“Repeated hearings but no hearing”

Farzana Yasmeen, Meeran Haider’s sister, said that while the family is deeply troubled, her brother continues to be content that he raised his voice for what is right.

“This is the fifth year that he is in jail. Meeran always raised his voice for rights and justice, but did not raise his voice for anything that should warrant his imprisonment. The family is in pain, because he is in jail. But whenever I meet him he says he is happy to have raised his voice for what is right. When I attend such gatherings and then tell him that many people had come, he tells me that this gives him happiness and joy,” his sister Farzana said.Haider, along with Khalid and others have been booked under the Unlawful Activities Prevention Act (UAPA) and various provisions of the IPC (Indian Penal Code) in connection with the Delhi riots larger conspiracy case.

Haider, who was arrested in February 2020, withdrew his bail application last week from the Delhi high court where it had been pending and said that he would now move the trial court.The issue of years of incarceration without trial or bail was also highlighted by Athar Khan’s mother, Noor Jehan. Khan has also been booked under UAPA and was arrested in July 2020.

“Our case came up in court 62 times but still there has not been a hearing. Whenever the Supreme Court says that ‘bail is the rule and jail is the exception’, we feel a sense of hope that our matter will now move. But nothing changes and we keep waiting for when he will get bail. He raised his voice for what is right, for all of us. And today he is in jail for four years,” she said.

Along with the families of other political prisoners – Gulfisha Fatima, Meeran Haider, Khalid Saifi, Athar Khan, Umar Khalid – all of whom participated in the CAA-NRC protests and were arrested in 2020 following the riots in Delhi, were also present at a public meeting and demanded their immediate release. The meeting was organised by the Association for Protection of Civil Rights (ACPR) in New Delhi.

“It is said that any democratic society has three pillars – the executive, the legislature and the judiciary. And these should be separate. But if the Chief Justice of India invites the prime minister to his house (for a puja) and that is made viral, do I have any hope of getting justice?” said Khalid’s father S.Q.R Ilyas while speaking at the same public meeting. “It is time to raise questions not just against the judiciary and the government but also against the opposition,” he said. Ilyas also questioned why action is not taken against police officials when a person is found innocent.

The meeting was also attended by Congress leader Digvijaya Singh, Communist Party of India (Marxist-Leninist) Liberation General Secretary Dipankar Bhattacharya, Supreme Court advocate Shahrukh Alam, Hartosh Singh Bal (Executive Editor at The Caravan), comedy and satire artists Kunal Kamra and Sanjay Rajoura, and actor Swara Bhasker.

The selective application of the Supreme Court’s recent pronouncements stressing on the principle of granting bail was further stressed and highlighted by Nargis Saifi, Khalid Saifi’s wife who said that her children are waiting for their father as they grow up.

“He raised his voice for his rights, so he was jailed. He has not been given bail even after four-and-a-half years, while those charged for rape, corruption, are being let out on bail,” she said.

Saifi also demanded greater solidarity in support of her husband and others and asked, “Where are the tens of thousands from the CAA-NRC protests? Is this how we show support for our comrades still imprisoned?”

Discrimination in protests: some seen as national catharsis, others as “terror conspiracy”

Advocate Shahrukh Alam, drawing references to the Supreme Court’s remarks during the ongoing R.G.Kar rape and murder case, where it referred to protests as a form of national catharsis said that a definition needs to be drawn about what kind of a protest constitutes national catharsis and when it is regarded as a terror conspiracy. “Who must define this? State cannot as it is a party. The court needs to do this. Why is the police using UAPA on protestors?” she said.

“Does a protest need to have the endorsement of the majority for it to be legitimate for the court to feel this is something right? This problem of discrimination and oppression of Muslims is systemic but also individual and affects people personally,” she said.

Alam meanwhile also referred to Rahul Gandhi’s recent statement in the US about religious freedom in India by citing the example of Sikhs, and questioned why “purported political allies shy away from naming Muslims.”

“RSS doesn’t believe in democracy or the Constitution”

Congress leader Digvijaya Singh who was also present at the event said that he comes from a region which is referred to as the RSS’ “nursery.”

