Rights Of Accused~ PROTECTION OF HUMAN RIGHTS#Rights Of Accused~ synopsis#Rights Of Accused~ HUMAN RIGHTS" - CONCEPT AND MEANING OF#Rights Of Accused~ The Haunting Ambiguities of 'Human Rights'#Rights Of Accused~ Human Rights as Ethical Imperatives#Rights Of Accused~ Human Rights as Grammar of Governance#Rights Of Accused~ Human Rights as Languages of Global Governance#Rights Of Accused~ Human Rights as Syndrome of Shared Sovereignty#Rights Of Accused~ Human Rights as Insurrectionary Praxis#Rights Of Accused~ Human Rights as Juridical Production#Rights Of Accused~ Human Rights as 'Culture'#Rights Of Accused~ "Human Rights" - Concept and Meaning of#Rights Of Accused~ ORIGIN OF HUMAN RIGHTS#Rights Of Accused~ Genesis of Ideal of Natural Rights#Rights Of Accused~ Human Rights and Fundamental Rights#Rights Of Accused~ Evolution of Natural Rights into Fundamental Rights#Rights Of Accused~ Magna Carta (1215)#Rights Of Accused~ Petition of Right (1628)#Rights Of Accused~ Act of Settlement (1701)#Rights Of Accused~ Dissenters and Levellers (1637-54)#Rights Of Accused~ Advocate of Social Contract#Rights Of Accused~ Blackstone (1765)#Rights Of Accused~ Mayflower Compact (1620)#Rights Of Accused~ Virginia Bill of Rights#Rights Of Accused~ American Declaration of Independence (1776)#Rights Of Accused~ French Declaration of the Rights of Man (1791)#Rights Of Accused~ Thomas Paine (1791-92)#Rights Of Accused~ The Bill of Rights in the American Constitution (1789)#Rights Of Accused~ Natural Rights Transformed into Fundamental Rights Operating as a Constitutional Limitation#Rights Of Accused~ Post-War Constitutions#Rights Of Accused~ Human Rights Emanate from Human Needs#Rights Of Accused~ Physiological Needs#Rights Of Accused~ Psychological Needs#Rights Of Accused~ Social Needs#Rights Of Accused~ Economic Needs#Rights Of Accused~ Some Important Events which Affected Human Rights Movement#Rights Of Accused~ Renaissance#Rights Of Accused~ French Revolution (1789)#Rights Of Accused~ Bolshevik Revolution in Russia (1917)#Rights Of Accused~ Industrial Revolution (1930)#Rights Of Accused~ World War II#Rights Of Accused~ GENESIS OF HUMAN RIGHTS IN INTERNATIONAL LAW#Rights Of Accused~ Importation of the Concept of Human Rights into the Realm of International Law and World Order#Rights Of Accused~ Formation of League of Nations#Rights Of Accused~ Birth of the United Nations#Rights Of Accused~ European Convention#Rights Of Accused~ Development of Human Rights in the U.K.#Rights Of Accused~ Human Right Act, 1998 2000 (U.K.)#Rights Of Accused~ THE UNITED NATIONS HUMAN RIGHTS INSTRUMENTS#Rights Of Accused~ The Charter of United Nations#Rights Of Accused~ Universal Declaration of Human Rights#Rights Of Accused~ International Covenants of 1966#Rights Of Accused~ European Convention for the Protection of Human Rights#Rights Of Accused~ The Optional Protocol to the International Covenant on Civil and Political Rights#Rights Of Accused~ The Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty#Rights Of Accused~ The International Convention on the Elimination of All Forms of Racial Discrimination#Rights Of Accused~ The Convention on the Rights of the Child#Rights Of Accused~ The Convention on the Elimination of All Forms of Discrimination Against Women#Rights Of Accused~ The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment#Rights Of Accused~ The International Convention on the Suppression and Punishment of the Crime of Apartheid#Rights Of Accused~ The International Convention against Apartheid in Sports#Rights Of Accused~ The Convention on the Prevention and Punishment of the Crime of Genocide#Rights Of Accused~ The Convention of the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity#Rights Of Accused~ The Convention on the Political Rights of Women#Rights Of Accused~ The Convention on the Nationality of Married Women#Rights Of Accused~ The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others#Rights Of Accused~ The Slavery Convention, 1926#Rights Of Accused~ The Protocol amending the Slavery Convention of 1926#Rights Of Accused~ The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery#Rights Of Accused~ American Convention on Human Rights, 1969#Rights Of Accused~ HUMAN RIGHTS MOVEMENT IN INDIA#Rights Of Accused~ Historical Documents#Rights Of Accused~ Fundamental Rights and Economic Programme#Rights Of Accused~ Objective Resolution#Rights Of Accused~ The Constitution of India#Rights Of Accused~ The Protection of Civil Rights Act, 1955#Rights Of Accused~ The Protection of Human Rights Act, 1993#Rights Of Accused~ Protection of Women against Certain Crimes#Rights Of Accused~ Dowry Death#Rights Of Accused~ Punishment for Rape#Rights Of Accused~ Protection Against Cruel or Inhuman Treatment During Investigation#Rights Of Accused~ Voluntarily causing hurt to extort confession, or to compel restoration of property#Rights Of Accused~ Voluntarily Causing Grievous Hurt to Extort Confession or to Compel Restoration of Property#Rights Of Accused~ Relevant Provisions in the Indian Evidence Act#Rights Of Accused~ Confession Caused by Inducement, threat or Promise, when Irrelevant in Criminal Proceeding#Rights Of Accused~ Confession to Police Officer not to be Proved#Rights Of Accused~ Confession by Accused While in Custody of Police not to be Proved against Him#Rights Of Accused~ Right to Benefit of Doubt#Rights Of Accused~ Burden of Proof#Rights Of Accused~ On whom Burden of Proof lies#Rights Of Accused~ Burden of Proof as to Particular Fact#Rights Of Accused~ Burden of Proving Fact to be Proved to make Evidence Admissible#Rights Of Accused~ Presumption as to Abetment of Suicide by a Married Woman#Rights Of Accused~ Presumption as to Dowry Death#Rights Of Accused~ Presumption as to Absence of Consent in Certain Prosecutions for Rape#Rights Of Accused~ Set up of Human Rights Commission in India#Rights Of Accused~ HUMAN RIGHTS VIOLATIONS IN INDIA#Rights Of Accused~ Human Rights and Police#Rights Of Accused~ Police - an Instrument of Oppression#Rights Of Accused~ Police Encounters#Rights Of Accused~ Human Rights Abuses#Rights Of Accused~ Arbitrary Arrest, Detention, or Exile#Rights Of Accused~ Denial of Fair and Speedy Trial#Rights Of Accused~ Arbitrary Interference with Privacy, Family, Home or Correspondence#Rights Of Accused~ Custodial Crimes#Rights Of Accused~ DEATH IN POLICE CUSTODY/LOCK-UP DURING 2000#Rights Of Accused~ (OF PERSONS REMANDED TO POLICE CUSTODY BY COURT)#Rights Of Accused~ DEATH IN POLICE CUSTODY /LOCK UP DURING 2000#Rights Of Accused~ DEATH IN POLICE CUSTODY AT THE TIME OF PRODUCTION/ PROCEEDINGS IN COURT/JOURNEY CONNECTED WITH INVESTIGATION DURING 2000#Rights Of Accused~ REASONS OF CUSTODIAL DEATHS DURING 2000#Rights Of Accused~ PERSONS ARRESTED AND THEIR DISPOSAL IN CUSTODIAL DEATHS 1996-2000#Rights Of Accused~ INCIDENTS OF CUSTODIAL RAPE IN POLICE CUSTODY DURING 1996-1999#Rights Of Accused~ CUSTODIAL RAPE CASES - DISPOSAL BY POLICE 1996-2000#Rights Of Accused~ PERSONS ARRESTED AND THEIR DISPOSAL IN CUSTODIAL#Rights Of Accused~ Judicial Approach to Human Rights Violations in Criminal Justice Administration#Rights Of Accused~ Dalip Singh v. State of Haryana#Rights Of Accused~ Sadasivan Mohan Chandran v. State of Kerala#Rights Of Accused~ Some Suggestions#Rights Of Accused~ Duty of Judicial Magistrate#Rights Of Accused~ Complaint Cells to Investigate Impartially the Allegations of Torture etc.#Rights Of Accused~ Accountability of the Police#Rights Of Accused~ Need for Constant Co-ordination between the Police Forces of Different States#Rights Of Accused~ Permit Human Rights Groups/NGOs to Visit Place of Alleged Violations#Rights Of Accused~ Human Rights Awareness#Rights Of Accused~ Recommendations of the National Police Commission#Rights Of Accused~ National Policy on Human Rights#Rights Of Accused~ Some Recommendations from the Law Commission of India

CHAPTER 7

PROTECTION OF HUMAN RIGHTS

synopsis

1. "Human Rights" - Concept And Meaning Of

1.1 The Haunting Ambiguities of 'Human Rights'

1.1.1 Human Rights as Ethical Imperatives

1.1.2 Human Rights as Grammar of Governance

1.1.3 Human Rights as Languages of Global Governance

1.1.4 Human Rights as Syndrome of Shared Sovereignty

1.1.5 Human Rights as Insurrectionary Praxis

1.1.6 Human Rights as Juridical Production

1.1.7 Human Rights as 'Culture'

1.2 "Human Rights" - Concept and Meaning of

2. Origin of Human Rights

2.1 Genesis of Ideal of Natural Rights

2.2 Human Rights and Fundamental Rights

2.3 Evolution of Natural Rights into Fundamental Rights

2.3.1 UK

2.3.2 Magna Carta (1215)

2.3.3 Petition of Right (1628)

2.3.4 Act of Settlement (1701)

2.3.5 Dissenters and Levellers (1637-54)

2.3.6 Advocate of Social Contract

2.3.7 Blackstone (1765)

2.3.8 Mayflower Compact (1620)

2.3.9 Virginia Bill of Rights

2.3.10 American Declaration of Independence (1776)

2.3.11 French Declaration of the Rights of Man (1791)

2.3.12 Thomas Paine (1791-92)

2.3.13 The Bill of Rights in the American Constitution (1789)

2.3.14 Natural Rights Transformed into Fundamental Rights Operating as a Constitutional Limitation

2.3.15 Post-War Constitutions

2.4 Human Rights Emanate from Human Needs

2.4.1 Physiological Needs

2.4.2 Psychological Needs

2.4.3 Social Needs

2.4.4 Economic Needs

2.5 Some Important Events which Affected Human Rights Movement

2.5.1 Renaissance

2.5.2 French Revolution (1789)

2.5.3 Bolshevik Revolution in Russia (1917)

2.5.4 Industrial Revolution (1930)

2.5.5 World War II

3. Genesis of Human Rights in International Law

3.1 Importation of the Concept of Human Rights into the Realm of International Law and World Order

3.2 Formation of League of Nations

3.3 Birth of the United Nations

3.4 European Convention

3.5 Development of Human Rights in the U.K.

3.6 Human Right Act, 1998 & 2000 (U.K.)

4. The United Nations Human Rights Instruments

4.1 The Charter of United Nations

4.2 Universal Declaration of Human Rights

4.3 International Covenants of 1966

4.4 European Convention for the Protection of Human Rights

4.5 The Optional Protocol to the International Covenant on Civil and Political Rights

4.6 The Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty

4.7 The International Convention on the Elimination of All Forms of Racial Discrimination

4.8 The Convention on the Rights of the Child

4.9 The Convention on the Elimination of All Forms of Discrimination Against Women

4.10 The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment

4.11 The International Convention on the Suppression and Punishment of the Crime of Apartheid

4.12 The International Convention against Apartheid in Sports

4.13 The Convention on the Prevention and Punishment of the Crime of Genocide

4.14 The Convention of the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity

4.15 The Convention on the Political Rights of Women

4.16 The Convention on the Nationality of Married Women

4.17 The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others

4.18 The Slavery Convention, 1926

4.19 The Protocol amending the Slavery Convention of 1926

4.20 The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery

4.21 American Convention on Human Rights, 1969

5. Human Rights Movement In India

5.1 Historical Documents

5.1.1 Fundamental Rights and Economic Programme

5.1.2 Objective Resolution

5.1.3 The Constitution of India

5.1.4 The Protection of Civil Rights Act, 1955

5.1.5 The Protection of Human Rights Act, 1993

5.2 Protection of Women against Certain Crimes

5.2.1 Dowry Death

5.2.2 Punishment for Rape

5.3 Protection Against Cruel or Inhuman Treatment During Investigation

5.3.1 Voluntarily causing hurt to extort confession, or to compel restoration of property

5.3.2 Voluntarily Causing Grievous Hurt to Extort Confession or to Compel Restoration of Property

5.4 Relevant Provisions in the Indian Evidence Act

5.4.1 Confession Caused by Inducement, threat or Promise, when Irrelevant in Criminal Proceeding

5.4.2 Confession to Police Officer not to be Proved

5.4.3 Confession by Accused While in Custody of Police not to be Proved against Him

5.5 Right to Benefit of Doubt

5.5.1 Burden of Proof

5.5.2 On whom Burden of Proof lies

5.5.3 Burden of Proof as to Particular Fact

5.5.4 Burden of Proving Fact to be Proved to make Evidence Admissible

5.5.5 Presumption as to Abetment of Suicide by a Married Woman

5.5.6 Presumption as to Dowry Death

5.5.7 Presumption as to Absence of Consent in Certain Prosecutions for Rape

5.5.8 Set up of Human Rights Commission in India

6. Human Rights Violations in India

6.1 Human Rights and Police

6.1.1 Police - an Instrument of Oppression

6.1.2 Police Encounters

6.2 Human Rights Abuses

6.2.1 Arbitrary Arrest, Detention, or Exile

6.2.2 Denial of Fair and Speedy Trial

6.2.3 Arbitrary Interference with Privacy, Family, Home or Correspondence

6.2.4 Custodial Crimes

6.3 Judicial Approach to Human Rights Violations in Criminal Justice Administration

6.3.1 Dalip Singh v. State of Haryana

6.3.2 Sadasivan Mohan Chandran v. State of Kerala

6.4 Some Suggestions

6.4.1 Duty of Judicial Magistrate

6.4.2 Complaint Cells to Investigate Impartially the Allegations of Torture etc.:

6.4.3 Accountability of the Police

6.4.4 Need for Constant Coordination between the Police Forces of Different States

6.4.5 Permit Human Rights Groups/NGOs to Visit Place of Alleged Violations

6.4.6 Human Rights Awareness

6.4.7 Recommendations of the National Police Commission

6.4.8 National Policy on Human Rights

6.5 Some Recommendations from the Law Commission of India

Respect for Human Rights has always been one of the main concerns of every democratic society. It is universally recognised that democracy cannot survive and sustain itself without respect for Human Rights and sincere efforts to promote and protect them. Although Human Rights, in theory, can be nurtured and enhanced within various political systems, history has convincingly proved that they can be truly guaranteed only in conditions of the greatest possible transparency in decision making on the part of those who are in positions of power.1 However, before appreciating this aspect one has to understand the concept and meaning of 'Human Rights'.

1. "HUMAN RIGHTS" - CONCEPT AND MEANING OF

1.1 The Haunting Ambiguities of 'Human Rights'

Human Rights are those minimal rights which every individual must have against the State or other public authority by virtue of his being a 'member of the human family', irrespective of any other consideration. But the concept and meaning of 'Human Rights' is not as simple as stated above. According to Prof. Upendra Baxi the very term 'Human Rights' is indeed problematic.2 In rights-talk, the expression often masks the attempts to reduce the plentitude of its meanings to produce a false totality. One such endeavour locates the unity of all Human Rights to some designated totality of sentiment such as human 'dignity', 'well being', and 'flourishing'. Another mode invites us to speak of Human Rights as 'basic', suggesting that some others may be negotiable, even dispensable. Those who are deprived, disadvantaged, and dispossessed may indeed find it hard to accept any justifications for the very notion of Human Rights that may end up in a denial of their right to be human. Yet another mode of totalization makes us succumb to an anthropomorphic illusion that the range of Human Rights is limited to human beings; the new rights to environment (or what is, somewhat inappropriately, even cruelly, called 'sustainable development')3 take us far beyond such a narrow notion. As descriptive ventures, such attempts at totalisation of Human Rights reduce to a 'coherent' category the forbiddingly diverse world of actually existing Human Rights. As prescriptive ventures, such modes simply privilege certain preferred values over others. In both cases, the normative complexity and existential outreach of Human Rights norms and standards are made to yield their historic futures to the demands of a uniform narrative. This, overall, obscures the contradictory nature of development of 'Human Rights'. There is not one world of 'Human Rights' but many conflicting worlds.

The plurality and multiplicity of the fecund expression 'Human Rights' is worthy of celebration only if we are able to designate the distinctive modes of the sustaining networks of meaning and the logics of popular action that protest against all forms of human violation. If the notion 'Human Rights' means many

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1. India and Human Rights, p. (iii).

2. Upendra Baxi, The Future of Human Rights, p. 5-13.

3. See, Andrew Rowell, Green Backlash: Global Subversion of the Environmental Movement, (1996), 4-41; and for the extraordinary relation between Nazism and deep ecology, see Luc Ferry, The New Ecological Order, (1992), 91-107.

things to different people, these meanings need to be configured in some patterns without violating the richness of difference. Prof. Baxi essays it tentatively under the following different rubrics.1

1.1.1 Human Rights as Ethical Imperatives

Some speak of 'Human Rights' in terms of ethical values that ought to inform collective and individual action. 'Human Rights' here are not thought of in terms of the political practices of enunciation, as rationalization of interests. Rather, the ethic of Human Rights insists on what communities and individuals ought to desire. The core ethical values (such as human dignity, integrity, and well being) furnish a standpoint from which the dominant Human Rights paradigms (knowledge/power formations) may be constantly subjected to interrogation. The ethics of Human Rights emerges as a tradition of critical morality by which the positive morality of Human Rights practices themselves may be judged.1

The source and scope of these values remain contested sites. The project of Human Rights, however, is seen as distinctly ethical. The visions of moral development vary profoundly as contemporary discourses on feminist ethics and eco-ethics abundantly testify. At least one core value seems to command consensus. Respect towards the other as a co-equal human is the groundwork of an ethic of Human Rights, furnishing universally valid norms for human conduct and the basic structure of a just society. That respect, as Emmanuel Levinas memorably reminds us, does not consist of the 'imperialism of the Same'.2 Rather, it consists of the full recognition of Human Rights as a 'sole source of solidarity among strangers', conceding 'one another the right to remain strangers'.3

In this perspective 'Human Rights' emerges as a moral-ethical discourse furnishing standards of critical morality for the evaluation of any existing state of affairs. Unlike most ethical discourses that primarily address issues of distribution in the basic structure of a given society and tradition, the ethical 'Human Rights' discourse also addresses the society of States in historically evolving circumstances of globality.4 'Human Rights' becomes an expression that carries the burden of a transformative vision of the world, in which the State (and the community of State and State like global institutions) incrementally becomes ethical, governance just, and power (in all its hiding places) accountable.5

1.1.2 Human Rights as Grammar of Governance

Practices of governance ambivalently sustain the network of meanings called 'Human Rights'. Human Rights address the problem of legitimacy of power to rule. Human Rights provide a corpus of constraints on public decision-making power and the languages of transparency in public choice. However, even as these

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1. Upendra Baxi, The Future of Human Rights, pp. 5-13.

2. Emmaneul Levinas, Totality and Infinity: An Essay on Exteriority (1969), 87.

3. Jurgen Habermas, Between Facts and Norms: Contributions Towards a Discourse Theory of Ethics, (1996), 308.

4. John Rawls, ‘The Law of the Peoples’, in On Human Rights: The Oxford Amnesty Lectures, (1993), p. 41. Professor Rawls has since elaborated the thematic in his germinal monograph (1999).

5. Upendra Baxi, The Future of Human Rights, pp. 5-13.

provide obstacles to free play of power rights standards also provide opportunities for it. Rights oriented governance structures and processes - the Rule of Law formations - also shape, and at time determine, the form and content of Human Rights. The Rule of Law conceived, as the lawyers' law (that is, the public processes of protection and promotion of 'Human Rights' remains consistent with structural violation by virtue of its capacity to reproduce legitimate law. The sovereign power constantly negotiates the imperative of the Rule of Law in ways that, for example, somehow render as legitimate the affluence of a few with the extreme impoverishment of many, locally and globally. This form of reproduction of rights and legality often, at least from the standpoint of those violated, combines and recombines, the Rule of Law with the reign of terror.1

The normative quest for governance structures that produce legitimate laws with a more serious regard for Human Rights, emphasizes the democratic rights of the peoples to redress this non-structural vision of Human Rights. It emphasizes escalating orders of participatory rights of the people - such as their rights to constitute governance through periodic free and fair elections; self-determination through at least genuine modes of devolution of power; identity rights, and the right to cultural and physical survival as communities or groups. This realm does not so much pertain to the daily activity of a State but to the rights, integrity of its structures that furnishes an approach to the solution to the problem of the very legitimacy of the law itself.1

In both the realms of rights, practices of governance become contested sites, sustaining loyalty as well as mobilizing democratic deficit or even legitimation crises. Human Rights in either sense relate to governance practices by way of complicity or struggle. In either situation, the diverse theory and practice of Human Rights carry the potential for a pervasive impact on the practices of State-formation.2

1.1.3 Human Rights as Languages of Global Governance

An incredible range of activities or phenomena nestles within these expressions. Although axiomatic, it is now the talk of the town that practices of global governance may legitimate themselves best by recourse to Human Rights languages. How this may happen is, of course, deeply problematic as, for example (and these are unwieldy illustrative domains) in the United Nations discourse on 'sustainable development' and 'global governance'. It is unsurprising that Human Rights standards and norms, which are products of diplomatic and international civil service desire within the ever-expanding United Nations system, lend themselves to a whole variety of foreign policy and global corporate uses and abuses under the cover of 'international' consensus. The amazing aspect, however, is the resilient autonomy of Human Rights normality that periodically interrogates such acts of expropriation of Human Rights in the pursuit of severally self-regarding national or regional interests.2

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1. Habermas, supra ref. 7 at pp. 104-32. The Habermas enunciation does not include many governance practices that mock the logic of participatory rights: for example, the collective right of peoples and communities to immunity from corrupt practices of governance. 

2. Upendra Baxi, The Future of Human Rights, pp. 5-13.

1.1.4 Human Rights as Syndrome of Shared Sovereignty

The dissipation, as well as reconfiguration, of sovereignty occurs (in the production and maintenance of meaning/signification systems called 'Human Rights') through four principal mechanisms. Each of these puts to its distinctive use the languages of 'Human Rights'.

Postmodernist Confederations of Power: First, postmodernist confederations of power, of which the European Community provides a most singular, even spectacular, example that intertwines governance with rights languages: whether these arrangements reinforce the power to govern or the democratic rights of people subject to governance remains an open question.1

Distinctive Regimes of Related Global and Regional Trade Arrangements: Second, the distinctive regimes of related global (the World Trade Organisation), and regional trade arrangements (for example, NAFTA, APEX, ASEAN) emerge as organisms generating powerful anti-bodies to the 'epidemic' of Human Rights, conceived both as civil liberties and democratic rights. These regimes regard all Human Rights as irritating impositions insofar as these retard global capital's mission to create conditions and circumstances of 'development' only within which Human Rights may envision their practical and foreseeable future.2

The ever increasing complex linkages between 'development aid' and donor country conditionalities: Third, the ever increasing complex linkages between 'development aid' and donor country conditionalities present site of intersection between 'Human Rights' and the task of global governance. Were the Northern donors not to insist on gender equality or 'democratic' elections, internationally supervised, the groundwork (as it were) for political reformation in the aided nations, it is felt, would remain forever innocent of 'Human Rights' aspirations. Many South-based international NGOs work admirably, and tirelessly, to promote such 'Human Rights' conditionalities. In seeking to constrain the governance practices of the 'nation State', these formations also become subjected to the emerging paradigms of 'global governance' no matter how benignly presented as Human Rights friendly.

The extraordinary incursions into national autonomy of 'political' decision-making by international financial institutions: Fourth, the extraordinary incursions into national autonomy of 'political' decision-making by international financial institutions in the pursuit of promotion, if not protection, of 'Human Rights' in their cumulative effect may well be regarded as mechanisms for dissipation and reunification of 'Human Rights' unfriendly hegemonic sovereignties.2

1.1.5 Human Rights as Insurrectionary Praxis

Through myriad struggles and movements throughout the world, 'Human Rights' become an arena of transformative political practice that disorients, destabilizes, and at times even helps destroy deeply unjust concentrations of

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1. See, the insightful analysis by Peter Leuprecht, ‘Innovations in the European System of Human Rights Protection: Is Enlargement Compatible with Reinforcement?’, 8, Transnational Law and Contemporary Problems (1998), p. 318.

2. Upendra Baxi, The Future of Human Rights, pp. 5-13.

political, social, economic and technological power. Movements for decolonization and self determination, elimination of apartheid, 'women's right as Human Rights', ecological integrity and the right sexual orientation provide archetypal illustrations of the potential for transformative practice. The perplexities here lie in deciphering the 'upward' and 'downward' linkages between 'mass' movements and aspirations for transformation and their representation by an incredible variety of NGOs (now renamed, and perhaps not innocently, as CSOs - Civil Society Organizations)1 in close interaction between national regional and international power formations. The NGOs who so pre-eminently lead these movements vary in their levels of 'massificaction' in terms of their potential for articulating the voices of the violated and authenticating their visions of a just world. As such, they do not as yet, fortunately, exhaust their emancipatory potential. At the same time, these movements pluralise meanings of Human Rights far beyond doctrinal disputations concerning 'relativism' and 'universality' that, at the end of the day, subserve the global interests in the making.2

1.1.6 Human Rights as Juridical Production

Not many of even the most pre-eminent international Human Rights bodies carry in and through their lifework, this incredible range of Human Rights meanings or significatory practices. Those, however, who do devote their singular relents to systematizing Human Rights law and practice or to sculpt alternate structures (like the International Criminal Court) create systems of meanings for 'Human Rights', almost equally available for the ends of governance and insurrection.

The dogmatic tradition of scholarly Human Rights discourse is prudential in the best, even Thomistic, sense of the term, stressing the evolutionary character of the emerging law of Human Rights entailing convergence, though agonizingly haphazard, of State practice around specific norms and standards. In contrast, the critical even radical, scholarly Human Rights practices tend to view Human Rights emergencies in terms of breaks, discontinuities, and fissures in the canonical narratives of State sovereignty and legitimacy. They perceive international relations and organizations as having a dialectical relation between power and resistance at the level of agency and structure. Put in another way, this scholarly genre focuses upon the critical practices of non 'sovereign' but still self determinative peoples in the development of international law generally and international Human Rights law in particular. Both types of theoretical practices have a bearing on theorizing repression, but only critical practice takes this as an explicit objective. The orizing repression, however, requires also, besides the articulation of an authentic cry of deep human anguish, enormous labours of erudite understanding of ways of power and governance, which remain the focus of the dogmatic approach with all its technologizing constructions of Human Rights. To be sure, a State sensitive dogmatic approach remains liable to servicing the ends of power and governance. This, however, also brings to view the 

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1. See, Upendra Baxi, “Global Neighborhood” and “Universal Otherhood” Notes on Report of the Commission on Global Governance.’ 21, Alternatives (1996), pp. 525-49.

