human rights vis-À-vis the criminal justice system
TRANSCRIPT
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JUSTICE J.K.MATHURMEMORIAL TRUST
HUMAN RIGHTS VIS--VIS THE CRIMINALJUSTICE SYSTEM
Home
VIII Justice J.K.MathurMemorial Lecture by Mr
Justice S.H.Kapadia
HUMAN RIGHTS VIS- -VIS THE CRIMINALJUSTICE SYSTEM -
JUSTICE S.B.SINHA,JUDGE SUPREMECOURT OF INDIA
Article: TERRORISM:Justice S.B.Sinha,
Judge Supreme Courtof India
Lecture by JusticePradeep Kant on
Human Rights
IIIrd Memorial LectureBy Justice
M.N.Venkatchalia
-JUSTICE S.B.SINHA, JUDGE SUPREME COURT OF INDIA
Human Rights vis--vis the Criminal Justice
System Justice S. B. Sinha
Judge, Supreme Court of India
The protection of human rights through the criminal justice delivery
system is an indispensable feature of any system governed by the rule of law.
the protection of human rights have been acknowledged to varying extents
across time, but since the Second World War, the universality of human
rights has been recognised by the United Nations as inherent in the very
nature of human beings a reflection of their common humanity.[1]
Criminal law has always been a great source for the enlargement of
human rights. In other words, many of our existing fundamental and
inalienable rights, if studied carefully, would have their origins in situations
and cases relating to criminal jurisprudence. Basic human rights, such as the
presumption of innocence, the right to silence of the accused and the burden
of proof of the prosecution are also the pillars on which a just criminal justice
system stands. To this end, Lord Steyn states[2] that,
[t]he basic premise is that in ademocratic society government
exists in order to protect and
promote the interests of the people.
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To achieve this goal, the actions of
government and its agencies must be
constrained by law and citizens must
be given enforceable and effective
legal rights against the state. In the
context of human rights this is the
core meaning of the rule of law. In
countries where this premise isaccepted, human rights law has
scope for developing. In countries
where this premise is not accepted,
human rights law must struggle on
infertile ground.
Although the importance of these human rights is universally accepted,
implementation levels vary from jurisdiction to jurisdiction. In India, in spite
of vast expansions across the spectrum of human rights, implementation has
not been that satisfactory. Recently, the International Commission of Jurists,
Geneva had warned that in India these very human rights stand threatened.
In addition, global human rights abuse watchers argue that if such
fundamental principles of fair trial are disregarded by the various agencies of
the state, India clearly would be guilty of clearly violating its international
human rights obligations to which it is bound by international treaty and
customary law.
It must, however, be borne in mind that ensuring human rights within the
framework of the criminal justice delivery system cannot be narrowly
construed to mean merely the protection of the rights of the under-trials, or
detainees, or convicts. In fact it can very rightly be contended that the most
essential of all human rights in a criminal justice delivery system, is the right of
access to courts of law. Emphasizing this crucial importance, Article 10 of
the Universal Declaration of Human Rights (UDHR) provides that:
Everyone is entitled in full equality
to a fair and public hearing by an
independent and impartial tribunal, nthe determination of his rights and
obligations and of any criminal
charge against him.
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In the portions that follow, these human rights and there place in the
criminal justice system and constitutional jurisprudence are explored
alongside the judicial craft that led to their expansion. Concepts that have
emerged and their proposed solutions are also delved into.
VIABLE ACCESS TO JUSTICE:
The importance of the right of access to justice for those interacting with
the criminal justice system as complainants, suspects, status offenders or
prisoners cannot be over-emphasised. As already stated, it is perhaps the
most essential of all human rights in the criminal justice system.
Access to justice also implicitly indicates an effective access. It is not
sufficient to physically have courts in all remote corners of the country. The
special situation of the vast majority of Indians also has to be borne in mind.
