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TWO YEARS DISTANCE LEARNING POST

GRADUATE PROGRAMME IN
HUMAN RIGHTS
FIELD REPORT
Submitted by:
Yogesh Chander Upreti
Ro No! ""#$HR$"%%&
INDIAN INSTITUTE O' HUMAN RIGHTS
A (&)(*)(+, PARYA-ARAN COMPLE., SA/ET
MAIDANGARHI MARG
NEW DELHI ((%%0%
INTRODUCTION
India is a longstanding multiparty, federal, parliamentary democracy with a
bicameral parliament and a population of approximately 1.1 billion.
Manmohan Singh was named prime minister following his Congress party-
led coalition's ictory in the !pril-May "##$ general elections in which %&'
million citi(ens participated. )he "##$ general elections, the arious "##$
state assembly elections, as well as the *ebruary state elections in
!runachal +radesh ,har-hand, .ihar and repoll in /ctober01oember, and
2aryana, were considered free and fair, despite scattered episodes of
iolence. 3hile the ciilian authorities generally maintained effectie control
of the security forces there were fre4uent instances in which elements of the
security forces acted independently.
)he goernment generally respected the rights of its citi(ens5 howeer,
numerous serious problems remained. 6oernment officials used special
antiterrorism legislation to 7ustify the excessieuse of force while combating
actie insurgencies in ,ammu and 8ashmir and seeral northeastern states.
Security force officials who committed human rights abuses generally
en7oyed de facto impunity, although there were reports of inestigations into
indiidual abuse cases as well as punishment of some perpetrators by the
court system. Corruption was endemic in the goernment and police forces,
and the goernment made little attempt to combat the problem, except for a
few instances highlighted by the media.)he lac- of firm accountability
permeated the goernment and security forces, creating an atmosphere in
which human rights iolations often went unpunished. !lthough the country
has numerous laws protecting human rights, enforcement was lax and
conictions were rare. Social acceptance of caste-based discrimination
remained omnipresent, and for many, alidated human rights iolations
against persons belonging to lower castes. )he additional following human
rights problems were reported9
:xtra 7udicial -illings and -illings of persons in custody
)orture and rape by police and security forces
+oor prison conditions, lengthy pretrial detention without charge, and
prolonged detention while undergoing trial
/ccasional limits on press freedom and freedom of moement
2arassment and arrest of human rights monitors
Corruption at all leels of goernment
;egal and societal discrimination against women
*orced prostitution, child prostitution, and female infanticide and feticide
)raffic-ing in women and children
<iscrimination against persons with disabilities
<iscrimination and iolence against indigenous people and scheduled
castes and tribes
=iolence based on caste or religion
:xploitation of indentured, bonded, and child labor.
Separatist guerrillas and terrorists in 8ashmir and the northeast committed
numerous serious abuses, including -illing armed forces personnel, police,
goernment officials, and ciilians. Insurgents also engaged in widespread
torture, rape, and other forms of iolence, including beheadings, -idnapping,
and extortion.
C1stod2
)he ery idea of a human being in custody sae for protection and nurturing
is an anathema to human existence. )he word custody implies guardianship
and protectie care. :en when applied to indicate arrest or incarceration, it
does not carry any sinister symptoms of iolence during custody. 1o ciili(ed
law postulates custodial cruelty > an inhuman trait that springs out of a
pererse desire to cause suffering when there is no possibility of any
retaliation5 a senseless exhibition of superiority and physical power oer the
one who is oerpowered or a collectie wrath of hypocritic thin-ing.
Dignit2 3 a 4irth right
.eing fortunate to hae been born on the human rights day it becomes iid,
not by memory but by instincts and embryonic experience, that the dar-est
formatie cell that nurtured with warmth and care had the most safe
comfortable, carefree and aboe all fearless liing > a custodial dignity that
precedes eery human born > a dignity infused in the human system that
must reolt against its non-recognition in any form by reflex action. )his
ethereal gift is (ealously guarded by all within and most wantonly
disregarded by most without.
