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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIPROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY Syed Kamran RAzvi
Synopsis:
The paper discusses the issues of
“Justice at the door-step”. The notion of Justice and Equity
has seen further evolution under the International
covenant on Human Rights. The exposition under
Protection of Human Rights Act, 1993,(India)i is a
manifestation of such obligation and collectivism1. It
provides the structure for implementation of Human
Rights. The subject of analysis is the success in
establishment of Commissions , Courts and rules aimed at
preserving the Human life and liberty and the need for
amendments. The background contained in Part III of the
Indian constitution close to ‘Bill of Rights’. It includes right
(Article 32)to move Supreme Court of India to prevent
infringement of fundamental rights2. However pursuant to
the Social Democracy, community-specific legislation in
1 Following Vienna Declaration in 1993 the post of Human Rights Commissioner was created at UN, (vide resolution 48/141). First High Commissioner Mr.Jose Ayala Lasso assumed office on 5th April,1994.2 Direct remedies under Article 32 and 226 of the Constitution of India Act 1 of 1950 are subjected to the Reasonable restrictions on the exercise of the Fundamental Rights as evolved by Case Law. This Writ peroragative emanate from section 7, of the Administrative of Justice (Miscellaneous Provisions) Act, 1938. As the Federal Court and the Supreme Court were established under the Charter by the British Colonial regime. Though Writ jurisdiction was not available to the colonial subject.
1/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIIndia like Prevention of Atrocities (SC and ST) Act,
1989 (previously Protection of Civil Rights Act,1955) have
also been enacted prior to Protection of Human Rights
Act,1993. Thus in terms of sociological implication of Law it
is impressed, in these set of legislation. These Rights-
specific legislation have acted if in support or is case of
over-lapping jurisdiction is also examined. Lastly, whether
the Human Rights Commission and Courts have made
progress in past one decade of existence. The challenge of
Civil liberties in pursuing dynamic civil society.
Key Words :
Act , NHRC, Justice, Constitution, Courts,
fundamental Rights, Ouster clause, Police, ‘Police
powers’, communal compensation.
Notion of Human Rights and Justice :
Every segment of the society has a different
definition of Justice. Human Rights is a growing definition
adding impression to the universal application and
implementation of the Laws conforming to the Human
Rights. Indian example is a case in point. Inspired by
International covenant of Human Rights or Universal
Declaration of Human Rights, 1966 an enactment was
2/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIpassed with a topical terminology. A Central Act called
Protection of Human Rights Act, 19933 was passed and
notified Act 10 of 1994. The Act envisages two
Functionary bodies namely the National Human Rights
Commission and State Commissionsii and permanent
remedial edifice, establishment of Human Rights Courts.
These courts are to work in aid of these commissions.
Prior to the passing of this statute an Act, calling for
National Commissions Act,1990 was passed. This statute
brings into existence the commissions for the segment of
the society discriminated and to study the welfare
measures and propose the same to the government
through their annual and Special reports. The Chairman of
the these commissions are also ex-officio members of
National Human Rights Commission.iii The Chairman of
NHRC is ex-Chief Justice of India and holds office till one
attains the age of 70 years. It has the powers of Civil Court
for proceedings and execution of orders/decrees and
powers to punish for contempt.
NHRC has in case of Gujarat riots in March,
2002 launched a Court campaign which has resulted in
hauling up making both accountable i.e. State
government and also High Court of Gujarat.iv
3 It was assented by the President of India and published in Gazette of India Extraordinary, Part III, Sec.1, dated 10th Januray,1994. This was to confirm the ordinance promulgated by the President on 28th September,1993.
3/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVISuch Court campaigns have been described by an
American Author ;
“Americans have gone a lot of further(some would
say too far(a bevy of Platonic Guardians’) Supreme Court
Court described) in judging judges. This is mostly because
of the Bill of Rights and the importance which the Supreme
Court has in the US constitution. But there is no doubting
that the judging of judges is a multi-million dollar and is
widely regarded in the USA as essential to judging Judges.
How is this an industry? The Bill of Rights leads
Americans to favour single-issue pressure groups which
mount Court-campaigns-most famously in the case of the
1954 decisions to end racial segregation in the schools-to
achieve political aims.”4
In a Petition in public interest on the same subject
filed before the Supreme Court of India it has been
represented that the trials of such violations of civil rights
should be done by the Human Rights Courts.v In Indian
context the access to the Courts has two hurdles , financial
and physical. India still is a rural society if no more an
Agrarian economy in terms of Urban and Rural ratio. The
indicator being GDP. Primary sector is still a major
contributor. Services is only now catching up with the
Manufacturing sector.
4 Judging Judges ,Simon Lee, Faber and Faber Ltd.,1988 reprint,P.186
4/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIAlthough the Legal Services Authorities Act, is
almost a decade old, State legal-Aid boards are often
plagued with financial crunch. There is another related
issue that is of the Financial independence of the Judiciary.
It is equally important for the Human Rights issues and
law. While the Higher Judiciary income is not taxable.
Those at the District Court, there salary is taxable barring
a few states. Also even the higher Courts do not have the
financial independence so far. There is debate on the same
and each successive Chief Justice of India has been
garnering efforts on the same.
The other is the physical hurdle, in a developing
economy infrastructure is often poor. Thus to seek Direct
remedy, a litigant has to travel few miles and perhaps few
days. Thus timely intervention may not be obtained.
These issues become more obvious when one
considers the rights and plights of the tribals, special
geographic regions and those living in Hilly areas.
Incidentally, India has an insurgency prone regions
situated in remote regions of the land. This part is dealt in
a separate section here.
