Humanity’s flag at half mast
In the Cipriano Fernandes case, the Panjim police have failed to adhere to SC guidelines, says FREDDY DIAS
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The detention and the alleged assault against Cipriano Fernandes by the policemen of the Panjim Police Station in a non-cognisable complaint late in the night on January 7 and his consequent custodial death on January 9 come squarely within the ambit of the guidelines laid down by the Supreme Court of India (SC) for strict adherence by the police forces of all states and union territories of the country.
The Supreme Court judgment, which has been dispatched to governments of all states and union territories, says: “Custodial violence strikes a blow to the rule of law. It is a naked violation of human dignity. Whenever human dignity is wounded, civilisation takes a step backward – the flag of humanity must, on each such occasion, fly at half-mast.”
The apex court, while interpreting Articles 21 and 22(1) of the Constitution of India, held that if functionaries of the government become law breakers, it is bound to breed contempt for the law and would encourage lawlessness. Then every man would have the tendency to become a law unto himself, thereby leading to anarchy. “The cure cannot be worst than the disease itself. The action of the state must be right, just and fair,” the trend-setting ruling says.
The Supreme Court has declared that the ‘right to life’ guaranteed under Article 21 of the Constitution of India cannot be denied to even convicts, undertrials, detainees and other prisoners. “Custodial torture is a serious violation of human dignity and a degradation which destroys to a very large extent, human personality,” the court said. It laid down an eleven-point guideline for the police and warned that violation of these would render the delinquent officers liable to be punished under the Contempt of Court Act, apart from having to pay compensation for taking recourse to custodial torture.
According to the Apex Court’s ruling, the following requirements are to be strictly followed in all cases of arrest or detention, till legal provisions are made in that behalf as a preventive measure:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in an official register.
(2) The police officer carrying out the arrest shall prepare a memo of arrest at the time of effecting arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) Where the next friend or relative of the arrestee lives outside the district or town, the time, place of arrest and venue of custody of an arrestee must be notified by the police through the legal aid organisation in the district and the police station of the area concerned, telegraphically, within a period of 8 to 12 hours following the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention, as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person, which shall also disclose the name of the next friend or relative of the person who has been informed of the arrest, and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed by both the arrestee and the police officer effecting the arrest, and its copy provided to the arrestee.
(8) The arrestee should be subjected to a medical examination by a trained doctor every 48 hours during his detention in custody. Such an examination should be carried out by a doctor on the panel of approved doctors appointed by the Director of Public Health Services of the concerned state or union territory. The Director of Public Health Services should set up such a panel for all districts and tehsils as well.
(9) Copies of all the documents, including the memo of arrest referred to above, should be sent to the judicial magistrate of the taluka for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police central room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the police officer effecting the arrest within 12 hours of effecting the arrest, and at the police control room, it should be displayed on a conspicuous notice board.
Failure to strictly comply with the said requirements laid down by the Supreme Court shall, apart from rendering the concerned police official liable for departmental action, also render him liable to be punished for contempt of court. The proceedings for contempt of court can be instituted in any High Court of the country having territorial jurisdiction over the matter.
Moreover, if no action is taken against the delinquent police officials concerned by the higher police authorities, the matter can be reported to the High Court for contempt, apart from other actions.
In the Cipriano Fernandes case, the Panjim police have totally failed to adhere to the preventive guidelines issued by the Supreme Court and, therefore, the police personnel concerned are now clearly liable to be punished as per the court’s directives.
It may be noted here that the apex court has held that the state is liable to pay compensation to victims of custodial torture or to their dependents. It has also ordered that the compensation amount may be recovered from the individual perpetrator(s) of custodial violence.
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A holiday treat
By Marc de Souza
My children have invited me to visit them in Dubai, Doha and Canada. I am like a cat on hot bricks. For one thing, it has helped me to look back on my whistle-stop tour round Western Europe in the ’80s, with mixed feelings.
If you think I am ungrateful for overseas trips, consider the statistics. When you go through eleven airports and nine different hotel bedrooms in less than five weeks, you do not feel like a jet-setter. You experience what unaccompanied baggage, which you are, feels like.
The armed neutrality of airports terrifies me. Everything about them conspires to reduce the already unnerved passenger to anonymity. I will always remember Beirut as the place where the ground staff actually saw me doing a three-minute mile down the endless corridor towards the jump-off point, but closed the plane doors anyway.
After the airports, the right hotel can be warming as a welcome mat. Paris would not be Paris without its truly French hotels, where concierges never forget a face or a message, and have only one answer: “No problem,” for every one you dump in their laps. The atmosphere keeps buzzing with excitement. There is so much warmth.
Funnily enough, the best thing that happened was in a Rome hotel. The executive may be pure air terminal, but the staff is still as Italian as spaghetti.
One afternoon, I was awoken by the sound of sobbing. I found a woman on the threshold, telling me in signs and broken English that she had damaged a raw silk shirt I had sent for ironing. I told her to forget it, as it was not new anyway, but she wept even harder. But these were hot tears of happiness.
In Switzerland, in the high and sacred realm, things were maddeningly comfortable; almost everything was at the touch of a button. You name it, the Swiss have it! Naturally, for such a heavenly place, rain washed and windswept Switzerland, prices are sky-rocketing.
I lost count of currencies after the third border. I do not think I will get over the shock of paying 99p (Rs70) in London for one solitary radish. The cost of living there cured me of complaining about ours.
After Hamburg, Amsterdam, Barcelona, down to Greece, the land of Athena, the eternal fire, gods and goddesses. It is serenely beautiful, especially the multitudinous islands off Piraeus.
On the island of Corfu, we stayed overnight. My wife and I went for a pon’ride. Climbing was alright, but whilst coming down the slope, my wife cried out: “Marc, I’m falling!” And the islanders, picking oranges, shouted: “Marco Polo!”
This is something like glimpsing between the opening and closing of a door. There is a lot more, but the middle will not hold it!
I must confess I slept like a log in all those strange beds. For the first time in years, I did not have to keep an ear open for anything going bump in the night. The mere thought that I could read in bed till dawn if I wished was enough to put me out like a light.
But give me the only bedroom in the world which I can navigate in the dark. It may not be five-star, but it sure is familiar.
I am sending a cutting of this article to my trio. I wonder if, after that, they would still want me there…!