Atta56s on h17an dignit2
)he attac- on human dignity can assume any form and manifest itself at any
leel. It is not merely the negatie priilege of a crude merciless display of
physical power by those who are cast in a role play of police functioning, but
also a more mentally lethal abuse of position when springing from high
pedestals of power in the form of uncalled for insinuations, un7ustified
accusations, un7ust remar-s, menacingly displayed potential harm, that can
stri-e terror, humiliation and a sense of helplessness that may last must
longer than a mere physical harm and which broo- no opposition.
)he area of human dignity is in one?s sacred self and that field is 4uite apart
and distinct from the field of considerations of rights and duties, power and
priileges, liberties and freedoms or rewards and punishments wherein the
laws operate. If a person commits any wrong, undoubtedly he should be
penali(ed or punished, but it is neer necessary to humiliate him and maul
his dignity as a human being.
The Uni8ersa Con5ern
)he @niersal <eclaration of 2uman Aights 1B$C, adopted and proclaimed
by the 6eneral !ssembly Aesolution "1&!DIIIE of 1#th <ecember, 1B$C
declared in the preamble that recognition of the inherent dignity and of the
e4ual and inalienable rights of all members of the human family is the
foundation of freedom, 7ustice and peace in the world. !rticle 1 proclaimed
that all human beings are born free and e4ual, in dignity and rights. In !rticle
F it proclaimed that eeryone has the right to life, liberty and security of
person, and in !rticle ' that no one shall be sub7ected to torture or to cruel,
inhuman or degrading treatment or punishment. )he presumption of
innocence of a person charged with a penal offence until proed guilty as
contained in !rticle 11DaE is meant to insulate him against any high-handed
treatment by the authorities dealing with him in the matter.
!rticle & of the International Coenant on ciil and +olitical Aights, 1B%%
adopted by the 6eneral !ssembly resolution dated 1%th <ecember, 1B%%
coenanted that no one shall be sub7ected to torture or to cruel, inhuman or
degrading treatment or punishment. @nder !rticle 1# of the said Coenant all
persons depried of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person and the accused
persons shall , sae in exceptional circumstances, be segregated from
conicted persons and shall be sub7ect to separate treatment appropriate to
their status as unconicted persons. )he minimum guarantees to which
eeryone charged with a criminal offence, is entitled in full e4uality
coenanted in !rt. 1$DFE, inter-alia, proide that no shall be compelled to
testify against himself or to confess guilt, which obiously will rule out u se of
force of any -ind on a person accused of any crime.
)he !merican Conention of 2uman Aights 1B%B which came into force in
,uly, 1B&C, declares under !rticle $D1E that eery person has the right to
hae his life respected and this right shall be protected by law. @nder !rticle
', the right of eery person to hae his physical, mental, and moral integrity
respected is recogni(ed and it is coenanted between the States who are
parties to this conention that no one shall be sub7ect to torture or to cruel,
inhuman, or degrading punishment or treatment and that all persons
depried of their liberty shall be treated with respect for the inherent dignity
of the human person. Aight to human treatment recogni(ed by !rticle '
cannot be suspended een in time of war, public danger, or other emergency
situation, as declared in !rticle "& of this Conention.
The Constit1tiona Con5ern
Aespect for human dignity is thus not a matter for any deep study in axiology
for an estimate of comparatie alues in eithical, social or an aesthetic
problem but a matter of ac-nowledging a simple truth already recogni(ed by
our national document when its opening chant exudes the cultural nobility of
a fraternity that assures the dignity of the indiidual. )he Constitution
recogni(es it to be fundamental in the goernance of the country that the
State shall direct its policy to secure conditions of freedom and dignity and
insulates against all forms of tyranny against mind and body and their
freedom to grow fearlessly. !ll custodial safeguards in the sonstitutional and
other laws are meant to protect human dignity and shun barbaric
approaches. )his is why no person accused of any offence shall be
compelled to be a witness against himself G!rt."#DFE, a person is entitled to
-now why he is a rrested for being detained in custody and to consult a legal
practitioner of his choice G!rt. ""D1E, there is prohibition of traffic in human
beings and forced labour D!rt. "FE, and, aboe all, that mother of all rights,
the right to protection of life and personal liberty D!rt. "1E. )he right to lie
with human dignity enshrined in !rt. "1 deries its life and breath from the
directie principles of State policy particularly clauses DeE and DfE of !rticle FB
and !rticles $1 and $" as held by the Supreme Court in .andhua Mu-ti
Morcha case. Gsee D1BC$EF SCC 1%1 HD1BB1E $ SCC $1&I.