The Human Rights Act addresses these two issues.
Legal structure and Procedure under the Act:
5/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVI
This brings to the discussion on the legal structure
and the procedure it provides for ensuring the remedial
process.
Section 30, Chapter VI of the Act:
“Human Rights Courts – For the purpose of
providing speedy trial of offences arising out of violation of
human rights, the State Government may, with the
concurrence of the Chief Justice of High Court by
notification, specify for each district a Court of Session to
be a Human Rights Court to try the said offences:
Provided that nothing in this section shall apply if –
(a)a Court of session is already specified as a Special
Court; or
(b)a Special Court is already constituted.
For such offences under any other Law for the time
being in force.
Section 31. Special Public Prosecutor.- For every
Human Rights Courts, the State Government shall,
by notification, specify a Public Prosecutor or appoint
an advocate who has been in practice as an
advocate for not less than seven years , as a Special
Public Prosecutor for the purpose of conducting
cases in that court.
6/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIThese two sections have been dealt and
interpreted by High Court of Andhra Pradesh saying
in its operative part;
The Human Rights Court, being a Court of
Session5(refer to chart in Schedule B) for trial of
offences violative of Human Rights, does not have
the power to take cognizance of any offence as a
Court of original jurisdiction unless the case is
committed to it by a Magistrate. A Magistrate of the
First Class or a Magistrate of the second class, as the
case may be, when empowered can take cognizance
of an offence upon receiving a complaint of facts,
upon a police report or upon information received
from any person other than police officer or upon his
knowledge. Court of session , however, cannot do so
and accordingly Human Rights Courts also cannot
take cognizance of the offence as the Court of the
first instance.6
There are two other sections of the Act
relevant to the aspect of Judicial process.
Chapter VIII (Miscellaneous)
5 Two tier of Criminal Courts in India, under Criminal Procedure Code,1973, Court of Session and Magistracy. Court of Session sits in appeal from magistrates court and tries heinous offences and death sentence. It shares some powers in Bail with High Court(Constitutional Court).6 A.Goverdhan Reddy v. Superintendent of Police,Allahabad,1998 Cr.L.J.561 at p.562(AP)
7/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVISection 36.Matters not subject to jurisdiction of the
Commission.-(1)The Commission7 shall not inquire
into any mater which is pending before a State
Commission or any other Commission duly
constituted under any law for the time being in force.
(2) The Commission or the State Commission shall
not inquire into any matter after the expiry of one
year form the date on which the act constituting
violation of Human rights is alleged to have been
committed.”
This clause of special Bar created anamoly (Ousting and
Overriding Clause) and suspicion. The Supreme court of
India clarified :
“The power and jurisdiction of the Apex Court under Art.32
of the Constitution cannot be curtailed by any statutory
limitation, including those contained in Sec.36(2). If the
Apex Court can exercise that power unaffected by the
prohibition contained in Sec.36(2), there is no reason why
the commission, at the request of the Apex Court, cannot
investigate or look into the violations of human rights even
though the period of limitation indicated in Sec.36(2) might
have expired . In such a situation, the commission will not
7 National Human Rights Commission
8/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIbe affected by the bar contained in Sec.36(2) and it will be
well within rights to investigate the matter referred to it.8
However the issue of suspicion remains. This
emanates from the Executive intent to skirt away or simply
avoid any accountability or action on the violations of
Human Rights.
There are two set of examples to emphasize such gross
abuse of sovereign privilege.
Role of ‘any other commissions’ on communal riots:
Under the Commission of Inquiry Act No.60 of 1952, any
State or Central government can appoint a Commission of
Inquiry. This is a Colonial legacy, although enacted after
India became republic in 1950.
On Communal Riots there have been at least ten
Commission of Inquiries since 1960. Each has
recommended set of reforms in police and “police powers”
of the State. How to be sensitive to the minorities. None of
the recommendations have been implemented till date. No
Law has been enacted ,specifically to deal with the (Anti-
Minority) administrative vice. The illustrations from two
important commissions are provided here :
8 Paramjit Kaur v. State of Punjab,AIR 1999 SC 340: (1999)2 SCC 131.(Also see endnote iii)
9/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIPara No.106.57 : Communal discrimination by officers
and men:
“ In the ultimate analysis the implementation of any
measure must depend upon human agencies, namely the
offices and men on the spot. No measures, however good
on paper, can succeed unless those charged with the
responsibility of carrying them out acts with integrity and
without communal bias. In the course of this Inquiry, we
have seen that even some of the senior officers were not
free of the taint of communalism. When, therefore, any
instance comes to light of any police officer, policeman or
Government servant having communal discrimination in
favour of a community, the person guilty should be
severely dealt with.”9
B.N.Srikrishna, J. Commission report on Mumbai
riots of 1992-93 :
“Even after it became apparent that the leaders of the
Shiv Sena were active in stoking the fire of communal
riots, the police dragged their feet on the facile and
exaggerated assumption that if such leaders were arrested
the communal situation would further flare up , or to put it
in the words of then Chief Minister, Sudhakar Rao Naik,
9 D.P.Madon,J. Commission of 1970 on the Bhiwandi, Jalgaon and Mahad: Sabrang publications,Mumbai,p.320
10/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVI“Bombay would burn”; not that Bombay did not even burn
otherwise.”
The same Commission has bitterly criticized
government.