It is no secret that this vast majority are illiterate and uneducated and even
the elite are rarely well versed with even their basic rights. Therefore, the
law, processes, procedures and practices that govern the functioning of the
system are largely incomprehensible to the layperson and, thus, legal
assistance becomes imperative at each stage. Further, the imperativeness of
access is compounded by recent studies that show that for the
economically and socially disadvantaged person, the denial of access to
justice, which is a non-derogable right, could result in multiple violations of
human rights including the deprivation of the means of survival and have the
effect of delegitimising the legal system in relation to such person.[3]
A second facet of the right of access is that such access must be to an
independent and impartial court of law. Our country has strived greatly in
this direction and thereby, courts such as that of Nazi Germany, communist
countries of East Europe, or of Stalins Russia and apartheid-era South
Africa are the very antithesis of the court system we have sought to build in
our Nation. Even in the future, it will be vital to bear in mind the Basic
Principles on the Independence of the Judiciary endorsed by the United
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Nations General Assembly on 29 November 1985, and, what Lord Steyn
terms the principle of equality of arms of the parties. The latter principle
requires that the courts of law in a fair and just legal system provide the
prosecution and defence equal rights before the court, and in such manner as
which provide the accused reasonable opportunity to place his or her case
before the court of law.
JUDICIAL CREATIVITY IN PROMOTING A RIGHTS BASED
APPROACH:
The Supreme Court of India displayed remarkable craftsmanship to
promote and protect human rights. Through, what Justice Krishna Iyer
termed judiatrics, the Apex Court has succeeded in incorporating some
of the Directive Principles of State Policy into Part III of the Constitution a
judicial creativity commended even by the highest courts of other
jurisdictions. For instance, Justice Albert Sachs of the South African
Constitutional Court once had occasion to comment that, the Supreme
Court of India smuggled the rights from Part IV to Part III of the
Constitution.
Legal justice requires that offenders of law should be brought to book and
punished. Within this constitutionally accepted practice of protecting the society
from misguided human beings, at the stage of investigation as suspects; at the
stage of trial as under-trials; and at the stage of punishment through
incarceration, certain rights such as the right to liberty are confiscated from
prisoners. This does not mean, however, that all rights can be just confiscated
from prisoners. They still have certain basic inherent rights as human beings,
which cannot be confiscated by jail officials. The Supreme Court, in a wave of
PILs in the late 1970s and early 1980s were emphatic that the basic rights of
human beings should be protected even when they are behind bars. Even the
perpetrator of the most grievous crime against society does not deserve to be
shackled, beaten and tortured. That is not the aim of the justice delivery system.
We do not have a system of retributive justice, where one can extract a tooth to
pay for an eye. We have instead a system of reformative justice and this requiresthe holistic reformation of the mind of the criminal to steer him away from
committing further crimes.
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They were shocked by the prevalent conditions in jails across the country
wherein even in model jails like the Tihar Jail there were such flagrant violations
of Human Rights and gross subjections to indignity. Apart from being given
property food and clothing, they were tortured and beaten and kept chained up.
The Supreme Court sought to bring an end to these systems which were a dark
blot on the Indian justice delivery endeavour. In fact, on a visit to a jail these
days, the differences are noticeable and prisoners indeed owe the protection of
their rights in detention to the strong line taken by the Supreme Court in this
regard.
The judiciary has also worked extremely hard in order to prevent the denial of
the right of speedy trial to under-trial prisoners. The Supreme Court of India in a
catena of decisions has recognized this. The Andhra Pradesh High Court has
noticed all these judgments and in Mir Mohammed Ali v. Government of
Andhra Pradesh[4] has given number of directions for release of under-trial
prisoners who have been languishing in prison without proper trial for a long
time.
In all societies there is a need to sensitise civilised world to the reality that the
accused and prisoners have rights, which are almost equal to the rights of those
people in the society and in our country, it has been the judiciary who has truly
been the torch bearer in this regard.