Hand5199ing
2andcuffing of undertrial prisoners by escorts ta-ing them from the 7ail to
court and bac- in absence of there being a compulsie need to do so has
been disapproed by the Supreme Court in +rem Shan-er Shu-la?s case
D1BC#E F SCC '"%E wherein 8rishna Iyer and Chinnappa Aeddy, ,,.
:xpressed in no uncertain terms that to handcuff is to hoop harshly and to
punish humiliatingly and that it is necessarily implicit in !rticles 1$ and 1B
that when there is no compulsie need to fetter a person?s limbs, it is
sadistic, capricious, depotic and demorali(ing to humble a man by manacling
him. )he minimal freedom of moement, which een a detainee is entitled to
under !rt. 1B, cannot be cut down by application of handcuffs . In his
concurring 7udgement A.S.+atha- ,. obsered that a malicious use of the
power to restrain a person by handcuffing him or otherwise can bring Sec.
""# of the Indian +enal Code i nto play. )he ob7ect of imposing restraint on
the person of the prisoner while in continued custody is to preent his
escape and that ob7ect itself defines at once the bounds of the power to
-eep the person in custody.
G1arantee against tort1re and assa1t
)he arrest of a person suspected of crime does not warrant any physical
iolence on the person or his torture. .ut, when the captie exercises his
fundamental right to silence against self-incrimination D!rt. "#DFE during his
interrogation, the police often abuse their authority by use of criminal force to
extort information. )he tyrannical way of custodial interrogation that exposes
the suspect to the ris- of abuse of his person or dignity has prompted the
Supreme Court to ordain that interrogation should not be accompanied with
torture or use of Jthird degreeJ methods. D8artar Singh =. State of +un7ab,
D1BB$E F SCC '%BE. )he constitution as well as the statutory laws condemn
the conduct of any official in extorting a confession or information under
compulsion by using any third degree methods. ! confession to police officer
cannot be proed as against a person accused of any offence DSec. "'
:idence !ctE and confession caused by threats from a person in authority in
order to aoid any eil of a temporal nature would be irreleant in criminal
proceedings as, inter-alia, proided in Sec. "$ of the :idence !ct. Sections
FF# and FF1 of the Indian +enal Code proide for punishment to one who
oluntarily caused hurt or grieous hurt to extort the confession or any
information which may lead to detection of an offence or misconduct. )he
expression Jlife or personal libertyJ in !rticle "1 includes a guarantee against
torture and assault een by the State and its functionaries to a person who is
ta-en in custody and no soereign immunity can be pleaded against the
liability of the State arising due to such criminal use of force oer the captie
person. !s held by the Supreme Court in <.8..asu =. State of 3... D1BB&E 1
SCC $1% Jcustodial tortureJ is a na-ed iolation of human dignity and a
degradation which destroys, to a ery large extent human personality. It is a
calculated assault on human d ignity and wheneer human dignity is
wounded, ciili(ation ta-es a step bac-wards > flag of humanity must on
each such occasion fly half-mast. )he conicts, undertrials, detenues and
other persons in custody cannot be denied the precious right of the right to
lie with human dignity included in the expression Jlife or personal libertyJ,
except according to the procedure established by law by placing such
reasonable restrictions as are permitted by law. !ny form of torture or cruel,
inhuman or degrading treatment would fall within the inhibition of !rt. "1,
whether it occurs during inestigation, interrogation or otherwise. @sing any
form of torture for extracting any -ind of information would neither be right
nor 7ust nor fair and would therefore offend !rt. "1. ! crime-suspect can
indeed be sub7ected to a sustained and scientific interrogation in accordance
with law but he cannot be tortured or sub7ected to third-degree methods or
eliminated with a iew to elicit information, extract confession or deri e
-nowledge about his accomplices, weapons etc. JState terrorismJ is no
answer to combat terrorism.
