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ACCOUNTABILITY OF POLICE-Kishan Dutt KalaskarThe incidence of police brutality, abuse of power and pre-trial detention in India has always remained a serious issue of human rights violations and has increased manifold in the recent past. The police are the most important law enforcement agency entrusted with preventing and detecting crime within a country. The police must maintain law and order in society and ensure peace. More often than not, one comes across news of manhandling and illegal detention by the police of innocent persons. There is mounting national and international pressure to protect and conserve certain basic human rights of all individuals.  Physical and verbal abuse The recent case of custodial death in Tamil Nadu's Tuticorin of the father-son duo, P. Jayaraj and J. Benicks, has brought into light the need for generating awareness regarding the protection of human rights of persons in custody. Jayaraj and Benicks were taken into custody for violating Covid-19 curfew hours and died in custody two days after their release. The family suspected that they had been tortured. According to the family, the duo was taken to a government hospital on 20thJune 2020, where they were found in bad shape, and their pants were soaked in blood. As the gruesome details became known, the case sparked outrage on and off social media and soon gained national attention, and the Madras High Court took up suo moto cognizance of the matter and directed the Kovilpatti Judicial Magistrate to inquire into the matter. On the basis of a report of the local Magistrate investigating the deaths, the High Court stated there was a prima facie case of murder against the main accused. The Court also cited the serious injuries listed in the post-mortem report and testimony of the eyewitness, a female constable at the police station. Hours later, the five policemen were arrested. According to the Magistrate, the CCTV footageof the assault had been erased, and the officers had initially refused to submit the batons they had used to beat the two men with. The officers who were accused in the deaths were initially transferred, and, as demands for more severe action grew, they were suspended. There are have been several instances where the police have severely manhandled the citizens irrespective of whether they have been arrested or whether they are innocent bystanders who approach the police to register a complaint. For instance, in April 2020, Mohammed Rizwan was beaten with lathis and rifle butts for venturing out of his home, attempting to buy biscuits. After such gruesome treatment was meted out to him, he succumbed to injuries after two days. Legally speaking, no police officer can physically beat any person to make an arrest or compel their production in a police station.  Available RemediesDenial of basic rights to persons in custody constitutes an ascertained blow on human dignity, having the effect of destroying an individual's personality. The Courts in India have been vigilant against the infringement of the human rights of those detained by giving a liberal and expansive interpretation of life and personal liberty. Obtaining an effective remedy for complaint against the police is integral so as to protect the rights of citizens. According to the National Crime Bureau, there are about 54, 916 complaints were reported in 2015, out of which only 16,308 complaints were inquired into, but only 1122 police officers were actually prosecuted, and only 25 of them have been convicted. There seems to be no logical explanation for such poor rates of conviction of police personnel.  1.     Police Complaint AuthorityIn the landmark judgement in Prakash Singh v. Union of India, the Supreme Court, upon an extensive review of past authorities, cases alleging misuse of powers by the police and reports of various Commissions set up to give recommendations for greater accountability of police in India, directed inter alia, the establishment of a Police Complaint Authority (PCA) in all states by the enactment of appropriate legislation. Consequently, in October 2006, the Ministry of Home Affairs set up a committee known as the Soli Sorabjee Committee for producing a draft Model Police Bill to be incorporated by all states in preparing their respective legislations dealing with the police in the State and replace the Police Act, 1861. The Model Bill lays down a detailed section establishing and regulating authorities dealing with complaints against the police. The Court had prescribed the minimum basic standards that the Bill must entail for the oversight of police. The Bill creates a PCA comprising of a Chairperson who shall be a retired Judge of a High Court and five other members at the state level. A Commission is also established at the district level for better administration and effective disposal of complaints against the police. The PCA is authorised to investigate into complaints alleging any type of misconduct against any police officer who is of or above the rank of Superintendent of Police and into complaints against officers below the rank of Superintendent of Police alleging death, grievous hurt, rape or attempt to rape against a woman in police custody or extortion, take of land and/or house and incidents involving severe abuse of authority or any other misconduct referred to it by the State Police Chief or the District Authorities. In respect of matters being inquired into by the PCA, the Authority shall have the powers of a civil Court under the Code of Civil Procedure, 1908. The Commission can also take suo moto cognisance of the alleged abuse.  