Name: Parvatham Shiva Kumar and Saurabh Anand 

College: Lloyd Law College, Greater Noida


INTRODUCTION

The basic, inherent and inalienable rights which are possessed by rational beings are commonly known as human rights. These rights are essential for the maintenance and protection of dignity of individuals. Sometimes these rights are referred as birth rights, natural rights, fundamental rights and inherent rights. The expression “human rights” denotes all those rights which are inherent in our nature and without which we cannot lives as human beings.[1]

Right is an interest which is protected by State. The main aim of human rights is development of human being in the society. It is considered that no law is more than human rights. Magna Carta (1215), the English Bill of Rights (1689), the French Declaration on the Rights of the Man and Citizen (1789) and the US Constitution and Bill of Rights are considered to be the written precursors to many of today’s human rights documents. Laws are the human institution made by human agents for satisfaction of human wants.

The Universal Declaration of Human Rights (UDHR)[2] defines “Human Rights” as the rights which are derived from the inherent dignity of the humans. Section 2 (1) (d) of the Protection of Human Rights Act, 1993 defines “human rights” as the rights guaranteed by the Constitution which are enforceable by Courts in India. These rights are related to life, liberty, equality, and dignity of the individual embodied in the International Covenants. Further Article 3 of the declaration provides the right to life, liberty, and security of the person are basic rights upon which the enjoyment and freedom of all other rights are dependent.  

Basic conditions which are compulsory for human development are Justice + Liberty + Equality. It is considered that rule of law is parallel to the role of life.

LIBERTY

There are three types of laws made by human agents for the satisfaction of human wants.

  1. Substantive law- defines rights and considered as the guardian of the law.
  2. Procedural law- defines procedures for achieving rights.
  3. Adjective law- which implements the substantive law and procedural law by evidence.

The main aim of the human rights is to provide the rights relating to life, liberty, and security of the person. In Indian Constitution, Article 21 protects the right to liberty and the dignity of the individual which comes under the wider scope of the right to life and personal liberty. Article 21 of Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. Here the word “life” has been interpreted many times and this word includes all aspects of life which go to make man’s life meaningful, complete and worth living.

PROTECTION AGAINST ARBITRARY ARREST AND DETENTION:

It occurs when an individual is arrested and detained without any due process of law and any legal basis for the deprivation of liberty. It is considered as intimidation tactics used by governments to suppress dissent. Freedom from arbitrary has been formulated as the fundamental right in Article 9 of the Universal Declaration of Human Rights (UDHR).

The cases of arbitrary arrest or detention, forced or involuntary disappearances, detention of persons who have exercised certain basic rights and freedoms protected by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are on increase. Administrative detention without charge or trial, detention of persons on political grounds under the stages or emergency have a devastating effect on the human rights and fundamental freedoms particularly in view of the fact that Article 4, paragraph 2 of the Covenant on Civil and Political Rights prohibits derogation from certain rights even in time of emergency.

Provisions prohibiting arbitrary arrest and detentions have been made both under the International human rights instruments and the Constitution of India.

PROVISIONS OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS:

  1. The Universal Declaration of Human Rights, under its Article 9 provides that no one shall be subjected to arbitrary arrest, detention or exile.
  2. The International Covenant on Civil and Political Rights provides:

Article 9 of the Covenant guarantees that “Everyone has the right to liberty and security of person.” It also says that “No one shall be subjected to arbitrary arrest or detention and No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

  1. The International Convention on the Suppression and Punishment of the Crime of Apartheid.

Under its Article II (a) (iii) provides that for the purpose of the present Convention, the term “the crime of apartheid”, which shall include similar practices and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them:

  • Denial to a member or members of a racial group or groups of the right to life and liberty of a person:
  • By arbitrary arrest and illegal imprisonment of the members of that racial group or groups.
  1. The Convention on the Rights of the Child.

Under its Article 37 provides that no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as measure of last resort and for the shortest appropriate period of time.

PROVISIONS OF INDIAN CONSTITUTION:

Relevant provisions concerning arbitrary arrest and detention are provided under Article 20 and Article 22. These provisions provide protection against arbitrary arrest and detention. Article 21 of the Constitution of India provides that a person can be deprived of life and liberty only in accordance with the procedure prescribed by law.