H17an Rights Co77ission
)he 1ational 2uman Aights Commission in its !nnual Aeport of 1BB&-BC
records that during the year 1BB%-B&, 1CC deaths in +olice Custody were
reported and during the year 1BB&-BC, 1BF deaths in +olice Custody, and
&## deaths and C1B deaths respectiely in 7udicial custody were reported to
the Commission. In the context of addressing the issue of custodial torture,
the Commission has reiterated its earlier recommendations by soliciting
early action on the suggestion of the Indian ;aw Commission to the effect
that proposed Section 11$D.E be inserted in the Indian :idence !ct to
introduce a rebuttable presumption that in7uries sustained by a person in
police custody may be presumed to hae been caused by a +olice /fficer,
as well as the suggestion for amendment in Sec. 1B& of the Cr. +.C. to
obiate the necessity for goernmental sanction for the prosecution of a
police officer where a prima-fa cie case has been established in an in4uiry
conducted by a Sessions 7udge in the commission of a custodial offence, as
also the suggestion by the 1ational +olice Commission that there should be
a mandatory in4uiry by a Sessions ,udge in each case of custodial death,
rape or grieous hurt.
'IELD REPORT
! <elhi police assistant sub inspector shot and wounded a mini-passenger
7eep drier from his licensed reoler on ,uly B, "##$ at 1agloi, a 3est <elhi
colony.
The 4a56gro1nd o9 the in5ident
)he area where the incident too- place is thic-ly populated. It lies on the
western edge of <elhi bordering 2aryana, a neighboring state. 1agloi was
once a illage but now the illage is untraceable in the mesh of unauthori(ed
colonies that hae surrounded it stretching towards the border of 2aryana
leading to .ahadur 6arh, a town in the neighboring 2aryana state. ! large
number of people commute daily to wor- in <elhi from .ahdur 6arh and
neighboring towns of 2aryana. )hese people depend for transport on the
operation of about $' ehicles that include 7eeps Dwith a capacity of about 1'
passengersE, Aural )ransport =ehicles DA)=E and others. Some of these
ehicles hae 2aryana numbers other hae <elhi numbers. Most of them
hae no license to carry the passengers. .ut that does not matter for them. If
law is obsered in letter and spirit none of these ehicles should be allowed
to cross the border oer to <elhi. .ut they do. <ay in and day out for
allegedly a sum of As. "'## per month to the traffic police inspector in
charge of the area, popularly -nown as K/ D(onal officerE. It seems to be an
open secret5 as apparent and normal as morning sun.
The in5ident
+lace9 1ear 1angloi Chow-, a busy commercial 7unction of 3est <elhi
)ime9 B9F' am <rier of ,eep no. 2A "% 6 &FFB, Surender, aged "F tall and
healthy had 7ust come to 1agloi Chow- with his passengers from .ahadur
6arh who had alighted. 2e was waiting for passengers for bac-ward 7ourney.
2e was seated at deriers seat, his helper was calling for passengers.
!ssistant Sub Inspector D!SIE !nup Singh arried on the scene. 2e par-ed
his motor cycle in front of the 7eep, as-ed for his hafta of As. "'##, and
argued with the drier. !buses from the police personnel followed. ! scuffle
ensued, drier remaining on the seat. Suddenly a shot is heard and the
drier collapsed on the steering. +eople gathered and phoned the police
control room. It is later found that the !SI !nup shot the drier with his
serice weapon. )he bullet entered the body of the drier 7ust under the rib
cage. 2e is sent to the San7ay 6andhi 2ospital Mangol+uri5 !SI to the local
police station which is barely F## meters away from the spot of the incident.
The inspe5tor:s 8ersion
+@C; could not meet the !SI as he had been in 7udicial custody since the
day of the incident. 2oweer +@C; was gien access to *IA by the local
police station. !s per the *IA no. '&%0#$ dated B ,uly #$ registered with the
1agloi police station the following constitutes the ersion of !SI !nup Singh
Lwhen I reached 1agloi Chow- I saw 7eep with a 2aryana number 2A "% 6
&FFB whose drier was calling for passengers. It is an offence under the
motor ehicle act. 3hen I placed my motor cycle in front of the 7eep then the
drier of the 7eep started his 7eep to scare me away. I did not remoe my
motorcycle from in front of the 7eep. /n this he reersed the 7eep and began
driing the 7eep towards 1a7afgarh. /n this I followed him. )hen he hit me
due to which hoot and light of my motorcycle got pressed and I fell down
from the Motor Cycle. !fter this again he started driing the 7eep in reerse
direction. !t this I thought that by such driing of the 7eep some innocent
person might be -illed and for the purpose of stopping the 7eep I pulled out
my serice reoler and to stop the drier I hanged on to the 7eep and told
the drier to stop the 7eep otherwise someone might get -illed or I shall come
under the wheels of the 7eep. .ut he did not stop the 7eep and I -ept getting
dragged with the 7eep. 3ith the one hand I was hanging to the 7eep and in
the other I had the pistol. <uring this a bullet got shot from my reoler.?
