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Open Letter to Prime Minister of India and Chief Ministers of All States in India for setting up the active and vibrant Human Rights Courts

Basic Rights, Campaign

Please immediate implement the points raised and findings recorded by the Madras High Court   on the setting up of vibrant and active Human Rights Courts as courts of poor survivors of India.


http://www.pvchr.net/2012/10/open-letter-to-prime-minister-of-india.html

To,

Prime Minister of India and Chief Ministers of All States in India.

 

Dear Sirs/ Madams,

Greetings from PVCHR.

I want to bring in your kind attention towards regarding setting up the Human Rights Courts under The Protection of Human Rights Act, 1993 passed by Indian Parliament[i].

India being a diverse country with its multicultural, multi-ethnic and multi-religious population, the protection of human rights is the sine qua non for peaceful existence. It is indeed impossible to give an inclusive definition of Human Rights owing to its vast nature, however, the legislators have tried their hands in defining Human Rights as “the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India” under the Human Rights Act, 1993.

It is implicit from the definition that Human rights are omnipresent in all legislations in our country and it is the duty of the Judges to read between the lines and enforce these rights for the betterment of the society. In precise, our judgments should be articulated in such a manner to accommodate human rights whenever it is required.

The District judiciary renders an active role in dispense of justice, they have a massive duty to protect the constitutional rights of the citizens. Barring few limitations, the District Judicial Officers are in charge of all matters including application and interpretation of constitutional provisions like Articles 14, 19, 21 etc.

It is after the appreciation of work done by the District judicial officers, that the legislators enacted the Human rights Act, 1993. One of the main objectives of the Human Rights Act, 1993 is to establish the Human Rights Courts at every district level. Section 30 of the Act enables the State Government to specify for each district, a Court of Sessions to be a Human Rights Court after the due concurrence with the Chief Justice of the respective High Courts.

The motive behind the provision is to provide speedy trial of offences arising out of violation of human rights. The creation of Human Rights Courts at the district level has a great potential to protect and realize human rights at the grassroots level.

On 9th September 2011, the West Bengal government was the first to set up Human Rights’ Courts in all 19 districts of the State to ensure speedy disposal of cases concerning human rights. These courts functions from the district headquarters and it is under the District Sessions Judge. Separate public prosecutors are being appointed in each District Human Rights Court, as provided by the section 31 of the Protection of Human Rights Act, 1993.

More and more Session Courts must be specified as the Human Rights Courts for achieving the full benefits from the act.[ii] Please find the Summary of points raised and findings recorded by the Madras High Court   on the setting up of Human Rights Courts[iii]

Sl No.

Points

Findings of the Court

 

1.

Whether it can on the face of the statutory provisions under Section 2(1) (d) defining
`Human Rights' and Section 30 of PHRA dealing with constitution of HRCs for trial of offences, arising out of violation of `Human Rights' - be stated that there is no clear guidance in PHRA as to what can be regarded as `offences arising out of violation of Human Rights'?

There is a clear guidance in PHRA as to what can be regarded as  `offences arising out of violation of `Human Rights'.

 

 

 

 

 

 

 

 

 

 

 

2.

Whether there is any need or desirability to amend PHRA and specify the offences, arising out of violation of Human Rights, which can be tried by HRCs?

There is no need or desirability to amend PHRA and specify the `offences' arising out of violation of `Human Rights', which can be tried by HRCs.

 

 

 

 

 

3.(a)

 

 

 

Whether all refractions or violations of `Human Rights' embodied either in International Covenants or in the Constitution are enforceable by Courts?
and

It is only such violation of  `Human Rights' as embodied in International Covenants, treaties, etc., either incorporated in the Constitution, as justifiable right or incorporated or transformed in the municipal law, at the instance of the instrumentalities of the State that got attracted the jurisdiction of the High Court under

 

 

 

 

Article 226 or the Supreme Court under article 32 of the Constitution. The violation of such rights, if occurred at the instance of private individuals, there is no other go for the affected individual, except to seek his remedies under the ordinary law of the land.

 

 

 

Whether all such violations or refractions amount to `offences', giving rise to a cause of action for initiation of prosecution proceedings before a HRC?

In the light of the definition of `offence', as contained in Section 2(n) of the Code, `offence' arising out of violation of `Human Rights', as mentioned in Section 30 of PHRA, in the context of the definition of `human Rights' in section 2(1) (d) of PHRC, means such act or omission on the part of the instrumentality of the State, that is say , public servants, punishable by law or the time being in force, as reliable to life, liberty, and dignity of the individual and nothing else.