As a result, today, not only do those enveloped by the criminal justice
system have the right to interview for prisoners (recognised in Prabha Dutt
v Union of India[5]), the right to a fair trial (recognised in Police
Commissioner, Delhi vRegistrar, Delhi High Court[6]), the right against
handcuffing (recognised in Prem Shankar Shukla v Delhi
Administration[7]), and the right against torture and custodial violence as a
human right (recognised inD.K. Basu v State of West Bengal[8]); they also
have the human right of being presumed innocent (recognised inNarendra
Singh v State of M.P[9]), the right against being compelled to be a witness
against oneself (inD.K. Basu quotingMiranda v Arizona[10], and have the
right of access in the broadest possible terms, including access with free legal
aid (recognised in State of Maharashtra vM.P.Vashi[11]) and in the most
expedited manner possible (see,Abdul Rehman Antulay vR.S. Nayak and
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Ors.[12]).
Much ink has been spilled in expounding on the contours of the rights
mentioned above. As regards implementation, many, both nationally and
internationally, have opined the need for such a rights-based approach.
For instance, the International Commission of Jurists remarked that, "
[c]onsidering the widely documented human rights abuses committed every
day in India, a reform of the criminal justice system must follow a rights-
basedapproach and be built on an independent and incorrupt judiciary, with
authority to review all actions of law enforcement officials and the
prosecution. [emphasis supplied]
In addition to a rights based approach, it is also necessary that judgesmould decisions to the specific facts and circumstances of case. for instance,
recently, in Phillipines, a young boy who was paralytic has been charged
with rape of a girl. His lawyer even failed to obtain an order of bail although
it was contended that the boy is required to take help from others for going
to toilet and even cannot lift a spoon. It had strongly been contended that
such a case should not go for trial at all. Similarly, an appellate court of
France acquitted several persons including some foreigners who were
charged with commission of pedophilia. They were convicted by a
magisterial court only on the basis of evidence of a child witness, but before
the appellate court, the prosecution case failed like a pack of cards. The
acquitted accused persons including two couples had to remain behind bar
for three years. The case gave rise to troubling questions about the
willingness of social services and psychiatric experts to accept
uncorroborated allegations made by young children, and about the power
given to lone examining magistrates under the French judicial system. The
Judicial Minister had to apologize to the accused and their families on
television.[13] Keeping in view the human right perspective, it should be the
duty of the judicial officers to scrutinize such cases more strictly so that
innocent persons are not met to suffer.
Efforts of the superior courts of the country to provide new contents to
criminal justice have also resulted in paradigm shifts in prison reforms,
treatment of undertrials, and rehabilitation of victims. As a measure of the
advances achieved in the protection of human rights, one may also turn the
pages of the landmark judgment inRudul Sah v State of Bihar[14], where
the Supreme Court ruled that the victims of unlawful or illegal arrest wereentitled to compensation for violation of their fundamental rights under Part
III of the Constitution. The judgment is similar in many respects to that
delivered in R (Mullen) v Secretary of State for the Home
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Department[15], where a convict who was deported from Zimbabwe to
the United Kingdom was granted compensation for illegal incarceration since
it was found that his deportation was an abuse of process, and that the
resulting conviction was a miscarriage of justice, violating Section 133 of
the English Criminal Justice Act that implemented Article 14(6) of the
International Covenant on Civil and Political Rights (ICCPR).
It may therefore be safely said that great strides have been made on both
sides of the prison walls that is, in open society, as well as in prisons where
the fear of torture lets the principle of silence be the rule. Far-reaching
rulings handed down by the superior courts of the country have ensured that
no ones human rights are taken away by way of incarceration, or that a
prisoner becomes a non-entity in captivity. This has been possible because
our national courts have commendably discharged their responsibilities in
accordance with the famous Bangalore Principles (1988) which invite
national constitutional courts to interpret their constitutional texts in a way
that is generally harmonious with the basic principles of international law,
including as that law states human rights and fundamental freedoms. Justice
Kirby of the Australian High Court, drawing from the opinion of Justice
Kennedy of the United States Supreme Court inLawrence[16], termed it as
the acceptance of jurisprudence from a wider civilization[17].
