To,
Prime Minister of India and Chief Ministers of All States in India.
Dear Sirs/ Madams,
Greetings from PVCHR.
I
want to bring in your kind attention towards regarding setting up the Human
Rights Courts under The Protection of Human Rights Act, 1993 passed by Indian
Parliament[i].
India being a diverse country with its multicultural, multi-ethnic and
multi-religious population, the protection of human rights is the sine qua non for peaceful existence. It
is indeed impossible to give an inclusive definition of Human Rights owing to
its vast nature, however, the legislators have tried their hands in defining
Human Rights as “the rights relating to life, liberty, equality and dignity of
the individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by courts in India” under the Human Rights Act, 1993.
It is implicit from the definition that Human rights are omnipresent in
all legislations in our country and it is the duty of the Judges to read between
the lines and enforce these rights for the betterment of the society. In precise,
our judgments should be articulated in such a manner to accommodate human
rights whenever it is required.
The District judiciary renders an active role in dispense of justice,
they have a massive duty to protect the constitutional rights of the citizens.
Barring few limitations, the District Judicial Officers are in charge of all matters
including application and interpretation of constitutional provisions like
Articles 14, 19, 21 etc.
It is after the appreciation of work done by the District judicial
officers, that the legislators enacted the Human rights Act, 1993. One of the
main objectives of the Human Rights Act, 1993 is to establish the Human Rights
Courts at every district level. Section 30 of the Act enables the State
Government to specify for each district, a Court of Sessions to be a Human
Rights Court after the due concurrence with the Chief Justice of the respective
High Courts.
The motive behind the provision is to provide speedy trial of offences
arising out of violation of human rights. The creation of Human Rights Courts
at the district level has a great potential to protect and realize human rights
at the grassroots level.
On 9th September 2011, the West Bengal government was the first to set
up Human Rights’ Courts in all 19 districts of the State to ensure speedy
disposal of cases concerning human rights. These courts functions from the
district headquarters and it is under the District Sessions Judge. Separate
public prosecutors are being appointed in each District Human Rights Court, as
provided by the section 31 of the Protection of Human Rights Act, 1993.
More and more Session Courts must be specified as the Human Rights
Courts for achieving the full benefits from the act.[ii]
The High Court of Madras delivered its judgement on 23 June 1997 giving its views on various aspects of the functioning of Human Rights Courts. The High Court framed as many as 25 questions/issues touching on the interpretation of various provisions of the Protection of Human Rights Act, 1993, the scope of jurisdiction of the Human Rights Courts and the human rights offences. A summary of various points raised and findings recorded by the Court is as Follow:
Please find the Summary of points raised and findings recorded by the Madras High Court on the setting up of Human Rights Courts[iii]
Please find the Summary of points raised and findings recorded by the Madras High Court on the setting up of Human Rights Courts[iii]
Sl No.
|
Points
|
Findings of the Court
|
|
1.
|
Whether it can on the face of
the statutory provisions under Section 2(1) (d) defining
`Human Rights' and Section 30 of PHRA dealing with constitution of HRCs for trial of offences, arising out of violation of `Human Rights' - be stated that there is no clear guidance in PHRA as to what can be regarded as `offences arising out of violation of Human Rights'? |
There is a clear guidance in
PHRA as to what can be regarded as `offences arising out of violation of `Human
Rights'.
|
|
2.
|
Whether there is any need or
desirability to amend PHRA and specify the offences, arising out of violation
of Human Rights, which can be tried by HRCs?
|
There is no need or
desirability to amend PHRA and specify the `offences' arising out of
violation of `Human Rights', which can be tried by HRCs.
|
|
3.(a)
|
|||
Whether all refractions or
violations of `Human Rights' embodied either in International Covenants or in
the Constitution are enforceable by Courts?
and |
It is only such violation
of `Human Rights' as embodied in International Covenants, treaties,
etc., either incorporated in the Constitution, as justifiable right or
incorporated or transformed in the municipal law, at the instance of the
instrumentalities of the State that got attracted the jurisdiction of the
High Court under
|
||
Article 226 or the Supreme
Court under article 32 of the Constitution. The violation of such rights, if
occurred at the instance of private individuals, there is no other go for the
affected individual, except to seek his remedies under the ordinary law of
the land.
