Thursday, February 9, 2023

“A Good Advocate Increases Chances of Fair, Equitable Justice”

As India celebrated National Human Rights Day on December 10, the spectre of human rights violations raised concerns. National Human Rights Commission (NHRC) Chairperson JUSTICE ARUN MISHRA spoke to SANJAY RAMAN SINHA in an exclusive interview and said he would never want the NHRC to have more powers as most of its recommendations are accepted

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Sanjay Raman Sinha: Police excess is a serious area of concern. The government told in the Lok Sabha that 4,484 deaths were reported in police custody, while 233 were killed in encounters in the last two years. What has the NHRC done in this regard?

Justice Arun Mishra: You have suggested that 4,484 deaths took place in police lockup. I’ll divide this into two parts. Some deaths have happened in prison and some in police lockup, police stations and in police custody. The figure you have quoted is of two years; when we take the numbers that are available with us, then the figure of 2,021 shows that 1,889 deaths occurred in judicial custody, i.e. inside correctional homes and around 120 deaths took place in police custody which can be termed as deaths inside police lockup/police station, etc. 

So to say that the majority of deaths occurred due to police torture is not correct. In the majority of cases, deaths which occurred inside jail premises were due to natural causes and suicides and our statistics show that in percentage terms, deaths inside jails due to natural causes was 86% in 2016. This increased to 88.8%, while the percentage of unnatural deaths decreased inside correctional homes.

Out of approximately 120 deaths in police custody, only 3% occurred due to police excesses from 2015 to 2019. When the data for 2020-2021 is finalised, we will be able to state the number of deaths due to police brutality.

As far as encounters are concerned, the data registered in the Commission between 01-04-2021 and 31-3-2022, shows that 153 cases were registered and the majority were from states where anti-Naxalite and anti-terrorist operations were conducted. For example, data from J&K shows that 46 deaths occurred due to encounters during terrorist operations. Likewise, 18 encounter deaths occurred in Assam, four in Bihar, 31 in Chhattisgarh, nine in Jharkhand, eight in Odisha, 11 in Uttar Pradesh, two in West Bengal and three in Delhi. Many of these states are Naxalite-prone.

In addition, the data available with us reveals that in a large number of cases, police personnel also lost their lives in encounters. The data of 2020 shows us that 526 police personnel died on duty. Out of these, 70% occurred due to accidents, majorly in road accidents, 18% while the police personnel were on duty during anti-Naxalites and anti-terrorist operations and 5% due to riots and stone pelting incidents. After perusal of this data, to say that the deaths were due to police excesses inside police stations is definitely not true. It is clear that not a single person was tortured in judicial custody by the police/jail staff. In those cases where we find that a police torture or fake encounter took place, we take due action. Fake encounters are found to be minimal in this data. However, if any passerby gets injured in cross firing, the victim gets due compensation. Or if excessive force has been used and if it is found that the incorrect person was identified by the police or semi-armed force, compensation is granted.

When cases of torture or police beatings resulting in death occur, not only are departmental inquiries ordered, but criminal prosecution is also ordered against the accused and necessary orders are passed for compensation to be paid to the victim or family by state authorities.

SRS: You recently said that special laws like UAPA were enacted to protect human rights, not take them away. This is a strong indictment. Today, 124A (sedition law) is frozen and sub judice, but laws like UAPA, NSA, Sections of NDPS and PMLA are still open to misuse. Here, probe agencies, police and the government all share the blame. How can NHRC help and what can be done to stop the misuse of such laws?

Justice AM: First of all, the contention of yours that according to my statement, human rights are violated due to these acts is incorrect. That was not my statement.

My statement was that these acts are made for the protection of human rights. It was in this context that UAPA, National Security Acts, NDPS Act, PMLA were enacted. The first three were made to counter Naxalite and terrorist operations which cause human rights violations, not only in the entire country, but the world over. Human rights violation is done mostly by terrorist acts. These laws were enacted to protect innocent citizens from wanton acts of terrorists/ Naxalites.

These acts are in consonance with United Nations conventions, which hold that such acts have to be made to protect innocent victims. The question of integrity of the nation is also involved. The UN says that those people who fund or support terrorist organisations via social welfares, charitable services or other similar ways should also be prosecuted.

It is also mentioned in the 1999 terrorist convention that prosecution of such persons should be undertaken. So UAPA was made in 1960; it’s been operational for 70 years. The apex court has found the National Security Act constitutionally valid. As regards the NDPS Act, the problem of drug peddling is serious as the young generation is targeted. International cartels are involved in the operations. To curb drug peddling, the drug mafia needs to be given the strictest punishment. Only then can we protect human rights.

If innocents are prosecuted under these acts, judicial review in courts is available. The court will see whether prima facie such person is guilty or not; if not found guilty, he can be given bail and detention can be quashed as well. But it will be in judicial review by courts only. NHRC has no role in such proceedings of judicial review. And in sub-judice matters as well, we cannot interfere. But if the court ultimately rules that such a person is wrongly prosecuted, then NHRC can grant adequate compensation and order action against concerned authorities for falsely prosecuting such persons. Even prisoners have human rights. It is correct to say that misuse of these acts must not take place. These acts are in place for the protection of human rights of citizens. 