2.     Liability under law This liability finds its basis in the constitutional and administrative law against the violation of the fundamental rights of the citizens. A police officer abusing his authority to violate the right to life and liberty, protection against discrimination, protection against arbitrary and illegal detention, freedom to move freely throughout the territory of India etc. can be held liable under the Constitutional law and can be directed to pay compensation to the victim for the harm or injury caused by him. In Sebastian Hongray v. Union of India (1984), the Apex Court granted compensation to two ladies who were tortured, agonised and harassed when they went to file a missing person report of their husbands. These women were taken to an army camp in Manipur by army officials, and their missing husbands were never produced. Similarly, in Saheli v. Commissioner of Police (1990), compensation was granted for causing death by beating up a nine-year-old child in custody. In UttarakhandSangharshSamiti v. State of UP (1996), it was held that acts of wrongful restraint and detention, the deliberate shooting of unarmed agitators, planting of evidence to show false recoveries, committing rape, tampering with evidence and harassing an individual cannot be said to be acts done or purported to be done in the discharge of a police officer's official duties. Accordingly, exemplary damages were awarded to the persons killed as well as women raped or molested by the police.  3.     Action by the National Human Rights Commission Under the Protection of Human RightsAct, 1993, the National and State Human Rights Commissions are bestowed with the power to take cognisance either suo moto or on a complaint made to it alleging violation of human rights by any person. In pursuance of this power, the NHRC has the authority to intervene in any proceedings against the police officer and make recommendations in this regard. Acts of custodial violence and death, false encounters, atrocity by the police officer, cases relating to women and children can be reported to the NHRC for scrutiny.  The Commission has consistently pointed out that the hostile attitude of law enforcement agencies, in turn, breeds lawlessness and contempt for the enforcing authorities. One way of ensuring the reduction of such instances is to ensure strict action, including prosecution, against the perpetrators of all forms of custodial violence. The Commission has also recommended disciplinary action against the deviant officials and granted monetary relief to the victims or their next of kin.  ConclusionWith the steady increase in the number of cases of police brutality in India, it has become an inordinate concern of human rights violation that requires immediate action. It is highly inappropriate that the police take the law into its own hands and abuses the process of law. The statistics show that the rate of police accountability and conviction of such officers is considerably low. Police being the primary law enforcement authority and an integral structure of the State, abuse of legal processes and powers by it is highly dangerous to democracy and can lead to a state of anarchy. It is essential that legislative and executive actions are taken to ensure a free and fair investigation or inquiry into the matters of police atrocities. Many a times, the officials responsible for such gruesome acts go unpunished. Senior police officers should not protect the persons responsible for custodial crimes. An attitude of sensitivity towards human rights should be inculcated through training and awareness programmes. Mechanisms should be developed to properly investigate the matter by setting up a fair and impartial Committee to look into the matter. It is required that prompt and effective action is taken against the persons responsible for human rights violation, and mere suspension must not be taken recourse to.Although the Supreme Court directed the State legislatures to established a PCA at the state and district levels, only 18 states have done so. Furthermore, there is a severe lack of awareness of the existence of the PCA amongst the general public. It is also highly recommended that the appointments to the Authority are made by an independent, unbiased and impartial body. Another major drawback of the PCA is that its recommendations are not binding and merely of a directive nature. Nonetheless, the establishment of PCA is a step in the right direction; effective implementation and awareness would protect and preserve the rights of the public and the spirit of democracy. Recently, to protect the interests of persons brought into the police station for investigation, the Supreme Court in Paramvir Singh Saini v. Baljit Singh and Orsrr.,directed the government to ensure the installation of CCTV cameras and recording equipment in all interrogation rooms, lockups used by various investigative agencies. 