2. Upendra Baxi, The Future of Human Rights, pp. 5-13.

pathologies of Realpolitik in rich detail. This is useful, even important, because the devil often lies in the detail1

1.1.7 Human Rights as 'Culture'

In this discourse, riven with contestation on 'universality' and 'particularism', Human Rights are conceived as cultural systems. It is the case that every societal culture encapsulates briefs, sentiments, symbols that impart sense to the notion of being human, no matter in how many different registers of inclusivity. Similarly, every societal culture has traditions of understanding concerning what rights human beings ought to have. No culture then is devoid of notions about Human Rights, even when that which constitutes these rights varies within the same culture in time and place, and these vary across comparable cultures. Within societal cultures, distinctive legal cultures give rise to the practice of rights. In this sense, perhaps Human Rights may be described as 'cultural software'; a set of mechanism of hermeneutic power2 that makes, in a constantly dynamic way, new understanding of what it means, and ought to mean, to be human.1

These societal Human Rights cultures relate to global cultures of Human Rights. It is trivial to say that they are shaped by the global cultures and in turn shape them. What matters are the perception and the reality of this mutuality of determination? If the global cultures of Human Rights are dominant, societal Human Rights cultures would be confronted by a relation of submission and struggle. However, even at this level sensitivity to the tyranny of the singular is critical. If societal Human Rights cultures are diverse, so are global Human Rights cultures. The relations of submission and struggle at all levels are intensely complex and contradictory.1

1.2 "Human Rights" - Concept and Meaning of

However, in common parlance we may define "Human Rights " as to mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.3

Louis Henkin, a Professor and Western Scholar, defined Human Rights as "Claims asserted and recognized as of rights.... against society as represented by Governments and its officials."4 In another definition, a Soviet International Legal Scholar, Vladimiar Kudrygutse, stated that Human Rights are "an opportunity guaranteed by the State to its citizens to enjoy the societal benefits and values existing in the given society."4 Prof. Louis Henkin of Columbia University defined Human Rights as:

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1. Upendra Baxi, The Future of Human Rights, pp. 5-13.

2. J.M. Balkin, Cultural Software: A Theory of Ideology (1998), 273-85. Balkin of course,  does not address Human Rights as cultural software. However, Human Rights as cultural software enable us not only to ‘understand but in doing so helps us produce the “we” that understand’ (p. 274). It ‘produces the hermeneutic power that binds members of a culture together’ and makes ‘cultural conventions possible’ (p. 278).

3. Protection of Human Rights Act, 1993, section 2(d). 

4. Justice Palok Basu, Law Relating to Protection of Human Rights under the Indian Constitution and Allied Laws, p. 5.

"....claims which every individual has, or should have, upon the society in which she or he lives. To call them Human Rights suggests that they are universal; they are the dues of every human being in every human society. They do not differ with geography or history, culture or ideology, political or economic system or stage of development. They do not depend on gender or race, class or 'status'. To call them 'rights' implies that they are claims 'as of right' not merely appeals to grace, or charity or brotherhood or love, they need not earned or deserved. They are more than aspirations or assertions of 'the good' but claims of entitlement and corresponding obligation in some political order under some applicable law, if only in a moral order under a moral law.

When used carefully, 'Human Rights' are not some abstract, inchoate 'good'. The rights are particular, defined, and familiar, reflecting respect for individual dignity and a substantial measure of individual autonomy, as well as a common sense of justice and injustice."1

The concept of Human Rights, it has been argued, falls within the framework of Constitutional law and international law. For this purpose it has been identified to "defend by institutionalized means the rights of human beings against abuses of power committed by the organs of the State and at the same time to promote the establishment of human living conditions and the multi-dimensional development of human personality."2

A close look at the above definition shows that Human Rights, represent claims which individuals or groups make on the society. They include the right to freedom from torture, the right to life, inhuman treatment, freedom from slavery and forced labour, the right of liberty and security, freedom of movement and choice of residence, right to fair trial, right to privacy, freedom of thought, conscience and religion, freedom of opinion and expression, the right to marry and form a family, the right to participate in one's Government either directly or indirectly or through freely elected representatives, the right to nationality and equality before law. These rights cannot be compromised universally.2

Human Rights are the birth rights of people the world over. Hence their fulfillment does not lie in the reproduction of institutions of the advanced world, but on the consciousness in the developing world, to ensure the respect and protection of Human Rights. This will forestall the ease in their denial as an incident of valid structural change.2

Therefore, the basic Human Rights are inherent and do not need to be conferred by law. Legislation merely recognizes them and provides the machinery for their protection and enforcement.

___________

1. J.S. Verma, ‘Refugees in the SAARC Region: Building a Legal Framework’, Inaugural speech delivered on 2 May, 1997 at a Seminar organised by SAARCLAW and UNHCR at New Delhi, in New Dimensions of Justice, p. 112 (2000 Edn., Universal Law Publishing Co. Pvt. Ltd., Delhi).

2. Justice Plok Basu, Law Relating to Protection of Human Rights under the Indian Constitution and Allied Laws, p. 5.

2. ORIGIN OF HUMAN RIGHTS

Human Rights are those irreducible minima which belong to every member of the human race when pitted against the State or other public authorities or group and gangs and other oppressive communities. Being a member of the human family he has the right to be treated as human once he takes birth or is alive in the womb with a potential title to personhood. When legal ideas were not clear-cut but blurred, ancient pundits thought of the doctrine of natural rights founded on natural law, not because it is enacted but because it inalienably belongs to each of us as conceived in civilized political societies. When the priestly order denies this right using religious sanction and authority, the independent mind of man expresses dissatisfaction and defies. When Kings and Queens and other diadems and despotisms sought to suppress the individual's freedom an appeal to natural law was made on the assumption that beyond religious superiors and crowned heads, there was a system of natural law which embodied reason, justice and universal ethics.1 Though the concept of Human Rights is as old as the ancient doctrine of 'natural rights' founded on natural law, the expression 'Human Rights' is of recent origin, emerging from (post-Second World War) international Charters and Conventions. It would, therefore, be logical to start with the concept of natural rights, which eventfully led to the formulation of 'Human Rights'.

2.1 Genesis of Ideal of Natural Rights

In England, the case for a natural law, superior to man-made law, was argued by Blackstone in the 17th Century.2 Blackstone3 had identified three rights which he aptly remarked to have been "founded on nature and reason": the right to personal security, the right to personal liberty and the right to private property. However, Dicey4 had shown that rights were derived from the Rule of Law by discussing the right to personal freedom, freedom of discussion and the right to assembly.

Once the concept of a higher law binding on human authorities was evolved, it came to be asserted that there were certain rights anterior to society, which too were superior to rights created by the human authorities, were of universal application to men of all ages and in all climes, and were supposed to have existed even before the birth of political society. These rights could not, therefore, be violated by the State. The deficiencies of this doctrine of natural right, from the legal standpoint, however, were that it was a mere ideology and there was no agreed catalogue of such rights and no machinery for their enforcement, until they were codified into national Constitutions, as a judicially enforceable Bill of Rights, International Covenants, Conventions European Court of Human Rights and remedies provided under Human Rights Act, 1998.5

___________

1. V.R. Krishna Iyer, The Dialectics and Dynamics of Human Rights in India (Yesterday,

Today and Tomorrow), p. 54.

2. (1765) 1 Bl Com 43.

3. Blackstone, Commentaries on the Laws of England: R.KERR (ed) (4th Edn. John Murray,

1876).

4. Dicey, An Introduction to the Study of the Law and Constitution (“the right not to be

subjected to imprisonment, arrest or other physical coercion in a way which does not

admit of legal justification”).

5. Durga Das Basu, Human Rights in Constitutional Law, p. 8, 2nd Edn.

2.2 Human Rights and Fundamental Rights

When Human Rights are guaranteed by a written Constitution, they are called 'Fundamental Rights' because a written Constitution is the fundamental law1 of a State. Constitution is not to be construed as a mere law2 or simply as a statute.3 It is the fountainhead of all the statutes. The Supreme Court of India, in a nine-Judge Bench4 decision has held that though India has a written Constitution, its written text is not the exhaustive source of Constitutional law which is enforceable in a Court of law. Thus even custom or usage when established would have the force of law and would be enforceable if not inconsistent with the Fundamental Rights guaranteed. "Conventions" as such would also pave a surer foundation to such rights as would be enforceable as law.

Just as a written Constitution has evolved from the concept of natural law as a higher law, so the Fundamental Rights may be said to have sprung from the doctrine of natural rights. As the Indian Supreme Court has put it.

"Fundamental Rights are the modern name for what have been traditionally known as 'natural rights'."5

Though there has been an unending controversy as to whether rights are anterior to political society or are created by the latter, philosophers agree on the point that there are certain basic and inalienable6 rights which are inherent in free and civilised human beings. A political society is necessary not to create them but to secure them. For instance, a right to habeas corpus in England was not created by the habeas corpus Acts, but existed even prior to the enactment of those statutes. Civilised men derive such rights from a higher law, which was called 'natural law' at the dawn of civilization, and which later came to be embodied in the form of a written instrument or instruments constituting the 'fundamental law' of the land.7

Under an unwritten Constitution, as in England, these natural or basic rights came to be variously called as civil rights8 or civil liberties9 and freedom10 or 

________________

1. Durga Das Basu, Comparative Constitutional Law, p. 159-60, 1984.

2. GoodyearIndia v. State of Haryana, MANU/SC/0194/1989 : AIR 1990 SC 781 (791): (1990) 2 SCC 71: JT 1989 (4) SC 229: (1989) 2 SCALE 982: (1990) 1 Comp LJ 23: (1989) Supp 1 SCR 510: (1991) 188 ITR 403.

3. Uttar Pradesh State Cooperative Land Development Bank Ltd. v. Chandrabhan Dubey, (1991)

1 SCC 741 (para 27): MANU/SC/0872/1999 : AIR 1999 SC 753: (1998) 6 SCALE 670: (1998) 9 Supreme 535: (1999) 1 UPLEBC 296.

4. Supreme Court Advocates on Records Association v. Union of India, AIR 1994 SC 268 (para

352), per Kuldip Singh, J.: MANU/SC/0073/1994 : (1993) 4 SCC 441: JT 1993 (5) SC 479: (1993) Supp SCALE

67: (1993) 5 SLR 337.

5. L.C. Golak Nath v. State of Punjab, MANU/SC/0029/1967 : AIR 1967 SC 1643 (1656) (para 16): (1967) 2 SCR 762:

1967 SLR 301: 1967 (2) SCJ 486: (1967) 2 SCWR 1006.

6. American Declaration of Independence, 1776; Preamble to the Universal Declaration; Loan Association v. Topeka, (1875) 20 Wall 655; Munn v. Illinois, (1877) 94 US 113.

7. Durga Das Basu, Human Rights in Constitutional Law, p. 48, 2nd Edn.

8. It should be noted that in intentional forum, the expression ‘civil rights’ is used to denote rights derived from private law as opposed to public law (10 YBHR 170; Halsbury, 4th Edn., Vol. 18 para 1674).

9. O’ Higgins, Cases and Materials on Civil Liberties, pp. 1-2 (1980).

10. De Smith, Constitutional Law, pp. 427, 457 (1985).

individual liberty.1 When guaranteed and entrenched by a written Constitution, these rights are called 'Fundamental Rights', because they are guaranteed by the fundamental law.2

2.3 Evolution of Natural Rights into Fundamental Rights

The story of an evolution of natural rights into Fundamental Rights, enforceable in a Court of law against the Sovereign himself is a long one, for which there is little room in this research work. A reference to the landmarks, however, would be useful to clarify the essential principles underlying the concept of 'Fundamental Rights'.3

2.3.1 UK

Though the Constitution of England has never been codified in the form of one organic instrument, so far as individual rights are concerned, they have been asserted, from time-to-time, in the form of declarations of the inviolable rights and liberties of the subject against the most despotic monarchical authority. In the words of Blackstone,4 these rights were "founded on nature and reason, so they are coeval with form of Government".

2.3.2 Magna Carta (1215)

The doctrine of natural rights thus passed into the realm of practical reality when an absolute monarch himself (King John) was made to acknowledge that there were certain rights of the subject which could not be violated even by a Sovereign in whom all power was legally vested.

2.3.3 Petition of Right (1628)

The movement continued through the repeated confirmation of the Magna Carta and the Petition of Right, 1628, and culminated in the Bill of Rights, 1689, which enacted in a parliamentary statute the declaration which the people made the Prince and Princess of Orange to subscribe at their accession in 1688. The contribution of this instrument towards the development of Fundamental Rights5 will be evident when we look at its concluding words:

".....it may be declared and enacted, that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom".

2.3.4 Act of Settlement (1701)

The Act of Settlement, which followed, had for its title "An Act, declaring the Rights and Liberties of the Subject...", which were asserted as "the birth-right of the people of England".

______________

1. Dicey, Law of Constitution, p. 198, 10th Edn., 1959.

2. Hood Phillips, Constitutional and Administrative Law, p. 15, (1987); Min. of Home Affairs v. Collins, (1979) 3 All ER 21 PC.

3. Durga Das Basu, Human Rights in Constitutional Law, pp. 49-57, 2nd Edn.

4. (1765) 1 B1 Comm, Chap. 1, pp. 127-28.

5. In particular, the guarantees of peaceable assemblage against double jeopardy and excessive bail in the American Constitution were drawn from the English Bill of Rights of 1689.

2.3.5 Dissenters and Levellers (1637-54)

Together with these Charters of liberties, one may advert to the views of contemporary political thinkers, such as the Dissenters and the Levellers, rising against Stuart absolutism. Though from the early times natural law was considered to be a norm for right conduct as well as the source of certain basic rights, the latter aspect was more emphasized by revolutionary leaders like Eliot, Pym and Hampden, to assert that there were certain Fundamental Rights, such as the freedom of person and property, which could not be arbitrarily interfered with by any political authority. The theory of natural rights of the individual was thus used to checkmate the theory of Divine Right of Kings.

2.3.6 Advocate of Social Contract

The doctrine of natural rights received further impetus at the hands of the great protagonists of the theory of Social Contract in the 17th and 18th centuries, particularly Locke and Rousseau, who sought to trace the genesis of political society and Government in an agreement into which individuals entered to form a collective society to ensure their general interests and objects, but at the same time without interfering with their 'natural rights' which already belonged to them as human beings.1

(i) John Locke (1690): Of this group of political thinkers, John Locke, made the most systematic contribution. His two Treatises of Government2 wielded a great influence on the American colonists in preparing the Declaration of Independence and the written Constitutions. Shorn of details, Locke's theory was that, in the original state of nature, man was governed by the law of nature, but for the sake of better safety, he joined in a political society by means of a 'social compact' for the mutual preservation of life, liberty and property. The Government so set-up by a compact, was naturally one of limited powers and was bound to the community by the guarantee that the peoples' natural rights would be preserved. The Legislature was thus limited by natural law; and a law made by the Legislature contrary to the law of nature or violative of the natural rights of the individual was invalid. Some of these natural rights, for instance, were equality - "men being by nature all free, equal and independent"-liberty and property. The distinct contribution of Locke to the philosophy of Fundamental Rights, thus, was that he did not rest with the assertion of the natural rights against royal arbitrariness; he held them as against the Legislature as well, even though the 'supreme power in the Commonwealth' might belong to the Legislature.3

(ii) Rousseau (1762): Though full of contradictions in his philosophy of Social Contract, it was Rousseau who gave a kinetic impetus to the doctrine by emphasizing that the sole justification of the State, which derives its authority from the people, was to guarantee the natural rights of man, of freedom and equality.4 These were 'natural' rights inasmuch as they inhered in man in the 'state of nature':

"Man is born free and everywhere he is in chains".

____________

1. Rousseau, Social Contract, 1762 (Everyman), I, vi.

2. Published in 1690.

3. Government, x, 135; xiii, 149.

4. Rousseau, Social Contract, 1762 (Everyman), I, i.

2.3.7 Blackstone (1765)

It is striking that this concept of natural rights as binding on any political authority crept into the thoughts of a legalist like Blackstone who,1 made a distinction between absolute and relative rights of persons.

By absolute rights of individuals, Blackstone meant-

"those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature; and which every man is entitled to enjoy, whether out of society or in it".

These are to be distinguished from relative rights which are incidental to individuals only as members of society. It is the duty of the political society to protect these absolute rights and, therefore, the State or any authority therein cannot interfere with or encroach upon these natural rights except insofar as that is essential for the free maintenance or proper enjoyment of such rights as members of a collective society.

Credit must, therefore, go to Blackstone for importing the doctrine of natural rights from the realm of political philosophy into the realm of jurisprudence. Of course, he was also asserting that "the power of parliament is absolute and without control" and that "what parliament doth, no authority upon earth can undo";1 but be had, at the same time, the belief that the 'absolute rights' of man were and would be safeguarded by the laws made by the Parliament so long as 'the Constitution of England does not perish'.1

2.3.8 Mayflower Compact (1620)

LOCKE's theory of Social Contract was materially fruitful in the Compact which the Pilgrim Fathers entered into when they landed from their ship named Mayflower at Plymouth in 1620.

The significance of this Compact lies in the fact that when the colonial revolt started in 1763, the colonists pointed to this Compact as the contract between the colonists and the King by which he was deemed to assure protection of their natural rights.

2.3.9 Virginia Bill of Rights

The Bill of Rights adopted in the State Constitution of Virginia in 1776 was the first declaration of rights in a written Constitution "as the basis and foundation of government". The impress of the doctrine of 'natural rights' is to be found in the Preamble of this Declaration:

"All men are by nature equally free and independent and have certain inherent natural rights of which when they enter society, they cannot by any compact deprive or divest their posterity..."

As Ritchie2 points out this Bill of Rights served "as the model for many similar declarations adopted after American independence had been secured". That it inspired the makers of the Bill of Rights appended to the national Constitution by 

________________

1. Blackstone, (1765) I Comm., Chap. 1, pp. 123-25 (Coleridge Ed.).

2. Ritchie, Natural Rights, 1894, p. 4.

the first Ten Amendments would be evident if we find that amongst the rights asserted by the Virginia Bill of Rights are-

Equality of men; freedom of the press; freedom of religion; right not to be taxed without consent or not to be deprived of liberty except by the law of the land; right against general warrants, cruel punishments, self incrimination.1

2.3.10 American Declaration of Independence (1776)

The theory of natural rights entered into the realm of Constitutional realism with two revolutionary documents, namely the American Declaration of Independence and the French Declaration of Rights of Man, which asserted that there were certain inalienable rights, and it was the duty of the State and its organs to maintain these rights.

The aggression of the omnipotent British Parliament against the American Colonists could be met only by holding up the shield of the inviolable natural rights of man, which constituted a limitation on any form of government, monarchical or parliamentary.2

The Declaration of American Independence said-

"We hold these truths to be self-evident; that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness..."3

Though it was not a part of written Constitution, it asserted "certain inalienable rights", as against any Government in power, adding that-

"to secure these rights Governments are instituted among men, deriving their just powers from the consent of the governed."

2.3.11 French Declaration of the Rights of Man (1791)

Inspired by the American Declaration of Independence, the French National Assembly formulated the Declaration of the Rights of Man.

"The representatives of the people of France, formed into a National Assembly considering that ignorance, neglect or contempt of Human Rights, are the sole causes of public misfortunes and corruption of Government, have resolved to set forth in a solemn declaration, these natural imprescriptible, and inalienable rights, that this inalienable rights, that this declaration being constantly present to the minds of the members of the body social, they may be ever kept attentive to their rights and their duties; that the Acts, of the legislative and executive powers of Government, being every moment compared with the end of political institutions, may be more respected; and also, that the future claims of the citizens, being directed by simple and incontestable principles, may always tend to maintenance of the Constitution, and the general happiness.

___________________

1. Ritchie, Natural Rights, 1894, p. 4.

2. Dunning, History of Political Theories (1920), Indian Edn., 1967, Chap. III.

3. Drafted by Jefferson in 1776.

For these reasons the national assembly both recognizes and declares in the presence of the Supreme Being, and with the hope of his blessing and favour the following sacred rights of men and citizens...

II. ...The end of all political associations is the preservation of the natural and imprescriptible rights of man; and these rights are Liberty, Property, Security and Resistance of Oppression."1

2.3.12 Thomas Paine (1791-92)

The philosophy underlying this doctrine of inalienable rights, superior to the civil rights, may best be explained in the words of a contemporary political thinker, Thomas Paine:

"...all men are born equal and with equal Natural Rights."2

2.3.13 The Bill of Rights in the American Constitution (1789)

A most striking feature of the Federal Constitution of the USA, however, was that no Bill of Rights was appended to the original Constitution as framed by the Convention of 1787 and brought into force in 1789, even though the Constitution contained certain specific limitations on legislative power, such as the prohibition of bill of attainder and ex post facto law.3

There was, in fact, a proposal in the Convention that a Bill of Rights should be inserted in the Constitution; but it was defeated. Consequently, the Constitution of 1789 contained no guarantee of those 'inalienable rights' which were envisaged by the Declaration of Independence, such as the freedom of speech, assembly and religion.

But as soon as the Federal Constitution was adopted, the absence of a Bill of Rights was felt by some of the leaders, of whom Jefferson was the spokesman, and some States demanded the incorporation of a Bill of Rights as a condition for their ratification of the Constitution. Jefferson pointed out the fallacy of the assumption that representatives of the people could not be arbitrary and that a representative Legislature required no Constitutional limitations on its powers. So said Jefferson:

"...a Bill of Rights is what the people are entitled to against every Government on earth, general or particular."

He also met the usual arguments against the adoption of a Bill of Rights thus:

"The Declaration of Rights, is, like all other human blessings alloyed with some inconvenience and not accomplishing fully its object. But the good in this instance vastly overweighs and evil... Experience proves the inefficacy of a Bill of Rights, True. But though it is not absolutely inefficacious under all circumstances, it is of great potency always and rarely inefficacious... There is a remarkable difference between the characters of the inconveniences which attend a Declaration of Rights and those which attend the want of it. The inconvenience of the Declaration are

___________________

1. French Declaration of the Rights of Man (1791), formulated in 1789.

2. Thomas Paine, “Rights of Man” (1791-92), pp. 42, 44-45 (1958 Everyman Edn.).

3. Article 1, section 9(1).

that it may cramp Government in its useful exertions. But the evil of this is short-lived, moderate and reparable. The inconveniences of the want of a Declaration are permanent, afflicting and irreparable. They are in constant progression from bad to worse. The executive, in our Governments, is not the sole, it is scarcely the principal, object of my jealousy. The tyranny of the legislature is the most formidable dread at present and will be for many years.'1

2.3.14 Natural Rights Transformed into Fundamental Rights Operating as a Constitutional Limitation

The unmistakable direction in which the Americans took a step in advance of the French people in importing the concept of the inalienable natural rights of man into the world of Constitutionalism is that they did not stop at reciting these rights in an ornamental Preamble to the Constitution, but adopted them as a part of the Constitution which could serve as a legal limitation on the powers of each of the organs set-up by the Constitution like any other mandatory part of the organic instrument and would be enforceable by the Courts to invalidate legislative and executive acts that might transgress these inalienable rights.2

Another reason behind the adoption of the Bill of Rights was that if there was a justiciable guarantee of individual rights in a written Constitution, the Judiciary would protect the individuals against their violation by the Legislature and the Executive. Judicial review thus became an inseparable concomitant of Fundamental Rights. In the words of Madison:3

"If they are incorporated into a Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights."2

When, therefore, the States, as a condition for their ratification of the Federal Constitution, insisted on the inclusion of a Bill of Rights, the demand was readily conceded and in the very first Congress, Madison proposed amendments to the text of the Constitution which ultimately led to the Bill of Rights, incorporated in the First Ten Amendments of the Constitution which took place simultaneously in 1791, that is, two years after the Constitution had been brought into force.

Adoption of the First Ten Amendments (1791) as the 'Bill of Rights': It should also be noted that, even after the adoption of the Bill of Rights in the Constitution, the doctrine of natural law and natural rights has wielded a potent force in the United States in safeguarding individual rights and in expanding the Constitution in that behalf. Thus, in United States v. Cruikshank,4 it was said that the right of the people

_________________

1. Dumbauld, Political Writings of Thomas Jefferson, p. 127-29; Jefferson’s Works, Vol. III, p. 4.

2. Board of Education, (1943) 319 US 624 (638).

3. 1 Annals of Congress, 439.

4. United States v. Cruikshank, (1875) 92 US 542; See also Loan Association v. Topeka, (1875) 20 Wall 655 (663).

to assemble peaceably1 existed long before the adoption of the Constitution of the United States and was derived "from those laws whose authority is acknowledged by civilised man throughout the world." Similarly, it has been said, often and often, that the 'Due Process' Clause in the 14th Amendment embodies the 'fundamental conceptions of justice'2 or a 'demand for civilised standards which are not defined by the specifically enumerated guarantees of the Bills of Rights',3 or 'a fundamental fairness essential to the very concept of justice',4 the very substance of individual rights of life, liberty, property'.5

The Due Process Clause has thus come to be treated as an expression of the faith that:

"Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude.5

Fundamental Rights as a limitation on Power: Thus emerged the concept of 'a perpetual charter of inestimable human liberties6 which would serve as a limitation on any Governmental power so that it might not be used tyrannically against the individuals subject to its authority.7 Once this was established, it became the duty of the Courts "to enforce" these "limitations and restraints" against authority.2

Federal Bill of Rights judicially extended to States: Another most noticeable feature of the history of Fundamental Rights in the USA is that, though the Bill of Rights was, in its terms, addressed to the 'Federal Legislature or Government,8 by the use of the words 'Congress shall make no law', the Supreme Court has eventually come to realize that there is no reason why, in principle, the Bill of Rights in the Federal Constitution should not be binding on the States as well. By judicial exposition thus, the First Ten Amendments have been held to be applicable to the States. This conclusion has been reached through the medium of the 14th Amendment (which is applicable to the States), holding that the 'Due Process' Clause in that Amendment includes the rights embodied in the First Ten Amendments.9

______________________

1. First Amendment of the American Constitution; article 19(1) of the Indian Constitution.

2. Twining v. New Jersey, (1908) 211 US 78; Palko v. Connecticut, (1937) 302 US 319.

3. Louisiana v. Resweber, (1947) 329 US 459.

4. Lisenba v. California, (1941) 314 US 219 (236); Hebert v. Louisiana, (1926) 272 US 312 (316);

Rochin v. California, (1952) 342 US 165; Joint Anti-Fascist Refugee Committee v. McGrath, (1951) 341 US 123.

