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Preamble:

The collective conscience of our society was shocked and outraged by the police brutality that led to the loss of lives of Mr. Jayaraj and his son Mr.Bennicks on 22nd June 2020. Despite the laws of the land, police excesses, including custodial torture, have unfortunately become part of institutional culture and are enabled by practices of impunity. It is found that groups such as women, scheduled castes, adivasis, sexual minorities, including transgenders, are particularly vulnerable. Safeguarding the right to life, liberty, bodily integrity and dignity of every person, including those vulnerable communities stated above, is of paramount importance. It is imperative that the police sheds the vestiges of colonial practices and treats people with dignity as holders of constitutional and human rights. Towards this end, this Declaration setting out guidelines to be operationalised to avoid police torture and senseless loss of lives is adopted.

sathankulam father and sonWhereas the UDHR has a major impact on subsequent universal human rights treaties as well as the Indian Constitution and domestic laws. As a consequence, there are a number of provisions that are considered customary law, e.g. the prohibition of torture and other forms of ill-treatment, the prohibition of racial discrimination etc while persons are taken into custody, formally arrested, investigated and until they are formally remanded to judicial custody or released on bail by our Courts.

Whereas the work of law enforcement officials is a public service of great importance and there is, therefore, a need to strictly adhere to established standards enshrined in our Constitution, UDHR and other international and national guidelines and code of conduct applicable for law enforcement officials that exist on the date;

Whereas law enforcement officials have a vital role in the protection of the right to life, liberty and security of the person, as guaranteed in the Universal Declaration of Human Rights and reaffirmed in the International Covenant on Civil and Political Rights,

Whereas the principles set forth below in the following Declaration, which have been formulated to assist the Government of Tamil Nadu in their task of ensuring and promoting the proper role of law enforcement officials from the time persons are taken into custody, formally arrested, investigated, and until they are formally remanded to judicial custody or released on bail by our Courts should be taken into account and respected by the Government within the framework of our national legislation and practice, and be brought to the attention of law enforcement officials as well as other officials such as judges, prosecutors, lawyers, members of the executive branch and the legislature, the public and civil society.

Reiterating that the obligations of the State encompass the duty to respect human rights; the duty to protect human rights; the duty to ensure and fulfil human rights; and the duty not to discriminate, it is ensured that this Declaration shall reiterate the same in all its articles. The law enforcement authorities are given specific powers to enable them to carry out their tasks. However, they must respect human rights when exercising those powers, which means, in particular, observing four fundamental principles that should govern all State actions which may potentially adversely impact human rights: Principle of legality (all actions to be based on provisions of the law); Principle of necessity (it should not affect or restrict human rights more than is necessary); Principle of proportionality (should not affect human rights in a way that is disproportionate to the aim); and the principle of accountability (those carrying out the action should be fully accountable to all relevant levels -the judiciary, the public, the government and the internal chain of command).

I. No detention without lawful arrest

Persons, particularly from vulnerable backgrounds, are taken into custody and detained by the police for extended periods of time in police vans moving on highways or the bypass roads and locations other than police stations, especially in cases which are allegedly being investigated by 'specially constituted teams' without following any due process of law. Recourse to this practice is taken to avoid CCTV cameras in police stations Such practice of taking persons into custody and detention without lawful arrest is illegal.

Ref: Command responsibility: The doctrine of command or superior responsibility stipulates that a superior - a military or civilian leader—can be held criminally responsible when his subordinates commit international crimes. The doctrine has become part of customary international law and has been incorporated into the statutes of the international criminal tribunals and into the Rome Statute of the International Criminal Court (ICC). The superior incurs criminal responsibility for failing to have prevented (or repressed) criminal acts committed by his subordinates. Command responsibility thus implies a crime of omission. As the superior may be held criminally responsible, the doctrine has to observe the basic principles of criminal law, in particular the principle of individual guilt. The doctrine comprises three constituent elements, reflecting, respectively, power and agency ("effective command and control"), mens rea ("he knew or should have known"), and the omission that actually triggers criminal responsibility ("failure to take the reasonable and necessary steps"). Command Responsibility, in the context of law enforcement officials in the State, therefore refers to the accountability of every Police Commissioned Officer (PCO) to closely supervise, coordinate, control and monitor the discharge of duties of his subordinates as well as the responsibility to control and monitor the activities of others who are operating within his area of jurisdiction.

