In this article, Aswathi Vakkayil discusses Rights of a Woman during Interrogation.

Introduction

Interrogation refers to an attempt to get a suspect to confess something, however, it is different from an interview as that is done by the police to gather information for the investigation. Nevertheless, it is very important to ensure that the interview of witnesses and interrogation of suspects/accused to elicit the truth should be done in a professional manner by the investigating officer.1 The National Police Commission in its 3rd report has mentioned that the power of arrest was one of the chief sources of corruption in the police. The report of the commission suggested that about 60% of the arrests made the police were either unjustified or unnecessary.2 Hence it is fundamental for every woman to know their rights during an arrest or interrogation.

Rights under Indian Law

India has positively taken steps to imbibe all the International norms and standard policies. The following are the rights provided to all the women during an interrogation:

1. Right to Equality

Article 14 of the Constitution guarantees equal protection before the law and the courts not only as regards to substantive laws but procedural laws as well. It means that all litigants, similarly situated, irrespective of whether the person is accused or not, are entitled to same procedural rights for relief and defence. People who all are in the same ‘class’ should be subjected to the same law, there cannot be selectivity within a class. If within the same class some are subjected to a more drastic procedure than, others, then it is discriminatory and bad under Article 14. However, the Constitution not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women under Article 15(3) of the constitution. This inherently protects the right to freedom from discrimination.

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2. Presumption of Innocence

Our laws are based on Common Law and equality of law. One of the important and well-known principles is that a person is believed to be innocent until the guilt is proved against him. This principle is called the Presumption of Innocence. In other words, accused is entitled to take advantage of reasonable doubt in respect to his crimes. Hence, even if a woman is arrested as an accused for interrogation the person is to be considered as an innocent till her guilt is proved before the court.

3. Right against Self-Incrimination and the right to silence 

The right to silence is a legal principle which guarantees an individual the right to refuse to answer questions from law enforcement officers or court officials during interrogation. Further, there is right against self-incrimination which is incorporated in clause (3) of article 20 of the Constitution. The ‘right to silence’ principle has its roots in common law. This principle means that courts or tribunals of fact should not conclude that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court. Moreover, evidence obtained in a manner that violates these rights is excluded if such evidence is admitted then it would render the trial unfair or otherwise be detrimental to the administration of justice.

4. Right to Freedom from Coercion, Duress, Threat, Torture or harassment

The person who is arrested and interrogated has to be produced before the magistrate within twenty-four hours from the time of his/her arrest. This period excludes the time taken in the journey.3 Hence, no arrested person can be detained longer than 24-hours.4 Manhandling and handcuffing at the time arrest are illegal if done unreasonably. Handcuffing is not a general procedure it is only to be made on reasonable grounds. Also, the escorting officer has to inform the reason for handcuffing to Judicial Officer before whom the accused is going to be produced.5 The detainee has the right to not be ill-treated, abused or tortured while in the custody during interrogation and investigation. Further, the detainee should not be subjected to more restraint than what is necessary to prevent his escape.6 Furthermore, no person can be induced or threatened or coerced to answer any question.

5. Right to be informed of the charges

The investigating officer has to give a written order for calling anybody for interrogation at the police station. If the person is arrested then she should be informed of the grounds of arrest by the police. Also, the police should also inform the arrested person about all the rights that a detained person is entitled to.7 Hence, every person is entitled to know why he or she is being arrested or questioned.8 And has the right to question the validity of the arrest if the warrant is unlawful. It is the duty of the police officer to inform her relative or friend about her arrest and the place of detention.9

6. Right to Bail

To be released on bail when arrested for a bailable offense and this right should be informed by the police officer to the person who is arrested.10 And if it is a female who is arrested for a non-bailable offence, even if the offence is very serious (punishable by death penalty even), the court can release her on bail.11

7. Right to the presence of Counsel during Interrogation

Detainee has the right to meet and consult a lawyer of his/her choice. The arrested person has the right to consult a lawyer during the interrogation also but not throughout the interrogation period.12 The right has been enumerated under Sec. 41D and Sec. 303 of  CrPC.

8. Right to Privacy

Right to privacy now has become part of fundamental rights.13 Females can be searched by only another female with strict regards to privacy and decency 14 Further, female suspects must be kept in a separate lock-up in the police station. They should not be kept where male suspects are detained Right to privacy also includes the right to protect the identity, in case of the rape victim. It is the duty of investigating officer that her identity shall not be disclosed by anyone including the media.