This procedure explained in Maneka Gandhi v. Union of India[3] has to be fair, just and reasonable and not fanciful, oppressive or arbitrary. The procedure in order to be just, fair and reasonable, must be invested with the rules of natural justice particularly the principle of audi alteram partem[4] which requires that no one shall be condemned unheard.

Article 22 provides certain procedural safeguards which must be observed whenever a person is arrested and detained in custody. This provision provides protection against arrest and detention in certain cases. Clauses (1) and (2) of Article 22 confer four rights upon a person who has been arrested.

1. Right to be informed of the ground of arrest

 Firstly, he shall not be detained in custody without being informed, as soon as may, on the grounds of his arrest. If the information is delayed, there must be some reasonable ground justified by the circumstances.[5] Thus it gives protection against arrest made by the executive or other non-judicial authorities.[6]

The question of sufficiency of information on the grounds provided to the detenu can be examined by the Court. If they're found to be insufficient, then the detention becomes illegal and the detenu becomes entitled to be released by the court.[7]

Presently the problem relating to arbitrary arrest and custodial violence is prevailing throughout the country. The person who is arrested without a warrant is subjected to torture for extracting information or for the recovery of case property or extracting confession by the police officer.[8]

The Supreme Court of India in D.K. Basu v. State of W.B[9]case has given detailed directions of arrest and detention in police custody to be followed by the concerned authorities. This direction has been given because of misuse of the power of arrest and detention including custodial death. Court has also recognized the rights of arrestee against torture and entitlement of compensation for its violation.

2. Right to be defended by Counsel of one’s own choice

Secondly, he shall have the right to consult and to be represented by a lawyer of his own choice.[10] If he released on bail, this right is not lost on him.[11] If a person is not able to engage an advocate for his defence due to poverty or incommunicado situation, then he has a Constitutional right to get free legal aid, if the need of justice is so required. If there is no such duty provided by the State to him, then this will amount to the infringement of Article 21.[12]

3. Right to be produced before a Magistrate within 24 hours of his arrest

Thirdly, the person who has been arrested has the right with him to be produced before the nearest Magistrate within 24 hours of his arrest. In calculating this period of 24 hours, the time spent on the journey from the place of arrest to the court of Magistrate is to be excluded. If a person arrested is enlarged on bail, then this provision will not be attracted.[13]

The question of not producing the arrested person before Magistrate within a period of 24 hours came into existence in the case of Gunpati Reddy v. Nafisul Hasan[14]. Here, the arrested person was not produced before Magistrate within a period of 24 hours of his arrest. Therefore, the Supreme Court held it to be the violation of his Fundamental Right under Article 22 and finally the SC ordered for his release.

4. Right not to be detained beyond twenty-four hours without the authority of Magistrate

Fourthly, he is not be detained in custody beyond the said period of 24 hours without the authority of the Court.[15] Under S.167 of CrPC, the Magistrate can order such detention for a term not exceeding fifteen days on the whole.[16]

INTERNATIONAL DEVELOPMENT: WORKING GROUP ON ARBITRARY DETENTION[17]

The practice of arbitrary detention is being confronted by many countries all over the world. Thousands of persons are subjected to arbitrary detention every year. In 1991, the Commission on Human Rights has set up the Working Group on Arbitrary Detention to guarantee the protection of the right to life and physical integrity, religious intolerance, and other rights.

The Commission of Human Rights entrusted the Working Group with following mandate:

  1. To investigate cases of detention imposed arbitrarily in individual cases.
  2. To complete field mission in order to receive information from government and inter-governmental and non-governmental organisations, and receive information from the individual concerned, their families or their representatives;
  • To present annual reports to the Human Rights Councils.[18]

Every year, there would be the submission of annual report to the Commission of its activities. Generally, a report consists of observations on the different institutions, policies, judicial practices which are the cause of arbitrary deprivation of liberty in their opinion.[19]

Generally, the report includes the following annexes or addenda:[20]

  • Opinions adopted on individual cases
  • Reports on field visits
  • Statistics

Between 1991 and the end of 197, the Working Group had declared the detention of 1331 persons to be arbitrary and the detention of 19 others to be not arbitrary; it decided to file 335 cases, the detainees having been freed by the time the Working Group considered their case. [21]

The latest annual report was submitted by the Working Group on 19 July 2017 in the 36th session of Human Rights Council.[22]