“I come from an area which is called a nursery of the RSS. They neither believe in democracy or the constitution. Anyone who speaks for Muslims is anti national. And this ideology  is a big threat to us and will remain so. The way this ideology has infiltrated every sector is a big danger to the constitution and to our democracy,” said Singh.

“The RSS is not a registered body, it does not have any membership or account. If anyone is caught they say we don’t have membership. Similarly when Nathuram Godse was caught they said we don’t have any members. They have infiltrated every sector whether it is bureaucracy or judiciary,” he added.

Singh, who is a former chief minister of Madhya Pradesh, said that riots cannot take place without the knowledge of the police and the administration, and claimed that during his tenure as Madhya Pradesh chief minister no major riots took place in the state.

“Now we have to unite against the bulldozer justice of this double engine government. This bulldozer is not just being run on their houses but on their families as well. The BJP and Modi are using bulldozers on the constitution as a political weapon.”

Related:

Umar Khalid – The Inquliabi

Jailed Without Trial: Umar Khalid’s 4-Year Ordeal Ignites Solidarity

The post Kin of incarcerated anti-CAA activists question Selective use of ‘Bail is the Rule’ principle appeared first on SabrangIndia.

Significantly, Justice Subramonium Prasad stated that the compensation amount should be recovered from the salaries of sub-inspectors Rajeev Gautam and Shamim Khan, the two police officers who put the petitioner in the lock-up. The Court observed that police officers “cannot be law unto themselves and a meaningful message” must be sent out to the authorities.

This Court also commented stating that it is troubled at the way the citizens are being treated by the Police authorities who behave as if they are above the law, the Court said.

“The time spent in the lock-up by the petitioner, even for a short while, cannot absolve the police officers who have deprived the petitioners of his liberty without following the due procedure established by law… This Court is of the opinion that a meaningful message must be sent to the authorities that police officers cannot be law unto themselves,” Justice Prasad underscored.

The Court was dealing with a petition filed by a man named Pankaj Kumar Sharma who was illegally detained at Delhi’s Badarpur Police Station on September 2, 2022, over a year ago.

According to the facts of the case, a woman was stabbed by a vegetable seller on September 22 at around 9 pm. The woman came to the petitioner’s shop and said that she had been injured. The petitioner called the police. However, when the police came to the spot, they picked up the petitioner and placed him in the lock-up with even registering a first information report (FIR).

During the course of the investigation, the Court was told that an inquiry was held against the officers and that a punishment of censure has been imposed on them. Justice Prasad considered the case and observed that even though it was for a short period of time, petitioner was deprived of his personal liberty, a right protected under Article 21 of the Constitution of India.

“This Court is deeply troubled by the fact that the petitioner was not even arrested. He was simply picked up from the spot, brought to the police station and placed inside the lock-up for no rhyme or reason. The highhanded way in which the Police authorities have acted throwing to winds the constitutional and fundamental rights of a citizen, is appalling. Court is troubled at the way the citizens are being treated by the Police authorities who behave as if they are above the law. A punishment of censure alone is not sufficient in the facts and circumstances of this case.” the Court further observed said. (Para 10)

Hence, clearly, the Court was also of the view that in this case, a punishment of censure is not enough because it is not likely to have any effect on the career of the police officers and is therefore is not a sufficient deterrent.

Reiterating the power of constitutional courts in protecting fundamental freedoms, the Court stated, “The said principle is now well established that in cases where there can be no dispute of facts, the constitutional courts have the power to award compensation in case a person has been deprived of his life and liberty W.P.(C) 3851/2023 Page 9 of 9 without following the procedure established by law. (Para 13)

“The time spent in the lock-up by the Petitioner, even for a short while, cannot absolve the police officers who have deprived the Petitioners of his liberty without following the due procedure established by law. A punishment of censure which is not likely to have any effect on the career of the police officers will not be a sufficient deterrent to the officer. The censure should be of such nature that other officers too must not emulate such actions in future… In the facts of this case, even though the illegal detention of the Petitioner was only for about half an hour, this Court is inclined to grant compensation of ₹50,000 to the petitioner, which shall be recovered from the salaries of respondents No.4 and 5 [Sub-Inspectors Rajeev Gautam and Shamim Khan],” the Court ordered. (Para 14)

The Delhi HC relied on the epic judgement of the Supreme Court (SC) in D K Basu v. State of West Bengal, 1997 (1) SCC 416, had directed the following requirements to be fulfilled in case of arrest.