Art 1. Where persons are wanted for the purposes of enquiry or investigation, the investigating police should follow the procedure established by law and send appropriate notice/ summons/ warrant. The prevailing practice of calling persons or detaining them without following due process of law amounts to misuse of power and is a violation of human right. Police officials indulging in such practices should be held accountable, and higher officers at the level of SHOs, DSPs, SPs or their counterparts in cities shall be held responsible based on the principle of command responsibility.

II. Arrest and detention to be exercised judiciously

The Courts in India have consistently held that the liberty of a person cannot be curtailed unnecessarily, and therefore the power of arrest and detention should be exercised judiciously.

Ref: (i) Joginder Kumar v. State of UP:

"No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect the arrest. Denying a person of his liberty is a serious matter….A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the station without permission would do."

Ref: (ii) Arnesh Kumar v. State of Bihar, State of Tamil Nadu v. Nakeeran Gopal:

The power of arrest or threat of arrest is often used to intimidate persons. An unfair burden is placed on persons to obtain anticipatory bail from Courts to protect their liberty. Section 41-A of the Code of Criminal Procedure was enacted to avoid unnecessary arrest. Accordingly, the police can issue a 'notice of appearance' directing a person against whom a complaint is made or is suspected of having committed a crime to appear before them. The police should not arresta person who complies with the notice. The Supreme Court and the Madras High Court have held that Section 41-A should be strictly adhered to and that arrest and detention should be resorted to only if a person does not comply with the notice of appearance

Art 2. No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. This justification should be recorded in writing and produced at the time of remand for the Judicial Magistrate to peruse and apply his mind on the need for remand of the person arrested.

Art 3. Police should avoid unnecessary arrest or threat of arrest and issue notice of appearance where the personal appearance of a person is required for the purposes of investigation. Where a person co­operates with an investigation and willingly appears before the police, arrest should be avoided.

III. Rights of arrested persons

Ref: (i) Code of Criminal Procedure

(ii) DK Basu guidelines

Arrest should be carried out in accordance with the Code of Criminal Procedure and strictly adhering to the DK Basu guidelines of the Apex Court. Particularly:

  • Arresting police officer should wear accurate, visible and clear identification of his name; memorandum of arrest to be prepared and attested by a witness (family/ respectable member of the locality where the arrest is made) and countersigned by the arrestee; if not attested by a family member, arrestee should be informed that he has a right to inform a relative/friend of the arrest (Section 41-B, CrPC)
  • The arrested person is entitled to meet a lawyer during interrogation but not throughout the interrogation (Section 41-D, CrPC)
  • No unnecessary restraint – arrested person shall not be subjected to more restraint than is necessary to prevent his escape (Section 49, CrPC)
  • Arrested person to be informed of grounds of arrest and right to bail; arresting officer should inform the fact of arrest and where the person is detained to a nominated person. Entry of this compliance should be maintained; should be verified by the Magistrate (Sections 50 & 50-A, CrPC)
  • Duty of the person having custody to take reasonable care of health and safety of the accused (Section 55-A, CrPC)
  • No detention of arrested person without warrant beyond 24 hours – arrestee should be taken before the Magistrate without unnecessary delay (Section 56 & 57, CrPC)
  • No arrest to be made except in accordance with CrPC (Section 60-A, CrPC)

Art 4. The person detained in custody should be provided a copy of the DK Basu guidelines and his rights under the CrPC, both in hard copy and electronic copy by WhatsApp/text message/email where the person has a mobile phone with internet connection and such facilities. It shall be the duty of the Station House Officer to ensure that the arresting police officer has adhered to the rules of law and that the person is custody has been provided a copy of the guidelines as a hard copy and electronically.