SRS: Recently, the NIA asked the centre to move serious offenders to jails in south India, as in jails in north India, there apparently exists a nexus between jail officials and criminals which lets them operate from jails. In Tihar jail recently, videos surfaced showing undue benefits being given to high profile prisoners. Prisoner riots and inmate violence also take their toll. Women prisoners also suffer. In this scenario, a change in the jail manual is needed. The Uttar Pradesh cabinet has already okayed changes in the jail manual. Does NHRC have any suggestions in this regard? 

Justice AM: As far as the demand of NIA is concerned, there is a prior direction not to imprison dangerous prisoners in states where they cannot lead a safe life. They should be incarcerated in such states where they can live safely, where there is no danger and in conditions where there is no chance of jail break. In such a situation, the home ministry issued a direction on September 23, 2015, to send high-risk and high-profile prisoners outside the state where they are currently imprisoned.

Apart from this, as far as the jail manual is concerned (in 2016), after a lot of exercises were carried out, a model jail manual was prepared. Thereafter, the central government wrote to all states regarding this, asking that a model jail manual be adopted and reforms be initiated.

We have also deliberated on this issue very seriously and issued directions in the last year to bring reforms in the jail manual. Very old provisions (100 years or 80 year old provisions) exist in various states; there is definitely a need for reform in jail manuals. Additionally, the states which have not up­dated jail manuals must do so. These should be made fool-proof so that there is an improvement in the condition of jails/prisoners and also in their discipline. This is absolutely necessary.

Secondly, with regard to the crimes being committed in jails, jails are made for the purpose that there is no scope for the incarcerated prisoner to commit any offence. If the police or jail officers allow such offences to occur, then they should be held responsible. Without their involvement, no such crimes can be committed in jails. With regard to Tihar Jail we have taken cognizance, and in other jails where such incidents have occurred, we will take cognizance, order a report, and send our investigation team. We have sent our Special Rapporteur to Tihar Jail, Delhi, and received a report, which we are currently deliberating. If any police officer is found to be complicit in such cases or showing favouritism to a prisoner (giving facilities, for example), he should be dismissed. There is a need to give them very serious punishments. 

In jails, there should be no opportunity for prisoners to commit suicide. Most of the suicides that occur in jails are in the bathroom or latrine. We have done a study. We propose to issue directions that bathrooms and latrines be so designed that there is no opportunity for the prisoner to commit suicide. No one should provide materials like belts, etc. One third of deaths in jails are caused by suicides; here, too, reform is required.

Good food should be provided in jails, as well as good cells to live in. There should be an improvement in the living conditions of inmates and their habits. Additionally, it should be ensured that after serving their term, inmates should be able to live honourably and in the ordinary way. They should be rehabilitated. We have suggested that there should be yoga classes and they should be taught various faiths as per their choice.

SRS: The problems of undertrials are serious. Three out of four prisoners is an undertrial and the number is growing. The situation for poor, tribal and underprivileged is even more serious as access to justice is limited. Recently, President Draupadi Murmu appealed for ways to solve the crisis. What can the NHRC do in this regard?

Justice AM: The sad reality is that despite the excellent work of our Legal Services Authority and increased public awareness of the law, we have been unable to provide competent advocates to poor prisoners. I believe that the Legal Aid Service Committee should provide competent lawyers to poor prisoners. The problem is that because these prisoners, particularly those from socio-economically disadvantaged sections or with limited resources, can rarely afford a competent advocate, they are frequently convicted even when there is insufficient evidence. The appeals are assigned to an amicus curiae or inept advocate. I’ve found that in the majority of cases, entrusting these matters to a qualified advocate would increase chances of ensuring fair, efficient and equitable justice. The situation is such that the person is acquitted and released 14-20 years after completing his sentence. To ensure that poor prisoners’ jail appeals or trials are expedited, the court must consider cases of this nature on priority.

SRS: It is felt that NHRC needs to have more teeth. In many instances, the need for more penal powers for NHRC is felt as then it can take disciplinary action. Do you think that the time has come for granting more powers to the Commission?

Justice AM: I would never want the NHRC to have more powers. The need is not there because 95-98% of our recommendations are accepted. We understand that our orders are strong enough and recommendations are treated as binding. There is no need for any additional powers. We have the power of investigation and can undertake them.

We have a large investigation team and in cases where other institutions have failed, we have clicked. For instance, in Rajasthan, a woman’s existence itself was denied. An investigation team went there on the order of the Supreme Court. The team not only found her existence, but found her as well. That’s how well our investigation team performs.

SRS: You had expressed concern about the plight of mental health patients in hospitals across the country. There is a stigma attached to mental health which prevents their acceptance by the family. What can be done in this regard?

