. The
Committee suggested that the limitation period should be two years and not six
months as it was in the bill. It suggested dilution of requirement of prior
approval for prosecution. The Committee also talked of witness protection which
is very sensible. Overall, it can be said that the suggestions of the
Committee, if incorporated in the bill in toto, will make the law a pragmatic
and preventive tool, though there are much to be desired. For example, 1.
requirement of prior sanction for prosecution is a question mark on the wisdom
of the judiciary. Courts can deal appropriately with malicious, vexatious or
frivolous complaints; 2. persons other than victim and his/her relatives should
also be authorized by law to file complaint on his/her behalf without
authorization by him/her as provided in the Protection of Human Rights Act,
1993;[12] 3. an independent mechanism both at national and
state level should be established to torture cases and situations in detention
places.
Optional Protocol
Optional Protocol to the Convention
Against Torture and other Cruel, Inhuman or Degrading Treatment (Optional
Protocol) aims to create a global system of inspection of places of detention
as a way of preventing torture and ill-treatment. A Sub-Committee of the
Committee Against Torture, composed of 10 independent and impartial members
working in their individual capacity, will be empowered to carry out missions
to any State that ratifies the Optional Protocol. On the basis of its visits,
the Sub-Committee will write a confidential report for the State Party,
including practical recommendations. It will initiate a dialogue with the State
Party on measures to improve the conditions of persons in custody with the aim
of preventing torture.
The second important element of the
Protocol is the requirement to put in place national preventive mechanisms.
Article 3 of the Protocol requires ratifying States to “set up, designate or
maintain at the domestic level one or several visiting bodies for the
prevention of torture and other cruel, inhuman or degrading treatment or
punishment.”
The emphasis of the Protocol is on
prevention and being transparent to the world. Refusal to ratify it means
refusal to be transparent which belies India’s claims to democracy and the
primacy of the rule of law.
India should ratify both the CAT
and its Optional Protocol and also extend invitation to the Special Rapporteur
on torture and other cruel inhuman or degrading treatment or
punishment and provide facilities to interact freely with survivors of torture
and human rights defenders from North East.
Ratification of the
Convention on Enforced Disappearance
Enforced Disappearance is abduction
or kidnapping, carried out by State agents, or organized groups and individuals
who act with State support or tolerance, in which the victim
"disappears". Authorities neither accept responsibility for the dead,
nor account for the whereabouts of the victim. Legal recourse including
petitions of habeas corpus, remain ineffective. Enforced Disappearance is a
serious violation of fundamental human rights: the right to security and
dignity of person; the right not to be subjected to torture or other cruel,
inhuman or degrading treatment or punishment; the right to humane conditions of
detention; the right to a legal personality; as well as rights related to fair
trial and family life. Ultimately, it can violate the right to life, as victims
of enforced disappearance are often killed. Increasingly the international
community considers Enforced Involuntary Disappearance as a specific human
rights violation and a crime against humanity. This culminated in the
International Convention for the Protection of All Persons from Enforced
Disappearance. On February 6, 2007 the Convention was opened for signatures and
signed by 57 States. The convention clearly states: - No one shall be subjected
to Enforced Disappearance. - No exceptional circumstances whatsoever, whether a
state of war or a threat of war, internal political instability or any other
public emergency, may be invoked as a justification for Enforced Disappearance.[13]
India signed the International Convention
for Protection of All Persons from Enforced Disappearances in February 2007,
but has failed to ratify the convention. The crime of Enforced Involuntary
Disappearances is not codified as a distinct offence in Indian penal laws. Police
either have to make an entry in the general diary as a missing case or register
a case under provisions for kidnap or abduction.[14] These provision do not
contemplate a situation which is contemplated in the Convention.