IV. Medical examination:

The letter and spirit of Section 54 CrPC should be adhered to. Arrested persons should be subjected to medical examination soon after the arrest is made. The medical practitioner should check the arrested person for injuries and made a truthful record of marks and injuries on the body and when the injuries may have been inflicted. Copy of the medical report should be made available to the arrested person.

Ref:

(I) Report of the Judicial Magistrate Mr.Bharathidasan u/s 176(1)(A) Cr.P.C. in the Sathankulam case

(ii) Section 50 of Kerala Police Act 2010

(iii) Recommendations of Justice Narayana Kurup Judicial Commission in the Rajkumar custodial case in Kerala (2021) that medical officers should check for internal injuries. The report observes "It is for the members of the medical community to detect hidden injuries, which will serve as a major deterrent against torture as the culprit will then be exposed to the likelihood of being proceeded against in accordance with law". Conducting medical tests that would help find traces of proteins which are released when a person sustains a muscular injury was recommended. Accordingly, tests including renal profile, creatine phosphokinase (CPK) test, a muscle enzyme, and CRP, an inflammatory marker estimated from blood samples; myoglobin, a muscle protein, that can be traced in urine samples should be conducted. High levels of muscle enzymes and proteins indicate injury to the skeletal muscles. The proteins thus released get accumulated in kidney and damage it, which can be identified through a renal function test.

Art 5. All medical officers before whom persons are produced from police custody for the medical examination should mandatorily subject them to a series of medical tests to determine instances of physical torture.

Art 6. The tests that be performed are the Renal profile, Creatine Phosphate Kinase (CPK), Urine Myoglobin, C-Reactive Protein (CRP) and ultrasound scan of abdomen to be carried out to rule out instances of internal injury.

Art 7. A copy of the report of the medical examination should be provided to the arrestee at the hospital itself immediately after the medical examination is completed. Art 8. If there are injuries or marks on the arrestee, the doctor has to further record not only the details of the injury but also the manner of its causation as per the statement of the arrestee. If the arrestee is injured and is in a condition to be moved, he should be produced before the Judicial Magistrate having jurisdiction in the matter. In case he is not in a condition to be moved, then the circumstances should be immediately brought to the notice of the Judicial Magistrate concerned with copies of such report being given to the doctor and to the injured person under acknowledgement.

Art 9. At the time of pre-remand medical examination of the arrestee, the medical officer shall ensure that the police officers accompanying the arrestee are standing at a distance so as to ensure that the person is free to respond to the medical officer's questions without fear of the escort police overhearing the conversation. Such places of medical examination have to be under CCTV camera coverage for any use later in any judicial proceeding.

V. Rights during remand

Ref:

(i) Statement of Mr. Saravanan, Judicial Magistrate, Sathankulam recorded by the Judicial Magistrate, Mr. Bharathidasan under Sec 176(1)(A) Cr.P.C.

(ii) Arnesh Kumar v State of Bihar; State of TN v Nakeeran Gopal

. The Judicial Magistrate has to apply his/ her mind and not mechanically deal with the remand process. In keeping with the spirit of the Constitution, the Judicial Magistrate has to strictly observe the provisions of law set out in the CrPC and Criminal Rules of Practice 2019.

(iii) Code of Criminal Procedure

. Section 50-A(4): Magistrate to satisfy himself if requirements of Section 50A(2) and (3) are met

(iv) Criminal Rules of Practice 2019

  • Rule 6(1): "Remand.- (1) No accused shall be placed under remand for the first time, unless he is produced physically. At the time of remand, the Judge/Magistrate shall see if there is any injury on the person of the accused. Any such injury shall be recorded in the remand order and the remand warrant as well. It is permissible to make extensions of remand through the medium of electronic video linkage."
  • 6(5): "When an accused is produced for remand on his arrest, the Court shall furnish to the accused, a copy of the memorandum of arrest recorded by the arresting officer and if the accused has no means to engage an advocate, he shall be informed by the Court that he is entitled to legal assistance."
  • 6(6): "The Magistrate shall not grant remands to police custody, unless they are satisfied that there is good ground for doing so. A request for remand to police custody shall be accompanied by an affidavit setting out briefly, the prior history of the investigation and the likelihood of further clues which the police expect to derive by having accused in custody, sworn by the investigating or other police officer, not below the rank of a Sub-Inspector of Police. The Magistrate shall decide after perusal of the affidavit. He shall personally see and satisfy himself about the accused being sound in mind and body before entrusting him to police custody and also at the end of the period of custody by questioning him whether, he had, in any way, been interfered with during the period of custody. Where the object of a remand is verification of the statement of an accused, he shall, whenever possible, be remanded to the charge of a Magistrate; and the period of remand shall be as short as possible."