5. Hurtado v. California, (1884) 110 US 516.

6. Map v. Ohio, (1961) 367 US 643 (655).

7. Adamson v. California, (1947) 332 US 46.

8. This was the view taken by the Supreme Court in 1883 (Barron v. Baltimore, (1833) 7 Pet 243).

9. Gitlow v. N.Y., (1925) 268 US 652; Painter v. Texas, (1965) 380 US 400; Duncan v. Louisiana, (1968) 391 US 145 (148); Benton v. Maryland, (1969) 395 US 784.

2.3.15 Post-War Constitutions

There have indeed been some people, mostly British,1 who have questioned the utility of having a Bill of Rights, that is to say, a declaration of Fundamental Rights in a Constitution, but today, that view must be said to have been rejected by the history of world because, if it was utterly useless or futile, almost every written Constitution made since the Constitution of the United States, and more particularly those made since two World Wars, would not have adopted such declarations. Even a representative Legislature is liable to be arbitrary, and it was such painful experience of the American colonists at the hands of the British Parliament itself,2 that led the Americans to adopt a Bill of Rights in their State Constitutions and eventually in the Federal Constitution. The treatment received by the Indians from the British Parliament was not dissimilar and even a Britisher, who was otherwise a staunch advocate of British institutions, acknowledged that in the matter of adoption of Bill of Rights, "the Indian reaction, like the American reaction is, in large measure, a product of the British rule."3

2.4 Human Rights Emanate from Human Needs

Human beings and society fulfill the needs of one another. These needs may be categorized into four basic needs physiological, psychological, social and economic. In fact, we live in a need based society and thus Human Rights emanate from human needs. The relationship of Human Rights with human needs is discussed as under:

2.4.1 Physiological Needs

Physiological needs are must for human survival in this universe. They may include food, clothing, shelter, water and medical care. In order to ensure the right to live, these basic needs must be provided to human beings. Also, they must be provided in proper quantity and quality. That is why all human beings should get a balanced diet, safe water, pollution free atmosphere and comfortable housing facilities so that their life is worth living.

2.4.2 Psychological Needs

Psychological needs are related to the mental makeup of a person. These needs are reflected in terms of achievement, mental satisfaction and feelings of dignity. The mind of a person should be free from worries, anxieties and mental tensions, so that he/she is able to perform his/her best - a musician must make music; an artist must paint; a poet must write if he is to be ultimately happy and contended. A human being must be granted due Human Rights with dignity so that he/she attains self actualization. Hence, in a family situation where one person rebukes his/her spouse, he/she is likely to hurt the dignity of the other. He/she is not caring for the psychological need of his/her spouse and thus violating the Human Right of living with dignity.

___________________________

1. Bentham, Works, Vol. 2, p. 497, 501; Jennings, Some Characteristics of Indian Constitution (1953), pp. 3-4, 48, 54; Wheare, Modern Constitutions, (1960), p. 49.

2. Warren, Congress, the Constitution and the Supreme Court, (1925), p. 81.

3. Ivor Jennings, Some Characteristics of the Indian Constitution, 1953, p. 34.

2.4.3 Social Needs

Social needs relate to the interaction of men, women and children in group situations. A child who needs protection from outside dangers may hide himself/herself in the lap of his/her mother. Similarly a grown up person needs security against anti social elements i.e., robbers, terrorists and cheats etc. Society demands that all human beings should work in a cohesive manner, so that they develop a sense of belonging and identification with their society. That is why every person has the right to be a citizen of his/her country. This Human Right is a corollary to the basic Human Right to live in any part of his/her country and to enjoy all personal, social, political, economic and cultural freedoms. Also, through International Conventions and laws, he/she can travel in any part of the world enjoying his/her basic Human Rights.

2.4.4 Economic Needs

Economic needs are vital for human survival and well being. In the modern society, most of the human needs are met by money, so much so, that money has become the fundamental need of a person. No transaction big or small can take place without the availability of money.1

2.5 Some Important Events which Affected Human Rights Movement

Some important events which have affected the Human Rights movement are as follows:

2.5.1 Renaissance

It is a name given to 'Revival of Learning' which started in Italy and spread throughout Europe in the 15th and 16th centuries. It was greatly helped by the invention of printing press through which precious books were multiplied. As a result, the rights of human beings enunciated in the ancient books to wisdom of Greeks and others were embodied in a State polity and were renovated. These rights infused a feeling of right to live with dignity and self-determination among the masses.

2.5.2 French Revolution (1789)

It was the collapse of an outdated socio-economic order. France was on the verge of financial bankruptcy because of the wars of Louis IV. The intellectual background of the revolution was prepared by the creative works of Voltaire and Rousseau. The French Revolution (1789) stood for 'Liberty, Equality and Fraternity.'

2.5.3 Bolshevik Revolution in Russia (1917)

Since 19th century, the Czar of Russia was ruling with ruthless authority. In 1917, a general strike was called and the army refused to fire on the strikers. In this way, full revolt broke out, Czar Nicholas was abdicated and Russia came under the rule of Bolsheviks. Lenin emerged as the strongman of Russia and he restored the fundamental rights of the citizens particularly the rights of the working class(es) and the proletariat.

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1. Human Rights and Teacher Training, (website: http://www.ncte-in.org/pub/human/ chap1.htm, accessed on 10-01-2004) p. 2.

2.5.4 Industrial Revolution (1930)

As a result of industrial progress, England was turned into a manufacturing country. However, the condition of workers employed in the factories was very deplorable. Their basic rights were being ignored and in 1930, the Government enacted industrial laws and ensured Human Rights to work, to secure proper wages and suitable working conditions.

2.5.5 World War II

The Axis Powers (Germany, Italy and Japan) were defeated by the Allies (England, France, USA and the USSR) in 1945. The war ended when two atom bombs were dropped by America on the two Japanese cities of Hiroshima and Nagasaki on civilian targets. This sent shock waves throughout the world because this was an act against humanity as also against the basic rights of the Japanese citizens to live. Before and during the war, the Nazis under Hitler in Germany and Fascists under Mussolini in Italy had been trampling the rights of the citizens to live with dignity. All these factors led to the establishment of United Nations Organisations in 1945 and the Universal Declaration of Human Rights in 1948.1

3. GENESIS OF HUMAN RIGHTS IN INTERNATIONAL LAW

3.1 Importation of the Concept of Human Rights into the Realm of International Law and World Order

From the 17th century onwards, the philosophy of a higher law and Human Rights derived therefrom assumed another dimension. Until then, it was confined within the bounds of national or municipal law, and other States, or the world at large, was not concerned with the relationship between a State and its own subjects. But in 1650, the Dutch philosopher Grotius, who has rightly been called 'the father of the law of nations', propounded his thesis2 that when the Sovereign of a State persistently trampled upon the basic Human Rights of his subjects, it became an international question. Such an arbitrary ruler, according to Grotius, forfeited his rights as a sovereign under the law of nations, and other nations would be justified to intervene in cases of such gross violation of the law of nature and the law of nations. This thesis had, however, no immediate practical impact because, according to the traditional comity of nations, one State would not interfere in the relationship between another and its own subjects, which was its domestic affair. The utmost that other nations could do in case of a violation of Human Rights by a State was to express their protest.3

3.2 Formation of League of Nations

Some other means had, therefore, to be found to make the collective protest of other nations effective in such an intolerable situation. It was not until the formation of the League of Nations at the end of the First World War that any such concerted action through an international organization could take any tangible shape. At the close of that War, it came to be realized by the Allies, following

_________________

1. Human Rights and Teacher Training, (website: http://www.ncte-in.org/pub/human/ chap1.htm, accessed on 10-01-2004) pp. 5-6.

2. Grotius, De Jure Belli ac Pacis (trans. By Campbell).

3. Durga Das Basu, Human Rights in Constitutional Law, pp. 11-12.

President Wilson, that unless the problem of minorities was effectively solved, it was likely to remain a cause for disturbance of world peace. Hence, in the Peace Treaties which were concluded between the Allied Powers and the new Sates, it was stipulated that the new States would respect the rights of minorities residing within their territories in respect of equality of civil and political rights and protection of life and liberty. When the League of Nations was thereafter formed, it was assigned the task of guaranteeing the Human Rights incorporated in the aforesaid Minority Treaties and of determining disputes regarding them through the Permanent Court of International Justice.1

But, beyond emphasizing that the enforcement of Human Rights was a concern of international law, the League of Nations could not do much that was effective because of the technicalities of the procedure devised. It should also be noted that the machinery founded on the Minority Treaties related only to the rights of minorities; it was not available if the Human Rights belonging to a member of a majority group was violated by the State which bound itself by the treaty. Again, these treaties did not bind States other than those against whom the particular Peace Treaties were binding.1

3.3 Birth of the United Nations

It was with the birth of the United Nations that the Human Rights movement got a momentum in the international sphere. These rights were no longer to be confined to the rights of minorities. There dawned the age of universal Human Rights, such as the rights of life, liberty and equality, which were to be available to all human beings wherever they resided. This objective was already formulated in 1929 by the Institute of International Law, but it came to be given a practical shape only in the Charter of the United Nations in 1945. The widespread oppression during the Nazi regime in Europe accentuated the belief, at the end of the World War II, that protection of Human Rights throughout the world was essential for securing international peace.2 The protection of these minimal conditions of civilized existence, it came to be realized, was the concern not merely of the Nation-States but that of the civilized world as a whole. The obligation of Nation-State conversely, was not merely to its own nationals, but to all persons within its territories for the time being.3

3.4 European Convention

To the European Convention on Human Rights goes the credit of establishing that an individual is capable of being a 'subject' of international law and of having his Human Rights legally enforced through an international tribunal, not only against the Government of his own State, also against other sovereign States.4 This is the contribution of international law to the movement for universalisation of

________________

1. Durga Das Basu, Human Rights in Constitutional Law, p. 8, 2nd Edn.

2. Preamble to the Universal Declaration, International Covenants, European Convention on Human Rights.

3. Concluding words of the Preamble to the Universal Declaration; article 2.1 of the Covenant of 1966; article 1 of the European Convention. The United Nations has, however, no mandatory power [Harris, Cases and Materials on International Law, (1983), 533].

4. Ireland v. U.K., (1978) EHRC (paras, 139-40): (1966) 9 YBECHR 746.

Human Rights. The ideal of Human Rights is no longer confined within the bounds of a National State. These rights are available against the whole world. The view prevalent until the European Convention was that the only subjects in the law of nations were sovereign Nation-States, and that an individual, if he was to seek any remedy, had to seek it through the State to which he belonged. However, under the machinery set-up by the European Commission, an individual who alleges that he has been deprived of his Human Right may directly seek its enforcement against a sovereign State other than the State of which he is a citizen.1

That machinery, in short, is that the aggrieved individual makes an application to the European Commission on Human Rights (set-up under the European Convention) which examines the complaint and reports as to whether there is a prima facie case of breach of the Convention. In the last resort, the complaint goes to the European Court of Human Rights, which gives a judgment (like any other Court) against the offending State which has acceded to the term of Convention (article 46), giving compulsory jurisdiction to the European Court.2 If the Court finds that a right guaranteed by the Convention has been violated by the Respondent State, the Court may award damages or monetary compensation in favour of the Petitioner against the offending State.3 - 4 Ordinarily, the judgment is merely declaratory that the relevant provision of the Convention has been violated by the Respondent State; but even then the aggrieved individual gains by exposing before the world the arbitrary action of the offending State. The likelihood of such exposure may also induce the Respondent State to make an amicable settlement with the complainant by giving him compensation.5

It appears that, between 1955 and 1980, the European Commission registered not less than 9216 individual applications and, in 1983, the figure was 499. Though a majority of these have been rejected as inadmissible on preliminary grounds, the more substantial of them have reached the European Court for decision; the Court has pronounced judgments binding on sovereign States, and has already laid down a respectable mass of case-law, giving authoritative interpretation of the written texts of Human Rights, which will serve as a guide to national Courts in the interpretation of respective national Constitutions embodying similar Fundamental Rights.6

3.5 Development of Human Rights in the U.K.

We have seen that (i) the United Kingdom has no written Constitution, (ii) there is no Constitutional guarantee for Human Rights and (iii) there is no higher

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1. Durga Das Basu, Human Rights in Constitutional Law, pp. 12-13, 2nd Edn.

2. U.K. has accepted this jurisdiction in 1966 [Bailey, Harris and Jones, Civil Liberties (1985), 582].

3. So far judgments of the Court have been complied with by all acceding States, including the U.K.

4. It is a paradox that even though the U.K. has accepted the compulsory jurisdiction of the European Court, its judgments cannot be enforced before a British Court and that it remains a question of policy how far the U.K. should comply with its international obligations [A.G. v. B.B.C., (1980) 3 All ER 161: (1981) AC 303 (354) HL].

5. X v. U.K., (1981) 24 YBECHR 403; A. v. U.K., (1980) 21 DRECHR 5.

6. Durga Das Basu, Human Rights in Constitutional Law, p. 13, 2nd Edn.

law standing above the legislative omni-competence of the British Parliament.1 Consequently, an individual, whose Human Right is encroached upon or taken away by a law made by Parliament, shall have no legal remedy. Even though in the course of history there have been attempts to formulate Human Rights in the form of a written instrument, such as the Magna Carta, 1215, and the Bill of Rights, 1688, these instruments never acquired the status of a written Constitution to override inconsistent laws made by Parliament. At best they stood as beacon lights of liberty to the people and ideals before the Judges of England when interpreting statutes enacted by Parliament. And yet, English Judges and conservative scholars like Dicey2 have always maintained that the Human Rights are, in fact, better protected in the U.K. by a representative Parliament and by Judges having profound regard for the principles of liberty as have been evolved from case to case by the Courts themselves, even though they do not possess any power to invalidate any statute passed by Parliament whatever.3

There are modern scholars, however, who contend4 that, although in normal times of peace the Parliament hardly encroaches upon any human liberty, in times of Emergency, it does encroach upon these liberties in enacting measures such as the Defence of the Realm Acts, and the Judiciary is susceptible to conceding such encroachments made not only by statutes but also by delegated legislation made under the authority of such statutes.5

While the dream of English jurists remains yet unfulfilled, Human Rights have entered into English reports through judgments of the European Court of Human Rights, which are enforced by the Government as a member (since 1966) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953), and which are followed by the English Judges in interpreting the common law rights unless inconsistent with any law of Parliament.6

3.6 Human Right Act, 1998 & 2000 (U.K.)

But notwithstanding the Report of a Parliamentary Committee7 a decade ago, little was done to codify Human Rights in a Bill of Rights. A Bill introduced for the purpose in 1977 (Lord WADE's Bill) remained pending for long8 and ultimately the Human Rights Act, 1998 was enacted, which has taken the shape of Human Rights Act, 2000 (UK).9 The Act represents an unprecedented transfer of political power from the executive and legislature to the judiciary, and a fundamental re-structuring of 'political Constitution'. As such it is unquestionably the most significant formal redistribution of political power in U.K. since 1911 and

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1. Durga Das Basu, Comparative Constitutional Law, pp. 5, 6, 1984.

2. Dicey, Law of the Constitution (10th Edn.), 198ff; Hood Phillips, Constitutional Law (1987), p. 39, 423.

3. Durga Das Basu, Human Rights in Constitutional Law, pp. 13-14, 2nd Edn.

4. Scarman and Zander, English Law, The New Dimension (1974), p. 15.

5. Liversidge v. Anderson, (1942) AC 206.

6. Application v. Falks, (1974) 3 All ER 51 (58); A.G. v. B.B.C., (1980) 3 All ER 161 (176, 183) HL: (1981) AC 303 HL; Garden Cottage Foods Ltd. v. Milk Marketing, (1983) 2 All ER 770 (HL); Brind v. Secy. of State, (1991) LRC (Const) 512 (516, 530) HL.

7. Bailey, Harris and Jones, Civil Liberties (1985), pp. 9, 13.

8. Report of Select Committee on Bill of Rights, (1977-78), HL 176.

9. Durga Das Basu, Human Rights in Constitutional Law, pp. 14-15, 2nd Edn.

perhaps since 1688. The Act, does not incorporate European Convention on Human Rights into domestic law in the way that the European Communities Act, 1972 incorporates the EC Treaty. Rather what it does is to give effect to certain provisions of the Convention and some of its protocols by providing that these so called 'Convention rights' are to have a defined status in English law.1

The effectiveness of Common Law in safeguarding Human Rights is limited. Dicey2 has described the way, the common law provides Constitutional protection to Human Rights.

"The "Rule of Law" lastly may be used as a formula expressing the fact that with us the law of the Constitution, the rules which in foreign countries naturally form part of a Constitutional code, are not the source but the consequence of the rights of the individuals as defined and enforced by the Courts."

Can there be a 'Constitutional right,' there being no written Constitution. In Secretary for Defence v. Guardian Newspapers Ltd.,3 it was observed by Lord Scarman that in such a situation the Constitutional rights, 'more accurately prophesy the direction in which English Law has to move and under the compulsions to which it is now subject than many are yet prepared to accept.' As a result of 'limited entrenchment' Parliamentary sovereignty has been maintained while entrenching Human Rights therein. Thus English law now recognises a whole host of Constitutional rights including:

To the similar effect are the decisions of Indian Supreme Court, whereby a 'liberal interpretation' or a 'positive approach' to the Human Rights has been viewed in the scheme of fundamental rights enshrined in the Constitution of India.1 - 2

4. THE UNITED NATIONS HUMAN RIGHTS INSTRUMENTS

4.1 The Charter of United Nations

The first documentary use of expression 'Human Rights' is to be found in Charter of the United Nations, which was adopted (after the Second World War) at San Francisco on June 25, 1945 and ratified by a majority of its signatories in October that year.

The Preamble of this Charter, which was drawn up to prevent a recurrence of the destruction and suffering caused by the Second World War, by setting up the international organization, called the United Nations, declared that the United Nations shall have for its object, inter alia, "to reaffirm faith in 'fundamental Human Rights'...", and article1 thereafter stated that the 'purposes' of the United Nations shall be, among others,

"to achieve international cooperation.. in promoting and encouraging respect for Human Rights and for fundamental freedoms, for all without distinction as to race, sex, language or religion..."

The U.N. Charter, however, was not a binding instrument,3 and merely stated the ideal which was to be later developed by different agencies and organs.

4.2 Universal Declaration of Human Rights

The first concrete step by way of formulating the various Human Rights was taken by the U.N. General Assembly in December, 1948, by adopting the Universal Declaration of Human Rights. It was intended to be followed by an International Bill of Rights which could be legally biding on the covenanting parties. Of all the international attempts, the Universal Declaration of Human Rights, 1948 has won a place of honour as a basic international code of conduct by which performance in promoting and protecting Human Rights is to be measured. The Preamble4

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1. Sunil Batra v. Delhi Administration, MANU/SC/0184/1978 : (1978) 4 SCC 494: AIR 1978 SC 1675: (1979) 1 SCR 392: 1978 Cr LJ 1741: 1979 SCC (Cri) 155; Francis Coralie Mullin v. Delhi Administration, (1981) 1 SCC 608; Vikram Deo Singh Tomar v. State of Bihar, MANU/SC/0572/1988 : AIR 1988 SC 1782: (1988) Supp SCC 734: (1988) Supp 1 SCR 755: JT 1988 (3) SC 186: 1989 SCC (Cri) 66: (1988) 2 SCALE 325: (1988) 2 UJ (SC) 404: 1989 Cr LR (SC) 750; S.R. Kapoor v. Union of India, AIR 1990 SC 752: (1989) 3 SCC 387: JT 1989 (2) SC 330: (1989) 3 SCALE 1571: (1989) 2 UJ (SC) 119.

2. Sunil Batra II v. Delhi Administration: (1980) 2 SCR 557: (1980) 3 SCC 408: AIR 1980 SC 1579: 1980 Cr LJ 1099: 1980 SCC (Cri) 777; Upendra Baxi (Dr.) v. State of Uttar Pradesh, AIR 1987 SC 191: MANU/SC/0075/1986 : (1986) 4 SCC 106: JT 1986 SC 23: 1986 SCC (Cri) 381: (1986) 3 SCJ 291: (1987) 1 Rent LR 181: MANU/SC/0075/1986 : (1986) 4 SCC 106.

3. Starke, Introduction to International Law, 1984, p. 350.

4. “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for Human Rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human

to the Universal Declaration of Human Rights, 1948 acts as a mirror through which the essence of this instrument could be visualized. It embodies the expectations of humanity as also foundation of freedom, justice, peace and protection (by Rule of Law) against tyranny and oppression. The preamble lays emphasis on equal rights of men, women and children and the need to live with dignity.

4.3 International Covenants of 1966

After all, the Universal Declaration operated merely as a statement of ideals, which was not of the nature of a legally binding Covenant and had no machinery for its enforcement. That deficiency was sought to be removed by the U.N. General Assembly by adopting in December, 1966, two Covenants for the observance of Human Rights-

(a) The Covenant on Civil and Political Rights.

(b) The Covenant on Economic, Social and Cultural Rights.

While the former formulated legally enforceable rights of the individual,1 the latter was addressed to the States to implement them by legislation.2

The two Covenants came into force in December, 1976, after the requisite number of member States (35) ratified the Covenants subsequently,1 numbering 69 at the end of 1981. These covenants are, therefore, legally binding on the ratifying States.

It is highly regrettable that the U.S.A., the model for preparation of the International Covenants on Human Rights, which has also taken so much interest in the internationalization of Human Rights, has not so far ratified the International Covenants of 1966.2

The effect of such ratification is that the ratifying State is obliged to adopt legislative measures to implement the Covenant to ensure the rights proclaimed in the Covenant so that, though the Covenant itself is not part of the domestic law of the ratifying State, the rights embodied in the relevant legislation are enforceable through the domestic Courts.3 The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are together regarded as constituting the International Bill of Rights.4

4.4 European Convention for the Protection of Human Rights

In between the Universal Declaration and the two International Covenants of 1966, a collective implementation of the Universal Declaration was made by a group of States who were members of the council of Europe, by adopting in 1950, a European Convention for the Protection of Human Rights. This Convention is legally binding on those States who have ratified it, i.e., 18 States.5 After such ratification, it came into force in 1953.6

Though people outside Europe are not directly interested in the working of the European convention, it has an important role for the entire world interested in the Constitutional protection of Human Rights, because the Convention had set-up a European Court of Human Rights in 1959. This Court has the function of determining disputes arising from the enforcement of the Convention, and its decisions are pronounced in the form of legal judgments. These decisions involve the interpretation of the text of the convention and are valuable guides in the interpretation of any national Constitution which embodies identical or similar guarantee of Fundamental Rights.6

The increasing impact of European Convention of Human Rights has helped development of law on the subject, much in the UK and appreciably at the

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1. U.K., ratified them in 1976, and India on 10-04-1979. In Canada, it was brought into force on 19-8-1986 [R. v. Big M., (1985) 18 DLR (4d) 31 (333) SCJ].

2. Henkin, Human Dignity, (1979), 19 [Some American courts, however, tend to regard the Human Rights provisions of the Universal Declaration and the International Covenants as representing the basic principles of ‘customary’ international law Filartiga v. Pena-Irala, (1980) 630 F 2d 876].

3. Re Mitchell, (1983) 150 DLR (3d) 449 (461).

4. India and Human Rights, p. vii (Lok Sabha Secretariat, New Delhi, 1998).

5. Austria, Belgium, Cyprus, Denmark, France, Federal Rep. of Germany, Greece, Iceland,

Ireland, Italy, Luxemburg, Malta, Netherlands, Norway, Sweden, Switzerland, Turkey, UK

[Halsbury, 4th Edn., Vol. 18, para. 1620.]

6. Durga Das Basu, Human Rights in Constitutional Law, p. 10, 2nd Edn.

International levels. Since the decision of its first case in Golder (1975)1 the United Kingdom has come up before the Court in admissible cases on 115 occasions2 till June, 2000 and has changed its 11 primary legislations in response to these adverse findings besides administrative measures.3

4.5 The Optional Protocol to the International Covenant on Civil and Political Rights

On 16th December 1966, the United Nations General Assembly adopted a proposal for providing for the possibility of consideration, in the Human Rights Committee of complaints or communications from individuals against State parties. This proposal took the form of the Optional Protocol to the International Covenant on Civil and Political Rights and was adopted on the same day. The Protocol, however, came into force on 23 March, 1976. India has not signed this Optional Protocol.

4.6 The Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty

The Second Optional Protocol aiming at the abolition of death penalty was adopted by the General Assembly on 15 December, 1989, twenty-three years after the International Covenant on Civil and Political Rights was adopted by the General Assembly in 1966. India has not signed even this Optional Protocol.

4.7 The International Convention on the Elimination of All Forms of Racial Discrimination

One of the major international Human Rights instruments drawn up by the United Nations, this Convention provides for the establishment of a monitoring and follow up mechanism, and was adopted on 21 December, 1965.

4.8 The Convention on the Rights of the Child

The adoption of the Convention on the Rights of the Child on 20th November, 1989 was the culmination of a long standing United Nations concern for this aspect of Human Rights.

4.9 The Convention on the Elimination of All Forms of Discrimination Against Women

The Convention was adopted and opened for signature, ratification and accession by the United Nations General Assembly Resolution of 18 December, 1979. It came into force on 3 September, 1981.

4.10 The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment

Adopted on 10 December, 1984 by the UN General Assembly, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

____________

1. (1975) 1 EHRR 524.

2. See ‘Table of Admissible UK Cases before the European Court of Human Rights’, in The

Law of Human Rights by Richard Clayton and Hugh Tomlinson.

3. R. Churchill and Young, ‘Compliance with Judgments of the European Court of Human

Rights and Decisions of the Committee of Ministers: The experience of the United

Kingdom’, (1975-1987) in British Yearbook of International Law.

imposes on States Parties the obligation to make torture a crime and to prosecute and punish those found guilty of it. This Convention is yet to be ratified by India.

The above mentioned International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment constitute the six core Conventions.1

4.11 The International Convention on the Suppression and Punishment of the Crime of Apartheid

Adopted on 30th November, 1973, the International Convention on the Suppression and Punishment of the Crime of Apartheid came into force on 18 July, 1976. It is monitored by a group of three members of the Commission on Human Rights, who are also representatives of States Parties to the Convention.

4.12 The International Convention against Apartheid in Sports

The International Convention against Apartheid in Sports, which resolved to adopt all necessary measures to eradicate the practice of apartheid in sports, was adopted on 10th December, 1985.

4.13 The Convention on the Prevention and Punishment of the Crime of Genocide

On 9 December, 1948, the General Assembly approved the Convention on the Prevention and Punishment of the Crime of Genocide and it came into force on 12th January, 1951.

4.14 The Convention of the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity

The Resolution for the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity was adopted by the General Assembly on 26th November, 1968.

4.15 The Convention on the Political Rights of Women

One of the important international instruments which accorded due status to women as far as Political Rights were concerned, the Convention on the Political Rights of Women was adopted by the General Assembly on 20th December, 1952.

