NHRC issues draft recommendations on the issue of Detention

New Delhi October 12, 2008 Several key draft recommendations on the issue of Detention emerged out of the two-day international Workshop on 'Detention' organized by the National Human Rights Commission, which concluded in New Delhi today. The issue of detention in prison in police custody, preventive detention in juvenile justice homes and mental health care were discussed in four technical session of the Workshop. Several prominent national and international experts, legal luminaries and senior police officers from different parts of the country participated in the Workshop. Prominent among them included senior advocate Supreme Court of India Mr. Soli J. Sorabjee, Ms Baroness Vivien Stern, Honorary President, Penal Reforms International, U.K. The Workshop organized to mark 15th year of NHRC also coincided with the dignity and justice for detainees week from 6th to 12th October, 2008, designated by the Office of the High Commissioner to pay special attention to the conditions of detainees in prisons, police custody and other places. It also marked the yearlong campaign to celebrate the 60th anniversary of Universal Declaration of Human Rights. ******** ISSUES AND RECOMMENDATIONS MADE AT THE NHRC's WORKSHOP ON DETENTION HELD IN NEW DELHI ON 11-12 OCTOBER 2008 DETENTION IN PRISONS AND POLICE CUSTODY: 1. It is important to understand that a person in custody is under the care of State and it is responsibility of State to ensure his or her basic human rights. It should not be confused as advocacy for rights of criminals and terrorists. 2. Many a time, misleading arguments are advanced that 'humiliation' of detenus is permissible and that it does not amount to 'torture' while the fact is that it is a violation of human dignity and amounts to inhuman, degrading treatment or punishment. 3. Convention against Torture seeks to prohibit torture, among other places, in custody. Though India has signed it, it has not yet ratified it till date. NHRC has been impressing upon the Government to immediately ratify the Convention. The Government must take immediate steps in this regard. It is also suggested that the same could be done through an Amendment to Indian Penal Code. However, India does have institutions and instruments in place to prevent torture in custody and monitor the violation. 4. India may have a low rate of just 32 persons being in jail per every 100,000 population but a high percentage among them is that of under trials languishing in jails. To over come the situation speedy trial should be provided and to ensure it following measures were recommended: a) Establishment of more courts and filling the vacant posts in judiciary. b) Expedite the process of recording the evidence of the police officers and medical practitioners who are witnesses in certain cases as transferable nature of their services compounds any delays in this regard. In addition, separate prisons for under trials and convicts could also be considered. 5. With respect to the recent amendment to the Cr P C inserting Section 436-A providing for the release of a person in custody, in case he has been in custody for more than half the period of the sentence he would have undergone in case found guilty, should be released on personal bond, it was recommended that an action plan needs to be worked out for the compliance of the formality of moving an application before the court on the behalf of the under trial. The impact of the amendment is still not to the desired level. Concerted efforts must be taken by all authorities in this regard. 6. An Undertrial in custody or who is not on bail can contest an election but does not have the right to vote. The provision of right to vote should be ensured to the under trials. It will have a positive impact on bringing out changes in the attitudes of the undertrials and the people. It will: a) Impart a sense of dignity amongst under trials. b) The undertrials will thus be considered a part of the society. c) Open prisons for the participation of civil society. 7. Appreciating the role of Supreme Court in granting compensation to the people whose fundamental rights are violated it was recommended that the practice of granting compensation or compensatory justice should also be expanded in cases of human rights violation. 8. Referring to prison reforms it was expressed that though a lot has been already done to improve the quality of physical environment in prisons, what remains to be done is the therapeutic change in prison administration and treatment towards prisoners. There is a need to pay special attention to orientation and training of guards, jailors and increase number of training institutions. 9. Concerns were expressed on the rights of children in the age group 0 to 6 years living in prisons with their mothers. Though they are provided care up to the age of six, there is no provision for their education or health care after attaining the age of six. It was in this connection that a recommendation was made for adopting suitable policies for ensuring the protection of rights of such children and implementation of Supreme Court judgment in R.D. Upadhyay vs. State of Andhra Pradesh. 10. It was suggested that mere sensitization of police or prison officials is not the solution. The prisoners are equally under the stress and therefore sensitization programmes should also focus on prisoners as the target group. 11. It was recommended that the agency responsible for maintaining public order and prisons should be molded in consonance with Human Rights Principles. It should always be remembered that it is not only the judiciary or NHRC who are responsible for protection of human rights but all agencies have to play their role in this regard. 