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Access to Medicines as a Human Right: Case study of India

Jul 11, 2014

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Access to Medicines as a Human Right: Case study of India. Prof. Frederick M. Abbott Harvard Human Rights Journal Symposium April 11, 2013 Cambridge, USA. Progress in the decade since Doha.

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Access to Medicines as a Human Right: Case study of India Prof. Frederick M. Abbott Harvard Human Rights Journal Symposium April 11, 2013 Cambridge, USA

Progress in the decade since Doha • Widened global awareness of public health problems, including those affecting developing countries • Substantially increased funding for procurement and distribution of necessary treatments, especially for HIV/AIDS, malaria and tuberculosis • Enabled by generic pricing • New R&D and production/distribution mechanisms established • For example, DNDi and Medicines Patent Pool • Stakeholder participation widened (e.g., Gates Foundation) • Improved cooperation among multilateral institutions

IP policy remains highly politicized • Case of South Africa Medicines Act led to Doha Declaration • Misuse of TRIPS Agreement • Inadequate institutional response entailed long-term damage • TRIPS Agreement embodies well-known flexibilities, as recognized by Doha Declaration • Common appreciation of nature of global public health problems not matched by cooperative approach to solutions • Stakeholder conflicts persist

Case Study of India • Commonwealth British Patents Act prior to 1970 resulted in foreign patent holder domination of the Indian pharmaceutical market, predominantly served by imports • 1970 Amendments to Patents Act eliminated product patents for medicines, allowing process patents • Indian generic industry developed advanced reverse engineering and production skills, and by mid-1990s was a major producer and exporter of drugs, often “on patent” elsewhere

The TRIPS Negotiations • India was among the lead "resisters" in the TRIPS negotiations, 1986-1993 • The transition arrangements for pharmaceutical product patents, including the "mailbox" and the provision for exclusive marketing rights, were largely the result of late-night endgame negotiations between India and the USA • India was subject to WTO dispute settlement complaint by the USA leading to first TRIPS dispute to reach the Appellate Body (India- Patent Protection for Pharmaceutical and Agricultural Chemical Products, Report of the Appellate Body, AB-1997-5,WT/DS50/AB/R, 19 Dec. 1997)

India-Mailbox decision confirmed TRIPS flexibilities • The Appellate Body said, "Members, therefore, are free to determine how best to meet their obligations under the TRIPS Agreement within the context of their own the legal systems. And, as a Member, India is ‘free to determine the appropriate method of implementing’ its obligations under the TRIPS Agreement within the context of its own legal system.”

India and the Doha Declaration • India played principal role in developing and negotiating the Doha Declaration • The initial "strong form" of the main provision (ultimately Paragraph 4), "Nothing in the TRIPS Agreement shall prevent” was developed by India • India was a key mover in the subsequent Paragraph 6 negotiations, authorizing "predominant" compulsory licensing for export • The issue was initially flagged at an MSF hosted meeting in New Delhi in 2001

Amendment of the Patents Act • India faced January 1, 2005 deadline for implementing pharmaceutical product patent protection • Intensive discussions commenced in 2003, early 2004 regarding potential form of amendments • Originator industry lobbied Government and was attentive to the drafting process • Initial proposal by Government reflected both policy and drafting problems from generic industry and "access" standpoint • Parliament became intensively involved, with social progressives demanding and ultimately obtaining important modifications

Key features of 2005 Patents Act • Pre-grant opposition maintained • Patenting of new forms of known compounds requires an enhancement of the "known efficacy" of the compound, with explanation: Explanation.- For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy (Section 3(d))

Key features of 2005 Patents Act • Transition form of prior user right in favor of drugs on market or in development as of January 1, 2005, with payment of reasonable royalty • Parallel imports authorized • Compulsory licensing provisions maintained with certain modifications • Improved procedure for exports under compulsory license • No "linkage" between Patents Act and Drug Regulatory Authority marketing approval process

Originator litigation • Novartis challenges constitutionality and compatibility with TRIPS Agreement of Section 3(d) • Faced "known" insurmountable obstacle to finding that statute was inconsistent with TRIPS Agreement because India follows Commonwealth model wherein treaties are not directly effective in national law • Despite known obstacles spent millions on attorney's fees • Constitutional challenge equally problematic • Madras High Court rejects challenge in 2007 • No direct effect of TRIPS Agreement • No constitutional infirmity from delegation of implementing and interpreting statute to India Patent Office

Bayer loses challenge on patent linkage • In February 2010, High Court of New Delhi dismisses Bayer against Drug Regulatory Authority marketing approval of cancer drug, Nexavar (sorafenibtosylate, prescribed for the treatment of advanced renal cell carcinoma) • Cipla had undertaken "at risk" launch, following marketing approval • Bayer argued linkage could be implied from a form used in approval submissions to the DRA querying whether drug patented • Court found that Parliamentary action would be required to establish linkage -- a well-known and important issue in India and elsewhere -- and that extrapolation from a question on an application form a to0 wide stretch

India challenges drug seizures • On May 11, 2010, India initiates dispute settlement consultations at the WTO with the European Union and the Netherlands challenging seizures by Dutch customs authorities of generic drugs in transit based on local patents in the Netherlands • Following consultations, EU agrees to interim settlement acknowledging that mere transit through EU territory does not constitute sufficient basis for suspicion of infringement of patent rights • Commits to issuing guidelines to customs authorities and proposing revision of customs regulations • Final settlement and withdrawal of dispute settlement claim contingent on terms of revised regulation

Compulsory license on Nexavar granted • India Controller of Patents grants compulsory license on same Bayer drug, Nexavar, in favor of NATCO • Three grounds applied • Lack of accessibility • Lack of reasonable affordability • Failure of local working • Bayer had supplied very limited quantities to the Indian market • Bayer argued that Cipla already adequately supplying market, so that compulsory license unnecessary • Bayer introduced limited evidence of program designed to provide accessible-affordable product

Compulsory license on Nexavar granted • Prices far in excess of those affordable to the public, including with government assistance • Had sought to supply requirements only through importation, and had not demonstrated sufficient obstacle to local production • Bayer alleges Cipla production infringes patent, cannot rely on activities it claims are illegal as defense • Affirmed by Intellectual Property Appellate Board on March 4, 2013 • Minor variation in ruling on local working • Bayer has indicated intent to appeal

Novartis Appeals rejection of Glivec/Gleevec patent application • Decision of Supreme Court of India of April 1, 2013 • Referring now to my contribution to Intellectual Property Watch: Inside Views, "The Judgment in Novartis v. India: What the Supreme Court of India Said” • <http://www.ip-watch.org/2013/04/04/the-judgment-in-novartis-v-india-what-the-supreme-court-of-india-said>

Decision of India Supreme Court • A reasonable and balanced interpretation of the India Patents Act • Novartis claims of enhanced efficacy problematic • Court does not hold that new forms of known compounds may not be patented • Court does not find that bioavailability may not enhance therapeutic efficacy • Court leaves open important interpretative issue regarding enhanced therapeutic efficacy as between curative effect, alone, or also improve safety or toxicity profile • Court refers to evidence that Novartis was not marketing beta crystalline form in India

The continuing cycle of action and reaction • Novartis, Pfizer and US Chamber of Commerce strongly condemned decision as anti-innovation • Represents instead reasoned decision regarding appropriate place in continuum for granting patents, reflecting in large measure pre-1995 patent law • Press is mobilized to question India's suitability as investment destination and trading partner • Perhaps not so successfully as in past, see e.g., New York Times editorial

The human rights angle • Each of the decisions by the Indian courts referred to above pay particular attention to the interests of India's large poor population and need for access to medicines • A number of the cases are argued by Anand Grover, UN Special Rapporteur on the Right to Health • Specific reference to Human Rights instruments is not a prerequisite to a human rights decision

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This article explains 20 Landmark Cases on Human Rights that happened in the history of India and also proved to be essential in adding core value to the concept of Human Rights. Human rights are actually basic rights and freedom that belong to every individual in the world from birth until death. Through various cases, it has been reflected that the life, liberty, privacy, and dignity of any individual must be given paramount significance.