Dri8er S1render:s 8ersion
3hen +@C; met the drier Surender in San7ay 6andhi 2ospital Mangol+uri
he still seemed under shoc- and concerned about his post release lielihood
status. 2e was recouping from the wound of the bullet that was dislodged
from his stomach. 2e said that he is a daily basis employed drier who gets
As. 1## from the owner of the 7eep in the eening. If there is a challan the
owner cuts the money for the day. *ather of two small -ids he was being
attended by his aged father who wor-s as a watchman at the house of the
congress M+ 1aeen ,indal at +an7abi .agh, <elhi.
Surender told +@C; that as he was sitting on his drier?s seat !SI !nup
Singh approached him and as-ed for the monthly of As "'##. !ccording to
surrender he told him that he should wait for a day or two as he was not able
to ply the ehicle for preceding three four days. !t this he abused him and
threatened to ta-e the ehicle under his custody. !t this he got scared as
ehicle going under police custody means challan DfineE ranging from As.
F### to As. 1'###. )he argument further ensured and the inspector
forcefully tried to snatch the -ey of the ehicle. !s he was still sitting on his
seat the inspector started beating him. In order to get rid of him he reersed
his 7eep D!SI?s motor cycle was standing in front of the 7eepE and this way
tried to extricate from the !SI. Suddenly he found himself shot and collapsed
on the wheels.
'INDINGS
1. +@C; interiewed a few shop-eepers who were witness to the incident.
Some refused to elaborate on the matter while others admitted that the
firing on the part of the !SI was unproo-ed. It gies credence to the
driers ersion that he started the 7eep in order to ta-e himself away from
the police personnel who was trying to snatch -eys of his ehicle.
Moreoer he could not hae drien the 7eep speedily in the reerse
direction as there is 7ostling traffic on the road especially during the pea-
hours of morning and eening.
". )he motor cycle of the !SI had a ery little damage. )he hoot of the
motor cycle got pressed. 2e also was not in7ured either. 2e hardly had a
bruise. It is apparent that his argument that he opened fire in self defence
holds little water.
F. )hus firing on the part of police officer was absolutely unwarranted. Since
it is alleged that all 7eep driers pay As. "'## per month to the (onal
officer Dthe concerned !SIE, the officer seemed to be defending his
monthly territory of graft of As. 1 la- 1" thousand by such high
handedness tactic and scare the other 7eep driers to fall in line for timely
payment of the conenience money.
$. )he incident also points to the confidence on the part of the police officer
that he could get away with the shooting citing the alibi of self defence.
)his is borne out from the fact that initially the 1agloi police had boo-ed
the drier Surender under section F#& of I+C that is, attempt to murder. It
was later changed after the ob7ections were raised and the station house
officer was sent to the lines by the police commissioner.
C/1C;@SI/1
:en after 'C years since the country first receied its independence, India
is still under the clutches of feudal lords, caste-based discrimination,
staration deaths and brutal custodial torture. Such a situation is the result of
the absolute failure of the rule of law that has gripped the country een until
today.
)he same 1& percent of the world population who the president called upon
to wor- for self-sustainability will li-ely hae no physical and psychological
energy left to surie on gien the existing system within the country, a
system that is draining life from its ordinary populace. 3hen feudal lords
decide that the <alits and bac-ward community in India should not be
allowed to participate in the democratic process Das reported from the illage
of .elwa in @ttar +radesh's =aranasi <istrictE, when human rights actiists
who help the lower castes and bac-ward community fight against their
seritude are faced with death threats and when the police and district
administration concede to this slae practice by their muteness, what
meaning does freedom and independence hae for the millions who lie in
conditions that would shame the slae tradersM
In the past year, horrifying cases of staration deaths hae been reported
from arious parts of India, particularly the states of /rissa and 3est .engal.
