PART - I
PERSONAL LIBERTY AND CRIMINAL JURISPRUDENCE
“This is conduct that shocks the conscience. Illegally breaking into the
privacy of the
petitioner, the struggle to open his mouth and remove
what was
there, the forcible extraction of his stomach’s contents—this
course of
proceeding by agents of government to obtain evidence is
bound to
offend even hardened sensibilities. They are methods too close
to the rack
and the screw to permit of constitutional differentiation”.
These were the words of Justice Frankfurter (in Rochin v. California) pronouncing
his judicial verdict, quoted by Prof. Seth F. Kreimer while debating
constitutional validity of torture against terrorist suspects. Needless to say
the foundation for the argument itself arises from the conviction that human
rights cannot be partisan and doled out in preferential quota to the citizens.
Lest every citizen enjoys them, the very foundation of democracy will become
hollow. Like Prof. Kreimer, neither did
I ever think I will pen this down. But from the time I have read his arguments
in the E law journal[1] I
couldn’t help but to ask a very basic question, “ can we ensure the rule of law
and good order and discipline in the society without recourse to depriving
certain basic rights to some individuals, albeit not altogether?” I have
attempted to answer my question based on decided cases of the Supreme Court of
India and inferences drawn from them, whose fundamental duty in upholding the
constitutional guarantees to citizenry it has discharged admirably in the past
six decades.
The ensuing discussion is limited to questions that
emanate from the portion of judicial verdict quoted above and is not meant as a
critique of Rochin’s case per se. The scope is to examine the Constitutional and
Statutory provisions on the following:
(a) Right
to privacy of suspects during police investigations
(b) ‘Force’ in relation to
medical examination of suspects on the request of investigating police officer.
Indian Constitutional Provisions On Fundamental Rights
Article –
21
“No person shall be deprived of
his life or personal liberty except by the procedure established by law”.
The
article does not refer to due process of law as prevailing in US constitution
(The IV th Amendment). It only says
procedure established by law and thereby places the legislature in a more
important position vis-à-vis judiciary. In Gopalan’s case[2]
the Supreme Court held that the constitution embodies the English concept of
personal liberty and not due process. Therefore
if a competent legislature makes a law that a person may be deprived of life
and personal liberty in certain circumstances or in certain conditions, the
validity of law cannot be questioned on the ground that the law is unfair,
unjust or unreasonable.
In Maneka Gandhi
Vs UoI[3]
Supreme Court in a landmark judgment overruled this earlier decision and
declared that Art 21 and Art 19 (Right to Freedom) are complementary in nature and right to travel
abroad is a fundamental right. In addition following rights are held to be
covered under Article 21.
(i)
Right to live with human dignity[4]
(ii)
Right to livelihood because the easiest way to deprive
a person of his life is to deprive him of his means of livelihood.
(iii)
Right to shelter[5]
(iv)
Right to privacy
(v)
Right against inhuman treatment – i.e. custodial
violence
(vii)
Right against solitary confinement[7]
(viii)
Right to speedy trail
(ix)
Right against use of 3rd degree method by
police
(xi)
Right against illegal arrest
This judgment brought the focus on the reasonableness of
the restrictions on individual liberties imposed by the ‘procedure established
by law’. It was apparent that the intent of the legislature in providing for a
restrictive procedure was considered reasonable and in furtherance of the needs
of the society to protect its larger interest and social order. Thus, while
upholding the legislation per se, the Court subjected the procedure to the
litmus test of reasonableness.
* Author holds a masters
degree in Social work.He is employed with the Govt of India and has a couple of
decades of experience in personnel and administration. He has been involved in
investigation of crime and training of police personnel.
[1] See
Seth F. Kreimer, Too Close To The Rack And The Screw: Constitutional
Constraints On Torture In The War On Terror, E Law,Journal, Nov 2003 Issue
[2] A.K.
Gopalan v. State of Madras, (1950) S.C.R. 88
[3] Maneka
Gandhi v. Union of India, AIR 1978 S.C. 597
[4] And all
that goes along with it, namely, adequate nutrition, clothing shelter and
facilities for reading, writing & expressing ourselves in diverse forms,
moving freely and mingling with fellow human beings.
[5] which
include adequate living space, safe & decent structure, clean surroundings,
pure air & water, electricity & other civic amenities.
[6] If the
President does not dispose off any mercy-petition against death sentence for
more than 2 years the death sentence will automatically be converted into life
sentence.
[7] Supreme
Court held that solitary confinement is violative of Art. 21 because it
deprives the liberty to mix, to mingle and talk with the co-detainees/visitors.
[8] Police
had to pay Rs. 2000/- for having handcuffed a lawyer. Supreme Court declared that even a prostitute
who is of easy virtue has a right to privacy.
PART II
Pt III will be published soon.