Note the consistency in observation about role of Police
(Anti Minority Bias)by these two important and most vocal
Commissions:
“The working of the Special Investigation squad is a study
in communal discrimination. The officers of the squad
systematically set about implicating as many Muslims and
exculpating as many Hindus as possible irrespective of
whether they were innocent or guilty. Cases of many
Hindus belonging to the Shiv Sena, Rashtrya Utasav
mandal(an extension of the local branch of the Jana Sangh
were wrongly classified as ‘A’ category and investigations
closed and no proper investigation was undertaken into
several complaints of murders of Muslims and arson of
their property. No investigation was conducted into the
composition and activities of Hindu communal and
allegedly communal organizations operating in Bhiwandi
but only in respect of Muslim Communal and allegedly
communal organizations. Deputy superintendent of police
S.P.Saraf held private conferences and discussions with
11/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIseveral leaders of Hindu organizations including many who
were implicated by Muslims in offences of arson and
murder.”10
B.N.Srikrishna, J. Commission report on Mumbai
riots of 1992-93 :
“ The response of police to appeals from desperate
victims, particularly Muslims, was cynical and utterly
different. On occasions, the response was that they were
unable to leave the appointed post; on others , the attitude
was that one Muslim killed was one Muslim less….Police
officers and men, particularly at the junior level, appeared
to have an in-built bias against the Muslims which was
evident in their treatment of the suspected Muslims and
Muslim victims of riots. The treatment given was harsh and
brutal and, on occasions, with their adopting the role of
passive on-lookers on occasions, and ,finally, their lack of
enthusiasm in registering offences against Hindus even
when the accused was clearly identified and post-haste
classifying the cases in ‘A’ (True but not
detected)summary.”
10 D.P.Madon,J. Commission of 1970 on the cBhiwandi, Jalgaon and Mahad: Sabrang publications,Mumbai,Page vii
12/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIReport of the Ranganath Mishra J., Commission
report on the 1984 anti-Sikh riots in Delhi:
“ The riots occurred broadly on account of the total
passivity, callousness and indifference of the police in the
matter of controlling the situation and protecting the
people of Sikh community….Several instances have come
to be narrated where police personnel were found
marching behind or mingled in the crowd. Since they did
not make any attempt to stop the mob from indulging in
iNational Human Rights Commission for India was established in the year 1994 with the subordinate legislation on (procedure) Regulations in place under the Protection of Human Rights Act,1993.
ii Indian Constitution is federal in nature and through a list 1,II,III attached as Seventh Schedule to Article 246 which mentions the State amendments to the Central Legislation in matters pertaining to Criminal Law and some other categories of legislation. This is apart from the powers of the States to enact their own State-specific criminal laws. Many of such laws have been alleged to put to misuse. Also the State governments are less inclined to notify such central Acts which adds to accountability. Human Rights in social context in poorer states is considered to be liability. There is added dimension that of very competitive, aggressive and sometimes violent electoral politics.
iii The Supreme Court of India under Article 32 of Constitution of India also adjudicates on Fundamental rights. Thus in deciding a petition it clarified whereby Supreme Court says that matters so entrusted to the National Human Rights Commission, can be dealt by NHRC in the course and manner as it deems fit. “Therefore, the jurisdiction exercised by the National Human Rights Commission in these matters is of a special nature and not covered by enactment or law, and thus acts sui generis.” (Paramjit Kaur v.State of Punjab, A.I.R.1999SC340: (1999)2 SCC131.
iv During the Gujarat Riots,March,2002, the State was ruled by Rightist government i.e.Bhartiya Janata Party, also the heading the coalition government at the Centre. Even the High Court Judge had to leave his official residence and live with his relatives in a Muslim dominated area. The Best Bakery case Special Leave Petition has been admitted as the victim alleged intimidation by local BJP MLA. The lower court has acquitted the accused Right wing activists who murdered and burned few persons alive, during the riots.
vJamia Lawyers Alumni and Ors.v. Union of India and Ors. CW….. of 2004. It is to be listed towards the end of the month of Feb,2004 for hearing. The Petition calls for framing of the uniform compensation fromula as one prescribed in Motor Vehicles Act,1988 or any other formula. As it was witnessed that the State has discriminated in awarding compensation to Hindus and Muslims on loss of life in riots. The Act is deficient to that extent. Under Article 141 the Supreme Court of India has ample powers to enact Law till it is replaced by suitable amendments or special Law. Also please refer to the Schedule A to the paper for Laws dealing with Police powers of the State and accountability.
13/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIcriminal acts as inference has been drawn that they were
part of the mob and had the common intention and
purpose…The Commission was shocked to find that there
were incidents where the police wanted clear and definite
allegations against the anti-social elements in different
localities to e dropped out while recording FIRs(First
Information Report)”
Further response11 of government vide mention of
Action Taken Report would amplify the magnitude
of sovereign immunity and general insensitivity :
Para No.32 :
“The Commission has observed that the police were biased
against the Muslims. The Government cannot accept these
conclusions of the Commission. The Commission has itself
accepted the explanation given by the Commissioner of
Police and has further written that(Para.1.4, Chapter II,
Volume-1), “the aggressive and violent mobs in the initial
stages (emphasis mine) comprised Muslims and therefore,
Muslim casualties were higher”. The Commission itself
dismisses the theory(Para1.5, Chapter II, Volume I) that
disproportionately large number of deaths indicate that
police had targeted and liquidated Muslims because of
bias. The Muslims too a greater part in the riots and
11 To B.N.Srikrishna, J. Commission report on Mumbai riots of 1992-93: Jan.1993-Feb.1998
14/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIviolence by the mob. Therefore, larger number of Muslim
deaths took place. The Commission itself says that “ the
explanation of the Commissioner of Police that the
aggressive and violent mobs in the initial stages comprised
Muslims and , therefore , Muslim casualties were higher
does not appear to be as far-fetched as it has been made
out by Muslims(Para.1.4, ChapterII, Volume I).”
