HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM

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JUSTICE J.K.MATHURMEMORIAL TRUST

HUMAN RIGHTS VIS--VIS THE CRIMINALJUSTICE SYSTEM

Home

VIII Justice J.K.MathurMemorial Lecture by Mr

Justice S.H.Kapadia

HUMAN RIGHTS VIS- -VIS THE CRIMINALJUSTICE SYSTEM -

JUSTICE S.B.SINHA,JUDGE SUPREMECOURT OF INDIA

Article: TERRORISM:Justice S.B.Sinha,

Judge Supreme Courtof India

Lecture by JusticePradeep Kant on

Human Rights

IIIrd Memorial LectureBy Justice

M.N.Venkatchalia

-JUSTICE S.B.SINHA, JUDGE SUPREME COURT OF INDIA

Human Rights vis--vis the Criminal Justice

System Justice S. B. Sinha

Judge, Supreme Court of India

The protection of human rights through the criminal justice delivery

system is an indispensable feature of any system governed by the rule of law.

the protection of human rights have been acknowledged to varying extents

across time, but since the Second World War, the universality of human

rights has been recognised by the United Nations as inherent in the very

nature of human beings a reflection of their common humanity.[1]

Criminal law has always been a great source for the enlargement of

human rights. In other words, many of our existing fundamental and

inalienable rights, if studied carefully, would have their origins in situations

and cases relating to criminal jurisprudence. Basic human rights, such as the

presumption of innocence, the right to silence of the accused and the burden

of proof of the prosecution are also the pillars on which a just criminal justice

system stands. To this end, Lord Steyn states[2] that,

[t]he basic premise is that in ademocratic society government

exists in order to protect and

promote the interests of the people.
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To achieve this goal, the actions of

government and its agencies must be

constrained by law and citizens must

be given enforceable and effective

legal rights against the state. In the

context of human rights this is the

core meaning of the rule of law. In

countries where this premise isaccepted, human rights law has

scope for developing. In countries

where this premise is not accepted,

human rights law must struggle on

infertile ground.

Although the importance of these human rights is universally accepted,

implementation levels vary from jurisdiction to jurisdiction. In India, in spite

of vast expansions across the spectrum of human rights, implementation has

not been that satisfactory. Recently, the International Commission of Jurists,

Geneva had warned that in India these very human rights stand threatened.

In addition, global human rights abuse watchers argue that if such

fundamental principles of fair trial are disregarded by the various agencies of

the state, India clearly would be guilty of clearly violating its international

human rights obligations to which it is bound by international treaty and

customary law.

It must, however, be borne in mind that ensuring human rights within the

framework of the criminal justice delivery system cannot be narrowly

construed to mean merely the protection of the rights of the under-trials, or

detainees, or convicts. In fact it can very rightly be contended that the most

essential of all human rights in a criminal justice delivery system, is the right of

access to courts of law. Emphasizing this crucial importance, Article 10 of

the Universal Declaration of Human Rights (UDHR) provides that:

Everyone is entitled in full equality

to a fair and public hearing by an

independent and impartial tribunal, nthe determination of his rights and

obligations and of any criminal

charge against him.


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In the portions that follow, these human rights and there place in the

criminal justice system and constitutional jurisprudence are explored

alongside the judicial craft that led to their expansion. Concepts that have

emerged and their proposed solutions are also delved into.

VIABLE ACCESS TO JUSTICE:

The importance of the right of access to justice for those interacting with

the criminal justice system as complainants, suspects, status offenders or

prisoners cannot be over-emphasised. As already stated, it is perhaps the

most essential of all human rights in the criminal justice system.

Access to justice also implicitly indicates an effective access. It is not

sufficient to physically have courts in all remote corners of the country. The

special situation of the vast majority of Indians also has to be borne in mind.