Apart from Jammu and Kashmir, the cases of enforced
disappearances are routine in North East India, particularly in Manipur. The
infamous secret killings in Assam
during 1998–2001 also fall within the ambit of enforced disappearances. Barak
Human Rights Protection Committee (BHRPC) also documented cases of enforced
disappearances. BHRPC wrote to the Prime Minister of India on July 18, 2009 about
the disappearance of Paresh Das (55) and Dilip Das (45) of Nandan Kanan Tea
Garden area under Jirighat Police Station in Cachar district, Assam, on May 25,
2009 from Tamenlong in Manipur and the PMO in turn wrote to the Chief secretary
of Assam requesting him to take appropriate actions.[15]
Lack of substantive and procedural
laws as to with the problem is one of the factor that crippled the state in
terms of effective prevention and placing deterrence. Ratification of the
Convention along with incorporation of the provisions in domestic laws is the
need of the hour.
Other Challenges Relating to Civil and Political
Rights
There are so many other challenges in exercising and enjoying civil and
political rights. One of them is the challenge of policing while respecting
rights of the people adhering to the human rights norms.
Policing
The police, in a sense, is the most empowered group of human rights
defenders.[16]
But sadly enough, after 64 years of independence, the institution remains and
functions more or less all over the country as it was designed by the British
colonial rulers in the Police Act of 1861.
After decades of public pressure, lack of political will and continued poor
policing, a police reform process is finally underway in India. On 22 September 2006, the
Supreme Court delivered a historic judgment in Prakash Singh and Others vs.
Union of India and Others[17]
instructing central and state governments to comply with a set of seven
directives laying down practical mechanisms to kick-start reform.[18]
The directives were aimed to ensure functional autonomy of the police and
their accountability to the law. For ensuring functional autonomy the Supreme
Court directed 1. to establish a State Security Commission to i. ensure that
the state government does not exercise unwarranted influence or pressure on the
police; lay down broad policy guidelines aimed at promoting efficient,
effective, responsive and accountable policing, in accordance with the law;
give directions for the performance of the preventive tasks and service
oriented functions of the police; evaluate the performance of the state police
and prepare a report on police performance to be placed before the state
legislature.
2. The second directive was aimed at ensuring fair selection of Director
General of Police (DGP) and guarantee of his tenure.[19]
3. Security of tenure is similarly important for other police officers on
operational duties in the field. In order to help them withstand undue
political interference, have time to properly understand the needs of their
jurisdictions and do justice to their jobs, the Supreme Court provides for a
minimum tenure of two years for the following categories of officers: - Inspector General of Police (in
charge of a Zone)
- Deputy Inspector General of Police (in charge of
a Range)
- Superintendent of Police (in charge of a
District)
- Station House Officer (in charge of a Police
Station)[20]
4. To counter the prevailing practice of subjective appointments, transfers
and promotions, the Supreme Court provides for the creation of a Police
Establishment Board. In effect, the Board brings these crucial service related
matters largely under police control. Notably, a trend in international best
practice is that government has a role in appointing and managing senior police
leadership, but service related matters of other ranks remain internal matters.
Experience in India
shows that this statutory demarcation is absolutely required in order to
decrease corruption and undue patronage, given the prevailing illegitimate
political interference in decisions regarding police appointments, transfers
and promotions.[21]
5. the Supreme Court directed the Central Government to establish a National
Security Commission for Central Police Organisations and Central Cara-Military
Forces.
For ensuring accountability the Supreme Court directed the governments to
set up:
6. Police Complaints Authority[22]
and
7. To separate investigation and law and order function of police.[23]
The Government of Assam passed the Assam Police Act, 2007 purportedly to
comply with the Supreme Court directives. But in reality it does not comply
with the judgment fully. The Commonwealth Initiative for Human Rights (CHRI), a
regional human rights organization which was also one of the interveners in the
Prakash Shingh case, after an analysis of the Act says that the Act only
partially complies with the directives:
- State Security Commission was established but the composition is not as per the Supreme Court directive.[24] The Act has also weakened the mandate of the commission and has made its recommendation non-binding.
- The second directive regarding selection process of the DGP and guarantee of his tenure not complied.