|
|||
Whether all such violations
or refractions amount to `offences', giving rise to a cause of action for
initiation of prosecution proceedings before a HRC?
|
In the light of the
definition of `offence', as contained in Section 2(n) of the Code, `offence'
arising out of violation of `Human Rights', as mentioned in Section 30 of
PHRA, in the context of the definition of `human Rights' in section 2(1) (d)
of PHRC, means such act or omission on the part of the instrumentality of the
State, that is say , public servants, punishable by law or the time being in
force, as reliable to life, liberty, and dignity of the individual and
nothing else.
|
||
3.(b)
|
|||
4.
|
whether violation of Human
Rights, as recognised by International Treaty, Covenant or agreement, to
which India is a party in the absence of any law, made by the Parliament
therefore under the statutory provisions adumbrated in Article 253 read with
Article 51 (c) and Entry Nos. 12 to 14 and 95 of List I and Entry No.65 of
List II of the VIIth Schedule of the Constitution can be reckoned with and given
effect to, either by HRC or superior Courts of jurisdiction High Courts
Supreme Court creatures of the Constitution?
|
Violation of `Human Rights',
as recognised by International treaty, Covenant or agreement, to which India
is a party, in the absence of any law made by the Parliament therefore under
the statutory provisions adumbrated under Article 253 read with Article 51(c)
and entry Nos12 to 14 and 95 of List I and Entry Nos65 of List II of the
VIIth Schedule of the Constitution can not be reckoned and given effect to
either by HRCs or superior Courts of jurisdiction High Courts and the apex
Courts creatures of the Constitution. However, there can be no prohibition
for the courts in India to apply the principles underlying such covenants,
treaties etc. in the process of interpretation, if they are not in conflict
with municipal law or not opposed to fundamental rights of Chapter III of the
Constitution.
|
|
5.
|
Whether HRC is not a Court or
Tribunal constituted under Article 323-A or 323-B of the C Constitution of
India?
|
HRC is not a Court or
Tribunal of a Court constituted under Article 323-A or 323-B of the
Constitution. But it is a Court constituted under Section 30 of PHRA,
as a Special Court in the cadre of a Court of Session with powers of a Court
of original jurisdiction.
|
|
6.
|
Whether the constitution and
designation of a Court of Sessions, in each and every District, as HRc a
special Court with powers of a Court of original jurisdiction for trial of
all offences, arising out of violation of Human Rights, irrespective of their
classification into various categories of offences - First Class, Second
Class or exclusively triable by a Court of Session - is permissible in Law?
|
The Constitution and
designation of a `Court of Session' in each and every District as HRC a
`Special Court' - with powers of a Court of original jurisdiction for trial
of all offences arising out of violation of `Human Rights', irrespective of
their classification into various categories of offences - First Class,
Second Class or exclusively triable by Court of Session is permissible under
Law.
|
|
7.
|
Is it legally permissible for
the relevant provisions of the Code to be swung into operation for the trial
of offences out of violation of Human Rights, excepting matters in respect of
which specific provisions had been made in PHRA, by virtue of the sanguine
provisions, in the shape of Section 4, 5 and 26 of the Code?
|
It is legally permissible for
the relevant provisions of the Code to be swung into operation for the trial
of offences arising out of violation of `Human Rights', excepting matters in
respect of which specific provisions had been made in PHRa, by virtue of
sanguine provisions, in the shape of Section 4, 5 and 26 of the Code.
|
|
8.
|
Whether it is desirable to
expressly provide for an appeal/revision in PHRA to the High Court against a
decision of HRC?
|
There is no need at all to
expressly provide for an appeal/revision in PHRa to the High Court against
the decision of HRCs.
|
|
9.