Para No.50:
“ Earlier, too, a number of serious and violent communal
riots had taken place in Maharashtra. We have not still
forgotten the 1967 riots of Malegaon, 1970 riots which
engulfed Bhiwandi, Jalgaon and Mahad and 1984
communal riots of Mumbai. Against this background it was
‘expected’(commas mine) that the Commission would
come out with suitable directions on the violent and
unprecedented riots and serial bomb blasts of 1992-93.It is
regretfully noted that the Commission did not fulfil this
expectation.(emphasis mine).”
“….But the Government is of the view that some of the
conclusions are one-sided, biased and arrived at with a
view to indict a particular person or community. Therefore
the Government rightly fears that after 5 years, the
wounds , instead of getting healed, will be reopened again
15/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIand may start festering. The Government, therefore ,
reiterates that on account of the reasons given above, it
cannot agree with the conclusions of the Commission
recorded in Chapters I to IV of Volume I of the Report.”
This Memorandum of Action to be taken by Government
was issued by the State government which was headed by
the political alliance of Shiv-Sena-Bhartiya Janata
Party(1995-1999). The Shiv-Sena activists were severely
indicted by the Commission. Thus the government
response and bias is not out of context.
The Commission was presided by a sitting High Court
Judge,Mr.B.N.Srikrishna,J. The then chief Minister of
Maharashtra is now Speaker of the Indian Parliament.
In view of the above, the ouster clause in the Act is
only to avoid accountability in the political system.
Some of the State governments have been so far-
fetched that they booked a few NGO activists working on
HIV-AIDS in hilly areas under Preventive Detention Law
called National Security Act No.65 of 1980. Their fault,
teaching sex education and organizing people, against the
wishes of local politicians.
16/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVITurning to the remedy to such political malaise is creating
special teams which is provided under Section 37 of the
Act.
Section 37: Constitution of Special Investigation
Teams.- “Notwithstanding anything contained in any
other law for the time being in force, where the
government considers it necessary so to do, it may
constitute one or more special investigations teams,
consisting of such police officers as it thinks necessary for
the purpose of investigation and prosecution of offences
arising out of violations of Human rights.”
Although here also the discretion lies with the
government. NHRC though has issued instructions to the
Police throughout India to report any deaths in police
shoot-outs within 24 hours of the incident. However this is
constrained in real terms by the physical verification of
the versions that of the Police and citizens (victims or
otherwise)
POLICE As Instrument of Law and Human Rights:
In a series of Judgements the Supreme Court of India has
indicted Police and policing in a Civil Society in
innumerable cases. The Law under Article 141 of
17/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIConstitution of India has been laid down on search, seizure
and arrest. Indian Judiciary particularly Court of record has
been receptive to the Judgements passed by various
Constitutional Courts including US, ICJ, and House of lords.
The rights of the accused have been detailed in 1997
judgement considering whole gamut of criminal Law and
jurisprudence available round the Civil societies across the
globe including PACE Act of 1984(UK). This was reiterated
in an observation :
“In cases involving violation of human rights, the
courts must for ever remain alive to the international
instruments and conventions and apply the same to a
given case when there is no inconsistency between the
international norms and the domestic law occupying the
field. In the instant case, the High Court appears to have
totally ignored the intent and content of the International
Conventions and Norms while dealing with the case.”12
In an unprecedented Judgement, a Precedent has
been laid down, whereby the High Courts in the States
have been empowered to supervise the implementation of
the orders.
12 Apparel Export Promotion Council v. A.K.Chopra, AIR 1999 SC 625
18/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIThus balancing the “opposite interests” rule of
Adam’s case 68 NE 636, or as Justice Cardozo observed in
People v. Defore13
“that the question is whether the protection of individual
would not be gained at a disproportionate loss of
protection of society. On one side is the social need that
crime shall be repressed. On the other, the social need
that the law shall not be flouted by the insolence of office.
There are dangers in any choice.”
A very similar interpretation and view was expressed by
Supreme Court of India :
“To strike the balance between the needs of the
enforcement on the one hand and the protection of the
citizen from oppression and injustice at the one end of the
law enforcement machinery on the other is a permanent
problem of statecraft”14
The guidelines issued in the 1997 being as below::
15“…The following guidelines to be followed in all
cases of arrest or detention till legal provisions are made
in that behalf as preventive measures:
(1) The police personnel carrying out the arrest and
handling the interrogation of the arrestee should
13 (1926)242 NY 13. (cited in “Interpretation and Enforcement of Fundamental Rights”, D.J.De,Eastern law House(India),2000edn,p.69214 Nandini Satpathy v. P.L.Dani; AIR 1978 SC1025; (1978)4 SCC 424.15 D.K.Basu v.State of West Bengal AIR 1997 SC610 (1997)1 SCC 416.
19/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIbear accurate, visible and clear identification and
name tags with the designations,. The particulars of
such persons who handle the interrogation of the
arrestee must be recorded in the register.
(2) The police officer arresting a person must prepare a
memo of arrest at the time of arrest and such memo
shall be attested by at least one witness. Who may
be either a member of family of the arrestee or a
respectable person of the locality from where the
arrest has been made. It must be counter-signed by
the arrestee and shall contain the time and date of
arrest.
(3) A person who has been arrested or detained and is
being held in custody in a police station or
interrogation centre or other lock up, shall be
entitled to have one friend or relative or other
person known to him or having interest in the
welfare being informed, as soon as practicable, that
he has been arrested and is being detained at a
particular place, unless the attesting witness of the
memo of arrest is himself such a friend or a relative
of the arrestee.