- Directive regarding guarantee of tenure of the police officers on the field are also not complied. Only one year of tenure is guaranteed to the Superintendent of Police in charge of a district and Officer-in-Charge of a police station with vague grounds for premature removal.[25]
- Police Establishment Board was set up but the mandate was not adhered to.[26] DGP has also been given the power to transfer any officer up to the rank of Inspector “as deemed appropriate to meet any contingency", contrary to the directive.
- The Central Government did not establish National Security Commission in utter contempt of the judgment.
- The Assam Police Act, 2007 establishes Police Accountability Commission to enquire into public complaints supported by sworn statement against the police personnel for serious misconduct and perform such other functions[27]. But the Chairperson and members of the Commission are appointed directly by the government.[28] This can, at best, be called partial compliance.
- Half hearted attempts can also be seen regarding separation of investigation from law and order function of the police. Special Crime Investigation Unit has been set up in urban police stations but there is no specific section on separation of between law and order and crime investigation.
This deliberate attempt to bypass the Supreme Court directives prompted the
petitioner in the case former Assam director-general of police
Prakash Singh to describe the Assam Police Act, 2007, as a fraud on the people
of the state. He was speaking at a seminar
jointly organised by the commission and the Assam State Legal Services
Authority at the Assam
Administrative Staff
College, Guwahati.
According to him, the government had violated the letter and spirit of the apex
court guidelines by passing the act without conforming to these guidelines.[29]
The Act needs drastic amendment
to be brought in conformity with the Supreme Court guidelines and to be
compatible with International Human Rights Standards. More importantly the role
of the police needs to be redefined "taking into account the emerging
challenges of policing and security of the State, the imperatives of good
governance, and respect for human rights".[30]
Implementation of the Laws
Another huge challenge to the
civil and political rights is the no-adherence and non-implementation of laws
and other instruments that are meant to protect such rights. The Supreme Court
guidelines in DK Basu, and NHRPC guidelines regarding arrest, custodial deaths
have the potential to drastically reduce the number of torture and
disappearance cases if implemented properly. The DK Basu guidelines are only
implemented in papers. In rural police stations the guidelines are not even
hung in a language eligible to the public at a conspicuous place.
BHRPC has documented many cases of
fake encounters and custodial deaths where no magisterial inquiry was conducted
in contravention of the statutory mandate of section 176, of the Code of
Criminal Procedure, 1973[31].
In other two cases where the executive magistrates conducted the inquiry the
accused police personnel have been found guilty of murder. [32]
The reports are dated 28 March 2007 and 9 April 2008 but till the date neither
prosecution has been started nor has any compensation been provided to the kins
of the deceased. Apart from legal immunity provided by security legislations
such as the Armed Forces (Special Power) Act, 1958, the Assam Disturbed Areas
Act, 1955 there is a regime of de facto impunity guaranteed to the violators
which responsible for the increase of the incidents of torture, custodial
deaths and other extrajudicial killings.
Anomalies in the Legal Regime
Such gap between good laws on papers and their implementation on the ground
may have been facilitated by the mindset that has been created among the law
enforcement officials and security forces by the blanket power that has been
given them to carry out their operations, once an area is declared
disturbed under the AFSPA and ADAA. Even a non-commissioned officer in case
AFSPA and a Havildar in case ADAA is granted the right to torture and to shoot
to kill based on mere suspicion that it is necessary to do so in order to
"maintain the public order" with full guarantee that he will never be
required to answer in a court of law. If they are exempted from answering in a
regular court of law, one may wonder, what the use of a magisterial inquiry is
whether by judicial magistrate or executive magistrate.
Repeal Draconian Laws
Passing of the Prevention of Torture Bill, enactment of laws incorporating
provisions of the Convention on Enforced Disappearance, carrying out the police
reform as per the Supreme Court directives, ratification of CAT and its
Optional Protocol and ratification of the Convention on Enforced Disappearance
envisage a sea change in the human rights regime in the country. As a logical
corollary to these steps repeal of the AFSPA, ADAA, repeal or amendment to the
National Security Act, 1980, the Assam Preventive Detention Act, 1980 and other
such laws must be carried out to bring the entire human rights regime in India
in conformity with the international human rights standards.