4.16 The Convention on the Nationality of Married Women

The Convention on the Nationality of Married Women was adopted by the General Assembly on 29th January, 1957 and it came into force on 11th August, 1958. This is yet to be ratified by India.

4.17 The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others

The General Assembly of the United Nations approved the resolution relating to the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others on 2nd December, 1949 and it came into force on 25th July, 1951.

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1. India and Human Rights, p. vii (Lok Sabha Secretariat, New Delhi, 1998).

4.18 The Slavery Convention, 1926

Signed at Geneva on 25th September, 1926, the Slavery Convention adopted by the States Members of the League of Nations came into force on 9th March, 1927.

4.19 The Protocol amending the Slavery Convention of 1926

The Slavery Convention of 1926 was amended by the Protocol of the United Nations approved by the General Assembly on 23rd October, 1953. The amended Convention came into force on 7th December, 1953.

4.20 The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery

Adopted by a Conference of Plenipotentiaries convened by the Economic and Social Council Resolution1, and done at Geneva on 7th September, 1956, the Supplementary Convention on the Abolition of Slavery, The slave Trade and Institutions and Practices similar to Slavery came into force on 30th April, 1957.

4.21 American Convention on Human Rights, 1969

The precedent of forming a group machinery for the enforcement of Human Rights in Europe has been taken up by the States of Latin America which formed the Organisation of American States. This Organization adopted in 1969 the Convention on Human Rights, the obligations of which are binding on the parties to the Convention. The Organisation also set-up the Inter-American Commission on Human Rights, the object of which is the promotion of respect for the Human Rights which were declared in the American Declaration of the Rights and Duties of Man, 19482.

5. HUMAN RIGHTS MOVEMENT IN INDIA

In India, the concept of Human Rights stretches back to the age of the Vedas, the Puranas and the various Epics. The pivotal position of the individual citizen has been an inherent component of various religious philosophies that have flourished in this land since time immemorial. The Constitution makers of free India reflected this primacy while handing down to us our Constitution under which we have practised democracy for half a century. Accordingly, many of the basic Human Rights find expression in the Preamble to the Constitution, justice-social, economic and political; liberty of thought, expression, belief, faith and worship; and equality of status and of opportunity. Several Human Rights related Commissions and Committees have also been set-up and functioning over the years. Our Parliament has also been the instrument of social change, having enacted several laws safeguarding the interests of the deprived, the downtrodden and the weaker sections of society3. A survey of historical documents and related institutions pertaining to Human Rights would show how the Human Rights movement gained momentum in India.

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1. Resolution 608 (XXl) of 30 April, 1956.

2. Durga Das Basu, Human Rights in Constitutional Law, pp. 10-11, 2nd Edn.

3. India and Human Rights (Lok Sabha Secretariat, New Delhi, 1998).

5.1 Historical Documents

The expression of concept of Human Rights in India for the first time is seen in the "Resolution" adopted by the Indian National Congress at its Forty-fifth Session, which was subsequently followed and expanded in other documents, as mentioned below.

5.1.1 Fundamental Rights and Economic Programme

During the struggle for Independence, the leaders of the National Movement sought to stress the primacy of Human Rights in our future Constitutional set-up. Accordingly the Indian National Congress adopted a resolution at its Forty-fifth Session1, vide which, in order to end the exploitation of the masses, it was resolved that political freedom must include real economic freedom of the starving millions and therefore declared that any Constitution which may be agreed to on its behalf should provide, or enable the Swaraj Government to provide, for the fundamental rights, besides other privileges.2

5.1.2 Objective Resolution

The Constituent Assembly which was set-up in 1946 according to the Cabinet Mission Plan was not a sovereign body. Its authority was limited both in respect of the basic principles and procedure. The Indian Independence Act, 1947, established the sovereign character of the Constituent Assembly which became free of all limitations. The method which the Constituent Assembly adopted in making the Constitution was first to lay down its objectives. This was done in the form of an Objective Resolution moved by Pandit Nehru. The Objective Resolution, which was unanimously adopted3 by the Constituent Assembly of India, reflects the respect given to the concept of Human Rights by our Constitution makers. The Constituent Assembly declared its firm and solemn resolve to proclaim India as an Independent, Sovereign, Republic and to draw up for her future governance a Constitution, wherein shall be guaranteed and secured to all the people of India: justice, social, economic and political, equality of status, of opportunity, before the law, freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality.4

5.1.3 The Constitution of India

Drafting of the Indian Constitution coincided with the Human Rights movement in the international sphere, when Charter of the United Nations was signed in San Francisco.5 Therefore primacy of Human Rights is eloquently depicted in our Constitution, which can be seen from the study of its following portions.

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1. Adopted at Karachi from 29 to 31 March, 1931.

2. India and Human Rights (Lok Sabha Secretariat, New Delhi, 1998).

3. On 13 December, 1946, Pandit Jawaharlal Nehru moved the Objectives Resolution, which was unanimously adopted by the Constituent Assembly on 22 January, 1947.

4. India and Human Rights, p. 3 (Lok Sabha Secretariat, New Delhi, 1998).

5. The Charter of the United Nations was signed in San Francisco on 26th June, 1945 and it came into effect from 24th October, 1945.

Preamble.-

The preamble sets out the main objects of the Constitution; the objects which the Constitution-makers intended to be realized through it.1 It is the key to open the mind of the Constitution-makers.2 The preamble is a legitimate aid in the construction of the provisions of the Constitution. The framers of the Constitution set out two purposes in the preamble. First, to constitute India into a Sovereign Democratic Republic. Second, to secure to citizens justice: social, economic, and political; liberty of thought, expression, faith and worship; equality of status and opportunity; and to promote among the people of India fraternity, assuring dignity of the individual and the unity and integrity of the nation.3 Although the expressions, 'justice', 'equality', and 'fraternity', may not be susceptible to exact definitions, yet they are not mere platitudes. They are given content by the enacting provisions of the Constitution particularly by the fundamental rights and the Directive Principles of State Policy.4 Thus, the preamble declares the great rights and freedom which the people of India intended to secure to all citizens and the basic type of government and polity which was to be established.5

Fundamental Rights.-

The Constitution declares certain fundamental rights6 of the individual. Some of these can only be claimed by a citizen of India; others apply equally to non-citizens also. A fundamental right, as defined in the Constitution, differs from a non-fundamental right in one vital respect; a fundamental right (subject to the qualifications defined in the Constitution itself) is inviolable, whereas a non-fundamental right possesses no such characteristic. It is inviolable in the sense that no law, Ordinance, custom, usage or administrative order can abridge or take away a fundamental right. A law which violates any of the fundamental rights is void. They are binding on the Legislature as well as the Executive. A fundamental right can not be taken away even by a Constitutional amendment if it forms the basic structure of the Constitution.7 These fundamental rights include right to equality,8 right to freedom,9

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1. “The Preamble contains in a nutshell its ideals and its aspirations,” per Subha Rao, C.J.

in L.C. Golak Nath v. State of Punjab, MANU/SC/0029/1967 : AIR 1967 SC 1643 (1655): (1967) 2 SCR 762: 1967

SLR 301.

2. Berubari Union and Exchange of Enclaves, Re, MANU/SC/0049/1960 : AIR 1960 SC 845 (856): (1960) 3 SCR 250:

1960 SCJ 933.

3. On the concept of dignity see Govind Mishra, ‘The Concept of Human Dignity and the

Constitution of India’, in M.P. Singh (Edn.), Comparative Constitutional Law, p. 353

(1989).

4. B. Sivaramayya, ‘Reflections on the Preamble of the Constitution’, XVII Indian Bar Review,

p. 32 (1990); Peter Sack, ‘Legal Technology and Quest for Fraternity: Reflections on

Preamble of Indian Constitution’, 32 Journal of Indian Law Institute, p. 294 (1990).

5. Kesavananda Bharti Sripadgalvaru v. State of Kerala, MANU/SC/0445/1973 : (1973) 4 SCC 225: AIR 1973 SC 1461:

(1973) Supp SCR 1; per Shelat and Grover, JJ. at p. 424, 425; contra see Mathew, J. at

p. 845, Beg. J. at p. 904.

6. Part III of the Constitution.

7. V.N. Shukla’s, M.P. Singh (Ed.), Constitution of India, p. A-43, 9th Edn.

8. Articles 14 to 18.

9. Article 19.

protection in respect of conviction for offences,1 right to life and liberty,2 protection against arrest and detention,3 right against exploitation,4 right to freedom of religion,5 cultural and educational rights6 and right to Constitutional remedy for enforcement of fundamental rights.7

Directive Principles of State Policy.-

Part IV (Articles 37 to 51) contains what may be described as the active obligations of the State. The State shall secure a social order in which social, economic and political justice shall inform all the institutions of national life. Wealth and its source of production shall not be concentrated in the hands of the few but shall be distributed so as to subserve the common good, and there shall be adequate means of livelihood for all and equal pay for equal work. The State shall endeavour to secure the health and strength of workers, the right to work, to education and to assistance in cases of want, just and humane conditions of work and living wage for workers, a uniform civil code, and free and compulsory education for children. The State shall take steps to organize village panchayats, promote the educational and economic interests of the weaker sections of the people, raise the level of nutrition and standard of living, improve public health, organize agricultural and animal husbandry, separate the judiciary from the executive and promote international peace and security. The Directive Principles of State Policy detailed in articles 37 to 51 of the Constitution possess two characteristics. Firstly, they are not enforceable in any Court and therefore, if a directive is not obeyed or implemented by the State, its obedience or implementation cannot be secured through judicial proceedings. Secondly, they are fundamental in the governance of the country, and it shall be the duty of the State to apply these principles in making laws. The expression 'laws' must be construed in a generic sense and should include all normative exercise of power including the decision making.8

We have seen in the earlier chapter pertaining to 'Judicial Activism in Relation to Rights of Accused' that the Supreme Court of India, by way of judicial activism, while expanding the scope of article 21 of the Constitution declared the right to education,9 the right to shelter,10 and the right to childhood11 as being part of the

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1. Article 20.

2. Article 21.

3. Article 22.

4. Articles 23 and 24.

5. Articles 25 to 28.

6. Articles 29 to 31C.

7. Articles 32 to 35.

8. V.N. Shukla’s, M.P. Singh (Ed.), Constitution of India, pp. 297-298, 9th Edn.

9. Unni Krishnan v. State of Andhra Pradesh, MANU/SC/0333/1993 : (1993) 1 SCC 645: AIR 1993 SC 2178: (1993)

1 SCR 594: JT 1993 (1) SC 474: (1993) 1 SCALE 290: (1993) 1 UJ (SC) 721: (1993) 1

SLR 743.

10. Olga Tellis v. Bombay Municipal Corporation, MANU/SC/0039/1985 : AIR 1986 SC 180: (1985) 3 SCC 545: (1985)

Supp 2 SCR 51: 1986 Cr LR (SC) 23: (1985) 2 SCALE 5: 1986 Cr LR (SC) 42.

11. M.C. Mehta v. State of Tamil Nadu, MANU/SC/0169/1997 : (1996) 6 SCC 756: AIR 1997 SC 699: (1996) 9 SCALE

42: (1997) 1 UJ (SC) 243: 1997 (1) LLN 12.

fundamental rights to life and personal liberty. Thus the Court, by incorporating them within the fundamental rights to life and personal liberty, made them enforceable.1 Hence it has created a new category of non-enforceable fundamental rights.

Fundamental Duties.-

The fundamental duties,2 which were added by the Forty-second Amendment of the Constitution in 1976, in addition to creating and promoting a culture, also strengthen the hands of the legislature in enforcing these duties vis-a-vis the fundamental rights. Since the duties are imposed upon the citizen and not upon the State, legislation is necessary for their implementation. For example, mandamus cannot be sought against an individual who does not observe his duties under this article.3 With respect to the duty to abide by the Constitution and respect its ideal and institution, the National Flag and the National Anthem,4 it has been held that "proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing."5

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1. Akhil Bhartiya Soshit Karamchari Sangh v. Union of India, MANU/SC/0058/1980 : (1981) 1 SCC 246: AIR 1981 SC

298: (1981) 2 SCR 185: 1980 SCJ 734: (1981) 1 LLJ 209: (1980) 3 SLR 645; Uttar Pradesh

State Electricity Board (UPSEB) v. Hari Shankar Jain, MANU/SC/0500/1978 : (1978) 4 SCC 16: AIR 1979 SC 65:

(1979) 1 SCR 355: (1978) 2 LLJ 399: 1978 UJ (SC) 659: (1978) 2 LLN 514; Bandhua Mukti

Morcha v. Union of India, MANU/SC/0051/1983 : (1984) 3 SCC 161: AIR 1984 SC 802: (1984) 2 SCR 67: 1984

Cr LR (SC) 517: (1983) 2 SCALE 1151: (1984) 2 LLN 60; Unni Krishnan v. State of

Andhra Pradesh, MANU/SC/0333/1993 : (1993) 1 SCC 645: AIR 1993 SC 2178: (1993) 1 SCR 594: JT 1993 (1)

SC 474: (1993) 1 SLR 743: (1993) 1 SCALE 290: (1993) 1 UJ (SC) 721: 1993 AIR SCW

863.

2. 51A. Fundamental Duties.—It shall be the duty of every citizen of India—

(a) To abide by the Constitution and respect its ideals and institutions, the National Flag

and the National Anthem;

(b) To cherish and follow the noble ideals which inspired our national struggle for

freedom;

(c) To uphold and protect the sovereignty, unity and integrity of India;

(d) To defend the country and render national service when called upon to do so;

(e) To promote harmony and the spirit of common brotherhood amongst all the people

of India transcending religious, linguistic and regional or sectional diversities; to

renounce practices derogatory to the dignity of women;

(f) To value and preserve the rich heritage of our composite culture;

(g) To protect and improve the natural environment including forests, lakes, rivers and

wild life, and to have compassion for living creatures;

(h) To develop the scientific temper, humanism and the spirit of inquiry and

reform;

(i) To safeguard public property and to abjure violence;

(j) To strive towards excellence in all spheres of individual and collective activity so that

the nation constantly rises to higher levels of endeavour and achievement.

3. Rattan Singh v. State of Punjab, MANU/SC/0696/1981 : (1981) 4 SCC 481: AIR 1982 SC 1: 1982 Cr LJ 146: 1981

SCC (Cri) 853: (1982) 1 SCJ 164: (1982) 1 SCR 1010.

4. Clause (a).

5. Bijoe Emmanuel v. State of Kerala, MANU/SC/0061/1986 : (1986) 3 SCC 615: AIR 1987 SC 748 (752): (1986) 3 SCR

518: JT 1986 SC 115: (1986) 2 SCALE 217.

5.1.4 The Protection of Civil Rights Act, 1955

The Act1 has been passed to prescribe punishment for the preaching and practice of 'Untouchability', for the enforcement of any disability arising therefrom and for matters connected therewith.2

5.1.5 The Protection of Human Rights Act, 1993

The Act3 was passed to provide for the Constitution of a 'National Human Rights Commission', 'State Human Rights Commission' in States and Human Rights Courts for better protection of Human Rights and for matters connected therewith or incidental thereto.2

The National Human Rights Commission (NHRC).-

Constituted under the Protection of Human Rights Act, 1993, it has been assigned various functions for the protection of Human Rights in the country viz., it shall inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of violation of Human Rights or abetment thereof or negligence in the prevention of such violation, by a public servant; intervene in any proceeding involving any allegation of violation of Human Rights pending before a Court with the approval of such Court; visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon; review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of Human Rights and recommend measures for their effective implementation; review the factors, including acts of terrorism, that inhibit the enjoyment of Human Rights and recommend appropriate remedial measures; study treaties and other international instruments on Human Rights and make recommendations for their effective implementation; undertake and promote research in the field of Human Rights; spread Human Rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means; encourage the efforts of the non-governmental organisations and institutions working in the field of Human Rights; such other functions as it may consider necessary for the promotion of Human Rights.4 Accordingly, for the purpose of enabling the Commission to inquire into the complaints under the Act, it has been vested with all the powers of a civil Court trying a suit under the Code of Civil Procedure.5

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1. The Untouchability (Offences) Bill was passed by the Lok Sabha and the Rajya Sabha on

28th April, 1955. It received the President’s assent on 8th May, 1955. Certain amendments

were carried out in the Act vide the Untouchability (Offences) Amendment and

Miscellaneous Provisions Act, 1976 which came into force with effect from 19th November,

1976. The Act, inter alia, amended section 1 of the Principal Act, replacing the words “the

Untouchability (Offences) Act” with the words “the Protection of Civil Rights Act”.

2. See ‘Preamble’ of the Act.

3. The Protection of Human Rights Bill was passed by the Lok Sabha and the Rajya Sabha

on 18th and 22nd December, 1993, respectively. It received the President’s assent on 8th

January, 1994.

4. Section 12.

5. Section 13.

The Commission examines complaints of violation of Human Rights, i.e., violation of Human Rights relating to rights to life, liberty and equality and dignity of any individual as defined in the Constitution and also embodied in the International Covenants and also examines if such violation is caused by negligence of the public servant while discharging his duties of prevention of such violation. The Commission acts and considers/examines complaints under relevant provisions as defined under Part III of the Constitution of India regarding right to equality, life, liberty and dignity and also under Acts/rules enacted by the State under Part IV of Directive Principles of State Policy regarding provision of the law for the protection of right to equality, life and liberty and dignity and also the provision of the International Covenants which are enforceable by the Courts in India. Besides, in order to discharge its functions of inquiry and investigations, relevant provisions of the Code of Criminal Procedure, 1973 i.e., General Provisions of inquiry and trials, recording of statements, summoning of witnesses, examining of documents, etc., along with relevant provisions of the Evidence Act and various Acts enacted by the States for regularising the conduct of the police, protection of Human Rights and violation thereof are applied. Thus, not only specific provisions of law but also provisions of law in general which are covered for the protection of Human Rights violations as detailed above have been used, besides writ jurisdiction under the Constitution of India for writs filed in the Supreme Court1 and for writs filed before High Courts2 for issuance of the directions to follow the recommendations based on inquiry, etc.

However, according to Justice V.R. Krishna Iyer, the NHRC is prestigious but powerless, which has done an excellent job far beyond its limited statutory capabilities. If more powers were given to bite, not merely to bark, the NHRC would be a boon to victims of the violations which are on the increase.3

Special Institutions set-up under Acts of Parliament.-

To give expression to the rights guaranteed in the Constitution of India and various other statues the under mentioned Commissions have been created.

The National Commission for Scheduled Castes and Scheduled Tribes: Over the years, several special institutions have been created in India with a view to protecting and promoting the interests and concerns of the disadvantaged and weaker sections of the society. In 1950, a special officer designated as the Commissioner for Scheduled Castes and Scheduled Tribes was appointed under the Constitution4 to investigate all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes. Subsequently, it was felt that instead of a single Special Officer, a high-level five member Commission would be a more effective arrangement and accordingly in 1990 the National Commission for Scheduled Castes and Scheduled Tribes was constituted for the protection, welfare, socio-economic development and advancement of the Scheduled Castes and Scheduled Tribes.

_________________

1. Article 32 of Constitution of India.

2. Article 226 of Constitution of India.

3. V.R. Krishna Iyer, The Dialectics and Dynamics of Human Rights in India (Yesterday,

Today and Tomorrow), pp. 312-313.

4. Article 338.

The National Commission for Women: Under the National Commission for Women Act, 1990,1 the National Commission for Women was constituted, to investigate and examine the matters relating to the safeguards provided for women under the Constitution and other laws;2 to take up the cases of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities;3 to look into complaints and take suo motu notice of matters relating to deprivation of women's rights, non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development, non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women, and take up the issues arising out of such matters with appropriate authorities.4

The National Commission for Minorities: Under the National Commission for Minorities Act, 19925 the National Commission for Minorities was constituted to evaluate the progress of the development of minorities under the Union and States;6 monitor the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the State Legislatures;7 look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate authorities.8

The National Commission for Backward Classes: Under the National Commission for Backward Classes Act, 1993,9 the National Commission for Backward Classes was constituted to examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate.10

Parliamentary Committees.-

The Primary function of Parliament in a modern democracy is to represent the people. In recent decades, emphasis has shifted more and more to the representational and grievance ventilation role of Parliament.11

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1. The National Commission for Women Bill was passed by the Lok Sabha and the Rajya

Sabha on 9th and 23rd August, 1990 respectively. It received the President’s assent on

30th August, 1990.

2. Section 10(a).

3. Section 10(e).

4. Section 10(f).

5. The National Commission for Minorities Bill was passed by the Lok Sabha and Rajya

Sabha on 12th and 14th May, 1992 respectively and was assented to by the President on

17th May, 1992. The Government notified Muslims, Christians, Sikhs, Buddhists and

Zoroastrians (Parsis) as Minority Communities on 23rd October, 1993.

6. Section 9(a).

7. Section 9(b).

8. Section 9(d).

9. The National Commission for Backward Classes Bill was passed by the Lok Sabha and

the Rajya Sabha on 13th and 14th May, 1993, respectively, and received the President’s

assent on 9th June, 1999.

10. Section 9(1).

11. India and Human Rights, p. 65 (Lok Sabha Secretariat, New Delhi, 1998).

The under mentioned three Parliamentary Committees seek, among other things, to protect and promote Human Rights in general and the interests of the weaker sections in particular.

Committee on Petitions:

Committee on Petitions (Lok Sabha): The Committee on Petitions is one of the oldest Committees of the House.1

The Committee on Petitions serves two principal objects:

(i) to study the merits of the public matter to which the petition seeks to invite the attention of the House; and

(ii) to stress the quantum of importance which the public outside will give to the matter.

Thus, the Committee on Petitions, consisting of not less than 15 members, functions as an important link in bringing to the notice of the House public opinion on several matters of public importance, including Bills. However, the Committee has no right to sit in judgment over the acts of the executive or act as revising chamber. It is an effective instrument of redressing public grievances against acts of omission/commission by Government Departments.

The subject-matter of a Petition may deal2 with any matter on:

(i) a Bill which has been published under rule 64 or which has been introduced in the House;

(ii) any matter connected with the business pending before the House; and

(iii) any matter of general public interest provided that it is not one:

(a) which falls within the cognizance of a Court of law having jurisdiction in any part of India or a Court of enquiry or a statutory tribunal or authority or a quasi-judicial body; or a commission;

(b) which should ordinarily be raised in a State Legislature;

(c) which can be raised on a substantive motion of resolution; or

(d) for which remedy is available under the law, including rules, regulations, bye-laws made by the Government of India or an authority to whom power to make such rules, regulations, etc., is delegated.

The Committee on Petitions do not enquire into cases of criminal intent or which fall into the category of law and order as such matters are beyond the purview of the Committee. However, cases which are of general public interest and may involve violation of Human Rights and are covered within the ambit of rules relating to the Committee are considered by it.

It can be said that though there is no exclusive rule to have jurisdiction of petitions to cover any of the Human Rights aspects, if a petition is based on the

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1. The Committee on Public Petitions was constituted on 20th February, 1924; in 1933, its

name was changed to the Committee on Petitions.

2. As per rule 160 of the Rules of Procedure and Conduct of Business in Lok Sabha.

rules as mentioned above and also covers Human Rights, it can be considered, while remaining within the rules.1

Committee on Petitions (Rajya Sabha): The Rajya Sabha also has a Committee on Petitions consisting of ten members. Petitions may be presented or submitted to the Council of States (Rajya Sabha) with the consent of the Chairman in accordance with the rules.

As per rule 138 of the Procedure and Conduct of Business in the Council of States, petitions may relate to:

(i) a Bill which has been published2 or which has been introduced or in respect of which notice of a motion has been received under the rules;

(ii) any other matter connected with the business pending before the council; and

(iii) any matter of general public interest provided that it is not one:

(a) which falls within the cognizance of a Court of law having jurisdiction in any part of India or a Court of Enquiry or a statutory tribunal or, authority or a quasi-judicial body; or commission;

(b) which raises matters which are not primarily the concern of the Government of India;

(c) which can be raised on a substantive motion of resolution; or

(d) for which remedy is available under the law, including rules, regulations or bye-laws made by the Central Government or by an authority to whom power to make such rules, regulations or bye-laws is delegated.3

Committee on the Welfare of Scheduled Castes and Scheduled Tribes: Rules of Procedure and Conduct of Business4 in Lok Sabha provide that there shall be a Committee on the Welfare of Scheduled Castes and Scheduled Tribes. The functions of the Committee shall be-

(a) to consider the reports submitted by the Commissioner for Scheduled Castes and Scheduled Tribes under article 338(2) of the Constitution and to report as to the measures that should be taken by the Union Government in respect of matters within the purview of the Union Government including the Administrations of the Union Territories;

(b) to report on the action taken by the Union Government and the Administrations of the Union Territories on the measures proposed by the Committee;

(c) to examine the measures taken by the Union Government to secure the representation of the Scheduled Castes and Scheduled Tribes in services and posts under its control (including appointments in the Public Service

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1. India and Human Rights, p. 66 (Lok Sabha Secretariat, New Delhi, 1998).

2. Under rule 61.

3. India and Human Rights, p. 67 (Lok Sabha Secretariat, New Delhi, 1998).

4. Rule 331A.

Undertakings, Statutory and Semi-Government Bodies and in the Union Territories);1

(d) to report on the working of the Welfare Programmes for the Scheduled Castes and the Scheduled Tribes in the Union Territories; and

(e) to examine such other matters as may seem fit to the Committee or are specifically referred to it by the House or the Speaker.2

Committee on the Empowerment of Women: With a view to securing, among other things, status, dignity and equality for all women in all fields, a Joint Committee of Parliament was constituted on 29th April, 1997 to look into these aspects. The Rules3 of Procedure and Conduct of Business in Lok Sabha provide in detail the Constitution and functions of this Committee. The functions of the Committee include, amongst other things, to consider the reports submitted by the National Commission for Women and to report on the measures that should be taken by the Union Government for improving the status/conditions of women in respect of matters within the purview of the Union Government including the Administrations of the Union Territories;4 to examine the measures taken by the Union Government to secure for women equality, status and dignity in all matters;5 to examine the measures taken by the Union Government for comprehensive education and adequate representation of women in Legislative bodies/services and other fields.6

Constitutional and Legal Provisions for Protection of Human Rights in India.-

The relevant provisions7 are as under.

(a) Relevant provisions in the Constitution of India:

(i) Power of President to grant pardons, etc., and to suspend, remit or commute sentence in certain cases: The article 72 defines the power of the President to grant pardons, reprieves, etc., for offences in certain cases.

o Pardon is an act of grace: It cannot be demanded as a matter of right. A pardon not only removes the punishment but, in contemplation of law, places the offender in the same position as if he had never committed the offence. The effect of a pardon is set out in the following words by Field, J:

"A pardon reaches both the punishment prescribed for the offences and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out the existence of the guilt, so that in the eye of the law the offender is an innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil 

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1. Having regard to the provisions of article 335.