(4) The time, place of arrest and venie of custody of an
arresteee must be notified bny the police whgere the
20/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVInext friend or relative of the arrestee lives outside
the district or twon through the Legal Aid
Organization in the District and the police station of
the area concerned telegraphically within a period of
8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this
rights to have someone informed of his arrest or
detention as soon as he is put under arrest or is
detained.
(6) An entry must be made in the diary at the place of
detention regarding the arrest of the person which
shall also disclose the name of the next friend of the
person who has been informed of the arrest and the
names and particulars of the police official in whose
custody the arrestee is.
(7) The arrestee should, where he requests, be
examined at the time of his arrest and major or
minor injuries, if any, present on his/her body , must
be recorded at that time. The inspection memo must
be signed both by the arrestee and the police officer
effecting the arrest and its copy provided to the
arrestee.
(8) The arrestee should be subjected to medical
examination by a trained doctor every 48 hours
21/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIduring his detention in custody by a doctor on the
panel of approved doctors appointed by the Director
of Health Services etc.
(9) Copies of the documents including the memo of
arrest should be sent to the illaqa Magistrate for his
record.
(10) The arrestee may be permitted to meet his lawyer
during interrogation, though not through out the
interrogation.
(11) A police central room should be provided at all
Districts and State Headquarters, where the
information regarding the arrest and the place of
custody of the arrestee shall be communicated by
the officer causing the arrest, within 12 hours of
effecting the arrest and the particulars of the
persons arrested shall be displayed in a conspicuous
notice Board.”
It further reads as “…Any failure to comply with the said
requirements shall apart from rendering the concerned
official liable to departmental action,vi also render him
liable to be punished for contempt of court and the
proceedings for the contempt of court may be instituted in
any High Court of the country, having territorial jurisdiction
over the matter.”
22/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIThe Court directed that the aforesaid directions of
the court should be given widest circulation in the Radio
and Television and other newspapers to create awareness
about the right of the arrestee to bring down the custodial
crimes.
Although these are now displayed on the notice
boards at all police stations. The compliance and reporting
of violations of the same is sadly lacking. Thus there is
need for the monitoring mechanism. In States where the
Human Rights Courts have been notified. Such monitoring
is done by them. However there are just two states out of
30 States and two Union Territories and two autonomous
regions who have notified such courts. There is a move at
the annual Chief Ministers conference to take up this issue.
In UK , in compliance with the ECHR convention,
Human Rights Act,1998 was passed. The act exposes the
Policemen to Civil Tort. The position is no different in
India.16vii
16 Uphaars case,vi Limitation of approach in terms of “Miscarriage of Justice” being that there is little to hold him guilty and the Courts have passed Judgements where the Departmental Enquiries are not subjected to judicial scrutiny at all. There is an antique act called the Public Servants (Inquiries) Act, 1850. Government is the final word in the Act. Although the same has been unfettered by creation of Administrative Tribunals. In many cases related to corruption the Supreme Court and various High Courts has delivered judgements which clearly take away the immunity clause (sanction for prosecution) of Public servants. Also has widened the group of people in position to be covered under the definition of Public servants including the legislators, Corporators, under the Prevention of Corruption Act,1988. In one of cases Brij Mohan V.State & Ors.(unreported) , the Delhi High Court completely relied on the DE exonerating a Constable , against whom they have asked registration of FIR in their Judgement. The allegations were of physical assault and false case on four young men by two constables. The allegations were well supported by Photographs and the vigilance report of the Police Headquarters. There were three different Enquiries done by different sections of Delhi Police. Two in favour of the victims one was managed after the orders have been passed. Such is the finality of Departmental enquiry.
23/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVI“For the first time, the law gave the constable
effective protection under the umbrella of the police
organization by making the chief constable liable. However
the Human Rights Act 1998 may reverse this effect,
especially if constables are held to be ‘public authorities’ in
their own right. This possibility has clearly been in the
minds of police officers in the UK. Many have insured
against the public liability claims to cover this
eventuality.”17
Indian Police Act and Prison Authorities ::
“ In light of the evidence, we should abandon any
attempt to understand policing as a range of functions of
the police. Instead we should develop an account which
recognizes the diversity of meanings which now
characterise the terms ‘police and ‘policing’.18
The Indian Police is governed by the India Police Act,
1860, a colonial piece of legislation. It is the basic
structure for all the State Police Acts. The police is further
divided on the basis of status in service, whereby
17 Policing : An introduction to concepts and practice; Alan Wright, Lawman(India)PLtd.2002Ed.Reprint 2003 P.31.18 ibid
24/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIpreserving the higher posts for those at the pay rolls of the
Central Government.
There is severe neglect of the local police. It is them
who are responsible for investigation and prosecution
under the Criminal Procedural Code of 1973.
Like other Commissions , the National Police
Commission recommendations has been gathering dust for
past two decades.
Thus the translation of words into action lacks on this
count keeping the aims and object of the Act in abeyance.
In case of Prisoners Act, the Prison has its own
recruitment rules and staff, under the various Jail rules and
manuals as applicable in the State. The Jails are subject to
the monthly inspections by the District Judges wherever
the District Jails are located.
However there have been instances where Courts of
record while deliberating on the issue of death in Jail riot,
did not award compensation. Thus there are conservative
elements in Judiciary also.
While in another example within a week of passage
of the guidelines mention in 1997 judgement. I moved an
application before the Magistrate court for enforcement of
such provisions by calling for release of young persons,
one of them as young as 13 years from the illegal
25/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIdetention of the Police acting on the instruction of the local
minister.