|
Whether it is necessary for
this Court to make and issue General rules prescribe Forms etc., for
regulating the practice and proceedings of HRCs
under Article 227 of the Constitution |
There is no necessity or need
for this Court of make and issue General Rules and Prescribe Forms, etc., for
regulating the practice and proceedings of HRC under Article 227 of the
Constitution.
|
|
10.
|
Whether it is desirable to
incorporate a specific provision in PHRA as to the inapplicability of
anticipatory bail provision, as contained in the Code?
|
It is not at all desirable to
incorporate a specific provision in PHRA as to the inapplicability of
anticipatory bail provision in the Code.
|
|
11.
|
Whether it is desirable to
frame a rule fixing a time-limit for trial and disposal of cases, arising
under PHRA?
|
It is not desirable to frame
a rule fixing a time limit for trial and disposal of cases arising under
PHRA, except to make an emphasis that every earnest effort shall be taken to
try and dispose of those cases as expeditiously as possible.
|
|
12.
|
Is it not incorrect to state
that HRC, being a Criminal Court, has no power to grant compensation, except
under Section 357 of the Code?
|
It is correct to state that
HRC, being a Criminal Court has no power to grant compensation, except under
Section 357 of the Code.
|
|
13.
|
Whether it is desirable or
necessary that HRCs are empowered to grant compensation subject to a
prescribed limit to the victims y excluding the jurisdiction of the Civil
Courts, with a discretion for such Courts of permit the Government - Central
or State, as the case may be to recover the whole or part of the compensation
so awarded from the officer(s), who are found guilty and to award interim
compensation to the victims, befitting such reliefs?
|
It is desirable and necessary
that HRC, by way of amendment to be brought in, must have to be invested with
the exclusive jurisdiction, in the matter of award of compensation to the
victims of Human Rights offences, without prescribing any limit therefore,
ousting the jurisdiction of civil court and vesting public law jurisdiction
inhering in Writ Courts - High Courts and Supreme Courts reliable only to the
award of compensation for violation of fundamental rights of citizens - with
a discretion for such courts to permit the Government - Central or State- to
recover whole or part of compensation from the officer(s) who are found
guilty and to award interim compensation to the victims, befitting such a
relief. Until necessary amendments of PHRA on such lines are m,made,
the existing jurisdiction of various forums in the matter of award of
compensation to the victims of Human Rights offences will not get affected
and continue to operate.
|
|
14.
|
Is it not incorrect to state
that the scheme of PHRA in constituting NHRC, SHRC and HRC indicates, in no
uncertain terms, that NHRC and SHRC are akin to Commissions of Inquiry set up
under CIA and have no powers to give a definite judgement in respect of
offences, arising out of violation of Human Rights and are constituted with
the object of creating awareness of Human Rights at the Governmental level
and public at large, except the fact that they are permanent Standing
Commission, while in sharp contrast, the only institution, which could inquire
into, adjudicate upon and punish for violation of human rights is the HRC -
first of its type anywhere in the world?
|
It is correct to state that
the scheme of PHRA in constituting NHRC,SHRC and HRC indicates, in no
uncertain terms, the NHRC and SHRC are akin to the Commission of Inquiry set
up under CIA and have no powers to give a definitive judgement in respect of
offences arising out of violation of Human Rights and are constituted with
the object of creating awareness of Human Rights at the Governmental level
and the public at large excepting the fact they are permanent Standing
Commissions, while in sharp contrast, the only institution which can inquire
into, adjudicate upon and punish for violation of Human Rights is HRC - first
of its kind, anywhere in the world.
|
|
15.
|
Whether Human Rights
Commission - NHRC and SHRC - have powers to pass interim orders, pending
inquiry by them?
|
The Human Rights Commission -
NHRC and SHRC have only powers to recommend to the concerned Government for
interim relief to the victims of Human Rights violation and definitely have
no powers to pass orders interim or final, pending inquiry.
|
|
16.
|
Is it correct to state that
PHRA recognizes the principle that locus stand must stand expanded, in the
sense of allowing or permitting, apart from the aggrieved party, anyone on
his/her behalf to move HRC for redress of his/her grievances?