SUGGESTED INNOVATIONS FOR BETTER
IMPLEMENTATION:
In order that implementation might be improved the adoption of several
innovations has been suggested from time to time. For instance, the Justice
Malimath Committee on Criminal Justice Reforms, a component of any
discourse on human rights vis--vis the criminal justice system, had
suggested certain radical, yet progressive, reforms in the system, including
the need for a Victim Support Service Coordinator to work closely with the
police and courts to ensure delivery of justice during the pendency of the
case. It also spoke of economic crimes and organised crimes. The
presumption of the Committees suggested reforms was that an inquisitorial
system was more conducive to delivering justice in criminal cases than the
present adversarialsystem. Critiques however argue that the suggested
reforms of the Committee concentrate more on strengthening the hands of
the administrative machinery than on the rights-based approach mentioned
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earlier.
SENTENCING POLICY:
The time is ripe to develop a sentencing policy in recognition of the fact
that sentencing is an important and universally recognized aspect of human
rights. After all, the question that must inevitably be answered is: why should
a person, even if he is lawfully convicted, spend more time in prison than is
absolutely necessary? In this respect, the case ofDPP v Mollison[18], from
Jamaica immediately leaps to mind. In that decision, the Privy Council ruled
that a convict who had been detained, and was liable to be so incarcerated
during Her Majesty pleasure or that of the Governor General of Jamaica
exercising her authority, was entitled to relief as such incarceration would
tantamount to a violation of the principle of separation of powers. It was
held that only a court, and not the executive, was authorized to determine
how long the period of detention should be. Some other watershed decisions
are those ofReyes v R[19],R v Hughes[20], andFox v R[21], in which it
has been held that a mandatory death penalty for murder would be
unconstitutional as violative of the right to protection against inhuman and
degrading treatment, if the court did not have the opportunity to exercise its
discretion as to whether the extreme penalty was required to be awarded.
EMERGING CONCEPTS:
I would now turn to certain emerging concepts in the field of human
rights vis--vis the criminal justice system. This would help provide an insight
into the broad spectrum of contemporary issues concerning human rights in
the criminal justice system that are often ignored in conventional discourses
on the subject.
(i) Measures for the Prevention of Terrorism:
Perhaps the most heated debates concerning the protection of human
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rights in the criminal justice delivery system have occurred with respect to
terrorism that poses a clear and present danger to the sovereignty and
integrity of our Nation. The now-repealed Prevention of Terrorism Act
2002 had created much controversy when it sought to incorporate special
measures into the ordinary criminal justice system. For instance, POTA
allowed for extended police custody, intrusive police investigation, admission
of police confessions in trial, and summary procedures in special courts.
Such deliberations on the balance required between the protection of human
rights on the one hand, and the interests of national security on the other, are
however, not specific to India alone. The rise of fundamentalism and
international terrorist organizations has made countries around the world
gravitate in favour of more stringent measures for the safety of their people.
Needless to say, in many a case and Guantanamo Bay is only one example
the necessities of national security have resulted in large-scale violations of
human rights.
In very recent judgments of the House of Lords and the United States
Supreme Court one can quite easily discern the role that courts and the
administration must play in efforts to curb international terrorist activities. A
and Ors. v Secretary of State for the Home Department[22], was a case
in which certain foreign (non-UK) nationals had been detained for an
indefinite period under the EnglishAnti-terrorism, Crime and Security Act
2001 following the September 11 attacks on the United States. While
acknowledging that the legislature and the executive reserved the right as per
the principle of proportionality to determine what measures would secure the
safety of the citizens, the House also indicated that the measures adopted for
protecting the security and sovereignty of a country must not be permitted to
transgress the human rights of detainees. Thus, in the opinion of the House,
while suspected terrorists could be detained indefinitely proportionate to the
need for such detention in the interests of national security, the human rights
of such detainees could not be violated in as much as they could not be
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discriminated against for detention merely on the basis of their nationality or
race or colour of skin. In Abbasi and Anr. v Secretary of State for
Foreign and Commenwealth Affairs[23], the Court of Appeal (Queens
Bench) the Court expressed its anxiety at the state of the British detainees
held at Guantanamo Bay by the United States on charges of waging war
against that country and its allies.