Waliullah Ahmed Laskar
Barak Human Rights Protection Committee (BHRPC)
Silchar, Assam
[1]
This is a little modified version of the presentation made in the North East
Consultation for Universal Periodic
Review of India at the UN Human Rights Council in 2012 held at NEDFi House
Dispur, Guwahati on 23 September, 2011.
[2]
Article 5 states, "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment."
[3] The United Nations Human Rights Council
Resolution 8/8 on Torture and other cruel, inhuman or degrading treatment or
punishment.
[4]
The four Geneva Conventions provide protection for people who fall into enemy
hands.
The third (GCIII) and
fourth (GCIV) Geneva Conventions are the two most relevant for the treatment of
the victims of conflicts. Both treaties state in Article 3, in similar wording,
that in a non-international armed conflict, "Persons taking no active part
in the hostilities, including members of armed forces who have laid down their
arms... shall in all circumstances be treated humanely." The treaty also
states that there must not be any "violence to life and person, in
particular murder of all kinds, mutilation, cruel treatment and torture"
or "outrages upon personal dignity, in particular humiliating and
degrading treatment".
GCIV covers most civilians
in an international armed conflict, and says they are usually "Protected
Persons" (see exemptions section immediately after this for those who are
not). Under Article 32, protected persons have the right to protection from
"murder, torture, corporal punishments, mutilation and medical or
scientific experiments...but also to any other measures of brutality whether
applied by non-combatant or military agents".
GCIII covers the treatment
of prisoners of war (POWs) in an international armed conflict. In particular,
Article 17 says that "No physical or mental torture, nor any other form of
coercion, may be inflicted on prisoners of war to secure from them information
of any kind whatever. Prisoners of war who refuse to answer may not be
threatened, insulted or exposed to unpleasant or disadvantageous treatment of
any kind." POW status under GCIII has far fewer exemptions than
"Protected Person" status under GCIV. Captured enemy combatants in an
international armed conflict automatically have the protection of GCIII and are
POWs under GCIII unless they are determined by a competent tribunal to not be a
POW (GCIII Article 5).
[5]
Article 7: "No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation."
[6]
Article 21 of the Constitution of India provides that “[n]o person shall be
deprived of his life and liberty except according to procedure established by
law”. The right to life in Article 21 of the Constitution of India does not
mean mere survival or existence. It encompasses the right to live with dignity.
Torture is inflicted with the aim of degrading a person and involves the
violation of dignity. It therefore falls within the ambit of Article 21.
Further safeguards are
provided under other articles of the Constitution. Under Article 20(3), no
person accused of any offence can be compelled to be a witness against himself.
Article 22 (1) and (2) provide that a person who is arrested must be informed
as soon as may be of the grounds of his arrest. The person also has the right
to consult a lawyer of his choice. An arrested person must be produced before
the nearest magistrate within 24 hours of his arrest.
The Code of Criminal
Procedure (CrPC) also requires the production of accused before court within 24
hours. Section 54 of the CrPC gives the arrestee the right to be medically
examined. No statement of a witness recorded by a police officer, according to
Section 162 of the CrPC, can be used for any purpose other than contradicting
such a statement. Thus admission of guilt before a police officer is not
admissible in a court of law. Section 164 of the CrPC requires that the
magistrate must ensure that a confession by the accused is voluntary. Sections
330 and 331 of the Indian Penal Code (IPC) make it a penal offence to cause
hurt to a person in order to extract a confession. (Human Rights Feature (Voice
of the Asia Pacific Human Rights Network), Optional Protocol to CAT: India
can’t see the consensus accessed at http://www.hrdc.net/sahrdc/hrfeatures/HRF59.htm
on 22 September, 2011.
[7]
AIR 1997 SC 610, 1997 CriLJ 743, 1996 (4) Crimes 233 (SC), (1997) 2 GLR 1631,
JT 1997 (1) SC 1, RLW 1997 (1) SC 94, 1996 (9) SCALE 298, (1997) 1 SCC 416,
[1996] Supp 10 SCR 284
[8]
"Hundreds
die of torture in India every year - report". Reuters.