Paragraph 35 of the said judgment (D.K. Basu) reads as under:-

“35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of W.P.(C) 3851/2023 Page 4 of 9 arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also W.P.(C) 3851/2023 Page 5 of 9 examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. “

Critically, the Delhi HC emphasises the SC’s observations in Para 44 in D K Basu (supra) also observed as under (Para 11):-

“44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

The Delhi HC judgement also relies on the Nilabati Behera case [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] in which heirs of a victim of custodial torture were granted compensation.

46. In Nilabati Behera case [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] , it was held: (SCC pp. 767-68, para 32) “

Adverting to the grant of relief to the heirs of a victim W.P.(C) 3851/2023 Page 7 of 9 of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party.

The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve „new tools‟ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law.

While concluding his first Hamlyn Lecture in 1949 under the title „Freedom under the Law‟ Lord Denning in his own style warned: „No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do.

But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age.

They must be replaced by new and up-to-date machinery, by declarations, injunctions and actions for negligence…. This is not the task of Parliament … the courts must do this. Of all the great tasks that lie ahead this is the greatest.

Properly exercised the new powers of the executive W.P.(C) 3851/2023 Page 8 of 9 lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country.‟ ”

Similarly, the present Delhi HC judgement, further relied on Nilabati Behera v. State of Orisa & Ors., 1993 (2) SCC 746, while dealing with the power of a constitutional court to award compensation rather than relegating such person to file a suit for recovery of damages, the Apex Court observed as under:- (Para 12 )

“22. The above discussion indicates the principle on which the court’s power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and others in that line have to be understood and Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 Cri LJ 144] distinguished therefrom.

We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son.”

Advocate Dhruv Gupta appeared for the Pankaj Kumar Sharma. Additional Standing Counsel Hetu Arora Sethi and Advocate Arjun Basra appeared for the State.

The entire judgement of the Delhi high court may be read here:

Related:

Jharkhand HC awards compensation for illegal detention, but not custodial death

HRDA demands justice for Baldev Murmu’s illegal detention

Bom HC awards compensation to victims of illegal detention

The post Police to pay: Delhi HC penalises two police officers (Rs 50k) for illegally detaining man for half an hour appeared first on SabrangIndia.

A Single-judge bench of the Jharkhand High Court presided by Justice Sanjay Kumar Dwivedi recently ordered that compensation be paid in a matter related to a case of alleged illegal detention. However, the court did not order any inquiry into allegations of custodial abuse, despite the fact that no First Information Report (FIR) was lodged against the victim.

In its judgment dated March 24, 2022, the court awarded compensation of Rs. 50,000/- only for illegal detention, not making any decision about custodial death while relying upon the inquiry report made by a three-member Committee.

The matter pertains to the alleged illegal detention and custodial torture of one Pradeep Kumar, and upon his death, his widow Jaswa Devi filed a Criminal WritPetitionseeking directions from the court to register an FIR relating to custodial death. She also prayed for compensation of Rs. 20 Lakhs.

Facts of the case

On March 13, 2017 at around 1:00 P.M, Pradeep Chaudhary along with some villagers went to KalluChok to play Holi. Someone from the crowd put Abir (Gulal) on one of the constables of Satgawan Police Station, as a result of which the constable became furious and called other police personnel from the Satgawan Police Station.

As the villagers saw the Chowkidar getting furious, they all ran away, but unfortunately Pradeep Chaudhary got caught by the Police and was badly beaten up. He was then taken to the Police Station and was allegedly detained illegallyfor almost 16 hours. He was allegedly beaten brutally  and tortured by the police, as a result of which he died.However, no case was registered against Chaudhary nor was he a suspect in any case.

Petitioner, Jaswa Devi, widow of Pradeep Chaudhary, registered an FIR regarding the death of deceased in the Koderma Police Station on March 15, 2022, which was recorded by Inspector cum Officer in charge of Koderma Police Station. The FIR was registered in presence of family members and well-wishers of the Petitioner. Consequently, a Criminal Writ Petition was filed in the High Court of Jharkhand on July 17, 2017 which was taken up for its first hearing on January 19, 2018.