Art 10. The arrestee shall be provided a copy of the memorandum of arrest and other materials placed before the Judicial Magistrate. He shall be provided a printed copy and electronic copy of his rights under the Cr.P.C. and the Criminal Rules of Practice informing him of his rights during the remand process at the time of arrest. It will be the duty of the remanding Judicial Magistrate to make sure that the following were strictly adhered to.

VI. Transport

As seen in the instance of Sathankulam custodial torture, it is common practice for the police to demand that the arrested person or their family to engage private transport such as taxi for transport of the arrested person and the police officers. This places an unfair burden and expense on the detenu and his family.

Art 11. The police may use public transport such as bus or engage private vehicle at the cost of the police to transport arrested persons from the Judicial Magistrate to the police station or to the prison. The police cannot demand the arrested person or his family to arrange or bear the cost of private transport.

VII. Prohibition of the use of handcuffs or leading chains :

Ref: (i) Sunil Batra v. Delhi Administration AIR 1978 SC 1675

(ii) Prem Shankar v. Delhi Administration AIR 1980 SC 1535

(iii) Citizens for Democracy v. State of Assam 1995(3) SCR 943 The Supreme Court observed thus:

"Handcuffing is prima facie inhuman, unreasonable, arbitrary and as such repugnant to Article 21 of the Constitution of India. To prevent escape of undertrial is in public interest but "to bind a man hand-and-foot, fetter his limbs with hoops of steel, shuffle him along the streets and stand him for hours in the courts it to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture".

We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner – convicted or under-trial-while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to court and back.

  • The police and the jail authorities, on their own, shall have no authority to direct the hand-cuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back.
  • Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said magistrate.
  • Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the magistrate may grant permission to handcuff the prisoner.
  • In all the cases where a person arrested by police, is produced before the magistrate and remand – judicial or non-judicial – is given by the magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the magistrate at the time of the grant of the remand.
  • When the police arrests a person in execution of a warrant of arrest obtained from a magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the magistrate for the handcuffing of the person to be so arrested.
  • Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guidelines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the magistrate."

(iv) Poovayi v. State of Tamil Nadu

(v) Nirmala v. Asra Kang

Art. 12. Fetters and handcuffs violate human dignity and cannot be forced on detainees. Police cannot handcuff a person ordinarily upon any stage of arrest, remand or transport unless prior approval is obtained from a Judicial Magistrate. In exceptional circumstances where the police officer has well-grounded basis and concrete proof that the detainee is prone to violence or likely to escape custody, and where a person is arrested without warrant, he can be handcuffed till the time he is taken to the police station and thereafter his production before the Magistrate. The directions of the Supreme Court should be enforced scrupulously.

VIII. Interrogation by the police

Ref: Minimum interrogation standards by the Advisory Council of Jurists of the Asia Pacific Forum of NHRIs (See: https://www.asiapacificforum.net/resources/acj-report-torture/)

  • Interrogation is any questioning by a public official of a person where there is a suspicion that that person is involved in an offence. It applies whether someone is under arrest or detention or is voluntarily subjecting themselves to an interview and includes a situation where someone is interviewed originally as a witness or as someone with relevant information but, during the course of the interview, becomes suspected of involvement in the offence. The State must ensure that torture and cruel, inhuman or degrading treatment or punishment are not employed before, during or after any interrogation. Further, these practices should not be employed to compel witnesses to give information about or evidence against another.