In the American cases ofRasul et al. v Bush, President of the United
States, et. al.[24], Hamdi et al. v Rumsfeld, Secretary of Defense et.
al.[25], andRumsfeld v Padilla[26] as well the Court has stressed on the
absolute need for protecting the human rights of the suspected terrorists and
other such enemy combatants, including by providing them a right to
counsel.
This balancing of interests between the rights of the detainees and the
interests of national security is an essential characteristic of a fair trial.[27] In
our criminal justice system, it would not be wholly untrue to opine that the
interests of victims are in many instances marginalized for want of rules that
require the court to give equal merit to them. For instance, the rule that the
guilt of the accused must be proved beyond all reasonable doubtdoes
render it improbable in many cases of terrorist activities to give
corresponding weight to the interests of the victims, and the society at large.
In fact, in State of M.P. v Shyamsunder Trivedi[28], the Supreme Court
while referring to the recommendation of the 113th
Report of the Law
Commission to insert Section 114-B in the Indian Evidence Act observed
(albeit, in the context of the burden of proof on the police officer in cases of
custodial violence, but still a relevant observation):
The exaggerated adherence to and
insistence upon the establishment of
proof beyond reasonable doubt,
ignoring the ground realities, the factsituations and the peculiar
circumstances of a given case
often results in miscarriage of justice
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and makes the justice delivery
system a suspect.
Then, in Shivaji v State of Maharashtra[29], the Apex Court opined,
our jurisprudential enthusiasm for
presumed innocence must be
moderated by the pragmatic need to
make criminal justice potent and
realistic. A balance has to be struck
between chasing chance possibilities
as good enough to set the delinquent
free and chopping the logic of
preponderant probability to punish
the marginal innocents. The dangers
of exaggerated devotion to the rule
of benefit of doubt at the expense of
social defence and to the soothingsentiment that all acquittals are
always good regardless of justice to
the victim and the community
demand a special emphasis in the
contemporary context of escalating
crime and escape.
In a recent article in the Journal of the National Human Rights Commission
of India[30], Fali Nariman writes of the practice under Scottish criminal law
where the concept of a fair trial is not solely a question for the accused
fairness to the public is also a legitimate consideration (Lord Wheatley in
Miln v Cullen[31]). Similarly, the right of the accused to remain silent
protected by Article 20 (3) of the Constitution is also considered
favourable to the accused terrorist. It is therefore advocated that in cases of
terrorist activities, it would not be a violation of the human rights of the
accused if he or she were compelled by law to assist the State in
investigation of such heinous crimes.
(ii) Whistleblowing:
A recently discussed issue is that of protecting the interests of
whistleblowers through the criminal justice system. The legal
protection available under Indian law fails adequately to protect
whistleblowers against retaliatory action by employers, and as a
result employees who have access to information that would be in
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public interest to disclose, often remain silent.[32] The case for
allowing public sector employees to participate in debate is at its
clearest when the issue is seen as an aspect of freedom of
expression. The argument is strongest when applied to the speech
of those who work in the public sector, whose jobs involve the
carrying out of government policy. However, unlike the UnitedKingdom where the debate as to whistleblowers rights is confined
to issues relating to the justness of the whistleblowers dismissal
from service, in India, after the infamous Satyendra Dubey murder
case (currently the subject-matter of a PIL: Rakesh Uttamchandra
Upadhyay v Union of India and Ors.[33]), the issue has taken a
more sinister angle. The situation becomes graver when we
consider that despite assurances in the Supreme Court, theGovernment has done precious little to legislate on the matter. The
criminal justice system must, accordingly, be so modified as to
guarantee the whistleblowers their freedom of expression along
with safety and security of their being.