2. India and Human Rights, p. 68 (Lok Sabha Secretariat, New Delhi, 1998).

3. Rules 331-O and 331P.

4. Rule 331P(2).

5. Rule 331P(3).

6. Rule 331P(4).

7. India and Human Rights, p. 70-96 (Lok Sabha Secretariat, New Delhi, 1998).

rights; it makes him, as it were, a new man, and give him a new credit and capacity."1

A pardon may be absolute or conditional. A pardon is conditional where it does not become operative until the grantee has performed some specified act, or where it becomes void when some specified event happens.2

o Granting of pardons is an executive act: From the fact that the granting of pardons is an executive act and not a judicial act, it follows that the exercise of this power would not in any way alter the judgment of the Court qua judgment, and that the exercise of such right would not in any way interfere with the course of justice and that the Courts are free to adjudicate upon the guilt or otherwise of the person concerned.3 It carries with it the lesser powers, for the President can also grant the following-

(i) reprieves, i.e., a temporary suspension of the punishment fixed by law;

(ii) respites, i.e., postponement to the future the execution of a sentence;

(iii) commutation, i.e., changing a punishment to one of a different sort than that ordinarily proposed; and

(iii) remission, i.e., reduce the amount of punishment without changing the character of punishment.4

o Scope of the power: The scope of the power of the President, particularly to commute a death sentence into a lesser sentence has been left open by the Court after observing that whether a "case is appropriate for the exercise of power conferred by article 72 depends upon the facts and circumstances of each particular case." The Court also observed that this power can be exercised only to reduce and not to enhance the sentence. However, the constraints subject to which this power has to be exercised, have not yet been judicially laid down.5

Rather declining to lay down any guidelines for the exercise of this power in Kehar Singh v. Union of India6 the Court has unanimously held:

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1. Ex. parte Garland, (1873) 18 L Ed 366.

2. V.N. Shukla’s, M.P. Singh (Ed.), Constitution of India, p. 334, 9th Edn.

3. Re, Channugadu, MANU/TN/0394/1954 : AIR 1954 Mad 911 (917): ILR 1955 Mad 92: 1954 Cr LJ 1370.

4. Kesavananda Bharti Sripadgalvaru v. State of Kerala, MANU/SC/0445/1973 : AIR 1973 SC 1461: (1973) Supp SCR

1: MANU/SC/0445/1973 : (1973) 4 SCC 225; per Shelat and Grover, JJ at p. 335- 425; contra see Mathew, J. at p. 335.

5. Kuljit Singh v. Lt. Governor of Delhi, MANU/SC/0221/1982 : (1982) 1 SCC 417: AIR 1982 SC 774: (1982) 3 SCR 58: 1982 Cr LR (SC) 59: 1982 SCC (Cri) 234: 1982 Cr LJ 624: (1982) 1 SCALE 1; Kehar Singh v. State (Delhi Admn), MANU/SC/0241/1988 : (1988) 3 SCC 609: AIR 1988 SC 1883: JT 1988 (3) SC 191: 1989 Cr LJ 1: 1988 Cr LR (SC) 536: 1988 SCC (Cri) 711: (1988) 2 SCALE 117: (1988) Supp 2 SCR 24.

6. MANU/SC/0240/1988 : (1989) 1 SCC 204: AIR 1989 SC 653: JT 1988 (4) SC 693: 1989 Cr LJ 941: (1989) 1 Crimes 238: 1989 SCC (Cri) 86: (1988) 2 SCALE 1565: 1989 Cr LR (SC) 112: (1988) Supp 3 SCR 1102.

"It seems to us that there is sufficient indication in the terms of article 72 and in the history of the power enshrined in that provision as well as existing case-law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under article 72 is of the widest amplitude, can contemplate myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time."1

In the same case the Court also held that the President's power is of executive character and the petitioner (condemned person) has no right to insist on an oral hearing before the President.2 But the Court has reiterated that the scope of article 72 is judicially determinable and the President was not right in rejecting Kehar Singh's petition on the ground that he could not go into the merits of his conviction by the Courts. Speaking for the Court Pathak, Chief Justice said: "We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court."3 Recently in a case4 dealing with the provision5 relating to power of the Governor, which is in pari materia with that of President's power, granting pardon to a convict in a murder case held that the said power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under article 161 of the Constitution of India if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in the question is mala fide one or the Governor has passed the order on some extraneous consideration.6

(ii) Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases: Under article 161, the Governor has the power to grant pardon etc., and to suspend, remit or commute the sentence of any person convicted of any offence against any law "relating to a matter to which the executive power of the State extends". The executive power of the State extends to matters with respect to which the legislature of the State has power to make laws"7. Power of the President to grant pardon etc., can be reconciled with the power of Governor by limiting the Governor's power to grant pardons to cases not covered by the power of the President.

(iii) Power of the Courts to issue certain writs: Under the Constitution the High Court as well as the Supreme Court of India has been empowered to issue certain writs for the enforcement of fundamental rights.

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1. MANU/SC/0240/1988 : (1989) 1 SCC 204 (217-218).

2. MANU/SC/0240/1988 : (1989) 1 SCC 204 (217).

3. MANU/SC/0240/1988 : (1989) 1 SCC 204 (214).

4. Satpal v. State of Haryana, AIR 2000 SC 1702: 2000 Cr LJ 2297: (2000) 5 SCC 170: (2000) SRJ 474: (2000) 4 SCALE 135: 2000 SCC (Cri) 920: JT 2000 (5) SC 566: (2000) 2 Crimes 239: 2000 (2) JCC (SC) 571.

5. Article 161 of the Constitution of India.

6. Para 4.

7. Article 162.

o Power of the Supreme Court: Article 32 of the Constitution gives the Supreme Court very wide discretion in the matter of framing writs to suit the exigencies of particular cases and the application of the petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for.1

This article describes the last of the seven groups of fundamental rights. Unlike other rights, it is remedial and not substantive in nature. Here the right to take proceedings by original petition straight in the Supreme Court for the enforcement of the fundamental rights is guaranteed. The right to move the Supreme Court is itself a guaranteed right and the significance of this has been assessed2 by Gajendragadkar, J. thus:

"The fundamental right to move this Court can, therefore, be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should, in the words of Patanjali Sastri, J., regard itself 'as the protector and guarantor of fundamental rights' and should declare that "it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights"3. In discharging the duties assigned to it, this Court has to play the role of a 'sentinel on the qui vive'4, and it must always regard it as its solemn duty to protect the said fundamental rights 'zealously and vigilantly'5."

The jurisdiction vested in the Supreme Court is exercisable only for the enforcement of the fundamental rights conferred by Part III of the Constitution.

o Power of the High Courts: Article 226 of the Constitution confers a new power on all the High Courts of India. It enables them to issue to any person or authority, including in appropriate cases any Government orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Part III and "for any other purpose" i.e., for the enforcement of any other legal right. The power conferred6 on the High Court can, in a proper case, be exercised even against the legislature.7

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1. Chiranji Lal Chowdhury v. Union of India, MANU/SC/0009/1950 : AIR 1951 SC 41 (53): 1950 SCR 869: 1951 SCJ 29: (1951) 21 Comp Cas 33.

2. Prem Chand Garg v. Excise Commissioner, Uttar Pradesh, MANU/SC/0082/1962 : AIR 1963 SC 996 (999): (1963) Supp 1 SCR 885.

3. Romesh Thappar v. State of Madras, MANU/SC/0006/1950 : AIR 1950 SC 124 (126): 1950 SCR 594: 1950 Cr LJ 1514: 1950 SCJ 418.

4. State of Madras v. V.G. Row, MANU/SC/0013/1952 : AIR 1952 SC 196 (199): 1952 SCR 597 (605): 1952 SCJ 253: 1952 Cr LJ 966.

5. Daryao v. State of Uttar Pradesh, MANU/SC/0012/1961 : AIR 1961 SC 1457 (1461): (1962) 1 SCR 574 (582): (1962) 1 SCJ 702.

6. Article 226(1).

7. Re, Powers, Privileges and Immunities of State Legislatures, MANU/SC/0048/1964 : AIR 1965 SC 745: (1965) 1 SCR 413: 1965 (1) SCJ 847.

(iv) No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex: Article 325, while providing for general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of Legislature of a State, removes any disability for inclusion in or to claim to be included in a special, electoral roll on the grounds of religion, race, caste, sex or any of them, which is in conformity with the Universal Declaration of Human Rights.1

(v) Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage: Article 326 establishes adult suffrage for elections to the House of the People (Lok Sabha) and to the Legislative Assembly of every State. Every citizen who is not less than eighteen years of age, provided he is not, otherwise disqualified, has a right to be registered as a voter.'

(b) Relevant provisions in the Criminal Procedure Code: Right against arbitrary and Illegal arrest: These provisions have already been discussed in the earlier Chapter under the title 'Rights of the Accused and the Code of Code of Criminal Procedure, 1973'.

(c) Relevant Provisions in the Indian Penal Code:

o Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony: Section 153(A)2 supplements the law of sedition3 of the Indian

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1. Article 2.

2. Section 153A was first introduced in the Code by the Indian Penal Code Amendment Act, 1898 (Act IV of 1898). The Bill seeking to amend section 124A suggested to insert the words “promotes or attempts to promote feelings of enmity or ill-will between different classes of Her Majesty’s subjects”. The Select Committee, however, rejected the suggestion and added section 153A. Section 153A, as inserted originally in 1898 read as follows:

“Whoever by words, either spoken or written or by signs, or by visible representations, or otherwise promotes or attempts to promote feelings of enmity or hatred between different classes of citizens of India, shall be punished with imprisonment which may extend to two years, or with fine, or with both.

Explanation. – It does not amount to an offence within the meaning of this section to point out without malicious intention and with an honest view to their removal, matters which are producing or have a tendency to produce, feelings of enmity or hatred between different classes of Her Majesty’s subjects.”

By section 2 of Act XLI of 1961, the above section was substituted by the following sections: “Whoever (a) by words, either spoken or written or by signs or by visible representations or otherwise, promote, or attempts to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, feelings of enmity or hatred between different religious racial or language groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial or language groups or castes or communities and which disturbs or is likely to disturb the public tranquillity, shall be punished with implementation which may extend to three years, or with fine, or with both.” 

Pursuant to the recommendations of the National Integration Council to prevent and remove communal and regional tensions this section and section 505 of the Code were amended by the Criminal Law (Amendment) Act, 1969 (Act XXXV of 1969) with a view to amplify the scope of these sections, providing enhanced punishment for offences under these sections committed in a place of worship and making offences under these Sections cognizable. Under the amended section promoting enmity between different groups or groups such as, place of birth or residence, are included and the scope of the provision is widened so as to make promotion of disharmony or feelings of ill-will and offence punishable thereunder. The provision in clause (b) of sub-section (1) to the section is

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Penal Code. The provision relating to sedition was found inadequate and insufficient to deal with situations arising from conflicts and disharmony between different classes. Therefore sections 153A and 153B were enacted to supplement the law of sedition. The underlying object of this section is to prevent various classes from coming into conflict by mutual abuse and recrimination.1 It is un-necessary under this provision, as in the provision relating to sedition, to establish the success of an attempt. A man cannot escape from the consequences of uttering words, with intent to promote feelings mentioned in the section, solely because the person to whom they are addressed may be too wise or too temperate to be influenced by them.2

5.2 Protection of Women against Certain Crimes

5.2.1 Dowry Death

Section 304(B)3 defines dowry death and provides punishment for the same. The underlying object4 of this section is to curb and combat

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Contd. from previous page

widened to include acts prejudicial to the maintenance of harmony between different regional groups. The newly added sub-section (2) provides for enhanced punishment for any offence specified in sub-section (1) when it is committed in a place of worship, etc.

Clause (c) in sub-section (1) has been inserted by section 2 of the Criminal Law (Amendment) Act, 1972 (Act XXXI of 1972).

3. Section 124(A).

1. Chida Nand, AIR 1930 Lah 350: (1931) 32 Cri LJ 962 (Lah); Bal Gangadhar Tilak, 8 Cr LJ

281: 10 Bom LR 848; Sharwani, 55 IC 560 (All).

2. Ratanlal and Dhirajlal, Law of Crimes, Vol. I, (24th Edn.) p. 627-629.

3. This section was inserted by the Dowry Prohibition (Amendment) Act, 1986 with a view to combating the increasing menace of dowry death. It provides that where the death of a woman is caused by any burns or bodily injury or otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death and shall be punished with implementation for a minimum of seven years but which may extend to life implementation. 

By the same Amendment Act, section 113B has been added in the Evidence Act, 1872 for raising a presumption. It reads thus

“Presumption as to dowry death.—When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation.—For the purpose of this section “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code.”

4. In Objects and Reasons for enacting the Dowry Prohibition Act, 1961, it was stated:

“The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable

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increasing menace of dowry deaths with a firm hand. In Ashok Kumar v. State of Rajasthan,1 the Supreme Court stated:

"Bride burning is a shame of our society. Poor never resort to it. Rich do not need it. Obviously because it is basically an economic problem of a class which suffers both from ego and complex. Unfortunately, the high price rise and ever increasing cost of living coupled with enormous growth of consumer goods effacing difference between luxury and essential goods appears to be luring even the new generation of youth, of the best service, to be as much part of the dowry menace as their parents and the resultant events flowing out of it. How to curb and control this evil? Dowry killing is a crime of its own kind where elimination of daughter-in-law becomes immediate necessity if she or her parents are no more able to satiate the greed and avarice of her husband and their family members, to make the boy available, once again in the marriage market. Eliminate it and much may stand resolved automatically."

In State v. Iqbal Singh,2 the Supreme Court observed:

The Legislative intent is to curb the menace of dowry deaths with a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing sections 113A and 113B in the Evidence Act, tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage."

The Courts have taken strict view in cases of dowry death and accordingly have recommended that severe sentence should be imposed on the perpetrators of gruesome murder of young wife, who have killed them only for the purpose of extraction of dowry.3

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Contd. from previous page

and at the same time ensures that any dowry, if given does ensure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament. Hence, the present Bill. It, however, takes care to exclude presents in the form of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs. 2,000. Such a provision appears to be necessary to make the law workable.”
1. MANU/SC/0372/1990 : AIR 1990 SC 2134 (2135-36): 1990 Cr LJ 2276 (SC): (1991) 1 SCC 166: JT 1990 (1) SC

149: (1990) 2 SCALE 464: 1990 Cr LR (SC) 633: (1991) 1 Crimes 116.

2. MANU/SC/0354/1991 : AIR 1991 SC 1532 (1537): (1991) 3 SCC 1 (9): (1991) 2 SCR 790: JT 1991 (2) SC 495:

(1991) 1 SCALE 923: (1991) 2 UJ (SC) 482: 1991 Cr LJ 1897: 1991 SCC (Cri) 513: 1991 Cr LR (SC) 499.

3. Kailash Kaur, AIR 1987 SC 1368: (1987) 2 SCC 631: (1987) 2 SCR 1221: (1987) 2 Crimes 418: JT 1987 (2) SC 278: 1987 SCC (Cri) 431: 1987 Cr LJ 1127: (1987) 1 SCALE 1172: 1987 Cr LR (SC) 393: (1987) 2 UJ (SC) 223; Machhi Singh v. State of Punjab, AIR 1983 SC 957: (1983) 3 SCC 470: 1983 Cr LR (SC) 419: (1983) 3 SCR 413: (1983) 2 Crimes 268: 1983 Cr LJ 1457: 1983 SCC (Cri) 681: (1983) 2 SCALE 1.

5.2.2 Punishment for Rape

The relevant provision under the Code is section 376,1 which provides for punishment for the offence of rape. Section 375 of the Code defines 'rape'. The analogous provision under the Evidence Act, is section 114A, which raises a presumption as to consent in cases of custodial rape, rape on pregnant woman and in case of gang rape. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her Will.2 "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from 10 to 18 years.3

Rape is not a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer Will-power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against the basic Human Rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life enshrined in article 21 of the Constitution.4

5.3 Protection Against Cruel or Inhuman Treatment During Investigation

5.3.1 Voluntarily causing hurt to extort confession, or to compel restoration of property

Section 330 of the Code, which is in-conformity with the U.N. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment5, provides that whoever voluntarily causes hurt for the purposes of extorting from the sufferer, or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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1. Section 376 has been extensively amended by the Criminal Law (Amendment ) Act, 1983. Sub-section (1) of section 376 now prescribes minimum sentence of rigorous imprisonment of seven years. Proviso to the said sub-section, however, enables the Court to impose less than the minimum sentence by recording special and adequate reasons for the same. Subsection (2) has been inserted. It deals with special situations. The offences enumerated therein are considered graver and even the minimum sentence prescribed is rigorous imprisonment for ten years as against seven years under sub-section (1).

2. Concise Oxford Dictionary (1990), p. 993; Random House Dictionary (1972), p. 1094; Webster’s Encyclopedic Unabridged Dictionary, (1994), p. 1191.

3. Webster’s Encyclopedic Unabridged Dictionary, (1994), p. 1390.

4. Bodhisattawa Gautam v. Subhra Chakraborty, MANU/SC/0245/1996 : AIR 1996 SC 922: (1996) 1 SCC 490: 1996 SCC (Cri) 133: JT 1995 (9) SC 509: (1995) 7 SCALE 228: (1995) 4 Crimes 722: (1996) 1 SCJ 338.

5. Adopted on 10-12-1984 by the UN General Assembly.

The offence which this section intends to describe is that of inducing a person by hurt to make a statement, or a confession, having reference to an offence or misconduct; and whether that offence or misconduct has been committed is wholly immaterial.1 The principal object of this section is to prevent torture by the police. But the section covers every kind of torture for whatever purpose it may be intended. The information sought for may be required for the advancement of justice - any more, it may be such information as cannot be withheld without offending against public justice - the property, etc., the extortion of which is sought, may be property which the sufferer has borrowed from the offender and which he illegally refuses to give back - the claim or demand may be a just claim - but the law will not tolerate the employment of such means as are here made punishable, even when for an honest end.2

5.3.2 Voluntarily Causing Grievous Hurt to Extort Confession or to Compel Restoration of Property

Section 331 of the Code is the relevant provision and is similar to the preceding section except that the hurt caused under it should be 'grievous'.

5.4 Relevant Provisions in the Indian Evidence Act

Protection against Cruel or Inhuman Treatment during Investigation.-Sections 24 to 26 of the Indian Evidence Act, form a trio containing safeguards against accused persons being coerced or induced to confess guilt. These provisions, which are discussed as under, reflect the spirit of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,3 incorporated in the Indian Law.

5.4.1 Confession Caused by Inducement, threat or Promise, when Irrelevant in Criminal Proceeding:

Section 24 makes a confession irrelevant in a criminal proceeding if it is made as a result of inducement, threat or promise from a person in authority, and is sufficient to give an accused person grounds to suppose that by making it he would gain any advantage or avoid any evil in reference to the proceedings against him.4 In criminal cases, a confession made by the accused voluntarily is evidence against him of the facts stated. But a confession made after suspicion has attached to, or a charge been preferred against him and which has been induced by any promise or threat relating to the charge and made by, or with the sanction of a person in authority, is deemed not to be voluntarily, and is inadmissible.5 The principle upon which a confession induced by a promise or threat held by a person in authority is treated as inadmissible is that such confession is untrustworthy as testimony.6 A confession forced from the mind by the flattery of hope,

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1. Nim Chand Mokerjee, (1873) 20 WR (Cr) 41 (44).

2. Ratanlal and Dhirajlal, Law of Crimes, Vol. I, (24th Edn.) p. 1628.

3. Adopted on 10-12-1984 by the UN General Assembly.

4. Kanda Padayachi v. State of Tamil Nadu, MANU/SC/0126/1971 : AIR 1972 SC 66: (1971) 2 SCC 641: (1972) 1 SCR 450: 1972 Cr LJ 11: 1971 SCC (Cri) 623: 1972 (1) SCJ 395 (397).

5. Phipson, Evidence, p. 255, 7th Edn.

6. Sukhan v. Emperor, ILR (1929) 9 Lah 283: 115 IC 6: AIR 1929 Lah 344: 30 Cr LJ 414 (FB).

or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it, and, therefore, it is rejected.1 The ground of rejection of confessions which are not voluntary is the possibility of the prisoner having been induced by hope or fear to criminate himself falsely.2 This possibility arises wherever an innocent person, is placed in such a position that the untrue acknowledgement of guilt is, at the time, the more promising of two alternatives between which he is obliged to choose; that is, he chooses any risk that may be in falsely acknowledging guilt, in preference to some worse alternative associated with silence. The reports show that many confessions are induced by improper means; and that innocent people often accuse themselves falsely is known to the reader of any book on evidence.3 The rule which exclude confessions, not shown to have been made voluntarily, is a rule of policy,4 the reason is not that the law presumes such confession to be untrue but that, owing to the danger of receiving them, the law deems it better to reject them; not because the law is afraid of having truth elicited, but because the law is jealous of not having the truth.5 Another and more sensible reason for the rule is that the admission of such confessions would naturally lead the inferior agents of the police, while seeking to obtain a character for activity and zeal, to harass the oppress unfortunate prisoners in the hope of wringing from them a reluctant confession.6

5.4.2 Confession to Police Officer not to be Proved

Section 25 provides that no confession made to a police officer, shall be proved as against a person accused of any offence.

In England, a confession does not become inadmissible by reason of the mere fact that it is made to a police officer.7 The rule embodied in the present section was enacted in view of the special circumstances obtained in this country. It is a notorious fact that confessions in this country are obtained by the police by deceit and torture.8 The object of the Legislature in enacting the present section was to put a stop to the extortion of confessions by the police by malpractices.9 The reason of rule is partly that the evidence of a police officer is untrustworthy to prove a confession, and partly that the police should not be encouraged to extort confessions in the hope of gaining credit by securing convictions.9 It is, however, questionable whether the Legislature has succeeded in this object, as even now the police officer in this country works down from, and not up to, the confession, in the hope that the confession might lead to the recovery of some property or articles connected with the offence, or the discovery of other associates in the crime.9

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1. Per Eyre, CB, in Warickshall’s case, (1783) 1 Lea 263.

2. Phipson, Evidence, p. 256, 7th Edn.

3. Per Jardine J., in Q.E. v. Dada Ana, 15 B 452 (461).

4. Ibrahim v. E., 23 IC 678: 15 Cr LJ 326: 18 CWN 705.

5. Per Williams, J., in R. v. Mansfield, (1881) 14 Cox CC 639.

6. M. Monir, Principles and Digest of the Law of Evidence, p. 255-256, 11th Edn.

7. Phipson, Evidence, p. 258, 7th Edn.

8. Q.E. v. Bepin Behari Dev, 2 CWN 71 (74); Jogijiban Ghose v. E., 2 IC 681; 10 Cr LJ 125; 13 CWN 861; Q.E. v. Babu Lal, 6 A 509 (523) (FB).

9. Q.E. v. Babu Lal, 6A 509 (528) (FB).

Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of source of the evidence, prohibited them from being received in evidence. It is manifest that the class of persons who needed protection most were those in the custody of the police and persons not in the custody of police did not need the same degree of protection.1

Statements made by an accused person in the course of investigation are excluded by section 162 of the Code of Criminal Procedure. This section covers a confession made to a Police officer before any investigation has begun or otherwise not in the course of an investigation.2 The criterion for excluding the confession under this section is the answer to the question, to whom was the confession made? If the answer is that it was made to a police officer, the confession is inadmissible;3 and cannot be proved either by the evidence of the police officer4 or by any other evidence, as the medium by which it is sought to prove an inadmissible confession does not alter its inadmissibility.3 The rule enacted in section 25 should be given the fullest effect and a confession made to a police officer must be ruled out of evidence,5 even if it was made in the immediate presence of a Magistrate, as the terms of section 25 are not qualified or controlled by section 26.6 If a confession is made to a police officer, it is inadmissible in evidence and the mere fact that the accused subsequently says before a Magistrate "I told the police officer so and so" (giving the conversation that took place) does not render the statement inadmissible.3 The conversation will, however, be provable if it is made to Magistrate or to some one other than a police officer in the immediate presence of a Magistrate,7 even though it may be a mere repetition of what he stated to the police earlier. A confession made to another person deputed by a police officer to take the confession and when the police officer is in such proximity as to make his presence likely to affect the mind of the confessing person is, in substance a confession to a police officer and therefore, inadmissible.8 But if a confession is made to a person other than a police officer and without its having been influenced by a police officer, the confession will be admissible even though it was overheard by a police officer.9 Where an accused person makes a statement to another person in

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1. State of Uttar Pradesh v. Deoman Upadhyaya, MANU/SC/0060/1960 : AIR 1960 SC 1125: (1961) 1 SCR 14: (1961) 2 SCJ 334: 1960 Cr LJ 1504: (1960) 2 SCA 371.

2. Narayana Swami v. Emperor, 1939 PC 47: 40 Cr LJ 364.

3. E. v. Anandrao Gangaram Phanse, 49 B 642: 89 1C 1046: 1925 B 529: 26 Cr LJ 1478; Q.E. v. Babu Lal, 6A 509 (FB).

4. Paimullah v. E., 13 IC 783: 13 Cr LJ 127; E. v. Radhey Halwai, 7 CWN 220.

5. Q. v. Hurribole Chunder Ghose, 1 C 207.

6. Gajrani v. E., 114 IC 357: 1933 A 394: 34 Cr LJ 754; Q. v. Hurribole Chunder Ghose, 1 C 207 (215-16); Q. v. Domun Kahar, 12 WR 82 Cr.

7. Section 26.

8. Emperor v. Hari Piari, MANU/UP/0201/1926 : AIR 1926 All 737: ILR 49 All 57: 49 A 57: 97 IC 44: 1926 A 737: 27 Cr LJ 1068.

9. Imam-ud-din v. E., 151 IC 894: 1931 L 75: 35 Cr LJ 1432; E. v. Shankar, 149 IC 69: 1934 O 222; 35 Cr LJ 894; Ghunnai v. Emperor, 147 IC 630: 1934 All 132: 35 Cr LJ 448; Q. v. Sageena; 7 WR 56 Cr; Maharani v. Emperor, 1948 All 7: 1947 ALJ 265: 48 Cr LJ 939.

presence of the police, the question whether that statement was made to the other person or to the police is a question of fact1 and not of law.2

5.4.3 Confession by Accused While in Custody of Police not to be Proved against Him

Section 26 provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

Sections 25 and 26 do not lay down identical propositions. Section 25 lays down a general proposition against the admissibility of confessions made to police officers. Section 26 carries the rule further by rendering a confession inadmissible if made by a person whilst he is in the custody of a police officer, even though the confession is not made to a police officer. The two sections lay down two clear and definite rules.3 The present section does not control or qualify the preceding section; and, therefore, a confession made to a Public Officer is admissible, even if it was made in the immediate presence of a Magistrate.4 The section deals with confessions which are made not to police officers but to persons other than police officers, e.g., to a fellow prisoner, a doctor or a visitor,5 and makes such confessions inadmissible if they were made whilst the accused was in the custody of a police officer.6 In section 25 the criterion for excluding a confession is the answer to the question. "To whom was the confession made"? If the answer is that it was made to a police officer, the confession is absolutely excluded from evidence. On the other hand, the criterion adopted in section 26 for excluding a confession is the answer to the question. "Under what circumstances was the confession made?" If the answer is that it was made whilst the accused was in the custody of a police officer, the law lays down that such confession shall be excluded from evidences, unless it was made in the immediate presence of a Magistrate.3

Scope of the Provision in the Light of section 162 of Cr PC-Section 26 interdicts confessional statements made by persons in police custody.7 We have seen that a statement made to police officer, whether such statement amounts to a confession or not, is, by reason of section 162 of the Code, inadmissible against the maker of such statement at any inquiry or trial of the offence that was under

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1. Abdul Kadir v. E., 1946 C 452.

