Friday, March 16, 2007

MIRANDA RIGHTS IN INDIA (part II-)

Chapter III - POLICE AND THE LAW

The above chapters are indirectly related to a greater issue of accountability and responsibility on the part of the government on the part of the government to educate the citizens about the law and not abuse the powers in the hands of the state machinery. In this chapter we shall discuss mainly about the attitude of the police towards the poor and the treatment meted out to them. This will later lead us to conclude the need for checks in the police functioning today.

3.1 The fallacy of Ignorantia Juris Non Excusat

Legal systems all over have been based upon the common maxim of ignorantia juris non excusat, that is ‘ignorance of the law is no excuse’. The principle, the had first originated in the Code of Justinian [1], was used as a defence by the government when people said they did not know about the law. The reason then was that it was simple to understand and not complex in nature.

With time, law became more and more complex in nature and so did the excuse of the government for using this principle. Now, they said, “it was a small evil in exchange for a greater good”[2]. If this was removed then everyone would claim that they did not know the law which would then become difficult to prove. What it then did become was a manner by which the government shed the responsibility for educating its citizens about the law. It removes any trace of accountability on the part of the government and places the burden on the common man to know the law.

In the past few decades, some Courts in the world are trying to do away with this maxim in the area of ‘rights education’. They seek to place the burden on the government to educate the citizen[3]. It all started in 1966 with Miranda[4] and similar instances in the United Kingdom[5] and other European nations[6]. In the USA, this issue was recently upheld in Dickerson v. United States[7]. As regards to the situation in India, the Courts have always sought to apply and interpret the maxim in its strict sen.[8]se without any exceptions In this way, DK Basu was a relief to the poor. But the fact remains that the government does not have any responsibility to educate the poor in this country. All mechanisms of accountability seem a distant dream.

I argue that the rights of the poor would be secured only if the government takes upon itself the responsibility to protect them. Such responsibility does not seem to exist in India. It is then imperative that if this country must develop, the rights of a 250 million people must be secured.

3.2 The Police and Implementation of the Law

I would like to approach the aspect of police accountability by showing how the police is presently implementing the law. The data presented is based on the research that was conducted by myself in the month of December in the city of Mumbai.

The DK Basu judgment says that the rights laid down in para 36 must be placed in a conspicuous place in every police station. In the eight police stations that were visited, only three of them were in a place that could be well seen. The rest five were in the office of the inspector which is visited only by a few of them. These five police stations were in the slum areas of Mumbai that included the Dharavi, Sion and Chembur areas of Mumbai. On questioning a few police constables, I learnt they knew about the procedure and the way it was to be followed.

On enquiring as to how many cases are reported to the Control room within 24 hrs, three persons reported by myself were not known to the control room for the next 48 hours. One of them by the name of Walekar was placed in a police locker for 2 days and there was no record of his arrest.

3.3 Police Brutalities in India

The issue of police brutalities and custodial violence and no surprise in this system of ours. According to the statistics of the National Human Rights Commission alone, in the year 1999, there were 193 custodial deaths in the country.[9] Every day violence in the police station is not a new phenomenon. Sadly, there is no law in the Country to protect the citizens from torture specifically. Such brutalities have been read into the normal sections of assault[10] and hurt[11] in the Indian Penal Code. The Courts have also at numerous instances discussed the issue of custodial violence [12] and condemned the same.

In the Survey conducted by the researcher, around 41 % of the people interviewed had been subjected to some form of violence or the other at the hands of the police. Some of them also included lathi beatings and slaps. One of them, a juvenile, was even paraded around the police station in his underwear. If this is just an analysis of 25 odd people in the city of Mumbai, we can only imagine what would be happenning in the whole of India. I again get down to the same argument that there is a great need for police accountability in the country to stop such acts of violence against the poor and illiterate.

3.4 Reforms in the Police Act

We today have a 146 year old Police Act[13]. The first comprehensive review at the national level of the police system after independence was undertaken in 1977, when the Government of India appointed the National Police Commission. In its first report[14], the Commission dealt with the modalities for inquiry into complaints of police misconduct in a manner which will carry credibility and satisfaction to the public regarding their fairness and impartiality and rectification of serious deficiencies in the system. Various Committees that have been set up after this period like the Dharma Vira Commission, Julio Roberto Committee, Soli Sorabjee Committee and the Padmanabiah Panel have zeroed in on the maladies of the Police Act and called for drastic changes in the functioning of the system.[15] I argue that the issue at hand is not ‘police reform’ that these committees and judgments propose but that of ‘police accountability’. Our country has not taken a serious stance on the issue of Police accountability and the status of such investigations.

In the United States of America, the rights of individuals have always received supremacy over the investigation process.[16] This is to the extent that, if the rights of arrested persons are affected, then the investigation to that extent will be declared invalid.[17] In this manner, some degree of responsibility to follow the law is placed on the Police. Similar situations must be applied in India too so that the rights of the poor are protected in this country. The accused must have full knowledge of his rights at the time of the investigation and if he is not aware of them, the state must remind him of them.




[3] JW Meeker and John Dombrink, “ Access to Civil Courts for those of Low and Moderate Means”, 66 S. Cal. L. Rev. 2217.

[4] Miranda v. Arizona, 384 US 436 (1966).

[5] Criminal Justice and Public Order Act, 1994 (United Kingdom).

[6] § 136 Strafprozessordnung (German Criminal Procedure Code) : Letter of Rights (European Union)

[7] Dickerson v. United States, 530 US 428.

[8] State of Maharashtra v. Mayor Hans George, AIR 1965 SC 722.

[9]“Right to Free Legal Aid: Cause to Despair, Reason to Hope”, A Report of the Centre for Social Justice, 1st ed. 1998, p. 4.

[10] Section 324, Indian Penal Code.

[11] Section 321, Indian Penal Code.

[12] Prakash Singh v. Union of India, (2006) 8 SCC 1 : Vineet Narain v. Union of India, AIR 1998 SC 889 : Sube Singh v. Union of India, AIR 2006 SC 1117.

[13] Indian Police Act, 1861.

[14] Report of the National Police Commission, February 1979.

[15] Poonam Kaushish, “Police Reform: Who Should Control the Police”, Central Chronicle, October 25, 2006.

[16] Miranda v. Arizona, 384 US 436.

[17] Ibid.

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March 17, 2007 at 9:20 AM  

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