This is typical example quite common, where the
local politicians use police for they are the masters in
absence of the independent Police commissions and
regulatory mechanisms. A consequence is that a large
number of violations are unreported.
An important observation by a very senior and
prominent retired police officer is pertinent (on Gujarat
riots 2002)19:
“On the night of the barbaric killing of 59 Kar Sevaks in
Godhra, instead of going after the culprits and taking
precautions to prevent revenge killings of innocent
Muslims, the government joined the call for the bandh20.
The Chief Minister, I learnt called a meeting of officials that
night and told tem that they need not be too enthusiastic
about preventive measures because he said that the
bandh would pass off peacefully. Then, one of his ministers
sat in the city police commissioner’s control room and
another Minister in the DGPs State control room each with
a band of supporters to put subtle pressure on the police.
(emphasis mine) Much has been written about the failure
of the police. There is no doubt that it failed.”
19 “Lost Middle Ground A community loses hope in Gujarat” by Julio Ribiero, Time of India (English Daily) 24/04/200220 protest call : closures of markets, etc by a body.
26/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVI“…My inquiries showed that the BJP government of
Narendra Modi, with a VHP activist named Govardhanbhai
Zadapiya as minister of state for home, has systematically
emasculated the leadership by placing pliable officers and
men of its choice in every possible position at the cutting
edge.”
“…Gujarat is easily the worst (or best) case study of
a police force becoming politicised by the misuse of the
powers of appointments and transfers. The phenomenon
has been commonly noticed in every state since the
eighties.”
He warns not without basis ;
“…Unless corrective measures are quickly taken,
people are going to experience a worse breakdown of the
law and order machinery leading to a threat to the security
of life and property.”
A further federal principle that law and order being
essentially State subject. The Central government has to
take the necessary permission to send the para-miltary
forces or Defence forces to assist the State forces when it
comes to the breakdown of law and order.
There is no provision even to investigate the
embezzlement of Central Funds through State machinery
until specific request is made. Although now there is
27/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIredressal through ombudsman. The courts of record have
on occasions acted as Inquisitorial and retained
prospective jurisdiction in the interest of justice when the
issue of corruption at the highest level arose.
Complimenting Statutes :
In past one decade a number of Statutes have been
passed by Indian parliament which compliment the aims
and objectives of this Act.
Although many have been passed without any
debate, hence there is little public awareness. Although
Parliamentary proceedings are now open to Television and
radio, yet only Question hour and Budget are telecast as
live programs.
The statutes on increasing the accountability and
availability of information, government documents to the
public are Freedom of Information Act, 2002(Central
Statute) and similar State Laws. This has amended some
Civil Service(Conduct) rules and manual of office
procedure. Many states have passed their own bills on the
same subject. Like Delhi21 and Goa. The two small states
are more open. The Media and NGOs have been the main
21 The Delhi Right to Information Act,2001.
28/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIbeneficiary of this opening. Though even these States
official websites have little to offer.
Under these statutes the dilution of Official Secrets
Act,1923 and the Defence and Internal Security of India
Act,1971 has been done with genuine legislative intent.
Further the Public Records Act,1993 now prescribes the
saving of the declassified documents in the Archives of
India.
The Courts have liberally exercised the Judicial
review to place the check on the Executive and even
legislature but the separation of powers doctrine under
Article 50 and 105 of the Constitution has stopped them
short of striking down many colonial legislation, and like
legislation, as inconsistent with the Fundamental Rights or
simply being unconstitutional. The preventive powers
exercised by the Executive authorities under various
procedural and substantive statutes have been prescribed
some Judicial safeguards. Many of the provisions of
Government of India Act, 1935 22have been duly
incorporated in the constitution.
On many occasion the Supreme Court of India simply
refused to give opinion on reference by the Government,
as part of Constitutional politics. Notable being the return
22 Indian Independence Act,1947 and Partition Act,1947; with the Adaptation of Laws Act,1950 .
29/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIof Presidential reference23 on deciding the Mosque/temple
controversy in the year 1995-1996. This matter is now
pending in various Courts, for past 50 years.
Detention and Terrorism Laws and the Act :
In quest for the maintenance of Law and Order and
security of state, and the change in tact of militancy sans
political ideology. What is also described as terrorism.
Couple with the growing clout of Organized crime, so
sophisticated that NYSE once warned about the same.
Yet the quest in civil society and libertarian view of
Rights of the accused and the wronged face a challenge.
The balance of competing interests and safeguards are
often negated when the modern societies and nations are
faced with an imminent threat. A situation which brings
them very near to suspension of Civil liberties. Judicial
review is often marginal in affecting outcome (moderating)
of such Executive action which are based on stringent
Laws.
In historical perspective an interesting Joint-opinion of the
Attorney and Solicitor-General, Sir John Campbell and Sir
M.M.Rolfe as to the power of the Governor of Canada to
23 Article 143: Powers of President to Consult Supreme Court , on subjects mentioned in Article 131.
30/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIproclaim Martial Law. On correctness of the Law Officers of
the Crown in Lower Canada, Temple, January 16,1838 :
“My LORD,…. On the subject of the power vested in the
Governor of that province to proclaim martial law…”
“…has the power of proclaiming, in any district in which
large bodies of the inhabitants are in open rebellion, that
the executive Government will proceed to enforce martial
law. We must, however, add that in our opinion such
proclamation confers no power on the governor which he
would not have possessed without it. The object of it can
only be to give notice to the inhabitants of the course
which the Government is obliges to adopt for the purpose
of restoring tranquility…”
“…It is hardly necessary for us to add that, in our view of
the case, martial law can never be enforced for the
ordinary purposes of civil or even criminal justice, except,
in the latter so that; so far as the necessity arising from
actual resistance compels its adoption.”24
Indian insurgency prone areas are two one in the upper
North(Kashmir valley) and the North-East(China border).