9. Right to free legal aid

It is the right of every woman to receive free legal aid in order to promote their welfare.15 It usually happens that when women are unaccompanied by a lawyer they are often held wrong or humiliated. Hence, it is also the duty of the police to immediately inform the nearest legal aid committee about the arrest of an accused seeking legal aid.16

10. Right to virtual complaints

As per the directions of the Delhi Police, in case a woman is unable to go to the police station to lodge a complaint then she can lodge the same via a registered post or an email. The senior police officer of the station which has received the letter has to forward the email or registered post to the Station House Officer of the area of crime for proper verification of the document so that an FIR can be lodged.

11. Right to Zero Fir

Zero FIR is an FIR that can be filed in any police station regardless of the place of incidence or jurisdiction.17 In 2013, Delhi Police announced that a woman can file a Zero FIR and the police have to accept it exactly as she describes and has to be initiated on the statement made by her. In 2007, a Supreme Court ruling suggested that any police officer who refuses to lodge a complaint will be suspended and even face a jail term. A police officer who fails or refuses to lodge your complaint is eligible to receive from 6 months to 2 years of jail.18

12. Right to no arrest

By virtue of Rule 81, women, minors and persons of unsound mind are exempted from arrest.19 Further, Sec. 56 of the Civil Procedure Code,1908 prohibits the arrest or detention of women in execution of a decree for money. A general rule is that females can say no to arrest if it is done before sunrise or after the sunset. Females cannot be arrested without the presence of a lady constable and though no female can be arrested after sunset or before sunrise but in exceptional cases where the police have the written order from the magistrate. It usually happens in cases where a serious crime is committed by a female and the arrest is important to serve justice. It is necessary that women should be given a separate locks ups is they are arrested.

13. Right to not being called to the police station

Women cannot be called to the police station or anywhere else for examination as a witness. They can be questioned only at their residence. Legal help or help of a friend during interrogation is allowed.  In the case of rape and sexual assault, the victims of such crimes cannot be forced to go to the police station to provide their statement. It is also necessary that women can be questioned in the presence of women constables at their home itself.20 Moreover, if the investigating officer requires the attendance of a woman as a witness then she cannot be called at any place other than the place where she resides .

14. Right to doctor’s assistance

It has been held by the Supreme Court that the preservation of human life is of paramount importance. The patient whether he/she is an innocent person or be a criminal, it is the obligation of those who are in charge of the health of the community to preserve life. Further, it is required that the medical examination of the female should be made by female medical practitioners and this had been embodied in Sec. 53(2) of Cr. P. C.

Additional responsibilities to be fulfilled by the Investigating officer during interrogation

• It is mandatory that the names and other particulars of police personnel dealing with the interrogation and arrest of the person(s) are entered in the register. It is compulsory for investigating officers to wear clear, legible and visible identification tags while questioning and arresting someone.22
• The police must record in a register the identity of all police officers who conduct the interrogation of the arrested person.

Remedies in case your rights have been violated

• You can file a complaint with the Police Complaints Authority. These are special bodies that examine complaints about the police from the public. Find out if there is one that has been set up in your state.
• You can file a writ petition directly under Article 226 of the Constitution of India in the High court or under Article 32 of the Constitution in the Supreme Court. If the court is convinced that there has been a violation of your fundamental right then it would direct the concerned authority to register the complaint or order accordingly as it deems fit.
• In case a person has been arrested and detained unlawfully or wishes to make  a complaint against any wrongful act by the police, he can complain to the

      ➤ Superintendent of police of that district and other senior police officers

      ➤ Courts; and

      ➤ State Human Rights Commission/ National Human Rights Commission

• You can even write down your grievance in a letter and send it to the High Court or the Supreme Court and if the court feels that your complaint deserves attention then it can treat this letter as a writ petition.

Rights under International laws

• Police and security forces are mandated to enforce the law in their countries as it is their responsibility to serve and protect people and communities and, in particular, to prevent and uncover crime, to ensure that public order is maintained. Every nation has to ensure that their domestic legal framework is in consonance with and respect international human rights law. The IPC concentrates its dialogue with law enforcement agencies on a core set of human rights and following are certain standard policies laid down to be complied with while an interrogation by the Police/ Security forces23 :
• Though the statements by suspects are a relevant source of information in the investigative process. The law enforcement officials should, however,  avoid relying too heavily on them and attempt as far as possible to obtain objective evidence that helps to confirm (or otherwise) a suspect’s statement;