Art. 13. The Station House Officer and all his seniors officers must always ensure that torture and cruel, inhuman or degrading treatment or punishment are not employed before, during or after any interrogation. Nor must these practices be employed to compel witnesses to give information about evidence against another.

Art. 14. Interrogation should never take place at secret' interrogation centres'. If a person is detained for interrogation, relatives or a third person of the person's choice and, where applicable, consular authorities should be informed immediately of the fact and place of detention and/or that of interrogation.

Art. 15. Individuals should only be interrogated for a reasonable period, taking into account the individual characteristics of the interrogated person and, if extending for a lengthy period, regular breaks should be provided.

Art. 16. Persons subject to interrogation must be given adequate food, sleep, exercise, changes of clothing, washing facilities and, if needed, medical treatment taking into account any particular characteristics of the individual including age, gender, religion, ethnicity, medical needs, mental illness and any disabilities or other vulnerabilities.

Art. 17. There should never be a threat of the removal of basic necessities such as hygiene provisions, food, exercise, rest, sleep, in exchange for information or cooperation. Neither should there be a threat of any reprisals against a third person (and in particular a relative).

Art. 18. No method of interrogation should be employed that impairs the person's capacity of decision - making or judgement. Save in exceptional circumstances, no interrogation should take place at night. Art. 19. All interrogations should be conducted in an age and gender appropriate manner and take into account any other relevant characteristics of an interrogated person including, for example, religion, ethnicity, medical needs, intellectual disability, mental illness, personality disorder or any other vulnerability.

Art. 20. A person under the age of 18 who is suspected of involvement in any offence should not be questioned (even when provisions of the Juvenile Justice Act are followed) without an adult of their choice present.

Art. 21. At the time of any arrest or detention (and before any interrogation) a person should be given the right to undergo a medical examination (as stated supra) by a competent and impartial medical practitioner in order to provide a point of reference as to their condition before the commencement of any interrogation. The time and findings of the medical examination should be recorded.

Art. 22. An individual for whom the language of interrogation is not his or her first language or who is suffering from hearing impairment, should always (and before any interrogation) be informed of his or her right to have a competent and impartial interpreter for any interrogation.

Art. 23. If there are any issues about the person's understanding of his or her rights or of the interrogation process or of any questions asked, an interpreter should be provided, whether requested by the person being interrogated or not. Interpreters should also be available in such interrogation facilities so that a person's basic needs can be communicated.

Art. 24. Before any interrogation commences, the interrogated person should be informed (in a manner that is understandable to him or her) of the reason for the interrogation and any charges against him or her.

Art. 25. Every interrogated person should, before any interrogation begins, be told (in a manner that is understandable to him or her) of his or her right to consult a lawyer of his or her choice without delay and in private. In case the person does not have a lawyer of his or her choice, it shall be the duty of the interrogation officer to inform the person (before any interrogation begins) that a lawyer can be provided at no cost in such circumstances and then if he/she so desires approach the District Legal Services Authority (DLSA or the Taluk Legal Services Committee (TLSC) to appoint a lawyer.

Art. 26. The person should also be told of his or her right not to be compelled to testify against him or herself or to confess guilt. Where a person (or his or her lawyer) has indicated that the person intends to exercise the right to silence, no further questioning should take place.

Art. 27. Those who are arrested or detained should be told of their right to consult a lawyer at the time of arrest or detention. All detainees should also be given the right forthwith to challenge the lawfulness and conditions of their detention.

Art. 28. Where a person has indicated a wish to consult a lawyer, no further questioning should take place until that consultation has taken place.

Art. 29. The person's lawyer must be physically present and within earshot during any interrogation and have the right to intervene in the interview to ensure that the law is complied with (but not otherwise to interfere with the interrogation). The interrogated person should also have the right, if requested during the course of the interview, to consult with his or her lawyer in private.

Art. 30. Where a lawyer is not available, or the interrogated person does not want to have a lawyer present, the person should be given the opportunity to have present at any interrogation a representative from a relevant non-governmental organisation or a relative or friend of his or her choice. Except to ensure the law is complied with, those persons should not otherwise interfere with the interrogation.