State’s submissions

As submitted by the Learned Counsel representing the State, the deceased, Pradeep Chaudhary died in hospital and not under Police Custody. He further brought the Court’s attention to the Order of Deputy Commissioner, Koderma, which directed the Magistrate to hold an enquiry in the matter. He further referred to the joint enquiry report (three-member Committee report) filed after the Magistrate’s enquiry, in which it was proved that the deceased Pradeep Chaudhary was subjected to police torture, but shockingly it could not be proved, that he died because of police torture.

The Learned Counsel of the State also brought to the Court’s attention that a departmental enquiry has been initiated against one of the officers, as per which it was recommended that he be punished with a deduction of 5% from his pension for two years.

High Court Judgment

The Jharkhand High Court presided by Justice Sanjay Kumar Dwivedi on March 24, 2022 passed a Judgment in the Criminal Writ Petition Filed by JaswaDevi(Jaswa Devi V/s. State of Jharkhand &Ors.). The High Court observed that the deceased was wrongfully deprived of the right of personal liberty, guaranteed under Article 21 of Constitution of India, by the police officer for around 16 hours from March 13 to March 14, 2017 and also held that the death of the deceased was not proven in the committee report as custodial death.

The High Court in its Judgment dated March 24, 2022 awarded a compensation of Rs.50,000/- to the Petitioner which has to be paid in 4 weeks by the State of Jharkhand. The Court also said that the Petitioner by this Judgment is not precluded from pursuing the civil as well as criminal remedy, available to her in law in respect of wrongful confinement of the deceased.

The High Court Order may be read here:

Recent Custodial deaths

Among cases of recent custodial deaths is the shocking case of 22-year-old Altaf, in Uttar Pradesh’s Kasganjwho was found strangled in a police station toilet. Images of his dead body went viral and it was learnt that he had been detained in connection with the disappearance of a minor girl from a Hindu family. Following the incident, five policemen were suspended from the Kotwali Police Station in Kasganj. They had claimed that Altaf had hangedhimself with a drawstring from the hood of his jacket, using a water pipe in a toilet, however the pipe as was evident in the now viral images, was just a couple of feet from the ground.

In June last year, both P. Jeyaraj (58) and his son Bennix (38), were arrested for allegedly violating Covid-19 lockdown rules by keeping their store open past the allowed hours in Tamil Nadu. Two days later, they died due to alleged police brutality. The growing outrage across the country over their deaths put a massive spotlight on custodial deaths, reviving demands for police accountability.

In September, the Allahabad High Court transferred the probe of the custodial death of a 24-year-old man Krishna Yadav in Jaunpur to the Central Bureau of Investigation (CBI). A Special Operations Group team of the police and the Station House Officer (SHO) of Baksa had in February gone to Yadav’s house and allegedly taken him away to the police station for detention in relation to a loot case. While the family accused the police of murder, the police said that Yadav was apprehended while he was driving a motorcycle, and he fell and got injured. He was sent to hospital for treatment but was declared dead.

Shahbuddin, Ziyauddin’s brother, alleged that on March 24 the latter left home to go to a relative’s place but, on the way, members of a police team picked him up and tortured him, causing his death. Ziyauddin was “beaten to death,” alleged Shahbuddin in his police complaint, accusing the police team of murder. Police had said that during questioning, Ziyauddin complained of feeling unwell and was admitted to the district hospital where he died.

“In the last two decades, 1,888 custodial deaths have been reported across India, with 893 cases registered against police personnel a mere 358 police officers and justice officials were formally accused. Just 26 policemen were convicted in this period, official records show,” reported Deutsche Welleon November 11, 2021.

In August 2021, the Chief Justice of India, N.V. Ramana, while expressing concerns about human rights violations in police stations which are leading to custodial deaths said, “Lack of effective legal representation at the police stations is a huge detriment to arrested or detained persons.” 

Custodial Death and Laws

Under Indian Penal Code there are indirect provisions for Custodial torture and wrongful detentions which are not sufficient to end the police brutality and the abuse of power attempted by them in numerous instances.

Constitution of India

Article 21 – Protection of life and personal liberty

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Provision under Indian Penal Code

For custodial torture

Section 166: “Public servant disobeying law, with intent to cause injury to any person.—Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.”