In the Murshidabad <istrict of 3est .engal, people die from staration while
in the central goernment granary the *ood Corp. of India is unable to find
sufficient space for its stoc-s and the country is once again declared food-
rich. In spite of repeated demands and calls for urgent interention by local,
regional and international human rights organisations, including the !2AC,
the state goernment as well as its central goernment counterpart hae
neither responded nor admitted that there are places in the country where
people die from acute staration.
)he president of India was eager to moot his idea of deeloping energy from
city waste. 2oweer, the president failed to recognise that the people, the
.almi-is and the other Jsafai karmacharisJ might not hae enough energy
left to bring the dirt from the city to the energy plants due to acute staration
and death from diseases caused from manual scaenging.
Meanwhile, cases of custodial death and acute forms of torture are reported
from India in an eer alarming rate, indicating that the rule of law in the
country has collapsed. 2oweer, such cases of custodial brutality are not
limited to members of the lower caste but to anyone who is not able to
ensure JpolicingJ by paying off so-called law enforcement officers. Mr.
Aa7endran of 8ollam <istrict in the state of 8erala lost his life due to
custodial torture after he was ta-en into custody at the 8ollam :ast +olice
Station for protesting at the gate of a priate hospital in 8ollam. Manishbhai
Motibhai =asaa from the illage of 8atis-ua in @chchhal )halu-a of Surat
<istrict in 6u7arat was shot point-blan- in the face by a State *orest <ept.
officer merely because the officer was drun-. )hese are two glaring incidents
among hundreds that are reported in India where the goernment authorities
hae failed to bring the perpetrators to 7ustice, demonstrating the absolute
failure of the rule of law in the country.
In cases were uniformed officers hae flouted the laws of the country, the
courts hae not come to the rescue of ictims either. )he case of 2asna
Mondal is one such example. Mondal, who was gang-raped by her fellow
illagers and tortured in police custody, is still waiting for her case to be tried
by the court. 2oweer, the court in 4uestion does not hae a presiding 7udge
since the former sering 7udge was transferred a year ago. Mondal's case
has been pending for the past nine years.
3hen all elements of the rule of law in a country hae collapsed and there is
a conscious aoidance to address these basic issues, no goernment can
continue to claim that it is discharging its constitutional duties nor can it
expect its citi(ens to be proud of being a citi(en of that country. :nergy, of
course, is a ital re4uirement for any nation5 but if the goernment itself lac-s
the energy and basic honesty to admit its defects and if the representaties
of the State continuously deny and further ignore the immediate needs of the
people, where life and security is made meaningless by these denials, what
meaning does freedom and independence hae to the ordinary citi(enM
3e expect that the goernment of India will be bold enough to accept its
pitfalls in goernance and will immediately improe its machinery to address
the basic minimum needs of its citi(ens by establishing the rule of law in the
country. )his will only be achieed through enhanced and torture-free
policing where uniformed officers are no longer considered to be criminals in
uniform but instead are responsible goernment officers who no longer en7oy
impunity. )he eradication of caste-based discrimination and staration
deaths are also paramount if this transformation is to occur. @ntil then, the
term independence will hae no meaning for ordinary Indian citi(ens.
SUGGESTIONS$RECOMMENDATIONS
1. )he police commissioner must order an in4uiry as to why unlicensed
ehicles enter the border without alid permit. 2e must fix the
responsibility for the same. )his exercise must be carried out not only on
this border point but on the other border points that lin- <elhi with the
neighboring states.
". )here should be a proper in4uiry into the allegation of bribe being gien
to traffic police personnel as systematic and apparent as monthly salary
from the goernment of India. If the endor on street with little -nowledge
of the world -nows about it one doubts if the high echelon of police
department are not aware of it.
)he fact that the police officer has been boo-ed under section F#& of I+C
ma-es it clear that the drier surrender is a ictim of the highhanded
criminality of the police personnel concerned. )he police department must
own up the act of his rash act. !s the ictim is a daily bread earner with a
family of four and aged parents, he must be paid a compensation by the
police department for the physical in7ury and mental agony conse4uent to
the incident.

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