UNHRC’s examination of India’s periodic report after 28 years: Part 5

The fifth article in the series related to the fourth periodic report submitted by India under Article 40 of the International Covenant on Civil and Political Rights (ICCPR) examines the submissions on unlawful arrests and detentions and exposes the reality..—.Read Part 1 here..Read Part 2 here..Read Part 3 here..Read Part 4 here..THE flagship of the United Nations treaty body system will be examining India's fourth periodic report in all probability on July 15 and 16, 2024. The Human Rights Committee (HRC) is the treaty body tasked to monitor compliance with the International Covenant on Civil and Political Rights (ICCPR)..Here we examine India's submissions on unlawful arrests and illegal detentions and their veracity..Issue No. 19 of the list of questions given to the government of India and the government's reply in Paras 96, 97, 98, 99, 100 and 101 of its reply are discussed below..The UNHRC requested the government of India:."Please report on measures taken to prevent arbitrary arrests and arbitrary and unlawful detention, and clarify whether victims of unlawful arrest or detention are afforded an enforceable right to compensation both in law and in practice, as required by Article 9 (5) of the covenant.."Please respond to reports alleging: (a) limited access to legal aid upon arrest and appearance before a magistrate, owing, inter alia, to the insufficient number of legal aid lawyers; (b) limited consular access for foreigners who have been deprived of their liberty, and the arbitrary detention of foreigners in prison after completion of their sentence, pending their repatriation; (c) the lack of presumption of innocence in criminal proceedings under certain laws, including the Unlawful Activities (Prevention) Act, 1967 (UAPA), as amended; (d) the use of coerced confessions in criminal cases, notwithstanding the legal prohibition against using them; and (e) the treatment of juvenile defendants as adults pursuant to the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).".Also read: Experiments with truth, Part 2: Truth and dare in Bhima Koregaon.The government of India's reply to Paragraph 19 of the list of issues was as follows: "The provisions governing arrest of individuals under the Code of Criminal Procedure, 1973 (CrPC) are informed by the principles of reasonableness, certainty and necessity.".The truth about questions of unlawful arrests and illegal detention.Measures to prevent unlawful arrests and illegal detention.Effective compliance with safeguards on arrest introduced under D.K. Basu versus State of West Bengal (1997), many of which have been subsequently incorporated into statute, has been inconsistent and inadequate..Courts have frequently criticised the police for failure to comply with these safeguards, and highlighted the implication of these violations on an accused's right to life and liberty, and fair trial rights..“Effective compliance with safeguards on arrest introduced under D.K. Basu versus State of West Bengal (1997), many of which have been subsequently incorporated into statute, has been inconsistent and inadequate..Reports suggest that magistrates and other judicial authorities responsible for overseeing police action and protecting the constitutional rights of the accused are unable to ensure adequate protection of their rights at this stage..There have been several reported instances involving the failure of magistrates and other judicial authorities to effectively respond to violations in procedures on arrest; secure the accused's right to legal representation; and act as an effective check against custodial violence— especially in instances where production procedures are carried at the residence of the judicial authority beyond court hours..In 2014, the Supreme Court introduced guidelines emphasising the role of the police and the responsibility of magistrates to check against unjustified and unnecessary arrests..Higher courts have frequently raised issues with these guidelines not being properly followed— highlighting the high number of unnecessary arrests (contributing to the problem of overcrowding in prisons) and delays in deciding bail pleas— and have directed action against authorities in certain instances..The new criminal laws were not used as an opportunity to address gaps in the law and strengthen safeguards on arrest and have in some instances diluted existing safeguards on arrest..The new criminal procedure law (Bharatiya Nagrik Suraksha Sanhita or BNSS) has included a new preventive detention provision in general criminal law, wherein the police can detain or 'remove' persons in the course of preventing a cognisable offence, leaving substantial scope for abuse (page 35)..Also read: Bhima Koregaon: Supreme Court grants bail to Vernon Gonsalves and Arun Ferreira, with tethers.Further, concerns have been raised about the expansion of police powers during an investigation; the inclusion of broadly worded penal provisions for serious offences, including terrorism; and increased terms of imprisonment and fine amounts across provisions in the new criminal laws..The absence of a statutory enforceable right to compensation for unlawful arrests and illegal detention has resulted in compensation being granted in an ad hoc manner, often after having to undergo further litigation..Legal aid.Despite the extensive legal aid system in India, since 1995, only 15 million people have