The author admires the role of the judiciary in the protection as well as promotion of human rights. The apex court of our country has always utilized its power of interpretation with such perfection that definitely broadened the scope of rights and as such made it expedient for people to enjoy their human rights.

Human Rights: A brief introduction

The concept of human rights is a very basic concept that is known to all of us in some or the other way. Rights that all we humans possess are human rights and are subject to protection. Respecting human rights should be considered a responsibility towards each fellow human being. At the same time, we cannot overemphasize only the rights and ignore duties. The rights of the children imply corresponding duties of the parent; the rights of women imply corresponding duties of the men towards women folk; we should perceive them.

If everybody does his duty the question of rights will not arise at all. The education on human rights should be undertaken in this manner that instead of worrying about the rights, one must be careful of the duties that one is performing.

All humanity is one undivided and indivisible family, and each one of us is responsible for the misdeeds of all the others. I cannot detach myself from the wickedest soul. – Mahatma Gandhi

1. Ramlila Maidan Incident v. Union of India and Ors. [1]

This case dates back to 2011 wherein there was an organization named Bharat Swabhiman Trust that tried to organize a yoga training camp that was supposed to include around five thousand people in Delhi's Ramlila Maidan . However, the situation did not seem to be simple. Because of an anti-government agitation on the issue of corruption and black money , instead of five thousand people, nearly fifty thousand people gathered on the grounds and the police had to implement Section 144 of the CrPC prohibiting the crowd from further creating any ruckus.

After Section 144 got implemented, it didn't take much time for the police to move inside the Ramlila ground at midnight while everyone was asleep and started lathi-charge and forced the citizens to empty the ground. This led to further agitation among citizens as they started throwing bricks and further, the police retreated with tear gases.

The court held that there is a difference between restriction of a right and prohibition of a right where the prohibition of the right standard can only be applied to such cases where no lesser alternative would be adequate.

Court also said that Section 144 intended to serve the public purpose and this section could only be invoked when the authorities are satisfied that there is an immediate need for prevention of danger and damage to human life, and safety and there is a prima-facie disturbance. The court also heavily criticized the police for its act of entering the grounds at midnight and said that reasonable notice must be provided to the public before imposing such an order to allow the public to leave the concerned site.

Through this case, a very important right of right to privacy of the sleeping person from inclusion was protected and the code observed that privacy also prevails while a person is sleeping.

2. M.C Mehta v. Union Of India [2]

In 1985, there was a leakage of Oleum gas from one of the units of Shriram Foods and Fertilizers Industries in Delhi, belonging to Delhi Cloth Mill Ltd. In this leakage, hundreds of lives were taken. In this case, the issues were basically related to whether such hazardous industries should be allowed to be operated in such areas and if they are allowed, whether any regulating mechanism should be evolved.

However, if explored from the Human Rights angle , the court held that in Oleum Gas Leak Case , a Constitution Bench discussed this question at length and held thus:

"We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken".

3. Lalita Kumari v. Government Of Uttar Pradesh & Ors. [3]

In this case, a minor girl was kidnapped and when the father of the girl approached the police station the police refused to register the FIR. The father then moved to the Supreme Court over the failure of the police to register the FIR and simultaneously it was registered on the order of the court. The petition filed by the father was that the court must direct the police to apprehend the suspects and recover the girl.

In this case, which was related to the duty of the police to mandatorily register an FIR for the commission of a cognizable offence when came to the final judgment, the court said that the registration of FIR is mandatory under section 154 of the Criminal Procedure Code , and if the offence is cognizable no preliminary inquiry is permissible in such situation as the scope of preliminary inquiry is not to cross-check the veracity of the information received but only to make sure whether the information reveals any cognizable offence.

Also, an important stance taken by the Court was that while ensuring the rights of the accused and the complainant, any inquiry which is done firsthand must be time-bound and should be completed within 7 days.

4. Olga Tellis v. Bombay Municipal Corporation, 1985 [4]

This case dated back to the year 1981, wherein, in the state of Maharashtra it was decided by the municipal corporation that the pavement dwellers and those residing in slums must be evicted. Simultaneously, the then Chief Minister of Maharashtra made an announcement over the same, and not much later a writ petition in the High Court of Bombay for an order of injunction was filed. The issues involved in this case were related to the scope of the right to life under Article 21 of the constitution and the question was whether pavement dwellers are responses under the Indian Penal Code.

The exact words of the court were:

"No individual can trade the freedoms that are conferred on him by the Constitution. A concession made by him in a proceeding, whether by an error of law or otherwise, that he does not possess or assert a particular fundamental right, cannot create an estoppel against him in this proceeding or in any other subsequent procedure. Such a concession, if implemented, would run counter to the purpose of the Constitution."

The court said that the Right to Life which is protected under Article 21 is very far-reaching and it cannot be stated that life can be removed only in accordance with the procedure established by law; the right to livelihood is a very important aspect of the right to life as no one can live without means of subsistence at any given time.

5. Vishaka v. State Of Rajasthan, AIR 1997 SC 3011 [5]

This was indeed a landmark case in the history of Human Rights when it comes to the working condition for women. In this case, the Supreme Court witnessed a PIL against the state of Rajasthan and the Union of India filed by Vishaka and a few other women. In this case, a social worker named Bhanwri Devi was brutally gang-raped while she was doing a noble cause of barring child marriage. However, due to insufficient evidence, the case was dismissed.

This case spread like fire among all the women workers and sexual harassment in the workplace which is violative of Fundamental Rights under Articles 14, 15, and 21 was questioned.

The court held that clearly there has been a violation of Articles 14, 15, and 19 (1) of the constitution and also violations of all the international conventions that India was a part of. Through this case, Vishaka guidelines were issued and the judgment also provided some basic definitions like that of 'sexual harassment at the workplace along with that, guidelines for protection were provided as well. ( Read More about Vishaka v. State Of Rajasthan Here )

6. Shreya Singhal v. Union Of India [6]

In this case, two women posted some objectionable comments on Facebook regarding the 'bandh' (shutdown) announced in the city of Mumbai after the death of a political leader. They were arrested under section 66A of the Information Technology Act . However, they were released later on. This incident gained a lot of media attention and the issue concerned was whether it infringes the fundamental right to free speech and expression.

The petitioner argued that this section is unconstitutional as it encourages annoyance, danger, obstruction, and ill-will; and further, they said that this law has a 'chilling effect on the right to freedom of speech and expression. The court held that Section 66A is violative of the Fundamental Rights under Article 19(1)A of the constitution and therefore section 66A of the IT Act must be declared void. The court declined to address the petitioner's challenge of procedural unreasonableness as the law was already declared unconstitutional in the previous proceedings.

7. National Legal Service Authority (NALSA) v. Union Of India [7]

This was a very special case and probably the most important one in the history of Human Rights in India. Transgender, who also form a part of the population were not legally recognized as persons before this judgment. They faced inequalities in various walks of life and their human rights were often violated. This case was filed by the National Legal Service Authority of India with the view that transgender must be legally recognized as persons who do not fall in the category of either male or female but in a different category as the third gender.

In this case, along with recognizing a transgender as the third gender, there was a long and complex discussion over gender identity. The court recognized transgender as any other person have Fundamental Rights under both Constitution of India and International Laws . It was decided that transgender persons have all the rights including the right provided under Articles 14, 15, 16, 19(1) A and 21 of the constitution .

The apex court also referred to International Human Rights Treaties and the Yogyakarta Principles to recognize the Human Rights of transgender people. Along with recognition of their rights, it was ordered that they must be treated as minorities and for them, there must be reservations in jobs, education, and other sectors as and when the need arises.

8. Mohammed Ahmed Khan v. Shah Bano Begum [8]

In this case, the petitioner Shah Bano Begum was thrown out of the matrimonial home by her husband uttering ' talaq ' three times. Her husband abandoned her from the maintenance of Rs. 200 which he was supposed to give. After pronouncing triple talaq, he hid under the veil, that he is not supposed to give any maintenance. The Local Court however directed Muhammad Ahmad to furnish Rupees 25 per month as maintenance to Shah Bano.