Posted By

Kishan Dutt Kalaskar Retired Judge

5 days ago

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Guidelines to be followed by Registered Medical Pr...

According to the World Health Organization, dispensing refers to the practice of preparing and giving medicine to a person based on a prescription from a registered medical practitioner (RMP). Dispensing of medicines by an RMP has been legalized for the convenience of the patients. It allows the availability of consultation, treatment-related supplies, prescription and drugs under one roof, i.e. the doctor’s clinic to the patients. Many issues border the practice of dispensing of medicines by registered practitioners. It is not uncommon for RMPs to exercise the option of prescribing as well as dispensing medicines, especially in semi-urban and rural areas yet this dual practice of prescribing and dispensing medicines raises many ethical and legal concerns.  Can Medical Practitioners dispense medicines?The question of whether clinical specialists should sell medicines at their clinic has been raised on several occasions but still remains unanswered.In India, the manufacturing, storing, transportation, conveyance, and administering of drugs and medicines are governed under various statutes, including the Drugs and Cosmetic Act, 1940; Indian Medical Council Act, 1956; the Pharmacy Act, 1948; and the Narcotic Drugs and Psychotropic Substances Act, 1985. S.42 of the Pharmacy Act requires mandatory registration of pharmacists selling medicines but exempts RMPs from this requirement. Recently, the Pharmacy Council of India had unanimously adopted a resolution requiring an amendment of S.42 of the Pharmacy Act permitting RMPs to sell medicines to their patients. Rajan B Rajan, former President of the Kerala State Pharmacy Council, also demanded following up on the implementation of this resolution. It is argued that since RMPs are unregistered drug specialists, they should not be allowed to sell drugs. Rules governing dispensing of medicines by RMPs in IndiaPrimary legislation dealing with the dispensation of drugs by medical practitioners is the Drugs and Cosmetics Act, 1940 (DCA). Form 20B of the DCA discharges the RMPs from procuring a license to dispense medicines. The rules framed under DCA, namely the Drugs and Cosmetic Rules, 1945 (hereinafter referred to as ‘Rules’), extensively lay down the requirements that allow an RMP to commence dispensing medicines. Schedule K of the Rules regulates the selling of medicines by medical practitioners. RMPs can supply drugs to their own patients provided the following conditions are fulfilled:a.      The RMP must not keep an open shop b.     He must not sell across the counter c.      He must not be engaged in the import, manufacture, distribution or sale of drugs in India to such an extent that makes him liable for the breach of provisions of Chapter IV, DCA or the Rules. d.     The drugs must be purchased by a licensed manufacturer or dealer, and records of such purchase should be maintained and shall be open for examination at all times by the Inspector appointed under DCA. e.      The drugs must be stored under proper conditions as prescribed on the label. f.      No drug shall be sold beyond its expiry date mentioned on its label or wrapper. These conditions also apply in case a drug mentioned in Schedule C of the Rules is provided by the RMP to another medical practitioner at their request. In Schedule K of the Rules, additional conditions have been prescribed if the medicine to be dispensed is mentioned in Schedules G, H or X of the Rules. These are:a.      The medicine must bear a label mentioning the name and address of the RMP to whom it is supplied. b.     Route of administration is also to be labelledc.      A register has to be maintained by the RMP, listing out the name of medicine or ingredients of preparation and quantities, the dose prescribed, the name of the patient, date and time of supply, and the person who prescribed the medicines. d.     Each entry in the register shall be numbered, and such a number must be written on the label of the container. e.      The register and the prescription upon which the medicines were issued shall be preserved for at least two years from the date of the last entry in the register or the date of the prescription.Non-compliance with these conditions will render the RMP liable for penalty under Chapter IV of the DCA. According to S.27(d), any person acting in contravention of the Rules shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees. Furthermore, the State Medical Council can proceed against the RMP.  Although RMPs are not required to obtain a license for dispensing medicines to their own patients, if the drug to be dispensed is a controlled drug declared under S.2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the RMP needs to secure a license to procure, transport, stock and dispense these controlled drugs. Furthermore, the Narcotic Psychotropic Substances Rules, 1985, govern the dispensation of controlled drugs by RMPs. Under Rules 52H and 52R, every RMP is required to maintain a separate record for each patient in Form no. 3E. Form no. 3D is to be filled detailing a day-to-day account of all transactions of essential narcotics. RMPs are also required to maintain a record of all receipts and disbursements of essential drugs in the manner prescribed in Form no. 3H.Sabira M. v. State of Kerala and Ors. is a landmark judgement of the Kerala High Court wherein the Court held that “no person other than a registered pharmacist shall compound, prepare, mix or dispense any medicine on the prescription of a medical practitioner. However, the said provision shall not apply to dispense by a medical practitioner of medicine for his/her own patients, or with the general or special sanction of the state government for the patients of another medical practitioner.”                                    Ethical guidelines for Registered Medical Practitioner dispensing medicinesThere has been a debate regarding the practice of RMPs to sell medicines in their own clinic. It is regarded as an ethical violation as doctors would benefit by prescribing expensive medicines to the patients. There is an inherent conflict of interest in this dual role as prescriber and seller of medicines of the RMP. In India, it is not unethical or illegal for an RMP to sell medicines to his patients, provided certain conditions are fulfilled. The Medical Council of India, with the approval of the Central Government, has notified regulations regulating the professional conduct of RMPs in India under S.33(m) of the Indian Medical Council Act, 1956.This code is known as the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. According to these regulations, RMPs should not run an open shop to sell medicines prescribed by him. This restriction does not apply in the case of the sale of medical or surgical instruments. The aim of this prohibition is to prevent the RMP from exploiting his patients. Subsequent to the amendment in 2016 to these regulations, the RMP is now required to legally prescribe drugs with their generic names, preferably in capital letters. Furthermore, it is now the responsibility of the RMP to ensure rational prescription and use of drugs.Responsibility of RMPsThere is an inherent danger of the profit motive of the medical practitioners in dispensing medicines. The RMP selling medicines to people has a dual interest in making profits as well as treating his patients. One must maintain a balance of interests for an ethical and efficient medical practice. Besides fulfilling the conditions prescribed by law, RMPs must disclose all relevant information to the patient. They should clearly reveal the name of the medicine, its efficacy, side-effects, economically friendly alternatives or substitutes of the prescribed medicines. The RMPs should refrain from taking any share in the profit from the sale of the medicines. The medical practitioner should not, under any circumstance, pressurize the patients into purchasing the medicines from him. ConclusionAs there is a great deal of ambiguity present in understanding this matter, the Indian Medical Association has also requested the Government to form an ordinance for ‘one drug-one company-one price’ to curtail the practice of prescribing expensive medicines in order to make profits by the RMPs and to govern this issue under   

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Kishan Dutt Kalaskar Retired Judge

3 weeks ago

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