accessed legal aid out of the one billion eligible for the same. The legal aid system is significantly underutilised, despite the disproportionate representation of socio-economically marginalised individuals in Indian prisons..Reports have raised concerns about the poor quality of legal aid, particularly highlighting the budgetary constraints and poor conditions of work for counsels..While the significance of legal representation from the time of arrest or detention has been emphasised, reports have demonstrated poor compliance with this constitutional entitlement in police stations and during judicial proceedings for first production and remand..A study published in 2018 reveals that of the 244 'district legal service authorities' (DLSAs) studied across the country, only 164 assigned lawyers at the remand stage to the accused..“In 2014, the Supreme Court introduced guidelines emphasising the role of the police and the responsibility of magistrates to check against unjustified and unnecessary arrests..Even where lawyers are present in these proceedings, they are often given inadequate time or are inadequately prepared, thereby resulting in an ineffective defence..Foreign detainees.Foreigners can be detained in India through two routes— as an undertrial who has been accused of a criminal offence, or under the country's citizenship and immigration laws..However, structural barriers within the criminal justice system can render a Foreign National Prisoner (FNP) doubly vulnerable while undergoing detention in India..India is a party to the Vienna Convention on Consular Relations and is, therefore, under the obligation to provide consular access to an FNP in prison and to communicate the details of arrest to the consulate..In line with this obligation, the Union ministry of home affairs (MHA) released a list of guidelines on consular access for FNPs in 2019. However, the process restricts prison officials from contacting foreign consulates directly and streamlines all communication between the prisoner and their consulate through the MHA..Also read: Two years on, human rights defender Khurram Parvez waiting for his human rights to be defended.Additionally, a prisoner who wishes to communicate with their consulate can do so only through a written request subject to the authorisation of the Union ministry of external affairs. Besides these guidelines, there exists no legal framework for consular access for FNPs..The absence of a robust legal framework recognising the right to consular access, coupled with structural barriers that an FNP can face in Indian prisons (language and legal barriers, inadequate access to quality legal representation), risk placing foreign detainees for a prolonged period of incarceration without access to lawyers and their families..A study published in 2019 found that only 5.7 percent of 3,908 prisoners had ever received consular access. This is despite Orders and decisions of the Indian Supreme Court, directing consular access at regular intervals for foreign detainees on a case-specific basis..Consular access is crucial in establishing connections with family, enabling access to lawyers and language interpreters, and can help safeguard an FNP's rights in prison. The lack of consular access has, however, led to egregious instances such as a loss of contact between the FNP and their family for several years, prolonged delays in repatriation after the completion of their sentences, etc..“A study published in 2018 reveals that of the 244 'district legal service authorities' (DLSAs) studied across the country, only 164 assigned lawyers at the remand stage to the accused..Additionally, FNPs continue to remain at risk of discrimination for their nationality while in prison. As of 2022, India houses 6,283 FNPs, of which 4,706 are undertrials in a criminal case, 1,181 are convicts and 31 have been detained under immigration and citizenship laws..Exception to the presumption of innocence under the UAPA.Cases under the UAPA, India's stringent anti-terror legislation, are characterised by prolonged pretrial detention without initiation of trials, which ultimately end in acquittals. A review of convictions and acquittal rates as per the NCRB's Crime in India Statistics between 2017–22 reveals that, on average, 64.04 percent cases result in acquittals..A study by the PUCL calculating the rate of conviction between 2015–20 shows that the conviction rate stands at 27.57 percent as against the total number of cases that have been tried in court. More alarmingly, the rate of conviction as against the total arrests conducted in the same period shows that the conviction rate stands at 2.80 percent..An incredibly high threshold for bail under the UAPA results in pretrial deprivation of liberty on serious charges of terrorism, arising out of extremely vaguely worded offences..For example, Sections 10, 15 and 20 of the UAPA criminalise offences based on membership of organisations and provide vague definitions for the offence of a 'terrorist act'. Section 18 penalises conspiracy to commit terrorist acts..Most persons are charged with conspiracy where there is no requirement for the police to show involvement in the actual infliction of violence, or for being members which puts innocents at risk of being arrested. Thus, the UAPA frequently comes under criticism for repackaging ideas as crimes..The UAPA provides the State with wide powers of arrest and prohibits bail for the accused unless the accused can prove that the grounds or material against him are not prima facie true..Also read: Juveniles in adult prisons: Why is the Juvenile Justice Act failing its object and purpose?.By requiring the court to make a preliminary assessment of the accused's guilt while deciding bail, the UAPA dilutes the presumption of innocence and places the accused at a greater disadvantage in securing bail, given that they cannot access investigation material to challenge them until the trial has formally commenced. This condition enables authorities to detain persons arrested for long periods without the initiation of a trial..The UAPA affords wide powers to the State to curtail civil liberties and has been criticised for criminalising dissent, and targeting journalists and human rights activists through its onerous procedure..