For wrongful detention

Section 340: “Wrongful confinement.—Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person.”

Section 342: “Punishment for wrongful confinement.—Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”

Provisions under Code of Criminal Procedure

Section 76: “Person arrested to be brought before Court without delay.—The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person: Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court”

International Conventions

Even though Indian laws are not upto the mark with respect to custodial torture and wrongful detention, International UN Conventions are made to control these kinds of illegal activities by Public Servants who are meant to protect the public from any wrongful activities taking place.

International Convention for the Protection of All Persons from Enforced Disappearance – adopted on December 18, 1992.

Article 1

1. No one shall be subjected to enforced disappearance.

2. 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.

Article 2

For the purposes of this Convention, “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

International Covenant on Civil and Political Rights – adopted on March 23, 1976

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable tine or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Adopted on December 10, 1984.

Article 1

1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. 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 of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Related:

Preventive Detention: Two judgements, two contrasting views, one judge
Why has India still not ratified UN Convention against torture?
Protecting and Promoting Minority Rights in India’s Criminal Justice System: Need for a Special Law

The post Jharkhand HC awards compensation for illegal detention, but not custodial death appeared first on SabrangIndia.

The Aurangabad bench of Bombay High Court granted compensation to two petitioners as they were illegally detained by the police for 6 days. The court relied on precedents set by the apex court in cases of illegal detention and asked the state government to fasten responsibility in such cases. The two judge bench comprising Justices TV Nalawade and MG Sewlikar, while hearing the writ petition, also called out the Executive Magistrate for passing an order without application of mind and devoid of jurisdiction while also pulling up the Police for having malafide intention in keeping the petitioners in custody.

The petition was filed seeking compensation of Rs. 5 lakhs for detaining the petitioners illegally. An FIR was filed against them in January 2013 at Beed Rural police station under charges of causing hurt, intention to provoke breach of peace and criminal intimidation with common intention. They were granted bail by Judicial Magistrate First Class but they were immediately taken in custody and escorted to Executive Magistrate under section 107 of CrPC which directed them to give interim bond with two solvent sureties of Rs.25,000/- each. When they requested the Magistrate to permit them to give cash security in place of surety bond as the solvency certificate is not issued immediately, such time was granted to them and the court adjourned the matter. But the petitioners contended that they were kept in jail illegally for 6 days.

The court held that even when bailable offence was registered, both the Petitioners were arrested and they were produced before the Magistrate when they could have been released on bail in the police station.

The court observed that the grounds given in Section 107 of the Code of Criminal Procedure are not that serious and they do not show that there is urgency and they need to be arrested first. The petitioners were arrested without show cause notice being issued to them under section 111 of CrPC. Thus, the court held arrest before issuing show cause notice under Section 111 of the Code of Criminal Procedure when chapter proceeding is to be filed under Section 107 of the Code of Criminal Procedure is not permissible and it is illegal.

The court concluded that the order of the Executive Magistrate asking the present Petitioners to execute interim bond of aforesaid nature is illegal. The bond was involving onerous condition, two sureties having solvency certificate of Rs.25,000/- each for each opponent. The court, being apprised of the facts and circumstances deduced that “there were malafides and intention of the police was to see that the Petitioners are arrested and they are kept behind bars for few days.” The court also held that the Executive Magistrate acted as per such desire of police and he did not apply his mind.

The court held that the Executive Magistrate “passed illegal order and he had no jurisdiction to pass such order. Only because he was expected to discharge the duty given under Chapter VIII of the Code of Criminal Procedure, he may not be directed to pay compensation. However, the State needs to obtain the explanation and fix some kind of responsibility in such cases. It is serious mistake committed by the Executive Magistrate.”

The court then directed the State government to pay compensation of rs. 50,000 to each petitioner within 45 days. The court stated that only since the Executive Magistrate ordered the release of the petitioners on the same day and granted them time, the compensation was not awarded in higher amount.

The complete order may be read here.

Related:

Custodial death: Bom HC grants 5 lakhs compensation even before trial concludes

Delhi HC asked medical panel to re-examine two victims of the NE Delhi riots

Anti CAA protesters get bail: Mumbai

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“The detention of the detenue is not only illegal but the detaining authority has abused its powers in ordering his detention,” observed the court of Justice Muzaffar Hussain Attar. 