12. In case of deaths in custody, as per the present practice, the Police Administration is required to send the report, within 24 hours of its occurrence, to NHRC and in accordance to the Amendment made to Cr P C an inquiry by a judicial magistrate is made. There is suggestion to involve forensic experts in process. It was in this connection that a recommendation was made to involve the services of forensic laboratories as with their expertise and scientific manner of investigation they can assist in providing accurate and reliable evidence. 13. It was also suggested that the penalty inflicted on a delinquent police officials responsible for torture should be in proportion to the degree of torture by such officer rather than a mere reprimand or transfer. 14. The separation of investigation wing from other law and order wing, as decided in the case of Prakash Singh, was also recommended. 15. Minimum standards of service to be laid down enable prison authority to ensure necessary medical care and other services in prisons from human rights perspective. PREVENTIVE DETENTION 16. The difference between "preventive" and "punitive" detention must be clearly understood. Preventive detention is aimed at preventing the possibility of an activity by a person which may be detrimental to public order or national security. Preventive detention is an anathema to rule of law but is a 'necessary evil'. There is need to sensitize the authority that it should be resorted to as an exception in rare cases.. 17. Preventive detention is not to substitute the normal procedure established by law. 18. Certain safeguards are provided under law to the detenue under preventive detention are: These include detailed recording of facts leading to satisfaction of authority, conveys the grounds to the detenue, representation to State or Central Govt. or to advisory board. These should be strictly followed and all authorities should be sensitized to these. 19. Preventive detention cannot be for unlimited period. There is a need to ponder to reduce maximum period of detention to two to six months and also have mechanism of periodic review. 20. In view of the facts that smuggling, narcotic drugs trade etc are being organized while exercising powers under the laws like COFEPOSA may be necessary but there should be need to proceed against the main culprits who organize these activities. 21. Preventive detention laws need to keep a balance between human right of liberty and security of the nation or maintenance of public order. 22. In case the detenue is found unlawfully detained, there need to have provision for interim relief/ compensation. There is a need to sensitize people about various personal liberties. 23. A number of persons are taken away and detained in the name of interrogation. Such detention is not at police lock up or jais. This practice has to be discouraged. . DETENTION IN JJ HOMES 24. There is need to distinguish children who need care and protection from those in conflict with law. 25. The directions to have institutions at district level seems very widespread without taking into consideration the availability of judges etc to constitute the board. The need is first to focus on existing institutions. 26. There is need to deploy trained and educated personnel to ensure rehabilitation of children. 27. Law prescribes that decide the cases related to juveniles should be decided within stipulated period of 4 months but that is not the reality and the juveniles languish in custody for years without getting justice. 28. Prompt action should be taken against staff against whom allegations of abuse have been proven. They should be transferred immediately when such instances come to light and there is prima facie evidence to substantiate it. 29. Not to use lingua of criminal justice system in case of juvenile. Mental Health care: 30. There is a huge gap in manpower. Psychiatrists are mostly concentrated in urban areas and that too in four or five metros. In the rural areas, the situation is a cause for serious concern. The same holds true for clinical psychologists, psychiatric nurses and community social worker working in this area. 31. NHRC has taken up the issue with MCI to increase the seats and NIMHANS has also worked out strategy to train the manpower, that needs to be accelerated. 32. World over, on an average 32% of all prisoners suffered from mental illness. If one includes substance abuse, the figure goes beyond 60%. Hence there is a need for focused attention on mental health. There is a need for early identification of mental illness among prisoners and for taking consequent steps. 33. There is little documentation of the problems of psychiatrically ill prisoners, problem of escorts for referrals/ discharge, inadequate follow up and after care while in prison, disappear from psychiatric ttreatment after discharge from prison etc. 34. Little formal training of prison staff in mental health 35. Need to move from custodial care to community care. Integrate mental health care through District Mental health care programme. 36. Diet to be fixed based on `calorie' rather than monetary terms to offset inflation. 37. NHRC to continue with monitoring of mental hospitals, community care and also pursue with related Ministries. 38. Mental health care audit of all institutions of child care to be taken up by NHRC.

"Loved reading this piece by Prakash Yedhula?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Join our Telegram group

Join our Whatsapp group