The petitioner further took this case to the Supreme Court wherein, the judgment as pronounced by CJ Chandrachud was that section 125 (3) of the CrPC. solicited Muslims without any sort of discrimination. Supreme Court held that it is the responsibility of the husband towards the divorced wife to maintain her. In short, the Supreme Court specifically put pressure on the statement that triple talaq cannot take away the maintenance right of a divorced Muslim woman who is unable to maintain herself or her children.

This case particularly focused on the Human rights of a woman irrespective of her religion . This case proved to be a landmark judgment as based on it, many cases with similar issues were resolved. (Read More about this case Here)

9. Harvinder Kaur v. Harmandir Singh Chaudhary [9]

In this case, the petitioner was married to Harmandir Singh and both of them were employed. From the wedlock, they had a child and subsequently, the petitioner moved out with the child and the husband filed a case under section 9 of the Hindu Marriage Act after which the petitioner filed this present case in the Delhi High Court challenging the constitutional validity of section 9 of the Hindu Marriage Act.

The issue was whether Section 9 was constitutionally valid and whether or not the degree for restitution was against the right to life, equality, and privacy . The High Court while deciding the matter found that the trouble from the wife was intentional and without a reasonable cause and hence, the Delhi High Court dismissed the appeal. The court rejected the plaint that personal law was discriminatory towards gender inequality in India. It also said that the introduction of constitutional law into the home (pointing towards the personal laws) was most inappropriate in India.

10. Kesavanand Bharati v. State of Kerala [10]

This very famous case of 1973 was decided by the largest bench in the history of India which was 13 judges bench . The petitioner was the founder of 'Edneer Mutt' situated in Kerala and he challenged the Kerala government's attempt to impose restrictions on the management of its property.

Through this case, India was gifted with the Doctrine of Basic Structure . The court held that the doctrine of basic structure cannot be violated and accordingly the court outlined that the power to amend the basic structure is very very limited. It is to be noted that this case overruled the Golaknath case and the court specifically said that only because the Parliament has the power under Article 368 of the constitution , it cannot rewrite the whole constitution taking into view its power. (Read More about this case Here)

11. Habeas Corpus Case – ADM Jabalpur v. Shivakant Shukla [11]

This case came into existence at the time of emergency when Smt. Indira Gandhi's election to Lok Sabha was challenged before the Allahabad High Court and agitated from the same she declared an emergency on 26th November 1975 under which a lot of people including renowned politicians like Jai Prakash Narayan and Atal Bihari Vajpayee were arrested under (Maintenance of Internal Security) MISA Act . A lot of petitions throughout the country started rushing into the courts and petitioners started getting judgments in their favour as well.

The government became concerned with the High Court's order and therefore approached the Supreme Court in the case of ADM Jabalpur v. Shivakant Shukla. This case was a black spot in the Indian historical judgment led by five judges bench.

Justice H.R. Khanna gave a biased judgment which was heavily criticized. The constitutional validity of Section 16A (9) of the MISA Act was also upheld . Even Justice Bhagwati expressed his regret for siding with the majority by saying that he was wrong not to uphold the cause of individual liberty. But as soon as the emergency ended the Supreme Court changed its decision by giving Article 21 a permanent status and linking it with Articles 14 and 19 . (Read More about this case Here)

12. Joseph Shine v. Union of India [12]

In this case, the petitioner Joseph Shine filed a PIL under section 32 of the Constitution challenging the constitutionality of the offence of Adultery mentioned in section 497 of the Indian Penal Code read with section 198 (2) of Cr.P.C.

In this case, the Supreme Court said that the husband is not a master of the wife and therefore adultery cannot be treated as a crime however it still is a reasonable ground for divorce and it will be considered criminal if it leads to abetment of suicide. Other than that, adultery is not a criminal act as it violates the dignity of a woman infringing Article 21 of the Constitution and ultimately the Human Rights. In July 2018, the Supreme Court struck down section 497 of the Indian Penal Code considering it violative of Articles 14 15, and 21 of the constitution .

13. Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors. [13]

This case infamous as the Sabrimala case was an important judgment both in terms of human rights as well as busting the religion-related myths. The Sabrina temple located inside the Periyar Tiger Reserve in Kerala restricted the entry of women between the age of 10 and 50 which is the menstruating age of women , from entering into the temple.

The Supreme Court received restrictions over the matter through Article 32 of the constitution of India and after a long led trial, it decided that the step of devotion to divinity is not subjected to the rigidity and orthodoxy of gender which as a result affects the dignity of women and degrades their status. The Supreme Court allowed the entry of women into the Sabarimala temple and upholding the principles of human rights , stated that devotion cannot be subjected to gender discrimination .

14. Navtej Singh Johar v. Union Of India [14]

In this case, the Supreme Court took Article 14 as the base of the judgment. The court said that criminalizing the consensual sex between two individuals only because they are homosexual is against the order of nature and is not a proper intelligible differential and has no rational nexus.

The Supreme Court also added that sex includes both biological sex plus sexual orientation which was earlier observed in the Naz Foundation case and said that it is the proper approach to steer this case as well.

Justice D.Y. Chandrachud said,

human sexuality cannot be narrowly defined and Article 19 gives the freedom of expression and includes expressing one on identity without any fear. Taking Article 21 into consideration the court said that the right to life and liberty includes privacy, dignity and autonomy for each individual. Section 377 cannot be put as a restriction before the individual to enjoy all the above-mentioned rights.

15. K. Basu, A.K Johri v. State of West Bengal [15]

This case is infamous as D.K. Basu case is one of the landmark cases that prima facie deals with custodial deaths but relates to human rights in terms of the arrest of a person . D.K. Basu was the executive chairman of the Legal Aid Service of West Bengal. He wrote a letter to the Supreme Court of India mentioning an incident of death in police custody and lockups. He requested the letter to be treated as a writ petition under Public Interest Litigation .

Upon the same being accepted, Mr. A.K. Johri wrote another letter to the Chief Justice of the Supreme Court mentioning a man named Mahesh Bihari who died in police custody.

This Supreme Court held that prisoners should never be deprived of their fundamental rights guaranteed to every person under Article 21 and only reasonable restrictions could be imposed upon such rights without infringing them together. In the same case, the Supreme Court gave around 11 guidelines notwithstanding the constitutional provisions which were to be followed while making arrest and detainment upon failure of which department inquiry will be set up and also contempt of court proceedings in High Court will be taken up.

Human rights also extend to prisoners and detain is was the important principle that was revised in this case.

16. Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab [16]

In this case between Shri Gurbaksh Singh Sibbia and the State of Punjab, the Supreme Court of India held that the courts' discretion to provide anticipatory bail cannot be nearly restricted because the punishment for a specific crime is death or imprisonment. Gurbaksh Singh Sibbia was the Minister of Irrigation and Power in the state of Punjab under the Congress government. He, along with a few other persons was facing serious allegations of corruption.

The minister along with others applied for anticipatory bail under section 438 of the Code of Criminal Procedure and also prayed from the High Court to direct the appellants to get bail in the due course of arrest on the basis of the above-pressed charges. It didn't take much longer for the High Court to dismiss the application but on special leave to appeal the application was allowed by the Supreme Court .

Now, the question arises of how is it related to human rights . It indeed is because by restricting a person who is doubted to do some wrong we protect the innocent and on the other hand, sometimes the innocent are unnecessarily harassed for malafide purposes. In both circumstances, it becomes the moral duty of the courts to think from the perspective of Human Rights to arrive at a better conclusion.

17. Ritesh Sinha v. State of Uttar Pradesh and Ors. [17]

This case was a landmark case in Human Rights relating to the power of a magistrate to order an accused to give their voice samples to the police for comparison. In this case, during the investigation, the police wanted to collect the voice example of an accused to compare it with the recorded conversation which was evidence. However, the accused refrained from doing so and mentioned that there was no specific provision in the CrPC for the same, and neither did the magistrate possess any power to give such a direction to gather a voice sample.

Now the question arose whether Article 20 (3) of the Indian Constitution extends to protect such accused from being forced to give their voice sample during the interrogation .

