Citizenship Bill & Human Rights: What Judiciary Needs To Rethink

Demand for speedy justice can’t be justified by meeting populist demands. Here’s what we really need.

Image used for representational purposes.

(Photo: iStock / Altered by Arnica Kala / The Quint)

10 December 2019 shall mark the 71st anniversary of the adoption of the Universal Declaration of Human Rights (UDHR), celebrated worldwide as International Human Rights Day. The UDHR laid the foundation of formally recognising civil, political and economic rights as ‘human rights’ at a global level.

In order to bring protection of human rights from international law to domestic arena, the Indian Parliament in 1993 enacted the Protection of Human Rights Act. The legislation was enacted with the intent of constituting a national human rights commission (NHRC), state human rights commissions and human rights courts for better protection of human rights.

What Protection of Human Rights Act Failed to Achieve

Despite the enactment of the Protection of Human Rights Act, one can witness a rise in the number of violations of human rights by state authorities. As per data available with the NHRC, 1,589 cases of custodial deaths (police and judicial) have been registered since January 2019 to November 2019.

The same period has witnessed 119 reported deaths in police encounters. As on December 2019, 22,043 are pending with the NHRC.

These figures are representative of the dismal state of human rights in the country. The India 2018 Human Rights report by the United States Department of State paints a murky picture too. It highlights instances of arbitrary deprivation of life and unlawful killings by state agencies, particularly through the use of:

1. AFSPA
2. disappearances
3. torture
4. cruel and inhuman treatment by police
5. arbitrary arrests
6. illegal detentions

The report shows that the majority of fundamental rights guaranteed under Article 19 of the Constitution are being flouted by public authorities in an extra-judicial manner. Human Rights Watch, a watchdog, has published a similar report on India.

Need for Speedy Justice Can’t Give Way to Populist Demands

A recent example of disregard for human rights can be witnessed from the ‘extra-judicial’ killings of the four accused in the Hyderabad rape and murder case, by the Telangana police. The episode raises disturbing questions about the training of police personnel and government machinery, regarding human rights. It is even more troublesome when such acts of total disregard for the law are celebrated as ‘righteous’ actions. Left unquestioned, a single act of this nature could lead to rampant abuse of power, and the complete sidelining of the rules of natural justice.

The need for speedy justice cannot be taken as an excuse to execute populist demands.

Taking into account the seriousness of the issue, the NHRC has suo motu taken cognisance of the killings, and set up an inquiry into the matter. However, the NHRC does not have the power to punish the violators of human rights. The power of punishment lies with the judicial organs of the government.

Section 30 of the Protection of Human Rights Act talks about the establishment of human rights courts.

It states that the state governments, with the concurrence of the Chief Justice of the High Court, may specify a court of sessions in each district to act as human rights court, for the purpose of providing speedy trial, for offences arising out of violation of human rights. Proviso to the section states that if a court of session is already specified as a special court, or a special court is already constituted for dealing with offences of human rights violations under any other law for the time being in force, Section 30 shall not apply. Such court can play an important role in delivering justice to human rights offenders, such as in cases of custodial deaths and extra-judicial killings.

Why Are Special Courts for Human Rights Violations ‘Toothless’?

In spite of the provision for establishing special courts — for trying human rights offences — being present for more than 25 years, very few states have empowered the sessions courts as special courts for trying human rights offences. The majority of the states are yet to take a call on establishing human rights courts. Even in states where human rights courts have been established, issues pertain to their functioning, though the act empowers special courts to try offences arising out of the violation of human rights; the term ‘offences arising out of violation of human rights’ has nowhere been defined.

Section 2(d) of the act defines 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.

A cursory reading of the definition shows that offences arising out of the violation of human rights could have a very vast ambit; ranging from custodial death to lack of sanitation. The act not only fails in defining what the offences relating to human rights violations would comprise, it also does not clarify the procedure for trying such offences.

It can be presumed that, due to the lack of specific framework that since court of sessions has been envisaged as human rights courts, the Code of Criminal Procedure (CrPC) shall regulate the trial of human right offences. However, under CrPC, a sessions judge does not have the power to take cognisance of an offence, unless it has been committed to him by the Magistrate under Section 193 of the Code. Due to this provision, even in states where the sessions courts have been established as human rights courts, they do not take cognisance of cases of human rights violations.

Why We Need Fully-Functional Fast-Track Courts

The situation has somewhat been remedied through the 1996 judgment in Tamil Nadu Pazhankudi Makkal Sangam v Government of Tamil Nadu, which attempted to narrow down the definition of offences arising from human rights violations to acts or omissions punishable by law as relatable to life, liberty, equality and dignity of the individuals and nothing else, on the part of the instrumentality of the State, that is, public servants. The same has been reiterated in cases such as Santhosh Hospitals Private Limited v State Human Rights Commission and M Loganathan v VR Eswaramoorthy. However, being judgments of High Courts, these are not binding on courts of other states, and have limited persuasion powers. Also, though restricting the scope of offences to public servants, the clarification still leaves a wide ambit of discretion to assess whether an act is an offence against human rights or not.

Human rights courts, as envisioned in the Act, have the potential to deal with the innumerable human rights violations in the country.

However, the act appears to have hurriedly incorporated the provision without going into the full potentiality of the courts — its jurisdiction and procedure. Not having fully-functional fast-track courts to dispense with cases of offences against human rights amounts to denial of justice altogether.

Looking Ahead

Article 21 of the Constitution of India grants every person the right to live with dignity and self-respect. In all cases where the law is surpassed to deny basic human rights to any individual, it is required that strict action is taken. Not only must the state endeavor to protect and reinstate the human rights of the victim; it should also ensure that the perpetrator is duly penalised.

In order to achieve this objective, it is with urgency that states must ensure the establishment of human rights courts in each district along with framing guidelines as to the offences the courts shall be empowered to try, the punishments for the same, the process of segregating these offences from other criminal offences under the Indian Penal Code, and the procedure to be followed for the trial.

(Amit Kumar is a guest faculty member (Human Rights Law) at Patna Law College. Tanaya Thakur is research scholar (Law) at IIT Kharagpur. This is an opinion piece and the views expressed above are the authors’ own. The Quint neither endorses nor is responsible for them.)