(iii) Right to Privacy:
In District Registrar and Collector, Hyderabad Vs. Canara Bank and
Another [(2005) 1 SCC 496] the draconian power given to the authority by A.P.Amendment of Stamp Act to go on a rampage searching house after house used for
custody of document and a possibility of wild exercise of said power; was struck
down. The Supreme Court noticed the development of law in India beginning from
M.P. Sharma Vs. Satish Chandra [1954 SCR 1077] to Sharda Vs. Dharmpal,
(2003) 4 SCC 493. It disapproved the right from person to property Fine
Financial Rights upon considering Miller (425 US 435) stating:
Once we have accepted in Gobind and in later
cases that the right to privacy deals with persons
and not places, the documents or copies of
documents of the customer which are in a bank,
must continue to remain confidential vis--vis the
person, even if they are no longer at the customers
house and have been voluntarily sent to a bank. If
that be the correct view of the law, we cannot
accept the line of Miller in which the Court
proceeded on the basis that the right to privacy isreferable to the right of property theory.
Innumerable cases demonstrate the significance of this right in
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the criminal justice system, in that this right is the ultimate
guarantee of the human dignity of any person subjected to
investigation or punishment under the system. In Valasinas v
Lithuania[34], a prisoner was ordered to be strip naked and be
subjected to examination by a team of prison officers, which
included a woman officer. Such searches were found to beviolative of Article 3 of the Convention for the Protection of Human
Rights and Fundamental Freedoms 1950, by the European Court
of Human Rights. In Fliss v R[35], the Supreme Court of Canada
held that secret recordings of confessions made by the accused by
undercover police officers was illegal; the court could only admit
such evidence as was made by the witness by refreshing his
memory of that conversation.(iv) Cyber Crimes:
Attendant to the issue of privacy is the growing menace of cyber-crimes
committed through the medium of computers, or against information on
computers.[36] In most countries around the world, however, existing laws
are likely to be unenforceable against such crimes. Consequently, undeterred
by the prospect of arrest or prosecution, cyber criminals around the world
lurk on the Internet as an omnipresent menace to the financial health ofbusinesses, to the trust of their customers, and as an emerging threat to
nations security. Outdated laws and regulations, and weak enforcement
mechanisms for protecting networked information, create an inhospitable
environment in which to conduct e-business within a country and across
national boundaries. In this context, it is important to consider the
perpetration of cyber crimes in four categories: data-related crimes, including
interception, modification, and theft; network-related crimes, including
interference and sabotage; crimes of access, including hacking and virus
distribution; and associated computer-related crimes, including aiding and
abetting cyber criminals, computer fraud, and computer forgery. India has
sought to infuse confidence in the general public that the existing laws are
sufficient to cover computer-related crimes, including those of aiding and
abetting cyber crimes, and computer-related fraud and forgery.
Amendments to the Indian Penal Code and the Information Technology Act
have helped extend the rule of law into cyberspace.
The weak penalties in most updated criminal statutes are nonetheless a
matter of concern, since they provide limited deterrence for crimes that can
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have large-scale economic and social effects. Despite the amendments, the
issue of human rights protection vis--vis cyber crimes has generated little
debate. Privacy and freedom of expression - the fundamental human rights
recognised in all major international and regional agreements and treaties
such as the UDHR (Articles 12 and 19), the ICCPR (Articles 17 and 19),
and the European Convention of Human Rights (Articles 8 and 10) - should
be taken into account while developing policies against cyber-crimes. Any
coordinated policy initiative at international levels for curbing trans-boundary
cyber crimes must also consider offering the best protection for individual
rights and liberties.