The court said that in collecting such samples there are no specific provisions mentioned in the CrPC. however, there are provisions relating to the collection of DNA samples, handwriting samples, blood samples, etc, so taking voice samples would not be unfair, and coming on the privacy terms compelling a person to give a voice specimen does not become violative of their fundamental right to privacy ; and to give an example, the court stated the famous case of K.S. Puttaswamy v. Union of India .

18. PUCL v. Union Of India [18]

What will you do if you get to know that your phone is being tapped? This indeed was a very interesting case relating to the burning topic of tapping of phone calls. The petitioner who was from a civil rights organization filed a PIL in the Supreme Court in which the authenticity of Section 5(2) of the Indian Telegraph Act, 1885 was challenged.

According to the section, the government is authorized to intercept the phone for any specified reason. In the petition, it was mentioned that the power of interception was undefined and very arbitrary. The Supreme Court observed that section 5(2) did not mention any specific procedure according to which the interception should be exercised and yes it was arbitrary and not reasonable and fair. So, without declaring the section unconstitutional, the court set up procedural safeguards instead for those authorized for tapping phones.

19. State of Haryana and Ors. v. CH. Bhajanlal and Ors. [19]

In this case, the petitioner was a former Chief Minister of the state of Haryana and was accused by his political rival of gathering wealth that exceeded his income. Subsequently, an FIR was registered under the Indian Penal Code and Prevention of Corruption Act and the petitioner sought to quash the FIR. However, the High Court after discussing the allegations held, that allegations against the petitioner don't constitute and therefore there was no bias for the police to have registered FIR, and subsequently it was further challenged by the state before the Supreme Court.

The Supreme Court held that the High Court has the power to quash the FIR to protect an accused from malicious prosecution when a proceeding is instituted with the wrong intention of simply harassing a person the court can step in to cause the entire proceeding to meet the ends of justice. In this case, the Supreme Court issued seven guidelines to be followed by the court in the exercise of its inherent powers rested by section 482 of the CrPC .

20. Sarla Mudgal v. Union Of India [20]

In this case, there were various petitioners including Meena Mathur, Sunita Narula, alias Fatima, Geeta Rani, and Sushmita Ghosh. The issues that were raised in this case were whether a Hindu husband married under Hindu law by embracing Islam can solemnize the second marriage and whether such a marriage without dissolving the first marriage under the law would be a valid marriage also the question was whether the apostate husband would be guilty of the offence under section 494 of the IPC .

The court considered the practice of converting to another religion for the purpose of second marriage without dissolving the first marriage as invalid because it was against the principle of justice equity and good conscience. The court also stated that mere conversion from one religion to another does not dissolve the first marriage of a person and the only way to dissolve a marriage is by divorce obtained by the competent court.

There is a very famous shloka in the Hindu mythology that goes:

Sarve Bhavantu Sukhina, sarve santu niramayah Sarve bhadrani pasyantu, ma kaschiddhu khabhagabhaveta

It means that may all sentient beings be at peace, may no one suffer from illness, May all see what is auspicious, may no one suffer. May we get peace, peace, and peace.

Although law has no religion except meeting the ends of justice, we can relate that Human Rights are based on the principle of well being of all, whether by granting justice to one or by reasonably restricting another. And as Mother Teresa said

" Human Rights are not a privilege conferred by government. They are every human being's entitlement by virtue of his humanity."

References:

[1] Writ Petition (CRL.) No. 122 of 2011

[2] M. C. Mehta v. Union Of India 1987 AIR 1086, 1987 SCR (1) 819

[3] Writ Petition (Criminal) No. 68 OF 2008

[4] Olga Tellis v. Bombay Municipal Corporation, 1986 AIR 180, 1985 SCR Supl. (2) 51

[5] Vishaka v. State Of Rajasthan, AIR 1997 SC 3011

[6] Writ Petition(Criminal) No.167 OF 2012

[7] Writ Petition (Civil) N0. 400 OF 2012

[8] 1985 AIR 945, 1985 SCR (3) 844

[9] AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187

[10] Writ Petition (Civil) 135 of 1970

[11] 1976 AIR 1207, 1976 SCR 172

[12] Writ Petition (Criminal) N0. 194 OF 2017

[13] 2018 SCC OnLine Ker 5802

[14] Writ Petition (Criminal) N0. 76 OF 2016

[15] Writ Petition ( CRL.) NO. 592 OF 1987

[16] 1980 AIR 1632

[17] Criminal Appeal N0. 2003 OF 2012

[18] AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) SCALE 318, (1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ 187 SC

[19] 1992 AIR 604, 1990 SCR Supl. (3) 259

[20] 995 AIR 1531, 1995 SCC (3) 635

• Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams
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Aayushi Tiwari

A Law Student and a lifetime humanitarian from the historically rich state, Bihar. Avid reader, writes to bring a difference and a public speaker to enlighten others.

Related News

Human Rights Violations By Police In India: A Comparative Case Study

• Author(s): Asian Law & Public Policy Review
• Publication Date: September 18, 2020

Contents of this Post

  Written by Spoorti Reddy*, Nidhi Epur** & Pravalika Balaram***

*5th Year BBA LLB Student, Symbiosis International University, Hyderabad, Telangana

**5th Year BBA LLB Student, Symbiosis International University, Pune, Maharashtra

***5th Year BBA LLB Student, Symbiosis International University, Pune, Maharashtra

Custodial Death or Arrest-Related Death refers to the death of a detainee while in police or judicial custody, prison and extends to any harm done during the process of detaining a suspect or accused. When a State takes away the personal liberty of a person, they should hold complete responsibility for the life and physical integrity of that person. Whether it’s the police custody in India or all the way to the west in Minnesota, unlawful or excessive use of force by the police has been more prevalent than ever, this torture does not limit to just physical but also extends to mental and sexual torture. In this paper, we’ve analysed the Indian Legal System’s evolution and the present situation regarding this issue, we also dealt with the Human Rights Violations with the help of statistics. These cases are not restricted to a Geographical area with high police influence and uneducated or poverty-stricken people, even evolved nations such as the US are not immune to this problem, reminding us the statement “The US is a third world country wearing a Gucci belt.” Further in this paper, a detailed analysis of “George Floyd” and “Jayraj and Bennicks” cases along with a comparative analysis has been made, which occurred in the same timeline. We have taken into consideration the Legislative, Judicial and also the public involvement while studying the actions being taken post these unfortunate events. This paper is concluded by mentioning various recommendations and measures from Human Rights Commissions and Judiciary and also our personal suggestions.

INTRODUCTION

From the streets of Minneapolis to the police custodies in India, unlawful use of force by police has been more prevalent than ever such that it has led to end in death, injury and devastation in the suspects. The term “police brutality” can be defined as a civil rights violation where a police officer uses excessive force against a suspect. This includes, bullying, beatings, physical or mental torture, indiscriminate use of riot control agents at protests, damage to property or even causing death. [i] Such unlawful use of force by police violates the right to life and personal liberty, right to be free from discrimination and the right to equal protection under the law.

International laws governing police brutality

Various strict international laws and standards were adopted and implemented through the years to govern how and when police can use force. One of the international instruments that deals with police use of force, in particular, is the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (BPUFF) [ii] As according to this law, the police officials should only ever use force as a last resort i.e., only when using such force is necessary to protect others or themselves from imminent danger of serious or fatal injury. The basic and utmost obligation of the law enforcement authorities is to protect the right to life of the citizens. However, looking at the increasing number of cases of brutality around the world, it is evident that there has been a wide misuse of power by the officials in uniform who have clearly missed the above-mentioned criteria. For instance, in the USA, Micheal Brown, Breonna Taylor, George Perry Floyd and many other Black people were unarmed. Similarly, in India, during the protests against a bill passed in the legislature, the police subjected several students to torture by entering a university in December 2019.