Art. 31. The time of arrest or detention and/or the arrival at the place of interrogation should be recorded. The name of any arresting officer and all others who have any contact with the interrogated person should be recorded, as well as the nature and time of that contact.

Art. 32. Each interrogation should begin with the identification of all persons present and the recording of their names and any official position held as well as the place of interrogation. The time the interrogation began and finished and the timing of and reasons for any breaks should also be recorded. A video recording of these preliminaries alone should be made available and handed over to the accused, if required. This is to ensure that all these minimum standards are strictly adhered to.

Art. 33. All interrogation sessions should be recorded. This should be by way of video (or audio) recording unless, for reasons which should be recorded in writing, this is not possible or if the interrogated person does not wish to be recorded in that manner. In cases where there is no video or audio recording, a comprehensive contemporaneous written record should be kept.

Art. 34. Procedures should be instituted to ensure the integrity of interrogation records, including proper storage. Evidence from non-recorded interrogations should be excluded from court proceedings (ie no 'verballing').

Art. 35. The recording of the preliminaries prior to the interrogation should be made available to the interrogated person and his or her lawyer of choice.

Art. 36. After any interrogation, the interrogated person should have the right to request a medical examination by a competent and impartial medical practitioner.

IX: Interrogation of a child as a victim or a child in conflict with law:

Ref: Juvenile Justice Act 2015

Art. 37. No child shall be placed in a police lockup or lodged in jail. Where a child allegedly in conflict with law needs to be detained, they should be detained in Observational Homes or place of safety in accordance with the Juvenile Justice Act.

Art. 38. No child can be called for interrogation to the police station. Where interrogation or enquiry is necessary, the law enforcement officers shall conduct the same in a child-friendly manner at the place of residence of the child or at the Child Welfare Committee. No child shall be interviewed by police officers wearing uniforms. The child shall not be asked to explain, narrate or enact crime perpetrated against the child or suspected to be committed by the child unless the members of his /her family and CWC are present. If the child is unable to speak local language, the police shall have an interpreter before interrogational enquiry or questioning the child. If the child is specially/differently abled, then the interrogation, shall be done in the presence of special educator and a trusted blood relative adult of the child.

Art. 39. Principles governing dealing with child as a victim or in conflict with law:

  • Principle of presumption of innocence shall be followed
  • The child shall be treated with dignity as a subject of constitutional, fundamental and human rights
  • Principle of participation shall be ensured and the child shall be allowed to participate in every decision making process which is affecting the child.
  • Principle of safety shall be adhered to. All measures shall be taken to ensure the child is safe, not subjected to any harm, abuse or maltreatment while in contact with police and till the child is placed in the other institutional care.
  • Principle of non stigmatizing semantics should be strictly followed. There shall not be any adversarial or accusatory words be asked against the child.
  • Principle of privacy and confidentiality should be followed. Every child shall have a right to protection of his privacy, confidentiality by all means and thoughts of the judicial/legal process. Details of the identity of the child should not be leaked to public or to the media.

X. Interrogation of women:

(i) Ref: Code of Criminal Procedure.

  • Section 46: No woman shall be arrested after sunset and before sunrise except in unavoidable circumstances. Where such exceptional circumstances exist, prior permission of the Judicial Magistrate should be obtained. The police officer shall not touch a woman unless the circumstances require or arrest is carried out by a female officer.
  • Section 160: No woman shall be required to attend any place other than where she resides.

Art. 40. No woman can be called to the police station or any other place for questioning. Where personal attendance of a woman is found necessary for investigation into a case, the police shall question her at her place of residence in the presence of her friend/family and a woman police officer. No woman shall be arrested or taken into custody after sunset and before sunrise except in unavoidable circumstances and with prior permission of the Judicial Magistrate. No bodily search of a woman can be conducted except by a woman police officer. The right to privacy, bodily autonomy, integrity and dignity of a woman shall be respected and guidelines pertaining to custody of women should be followed scrupulously. The officer having custody of the woman has a duty to ensure health and safety of the detenu. The Station House Officer shall ensure that no woman is subjected to any harm, abuse, intimidation, maltreatment whilst in their custody.

