Rehabilitation and Compensation to Victims of Police Atrocities
April 11, 2022 • Nikita Saha
PRATYUSH SACHAN, 2ND YEAR B.A. LLB STUDENT, AMITY LAW SCHOOL, NOIDA
The incidence of crime and abuse of power has increased worldwide. Changes in society have led to a fundamental re-evaluation of the victim's position. Various courts and legislatures have tried to respond to this challenge and strengthen the position of victims. The definition of ‘victim of crime’ is absent in Indian laws and legislatures. Victim of crime is clearly defined under articles 1 and 2 of the United Nations general assembly declaration of basic principles of justice for victims and abuse of power 1985. Rehabilitation of victims means restoring to practical life and good condition through the help of education and proper therapy. The jurisprudence behind victim rehabilitation is that anyone can be restored to practical life, and no one is permanently criminal. The main objective of rehabilitation is to prevent criminal recidivism. Victims of police atrocities hardly have any guaranteed rights except for getting compensation under some statutory laws, which are grossly inadequate. The right to life and personal liberty is the most sacrosanct human right. The rule of law governs civilized societies, and any human rights violation cannot be allowed to happen in any civilized societies. There is a direct relationship between policing and human rights. Police is a means by which the state protects the fundamental rights of all citizens. Unlawful policing can result in a violation of human rights. Police atrocities emerge as a prime threat to human rights. There has been an alarming increase in crimes against human dignity committed by the police. Nowadays, Police personnel often use violence as a shortcut to justice, which needs to be changed. Despite almost 600 deaths between 2005 and 2010, only 21 officers faced conviction, and no police officer has been convicted since 2011. This says a great deal about the present scenario of India's legal system. Although there is a need for stopping police atrocities and misuse of power, it is equally essential to provide compensation and rehabilitation to the victims of these atrocities.
VICTIM’S RIGHT TO REHABILITATION IN INDIA
The Indian constitution and legislature well safeguard the rights of an accused and convict. However, victims' rights to rehabilitation are still not protected and mentioned at the forefront of Indian law and judiciary. Victims can get compensation for rehabilitation in some instances in which the court finds it necessary. Under section 357 of the code of criminal procedure (CrPC), 1973, compensation is awarded to victims from the fine recovered. In 2009, section 357A was added to CrPC under which compensation to victims in cases where the accused is acquitted or where the offender is not identified, provided there is a need for rehabilitation of the victim. Section 357 is linked with conviction, whereas 357A is not linked with conviction.
Some other rights to rehabilitation are:
- Reparation: - reparation is one of the most widely used methods of rehabilitation. It is the most comprehensive mean of compensation. Reparation is concerned with paying monetary compensation. The main reason behind reparation is to bring back the victim to the same situation as was before the loss. If a serious wrong has been done, the injured person is entitled to remedy and redress. Reparation also includes a guarantee of non-repetition.
- Victim assistance: - apart from compensation and restitution, victim assistance is necessary for victim rehabilitation. Victim assistance includes counselling a victim, education, providing emergency shelter to the victims, and emergency transportation.
- Right to engage an advocate of his choice: - under section 24(8) of CrPC, the court can permit the victim to engage and advocate.
- Right to appeal: - the victim has the right to appeal in the higher court against any order passed by a subordinate court. If the accused is acquitted or convicted of lesser punishment or inadequate compensation, he can appeal in a higher court for justice.
REHABILITATION OF VICTIMS OF CUSTODIAL CRIMES
Custodial crimes refer to violence against the accused during police or judicial custody. It is not a new phenomenon; police have been using force to obtain information from the accused for a long time, and abuse of power is expected during the investigation. Section 330, 331and 348 of IPC, section 25 and 26 of the evidence act, section 76 of CrPC, and section 29 of the police act, 1861 protect custodial violence and curb the torture done by police officers for obtaining information or confession. The supreme court recognized the right of a custodial crime victim to receive compensation in Nilabati Behera vs. the state of Orrisa[i]. Court held that victims of custodial violence could not be compensated according to civil suit damage, and compensation should be fair.
WHAT IDENTIFIES AS POLICE ATROCITIES?