The U.N. General Assembly on December 10 th , 1948 adopted and proclaimed the Universal Declaration of Human Rights which came into force on January 3 rd , 1976. Many countries including developing nations like India are the signatories of the same. It particularly states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. [iii]

Further, the Convention against torture and other cruel, inhuman or degrading treatment was adopted by the UN General Assembly on 10 th December, 1984 (marked resolution NO. 39/46). India signed the Convention on October 14 th , 1997. However, the same has not been ratified ever since. [iv]

Speaking of which, India has a long history of police brutality and custodial torture which in the majority of cases led to the death of the subjects. Police brutality causing custodial violence includes death in the jails where the suspects are extremely vulnerable. [v] The police with a view of acquiring evidence and statements from the suspects, indulge in violent investigating procedures causing a permanent mental and physical impact on the suspects.

Current scenario

The recent ground-breaking case of police brutality which has gained massive media attention is the murder of an African-American George Perry Floyd by a white policeman. The entirety of the United States of America erupted into flames over the atrocious and evident racism which is still prevalent till date. This brutal incident led to violent protests, demonstrations and clashes in nearly all the states. The protestors led riots with the slogan “Black lives matter” all over social media over the brutality of police towards their subjects. This incident proves that racism hasn’t gotten worse with time but is getting filmed more often. These protests did not just limit to the United States of America, but people all over the world protested using the same slogan. [vi]

Not quite later, in June, 2020, a similar but more barbaric case of police brutality came into light when a father and son in Tamil Nadu, India were subject to extreme cruelty and torture in the police custody to such an extent that they succumbed to their injuries. The international attention obtained in the George Floyd case led to bringing these cases to the media attention and people in India began protesting and posting about this case calling the duo, “India’s George Floyds”.  Further in this paper, a detailed analysis of both these cases which occured in the same timeline is provided along with which a comparative analysis of both the cases have been mentioned.

HISTORY OF HUMAN RIGHT VIOLATIONS BY POLICE IN INDIA

Human Right Violations by the police have been prevalent since ages. It has its initial traces in the Islamic rule where Hindus were openly discriminated by the Muslim rulers. The police under their rule were corrupt and extremely oppressive towards the public. The same oppression and corruption were practiced even when the British took over the political responsibilities. Revenue was collected from people through various forms of torture. This culture of neglecting human rights and treating people with little to no regard continued even after India got its independence. There was no training given to officials in scientific investigation, so the only method of investigation resorted to was the third-degree. It was used to extract confessions or to force them to make statements. There were various techniques of physical torture some of them being burning with cigarettes, beating the bare body with cane, stamping bare body with boots, inserting live wires into crevices etc [vii] The Emergency period in India was one of the times when there were grave violations of human rights. Wide powers were given to even the lowest rank of police officials. During this period various atrocities were committed on poor people, students, teachers etc. In one such case a student was tortured to death in a police camp.

In the Eighties the graveness of the torture inflicted on people increased. People were tortured even during the investigations of ordinary crimes like theft. The Indian Press reported one such case where a suspect of theft was beaten till his legs were broken in Varanasi. Torture methods were mainly used on people from weaker sections of the society like the tribals, harijans etc. The methods of torture during the eighties included hanging upside down, severe beating until limbs are broken, burning etc. After inquiries when it was found that a certain death was in custody due to police torture the only punishment given to the official was to be suspended for a few days or transferred. [viii]

After the Eighties the torture techniques grew to be even more repressive, these techniques did not leave any scar on the victim. A young boy named Munna described his experience of torture at the police station saying that they had beaten his legs up until they were swollen and wrapped a bandage around his head to pass electric shocks through it. [ix] Towards the late eighties hundreds of people were tortured and executed extra judicially. In some cases, this was done to mere suspects of small crimes or to people detained only for the purpose of extortion. [x] People killed by torture were thrown in waterbodies or fields.

CAUSES OF HUMAN RIGHT VIOLATIONS BY THE POLICE

• Background of the Victim- It is time again proven that people from poor and marginalised sections of the society are taken undue advantage of by the police as they feel that this sector is a soft target. Race, Gender, Colour, Caste plays a major role in this.
• Political Interference and Corruption- Political Influence is one of the main reasons for improper methods of investigation, torture and killings. Police officers are often made to obey the instructions of the ruling party irrespective of its lawfulness, this prevents the police department from being independent and impartial. In addition to this due to minimum wages provided to police they are tempted to earn income through unlawful sources. Corruption leads to two problems, lenient enforcement of law towards the people in power and human right violations of the weaker section.
• Poor Investigation System- Police are not given the training on using scientific methods of investigation, the only method they are aware of is third-degree. The equipment and facilities required to conduct scientific investigation is also not provided. In most cases crime scenes are investigated by junior officers or constables who have zero knowledge about scientific investigation.
• Problems in Statutory Provisions and Judiciary- There are no clear guidelines laid down to regulate the actions of police. Hence there is an assumption that police are immune from being charged with anything. [xi] One of the main problems is that the Police Administration itself has been given the responsibility to regulate police actions. Therefore, the chances of prosecuting a police who has committed a crime are very less as both the criminal and judge belong to the same department. There are high rates of acquittal of police in cases of custodial death, even if punishment is awarded it is not proportionate to the harm caused which gives confidence to officials that they can get away with anything
• Poor Inspection of Lock ups- There are obligations through international standards [xii] to regularly inspect and supervise lock ups and these obligations have not been met with.
• Faulty Medical Reports- Medical reports for post mortem are often found to be faulty as they are written under political pressures. Personnel to conduct post mortem are not trained well. [xiii] Reports are written long after the post mortem is conducted. This ultimately gives police personnel the confidence that crimes committed by them will be covered up.

Apart from these there are other reasons like the social economical and mental factors. Social and family life of an official place a major role, for instance if he is an alcoholic leading to poor decision making. Police Officials are one of the least paid government employees, which prompts them to give into corruption. Psychological Reasons like sadism, sexual weakness, hatred towards people are some reasons for police violence.

CASES REPORTED AND ACTION TAKEN AGAINST POLICE

As per the records of National Human Rights Commission, in the year of 2019, a number of 1,723 deaths occurred due to torture in police custody and judicial custody combined. The number of deaths due to torture in police custody alone were 117 [xiv] . Therefore, the number of custodial deaths in the year of 2019 were recorded at an alarming rate of over five persons per day.  Deaths in police custody occur mainly due to torture by the police personnel. As per the records of National Campaign Against Torture, in the year of 2019, out of 125 death, 93 occurred in police custody due to alleged torture and foul play, police claimed that 24 persons out 125 committed suicide or died due to illness while the death occurred under suspicious circumstances, and the reasons for 5 deaths were unknown. [xv] The majority of the victims that died in police custody belong to the poor or marginalised section of the society, reason being that they are an easy target. Out of the 125 deaths that occurred in police custody, 75 persons belonged to the minority groups i.e almost 65% of the total deaths.

Deaths in Police Custody Reported in India in 2019 [xvi] (Table 1)

One of the main reasons for inflicting torture in the above cases is to extract confessions or gather information from suspects of petty crimes like theft. Another reason is to extract bribe from the suspects or his/her family members. Method of torture in the above cases include slapping, kicking with boots, beating with sticks, pulling hair, hammering iron nails in the body, applying roller on legs, burning, hitting private parts, applying chilli powder on private parts, etc.

Action taken against police

In the past years, the rate of conviction of police officers for torturing and killing people in police custody has been very low. A lot of factors play a role in this, but one of the main reasons is that the law itself safeguards the acts of the police. Section 197 of Criminal Procedure Code states that if a government officer commits a criminal offence in the discharge of his duty, he cannot be prosecuted without a prior sanction of the Central or State Government.

The National Records of Crime Bureau in its Crime in India Reports from the year 2005 to 2018 recorded that a total number of 500 cases were reported for death or disappearance of people who were in police custody, out of these only 281 cases were registered, 54 personnels were charge sheeted but not a single conviction.

NRCB recorded that in the year 2018, a total of 70 deaths in police custody were reported and out these 9 personnels in 3 cases were only arrested without even a charge sheet being filed against them, neither were they convicted later on. In 3 cases of torture and injury in police custody, one personnel was arrested but no conviction. [xvii] In the same year across the country, 89 cases were filed for violation of human rights by police, out of these 40 were arrested, only 26 were charge sheeted, and none convicted. [xviii] Further out of 70 deaths in police custody in 2018, only in 27 cases mandatory judicial enquiries were conducted.