XI. CCTV cameras:

Ref: Paramvir Saini v Baljit Singh (Supreme Court of India, dt 02.12.2020)

Directions of the Supreme Court pertaining to installation and maintenance of CCTV cameras in police stations and other authorities authorised to arrest include:

  • CCTV cameras with night vision with audio and video recording to be installed in all police stations and authorities authorised to arrest. CCTV cameras are to be installed at all entry and exit points, the main gate of the police station, all lock-ups, corridors, lobby and reception area, verandas and outhouses, the inspector's room, sub-inspector's room, areas outside the lock-up room, station hall, in front of the police station compound, outside (not inside) washrooms and toilets, duty officer's room, behind the police station etc.
  • CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months.
  • State level Oversight Committee (SLOC) should be constituted comprising the following:

(I) The Secretary/Additional Secretary, Home Department;

(ii) Secretary/Additional Secretary, Finance Department;

(iii) The Director General/Inspector General of Police; and

(iv) The Chairperson/member of the State Women's Commission;

  • District level Oversight Committee (DLOC) should be constituted comprising the following:

(I) The Divisional Commissioner/ Commissioner of Divisions/ Regional Commissioner/ Revenue Commissioner Division of the District (by whatever name called);

(ii) The District Magistrate of the District;

(iii) A Superintendent of Police of that District; and

(iv) A mayor of a municipality within the District/ a Head of the Zilla Panchayat in rural areas.)

  • The duties of the Local Oversight Committees include: review footage stored from CCTVs in the various Police Stations to check for any human rights violation that may have occurred but are not reported.
  • The SLOC shall give directions to all Police Stations, investigative / enforcement agencies to prominently display at the entrance and inside the police stations / offices of investigative / enforcement agencies about the coverage of the concerned premises by CCTV. This shall be done by large posters in Tamil, English and Hindi and the vernacular language in police stations along the states border. For example in Kannada, Telugu and Malayalam where required in border area police stations alone.
  • In addition to the above, it shall be clearly mentioned therein that a person has a right to complain about human rights violations to the National / State Human Rights Commission, State or District Police Complaints Authority, the Human Rights Court or the Superintendent of Police or any other authority empowered to take cognizance of an offence. It shall further mention that CCTV footage is preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.

Art. 41. The directions of the Supreme Court in Paramvir Saini v. Baljit Singh regarding installation and maintenance of CCTV cameras in police stations and other agencies authorised to arrest should be meticulously enforced. CCTV cameras with night vision with audio and video recording should be installed at all entry and exit points, the main gate of the police station, all lock-ups, corridors, lobby and reception area, verandas and outhouses, the inspector's room, sub-inspector's room, areas outside the lock-up room, station hall, in front of the police station compound, outside (not inside) washrooms and toilets, duty officer's room, behind the police station etc. The recording should be stored and preserved for atleast a period of 18 months.

Art. 42. There shall be clear posters in Tamil, English (and other relevant vernacular languages in border towns/areas) notifying that a person has a right to complain abouthuman rights violations to the National/ State Human Rights Commission, State/ District Police Complaints Authority, Human Rights Court, Superintendent of Police or any other authority empowered to take cognizance of an offence. It shall further mention that CCTV footage is preserved for a certain minimum time period and that the victim has a right to have the same secured in the event of violation of his human rights.

Art. 43. In the event of any person alleging violation of human rights, such person or their next friend/ family member shall be allowed access to the CCTV recording to enable them to access remedies under law and ensure accountability.

Art. 44. State level and District level Oversight Committees shall be constituted in accordance with the Supreme Court directions. The relevant Oversight Committees shall periodically undertake review of footage of CCTV recordings to check for human rights violations that may have occurred but not reported.

Art. 45. Contact details of the Oversight Committees should be published at the police station/ arresting authority prominently to enable reports or grievances concerning CCTV recordings.