• Interrogation of the suspect must be carried out in full respect of fundamental rights, in particular, the presumption of innocence, the right not to be compelled to testify against oneself or to confess guilt;
• There is a total prohibition at all times on torture and other forms of cruel, inhuman or degrading treatment. As these treatments have a long-lasting detrimental impact on the victims, the law enforcement agency as a whole, society in general and the justice system. No exceptional situations may justify a departure from this rule and that must be constantly affirmed by the policymakers. The laws made should be such that it takes a range of measures to prevent torture from occurring, including a clearly regulated investigation and interrogation process and respects additional judicial safeguards;

• In case of planned arrests, careful preparation is required to be done based on sound intelligence as regards to the location, possible risks for others, etc. and also all possible precautions is to be taken by the officers to protect the uninvolved people;
• An arrested person must be interrogated in full compliance with, in particular, the presumption of innocence, the right not to be compelled to testify against oneself or to confess guilt, the prohibition of harassment or any other forms of inhumane treatment;
• One safeguard is the proper recording of all relevant details of the interrogation (duration, intervals, the identity of all those present);
• The State is responsible for the well-being of all those in its custody. That includes responsibility for the whereabouts of those people and consequently for measures to prevent enforced disappearances.24
• Every person who is deprived of his/her liberty should be treated with humanity and their inherent  human dignity should be respected.25

Rights specifically for Women under International Law

• Women deprived of liberty may not be subjected to discriminatory treatment; they must be kept separate from male detainees and supervised by female officials and it should be ensured that women detainees are protected against sexual violence.26
• Anyone who has been subjected to unlawful arrest or detention has an enforceable right to compensation.27
• When women are arrested or interrogated, it is should be done under the supervision of a female official. Further, if body search of women is to be carried out then it should only be done by a female officer.  
• It is the duty of the law enforcement agencies to ensure that the women are not treated in an undignified manner while the officers administer justice. And has to ensure that there is a prompt response to incidents of crime and to they investigate such violence meticulously.

Conclusion

Despite constitutional safeguards provided in Article 22 of the Constitution, there are often allegations of misuse of the power of arrest by the police. At the same time, the crime rate is increasing in the country hence it is essential to be aware of the rights entitled to women under the Law. Further, the police investigator has to ensure that there is a fine balance between the interests of the society and the rights of the accused. The new witness protection scheme that has been established will also help the witness to protect their rights while interviewed. Though India has imbibed all the international norms and standard policies however certain rights such as the right to have an interpreter or right to compensation if the accused is wrongly accused are not expressly mentioned under the Law.

Endnotes

1. Police Investigation Special Reference to Criminal Justice System http://shodhganga.inflibnet.ac.in/bitstream/10603/45012/12/12_chapter07.pdf
2.  Law Commission of India, Consultation Paper On Law Relating To Arrest, Part I, http://lawcommissionofindia.nic.in/reports/Annexure%20III%20of%20177th%20report.pdf.
3.  Art.22(2), Constitution; Sec. 57 & 76, Cr.P.C
4.  Article 22(1) and 22(2)
5.  Prem Shankar Shukla v. Delhi Administration, 1980 SCR (3) 855.
6.  Sec. 51, Cr. P.C
7.  Art. 22(1), Constitution; Sec. 50, Cr.P.C.
8.  Section 23 of the Bill of Rights Act
9.  D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
10. Sec. 50, Cr.P.C
11.  Sec. 437, Cr. P.C
12.  Art.22(1), Constitution; D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
13.  Justice K.S Puttaswamy (Retd.) v. Union of India and Ors, WP (C) 494 of 2012.
14.  Sec. 51, Cr. PC
15.  Article 38(1) and Article 21 of the Constitution
16.  Sheela Barse v. State of Maharashtra,1983 AIR 378.
17.  See also: Diksha Trivedi, Registering FIR in a Police Station without Jurisdiction: Is it Possible?,iPleaders, (Nov 5th, 2015) https://blog.ipleaders.in/registering-fir-outside-jurisdiction/
18.  Sec. 166A of Cr. P.C.
19.  Sec.81(b) of Civil Procedure Code,1908
20.  Sec. 160, Cr.P.C.
21.  160 of Cr.P.C
22.  D.K.Basu v. State of West Bengal, (1997) 1 SCC 416.
23. International Rules and Standards For Policing, https://www.icrc.org/en/doc/assets/files/other/icrc-002-0809.pdf.
24.  International Convention for the Protection of all Persons from Enforced Disappearance (CPED), Article 17.
25.  International Covenant on Civil and Political Rights, Article 10(1)
26.  Standard Minimum Rules for the Treatment of Prisoners, No. 8(a)
27.  International Covenant on Civil and Political Rights,  Article 9(5).