According to the information under Right to Information Act, from the year 2015 to 2019, the National Human Rights Commission received a total number of 211 fake encounters carried by police in India. Compensation was only provided in 25 cases; however, no punishment was awarded to the personnels.

ENDEAVOURS TO PREVENT HUMAN RIGHT VIOLATIONS

Action taken by judiciary.

The inhumane acts of the police officers include harassment and impetuous behaviour towards the accused during the arrest procedure. The supreme court in the case of Joginder Kumar v. State of U.P [xix] opined that no individual can be arrested without an investigation about the bonafides and genuineness of a complaint given and only after a responsible belief and a reasonable satisfaction can any such arrests be made and not merely on a suspicion. The court in this judgment considered the ‘doctrine of personal liberty’.

The Lahore High Court in the cases of Sunder Singh v. Emperor [xx] and Amolak Ram v. Emperor [xxi] the stated the importance of the legal access of an accused both while in custody and during the defence at the trial. The Supreme Court in the cases of Sunil Batra v. Delhi Administration [xxii] and Prem Shankar Sukla v. DeIhi Administration [xxiii] reacted against the usage of handcuffs unless where a necessity arises and stated its usage as “barbarity hostile to our goal of human dignity and social justice”

The Supreme Court in the case of D.K. Basu v. State of W.B. [xxiv] stated that custodial torture is a calculated assault on human dignity and condemned any such actions by the police. The court also observed that “Custodial violence, including torture and death in the lock- ups, strikes a blow at the rule of law….”. In the case of Kishor Singh v. State of Rajasthan [xxv] strict restrictions were passed against the usage of force by the police officers including the denouncing the three-degree methods which are commonly used for the purpose of confessions.

Yeshwant Vishnu Chandrachud in 1985 noted that the government has to amend the law in the case of custodial deaths and shift the ‘burden of proof’ to the accused police officers. The then chief justice of India made this observation after witnessing several cases of acquittals of the accused due to the lack of evidence. Prakash Singh vs Union of India [xxvi] the Supreme Court in its 2006 order states that every state and centre should setup authorities to lay down guidelines and measures on police complaints (amongst other issues).

In the case of Sheela Barse v. State of Maharashtra [xxvii] the Supreme Court made several directions and suggestions to the State Government to prevent the recurrence of police torture. Such as: The city and sessions’ judges making unannounced visits to the police stations, magistrates inquiring the detainees about their experience in the police custody. Immediately after the arrest, the detainees should have the knowledge of all his/her rights through the pamphlet provided by the police station in their local language and also the relatives of the same must be informed about the arrest.

Justice Bhagawati in the case of Khatri v. State of Bihar [xxviii] talks about the ‘Right to Compensation’ in case of custodial torture also mentioned in Para 5, Article 9 of the International Covenant on Civil and Political Rights 1966. The supreme court gave several directions to protect the Fundamental Right to Life and Personal Liberty (in case of detainees)- such directions include- Medically examining and making a record of the same in the station house diary and presenting the same in front of a magistrate along with the detainee. In case of a remanded detainee, the medical check-up has to be done once in every three days and a police and complain box has to be provided in every police lock up and the keys of the same should be with the officer-in-charge and the complaint and the detainee must be presented before the magistrate and the magistrate should give a reasonable judgement to the same complaint. In case of a female detainee, she should not be arrested before sunrise or after sunset and should be accompanied by a female officer and should have a separate lockup from the male detainees. The directions also state that the state government should follow the guidelines and measures given in the committee’s report (the committee being constituted with the Home secretary, law secretary and director general of police).

Human Rights Commission

The national human rights commission is taking strict and immediate remedial measures to deal with the custodial deaths, tortures, molestations or rapes and all other cases brought to its attention through suo moto or otherwise. The human rights commission of India has published a ‘manual on human rights for police officers’ which talks about the suggestive guidelines and measures which should be followed by the police officers during the process of arrest and after the after the arrest (when the detainee is in the custody). though such commissions have studied and published information regarding the custodial torture by the police a detailed pragmatic study is yet to be conducted.

The annual reports of Kerala’s human rights commission show that it’s making numerous recommendations and suggestions to the government. It plays a dual role of spreading awareness about human rights to the general public and also giving remedial measures against any such actions of human right violation due to the structure of the commission it just plays a recommendatory role.

The Office of the United Nations high commissioner for human rights has published an expanded pocket book on Human Rights Standards and Practice for the Police. Human Rights Activists play a significant role in helping the community in facing the human rights violation as they help various organisations nationally and internationally who are investigating into such cases like interviewing the victims especially the ones from vulnerable backgrounds and they also voice their opinions against police brutality and excuses, the recent examples for the same are ‘George Floyd’ Case and ‘Jeyaraj and Bennix’ (Tamil Nadu) Case.

COMPARATIVE CASE STUDY – INDIA AND USA

Police Brutality has been prevalent in the USA and India since ages. About 1000 civilians are killed each year by law enforcement officers. In this comparative study we will be examining the recent cases of police brutality in the USA and India. The death of a father and son in judicial custody in India and the death of black man who was killed by U.S police officials in broad daylight has sent shockwaves across the globe. The similarities and/or differences in both these cases will be analysed.

Jayaraj and Fenix (India)

Jayaraj (62) and his son, Benicks/Fenix (29) were admonished for keeping their mobile phone and accessories shop open for fifteen minutes beyond the curfew imposed by the state government during the COVID-19 outbreak. It was alleged reported by the eye-witnesses that on June 18 at around 7:30 p.m, the Thoothukudi Sub-Inspector Balakrishnan arrived at their store and asked Benicks to shut down their shop to which he agreed. It was alleged that Jeyaraj had badmouthed the officers which angered them, following which, Jeyaraj was held by the collar and hauled into the police jeep and was arrested. Benicks rushed to the police station shortly after, to witness his father being slapped around by the policemen. When he sought to intervene the same, he was taken into custody and thrashed. It was stated that the policemen physically assaulted Benicks and inserted a baton into his anus due to which he was bleeding profusely. Jeyaraj was kicked on his chest multiple times. [xxix]

According to the reports, the two had rectal bleeding which was so uncontrollable that they had to change loincloths for over seven times while they were being taken to the judicial magistrate. Due to the pandemic situation, both of them were made to stand about 50 metres away from the magistrate who remanded them to judicial custody. It was noted that the magistrate did not examine them for injuries like he was supposed to do. The magistrate booked them under Sections 269 (Action likely to Spread Disease), 188 (Disobedience to order duly promulgated by public servant), 506 (Criminal Intimidation) and 353 (use of force against a public servant) of the Indian Penal Code and were lodged in a sub-jail. Eventually, due to the profuse rectal bleeding, neither of them could pass stools or urine and their stomach began to bloat. They were taken to the hospital after their condition worsened. Benicks succumbed to his injuries at 8:30pm on June 22 and his father passed away the next day. [xxx]

Following this incident, thousands of people in Ernakulam in Thoothukudi district came to the streets to pay their respects. The protests took to social media where #JusticeForJayarajAndFennix and #JusticeForJayarajAndBennix were trending.  Several political figures and celebrities expressed their condolences regarding the same. Following the massive publicity and protests online, the district police suspended Inspector Sridhar, sub-inspectors Balakrishnan and Raghuganesh and two other police constables.  All the police personnels in the Sathankulam police station were also transferred. Later, the sub-inspectors and the police constables have been arrested.

The Madurai bench of the Madras High Court along with the Tamil Nadu State Human Rights Commission have taken suo moto cognizance of this offence and have even demanded a report from the police officials. After calling all the charges into question by a CCTV footage, the Court has mentioned that there are enough and sufficient grounds to charge the responsible officers with murder. The Tamil Nadu government has also provided the family of the deceased with compensation of twenty-five lakh rupees and government jobs. The case has also been transferred to the CBI for further investigation. It was further noted that Former SP Ramagopalan who was the SP of Thoothukudi during the alleged custodial death, was under compulsory wait/ vacancy has been posted in the Cyber Police Department on August 12 th by the Home Department in a shuffle of police officers while the case is still being investigated by the CBI.