“An incredibly high threshold for bail under the UAPA results in pretrial deprivation of liberty on serious charges of terrorism, arising out of extremely vaguely worded offences..Persons have been arrested and detained for lengthy periods for acts such as possession of books, social media posts and peaceful protests. The Act has also been used to disproportionately arrest and detain Indigenous persons in the subcontinent's heartland India, and deny relief to undertrial prisoners even in the face of ill-health..Though a significant number of people are arrested every year under the UAPA, the constitutionality of several provisions has been challenged and is pending before the Supreme Court— including for vague definitions of offences, provisions for bail, provision of wide powers to the State to designate terrorist organisations and for its use in curtailing free speech..Coerced confessions and disclosures before the police.Even though confessions before a police officer are not admissible in evidence under general criminal law, provisions such as Section 27 of the Indian Evidence Act (which permits recoveries based on disclosure statements before the police), enable police coercion and torture during investigation..Even though concerns about abuse of police power through this provision have been widely raised, the new criminal laws retain this provision unchanged..In order to prevent and deter torture during an investigation, in December 2020, the Supreme Court issued detailed directions for the installation of CCTV cameras in police stations and offices of Central investigating agencies. The directions included details such as the features and the positioning of the cameras; storage, transfer, access and monitoring of the footage; and questions about budgetary and infrastructural realities across state police departments..However, compliance with these directions is poor across states, with 2,701 police stations having no cameras at all. When installed, most cameras do not meet all the requirements directed by the court, including the prescribed coverage, features, and storage capacity..Preliminary assessment under JJ Act.The requirement for preliminary assessments and the trial of specific 16–18-year-old juveniles as adults under the Juvenile Justice Act, 2015 (JJ Act) has been criticised, both for undercutting the foundational principles of the legislation (which includes care and protection for children, the best interests principle and the diversion principle) and for lack of legal clarity on the grounds and processes for such assessments..Also read: Incarceration of Khurram Parvez and Irfan Mehraj has made human rights work in Kashmir extremely difficult, FIDH's Juliette Rousselot.They have also been criticised for conducting a reductive psychological assessment without enquiring into the child's mental state during the time of the offence..A study published in 2019 reveals that a majority of the JJ Board processes and decisions on preliminary assessments are conducted in a perfunctory manner. Where assessments have taken place, they have often been conducted without compliance with prescribed procedures, including obtaining the opinion of experts in child psychology and other social work pertaining to the welfare of children..“Thus, the UAPA frequently comes under criticism for repackaging ideas as crimes..This has led to an uncritical and unscientific reliance on the opinions of professionals who may not be sufficiently qualified to provide expert opinions on juvenile capacity. Moreover, the assessments also fail to include a review of the juvenile's psychological state during and around the offence..Even after the stage of a preliminary assessment, the question of whether juveniles must be granted bail by default under the JJ Act or be governed by bail provisions for adults under the CrPC remains uncertain, with conflicting positions being adopted by the high courts in India..“Alarmingly, a study based on the findings of multiple right-to-information petitions has revealed that as many as 9,681 juveniles have been lodged in jails meant for adults over six years..Alarmingly, a study based on the findings of multiple right-to-information petitions has revealed that as many as 9,681 juveniles have been lodged in jails meant for adults over six years. In practice, procedures under the JJ Act are frequently bypassed in their entirety and juveniles are incarcerated in adult jails and tried as adults illegally..Next: Questions of overcrowding and prison conditions

UNHRC’s examination of India’s periodic report after 28 years: Part 5

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