2. M. Monir, Principles and Digest of the Law of Evidence, pp. 307-308, 11th Edn.

3. Per Mahmood J., in Q.E. Babu Lal, 6 A 509 (FB).

4. Q. v. Hurribole Chunder Ghose, 1 C 207; Q. v. Domun Kahar, 12 WR 82 Cr.

5. Narayana Swami v. Emperor, 1939 PC 47: 40 Cr LJ 364; Hakam v. E., 1940 L 129 (FB).

6. Q.E. v. Babu Lal, 6 A 509 (545) (FB); Hakam v. E., 1940 L 129 (FB); Abdul Kadir v. E., 1946 C 452.

7. Udai Bhan v. State of Uttar Pradesh, MANU/SC/0144/1962 : AIR 1962 SC 1116: (1962) Supp 2 SCR 830: (1962) 2 Cr LJ 251.

investigation at the time of statement was made. If the statement amounts to a confession, it is inadmissible also under section 25 of the Evidence Act, if the confession was made to a police officer. Thus, where a statement is made to a Police Officer, the relevant provision determining its admissibility or inadmissibility is section 162 of the Code of Criminal Procedure or section 25 of the Evidence Act. The present section only applies where the statement was made to a person other than a police officer. Where a statement is made to a Magistrate or in the immediate presence of a Magistrate, it is expressly made admissible by the present section 26 even if it amounts to a confession. If the statement does not amount to a confession but is otherwise relevant, rule of exclusion enacted by section 162 of the Code of Criminal Procedure or section 25 or the present section of the Act does not, ex hypothesi, apply to it; section 162 of the Code does not apply to any such statement because it is not made to a Police Officer, and sections 25 and 26 do not apply to it because statement is not a confession. It follows, therefore, that where a statement is made by an accused person in the custody of a police officer to a person other than a police officer, its admissibility, if the statement is otherwise relevant, will depend upon the question whether it amounts to a confession or not. If it amounts to a confession, the present section will exclude it. If it does not amount to a confession and is otherwise relevant, e.g., as an admission, it will be admissible. And the test to be applied to determine whether it is a confession or not will be whether the statement admits in terms the offence or at any rate substantially all the facts that constitute the offence. However, incriminating the statement may be, it will be admissible if it is not a confession in the sense indicated.1

5.5 Right to Benefit of Doubt

Provisions relating to burden of proof.-The rules as to burden of proof2 and those as to presumptions are closely allied; in fact, the rules of burden of proof are no more than statements of rebuttable presumptions of law. When a presumption operates in favour of a party, the burden of proof is of the opponent; and when the burden of proof is laid by law on a party the presumption operates in favour of the opponent. It is well-settled law that once the parties have been permitted to produce evidence in support of their respective cases, and it is not their grievance that any evidence was shut out, the question of burden of proof loses significance and remains only academic.3 The relevant provisions on this aspect are as under:-

5.5.1 Burden of Proof

Section 101 provides that whoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts, must prove that those facts exist.

5.5.2 On whom Burden of Proof lies

Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

5.5.3 Burden of Proof as to Particular Fact

Section 103 provides that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

_______________________

1. M. Monir, Principles and Digest of the Law of Evidence, pp. 319-321, 11th Edn.

2. M. Monir, Principles and Digest of the Law of Evidence, p. 1002, 11th Edn.

3. Raghunathi v. Raju Ramappa Shetty, MANU/SC/0243/1991 : AIR 1991 SC 1040 (para 3): (1991) 2 RCR 494: (1991) Supp 2 SCC 267.

Sections 101-103 are based on a common principle.-These sections of the Evidence Act enact certain general rules regulating the burden of proof. The rules embodied in these sections are not so many different or independent rules but various aspects of the same ascertained from the point of view of section 101, or from that of section 102 or liability must, under section 103. Thus, a party who desires the Court to give judgment as to any right or liability must prove the facts on which the existence of that right or liability depends.1 If in such a case, the party does not prove the existence of those facts which constitute the right or liability he is seeking to enforce, would fail. Therefore, the burden of proof is also on him.2 Again, the party who desires a Court to give judgment in his favour is also asking the Court to believe in the existence of facts which entitle him to a judgment. The burden of proof, therefore, also is on him.3 Thus the principle on which these three sections are based is the same though it has been looked at in each section from a slightly different point of view.

5.5.4 Burden of Proving Fact to be Proved to make Evidence Admissible

Section 104 provides that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person, who wishes to give such evidence.

If the relevancy or admissibility of a fact depends upon proof of some other fact, the burden of proving the latter fact, is on the party wishing to give evidence of the former fact. Thus, the burden of proving the death of the declarant is on the party who wishes to give in evidence a dying declaration, and the burden of proving the loss of a document is on the party who wishes to give secondary evidence of the contents of the document.

Protection of women against certain crimes: The provisions on this aspect of the matter under the Indian Evidence Act, were added by way of various amendments and the same are mentioned as under:

5.5.5 Presumption as to Abetment of Suicide by a Married Woman

Section 113A provides that when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. This section was inserted in 19864 with a view to combat the increasing menace of dowry deaths. It lays down that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and is shown that soon before the death of the woman she was subjected to cruelty or harassment by her husband or his relations for or in connection with any demand for dowry, such death shall be called "dowry death" and the husband or relative shall be deemed to have caused her death and shall be punishable with imprisonment for a minimum of seven years but which may extend to life imprisonment.

__________________

1. Section 101.

2. Section 102.

3. Section 103.

4. Ins. by the Dowry Prohibition (Amendment) Act, 1986, section 2.

In this provision of the Evidence Act, the Parliament in its wisdom did not leave it at that by using the expression 'may presume' alone, but has supplemented the same by using the further expression "having regard to all the other circumstances of the case" which casts a positive responsibility on the Court to take into consideration all the other circumstances which may be there besides the two basic circumstances mentioned in the section itself which are suicide within seven years of marriage and proof of cruelty, in deciding whether the presumption of abetment of suicide should be drawn in a particular case.1 Keeping in view the object, a new section 113B was introduced in the Evidence Act, to raise a presumption as to dowry death.2

5.5.6 Presumption as to Dowry Death

Section 113B3 provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person caused the dowry death. The provision lays that if soon before the death such woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, that the Court shall presume that such person committed the dowry death. The meaning of "cruelty" for the purpose of these sections can be gathered from the language as found under IPC4 and accordingly "cruelty" means "any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life etc., or full demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." As per the definition of "dowry" any property or valuable security given or agreed to be given either at or before or any time after the marriage, comes within the meaning of "dowry".5 The Supreme Court of India has observed that it would be a traversity (travesty) of justice if sympathy is shown when such cruel act is committed i.e., bride burning, bride killing cases are on the increase and therefore serious view has to be taken.6 Undue sympathy would be harmful to the cause of justice.7

______________________

1. Nilakantha Pati v. State of Orissa, 1995 Cr LJ 2472: 1996 (130) Cur Tax Rep 34.

2. M. Monir, Principles and Digest of the Law of Evidence, pp. 1099-1101, 11th Edn.

3. Ins. by Dowry Prohibition (Amendment) Act, 1986.

4. Section 498A.

5. Shanti v. State of Haryana, MANU/SC/0507/1991 : AIR 1991 SC 1226 (paras 4, 5): (1990) Supp 2 SCR 675: 1991 Cr LR (SC) 4: MANU/SC/0507/1991 : (1991) 1 SCC 371: JT 1991 (1) SC 118: 1991 Cr LJ 1713: 1991 SCC (Cri) 191: (1990) 2 SCALE 988: (1991) 1 UJ (SC) 135. 

6. Hem Chand v. State of Haryana, MANU/SC/0026/1995 : AIR 1995 SC 120: (1994) 6 SCC 727: JT 1994 (6) SC 475: (1994) 3 Crimes 608: (1994) 4 SCALE 401: (1995) 1 SCJ 102; See also Sheikh Ishaque v. State of Bihar, MANU/SC/0681/1995 : (1995) 3 SCC 392: JT 1995 (5) SC 638: (1995) 2 SCALE 271: (1995) 2 UJ (SC) 21: (1995) 2 Crimes 294: (1995) 3 SCJ 259: 1995 SCC (Cri) 534: 1995 Cr LJ 2682 (SC)

7. Paniben (Smt.) v. State of Gujarat, MANU/SC/0346/1992 : AIR 1992 SC 1817: (1992) 2 SCR 197: JT 1992 (4) SC 397: MANU/SC/0346/1992 : (1992) 2 SCC 474: 1992 SCC (Cri) 403: 1992 Cr LJ 2919: (1992) 1 SCALE 655: (1992) 1 Crimes 1180.

5.5.7 Presumption as to Absence of Consent in Certain Prosecutions for Rape

Section 114A1 provides that in a prosecution for rape,2 where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

A "presumption" is a Rule of Law that Courts or juries shall or may draw upon a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved.3 A presumption is only an inference as to the existence of one fact from the existence of some other fact founded upon a previous experience of their connection.4 Under the present provision evidence of prosecutrix is enough and no corroboration is necessary to bring home charges of rape against the accused.5

5.5.8 Set up of Human Rights Commission in India

There is National Human Rights Commission at the national level, of which the Chairperson is a retired judge of the Supreme Court of India. Similarly there are State Human Rights Commissions at the level of respective States. The present composition of he National Human Rights Commission is given below.

__________________

1. Ins. by Act 43 of 1983, sec. 6.

2. Under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860).

3. Lawson, Presumptive Evidence, rule 117; See Istakar Khondkar v. E., 62 SC 956; 39 CWN 620, where a distinction is drawn between a presumption and an inference.

4. Amrita Lal v. Surath Lal, AIR 1942 Cal 553: 75 Cal LJ 372.

5. State of Maharashtra v. Chandraprakash Kewalchand Jain, MANU/SC/0122/1990 : AIR 1990 SC 658: (1990) 1 SCC 550: JT 1990 (1) SC 61: (1990) 1 Crimes 724: 1990 Cr LJ 889: (1990) 1 SCALE 33: (1990) 1 SCR 115: 1990 SCC (Cri) 210.

National Human Rights Commission

Chairman and other membrs in new Delhi

 

 

Hon’ble Justice Shri K.G. Balakrishnan

Chairperson

91-11-23382514(O

Hon’ble Justice Shri Govind Prasad Mathur

Member

91-11-23387328(O)

Hon’ble Justice Shri Babulal Chandulal Patel

Member

91-11-23385069 (O)

Shri Satyabrata Pal

Member

91-11-23387244(O)

Shri P.C. Sharma

Member

91-11-23382432 (O)

Shri Mohammad Shafi Qureshi

Chairperson,

91-11-24690592 (O)

National Commission for Minorities Member

Ex-officio

91-11-24698410 (O)

Dr.Girija Vyas

Chairperson,

91-11-23236204 (O)

National Commission for Women

Ex-officio Member

91-11-24651615 (R)

 

Name & Post

States/Work Allocated

Tele. No./E-mail Address

Shri K.S. Money

Chief Executive Officer of the Commission

91-11-23384856 (O)

Secretary General

 

sgnhrc@nic.in

Shri Sunil Krishna

Investigation

91-11-23385305 (O)

Director General (Inv.)

 

dg-nhrc@nic.in

Shri A.K. Garg

LAW

91-11-23386607 (O)

Acting Registrar

(Law)

 

 

Shri J.P. Meena

Administration, Research and Projects

91-11-23382263 (O)

Joint Secretary

 

js-nhrc@nic.in

-VACANT-

Coordination, Research & Training

91-11-23382442 (O)

Joint Secretary

(Training)

 

cct-nhrc@nic.in

Shri S.P. Singh, IPS

Investigation

91-11-23386532(O)

DIG (Investigation)

 

dignhrc@nic.in

Dr. Sanjay Dubey

Policy, Research, Projects & Programmes

91-11-23352389 (0)

Director (Admin)

Bonded Labour/ Child Labour,

dir-nhrc@nic.in

 

Quality Assurance in Mental Health,

Rights of Elderly,

Agra Protective Home,

Manual Scavenging,

Rights of Mine workers

Tribal issues,

Natural disasters Environmental issues,

Right to food,

Human Rights Education & Awareness

 

Shri M.L. Aneja

LAW

91-11-23382720 (O)

Joint Registrar

 

jrlawnhrc@hub.nic.in

Dr. Y.L. Tekhre

Policy Research, Projects and Programmes

91-11-23386581 (O)

Director (Research)

Right to Health Mental

dirres-nhrc@nic,in

 

Health (Inclusive of all mental hospitals)

Rights of SC/ST

Matters relating to International Laws/

Treaties/ Conventions etc.

Rights of Internally Displaced Persons

Rights of Refugees

Matters relating to Manual Scavening

Rights of the disabled

Preparation of English Journal

Research Projects/Programs on subject allocated

 

 

Focal Point for Human Rights Defenders

91-11-23382509 (O)

91-11-23384012 (F)

Shri A.K. Parashar

 

Mob. No. 9810298900

Deputy

lssues relating to Human Rights Defenders

 

Registrar(Law)

 

hrd-nhrc@nic.in

Dr. Savita Bhakhry

Policy Research, Projects and Programmes

91-11-23382499 (O)

Sensor Research Officer

Issues relating to Rights of Women.

Issues relating to Rights of Children.

sro-nhrc@nic.in

Shri Jaimini Kumar

Press & Media

91-11-23382742 (O)

Srivastava

 

 

Information Officer

 

ionhre@htib,nic.in

 

Special Rapporteur

 

 

Subjects: 1 Implementation of the Bonded labour Act/Child labour in the carpet industry etc., entrusted to NHRC by the Supreme Court of Inaia and Abolition of Child Labour and Bonded Labour

Flat No. 69, IAS Anupam Co-operative Group Housing Society, Dallupura -Chilla

Dr. Lakshmidhar

Mishra, (Retd)

2. Starvation Deaths in the KBK Districts, entrusted to NHRC by the Supreme Court of India

B-13, Vasundhara

Enclave, Delhi-

110096

 

3. Quality Assurance in Mental Health - Assessment of institutions in Ranchi, Agra and Gwalior, entrusted to NHRC by the Supreme Court of India matters relating to

Email:

sprep1.nhrc@nic.in

Tele: 011-23382943 (o)

011-22627612 (R)

Date of Joining:

Special Rapporteur

 

4. Custodial Justice Cell - matter relating to prison reforms,

18-08-2006

Tenure extended upto 17-08-2010

Sh. Damodar Sarangi,

IPS (Retd)

East Zone – 1:– Sikkim, West Bengal, Orissa, Andaman & Nicobar Islands

Plot No. A, Aurobindo Vila, Ananta Vihar, Pokhariput, Bhubaneshwar -751020

Email: sprep2.nhrc@nic.in

(M) 09871152870

Date of joining:

21-1-2008

Special Rapporteur

 

 

For Complaints-

filing/status,

General queries

MADAD : 91-11-23385368 :

+91 9810298900 (mobile)

 

 

 

 

Fax Nos.

1. 91-11-23384863 (Administration)

 

 

2. 91-11-23386521 (Law Division)-For

complaints-filing

 

 

E-mail

3. 91-11-23073876 (Investigation)

covdnhrc@nic.in

 

6. HUMAN RIGHTS VIOLATIONS IN INDIA

6.1 Human Rights and Police

The police has to play a major role in discharging the Human Rights obligations. It has to protect the life, liberty and property of individual citizens and also to maintain peace and tranquility in the society. A criminal expects freedom from torture, cruel, inhuman or degrading treatment or punishment.1 Similarly, a victim of crime expects that the perpetrator of the crime be prosecuted and punished adequately. The physical security and respect for human dignity are the common expectations from the police force.2 In fact, it is the police who has to uphold the Rule of Law by safeguarding the interests of the law abiding and getting the guilty punished.3

6.1.1 Police - an Instrument of Oppression

However, owing to several reasons some of them may be historical, the police in India do not enjoy the confidence of the people. The public sees the police as a long arm of the State that 'harasses not befriends' and functions as an instrument of oppression.4 The police are feared by the common man, misused and exploited by the rich and powerful, pilloried by the press and made a scapegoat by the political party in power. The prevailing perception of the policeman in society is one who has vast powers to use force as a coercive arm of the State and which in practice are exercised most arbitrarily, unjustly, wantonly and without accountability.

It is a well-known fact that in most of the situations, the police has to take an action against an individual or a group of individuals by using force and in certain cases it has even to kill the terrorists perpetrators of crime, if they fail to surrender. Sometimes, it may appear that there is a contradiction between the protection of Human Rights and enforcement of laws in its extreme forms i.e., killing, maiming etc., Violation of Human Rights by the police occur partly because of the functions they have to perform and their manner of performance. Life and liberty the most basic Human Right is the main casualty. This may be due to the belief that in dealing with hardened criminal and habitual offenders, third degree methods

___________________

1. General Assembly of the United Nations in its commentary on article 5 of the Code of Conduct for Law Enforcement Officials points out that “Cruel inhuman or degrading treatment” is an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a Violation of the Human Rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights (and other International Human Rights instrument). The Assembly adds that the term “Cruel, inhuman or degrading treatment or punishment” has not been defined by the General Assembly, but should be interpreted so as to extend the widest possible protection against abuse, whether physical or mental including the hold of a detained or imprisoned person in conditions which deprive him, temporarily or permanently of the use of any of his natural senses, such as right of hearing, or of his awareness of place and the passing of time.

2. Yogesh K. Tyagi, ‘The Indian Police and Human Rights. A Synoptic View’, paper presented in a Seminar on Indian Police and Human Rights organised by Indian Institute of Public Administration, J&K Regional Branch, Jammu Tawi on April 17-18, 1992. 

3. Sudesh Kumar Sharma, ‘Human Rights, Police and Custodial Violence: A Perspective’, M.D. University Law Journal, (Vol. 5), p. 7-18, 1999-2000.

4. Shanker Sen, ‘Police and Public Walls of Misunderstanding’, The Statesman, Delhi, Tuesday, December 19, 1991, p. 6.

and inhuman treatment are not only legitimate, but necessary for effective detection of crime and successful prosecution of the criminal. What is important is that police action should be within the parameters of law and justice. It is unfortunate that the police who are entrusted with the task of law enforcement and management usually take recourse of third degree methods i.e., torture and excessive use of force etc.

6.1.2 Police Encounters

Police encounters are often a euphemism for murdering persons whom the police regards as criminal and whose prosecution and conviction is difficult because of serious limitations in securing evidence against them. There is no doubt that the police must suppress the terrorism, root out the insurgency and deal swiftly and sternly with the murderers of innocent people. The police and security forces must be fully equipped and supported by the State and society to counter the terrorist onslaughts. But to kill in cold blood a person suspected of numerous terrorist acts is murder in language plain and simple. Law enforcers should not become law breakers and stand to the level of criminals. Government lawlessness is no answer to terrorism. State and its agencies must observe the Rule of Law even in most trying and tempting situations because when they take recourse to extra-legal methods, it is collapse of the system.1 A legitimate organ of a legitimate system becomes illegitimate and losses respectability and acceptability in the eyes of the people.2

According to one report3 persons killed in disputed encounters typically were detained by security forces, and their bodies, often bearing multiple bullet wounds and often marks of torture, were returned to relatives or otherwise were discovered shortly afterwards. For example, in January Ali Muhammad Bhat was beaten, shot, and killed allegedly in retribution for filing a complaint against the security forces.3 In March 2002, Mubarak Shah and his wife were killed in Dushar Gool. Security forces allegedly detained the pair a few days before they were killed.3 In December 2002, in Srinagar Mohammad Ahsan Untoo, Chairman of the Kashmir Human Rights Forum, protested Human Rights violations by security forces in Kashmir, by dousing himself in kerosene and lighting himself on fire.3 There reportedly was no action taken against members of the security forces responsible for the following killings in Jammu and Kashmir: The February 2001 "encounter" killing of Azam Ali in Nalgonda; the May 2001 alleged custody killing of Aijaz Ahmad Kitab; the January 2000 alleged custody killing of Mohammad Tahir Shah; the March 2000 alleged custody killing of Gulab Muhammad Chechi.3

The number of persons killed in encounter deaths varied widely throughout the country. In Delhi there were eight reported encounter deaths; in Chennai there

_____________

1. Soli J. Sorabji, ‘Educate Police on Human Rights’. The Times of India, New Delhi, Monday, January 15, 1992 p. 6.

2. See M.A. Neomani “Human Rights and Police” (A paper presented in a Seminar on “Indian Police and Human Rights), organised by Indian Institute of Public Administration J&K, Regional Branch, Jammu and Kashmir on April 17-18, 1992.

3. Country Reports on Human Rights Practices-2002, p. 2, (Bureau of Democracy, Human Rights and Labor, U.S. Department of State, March 31, 2003). (website http:// www.state.gov/g/drl/rls/hrrpt/2002/18311.htm, accessed on 10-1-2004).

were six; in Gujarat there were three. However, in Uttar Pradesh, there were 260; in Bihar there were 68, and in Mumbai there were 47.1

The security forces killed many civilians during military counter-insurgency operations in Jammu and Kashmir. For example, in October security forces killed nine persons following a gun battle between militants and security officials in Kashmir.1

6.2 Human Rights Abuses

In India Human Rights of the citizens are respected. However, numerous serious problems qua Human Rights abuses remained. Many of these abuses are generated by a traditionally hierarchical social structure, deeply rooted tensions among the country's many ethnic and religious communities, violent secessionist movements and the authorities' attempts to repress them, and deficient police methods and training.2 Significant Human Rights abuses, relevant for the purpose of present discussion are as under:

6.2.1 Arbitrary Arrest, Detention, or Exile

The Government implemented a variety of special security laws intended to help law enforcement authorities fight separatist insurgencies, however, there are widespread arbitrary arrests and detention under these laws, amounting to Human Rights violations.

Prevention of Terrorism Act, 2002.-For example Prevention of Terrorism Act, 2002 (in short 'POTA') was enacted to combat terrorism. But some of its provisions provide wide arbitrary powers to the law enforcing agencies to illegally arrest persons in violation of Human Rights. For example it makes a confession, made by a person before a police officer, admissible in evidence.3 Under the Act, accused may be kept in jail without trial up to six months.4 Even with regard to provision of bail, if the public prosecutor opposes the bail application of the accused under POTA the Court has been debarred from granting bail until it is satisfied that there are grounds for believing that he is not guilty of committing such offence.5 It further provides that no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorizedly or illegally except in very exceptional circumstances and for reason to be recorded in writing. The Act, deems not disclosing information to the authorities about terrorist activities an offence.6 The Act also is an invasion to right to privacy, inasmuch as it authorizes the police to intercept wire, electronic or oral communication when he believes that such interception may provide evidence of

_________

1. Country Reports on Human Rights Practices-2002, p. 2, (Bureau of Democracy, Human Rights and Labor, U.S. Department of State, March 31, 2003). (website http:// www.state.gov/g/drl/rls/hrrpt/2002/18311.htm, accessed on 10-1-2004).

2. Country Reports on Human Rights Practices-2002, p. 1, (Bureau of Democracy, Human Rights and Labor, U.S. Department of State, March 31, 2003). (website http:// www.state.gov/g/drl/rls/hrrpt/2002/18311.htm, accessed on 10-1-2004).

3. Section 32.

4. Section 49(2).

5. Section 49(7).

6. Section 14.

any offence involving a terrorist act.1 There is also provision with regard to presumption of adverse inference against the accused in a prosecution under POTA against the accused if it is proved that the arms or explosives or any other substances were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature, were used in the commission of such offence or that the finger prints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence.2 The Act, also provides wide powers to declare an organization as a terrorist organization.3

The Supreme Court, in a recent case,4 while upholding the Constitutional validity of POTA, cautioned that protection and promotion of Human Rights under the Rule of Law is essential in the prevention of terrorism and observed that-

"The protection and promotion of human rights under the rule of law is essential in the prevention of terrorism. Here comes the role of law and Court's responsibility. If human rights are violated in the process of combating terrorism, it will be self-defeating. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of Human Rights. The lack of hope for justice provides breeding grounds for terrorism. Terrorism itself should also be understood as an assault on basic rights. In all cases, the fight against terrorism must be respectful to the Human Rights. Our Constitution laid down clear limitations on the State actions within the context of the fight against terrorism. To maintain this delicate balance by protecting 'core' Human Rights is the responsibility of Court in a matter like this. Constitutional soundness of POTA needs to be judged by keeping these aspects in mind."5

Misuse of the said provisions is apparent from the fact that since the POTO6 and POTA were enacted, the Jammu and Kashmir police arrested approximately 426 people, 50 per cent. of whom were charged with sheltering terrorists.7 In July in Madhya Pradesh, police invoked POTA against the Naxalites PWD.7 In addition, the POTA was used to arrest members of various organisations and opposition political parties on charges of publicly expressing support of the banned LTTE terrorist group.7

For example, on July 11, police arrested Marumalachi Dravida Munnetra Kazahagam leader Vaiko for speaking in support of the LTTE at a public meeting.7 On August 1, Tamil Nationalist Movement leader Pazha Nedumaran was arrested for convening a conference in support of the LTTE in Chennai. In August police arrested P.Nedumaran under POTA for being a supporter of the Tamil terrorist group.7

_________

1. Section 38.

2. Section 53.

3. Section 18.

4. People’s Union for Civil Liberties v. Union of India, 2003 (10) SCALE 967: MANU/SC/1036/2003 : AIR 2004 SC 456: 2003 AIR SCW 7233: MANU/SC/1036/2003 : (2004) 9 SCC 580: 2005 SCC (Cri) 1905: 2003 (8) Supreme 756. 

5. People’s Union for Civil Liberties v. Union of India, 2003 (10) SCALE 967 (981): MANU/SC/1036/2003 : AIR 2004 SC 456: 2003 AIR SCW 7233: MANU/SC/1036/2003 : (2004) 9 SCC 580: 2005 SCC (Cri) 1905: 2003 (8) Supreme 756.