2008-06-25.
[9]
United Nations Treaty Collection, accessed at http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en
on 22 September, 2011.
[10]
PRS Legislative Research, Legislative Brief: The Prevention of Torture Bill,
2010
[11]
The Report is summarized as: 1. The Bill seeks to provide punishment for
torture committed by public servants or with their consent. It was introduced
to enable India
to ratify the UN Convention against Torture and Other Cruel, Inhuman, Degrading
Treatment or Punishment. The Committee added a number of amendments to the
Bill.
2. The Bill defines
“torture” as grievous hurt or danger to life, limb and health. It adds that an
act is torture only if it is done intentionally and with the purpose of getting
information or confession. The Committee recommended that the definition of
torture should be suitably expanded so as to make it consistent with the UN
Convention and include offences under the Indian Penal Code. Torture of women
and children should be given special consideration and attempt to torture
should also be made an offence. The definition of public servant should include
any government companies or institutions.
3. The Bill states that a
person shall be liable to a maximum of 10 years’ imprisonment and a fine. The
Committee suggested that a minimum punishment of three years be given to make
the law more of a deterrent. Also, the torturer should be fined a minimum of Rs
1 lakh.
4. The Committee was of the
opinion that the Bill should include guidelines for arriving at a fair
compensation to the victim or to his dependents on his death.
5. The Committee stated
that the limitation period for filing a complaint should be two years so that
complainants have sufficient time to initiate proceedings. It added that there
should be a specific provision in the Bill to ensure that complaints of
disadvantaged victims are registered according to the law.
6. The Bill states that
approval of the central or state government is required before courts can admit
complaints against a public servant. While there is a need to protect honest
officials, the Committee was of the view that this provision should not be used
to shield guilty officials and deny justice to victims. Therefore, it suggested
that if requested sanction is not given within three months, it would be deemed
to have been granted. Trial for every offence under this law should be
concluded within one year.
7. Since victims and
witnesses face threats from accused persons, the Committee recommended that
adequate provisions for the protection of victims and witnesses should be
included in the Bill. A medical examination of the victim should be mandatory
while he is lodged in jail. The report should be sent to the trial court.
8. The Committee observed
that this law should be in addition to and not in derogation of any other law
in force.
9. The Committee stated
that the appropriate government would need to frame Rules for implementation of
the Bill. Such a provision should be included in the Bill.
10. In view of the
importance of the Bill, the Committee recommended that the period of
notification be specified in the Bill itself. It suggested that the Bill should
be notified within 120th day of its enactment.
[12]
Section 12 reads "Functions of the
Commission: The Commission shall perform all or any of the following functions,
namely : (a) inquire, suo motu or on a petition presented to it by a victim or
any person on his behalf, into complaint of (i) violation of human rights or
abetment thereof or (ii) negligence in the prevention of such violation, by a
public servant; "
[13]
Office of the United Nations High Commissioner on Human Rights, International
Convention for the Protection of All Persons from Enforced Disappearance,
accessed at http://www2.ohchr.org/english/law/disappearance-convention.htm
on 22 September, 2011.
[14]
The sections of the Indian Penal Code that deal with kidnap and abduction are
:359. Kidnapping; 360. Kidnapping from India; 361. Kidnapping from lawful
guardianship; 362. Abduction 363. Punishment
for kidnapping; 363A. Kidnapping or maiming a minor for purposes of begging;
364. Kidnapping or abducting in order to murder; 364A. Kidnapping for ransom, etc.; 365. Kidnapping
or abducting with intent secretly and wrongfully to confine person; 366.
Kidnapping, abducting or inducing woman to compel her marriage, etc.; 366A.
Procreation of minor girl; 366B. Importation
of girl from foreign country; 367. Kidnapping or abducting in order to subject
person to grievous hurt, slavery, etc.; 368. Wrongfully
concealing or keeping in confinement, kidnapped or abducted person.
