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The Legal Aid Lifeline

Absence of a lawyer during arrest, interrogation, can mean vulnerability to torture.

Written by Raja Bagga , Devika Prasad |
Updated: November 15, 2016 12:04:18 am
criminal legal rights, Legal rights, police stations, simi, bhopal, bhopal jailbreak, simi activists, simi encounter, simi activists encounter, National Legal Services Authority, death in  police custody,  police custody death cases, india news The law guarantees every person in custody the right to a lawyer during interrogation.

The recent escape of eight SIMI members from Bhopal Central Jail, and their subsequent deaths at the hands of local police, raise stark issues relating to persons in custody. These include the lack of access to a lawyer which could make the difference between life and death for someone in custody. Take the cases of eight men in different states who died in police custody recently — Balwant Singh, Satish Nogre, Bhuri Singh, Karthik, Rafi ul Hasan, Minhaj Ansari, Pravin Inderjeet and Rafiq Shaikh. Their fates were bound by one thread; all died in mysterious circumstances in the last seven weeks. Accounts show they were all victims of torture.

It is a matter of deep concern that torture at police hands could be the cause of these and other deaths. We should be outraged, and so should the police leadership, that this is happening on their watch. As per procedure, inquiries will be conducted to identify the cause of and circumstances around these deaths. However, even when these strongly suggest torture as the likely cause, police departments seldom move on their own to hold officers accountable. It takes a media campaign, and immense courage by victims’ families, to push the justice system to act.

Their training doesn’t equip police officers with the legal or operational know-how to conduct evidence-based investigations. There’s also a dearth of technical equipment for more scientific detection. So, the unspoken consensus is that torture is the necessary fallback. Equally acceptable is illegality; the procedures for when to arrest and what to do on arrest are routinely ignored by the police.

This can change if people can access a lawyer immediately after arrest. Legal rights are denied because there is no one to defend people against violations. The law guarantees every person in custody the right to a lawyer during interrogation — this can be strengthened to facilitate access to a lawyer at the earliest point after arrest. The evidence is irrefutable that this is when arrested persons are most vulnerable to

But are lawyers actually present during interrogation? The unfortunate answer is no. The police have a duty to inform arrested persons of their right to a lawyer of their choice. The 1987 Legal Service Authorities Act mandates free legal aid to persons in “custody”, but there are no legal aid schemes or practical procedures that lay down what needs to be done to get lawyers to the police stations. This means arrested persons are not provided their right to a lawyer until taken to court, leaving them extremely vulnerable in the early stages of police custody.

Some states have made a good beginning. Maharashtra’s rules state, “…the police shall immediately give intimation of the fact of such arrest to the nearest legal aid committee”. Rajasthan authorities issued a circular to provide legal aid at arrest. But lacking schematic procedures, these cannot be implemented.

The National Legal Services Authority should design processes that ensure lawyers are either stationed at police stations on a rotational basis or available on call. The police must be instructed to contact the closest legal aid committee after every arrest. Lawyers must be given unhindered access to confer with the arrested person before interrogation, and allowed to sit in during interrogation (as the law mandates). These lawyers must also be assessed against due process standards.

The minute a person enters custody, the police are responsible for his or her safety. The presence of lawyers at police stations can be a strong reminder that the police can’t be allowed to get away with murder.

Bagga is project officer, prison reforms programme and Prasad is coordinator, police reforms programme at the Commonwealth Human Rights Initiative (CHRI)

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