|
It is crystal clear that this
Act - PHRA to a certain extent relaxes the Rule relating to locus stand, in
the matter of lodging or preference of a complaint before Human Rights
Commission, in sub-clause (a) of section 12 thereof, as we have indicated
earlier. However, the locus stand principle is kept in tact in the matter of
approaching HRCs for redress of grievances of affected parties.
|
|
17.
|
Is it correct to state that
the rigidity of IEA does not bind HRC, because human justice is not to be
fettered by Sir James Pitt Stephen's prescription of yore?
|
On the fact of Section 2(1)
of the Code defining `judicial proceeding', it cannot at all be stated that
the proceeding before HRCs is not a judicial proceeding. Once a conclusion is
reached that the proceeding before HRC is a judicial proceeding, it cannot at
all be stated that IEA is not at all applicable to the proceedings, the
rules of evidence contained therein will have a full sway in the matter of
determination of questions arising for consideration in such proceedings. Law
of evidence as a now available is rather inadequate to meet the situation and
therefore it is, certain amendment is called for to IEA in order to contain
recurrence of occurrence in police lock-ups and jails that emanated at the
hands of the instrumentality of the State. until the amendment, as suggested
by the Law Commission, in its 113th report, is brought about, the victims
of Human Rights offences have to face concomitant obstacles in proof of
such offences before HRCs.
|
|
18.
|
Whether HRCs are required to
have a change in the outlook, particularly in involving custodial crimes and
exhibit more sensitivity and adopt a realistic - rather
|
No case involving major
crimes, such as custodial deaths has been disposed of by any of HRCs in this
State attracting the attention of this Court. Such being the case, the outlook
of such courts in the than a narrow and technical approach? Disposal of such
cases, is beyond one's comprehension and therefore, the question of issuing
guidelines for change of outlook will never arise for consideration. HRCs in
the State will have to exhibit more sensitivity and adopt realistic rather
than narrow and technical approach in the disposal of such cases in the
future ahead.
|
|
19.
|
Whether the usage of
expression, `specify a Public Prosecutor' , in Section 31 of PHRA can
be read to mean a Public Prosecutor, appointed under Section 24 of the Code?
|
Without a Special Public
Prosecutor, as contemplated under Section 32 of PHRA, HRCs cannot at all
function. Such being the case, it behaves upon the State Government to take
immediate steps for the appointment of a Special Public Prosecutor for
conducting cases of HRCs.
|
|
20.
|
Whether a direction can be
issued to the Government for the appoint of a Special Prosecutor, in
accordance with the salutary provisions adumbrated under Section 31 of PHRA,
within a time frame, if no such attempts have been made till now?
|
Court can definitely issue a
direction for the appointment of a Special Public Prosecutor for conducting
cases in HRCs within a time frame. However, Court is not issuing any such
direction, in the fond trust and hope that the State Govt., even without
issuance of any such direction in this regard, would hasten and complete the
appointment of Special Public Prosecutors to all HRCs in this State in
accordance with law, within a period of two months from the date of receipt
of a copy of this Order.
|
|
21.
|
Whether by taking into
consideration the sordid fact of signal importance that the victims of Human
Rights Violation are on the face of application of the relevant provisions of
the Code reliable to lodging of a complaint or information, in respect of a
cognizable offences to approach the very same agency for investigating their
complaint, which in the first instance got involved in the Commission of
Human Rights offences against them a facet going against the very essence of
natural justice and fairplay - it is permissible to find a solution in the
existing state of affairs for the constitution of a SIT for investigation of
Human Rights offences of cognizable nature by purposeful and meaningful
interpretation of Section 37 of PHRA for the purpose of advancement and in
aid of implementing the objectivity sought to be achieved thereby?
|
In order to get over the
difficulties Court have pointed out, it would be better in the interests of
all concerned, for the Govt., to constitute SITs in such numbers as would be
necessary to meet the situation. Court trusts and hopes that the Govt.,
would initiate necessary steps for the constitution of SITs as expeditiously as
possible. This point is answered accordingly.
|
|
22.