One of the underrated and un-reported aspects of this case is the caste angle to the violence. Various allegations were made that the caste rivalry played an important role in the violence implication. [xxxi] The Sub-inspector Raghuganesh who was the prime suspect for instigating violence on the duo has allegedly played a major role in the caste related fights in Tamil Nadu. During the Parliamentary and local body elections, there were fights and extreme rivalry between two castes namely, Konars and Nadars. The Sub-Inspector Raghuganesh was a Konar and allegedly started attacking other communities, especially Nadars. As per a letter signed by the presidents of three panchayats and other trade union leaders, it was stated that Raghuganesh has instigated the youth of the Konar community to destroy homes of the people belonging to other castes. It is alleged that Jayaraj and Benicks belong to the other community- Nadars, which brings the doubt of the existence of caste rivalry involved in this case.

George Perry Floyd (USA)

George Floyd (46), a black man, was arrested by Minneapolis police officials for allegedly passing a $20 counterfeit bill on 25th May 2020. Officer Derek Michael located George in a car, handcuffed him and instructed him to get into the car. In the process of disaccording that he would feel claustrophobic in the backseat, he fell on the ground and officer Chauvin placed his knee on George’s neck for 8 minutes 46 seconds, though George had stopped moving within the first 6 minutes. It was alleged that George constantly stated that he couldn’t breath and that he would get into the car. The rest of the officers did not try to prevent his actions and only intervened with the bystanders. Later when he was taken by the ambulance, George Floyd had been pronounced dead by the Hennepin County Medical Center.

State of Minnesota filed a case in the 4th Judicial District Court against Derek Michael Chauvin for murder, human rights violation and use of excessive force while his colleagues have just been fired. Initially he had just been charged with third-degree murder and second-degree manslaughter. When Attorney General Keith Ellison headed this case, he amended the compliant by charging Mr. Chauvin with second-degree murder with the support of additional evidence. Ex-officers Thomas Kiernan Lane, Kueng J. Alexander and Thao Tou NMU have been charged with aiding and abetting second-degree murder (unintentional while committing a felony) and aiding and abetting second-degree manslaughter (culpable negligence creating unreasonable risk).

Autopsy Report by the Hennepin County Medical examiner’s office concluded the death as a homicide and stated the cause of death as ‘cardiopulmonary arrest’ and further added that the recent methamphetamine usage, fentanyl intoxication and natural diseases (hypertensive and coronary heart disease) have complicated the police officers’ restraint, subdual and neck compression. The family members disputed any such health issues and usage of the said drugs. An independent examination by two different forensic doctors concluded the death as homicide and have not identified any health issues of the deceased and stated the cause of death as “mechanical asphyxia”

The state of Minnesota had recently filed a motion for joinder which is looking up in favour of the State considering that this is in the interest of justice, it may help with a speedy trial as they had been charged with the variation of the same offence and the fact that the defendants did not opt for an antagonistic defence and not to mention the impact on the mental health of the victim’s family if, they had to attend various trials. George Floyd Estate filed a suit against the City of Minneapolis and the four ex-officers who had been charged for his death, for civil rights violation and usage of excessive force and the lack of police training. Recently the court had set bail for ex-officer Chauvin at $1.25 million.

The above two cases will be compared on the basis of four aspects, reason for violence by police, action taken against the police officials, reformative action taken by states, public reaction to the incidents.

The US has a long history of discriminating against the black. According to a report, the rate of black men being killed by police is twice as high as white men. [xxxii] NCAT recorded that in India, it is a fact that the majority of victims in cases of police brutality belonged to the marginalized sections of the society. Out of the deaths of 125 persons in 124 cases in police custody documented by the NCAT in 2019, 76 persons or 60.8% belonged to the poor and marginalised communities. [xxxiii]

In the case of Jayaraj and Fenix, the victims belonged to a community called ‘Nadars’ and the Police Official belonged to ‘Konars’. There has always been a conflict between both these communities in Tamil Nadu which in turn played a major role in the brutal treatment of the victims by the officials. The discrimination against black people in the US has been prevalent since ages, George Floyd was a black man and the police officials were white. Therefore, it is alleged that the race of the victim has been a factor for the police official to take such a brutal step. Jayaraj and Fenix were arrested on June 19, and died on June 22nd and 23rd. The Madurai Bench of Madras High Court took suo moto cognizance of the case, suspended the two senior inspectors and after inquiry, noted that there were sufficient grounds to register a case against police officials in the matter. The case was later transferred to the Central Bureau of Investigation for further investigation. The other personnel involved in the case were transferred. George Floyd was killed on May 25th 2020. On May 29th, the officer involved was charged with third-degree murder and second-degree manslaughter which was later upgraded to second-degree murder. The other police personnel in this case were charged with aiding and abetting second -degree murder and manslaughter. In comparison, the U.S criminal justice system is much more efficient as the accused officer was charged with the crimes within four days of the incident, while on the other hand in India, the investigation is still in process and no charges have been filed. It is to be noted that the conviction rate of police officers in cases of brutality is very low in both India and the USA. In the U.S around 988 people are killed by police officials in the past year [xxxiv] , out of these, 110 officers have been charged with murder, and only 42 were convicted. This is the same in India, where in 2018, 70 deaths were reported and only 9 officers were arrested, none of them were either charge sheeted nor arrested later on [xxxv] .

Therefore, whether there will be conviction in the above cases is yet to be seen.

In terms of reformative action taken by authorities in the respective countries, Texas has begun changing their police policies. Texas’ Mayor Turner signed an executive order on police reforms which requires de-escalation techniques and limits no-knock warrants, it also restricts choke holds and specifically forbids kneeling on a person’s neck. Dallas requires police officers to intervene when they see another officer use excessive force. After the Jayaraj- Fenix case, 80 police officers were taken off duty for behaviour therapy.

When the news of George Floyd being killed by a police officer reached people, there were widespread protests and rallies all over the USA, while in India, people only in the state where the incident occurred showed up on roads to pay respect to the deceased. This shows lack of awareness and negligent attitude of the people.

On a general note, right to privacy is taken more seriously in the U.S, during an interrogation if a person refuses to answer a question, the interrogation is stopped immediately and even if the police breaks a law during interrogation, the entire evidence that flows from it is quashed. On the other hand, in India, if a person refuses to answer they are beaten up blue and black. One reason behind this is the lack of legal awareness among the public. These cases are being intensely followed by the whole world and hoping to set an example for the police violation cases, the law enforcement and the society.

CONCLUSION AND SUGGESTIONS

A death in custody refers to the death of an individual while in prison, under arrest or in the process of being detained by authorities. When the state takes away a person’s liberty, responsibility for their protection should be taken by the detaining authorities, who should guarantee the life and physical integrity of each detainee but while there was a steady growth rate for police brutality cases there were no awards for the same until recently. The main problem is that after such deaths, most of them are either not identified or intentionally manipulated to look like they were natural deaths by the forensic investigators which is a challenge for accountability.

Sudden and unexpected death in custody is commonly associated with allegations of police misconduct, media speculation, rumours, and intense community concern but no effective results are brought by the same and no country is immune to this rapidly growing problem.

Places where there is a huge influence by the police system, most of these cases are settled outside court with fear or pressure and even when settled in court the punishment is not as severe.  Below are a few suggestions to improve our current situation and transparency of the investigation process-

India needs to have a separate “anti-torture law” to deal the police brutality case instead of treating them as homicide which raises an opportunity for the police to get away from the same using the provision CRPC Section 46 which is the right to private defence.

India needs to realise that its high time to ratify the United Nations Convention against Torture (UNCAT) or enact a national law against torture despite the Law Commission of India submitting the draft Prevention of Torture Bill, 2017 for enactment by the parliament in October 2017. Actions already taken should be strictly followed.