The concept of police atrocities is a very vast and comprehensive concept. Under article 246 of the Indian constitution, 'police' falls on the state list of the seventh schedule of the Indian constitution. It is under state governments to maintain law and order and investigate crime. The primary role of the police is to maintain law and order, investigate crime and ensure the security of people. In a large country like India, it is necessary to give operational freedom to the police to perform their duty well. However, abuse of power and excessive use of force by police is bound to occur if their power goes unchecked. Police atrocities are violations of the human rights of an individual. Use of force by police and use of pepper spray, water cannon, tear gas, hitting, choking, throwing, and sexual abuse are examples of police atrocities.
Types of police atrocities- false arrest, wrongful imprisonment, sexual harassment, wrongful search, and seizure.
Police atrocities are considered severe offenses, but still, there are many cases where the complaint of a victim does not reach to investigation level. In Rudulsah v. State of Bihar[ii] Police have grossly violated fundamental rights guaranteed under articles 21 and 22 of the Indian constitution, and even after the court acquitted, police have detained the petitioner for 14 years. In PrakashKadam etc., v. RamprasadVishwanath Gupta and Anr, the supreme court held that police encounter is considered the rarest of rare cases, and police officers involved in them should be given capital punishment. In D K Basu v. State of State of West Bengal[iii]Court laid down guidelines that police are bound to follow while arresting a person.
Cases of police atrocities :
- Custodial death of father and son duo. They have been beaten and assaulted by the police during their custody in Tamil Nadu.
- Jamia milia Islamia police attack during citizen amendment act protest. Non-protesting students were also brutally beaten inside the campus.
- Mohamed Huzaifa Javed Ahmed vs. the state of Maharashtra, police beat a child, leading to the death of a child.
RIGHT TO LIFE AND PERSONAL LIBERTY
The concept of personal liberty is incorporated in article 21 of the Indian constitution. The concept was discussed in Magna Carta. Article 21 is the most critical article in the Indian constitution, which gives birth to many other fundamental rights. Article 21 has been interpreted by the Indian judiciary in many cases. In A.K. Gopalan vs. the State of Madras[iv], the right of personal liberty and right to life was interpreted narrowly but in Maneka Gandhi vs. UOI[v]The scope and ambit of the right to life were widened, and the Supreme court comprehensively interpreted this right. When the state begins to violate fundamental rights to life and personal liberty, the only solution is to ask the state to compensate. In the Indian judiciary, the question of liberty of the state to pay compensation for violation of fundamental rights was first raised in Khatri vs. the state of Bihar[vi]. In this case, the detention was valid, but the action of jail authority risks the life of the detenues. The question was again raised in the veena Sethi case and finally answered in the Rudul Sah case, where a petitioner spent 14 years in jail till a habeas corpus petition was moved; the court held that the state was liable for the gross violation of fundamental rights.
After a brief review of the existing legal framework of custodial violence and compensation to victims of police atrocities, it can be concluded that very little has been done either statutorily or through schemes to tackle the challenges faced by victims. The right to rehabilitation and compensation against police atrocities is at an early stage. The legislature should frame diverse and elevating rehabilitation schemes that would genuinely help victims of police atrocities. The victim's interest should be protected by the laws and legislature. There are many cases of police atrocities and custodial violence. However, many of them do not reach the investigation level and the conviction rate is meagre compared to the number of accusations. Police are to protect the interest of people and investigate crimes. Thus, police can use force which can extend to the killing of a person, but the use of excessive force when it is not necessary is a gross violation of human rights. The present situation of victim rehabilitation needs to be revisited, and the provisions under CrPC are not enough to protect constitutional rights. A new specialized law is the need of the hour in order to render meaningful justice. Victims should be compensated adequately according to the injury or loss suffered by the victim. Laws should be made to provide security to victims and potential victims against victimization.
[i]1993 AIR 1960, 1993 SCR (2) 581
[ii]1983 AIR 1086, 1983 SCR (3) 508
[iii](1997) 1 SCC 416.
[iv] 1950 AIR 27, 1950 SCR 88
[v]1978 AIR 597, 1978 SCR (2) 621
[vi]1981 SCR (2) 408, 1981 SCC (1) 627