 

3.(b)

 

 

 

 

 

 

 

 

 

 

 

 

4.

whether violation of Human Rights, as recognised by International Treaty, Covenant or agreement, to which India is a party in the absence of any law, made by the Parliament therefore under the statutory provisions adumbrated in Article 253 read with Article 51 (c) and Entry Nos. 12 to 14 and 95 of List I and Entry No.65 of List II of the VIIth Schedule of the Constitution can be reckoned with and given effect to, either by HRC or superior Courts of jurisdiction High Courts Supreme Court creatures of the Constitution?

 

Violation of `Human Rights', as recognised by International treaty, Covenant or agreement, to which India is a party, in the absence of any law made by the Parliament therefore under the statutory provisions adumbrated under Article 253 read with Article 51(c) and entry Nos12 to 14 and 95 of List I and Entry Nos65 of List II of the VIIth Schedule of the Constitution can not be reckoned and given effect to either by HRCs or superior Courts of jurisdiction High Courts and the apex Courts creatures of the Constitution. However, there can be no prohibition for the courts in India to apply the principles underlying such covenants, treaties etc. in the process of interpretation, if they are not in conflict with municipal law or not opposed to fundamental rights of Chapter III of the Constitution.     

 

 

 

 

 

 

 

 

 

 

 

5.

Whether HRC is not a Court or Tribunal constituted under Article 323-A or 323-B of the C Constitution of India?

 

HRC is not a Court or Tribunal of a Court constituted under Article 323-A or 323-B of the Constitution.  But it is a Court constituted under Section 30 of PHRA, as a Special Court in the cadre of a Court of Session with powers of a Court of original jurisdiction.

 

 

 

 

 

6.

Whether the constitution and designation of a Court of Sessions, in each and every District, as HRc a special Court with powers of a Court of original jurisdiction for trial of all offences, arising out of violation of Human Rights, irrespective of their classification into various categories of offences - First Class, Second Class or exclusively triable by a Court of Session - is permissible in Law?

The Constitution and designation of a `Court of Session' in each and every District as HRC a `Special Court' - with powers of a Court of original jurisdiction for trial of all offences arising out of violation of `Human Rights', irrespective of their classification into various categories of offences - First Class, Second Class or exclusively triable by Court of Session is permissible under Law.

 

 

 

 

 

 

 

 

 

7.

Is it legally permissible for the relevant provisions of the Code to be swung into operation for the trial of offences out of violation of Human Rights, excepting matters in respect of which specific provisions had been made in PHRA, by virtue of the sanguine provisions, in the shape of Section 4, 5 and 26 of the Code?

It is legally permissible for the relevant provisions of the Code to be swung into operation for the trial of offences arising out of violation of `Human Rights', excepting matters in respect of which specific provisions had been made in PHRa, by virtue of sanguine provisions, in the shape of Section 4, 5 and 26 of the Code.

 

 

 

 

 

 

 

8.

Whether it is desirable to expressly provide for an appeal/revision in PHRA to the High Court against a decision of HRC?

There is no need at all to expressly provide for an appeal/revision in PHRa to the High Court against the decision of HRCs.

 

 

 

9.

Whether it is necessary for this Court to make and issue General rules prescribe Forms etc., for regulating the practice and proceedings of HRCs
under Article 227 of the Constitution

There is no necessity or need for this Court of make and issue General Rules and Prescribe Forms, etc., for regulating the practice and proceedings of HRC under Article 227 of the Constitution.

 

 

 

 

 

10.

Whether it is desirable to incorporate a specific provision in PHRA as to the inapplicability of anticipatory bail provision, as contained in the Code?

It is not at all desirable to incorporate a specific  provision in PHRA as to the inapplicability of anticipatory bail provision in the Code.

 

 

 

 

 

11.

Whether it is desirable to frame a rule fixing a time-limit for trial and disposal of cases, arising under PHRA?

It is not desirable to frame a rule fixing a time limit for trial and disposal of cases arising under PHRA, except to make an emphasis that every earnest effort shall be taken to try and dispose of those cases as expeditiously as possible.

 

 

 

12.

Is it not incorrect to state that HRC, being a Criminal Court, has no power to grant compensation, except under Section 357 of the Code?

It is correct to state that HRC, being a Criminal Court has no power to grant compensation, except under Section 357 of the Code.

 

 

 

13.

Whether it is desirable or necessary that HRCs are empowered to grant compensation subject to a prescribed limit to the victims y excluding the jurisdiction of the Civil Courts, with a discretion for such Courts of permit the Government - Central or State, as the case may be to recover the whole or part of the compensation so awarded from the officer(s), who are found guilty and to award interim compensation to the victims, befitting such reliefs?