XII. Respecting fundamental right to dignity

Ref: (i) Constitution of India, Article 21

Every person has constitutionally guaranteed right to life, liberty and dignity. Verbal abuse, humiliation and insults such as making derogatory reference to a person's identity, community, occupation or other social-economic markers violate inherent human rights of a person. Laws such as SC/ST Atrocities Act, Indian Penal Code, TN Prohibition of Harassment of Woman Act 1998 prohibit verbal harassment of vulnerable communities.

Art. 46. The police shall respect the inherent human right to dignity of every person. In their interaction with any person, arrestee or otherwise, the police shall not insult, debase, humiliate or make any derogatory remark. In particular, casteist or sexist utterances or references that hurt the dignity of an individual should not be made.

XIII. Panel Advocate delegated by the Legal Services Authority

Ref: Section 12 of The Legal Services Authority Act, 1987

Every person in custody is entitled to legal services and aid of the Legal Services Authority.

Art. 47. The District / Taluk Legal Services Authority (Committee) shall periodically appoint a Police station duty counsel, one for at least three police stations in cities and smaller towns and one for a few or single police stations in rural areas whose duty it shall be to:

a) Visit the police stations that they have been assigned at periodic intervals in a day, but not less than twice in a day, in city limits towns and at least once surprise visit in rural areas ) to monitor and meet persons who are kept in custody – legally and illegally and ask them if they desire any free legal aid.

b) They will provide free legal services to persons in custody by formally representing their grievances to the SHO or the next senior police officer in the station at that point of time with a copy to the DLSA / TLSC .

c) The contact details of these Police station duty counsels ( with their names and mobile numbers ) shall be displayed prominently in the respective police stations by each police station – not only inside but outside and even on the compound wall of the police station for the family members of the persons in custody to know.

d) These police station duty counsels shall after every visit of the police station also be mandated to provide a written report to the DLSA / TLSC.

e) If in case they come to know of any instance of human rights violation was alleged by the persons in custody or their next friend/family or witnessed by them. These duty counsels shall advise the victim of human rights violations of their rights under law and assist in obtaining remedies available to them under law and bring it urgently to the attention of the DLSA / TLSA immediately and even before their daily report for them to in turn appoint a special counsel to attend to the complaint immediately and urgently.

XIV. Re-constitution of the State and District Police Complaints Authority:

Ref: (i) Prakash Singh v. Union of India

  • The Supreme Court directed that: "There shall be a Police Complaints Authority at the district level to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police. Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. The district level Authority may be headed by a retired District Judge while the State level Authority may be headed by a retired Judge of the High Court/Supreme Court. The head of the State level Complaints Authority shall be chosen by the State Government out of a panel of names proposed by the Chief Justice; the head of the district level Complaints Authority may also be chosen out of a panel of names proposed by the Chief Justice or a Judge of the High Court nominated by him. These Authorities may be assisted by three to five members depending upon the volume of complaints in different States/districts, and they shall be selected by the State Government from a panel prepared by the State Human Rights Commission/Lok Ayukta/State Public Service Commission. The panel may include members from amongst retired civil servants, police officers or officers from any other department, or from the civil society. They would work whole time for the Authority and would have to be suitably remunerated for the services rendered by them. The Authority may also need the services of regular staff to conduct field inquiries. For this purpose, they may utilize the services of retired investigators from the CID, Intelligence, Vigilance or any other organization. The State level Complaints Authority would take cognizance of only allegations of serious misconduct by the police personnel, which would include incidents involving death, grievous hurt or rape in police custody. The district level Complaints Authority would, apart from above cases, may also inquire into allegations of extortion, land/house grabbing or any incident involving serious abuse of authority."

(ii) G.O constituting Police Complaints Authority (G.O. (MS 0 No 643 Home (Pol VIII ) Department dated 14.11.2019

Art. 48. The State government shall expeditiously re-constitute the State and District Police Complaints Authorities as independent bodies headed by a retired judge of the High Court / Supreme Court and retired District judge respectively as directed by the Apex court in Prakash Singh v. Union of India. These Police Complaints Authorities should be provided adequate budgetary allocation, personnel and other resources to also conduct impartial investigation.

- Joint Action Against Custodial Torture (JAACT)

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