These two areas have seen the largest number of Habeas
Corpus Petitions. The State High Courts have been at odds
with the executive. Most of the cases of compensation of
failure to produce corpus have been from these States
24 Cases in Constitutional Law: Ed.by D.L.Keir,F.H.Lawson,D.J.Bentley, ELBS,OUP,1979,P.231.
31/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIonly. There are some Naxalite (militant under-ground
movement) prone areas. At one point of time, both Central
and State government became so circumspect when it
even refused the diplomats from Western countries to see
the Human Rights situation in Kashmir Valley. North-East
India still remains beyond the reach of even Indian
Nationals (in some parts where the permit has to be
taken). This security paranoid, is a political hype.
Indian government experimented twice with tough
legislation which made onerous on the accused to rebut
the presumption of his omission(innocence).
Earlier it was TADA25 and now POTA26 there are few things
common in the Acts. However, these acts were not notified
in all states.
The strong limitation is compensating the
miscarriage of justice. Also the Pre-Trial detention which
can spread for years. Very often Courts of record/Appellate
Courts and even Trial Courts while acquitting the accused,
have little sympathy for the accused.
The only possible safeguard then can be making the
officials responsible with reasonable immunity ‘acts done
in good faith’.
25 Terrorist and Disruptive Activities (Prevention) Act of 1987.26 Prevention of Terrorism Act,2002
32/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVI“….domestic legislation on terrorism in the U.K. as
founded upon international laws. Most notable mention is
of the North Ireland (Emergency) provisions Act of 1991,
where the Secretary of States implicit responsibility on the
issue of violation of the individuals rights of internment
may be interpreted on account powers relating to
detention. Thus any excess can put the executive in deep
trouble on individual and allied rights. Another institution
being the independent assessor for military-excess
complaints in North Ireland. These inherent safeguards
worked successfully.”27
The Indian Anti-Terrorist Laws are inspired by similar
set of US Laws and jurisprudence of extending extra-
territorial jurisdictions also.
An attempt at the South Asian regional level was
made by enacting the sub-Regional commitment . An
enactment has been lying in the statute books, called ‘The
SAARC28 Convention (Suppression of Terrorism) Act, 1993.
However this piece of legislation stands lame and
without sanction as the regional states lack cooperation.
Thus there is an overall need to have the ‘State’
come to terms of with modern political reality in order to
27 Book Review: “International law Documents relating to Terrorism, Ed.by Omer Yousef Elaghab Cavendish,” published in THE HINDU, April 7,1996 by myself.28 South Asian Association for Regional Cooperation.
33/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIlive up to the Rights which the man has inherited by virtue
of birth as Human and because they have been prescribed.
Indian Constitutional Courts have on such Preventive
Laws stuck to the approach where Judicial Review is
interpretation of section and the Enactment. Thereby
resisting the otherwise liberal approach they have as
“continuing colloquy” with political institutions and society
at large.
Judicial activism in Indian context has by and large
meant protecting political pluralism and Separation of
Powers . The secular fabric has been respected as to
prevent religious appeal from making Electoral and other
gains which create an imbalance in the basic structure of
the Constitution. Though incumbent Central government
has constituted the committee to review constitution.
There has been no discussion in parliament or in general.
Conclusion :
Supreme Court has awarded compensation on
violation of life and personal liberty, under international
covenant Article 9(5) of the International Covenant on Civil
and Political Rights 1966, for death in hospital due to
negligence, for loss of life in Communal riots,
compensation on violation of right to health , workmen
34/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIhealth and Medical care, loss of motherhood, all
considered to be the integral right to compensation as loss
of life and personal liberty.
However an examination of Compensation awarded
in case of Rape29 and guidelines in domestic violence30 and
Sexual harassment cases have very little effect in terms of
enforcement of the same. Like the framing of Criminal
Injuries Compensation Board for Rape victims, Guidelines
for government by National Commission of Women on
victims of Domestic Violence till the suitable legislation is
in place or the application of CEDAW and in matter of
Sexual harassment committees at work places.
Further more there is very low conviction rate of
those accused of communal riot . More recently those
glorifying Sati31 have been acquitted for lack of clinching
evidence. This failure to deliver justice is an example of
lack of people’s commitment. The law was enacted by the
British way back in 1860. It was passed afresh in the year
1987 with suitable changes and amendments.
The Act, has singular limitation of trying only the
criminal violation, by the Human Right Courts and not the
29 Delhi Domestic Woring Women’s Forum v Union of India (1995)1 SCC 14.30 South Asian Research and Development Initiative V. Union of India and ors.(unreported) High Court of Delhi,CW765/01 by me.31 Burning live of widow on the funeral pyre of husband, a temple is dedicated in Rajasthan to a young widow called Roopmati. There is annual fair commemorating at Deorala.
35/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIwhole gamut of Life and personal liberty as interpreted by
the Constitutional Courts in India. The other possibly being
its availability for the non-citizens. Although this is not
implicit in the Act.
Supreme Court position has been guarded in
extending the ‘Direct remedy’ under Article 32 and 226 for
enforcement of fundamental rights by the foreigners.
The illustration below are self-explanatory of the
legal position but liberal and conservative judge or those
with defined positions can alter the same every time a
petition is filed.