[15]
Vide PMO Letter No. vide No. 13/3/2009-PMP3/75979 dated August 6, 2009
[16]
The Preamble of the Assam Police Act, 2007 says that "it is expedient to
redefine the role of the police taking into account the emerging challenges of
policing and security of the State, the imperatives of good governance, and
respect for human rights"
[17]
Writ Petition (civil) 310 of 1996
[18]
Commonwealth Human Rights Initiative (CHRI),
Prakash Singh and Others vs. Union of India and Others: Analysis of the
Supreme Court Directives on Police Reforms
[19]
The Supreme court says, the Director General of Police of the State shall be
selected by the State Government from amongst the three senior-most officers of
the Department who have been empanelled for promotion to that rank by the Union
Public Service Commission on the basis of their length of service, very good
record and range of experience for heading the police force. And, once he has
been selected for the job, he should have a minimum tenure of at least two
years irrespective of his date of superannuation. The DGP may, however, be
relieved of his responsibilities by the State Government acting in consultation
with the State Security Commission consequent upon any action taken against him
under the All India Services (Discipline and Appeal) Rules or following his
conviction in a court of law in a criminal offence or in a case of corruption,
or if he is otherwise incapacitated from discharging his duties.”
[20]
The Supreme Court says, Police Officers on operational duties in the field like
the Inspector General of Police incharge Zone, Deputy Inspector General of
Police in-charge Range, Superintendent of Police in-charge district and Station
House Officer in-charge of a Police Station shall also have a prescribed
minimum tenure of two years unless it is found necessary to remove them
prematurely following disciplinary proceedings against them or their conviction
in a criminal offence or in a case of corruption or if the incumbent is
otherwise incapacitated from discharging his responsibilities. This would be
subject to promotion and retirement of the officer.”
[21]
CHRI:
[22]
There shall be a Police Complaints Authority at the district level to look into
complaints against police officers of and up to the rank of Deputy
Superintendent of Police. Similarly, there should be another Police Complaints
Authority at the State level to look into complaints against officers of the
rank of Superintendent of Police and above. The district level Authority may be
headed by a retired District Judge while the State level Authority may be
headed by a retired Judge of the High
Court/Supreme Court. The head of the State level
Complaints Authority shall be chosen by the State Government out of a panel of
names proposed by the Chief Justice; the head of the district level Complaints
Authority may also be chosen out of a panel of names proposed by the Chief
Justice or a Judge of the High Court nominated by him. These Authorities may be
assisted by three to five members depending upon the volume of complaints in
different States/districts, and they shall be selected by the State Government
from a panel prepared by the State Human Rights Commission/Lok Ayukta/State
Public Service Commission. The panel may include members from amongst retired
civil servants, police officers or officers from any other department, or from
the civil society. They would work whole time for the Authority and would have
to be suitably remunerated for the services rendered by them.
The Authority may also need
the services of regular staff to conduct field inquiries. For this purpose,
they may utilize the services of retired investigators from the CID,
Intelligence, Vigilance or any other organization. The State level Complaints Authority
would take cognizance of only allegations of serious misconduct by the police
personnel, which would include incidents involving death, grievous hurt or rape
in police custody. The district level Complaints Authority would, apart from
above cases, may also inquire into allegations of extortion, land/house
grabbing or any incident involving serious abuse of authority. The
recommendations of the Complaints Authority, both at the district and State
levels, for any action, departmental or criminal, against a delinquent police
officer shall be binding on the concerned authority.”
[23]
The investigating police shall be separated from the law and order police to
ensure speedier investigation, better expertise and improved rapport with the
people. It must, however, be ensured that there is full coordination between
the two wings. The separation, to start with, may be effected in towns/urban
areas which have a population of ten lakhs or more, and gradually extended to
smaller towns/urban areas also.”