Justice AM: You have raised a topic which the Commission has been seriously working on. In the past 3-4 months, of the 43 mental hospitals all over India, 37 have been inspected and four have been visited by the full Commission. The first one was in Gwalior. After that, Agra and then two mental hospitals in Ranchi were visited. In the rest of the 33 hospitals, our Special Rapporteur and monitors were sent to collect reports and these have been received in proforma.

According to the Mental Health Act of 2017, it is essential that a mental patient has the right to live in the community and should not be ignored by society. Another important provision is Section 19 which states that if the members of the family are not willing to accept him, then it is the responsibility of the State to keep him in a half-way home rather than placing him in a mental hospital. It is the duty of the State under Section 19 to help the resettlement of the patient in his family, provide him with free legal aid and help him so that he is accepted by the family to ensure that he enjoys his right to live with them. 

But in Ranchi itself, around 300 mentally ill patients are in each hospital even after recovering and were not sent back to their respective homes. In Gwalior, such patients number 100, while 200 recovered mental patients in Agra were not sent back to their homes. The reasons provided mainly were that they didn’t know the residential address of some of the patients. Another reason given was that the families were not accepting the patients. But the reality is far from this. When I enquired personally with these patients, I found that they were well aware of their residential addresses. They knew where their family was and where they were residing and they wanted to go back to their families. 

Keeping cured patients in mental hospitals for several years is not legally permissible. Hence, all stakeholders must give serious consideration to the matter. The living conditions of metal patients are also deplorable. I believe that if the State, police, and mental hospital authorities make proper efforts, these patients could have been sent back home. 

SRS: The rights of women cut across religious affiliations. Some personal laws seem to discriminate against them. There is a move to bring about a uniform civil code by different state governments. Will women benefit from it? 

Justice AM: Gender justice is a key component of the United Nations’ declaration of human rights. Respect for women has long been rooted in our culture. Hindu law has seen reforms that are supportive to women, including the Women Right to Property Act of 1937, the Act governing divorce case in 1956 and the Right to Inherit Coparcenary Property was given by an amendment in 2005. Muslim women have also spoken out against the prejudice in their personal laws. 

The Constitution framers have included Uniform Civil Code (UCC) in the Directive Principles of State Policy. But even after 75 years of independence, we have not adopted UCC. The US, other nations and even the Indian state of Goa have a UCC. In essence, UCC encompasses the right to equality. Everyone is free to follow their personal laws and no one is prevented from following their religion. The issue is that there are two ways in which we should see personal laws. The first is temporal rights like property rights and secondly, religious beliefs ought to be kept apart. These temporal rights are equality rights, which form the basis of human rights and fall under UCC’s purview.

SRS: The NHRC under your leadership has been pro active on the pollution menace. Recently, the chief secretaries of Delhi, Haryana, Punjab and Uttar Pradesh were asked by NHRC to give a report on ways to tackle pollution and implement strategies of pollution control on a war footing. You said the time has come to even supervise the supervisory bodies for effective implementation of rules. What role do you foresee for NHRC in this area? 

Justice AM: On matters of pollution, NHRC’s hands are not tied at all. As per Article 51A of the Constitution, it is the duty of every citizen to protect the environment, care for other living creatures and preserve flora and fauna as well. Trees need to be protected as well. It’s a sad state of affairs where the statutory laws made under the Directive Principles for municipal bodies are not being appropriately followed with regard to the duties imposed by them. There is a lack of attention on their part when it comes to cleanliness. In most places, we find that even garbage is not collected because they often lack the facilities to dump the garbage. There is also a lack of landfill sites and way to treat medical waste, construction and demolition waste, etc. They do not have any requisite facilities to treat, dispose or reuse. Secondly, sewer lines are not available in all cities.  In various places, effluence from tanneries and other industries and sewage are directly being discharged into rivers.

We have been successful in eradicating the practice of human carriage of excreta. We have prescribed it mandatory in our advisory dated 24.09.2021 that workers who undertakes hazardous cleaning of septic tanks should be provided safety gears, oxygen cylinders and protective glasses. Automatic alert lights detecting the presence of poisonous gases are to be installed in sewers/septic tanks. These precautions will prevent workers’ death. Despite our advisory, only a few states have partly complied by providing safety gear. Mechanised cleaning of sewers and tanks are required by Bandicoot.

SRS: As chairperson of NHRC you have been elected as the member of the Global Alliance of National Human Rights Institutions (GANHRI) Bureau. What are your roles and responsibilities?

Justice AM: GANHRI’s Executive Committee, i.e. Bureau, has the responsibility of implementing policies and resolutions of the General Body. It is the duty of the Bureau to ensure compliance and discuss whether some more resolutions need to be made. It is a responsible body from the perspective of policy making and execution. It’s very satisfying that India’s Commission will have its say too and can contribute in forming policies regarding human rights. It’s a very important committee and we will try our best to perform its functions to the best of our ability.

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