32Fundamental rights to foreigners---scope of : One
Mr. Louis De Raedt has been staying in India continuously
since 1937 excepting on two occasions when he went to
Belgium for a short period in 1966 and 1973 and he
continued to stay in India on a Belgian Passport. The
petitioner who was foreign national was asked to leave the
country by the 31st July 1987 and he challenged the order
of expulsion which was turned down by the Supreme Court
of India. It was held that the fundamental right to foreigner
under the Constitution is confined to Article 21 for the life
and liberty and does not include the right to reside and
settle in India, as mentioned in Art.19 (1) (e), which is only
32 AIR 1991 SC 1887
36/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIapplicable to the citizens of this country and the executive
Government has unrestricted right to expel a foreigner.
33Under Article 21, Right to life and liberty-available to non-
citizens-case of Chakmas34 in Arunachal:
Incidentally this was the first Court campaign by the NHRC
in first two years of its existence.
“The AAPSU, as student organization of the Arunachal
Pradesh issued ultimatum to the chakmas35 residing at
Arunachal Pradesh to quit the State within the date fixed
by them. The National Human Rights Commission too the
matter to the Supreme Court in a public interest litigation
under Article 32 of the Constitution seeing to enforce the
rights under Article 21 of the Constitution. The Supreme
Court issued the direction to the State of Arunachal
Pradesh to ensure that the threat by the students
organization is repelled with force and the life and liberty
of the Chakmas residing at Arunachal Pradesh is protected.
The Court observed that our constitution confers certain
rights on every human being and certain other rights on
the citizens. Every person is entitled to equality before the
Law and the equal protection of laws, So also, no person
can be deprived of his life and the personal liberty except
according to the procedure established by Law. The State
33 NHRC v.State of Arunachal Pradesh AIR 1996 SC123534 Tribals from upper Bangladesh.35 ibid
37/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIis bound to protect the life and liberty of every human
being, be he a citizen or otherwise and it cannot permit
anybody or a group of persons, e.g. the AAPSU, to threaten
the Chakmas to leave the State, failing which they will be
forced to do so and no State Government worth the name
can tolerate such threat by any group or groups of such
persons.
It will not be out of place and context to mention that
many of the illegal-migrants(workers) from Bangladesh
have been deported by Delhi Police under instructions
from Union Home Ministry, as they find the people. They
are loaded in trucks and then in trains to Calcutta. Many a
times the Bangladesh government refused to recognize
them as its citizens. Leaving another set of squatters in no-
mans land. This has now stopped temporarily as the
international agencies intervened.
Thus the impatience and lack of deference on part of
Executive, for judicial pronouncements becomes obvious in
matters of policy in particular.
-----------------------
Syed Kamran RazviFlat No.7, 137B/12, Zakir Nagar,
38/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVINew Delhi-110 025 (India)Tel: 91-9810078799 ® 91-9312655151E-mail :: zehnejadid@vsnl.com
39/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVI
Schedule A
List of Statutes Referred:
1. PROTECTION OF HUMAN RIGHTS ACT,19932. Prevention of Atrocities (SC and ST) Act, 19893. Universal Declaration of Human Rights, 19664. National Commissions Act,19905. Legal Services Authorities Act,1987, Rules in 1995.6. Criminal Procedure Code,1973,7. Commission of Inquiry Act No.60 of 1952,8. National Security Act No.65 of 1980.9. Article 32,136,141,226 of Constitution of India of 1950.10. PACE Act of 1984.(UK)11. ECHR convention, 1949, based on UN
Declaration,194812. Human Rights Act,1998(UK)13. India Police Act, 186014. Prisoners Act,1900.15. Freedom of Information Act, 2002(Central Statute)16. Civil Service(Conduct) rules and manual of office
procedure.17. Official Secrets Act,1923 18. Defence and Internal Security of India Act,197119. Public Records Act,199320. The Delhi Right to Information Act,200121. Government of India Act, 193522. Indian Independence Act,194723. Partition Act,194724. Adaptation of Laws Act,195025. Terrorist and Disruptive Activities (Prevention) Act of
1987.26. Prevention of Terrorism Act,200227. North Ireland (Emergency) provisions Act of 1991,28. The SAARC36 Convention (Suppression of Terrorism)
Act, 1993.29. International Covenant on Civil and Political Rights
1966,30. Abolition of Sati Act,185031. Contempt of Courts Act,1971
36 South Asian Association for Regional Cooperation.
40/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVI
41/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVI
SCHEDULE B
SUPREME COURT OF INDIASit in Division Benches( at least two Judges)
HIGH COURTS OF STATES
(Appellate, Extraordinary, Ordinary original, Company Jurisdiction exercisable in the territorial limits of the State.)
1.Some times two or more States has common High Court or Benches in various parts of a State.
2.They sit in Single and Division Benches
3.They are the inspecting judges on District Judges
SOME TRIBUNALS
Designated courts, Regulatory authorities/Commissions, etc.
Criminal Courts
Session Judge Court (Offences punishable by more than three years barring exception), Designated Courts.
Metropolitan magistrates/Judicial Magistrates/Executive Magistrates/Revenue Magistrate Courts(exercising preventive law on reference from local police)
Civil Courts
District Judges Court(Appellate and original Trial of Suits pecuniary jurisdiction, Family Courts, etc)
Civil Judge Court/Small Causes Court
vii where Delhi High Court has asked Delhi Police to pay 10% of the total damages to be paid by various civic authorities Biggest damage awarded in Article 226. It was case of negligence where fire in cinema house killed some hundred people.
42/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVIEND NOTES
43/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.
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