(v) Atrocities against Scheduled Castes and Scheduled Tribes:
Another oft ignored aspect of protecting human rights in the
criminal justice system, is the crimes perpetrated against
members of the Scheduled Castes, Schedule Tribes, and other
oppressed classes by the socially higher strata though,
acceptably, misuse of Section 3 of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act 1989 by the
oppressed castes and tribes is also observed. Nonetheless, the
criminal justice system must be receptive to the plight of those who
may be the subject of indiscriminate use of State authority without
regard to the due process of law. Numerous studies indicate that
the police, prosecutors and courts principally prosecute lower-
class criminality, apart from organized crimes, white-collar crimes,
and consumer frauds. To prevent such discriminative targeting, it is
necessary that the various organs of the State, like the organs ofthe human body, coordinate and cooperate in functioning. Regular
meetings and continuous education of the police, prosecutors,
courts, and other criminal justice agencies, on protection of human
rights is therefore a sine qua non. In addition, we must continuously
endeavour to incorporate and evolve newer methods of delivering
justice as well as protecting human rights in the criminal justice
system. Use of electronic video linkages for expedited productionof under-trials, holding of regular sittings in jails by the Magistracy
for disposal of cases involving petty offences, and concerted
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efforts for execution of warrants and production of witnesses, some
other measures for ensuring that the human right to a fair and
speedy trial of those stepping into the criminal justice system are
protected.
BUILDING DUTIES TO BOLSTER RIGHTS:
It would also be profitable to realize that without a human rights
friendly approach of the police and other prosecuting agencies, the
courts cannot protect human rights; conversely, without strict
protection of human rights by the courts, the police and the
prosecuting agencies would be susceptible - rather encouraged -
to violate human rights. The onus is thus ultimately on the courts to
be seen in the eyes of the common man as the protector of human
rights, for, as Justice Arthur Vanderbilt would say[37]:
If they [the common citizenry] have
respect for the work of the Courts,
their respect for law will survive the
shortcomings of every other branch
of Government; but if they lose their
respect for the work of the Courts,
their respect for law and order will
vanish with it to the great detrimentof society.
The duty is cast on the courts to mould and shape the law to meet the rights
and duties of the people. Dr. A. S. Anand, the former Chief Justice of India,
had occasion to comment that [t]he mere existence of a particular piece of
beneficial legislation cannot solve the problems of the society at large unless
the judges interpret and apply the law to ensure its benefits to the right
quarters. TheProtection of Human Rights Act1993, the rights
guaranteed under the Constitution, and the protections provided under the
Criminal Procedure Code, the Indian Evidence Act, and the Indian PenalCode, need therefore be harmoniously construed to enable a just and
ordered society, where the criminal justice system adheres to the mandate of
the rule of law on which any high-quality democracy rests. To paraphrase
Professor Guillermo ODonnell: [w]hat is needed is a truly democratic
rule of law that ensures political rights, civil liberties, and mechanisms of
accountability which in turn constrain potential abuses of state power
[and protect] the equality and dignity of all citizens[38]
Besides, a duty is cast on us all to educate others and ourselves on ourhuman rights. So much so, I should think that perhaps the time has come
when the subject of human rights, like that of environmental protection, is
included in the curriculum at the school level. Article 26(2) of the Universal
Declaration of Human Rights mandates that education shall be directed to
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the full development of the human personality to strengthen respect for
human rights and fundamental freedoms. Knowledge of human rights is
therefore the preeminent defence against their violation. Realising this, the
United Nations General Assembly has enjoined that every individual and
organ of society, should strive by teaching and education to promote
respect for these rights and freedoms and by progressive measures, national
and international, secure their universal and effective recognition and
observance. This was the guiding light behind the United Nations Decadefor Human Rights Education (1995-2004) that ended last year. I am
therefore glad that institutions such as LASO and Amnesty International, and
its programmes such as the present symposium on protection of human
rights, seeks to carry forward the visions of the United Nations by
generating awareness on human rights, especially amongst those who must
dispense justice the judicial officers of this State.