[24]
Section 35 lays down the composition :(1) The State Security Commission shall
have as its members :-
(a) the Chief minister as
the Chairperson;
(b) a retired high Court
judge;
(c) the Chief Secretary;
(d) the Secretary in charge
of the Home Department as its Member
Secretary;
(e) the Director General of
Police of the State; and
(f) three non-political
persons (hereinafter referred to as Independent Members”) of high integrity,
expertise and competence in administration, law enforcement and security
related matters nominated by the State Government. Out of these one shall be
police officer superannuated in the rank not below Director general of Police,
another a retired civil service officer not below the rank of Commissioner and
Secretary to the State Government with experience in public administration, and
the third member will be from the fields of public service, legal profession or
social organization with at least fifteen years experience in the field.
Where as the Supreme Court
approved Model Police Act in addition to the Chair and the Secretary, provides
for the following composition:
(a) Leader of the
Opposition in the state assembly
(b) Retired High Court
Judge nominated by the Chief Justice of the High Court
(c) Home Secretary3
(d) Five non-political
persons of proven reputation for integrity and competence from the fields of
academia, law, public administration, media or non-government organisations to
be appointed on the recommendation of a Selection Panel composed of:
(i) A retired Chief Justice
of a High Court to be nominated by the Chief Justice of the High Court;
(ii) The Chairperson of the
State Human Rights Commission; in the absence of a state Commission, a person
nominated by the Chairperson of the National Human Rights Commission; and
(iii) The Chairperson of
the State Public Service Commission.
[25]
Sub-section 3 of section 12 provides: (3) Following officers on operational
duties in the field shall have a term of minimum one year --
(i) Superintendent of
Police in charge of District;
(ii) Officer in charge of
Police Station :
Provided that such officer
may be transferred from his post before the expiry of the minimum tenure of one
year consequent upon,--
(a) promotion to a higher
post; or
(b) conviction or charges
having been framed, by a court of law in a criminal offence; or
(c) punishment of
dismissal, removal, discharge or compulsory retirement from service or of
reduction to a lower rank, or imposition of any other penalty other than
censure awarded the relevant Acts and Rules; or
(d) suspension from service
in accordance with the provisions of the Rules; or
(e) incapacitation by
physical or mental illness or otherwise becoming unable to discharge his
functions and duties; or
(f) the need to fill up a
vacancy caused by promotion, transfer, or retirement; or
(g) on deputation with the
consent of the officer concerned; or
(h) inefficiency or
negligence or misdemeanor prima facie establishment after preliminary enquiry :
Provided that in the public
interest the State Government may transfer the Superintendent of Police of the
District as may be deemed appropriate to meet any contingency :
Provided further that in
the public interest the Director General of Police of the State may transfer
Officers in charge of Police Station of the rank of Inspector and District
Superintendent of Police may transfer the Officer in charge of Police Station
of the rank of Sub-Inspector of Police within the district as deemed
appropriate to meet any contingency.
[26]
See section 44 and 45 of the Assam Police Act, 2007
[27]
See section 70
[28]
See section 71
[29]
The Telegraph, Monday, May 31, 2011: Ex-DGP dubs act ‘fraud’ - Govt faces flak
over Assam Police Act, accessed at http://www.telegraphindia.com/1110530/jsp/northeast/story_14045156.jsp
on 22 September 2011.
[30]
Preamble to the Assam
Police Act, 2007
[31]
The Code of Criminal Procedure (Amendment) Act, 2005 [NO. 25 OF 2005]
incorporates sub-section (1-A) to the section 176 which reads
“(1-A) Where,—
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any
woman,
while such person or woman
is in the custody of the police or in any other custody authorised by the
Magistrate or the court, under this Code in addition to the inquiry or
investigation held by the police, an inquiry shall be held by the Judicial
Magistrate or the Metropolitan Magistrate, as the case may be, within whose
local jurisdiction the offence has been committed.”;
[32]
See Magisterial Inquiry Report vide NO. MISC. CASE. 1/2007/28 Dated Silchar,
the 9th April, 2008 and Memo No. KCL22/2007-08/242 dated Katigorah, 28 March
2007.