6. Prevention of Terrorist Ordinance, passed prior to the passing of POTA by the Parliament.

7. Country Reports on Human Rights Practices-2002, p. 11, (Bureau of Democracy, Human Rights and Labor, U.S. Department of State, March 31, 2003). (website http:// www.state.gov/g/drl/rls/hrrpt/2002/18311.htm, accessed on 10-1-2004).

o Preventive Detention Laws: Preventive detention laws in the event of threats to public order and national security exist, an individual may be detained-without charge or trial-for upto 3 months and detainees are denied of their rights or compensation for unlawful arrest or detention. In addition to providing for limits on the length of detention, the preventive detention laws provide for judicial review. Several laws of this type remain in effect.1 The most draconian aspect of these laws is that the detention orders under these Acts are issued by the Detaining Authority on the basis of merely subjective satisfaction, and the Courts have no jurisdiction to go into the propriety or impropriety of the subjective satisfaction.2 Nor it is open to the Court to enter into the controversy relating to the truthfulness of the allegations made in the grounds of detention or to substitute its own satisfaction to that of the Detaining Authority.3 Time and again it has been held that detention orders are issued simply on the basis of suspicion, anticipation and speculation, which are inherent in the preventive detention.4 Moreover, detention is not based on facts proved as per Evidence Act or Cr PC but on the subjective satisfaction of the Detaining Authority that detention is necessary for prevention of pre-judicial activities in future.4 The other draconian aspect of the matter is that there is no remedy available to the effected person without going into custody.5 Moreover, even after having been sent to jail a person's case can be reviewed only by Advisory Board, which would sit according to its own convenience within the statutory period as prescribed under different Acts.6 Under the Prevention Detention Laws there is also departure from the principle of service of grounds of detention. Under COFEPOSA Act the grounds of detention can be served even within a period of 15 days.7 But even this provision has been interpreted by the Courts contrary to the spirit of Human Rights. In one case8 a foreign national was detained in pursuance of detention order issued under the COFEPOSA Act and never served with the grounds of detention despite repeated requests having been

____________

1. For example Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short ‘COFEPOSA Act’); Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (7 of 1980); Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act (14 of 1982); National Security Act (65 of 1980); Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (46 of 1988).

2. Jagjit Singh v. State of Punjab, 1977 Punj LR 414.

3. Mohammad Shakeel Wahid Ahmad v. State of Maharashtra, 1983 Cr LJ 967: AIR 1983 SC  541: (1983) 1 Crimes 1013: MANU/SC/0121/1983 : (1983) 2 SCC 392: 1983 SCC (Cri) 509 (Bom); U. Vijayalakshmi (Mrs.) v. State of Tamil Nadu, MANU/SC/0052/1994 : AIR 1994 SC 165: 1995 SCC (Cri) 176: 1993 Cr LJ 3913 (SC).

4. Anthony alias Sandy John Nigero v. S. Ramamurthi, 1993 Cr LJ 3259 (Para 7). 

5. Additional Secretary to the Government of India v. Alka Subhash Gadia, (1992) Supp 1 SCC 496: JT 1991 (1) SC 549: (1990) 2 SCALE 1352: 1992 SCC (Cri) 301: JT 1991(1) SC 549. 

6. For example under the COFEPOSA Act it is 11 weeks from the date of detention, if detention sought by the Detaining Authority is for a period of one year and 4 months 2 weeks, in case, detention sought by the Detaining Authority for a period of 2 years and in that situation a declaration under section 9 of the COFEPOSA Act has to be issued. 

7. Section 3(3).

8. Olga Kozireva v. Union of India, 2002 (2) JCC 1191: 2001 Cr LJ 3701: 2002 (1) All Cr LR 73: 2001 (92) DLT 705.

 made in this regard before the Detaining Authority as well as before the Advisory Board, but her detention was confirmed right upto the Supreme Court of India.1 Thus it is apparent that these laws provide the Law Enforcing Agencies arbitrary powers to detain the persons according to their own whims and fancies in gross violation of Human Rights.2

6.2.2 Denial of Fair and Speedy Trial

Since Independence and the promulgation of our Constitution rapid strides have been made in almost all fields. The communication revolution has opened the eyes, ears and minds of millions of people, resulting in increasing expectations of an ever growing population. The desire for quick, fair and affordable justice is universal. As already discussed protection of life and liberty have been given a pre-eminent position in our Constitution by enacting article 21 as a fundamental right and imposing a duty on the State to protect life and personal liberty of every citizen. Any deprivation or breach of this valuable right is not permissible unless the procedure prescribed by law for that purpose is just, fair and reasonable. Has the State been able to keep up to this promise in a substantial measure? The ground reality, however, is that this precious fundamental right is turning out to be a mere pipe dream to many millions to whom justice is delayed, distorted or denied more than its delivery in accordance with the ideals enshrined in the Constitution. The entire existence of the orderly society depends upon sound and efficient functioning of the Criminal Justice System.3

In the year 1951 there were 6,49,728 cognizable crimes under the IPC. This has risen to 17,71,084 in the year 2000. In the year 1953 (figures for 1951 are not available) there were 49,578 violent crimes whereas in the year 2000 the number of violent crimes has increased to 2,38,381 (for the sake of illustration only figures of cognizable IPC crimes have been taken). These figures indicate an abnormal increase in the number of serious crimes. At the same time the population of

_____________

1. Olga Kozireva v. Union of India, SLP (Crl) No. 2220/2221: 2001 Cr LJ 3701: 2002 (1) All Cr LR 73: 2001 (92) DLT 705.

2. Author feels it proper to mention yet another incident in this regard, pertaining to case  FIR No. 35/2003, wherein on 14-5-2003 Special Cell, Delhi Police, Ashok Vihar, New Delhi arrested one Zafar Umar Khan on the charges under POTA on the allegation that he received hawala money amounting to Rs.4 lacs from one Rakesh Kumar Miglani for terrorist activities. In order to show the said Rakesh Kumar as a witness in the aforesaid case registered under POTA, he was asked to give an inculpatory statement before the Enforcement Directorate, dealing with foreign exchange violation cases, to the effect that he deals in hawala business and also forced/coerced him not to retract from that statement. But subsequently he was detained under COFEPOSA in pursuance of a detention order F.No. 673/28/2003-Cus.VIII dated 14-11-2003 by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, 6th Floor, ‘B’ Wing, Janpath Bhawan, Janpath, New Delhi. The Detaining Authority was asked to pass the detention order without informing him that the said Rakesh Kumar is a witness in the POTA case, registered on the basis of same incident, on which the detention order was issued. Thus one Government agency made him a star witness in its case registered under POTA and the other Government agency deprived him of his personal liberty by detaining under COFEPOSA.

3. Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, under the Chairmanship of Dr. Justice V.S. Malimath (Vol. I), 2003, p. 1.19.

the country which was 361.1 million in 1951 has increased to 1002.1 million in 2000.1

The total number of complaints received by the police and cases registered during the year 2000 in India is 56,62,773. It is a matter of common knowledge that several persons who are victims of crimes do not complain to the police. During the year 2000 the total number of cases charge-sheeted after investigation is 50,98,304. The total number of cases disposed of by the Courts in the year 2000 is 9,32,774. So far as the cases under IPC are concerned, the analysis shows that 79% of IPC cases were investigated in the year 2000, 78.4% of them were charge-sheeted, 18.3% of them were tried and 41.8% of them resulted in conviction.1

Quality of justice suffers not only when an innocent person is punished or a guilty person is exonerated but when there is enormous delay in deciding the criminal cases, it is a trite saying that justice delayed is justice denied. It is seen that 10,382 cases of the duration of 3 to 5 years, 6503 cases of the duration of

5-10 years and 2,187 cases of the duration of over 10 years were disposed of by all the Courts in India during 2000. Taking more than 3 years (sometimes even 10 years) amounts to denying fair trial. Speedy trial is a right of the accused that flows from article 21 as held by the Supreme Court. If the accused is acquitted after such long delay one can imagine the unnecessary suffering he was subjected to. Many times such inordinate delay contributes to acquittal of guilty persons either because the evidence is lost or because of lapse of time, or the witnesses do not remember all the details or the witnesses do not come forward to give true evidence due to threats, inducement or sympathy. Whatever may be the reason it is justice that becomes a casuality.2

The number of judges in India per million population is about 12-13 judges. Corresponding figures available for USA is 107, for UK is 51, for Canada is 75 and for Australia was about 41 about 18 years ago. This shows how grossly inadequate is the judge strength per million of population in India. That is the reason why the Supreme Court has in its decision3 directed that the existing judge population ratio of 10:5 or 13 judges per million people should be raised to 50 judges per million people in a phased manner within five years.4

6.2.3 Arbitrary Interference with Privacy, Family, Home or Correspondence

The police must obtain warrants for searches and seizures.5 In a criminal investigation, the police may conduct searches without warrants to avoid undue

____________ 

1. National Crime Record Bureau, 2000 (NCRB), Ministry of Home Affairs, Government of  India. 

2. Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, under the Chairmanship of Dr. Justice V.S. Malimath (Vol. I), 2003, p. 1.19 (Para 1.24).

3. All India Judges’ Association v. Union of India, MANU/SC/0251/2002 : AIR 2002 SC 1752: (2002) 4 SCC 247: (2002) 2 SCJ 598: (2002) 2 SCT 735: (2002) 5 SRJ 246: (2002) 3 SCALE 291: (2002) 3 Supreme 180: (2002) 2 UPLBEC 1246: JT 2002 (3) SC 503.

4. Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, under the Chairmanship of Dr. Justice V.S. Malimath (Vol. I), 2003, p. 1.19 (Para 1.32). 

5. Section 93 of Cr. P.C.

delay, but they must justify the searches in writing to the nearest Magistrate with jurisdiction over the offence. The authorities in Jammu and Kashmir, Punjab and Assam have special powers to search and arrest without a warrant. The Enforcement Directorate, which was mandated to investigate foreign exchange and currency violations, searched, interrogated and arrested thousands of business and management professionals annually, often without search warrants. However, the Enforcement Department ultimately convicted very few persons. According to official figures, in 1999, there were 387 searches or raids by the Enforcement Department, resulting in 107 prosecutions and 29 convictions. The Telegraph Act authorizes the surveillance of communications, including monitoring telephone conversations and intercepting personal mail, in case of public emergency or "in the interest of the public safety and tranquility". Every State Government has used these powers, as has the Central Government. The Information Technology Act, includes provisions that grant the police powers to search premises and arrest individuals without a warrant.1 Under the Act, maximum sentences for failing to provide information to the Government on request and transmitting "lascivious" material were 1 year and 5 years respectively.2 The Act, also requires internet cafes to monitor Internet use and inform the authorities. In the year 2002 one person had been arrested under the Act, but he was released after some confusion about the nature of the alleged offence. NGOs criticized the Act, stating that its provisions were draconian.3

The Government did not restrict citizen's personal appearance; however, in Kashmir and Manipur dress codes were announced. The Kanglei Yawon Kanna Lup in Manipur announced a dress code for the State's women that bans the wearing of saris, salwar kameez, and trousers. The group threatened to punish with death women who violated the code, and it urged women to wear the traditional Phanek and Chador on all occasions but allowed girls to wear salwars as school uniforms. In Kashmir the militants group Lashkar-e-Jabbar ordered Muslim women to dress in burqas, Hindu women to wear bindis, and Sikh women to wear identifying saffron headscarves.3

6.2.4 Custodial Crimes

To take a person in custody is to limit his freedom. Taking advantage of such a situation, the custodian may, attempt commit crime on the person under custody. Individuals come under the police custody for various reasons like arrest, police remand or even where the custody per se is unauthorised. Most prevalent crimes in police custody are: assault of various types, rape and murder. For custodial rape, the Indian Penal Code provides special treatment4 by specifying an immediate punishment. When any person dies while in custody of the police, the law requires a mandatory enquiry by the Magistrate into the cause of death.5 Every 

___________

1. Section 80. 

2. Chapter XI of the Act. 

3. Country Reports on Human Rights Practices-2002, p. 14, (Bureau of Democracy, Human Rights and Labor, U.S. Department of State, March 31, 2003). (website http:// www.state.gov/g/drl/rls/hrrpt/2002/18311.htm, accessed on 10-1-2004). 

4. Section 376(2). 

5. Section 176 of Code of Criminal Proceedings, 1973.

custodial death may not be an offence. However, when the cases are registered for custodial death, the investigation will proceed as prescribed for in other case of culpable homicide. Discussion in following paras would show that despite the fact that United Nations has adopted numerous documents, outlawing torture and advocating legislative, administrative and executive measures which the State should adopt to deal with the custodial crimes are on the rise.

Torture: The importance of affirmed rights of every human being which are inherent in and essential to the structure of society need no emphasis. To deter breaches thereof, therefore, becomes a sacred duty of the society. Enjoyment of basic Human Rights are the entitlement of every citizen, and their protection, the obligation of every civilised State. The word "torture", which poses a challenge for the medical, legal and other professions, today has become synonymous with the darker side of human civilization.1

"Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it.

Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself."2

Torture is the very negation of human dignity and cuts at the root of the culture of Human Rights.

The World Medical Association defined "torture" as

"the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons, acting alone or on the orders of any authority to force another person to yield information, to make a confession or for any other reason."3

Torture4 vests the investigating authorities with the power to pre-determine the guilt of the accused. It even allows them to prescribe punishments other than the fines and imprisonments provided for the offences. It dehumanise both, those who are tortured and those who inflict it.5 By its very nature torture is a denial of right to human dignity. 

___________

1. A.S. Anand, J., VIIIth International Symposium on Torture, (1999) 7 SCC 10. 

2. A.S. Anand, J., VIIIth International Symposium on Torture, (1999) 7 SCC 10. (Definition given by Adriana P. Bartow). 

3. Tokyo Declaration, 1975. 

4. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, vide article 1 defines ‘torture’ as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 

5. Usha Ramachandaran “Inhuman Torture” Indian Express, Chandigarh, Saturday, October 30, 1993, p. 8.

International opinion couched in persuasive conventions and covenants declares that the right not to be tortured is a non-derogable right - that is there is no explanation or expediency that can excuse the use of torture.1 The United Nations nevertheless notes that torture continues to be practised in a number of countries and its complete eradication remains a major priority.

Reports show that the incidence of Human Rights violations is on the increase around the world.2 Torture, rape and brutality are such routine parts of police investigations that they hardly surprise any one. Torturing suspects in custody to extort confession is most inhuman, barbaric and illegal. Police stations have become a night mare for the accused and suspects. It is a straightway violation of the Constitutional right guaranteeing protection again self incrimination.3 For custodial death the guilty policeman is generally transferred till the fuss and fury is over or at the very worst he may be suspended from the police force for a while and then reinstated. It is very rarely that a police man is sentenced to imprisonment for killing a person in custody.4

No violation of any one of the Human Rights has been the subject of so many conventions and declarations as "torture" - all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. "Custodial torture" which itself is very widespread is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward and the flag of humanity must on each such occasion fly at half mast.5

"Torture" ruins the victim physically as well as mentally. The moments of torture flash in the mind of the victim keeping him in horror. For the rest of his life, he feels haunted by recurrence of such moments which do not let him live a normal life. Torture victims are also in a psychological state of exhaustion. Torture leaves them suffused with the feeling that they are living on borrowed time. In 

___________

1. See article 4(2) and article 7 of the International Covenant on Civil and Political Rights article 5 of the Universal Declaration of Human Rights reads, ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. See also the Convention Against Torture and Other Cruel Inhuman or Degrading Punishment. It was adopted by the UN General Assembly on 10th December, 1984. 

2. According to Amnesty International and other Human Rights Organisations, no fewer than 

3. million people have been extra-judicially done away with world wide since 1970. See David Milton. In Defence of Human Rights Indian Express, Chandigarh, Monday December 9, 1994, p. 6. 3. Torture is expressly prohibited and made punishable in the Indian Penal Code, section 330 and 331. Section 29 of the Indian Police Act, imposes duty upon the police not to perpetrate ‘unmistakable personal violence “ on persons in their custody and to ensure that they are safely kept. Article 20(3) of the Indian Constitution guarantees right against self incrimination. It reads “No one shall be compelled to be a witness against his own self.”

4. Tavleen Singh “Enemies of the people”, Indian Express, Chandigarh, Sunday, September 19, 2003 p. 6. 

5. A.S. Anand, J., VIIIth International Symposium on Torture, (1999) 7 SCC 11.

order to really bring the victims to their knees, the torturers leave them with strong feelings of guilt. Torture destroys the self and the very foundations of stability. A person subjected to torture can believe in nothing. In all custodial crimes what is of real concern is not only infliction of bodily pain but the mental agony which a person undergoes during custody.1 Despite the pious declaration, in the Universal Declaration of Human Rights in 1948 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment",2 the crime continued unabated. It is because of this phenomenon that we have provisions under the Indian Evidence Act3 and the Cr PC,4 which make the statements to such law enforcing authorities inadmissible in evidence.

o No sovereign immunity in cases of Torture: Generally, the defence put forward by the State in cases of "torture" is in the interest of the society and the security of the State. In India the Courts have not permitted sovereign immunity to be pleaded by the State as a defence in response to allegations of "torture" or against any other type of custodial crime, where the State is held vicariously liable for the illegal acts of its officials.5

There is no gainsaying that the freedom of an individual must yield to the security of the State. The right to interrogate the detenues, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The latin maxim salus populi est suprema lex (the safety of the people is the supreme law) and sales reipublicae est suprema lex (safety of the State is the supreme law) coexist and lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be "right, just and fair". Using any form of torture for extracting any kind of information would neither be "right nor just nor fair" and, therefore, it would be impermissible. A crime-suspect must be interrogated - indeed subjected to sustained and scientific interrogation - determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc. His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be a qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal.6

Torture is also practised by the terrorists on the innocent citizens. Cases of kidnapping, rape, hijacking etc., by the terrorists are occurring almost everyday. It is a serious matter and requires to be tackled properly but the challenge of terrorism must be met with innovative ideas and approach. That a terrorist has violated the Human Rights of innocent citizens may render him liable for punishment but it cannot justify the violation of his Human Rights except in the 

__________

1. A.S. Anand, J., VIIIth International Symposium on Torture, (1999) 7 SCC 11. 

2. Article 5. 

3. Sections 24, 25 and 26. 

4. Section 162 Cr. P.C. 

5. A.S. Anand, J., VIIIth International Symposium on Torture, (1999) 7 SCC 12. 

6. A.S. Anand, J., VIIIth International Symposium on Torture, (1999) 7 SCC 13.

manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to "terrorism". That would be bad for the State, the community and above all for the Rule of Law. The State should ensure all its agencies deployed for combating terrorist acts within the bounds of law. It is high time that the world nations unitedly and in a deliberate and disciplined manner decide to meet the challenge posed by international terrorism which threatens world peace.1

o Death in police custody: Custodial crimes which include deaths in police custody have drawn attention of public media, and legislature over the past many years. Even the Human Rights Commission has taken serious note of such incidents. The following tables provide information on deaths reported during 2000 under different categories along with the information as to how many of the guilty policemen were charge-sheeted and convicted:

DEATH IN POLICE CUSTODY/LOCK-UP DURING 20002

(OF PERSONS REMANDED TO POLICE CUSTODY BY COURT) 

S. No.

State/ No. UT

Number of

 

 

 

 

(1)

(2)

Death Reported

(3)

Autopsy Cond­ucted

(4)

Magisterial Enquiry Ordered/ Conducted

(5)

Judicial Enquiry Ordered/ Conducted

(6)

Cases Regd. in

Connec­tion with

Deaths

(7)

Police­men Charge-Sheeted

(8)

Police­men Convic­ted

(9)

STATES:

 

 

 

 

 

 

 

1.

Andhra Pradesh

4

4

1

0

2

0

0

2.

Arunachal Pradesh

1

0

1

0

1

0

0

3.

Assam

0

0

0

0

0

0

0

4.

Bihar

0

0

0

0

0

0

0

5.

Goa

1

1

0

0

0

0

0

6.

Gujarat

9

7

1

0

0

3

0

7.

Haryana

2

0

0

0

1

0

0

8.

Himachal Pradesh

0

0

0

0

0

0

0

9.

Jammu and Kashmii

0

0

0

0

1

0

0

10.

Karnataka

0

0

0

0

0

0

0

11.

Kerala

0

0

0

0

0

0

0

12.

Madhya Pradesh

3

3

3

0

0

0

0

13.

Maharashtra

14

14

11

0

2

5

0

14.

Manipur

0

0

0

0

0

0

0

15.

Meghalaya

0

0

0

0

0

0

0

___________

1. A.S. Anand, J., Vlllth International Symposium on Torture, (1999) 7 SCC 13.

2. Crime in India, p. 361 (National Crime Records Bureau, Ministry of Home Affairs, Government of India, 2000).

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

16.

Mizoram

0

0

0

0

0

0

0

17.

Nagaland

0

0

0

0

0

0

0

18.

Orissa

0

0

0

0

0

0

0

19.

Punjab

3

0

4

0

2

6

0

20.

Rajasthan

0

0

0

0

0

0

0

21.

Sikkim

NR

NR

NR

NR

NR

NR

NR

22.

Tamil Nadu

0

0

0

0

0

0

0

23.

Tripura

3

0

0

0

0

0

0

24.

Uttar Pradesh

0

0

0

0

0

0

0

25.

West Bengal

0

0

0

0

0

0

0

Total States

40

29

21

0

9

14

0

Unit Territories:

 

 

 

 

 

 

 

26.

A&N Islands

0

0

0

0

0

0

0

27.

Chandigarh

0

0

0

0

0

0

0

28.

D&N Haveli

0

0

0

0

0

0

0

29.

Daman & Diu

0

0

0

0

0

0

0

30.

Delhi

0

0

0

0

0

0

0

31.

Lakshadweep

0

0

0

0

0

0

0

32.

Pondicherry

0

0

0

0

0

0

0

Total (UTS)

0

0

0

0

0

0

0

Total (All India)

40

29

21

0

9

14

0

NR—Not Received

DEATH IN POLICE CUSTODY /LOCK UP DURING 20001 (OF PERSONS NOT REMANDED TO POLICE CUSTODY BY COURT)

Sl. No.

State/ UT

 

Number of

 

 

 

 

 

 

Death Reported

Autopsy Cond­ucted

Magisterial Enquiry Ordered/ Conducted

Judicial Enquiry Ordered/ Conducted

Cases Regd. in

Connec­tion with

Deaths

Police­men Charge-Sheeted

Police­men Convic­ted

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

STATES:

 

 

 

 

 

 

 

1.

Andhra Pradesh

3

3

1

0

3

0

0

2.

Arunachal Pradesh

0

0

0

0

0

0

0

3.

Assam

4

4

4

0

0

0

0

4.

Bihar

0

0

0

0

0

0

0

5.

Goa

0

0

0

0

0

0

0

__________

1. Crime in India, p. 361, 362 (National Crime Records Bureau, Ministry of Home Affairs, Government of India, 2000).

6.

 Gujarat

3

1

1

0

0

0

0

7.

Haryana

0

0

0

0

0

0

0

8.

Himachal Pradesh

0

0

0

0

0

0

0

9.

Jammu and Kashmir

0

0

0

0

0

0

0

10.

Karnataka

0

0

0

0

0

0

0

11.

Kerala

0

0

0

0

0

0

0

12.

Madhya Pradesh

4

3

3

0

2

0

0

13.

Maharashtra

3

3

1

0

2

0

0

14.

Manipur

0

0

0

0

0

0

0

15.

Meghalaya

0

0

0

0

0

0

0

16.

Mizoram

0

0

0

0

0

0

0

17.

Nagaland

0

0

0

0

0

0

0

18.

Orissa

0

0

0

0

0

0

0

19.

Punjab

4

1

4

0

2

2

1

20.

Rajasthan

1

0

0

0

1

6

0

21.

Sikkim

0

0

0

0

0

0

0

22.

Tamil Nadu

2

2

2

0

1

0

0

23.

Tripura

2

0

0

0

0

0

0

24.

Uttar Pradesh

11

11

10

0

11

0

0

25.

West Bengal

0

0

0

0

0

0

0

  

Total States

37

28

26

0

22

8

1

 

Union Territories:

  

 

 

 

 

 

 

26.

A & N Islands

0

0

0

0

0

0

0

27.

Chandigarh

0

0

0

0

0

0

0

28.

D & N Haveli

0

0

0

0

0

0

0

29.

Daman & Diu

0

0

0

0

0

0

0

30.

Delhi

1

1

1

0

1

0

0

31.

Lakshadweep

0

0

0

0

0

0

0

32.

Pondicherry

0

0

0

0

0

0

0

 

Total (UTs)

1

1

1

0

1

0

0

 

Total (All India)

38

29

27

0

23

8

1

DEATH IN POLICE CUSTODY AT THE TIME OF PRODUCTION/ PROCEEDINGS IN COURT/JOURNEY CONNECTED WITH INVESTIGATION DURING 20001

 Sl.

No.

State/

UT

 

Number of

 

 

 

 

  

  

Death

Reported

Autopsy Cond­ucted

Magisterial Enquiry Ordered/ Conducted

Judicial Enquiry Ordered/ Conducted

Cases Regd. in

Connec­tion with

Deaths

Police­men Charge-Sheeted

Police­men Convic­ted

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

STATES:

 

 

 

 

 

 

 

1.

Andhra Pradesh

7

7

2

0

5

0

0

2.

Arunachal Pradesh

0

0

0

0

0

0

0

3.

Assam

0

0

0

0

0

0

0

4.

Bihar

1

0

0

0

1

0

0

5.

Goa

1

1

0

0

0

0

0

6.

Gujarat

3

2

1

0

2

0

0

7.

Haryana

0

0

0

0

0

0

0

8.

Himachal Pradesh

0

0

0

0

0

0

0

9.

Jammu and Kashmir

0

0

0

0

0

0

0

10.

Karnataka

1

1

0

0

1

0

0

11.

Kerala

0

0

0

0

0

0

0

12.

Madhya Pradesh

0

0

0

0

0

0

0

13.

Maharashtra

8

8

4

0

4

7

0

14.

Manipur

0

0

0

0

0

0

0

15.

Meghalaya

0

0

0

0

0

0

0

16.

Mizoram

0

0

0

0

0

0

0

17.

Nagaland

0

0

0

0

0

0

0

18.

Orissa

0

0

0

0

0

0

0

19.

Punjab

2

1

1

0

1

4

0

20.

Rajasthan

0

0

0

0

0

0

0

21.

Sikkim

0

0

0

0

0

0

0

22.

Tamil Nadu

0

0

0

0

0

0

0

23.

Tripura

1

0

0

0

0

0

0

24.

Uttar Pradesh

1

1

1

0

1

0

0

25.

West Bengal

0

0

0

0

0

0

0

 

Total States

25

21

9

0

15

11

0

Union Territories:

 

 

 

 

 

 

 

26.

A&N Islands

0

0

0

0

0

0

0

27.

Chandigarh

0

0

0

0

0

0

0

28.

D&N Haveli

0

0

0

0

0

0

0

29.

Daman & Diu

0

0

0

0

0

0

0

________

1. Crime in India, p. 361, 363 (National Crime Records Bureau, Ministry of Home Affairs, Government of India, 2000).

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

30.