Individual Right v. Society
The makers of the Indian Constitution were conspicuous in
omitting the ‘due process clause’ of the Fourth Amendment, though Indian
constitution extensively absorbed the underlying principles of the US and Irish
Constitutions. While commenting on the Indian omission of the due process
clause the very learned Justice Felix Frankfurter said,
“ …They
(Indian Constitution makers) have rejected it in conspicuous instances
after thorough consideration of our judicial history of the ‘due
process’…” [1]
It is recognized that individual is important to the State
and that protection of his fundamental rights to enable him to enjoy and
exploit his life to the full is the basic duty of the State. The privileges
extended to an accused person are a corollary of the common law that an accused
is presumed to be innocent unless proved guilty. The protection afforded to the
individual under this provision is not merely in respect of testimonial
compulsion in the courtroom, but it also extends to any compulsory process for
production of documents that are likely to support the prosecution case against
him.
The question here is, are the liberties to an individual
inviolable? In the context of crime, it is reasonable to presume that any
person who commits any act or omission that deprives another of his life or
liberty or is ‘shocking the conscience of the society’, does so not due to
ignorance, but by deliberation. Since his intention and volition to commit or
omit such an act (though will have to stand judicial scrutiny) gives rise to
the belief that such individual is bound to resist the ‘due process’ of
investigation under the cloak of and pain/injury to privacy or personal
liberties. Then how do we ensure the rule of law and bring the offenders to
book? Can the ‘due process’ clause be permitted to stand in the way of police
investigations and obtaining of evidence to prove the guilty?
Though the Indian Constitution has not adopted the ‘due
process’ clause, Article 21affords ample scope for its application and enjoins
judicial scrutiny to protect an individual from State abuse. The understanding
of the need to afford dignity as fundamental to the enjoyment of human rights
is ingrained in the constitutional diktats under Art 21. However, when viewed
from the perspective that though individual is the basic unit of the society,
existence of peace, good order and morality in any society necessitates that
there can not be absolute rights given to an individual which could endanger
the larger interests of the society of which he forms but a part. Elaborating
on this issue, the Supreme Court of India, in Zahira Habibulla H. Sheikh v.
State of Gujarat held, “ it will not be correct to say that it is only the
accused who must be fairly dealt with. That would be turning Nelson’s eyes to the
needs of the society at large and the victims or their family members and
relatives. Each one has an inbuilt right to be dealt with fairly in a criminal
trial. Denial of fair trial is as much injustice to the accused as to the
victim and the society” [2]
The sanctity and extent that must be afforded to rights of
an individual vis a vis the social, moral and physical well being of the
society has always been a dominant concern for Courts and international
covenants on human rights. In this respect, the Universal Declaration of Human
Rights 1948 contains a general
limitation clause within article 29:
"In the exercise of his rights and freedoms,
everyone shall be subject only to such limitations as are determined by law
solely for the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of morality, public
order and the general welfare in a democratic society."
The International Convention on
Civil and Political Rights that followed the above declaration in 1966 contains
(to which India is a signatory):
Article 7
No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. In particular, no one shall be
subjected without his free consent to medical or scientific experimentation.
Article 9
Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or detention. No one
shall be deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law.
Article 10
All persons deprived of their liberty shall be treated
with humanity and with respect for the inherent dignity of the human person.
Article 17
No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence,
nor to unlawful attacks on his honour and reputation.
If that were so, the questions to be considered now are
(academically, on the same Rochin’s case) is drug peddling to be considered as
reprehensible to the sensibilities of the society? If so, should the offenders
be categorized as criminals? Then, should the society, through appropriate law,
provide for prosecuting the offender and punish him for offending the
sensibilities and moral values of the society? It is presumed that in all
societies across the continents, answers for all the above are in the
affirmative. Then, how does the police obtain evidence against him without an
affront to the ‘due process’ clause, especially when he decides not to volunteer
evidence? If an offenders’ privacy and liberty are paramount and their
violation ‘shocking to the judicial conscience’, how to uphold the rule of law
in the society? Will it not deliver the entire judicial system to ransom in the
hands of few criminals and their lawyers who ‘know’ how to wrap up society’s
quest for justice in carefully couched words of the law? It is but obvious that
the answer lies in restricting the rights of the individual to enable
investigation and judicial scrutiny of his actions in order to bring him to
justice.
[1] ‘
Much of the constitution makers of other countries have drawn upon our
experience, it is precisely because they have drawn upon it that they have one
and all, abstained from including a “due process” clause. They have rejected it
in conspicuous instances after thorough consideration of our judicial history
of the ‘due process’… It is particularly noteworthy that such was the course of
events in framing the Constitution of India. Sir B.N. Rau, one of the most
penetrating minds of our time, had a major share in drafting, and for the
purpose he made a deep study of the working of the due process clause during
his extensive stay here. (Mr. Justice Felix Frankfurter of the Supreme Court of
America, in his ‘Address on John Marshall and Judicial Function’. Government
Under Law: p.24)
[2] 2004 AIR
SCW 2325 (A) : 2004 (4) SCC 153: 2004 (3) Supreme 210: 2004 (4) Scale 375
Pt III will be published soon.
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