|
Since the very enactment of
PHRA is mainly for curbing Human Rights violations and for punishing the
perpetrators of Human Rights offences, who are none-else than public
servants, is it correct to state that the provisions of Section 197 of the
Code cannot be made applicable, inasmuch as the same must have to be
construed to have been dispense with?
|
It is not correct to state
that Section 197 of the Code cannot be made applicable, inasmuch as the same
must be construed to have been dispensed with in prosecution of cases,
arising out of Human Rights offences
|
|
23.
|
Is it necessary for a label
or a report to be affixed to the complaint of offences arising out of
violation of Human Rights that it is a fit case for launching prosecution,
before HRCs a condition precedent for the wheels of criminal law to be set in
motion?
|
It is not necessary for a
label of a report to be affixed to the complaint of offences, arising out of
violation of Human Rights that this is a fit case for prosecution before HRCs
a condition precedent for the wheels of criminal law to be set in motion.
|
|
24.
|
Is it legally
permissible for this Court in case, it comes to the conclusion that PHRA is
materially defective in such a way, as is not possible to implement its
provisions in ` as is where is state' for achieving the object, for which the
same had been enacted to issue a Mandamus to the Union Government to
formulate and frame adequate statutory provisions for giving succour and
relief to the citizens of this country, whose rights, it is said, it is said,
are being violated day in and day out?
|
Court however,
found that certain deficiencies, numbering three or thereabouts were
attributed in this PHRA and if those deficiencies stand rectified by way of
amendments by adding or creating a new offence of `torture' which affects the
dignity of the individual in IPC and introducing a new provision, in the
shape of Section 114-B in IEA revising the burden of proof regarding Human
Rights Offences, as indicated by the Law Commission in its 113th report,
besides investing power of exclusive jurisdiction with HRCs to make award of
compensation to the victims of Human Rights offences, prescribing no limits,
ousting the jurisdiction of Civil Court and vesting Public Law jurisdiction,
inhering in the Writ Courts - High Court and Supreme Court relatable only to
the award of compensation for violation of fundamental rights of a citizen
with a discretion for such courts to permit the Government, Central and State
to recover the whole or part of it from the officer(s) who are found guilty
and to award interim compensation befitting such relief, by making suitable
provision in PHRA by way of amendment, the implementation of PHRA will stand
on a better pedestal. Court trusts and hopes that the Union Government
will very soon bring necessary amendments of IPC, IEA and PHRA, as Court had
indicated for giving succour and relief, in a better way, to the citizens of
this country whose Human Rights, it is said, are being violated day in and
day out/. Court may, however, point out that it is not legally
permissible for this Court to issue a Mandamus to the Union Government to
being in amendments to the enactment's.
|
|
25.
|
Whether the Court of CJM,
Periyar District at Erode a designated HRC has the necessary and requisite
power under PHRA to entertain the petition of the Tamil Nadu Phazhangudi
Makkal Sangam represented by Mr. V.P.Gunasekaran, B.E. General Secretary?
|
The Court of CJM, Erode HRC a
Criminal Court, not having any powers of writ jurisdiction under Article 226
of the Constitution, cannot at all entertain the petition presented before it
by the Tamil Nadu Pazhangudi Makkal Sangam represented by Gunasekaran,
General Secretary for the relief of a nature grantable in writ jurisdiction.
|
|
Please immediate implement the points raised and findings recorded by the Madras High Court on
the setting up of vibrant and active Human Rights Courts as courts of poor survivors
of India.
Thanking You
Sincerely
Yours
Lenin Raghuvanshi
Secretary General
Peoples' Vigilance Committee on Human Rights
Secretary General
Peoples' Vigilance Committee on Human Rights
Gwangju
Human Rights Award – 2007
Association
of Cultural Harmony in Asia (ACHA) Star Peace Award – 2008
Director
of ACHA - Since 2009
International
Human Rights Award of Weimar (Germany) - 2010
SA4/2 A
Daulatpur, Varanasi - 221002
Mobile No: +91-9935599333
Mobile No: +91-9935599333
No comments:
Post a Comment