It is desirable and necessary that HRC, by way of amendment to be brought in, must have to be invested with the exclusive jurisdiction, in the matter of award of compensation to the victims of Human Rights offences, without prescribing any limit therefore, ousting the jurisdiction of civil court and vesting public law jurisdiction inhering in Writ Courts - High Courts and Supreme Courts reliable only to the award of compensation for violation of fundamental rights of citizens - with a discretion for such courts to permit the Government - Central or State- to recover whole or part of compensation from the officer(s) who are found guilty and to award interim compensation to the victims, befitting such a relief.  Until necessary amendments of PHRA on such lines are m,made, the existing jurisdiction of various forums in the matter of award of compensation to the victims of Human Rights offences will not get affected and continue to operate.

 

 

 

 

 

 

 

 

 

 

 

 

14.

Is it not incorrect to state that the scheme of PHRA in constituting NHRC, SHRC and HRC indicates, in no uncertain terms, that NHRC and SHRC are akin to Commissions of Inquiry set up under CIA and have no powers to give a definite judgement in respect of offences, arising out of violation of Human Rights and are constituted with the object of creating awareness of Human Rights at the Governmental level and public at large, except the fact that they are permanent Standing Commission, while in sharp contrast, the only institution, which could inquire into, adjudicate upon and punish for violation of human rights is the HRC - first of its type anywhere in the world?

It is correct to state that the scheme of PHRA in constituting NHRC,SHRC and HRC indicates, in no uncertain terms, the NHRC and SHRC are akin to the Commission of Inquiry set up under CIA and have no powers to give a definitive judgement in respect of offences arising out of violation of Human Rights and are constituted with the object of creating awareness of Human Rights at the Governmental level and the public at large excepting the fact they are permanent Standing Commissions, while in sharp contrast, the only institution which can inquire into, adjudicate upon and punish for violation of Human Rights is HRC - first of its kind, anywhere in the world.    

 

 

 

 

 

 

 

 

 

15.

Whether Human Rights Commission - NHRC and SHRC - have powers to pass interim orders, pending inquiry by them?

The Human Rights Commission - NHRC and SHRC have only powers to recommend to the concerned Government for interim relief to the victims of Human Rights violation and definitely have no powers to pass orders interim or final, pending inquiry.

 

 

 

 

 

 

16.

Is it correct to state that PHRA recognizes the principle that locus stand must stand expanded, in the sense of allowing or permitting, apart from the aggrieved party, anyone on his/her behalf to move HRC for redress of his/her grievances?

It is crystal clear that this Act - PHRA to a certain extent relaxes the Rule relating to locus stand, in the matter of lodging or preference of a complaint before Human Rights Commission, in sub-clause (a) of section 12 thereof, as we have indicated earlier. However, the locus stand principle is kept in tact in the matter of approaching HRCs for redress of grievances of affected parties.

 

 

 

 

 

17.

Is it correct to state that the rigidity of IEA does not bind HRC, because human justice is not to be fettered by Sir James Pitt Stephen's prescription of yore?

On the fact of Section 2(1) of the Code defining `judicial proceeding', it cannot at all be stated that the proceeding before HRCs is not a judicial proceeding. Once a conclusion is reached that the proceeding before HRC is a judicial proceeding, it cannot at all be stated that IEA is not at all applicable  to the proceedings, the rules of evidence contained therein will have a full sway in the matter of determination of questions arising for consideration in such proceedings. Law of evidence as a now available is rather inadequate to meet the situation and therefore it is, certain amendment is called for to IEA in order to contain recurrence of occurrence in police lock-ups and jails that emanated at the hands of the instrumentality of the State. until the amendment, as suggested by the Law Commission, in its 113th report, is brought about, the victims of  Human Rights offences have to face concomitant obstacles in proof of such offences before HRCs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

18.

Whether HRCs are required to have a change in the outlook, particularly in involving custodial crimes and exhibit more sensitivity and adopt a realistic - rather

No case involving major crimes, such as custodial deaths has been disposed of by any of HRCs in this State attracting the attention of this Court. Such being the case, the outlook of such courts in the than a narrow and technical approach? Disposal of such cases, is beyond one's comprehension and therefore, the question of issuing guidelines for change of outlook will never arise for consideration. HRCs in the State will have to exhibit more sensitivity and adopt realistic rather than narrow and technical approach in the disposal of such cases in the future ahead.

 

 

 

 

 

 

 

 

 

19.

Whether the usage of expression, `specify a Public Prosecutor' , in Section 31 of PHRA  can be read to mean a Public Prosecutor, appointed under Section 24 of the Code?

 

Without a Special Public Prosecutor, as contemplated under Section 32 of PHRA, HRCs cannot at all function. Such being the case, it behaves upon the State Government to take immediate steps for the appointment of a Special Public Prosecutor for conducting cases of HRCs.

 

 

 

 

 

20.