Delhi

0

0

0

0

0

0

0

31.

Lakshadweep

0

0

0

0

0

0

0

32.

Pondicherry

0

0

0

0

0

0

0

 

Total (UTs)

0

0

0

0

0

0

0

 

Total (All India)

25

21

9

0

15

11

0

REASONS OF CUSTODIAL DEATHS DURING 20001

 

 

Number of Deaths in Police Custody

Sl.

No.

State/

UT

During Hospitalization Treatment

Due to / Accidents

By Mob Attack/ Riot

By

Other

Criminal

By

Suicide

While

Escaping

From Custody

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

STATES:

 

 

 

 

 

 

1.

Andhra Pradesh

0

0

1

0

1

0

2.

Arunachal Pradesh

0

0

0

0

1

0

3.

Assam

2

0

0

1

1

0

4.

Bihar

1

0

0

0

0

0

5.

Goa

0

0

0

0

1

0

6.

Gujarat

3

1

0

0

2

1

7.

Haryana

3

0

0

0

2

0

8.

Himachal Pradesh

0

0

0

0

0

0

9.

Jammu and Kashm

ir 0

0

0

0

0

0

10.

Karnataka

1

1

0

0

0

0

11.

Kerala

0

0

0

0

0

0

12.

Madhya Pradesh

1

0

0

0

4

0

13.

Maharashtra

13

0

0

2

10

1

14.

Manipur

0

0

0

0

0

0

15.

Meghalaya

0

0

0

0

0

0

16.

Mizoram

0

0

0

0

0

0

17.

Nagaland

0

0

0

0

0

0

18.

Orissa

0

0

0

0

0

0

19.

Punjab

0

0

0

0

1

0

20.

Rajasthan

0

0

0

0

0

0

21.

Sikkim

0

0

0

0

0

0

22.

Tamil Nadu

0

0

0

0

0

2

23.

Tripura

0

0

0

0

0

0

24.

Uttar Pradesh

2

0

3

0

2

7

25.

West Bengal

9

0

0

0

0

0

 

Total States

35

2

4

3

25

11

____________

1. Crime in India, p. 361, 364 (National Crime Records Bureau, Ministry of Home Affairs, Government of India, 2000).

Union Territories:

 

 

 

 

 

 

26.

A&N Islands

0

0

0

0

0

0

27.

Chandigarh

0

0

0

0

1

0

28.

D&N Haveli

0

0

0

0

0

0

29.

Daman & Diu

0

0

0

0

0

0

30.

Delhi

0

0

0

0

0

0

31.

Lakshadweep

0

0

0

0

0

0

32.

Pondicherry

0

0

0

0

0

0

 

Total (UTS)

0

0

0

0

1

0

 

Total (All India)

35

2

4

3

26

11

Thus we find that during the year 2000, there were 40 deaths in police custody, of those who were remanded to police custody by the Courts, reported compared to 22 such deaths during 1999. This has shown an increase of 90.5% over 1999. In the above such incidents, magisterial enquiry was ordered/conducted in 21 cases at All India level. There were no judicial inquiries ordered in the incidents relating to custodial deaths. Only 9 number of cases were registered in connection with such custodial deaths during this year. 14 police personnel charge-sheeted in connection with the incidents. Number of autopsies conducted were 29.

There were 38 incidents of deaths in police custody of persons who were in police custody but were not remanded to them by the Court during 2000 against 43 such incidence in 1999. This has shown a decline of 11.6% over 1999. Number of autopsies conducted were 29 during the year 2000 in such incidents. During the year 2000, Magisterial enquiries were conducted in 27 incidents and no judicial enquiries were ordered in such cases. In connection with such deaths, police have registered 23 cases during the year 2000. During this year, 1 policeman was convicted while 8 men were charge-sheeted.

A total of 25 deaths have been reported during the year 2000 in the custody of police when the victims were either undergoing journey in connection with investigation or they were proceeding to Courts etc., against 15 such incidents during the year 1999 therefore resulting an increase of 66.7%. In these incidents, magisterial enquiry was ordered in 9 incidents. During the year, 15 cases were registered and 11 policemen were charge-sheeted.

Following are details regarding the number of police personnel arrested and the details regarding their disposal by police and Courts for the year 1996-2000.

PERSONS ARRESTED AND THEIR DISPOSAL IN CUSTODIAL DEATHS 1996-20001

Sl.

No.

Year

Number of Personal

 

 

Arrested during the year

Under arrest/ bail including persons whose cases were pending for investigation in previous years

Charge-sheeted

Tried

Convicted

Acquitted

Per­centage of Con­viction

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

1.

1996

137

204

88

19

7

12

36.8

2.

1997

81

157

49

22

3

19

13.6

3.

1998

107

202

64

41

7

34

17.1

4.

1999

108

179

71

31

0

31

0.0

5.

2000

71

164

27

21

4

17

23.5

Thus the number of police personnel arrested in Custodial Death cases in the year 2000 were 71 against 108 in 1999. Out of the 21 persons involved in custodial deaths whose cases were tried in the Courts, 4 persons were convicted, showing 19% conviction rate.

o Rape in police Custody: Rape in police custody is seen as a stigma on the law enforcing agency by the citizens. Police, which is a primary agency for ensuring safety of women, children who were downtrodden is not forgiven by the society if they themselves get involved in rape cases that too in police custody. The number of such cases reported at All India level for the years 1996-2000 are as under:—

INCIDENTS OF CUSTODIAL RAPE IN POLICE CUSTODY DURING 1996-19992

Sl. No.Year

No. of reported

Custodial Rape cases

(1)

(2)

(3)

1.

1996

6

2.

1997

6

3.

1998

4

4.

1999

4

5.

2000

2

 

% Change in 2000 over 1999

-50%

 

% Change in 2000 over 1996

-66.6%

________

1. Crime in India, p. 359 (National Crime Records Bureau, Ministry of Home Affairs,  Government of India, 2000). 

2. Crime in India, p. 357 (National Crime Records Bureau, Ministry of Home Affairs, Government of India, 2000).

The analysis shows that only 2 cases of rape in police custody were reported in 2000.

The investigation of custodial rape cases by the police and the disposal, by the police and Courts during 1996-2000 is given as under: —

CUSTODIAL RAPE CASES - DISPOSAL BY POLICE 1996-20001

Sl.

No.

Year

Total Reported during the year

No. of cases including pending cases for investigation from previous years

Cases not investigated/ Investigation refused

Cases declared

false/ mistake of fact or law

(1)

(2)

(3)

(4)

(5)

(6)

1.

1996

6

7

-

-

2.

1997

6

10

-

1

3.

1998

4

9

-

-

4.

1999

4

7

-

2

5.

2000

2

5

-

2

 

Total cases investigated (Col. 6+ 8+ 9)

Cases in which charge sheets were laid

Cases in which final report submitted

Percentage

of cases investigated

Charge sheeting rate

(7)

(8)

(9)

(10)

(11)

3

3

-

42.9

100.0

5

4

-

50.0

100.0

5

3

2

55.6

60.0

4

1

1

57.1

25.0

5

2

1

100.0

66.7

The analysis shows that out of 5 cases under investigation by the police in the year 2000, which include cases under investigation from previous years, investigation could be completed in 5 cases. Thus no case is pending under investigation showing 100% disposal by the police. Charge-sheets were submitted in three cases in 1996, 4 cases in the year 1997, 3 cases in 1998, one case in 1999 and 2 cases in 2000. However, out of 10 cases meant for trial in the year 2000, only in one case trial was completed and ended in acquittal after trial. The low rate of disposal by the Court, which is 10% throws a big question mark on the law and order situation in the country and the image it creates in the minds of public about prevailing Criminal Justice System.

_________

1. Crime in India, p. 358 (National Crime Records Bureau, Ministry of Home Affairs, Government of India, 2000).

The information furnished hereunder shows the details of personnel arrested in custodial rape cases and the disposal details thereon by the police and the disposal of the Courts during 1996 to 2000.

PERSONS ARRESTED AND THEIR DISPOSAL IN CUSTODIAL  RAPE CASES 1996-20001

Sl.

No.

Year

Number of Personal

 

 

Arrested during the year

Under arrest/ bail including persons whose cases were pending for investigation from previous years

Charge sheeted

Whose trial completed

Convicted

Acquitted

Per­centage

of

Con­viction

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

1.

1996

12

13

7

1

0

1

0.0

2.

1997

6

12

7

3

0

3

0.0

3.

1998

8

13

8

10

0

10

0.0

4.

1999

1

3

1

5

0

5

0.0

5.

2000

1

1

1

1

0

1

0.0

The analysis shows only one police personnel was arrested for custodial rape during the year 2000. Accordingly, only one charge-sheet was filed and only one personnel was arrested, who was acquitted.

Thus we find that in spite of Constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the growing incidence of custodial crimes has been a disturbing factor. Experience shows that the worst violations of Human Rights take place during the course of investigation, when the police with a view to secure evidence or confession often resort to third-degree methods including torture and adopt the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanizing torture, assault, rape and death in custody of police or other Governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the Rule of Law and the administration of the criminal justice system. The community rightly feels perturbed. Society's cry for justice becomes louder. Any form of torture or cruel, inhuman or degrading treatment whether it occurs during investigation, interrogation or otherwise needs the severest condemnation. If the functionaries of the Government become law­breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become a law unto himself thereby leading to anarchism. No civilised nation can permit that to happen.2

_________

1. Crime in India, p. 359 (National Crime Records Bureau, Ministry of Home Affairs, Government of India, 2000). 

2. A.S. Anand, J., VIIIth International Symposium on Torture, (1999) 7 SCC 12.

6.3 Judicial Approach to Human Rights Violations in Criminal Justice Administration

We have already seen in earlier chapter, 'Judicial Activism in relation to Rights of Accused' how the Courts have reacted to the 'accuser's right against torture and custodial violence'. Here it would be useful to mention some more cases to appreciate the deprecation of the Court to Human Rights violations by law enforcing authorities under the Criminal Justice Administration.

6.3.1 Dalip Singh v. State of Haryana

In Dalip Singh v. State of Haryana1 the Apex Court came out heavily on the police over a custodial death. In this case the deceased was arrested on a complaint of theft of a buffalo. He died in police custody due to severe beating and torture and later his body was thrown under a bus to make it appear that he had died in an accident. Justices K.J. Reddy and N.P. Singh rejected the police version and held that once it was established that the police had taken some one into custody "then it is their responsibility to show as to how the deceased went out of their custody"2. Each of the accused was sentenced to undergo rigorous imprisonment of 5 years. This puts an end to the police stories of escape and unexplained dis-appearance of citizens arrested by them formally and informally.3 In this case it was also found that the deceased and his father were not told the grounds of their arrest as well as whether their offence was bailable or not. It is also not known whether the accused was produced before the Magistrate within 24 hours of being taken into custody as mandated by the Constitution.

6.3.2 Sadasivan Mohan Chandran v. State of Kerala

Sadasivan Mohanchandran v. State of Kerala4 is another case of custodial death. In this case the accused police officials kicked the deceased and dashed his head against the wall three or four times causing injuries on the head which resulted in his death. Each of them was sentenced to undergo rigorous imprisonment of 5 years under section 304, Part-ll, IPC.

In these cases the Supreme Court did not order payment of compensation to the victim's family despite the fact that it had already laid down this as a fundamental right in Nilabati Behera5. Perhaps the reason being that no compensation was prayed for in these cases. If there would have been a case for compensation, naturally the Supreme Court would have decided in the light of Nilabati Behera. If the Court is powerless to grant any relief against the State except punishment of the wrongdoer and recovery of damages under private law by 

__________

1. MANU/SC/0346/1993 : AIR 1993 SC 2302: (1993) Supp 3 SCC 336: (1993) 2 SCALE 671: JT 1993 (3) SC 682: 1993 Cr LJ 2092: (1993) 2 UJ (SC) 266: 1993 Cr LR (SC) 335.

2. MANU/SC/0346/1993 : AIR 1993 SC 2302 (2304).

3. Krishan Mahajan, ‘Policemen in the Dock’, Indian Express, Chandigarh, Monday, May 3, 1993, p. 7.

4. MANU/SC/0121/1994 : AIR 1994 SC 565: 1994 Cr LJ 920: (1993) 4 SCALE 515: 1994 SCC (Cri) 165.

5. Nilabati Behera v. State of Orissa, MANU/SC/0307/1993 : AIR 1993 SC 1960: (1993) 2 SCC 746: (1993) 2 SCR 581: 1993 Cr LJ 2899: (1993) 2 UJ (SC) 94: JT 1993 (2) SC 503 (2): (1993) 2 SCALE 309: (1993) 2 ACJ 787: 1993 AIR SCW 2366.

the ordinary process, in that situation inordinate delays would be defeating the ends of justice.1

6.4 Some Suggestions

The guidelines, as laid down by the Supreme Court in different cases,2 are certainly laudable and a step towards humanizing the Criminal Justice System but they can serve the desired purpose only if implemented with the sincerity it deserves. Drastic steps are needed to seek compliance with the "requirements". A few suggestions are offered and these may help in minimizing the malady of custodial violence.3

6.4.1 Duty of Judicial Magistrate

To prevent custodial violence, it is essential to have a judicial magistrate on duty. He will attend to the judicial needs of the arrestees. He should have the responsibility to ensure that no person or suspect is detained unlawfully and subjected to torture. He should be vested with powers to grant bail, record confessions and issue judicial processes etc., Before granting remand he should ensure that every remand application is fortified by cogent and convincing reasons. He should get the accused medically examined before and after police remand. His presence and availability will prevent unlawful arrests and torture in police custody.4

6.4.2 Complaint Cells to Investigate Impartially the Allegations of Torture etc.

To inquire into the complaints of custodial violence a complaint cell should be set up in each and every town and city of the country. It should consist of a retired Sessions Judge as a Chairman, a retired police officer of the rank of Superintendent and a prominent citizen with good educational and administrative background as its members. On receipt of a report of custodial violence, the Complaint Cell should visit the place of occurrence and ascertain facts. If it is of the opinion that torture has been inflicted on the victim it should immediately

___________________

1. See Soli J. Sorabjee, ‘Judicial Compensation When Fundamental Freedoms Suffer. Bold Steps are Needed’ Indian Express, Chandigarh, Monday, August 30, 1993, p. 6. Court referred to article 9(5) of the International Covenant on Civil and Political Rights, but overlooked that the Government of India at the time of ratification in 1979 had filed a specific reservation. “That the Indian legal System does not  recognise the right to compensation for victims of unlawful arrest or detention”. After the above said judgment this reservation would cease to have any effect. However, in order to strengthen its international commitment to Human Rights – to prevent torture etc., which  the Government of India affirmed when it initiated and made a Unilateral Declaration Against Torture in 1979, it is submitted that it should remove the reservations withholding from Indian citizens the right to compensation incase of wrongful arrest or detention. 

2. D.K. Basu v. State of West Bengal, MANU/SC/0157/1997 : AIR 1997 SC 610: (1997) 1 SCC 416: 1997 SCC (Cri) 92: (1996) 4 Crimes 233: JT 1997 (1) SC 1: 1997 Cr LJ 743: 1997 SCC (Cri) 92. 

3. See ‘Amnesty’s Tips to India on Protecting Rights’, Indian Express, Chandigarh, Saturday, March 28, 1992 p. 9. See also ‘Why the police use “Torture”, Excerpts from India: Torture, Rape and Deaths in Custody’, published by Amnesty International, Indian Express, Chandigarh, March 28, 1992 p. 9. 

4. See Subramanian. ‘How to Prevent Custodial Violence ?’ The Hindu, Monday, May 4, 1992, p. 8.

direct the local police chief to register a criminal case against the delinquent police person and refer to crime branch for further investigation.1 If the police chief fails to follow the directions given by the Complaint Cell, he should be held personally responsible for police excesses.2 If a death has occurred in police custody, then the judicial inquiry by the Sessions Judge should be held mandatory. A continuous judicial monitoring of conditions in lock ups and jails needs to be implemented in letter and spirit in order to prevent custodial violence.

6.4.3 Accountability of the Police

The police are vested with considerable coercive powers. To prevent misuse of power there is a need for its accountability. In practice also whenever there are widespread allegations of excessive use or abuse of power many of which are supported by evidence and highlighted in the press, the accountability becomes unavoidable.3 The police must respect the Rule of Law which is an expression of the will of the people. The accountability can be ensured through the active supervision by the senior officers.4

6.4.4 Need for Constant Co-ordination between the Police Forces of Different States

There is a need for better co-operation and co-ordination between the police forces of different States and Union territories in order to ensure effectiveness in the protection of Human Rights. Presently, there are about 30 police systems and 10 lakh police personnel spread in small groups all over the country. This can be achieved by constant exchange of information, experience and some additional innovative measures5. There is also the need to create early warning systems to prevent Human Rights violations and the electronic media can prove very useful in this respect. It will help in building the image of the police and fix up the responsibility in case of Human Rights violations.

6.4.5 Permit Human Rights Groups/NGOs to Visit Place of Alleged Violations

The place of Human Rights violations should be kept open to Human Rights groups who at least meet the test of impartiality and whose credibility is impeccable.6 It would be better if they are fed with cross-checked information on both the versions so that they can investigate and report on Human Rights

________

1. See Subramanian. ‘How to Prevent Custodial Violence?’ The Hindu, Monday, May 4, 1992, p. 8. 

2. See N.S. Saksena. ‘Hold Chiefs Responsible for Police Excesses’, Indian Express, Chandigarh, Monday April 6, 1992 p. 7. 

3. Yogesh K. Tyagi, ‘The Indian Police and Human Rights. A Synoptic View’, paper presented in a Seminar on Indian Police and Human Rights organised by Indian Institute of Public Administration, J&K Regional Branch, Jammu Tawi on April 17-18, 1992. 

4. Section 6 of the Armed Forces Special Powers Act granting security forces immunity from prosecution and provisions inhibiting prosecution of police officers-such as existing under section 197 of Cr. P.C. should be abolished. 

5. Yogesh K. Tyagi, ‘The Indian Police and Human Rights. A Synoptic View’, paper presented in a Seminar on Indian Police and Human Rights organised by Indian Institute of Public Administration, Jammu and Kashmir Regional Branch, Jammu Tawi on April 17-18, 1992. 

6. See ‘Amnesty’s Tips to India on Protecting Rights’, Indian Express, Chandigarh, Saturday, March 28, 1992 p. 9.violations. It will reduce the chances of exaggerated reports of official atrocities for propaganda purposes which is otherwise an extension of the warfare conducted by terrorists.

6.4.6 Human Rights Awareness

There is an urgent need to provide a proper and comprehensive knowledge of Human Rights to the police force. The emphasis should be specially on the rights of women, children, Scheduled Castes and Scheduled Tribes and weaker sections of the society. The protection from unlawful custody and custodial violence should be brought in force as a part of the general picture. Mere knowledge of various sections of Indian Penal Code and Criminal Procedure Code is not sufficient. It must be inculcated in the mind of every police person that his primary commitment is to the Constitution and the Rule of Law, and these must be respected in all circumstances, notably the mandate that a detenus be produced before the Magistrate within 24 hours of arrest and that women and children are not taken to police stations for the purposes of investigations.

Every police officer irrespective of his status should be made familiar with Human Rights documents,1 such as Universal Declaration of Human Rights, International Covenant on Civil and Political Rights: Standard Minimum Rules for the Treatment of Prisoners; The Standard Minimum Rules for non-custodial Measures (The Tokyo Rules); Code of Conduct for Law Enforcement Officials; Body of Principles for the protection of all persons under any form of Detention or Imprisonment; Rules for the Protection of Juveniles Deprived of their Liberty; Convention against Torture etc. These instruments should be translated into the regional languages and recorded on video films distributed and shown to police officers from time-to-time. The government should encourage the NGOs in the dissemination of knowledge on Human Rights because they are going to remain an indispensable part of Human Rights movement both at the domestic and international level.2

6.4.7 Recommendations of the National Police Commission

The recommendations made by the National Police Commission in its reports relating to selection of police officers, their training, supervision, working conditions and pay and an effective machinery to investigate Human Rights violations by the police be implemented in letter and spirit without any delay. However, the Government has so far failed to implement the recommendations or take effective steps to prevent the recurrence of torture, rape and other forms of custodial violence.

___________

1. Recently the Jain-Aggarwal Committee which inquired into anti-Sikh Violence of 1984 recommended in its report fresh training for all ranks above Assistant Sub-Inspectors. The Committee was of the view that it was the behaviour of the police which resulted in violence. 

2. Yogesh K. Tyagi, ‘The Indian Police and Human Rights. A Synoptic View’, paper presented in a Seminar on Indian Police and Human Rights organised by Indian Institute of Public Administration, J&K Regional Branch, Jammu Tawi on April 17-18, 1992. See also Subramanian. ‘How to Prevent Custodial Violence?’ The Hindu, Monday, May 4, 1992, p. 8.

6.4.8 National Policy on Human Rights

The Human Rights should be a priority sector to which the entire nation should be committed. The Government should adopt an official policy to protect Human Rights. It should enact a law about the safe custody and medical examination of the accused remanded in police custody. It should award compensation to the victim's family in the event of his death during police custody. The delinquent police officials should be held strictly liable and accountable for the crime inside the police station. The offending police officials in case of conviction besides the requisite penalty to which they will be liable under the criminal law as per Court's verdict be also made personally liable to pay fine. The fine so realised should be paid to the victim's family.

6.5 Some Recommendations from the Law Commission of India

Recently Law Commission of India observed1 that the extensive Human Rights violations due to police arrests are just ignored and treated as a part of the essential preliminary police response to maintain law and order and prevent crime. It states that "complaints of abuse of power of arrest continue unabated in the country and very often it is the poor and persons without official or political clout who become the victims of police excesses." It observes that the percentage of undertrial prisoners is unusually large and many granted bail are unable to avail of the facility owing to their inability to furnish sureties or to comply with the conditions of release. Therefore, it proposes that the best way to reduce the number of undertrial prisoners is to regulate arrests. In its report the Commission also notes that it has attempted to strike a balance between the liberty of citizens (the most precious of all fundamental rights) and the social interest in the maintenance of peace and law and order.2

The sweeping changes the Commission has suggested are with a view to delineating and regulating the power of arrest without warrant vested in the police.3 The Commission says that no arrest should be made merely for questioning a person, as it amounts to an unlawful interference with the personal liberty guaranteed by article 21 of the Constitution of India. Additionally, to arrest a person on suspicion is an awesome power vested with the police and it must be regulated to prevent abuse. The Commission found that arrests under preventive provisions have been more in number than arrests for substantive offences, and further that a large number of arrests have been in respect of bailable offences, which tend to be non-cognizable offences.4 The Commission has suggested three major changes to be brought about in the Criminal Procedure Code viz.,

1. No person shall be arrested for offences that are at present categorised as bailable and non-cognizable. For such offences as are under the category of

__________

1. 177th Report of the Law Commission of India on the Law relating to Arrests. 

2. Dr. P.J. Alexander, former Director-General of Police, Kerala, India, Some recommendation from the Law Commission of India on arrest and detention (website: http://www.Article 2.org/mainfile.php/0102/27/). 

3. Section 41 of the Criminal Procedure Code. 

4. Where the police cannot arrest without a warrant or order from a Magistrate. non-cognizable offences no arrest shall be made by the police and no Court shall issue an arrest warrant either.

2. In respect of offences, treated as bailable and cognizable, also no arrests shall be made but an "appearance notice" shall be served on the accused directing him to appear at the police station or before the Magistrate as and when required.

3. Offences punishable with seven years of imprisonment and treated at present as non-bailable and cognizable would be treated as bailable-cognizable offences. The Commission has left offences for which the punishment provided is above seven years untouched.

Hence we conclude that Human Rights are a universal phenomenon and we cannot live as human beings without Human Rights. They include all fundamental freedoms and are based on mankind's demand for a life in which the inherent dignity and worth of each human being will receive respect and protection. It is possible only if we respect and take care of the needs and rights of one another. It is the responsibility of every Government to ensure and protect the Human Rights of its citizens, irrespective of their religion, caste, creed, colour, sex, race and place of birth. Under the Criminal Justice Administration the Government should see that the penal system and the sentencing process must become versatile instrument for reform of the individual and social defence. Judicial conferences and sentencing workshops and institutional training for trial judges are directly necessary. Law Schools giving special law courses in sentencing and correctional processes, exposure of judges to advanced psychological and neurological and other medical theories and practices relevant to justicing, and creation of Sentencing Boards with medical and other components are some of experiments which hold out promise for the future.1 "To wipe every tear from every eye" - Mahatma Gandhi's compassionate ambition - implies that the victims of crime - sometimes even the dependents of the convict - must be consoled and restored and the wrongdoer made to bear the responsibility for the suffering he has inflicted. A Prisoner being directed to work and earn and to make reparation for the crime, brings home his obligation to undo.2

The responsibility for the crime through re-education of the criminal3 and for that purpose, casting an obligation to make compensation to the victim may be worthwhile. The point is best made by Winifred A. Elkin:

"To many people it has always seemed a matter of common-sense that an offender should be expected to make good the loss or damage he has caused, as far as it lies within his power. This is a very different matter from

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1. V.R. Krishna Iyer, The Dialectics and Dynamics of Human Rights in India (Yesterday, Today and Tomorrow), p. 323.

2. This aspect has been well-picturised in a Dulal Guha directed Hindi feature film “Dushman”, wherein a truck driver was punished to bear the burden of the family of the deceased, who had died in an accident caused by that truck driver. 

3. The aspect has been best depicted in a V. Shantaram’s Hindi feature film “Do Ankhein Barah Haath”, wherein the criminals were reformed through education by a Senior Police 

Officer imposing a fine though both involve a payment of a sum of money. A fine is simply a punishment and money is handed over to that impersonal entity, the Court. Compensation, paid to the person who has suffered from the offence, may help the offender to realise the harm he has done and forces him to take some measure of responsibility for it. As a matter both of expediency and ethics, the principle of restitution should play an integral part in any system of re-education."1

Besides this, it is the duty of every individual also to observe the concept of Human Rights and particularly of those, who belong to higher strata of the society. Every body must bear in mind that every person is human being first and only thereafter he belongs to particular class of the society. Hence, if a doctor treats his patient as a human being and not as his client or customer, he can discharge his duty under the medical profession more effectively.2 Same applies to a lawyer, to a judicial officer and to any other profession also. Therefore, when each and every member of the society enjoys these rights then we can build up this world a better place to live in.

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1. V.R. Krishna Iyer, The Dialectics and Dynamics of Human Rights in India (Yesterday, Today and Tomorrow), p. 328. 

2. This aspect has been best explained in a recent Hindi feature film, directed by Raju Hirani, Munnabhai M.B.B.S., wherein the protagonist not possessing the required medical education, but having humanist approach, delivers better results to the patients of a hospital, whose doctors used to treat those patients more like a commodity and customer/client, rather than a human being.

© Universal law Publishing Co.