In this respect the case ofPeoples Union for Civil Liberties v Union
of India and Anr.[39], is of much significance. In that case, the Court was
apprised of a matter concerning the filling up of vacancies in the National
Human Rights Commission, wherein a retired Director of the Central Bureau
of Investigation was accepted for that post. His appointment was
subsequently challenged on the ground that apolice officerdoes not fall in
the category of members mentioned in Section 3(2)(d) of theProtection of
Human Rights Act 1993 who are to have knowledge and practical
experience in matters relating to human rights, and since the presence of a
police officer as a member of the NHRC would render that forum a violator
of the very concept that gave birth to protection of human rights. The Benchwas divided on the decision: while Justice Sabharwal was of the opinion that
police officers or members of security forces could not become members of
the NHRC as that would be a violation of the famousParis Principles[40],
Justice Dharmadhikari was inclined to hold that Section 3(2)(d) of the Act
on its plain meaning did not in any manner disqualify police officers from
becoming members of the NHRC. The matter has now been referred to a
larger Bench.
[1]See, HUMAN RIGHTS LAWAND PRACTICE [Lord Lester and David Pannick eds.,
Butterworths, 1999], p 1.
[2] In: The Centrality of the Right to Fair Trial as a Human Rights Norm,Developing
Human Rights Jurisprudence, INTERIGHTS (Vol. 8, 2001).
[3] S. MURALIDHAR, LAW , POVERTYAND LEGALAID - ACCESSTOCRIMINALJUSTICE
[Butterworths , 2004].
[4] 2000 (4) ALT 541 (DB)
[5] AIR 1982 SC 6
[6] AIR 1997 SC 95
[7] (1980) 3 SCC 526
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[8] (1997) 1 SCC 416. Also s ee,N.C. Dhoundial v Union of India , (2004) 2 SCC 579.
[9]2004 (4) SCALE 543
[10] 384 US 436 : 16 L Ed 2d 694 (1966)
[11]AIR 1996 SC 1
[12] (1992) 1 SCC 225
[13] See France Child Sex Case Collapses, 4th December 2005, World News Service
[14] (1983) 4 SCC 141
[15] (2003) 1 All ER 613
[16] (2003) 539 US 558
[17] Al Kateb Vs. Godwin, 78 ALJR 1056
[18] (2003) UK PC 6
[19]12 BHRC 219
[20]12 BHRC 243
[21] 12 BHRC 261
[22] [2004] UKHL 56
[23][2002] EWCA Civ.1598
[24] (2004) 72 USLW 4596
[25] (2004) 72 USLW 4607
[26] (2004) 72 USLW 4584
[27] See, for example, the Australian cases ofAl-Kateb v Godwin, [2004] HCA 37 : 78
ALJR 1056, andBehrooz v Secretary of the Department of Immigration andMulticultural and Indigenous Affairs, [2004] HCA 36 : 78 ALJR 1099.
[28](1995) 4 SCC 262
[29]AIR 1973 SC 2622. See also, the recent judgment inMunshi Singh Gautam (D)
and Ors. v State of Madhya Pradesh , JT 2004 (10) SC 547, holding that asking for
proof beyond reasonable doubt would be ignoring ground realities; andInder Singh
v State of Punjab and Ors., JT 1995 (9) SC 627.
[30] Fali S. Nariman, Terrorism a threat to Human Rights?,Journal of The National
Human Rights Commission, India , Vol. 3, 2004, p. 1.
[31] 1967 JC 2C
[32] Lucy Vickers, Whistleblowing in the public sector and the ECHR, [1997] Public
Law 594.
[33] WP (C) No. 539 of 2003[34] 12 BHRC 266
[35] 12 BHRC 366
[36]See, Cyber Crime . . . and Punishment? Archaic Laws Threaten GlobalInformation, McConnell International LLC, December 2000.
[37] In: THE CHALLENGEOF LAW REFORMS [Princeton University Press , 1955], pp. 4-5.
[38] Guillermo ODonnell, Why The Rule Of Law Matters, 15 (4)Journal of
Democracy (October 2004), p 32.
[39] 2005 (1) SCALE 402
[40] The six criteria of National Human Rights Institutions under Paris Principles are:(a) independence guaranteed by the statute or Constitution; (b) autonomy from
Government; (c) pluralism in membership; (d) broad mandate based on human rights
standards; (e) adequate power of State; (f) sufficient resources.
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