2017 ANNUAL REPORT:

In this report, the Working Group examines the issue of deprivation of liberty on discriminating grounds. It also analyses issues relating to the increasing number of new regimes of deprivation of liberty that arise in different situations and contexts around the World.[23]

During the period 1 January – 31 December 2016, the Working Group sent 74 Urgent appeals to 38 Governments concerning 263 individuals. In this India has made 3 Urgent appeals among 74.[24]

Recommendations made in this Report:[25]

  1. The Working Group recommends that Member States increase their cooperation, especially through country visits, in their responses to urgent appeals and communications and by enforcing its opinions, with the view of preventing and/ or ending arbitrary detention.
  2. The Working Group calls upon the States concerned to take appropriate measures to prevent acts of reprisals against individuals who have been the subject of an urgent appeals or opinion or whose cases have brought about a recommendation of the Working Group, and finally to combat impunity by bringing perpetrators to justice and to providing victims with appropriate remedies.

CONCLUSION

 The Working Group on Arbitrary Detention was a great initiative by the Commission of Human Rights which has been striving to find means which would lead both the release of the arbitrarily detained persons and mandates the adoption by the States concerned of legislative and executive measures which would prevent new cases of Arbitrary Detention. There are many criticisms saying that the Group functions as a quasi-judicial body. But the opinions of Working Group are not binding on States. These opinions only facilitate information sharing among non-governmental organizations, and governments. Thus, it can lead to the increase in government accountability of the countries all over the World.


[1] Teachings of Human Rights, United Nations, New York, 1989 p.5.

[2] Universal Declaration of Human Rights, on December 10, 1948, the General Assembly of the United Nations Adopted and proclaimed the Universal Declaration of Human Rights.

[3] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[4] Audi alteram partem (or audiatur et altera pars) is a Latin phrase meaning "listen to the other side", or "let the other side be heard as well". It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.

[5] Tarapada De v. State of West Bengal, AIR 1951 SC174.

[6] G K Reddy v. Nafisul Hasan, AIR 1954 SC 636.

[7] In re Madhu Limaye, AIR 1969 SC 1014.

[8] D.K. Basu v. State of West Bengal, AIR 1997 SCW 233.

[9] D.K. Basu v. State of West Bengal, AIR 1997 SCW 233

[10] Section 303 of The Code of Criminal Procedure (CrPC)

[11] State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910.

[12] Hssainara Khatoon v. Home Secretary Bihar, AIR 1979 SC 1377.

[13] State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910., In re Madhu Limaye, AIR 1969 SC 1014.

[14] G K Reddy v. Nafisul Hasan, AIR 1954 SC 636.

[15] State of U.P. v. Abdul Samad, AIR 1962 SC 1506.

[16] C.B.I. v. Anupam J. Kulkarni (1992) 3 SCC 141.

[17] The Working Group on Arbitrary Detention was established by resolution 1991/42 of the former Commission on Human Rights

[18] The Working Group on Arbitrary Detention (30 September, 2017, 6:30 pm)

 http://www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx

[19] Fact Sheet No. 26, The Working Group on Arbitrary Detention “No one shall be subjected to arbitrary arrest, detention or exile” (Universal Declaration of Human Rights, article 9)

[20] Annual reports : Reports to the Human Rights Council (30 September, 2017, 6:49 pm) http://www.ohchr.org/EN/Issues/Detention/Pages/Annual.aspx

[21] Analysis of Annual reports : Reports to the Human Rights Council (30 September, 2017, 6:55 pm) http://www.ohchr.org/EN/Issues/Detention/Pages/Annual.aspx

[22]  Report of the Working Group on Arbitrary Detention (symbol: A/HRC/36/37) (30 September, 2017, 6:00pm)

 http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/37

[23] Report of the Working Group on Arbitrary Detention (symbol: A/HRC/36/37) (pg. 1) ( 30 September, 2017, 6:55 pm) http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/37

[24] Report of the Working Group on Arbitrary Detention (symbol: A/HRC/36/37) Urgent Appeals (pg. 15) ( 30 September, 2017, 6:55 pm) http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/37

[25] Report of the Working Group on Arbitrary Detention (symbol: A/HRC/36/37) Recommendations (pg. 21) ( 30 September, 2017, 6:55 pm) http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/37


Disclaimer: The opinions expressed in the article or any other publication are those of the authors. They do not purport to reflect the opinions or views of Sadvidya or its members.

Categories: CANDID NOTIONS

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