“Perusal of the grounds of detention, FIRs and also the record produced by the petitioner counsel would reveal that in none of the FIRs, the detenue has been named as accused,” the Court said while quashing his PSA detention order and subsequently ordered his release from preventive detention. The court observed that personal liberty of an individual is his birth right guaranteed by article 21 of constitution of India. “This Article prescribes that no person shall be deprived of his life and personal liberty without following the procedure established under law,” it added. 

“Though it is duty of the state and its authorities to maintain peace in the society but it is equally their responsibility to ensure that laws, which they invoke to achieve this purpose are followed and complied with honestly. It is also one of the fundamental duty of paramount importance for the courts of the law to ensure that laws of the land are implemented in right earnest”. 

The court held that nothing was brought to the notice of the court either in the grounds of detention or in reply affidavit that in the investigation of the FIRs involvement of detenu surfaced as accused.

Speaking to Sabrangindia, wife of journalist Khurram Pervez, Sameena Parvez expressed great relief at the order of the court. “The certified copy of the order will take a few days and then it will have to be reached to him in the Jammu jail where he has been detained,” she added. The family had received support from some of the wider human rights fraternity in this period.
 
The order came a day after the bench heard Khurram’ s counsel Pervez Imroz and Additional Advocate General, Muhammad Iqbal Dar, representing the state. 

On September 21, Khurram was booked under Public Safety Act after District Magistrate Srinagar issued an order in this regard. While Khurram was lodged in Kotbalwal jail in Jammu, his detention evoked widespread criticism and condemnation.  He had been detained from September 17, 2016 while on a visit to an international human rights conference.

On the 58^th day of his detention, the Jammu & Kashmir Civil Society Coalition had released a dossier on him and his contribution to human rights and journalism.

Pleading that Khurram was detained on false and frivolous charges, Advocate Imroz submitted that he is a renowned human rights activist and has been doing commendable work. 

“It is non application of the mind to book Khurram under PSA. The human rights activist is involved none of the FIRs cited by the government and his name finds mention nowhere,” Imroz had argued. 

“The grounds of detention are not only vague, irrelevant, ambiguous and non-existent but also lack material particulars regarding time and date which renders the same liable to be set aside,” Imroz submitted, adding the government has observed in breach the safeguards enshrined in Article 21 and 22(5) of the Constitution of India. 

He further pleaded that the “grounds of detention have not been read over or explained to the detainee in the language he understands neither was he given transplanted copies of the grounds of detention and dossier to enable him to file representation against the order of detention”. 

Advocate Dar, while defending the government, submitted that: “None of the rights of detainee has been infringed by placing him under preventive detention with the sole object to prevent him from acting in any manner prejudicial to the maintenance of public order”. 

The counsel pleaded that police framed a dossier on the basis of record showing the detainee is an “anti-social element known for his anti-national activities, which are prejudicial to the activities of the maintenance of public order”. 

“The detainee by his anti-social and anti-national activities has achieved top position in separatist camps under a hidden cover of being human rights activist. He has been deeply involved in the ongoing unrest in Kashmir by instigating and motivating the elements to resort to the activities prejudicial to the security of the state/maintenance of public order,” Dar pleaded. 

“The detainee has extensive history of affiliation with separatist organizations who advocate the session of JK State from Union of India and for achieving the goal the detainee has been found resorting to unlawful activities since long,” he added 
Khurram’s detention had evoked criticism at international level. Amnesty International, Human Rights Watch, International Coalition against Enforced Disappearances, Asian Federation against Involuntary Disappearances and the International Commission of Jurists had called for immediate release of Khurram.
 

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Image credit: JKCCS
 
On the 56^th day of Khurram Pervez’s detention, November 9, the Jammu and Kashmir Coalition of Civil Society (JKCCS) released a ‘people’s dossier’ about Parvez to “once again draw attention to the unlawful detention” of the human rights activist, and “the ongoing violence against the people of Jammu and Kashmir.” Parvez is associated with JKCCS as Jammu and Kashmir Programme Coordinator.
 
The 27-page-dossier released talks about Parvez’s work worldwide including and in the context of the violence inflicted by the Indian army on the civilians and instability caused by the heavy militarisation in the state.