Whether a direction can be issued to the Government for the appoint of a Special Prosecutor, in accordance with the salutary provisions adumbrated under Section 31 of PHRA, within a time frame, if no such attempts have been made till now?

Court can definitely issue a direction for the appointment of a Special Public Prosecutor for conducting cases in HRCs within a time frame. However, Court is not issuing any such direction, in the fond trust and hope that the State Govt., even without issuance of any such direction in this regard, would hasten and complete the appointment of Special Public Prosecutors to all HRCs in this State in accordance with law, within a period of two months from the date of receipt of a copy of this Order.

 

 

 

 

 

 

 

 

 

 

21.

Whether by taking into consideration the sordid fact of signal importance that the victims of Human Rights Violation are on the face of application of the relevant provisions of the Code reliable to lodging of a complaint or information, in respect of a cognizable offences to approach the very same agency for investigating their complaint, which in the first instance got involved in the Commission of Human Rights offences against them a facet going against the very essence of natural justice and fairplay - it is permissible to find a solution in the existing state of affairs for the constitution of a SIT for investigation of Human Rights offences of cognizable nature by purposeful and meaningful interpretation of Section 37 of PHRA for the purpose of advancement and in aid of implementing the objectivity sought to be achieved thereby?

In order to get over the difficulties Court have pointed out, it would be better in the interests of all concerned, for the Govt., to constitute SITs in such numbers as would be necessary to meet the situation.  Court trusts and hopes that the Govt., would initiate necessary steps for the constitution of SITs as expeditiously as possible.  This point is answered accordingly.

 

 

 

 

 

 

 

 

 

 

 

 

22.

Since the very enactment of PHRA is mainly for curbing Human Rights violations and for punishing the perpetrators of Human Rights offences, who are none-else than public servants, is it correct to state that the provisions of Section 197 of the Code cannot be made applicable, inasmuch as the same must have to be construed to have been dispense with?

It is not correct to state that Section 197 of the Code cannot be made applicable, inasmuch as the same must be construed to have been dispensed with in prosecution of cases, arising out of Human Rights offences

 

 

 

 

 

 

 

23.

Is it necessary for a label or a report to be affixed to the complaint of offences arising out of violation of Human Rights that it is a fit case for launching prosecution, before HRCs a condition precedent for the wheels of criminal law to be set in motion?

It is not necessary for a label of a report to be affixed to the complaint of offences, arising out of violation of Human Rights that this is a fit case for prosecution before HRCs a condition precedent for the wheels of criminal law to be set in motion.

 

 

 

 

 

24.

Is it legally permissible for this Court in case, it comes to the conclusion that PHRA is materially defective in such a way, as is not possible to implement its provisions in ` as is where is state' for achieving the object, for which the same had been enacted to issue a Mandamus to the Union Government to formulate and frame adequate statutory provisions for giving succour and relief to the citizens of this country, whose rights, it is said, it is said, are being violated day in and day out?

Court however, found that certain deficiencies, numbering three or thereabouts were attributed in this PHRA and if those deficiencies stand rectified by way of amendments by adding or creating a new offence of `torture' which affects the dignity of the individual in IPC and introducing a new provision, in the shape of Section 114-B in IEA revising the burden of proof regarding Human Rights Offences, as indicated by the Law Commission in its 113th report, besides investing power of exclusive jurisdiction with HRCs to make award of compensation to the victims of Human Rights offences, prescribing no limits, ousting the jurisdiction of Civil Court and vesting Public Law jurisdiction, inhering in the Writ Courts - High Court and Supreme Court relatable only to the award of compensation for violation of fundamental rights of a citizen with a discretion for such courts to permit the Government, Central and State to recover the whole or part of it from the officer(s) who are found guilty and to award interim compensation befitting such relief, by making suitable provision in PHRA by way of amendment, the implementation of PHRA will stand on a better pedestal.  Court trusts and hopes that the Union Government will very soon bring necessary amendments of IPC, IEA and PHRA, as Court had indicated for giving succour and relief, in a better way, to the citizens of this country whose Human Rights, it is said, are being violated day in and day out/.  Court may, however, point out that it is not legally permissible for this Court to issue a Mandamus to the Union Government to being in amendments to the enactment's.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

25.

Whether the Court of CJM, Periyar District at Erode a designated HRC has the necessary and requisite power under PHRA to entertain the petition of the Tamil Nadu Phazhangudi Makkal Sangam represented by Mr. V.P.Gunasekaran, B.E. General Secretary?

The Court of CJM, Erode HRC a Criminal Court, not having any powers of writ jurisdiction under Article 226 of the Constitution, cannot at all entertain the petition presented before it by the Tamil Nadu Pazhangudi Makkal Sangam rep

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