Comprehensive custody record- There should be a single custody record for each arrested person with every single detail about the arrest, health and mental condition, lawyer consultations, details of people who visit him, food offered, personnel who conducted the interrogation, duration of interrogation, request made by detainee during interrogation, signature of the detainee.  Recording Interviews- Statements of suspects and arrested persons should be recorded in an electronic medium and sealed in front of him, this way right to freedom from torture and ill treatment are protected [xxxvi] during interrogation.

Though several commissions have been introduced to deal with the police torture cases, they are neither helpful nor very functional, the same is done regarding the guidelines and procedures already given by the courts such as the DK Basu case. There are several other guidelines given by the NHRC and ICRC for the investigation procedure of the custodial death cases which should be given much more recognition be taken into consideration.

Though the USA is much more advanced it is facing this problem with the same intensity which reminds us of the statement “The US is a third world country wearing a Gucci belt”.

The accountability by the police should be increased, there has to be more victim and witness protection/relocation facilities as most of the cases go undetected or unaccounted for due to the fear of the officers which deals with them helping their colleagues. There has to be adequate training for these police officers and should also incorporate courses which deal with the magnitude of such brutality cases and how to deal with the same when they witness it. To cut down police funds and shift the budget towards the health benefits of the black residents, increase the community control over the police departments and other such actions.

Such violence has become a symbol of strength and a tool for oppression throughout the world, this violence is not just limited to physical but also mental and sexual. We have reached a curve where refusal by the legislation to take any action is not accepted nor merely giving financial compensation to the victim’s family to compensate for their inadequacy. Above we have analysed two such cases (George Floyd and Jayraj & Bennix) to identify the actual result and impact of the government’s actions, the judgment of these cases holds power to set an example to such problems and helps take these nations a step towards the right direction.

[i] Emesowum, Benedict , Identifying Cities or Countries at Risk for Police Violence , 21 JAAS 2,  269–281 (2016)

[ii] Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (27 August 1980)

[iii] Universal Declaration of Human Rights , GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71.

[iv] Law Commission, Implementation Of ‘United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment’ Through Legislation , Government of India (2017)

[v] Abhigya R, Custodial violence: Indian Perspective, LEGAL SERVICES INDIA (August 10, 2020, 11:40 p.m) http://www.legalserviceindia.com/legal/article-55-custodial-violence-indian-perspective.html

[vi] Arpan Rai, ‘Our George Floyds’: Outrage at custodies of Tamil Nadu, HINDUSTAN TIMES, June 28,2020, at pg.1.

[vii] G.S. Bajwa, Human Rights in India: Implementation and violation, 1995.

[viii] Amnesty International Report, 1980.

[ix] Munna v. State of U.P.   A.l.R. 1982 S.C. 806. (India).

[x] Anmesty International, The Impact of Violence against Women (2001).

[xi]   Amnesty International, India: Torture, Rape and Deaths in Custody Pg.8 (1992).

[xii]  Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Article 2(1), (1984).

[xiii] National Human Rights Commission, Annual Report, P.15. (1995-96).

[xiv] NHRC, Monthly Human Rights Cases Statistics from January to December 2019 (2020), https://nhrc.nic.in/complaints/human-rightcase-statistics.

[xv] NCAT India, Annual Report on Torture 2019 (June 26 2020) http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf.

[xvii] NCRB, Crime in India 2018 , ‘Custodial Crimes & Complaints Against Police Personnel’, (2019) http://ncrb.gov.in/StatPublications/CII/CII 2018/Tables.html

[xviii] Ibid

[xix] (1994) AIR 1349.

[xx] A.l.R. 1930 Lah 945.

[xxi] AI.R. 1932 Lah 13.

[xxii] A.I.R. l980 S.C.1579.

[xxiii] A.I.R. 1980 S.C. 1535

[xxiv] (1997)1 S.C.C. 416.

[xxv] A.I.R. 1981 S.C. 625.

[xxvi] (2006) 8 SCC 1.

[xxvii] AI.R. 1983 S.C. 378.

[xxviii] A.I.R. 1981 S.C. 928.

[xxix] Sandhya Ravishankar,  Three Cops In Sathankulam Leave A Trail Of Violence & Casteism In One Year, THE LEDE, (June 28, 2020, 8:44am) https://www.thelede.in/governance/2020/06/27/three-cops-in-sathankulam-leave-a-trail-of-violence-casteism-in-one-year

[xxx] Hugo Gorringe & Karthikeyan Damodaran, Justice for Jayaraj and Bennix Means Ending a Culture of Impunity, THE WIRE (July 03, 2020, 11:40pm) https://thewire.in/rights/jayaraj-bennix-custodial-deaths-impunity

[xxxi] supra 7

[xxxii] Julie Tate et al., 988 people have been shot and killed by police in the past year, WA TIMES, Aug. 10, 2020, A1

[xxxiii]   ExamLabs

[xxxiv] supra 11

[xxxv] NCRB, Custodial Crimes & Complaints Against Police Personnel , Chapter16A Crime In India 2018, http://ncrb.gov.in/StatPublications/CII/CII 2018/Tables.htm

[xxxvi] James Vadackumchery, Crime Police and Correction (1998), p. 177.

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A Critical Study on Violations of Human Rights of Tribal's in Indian Perspective

Tribal community in India has been most vulnerable community in the in equal, domination and exploitation ridden society. They are on the breadline of their socio economic and political rights. Even after centuries, the unchanged condition of Tribal Communities is leading in India. The violation of fundamental Human Rights and the state brutality has been perpetrated on them, particularly on Tribal women. Tribal communities have faced isolation and social discrimination like that of Dalits from the mainstream society. Understanding of current Tribal societies need a basic respect to the historical processes, which have determined the course of consecutive changes in ideological, political, economic and socio-cultural life of the Tribal communities. The Indian democratic state accords several statutes in the constitution where the rights of Tribal Communities are protected, and social justice is determined for. However, the Democratic experiment has not been successful in this respect. Therefore, there is a surge of Tribal movements in the country for their rights. All Tribal people of India have a thing in common they all share a history of injustice. The present paper explores within the larger framework of Human Rights in general and how Tribal rights violated in particular, in India.

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Tribal society gives a spectrum to access an idea about natural life of people who want to survive with natural resources instead of complicated derivatives. But due to growing pace of population and trend of growth from developing to developed country make government non-ethical rather than being welfare state which put tribal people's culture at stake. The concept of right talk about state's role for its people, so when we want to sketch a picture of tribal rights, it is nothing but the impact and role of government for tribal welfare in comparison to rest of the population of nation. Right is discussed under legal and constitutional safeguards provided to a particular society. So when we talk about challenges, numerous areas come out before us to make an inference for conclusion. Marriage, migration, health, education, displacement, effect of industrialization and forest village encroachment. The most important point is increasing number of tribal population and number of tribal groups in every decade in proportion to facility and reservation policy of India. Naxalism is nothing but a demand for Amendment in 5 th & 6 th schedule of Indian constitution for making them empowered in reality. National geography is not same form every tribal community across the country which provide them grounds for anger and protest time to time. Reflexive society is creating more challenges before tribal societies which make them aware about their right and for right to equality which is missing in policies framed by government time to time. Tribal rights should also be considered as challenge and must be discussed in mosaic manner with reference to all above said points. " We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the nation…do hereby adopt, enact and give to ourselves this constitution. "-Preamble of the Indian Constitution

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DR. RAKESH MONDAL

In the North-East India million of tribal communities are living since the time immemorial. Some of them are claiming the rights as indigenous people of the region. However no such communities are officially declared as indigenous people by the state or central government. Although they have all the required characterizes of indigenous community still none of them are included within the purview of indigenous people. However, history shows that these communities were residing in north-east zone before the settlers come. Some constitutional rights are guaranteed by the state to those tribal’s. Further no policy has been frame or survey conducted to indentify the indignity of these communities. The claims of those communities regarding indignity need some political consideration. Unfortunately, the issue has never been solved and the question of who are indigenous in north east remains controversial. This article endeavours to find out politics behind the indigenous identity of the tribal’s of north east region. Moreover, the expansion of tribal identity within the indigenous identity is the need of hours. Further, the author endeavours to discuss the socioeconomical safeguards in order to protect and maintain the indigenous hegemony.

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