Ever since the killing of Hizbul Mujahideen terrorist Burhan Wani on July 8 this year, continued illegal detentions, arrests and violence apart from other forms of state repression have shattered the fragile peace in the state. Worst has been the impact of pellets in firings by the army, para-military and police, actions that have left a trail of permanently visually impaired youngsters and injured in the state.
 
It reads, “Jammu and Kashmir is the most militarised zones in the world where an estimated 7,00,000 Indian armed forces have been deployed. For the past 26 years, civilians have faced widespread and systematic attacks by Indian forces resulting in 70,000+ extra-judicial killings, 8000+ enforced disappearances, 7000+ unmarked and mass graves and numerous cases of torture and sexual violence. With Parvez at the forefront, JKCCS has extensively documented and litigated human rights violations by Indian state forces.” 
 
It calls detention of Parvez “typical of the Indian state’s consistent use of the Public Safety Act” to suppress the voices of those who talk about “India’s human rights abuses” and keep them “out of circulation”.
 
It is estimated that more than 9,000 people from the valley including political activists and minors have been jailed, and at least 500 are detailed under Public Safety Act during the ongoing curfew since Wani’s killing. Use of pellet guns have injured thousands of civilians in the state, including a large number of children.
 
Referring to these appalling numbers, the dossier read “Over the last three months, the fundamental rights of the people of Jammu and Kashmir have been severely curtailed through continuous curfews, restrictions on peaceful gatherings – marches, funeral processions and public prayers – and a blockade of telecommunication services. A popular news daily, Kashmir Reader has been banned, working journalists have been physically attacked by state forces, and their homes vandalised. State forces have killed more than 100 civilians and injured more than 15,000. 1000 civilians have had their eyes damaged due to the use of shot gun pellets on protestors."

JKCCS has demanded immediate release of Khurram, and total reinstatement of “his rights and freedoms”. The dossier cites international support for Khurram as a result of his diligent work in the human rights area. It reads, “Parvez’s arrest has drawn expressions of international solidarity, demands for immediate release, and strong condemnation of the Indian state, from the world community, including in an open letter signed by eminent scholars, thinkers and activists, such as Dr. Naom Chomsky, Dr. Judith Butler, and Arundhati Roy.” 
 
Several organisations have spoken up for Khurram and have extended their support to the human rights activist. The list in the dossier includes names like Amnesty International, Human Rights Watch, Lawyers Watch Canada, International Commission of Jurists, Asian Federation against Involuntary Disappearance, Frontline Defenders, as well as local, Indian and Pakistani human rights groups such as Kashmiri Pandit Sangharsh Samiti, Parveena Ahanger-led APDP, Peoples’ Union for Democratic Rights, Peoples’ Union for Civil Liberties, Coalition of Democratic Rights Organizations, Jamia Teachers’ Solidarity Association and Defence for Human Rights, Pakistan.

Releasing the Dossier, the JKCCS President, Advocate Parvez Imroz reportedly said, “Despite widespread global condemnation of illegal detention of Khurram Parvez, the Indian State has chosen violence over processes of justice and rule of law. The government has ignored the demand of five Special Rapporteurs Working Groups of the UN for the immediate release of Khurram Parvez. Today’s release of the dossier must serve to once again draw attention to the unlawful detention of Khurram Parvez and the ongoing violence against the people of Jammu and Kashmir.”
 
Malik’s arrest and Mirwaiz’s detention

A day after release of the dossier by JKCCS, in which the government has been criticised for its unending session of arrests, Yasin Malik was arrested while the Hurriyat leader Mirwaiz was put under house arrest.

Image credit: The Indian Express
 
This came a day before the scheduled ‘separatist march’ that was to take place on Friday in Srinagar. 
 
The Indian Express reported that the joint leadership of separatists, comprising Syed Ali Geelani, Mirwaiz and Malik, had also called upon people to march towards Jamia Masjid for a “freedom congregation” Friday. The three leaders were to address the people at the mosque.

However, police arrested Malik from his residence in Maisuma locality of Srinagar and shifted him to the central jail. Malik had been released last month after four months of imprisonment. Hurriyat Conference chairman Mirwaiz Umar Farooq at his residence in the capital.

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