It is no secret that this vast majority are illiterate and uneducated and even

the elite are rarely well versed with even their basic rights. Therefore, the

law, processes, procedures and practices that govern the functioning of the

system are largely incomprehensible to the layperson and, thus, legal

assistance becomes imperative at each stage. Further, the imperativeness of

access is compounded by recent studies that show that for the

economically and socially disadvantaged person, the denial of access to

justice, which is a non-derogable right, could result in multiple violations of

human rights including the deprivation of the means of survival and have the

effect of delegitimising the legal system in relation to such person.[3]

A second facet of the right of access is that such access must be to an

independent and impartial court of law. Our country has strived greatly in

this direction and thereby, courts such as that of Nazi Germany, communist

countries of East Europe, or of Stalins Russia and apartheid-era South

Africa are the very antithesis of the court system we have sought to build in

our Nation. Even in the future, it will be vital to bear in mind the Basic

Principles on the Independence of the Judiciary endorsed by the United
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Nations General Assembly on 29 November 1985, and, what Lord Steyn

terms the principle of equality of arms of the parties. The latter principle

requires that the courts of law in a fair and just legal system provide the

prosecution and defence equal rights before the court, and in such manner as

which provide the accused reasonable opportunity to place his or her case

before the court of law.

JUDICIAL CREATIVITY IN PROMOTING A RIGHTS BASED

APPROACH:

The Supreme Court of India displayed remarkable craftsmanship to

promote and protect human rights. Through, what Justice Krishna Iyer

termed judiatrics, the Apex Court has succeeded in incorporating some

of the Directive Principles of State Policy into Part III of the Constitution a

judicial creativity commended even by the highest courts of other

jurisdictions. For instance, Justice Albert Sachs of the South African

Constitutional Court once had occasion to comment that, the Supreme

Court of India smuggled the rights from Part IV to Part III of the

Constitution.

Legal justice requires that offenders of law should be brought to book and

punished. Within this constitutionally accepted practice of protecting the society

from misguided human beings, at the stage of investigation as suspects; at the

stage of trial as under-trials; and at the stage of punishment through

incarceration, certain rights such as the right to liberty are confiscated from

prisoners. This does not mean, however, that all rights can be just confiscated

from prisoners. They still have certain basic inherent rights as human beings,

which cannot be confiscated by jail officials. The Supreme Court, in a wave of

PILs in the late 1970s and early 1980s were emphatic that the basic rights of

human beings should be protected even when they are behind bars. Even the

perpetrator of the most grievous crime against society does not deserve to be

shackled, beaten and tortured. That is not the aim of the justice delivery system.

We do not have a system of retributive justice, where one can extract a tooth to

pay for an eye. We have instead a system of reformative justice and this requiresthe holistic reformation of the mind of the criminal to steer him away from

committing further crimes.


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They were shocked by the prevalent conditions in jails across the country

wherein even in model jails like the Tihar Jail there were such flagrant violations

of Human Rights and gross subjections to indignity. Apart from being given

property food and clothing, they were tortured and beaten and kept chained up.

The Supreme Court sought to bring an end to these systems which were a dark

blot on the Indian justice delivery endeavour. In fact, on a visit to a jail these

days, the differences are noticeable and prisoners indeed owe the protection of

their rights in detention to the strong line taken by the Supreme Court in this

regard.

The judiciary has also worked extremely hard in order to prevent the denial of

the right of speedy trial to under-trial prisoners. The Supreme Court of India in a

catena of decisions has recognized this. The Andhra Pradesh High Court has

noticed all these judgments and in Mir Mohammed Ali v. Government of

Andhra Pradesh[4] has given number of directions for release of under-trial

prisoners who have been languishing in prison without proper trial for a long

time.

In all societies there is a need to sensitise civilised world to the reality that the

accused and prisoners have rights, which are almost equal to the rights of those

people in the society and in our country, it has been the judiciary who has truly

been the torch bearer in this regard.

As a result, today, not only do those enveloped by the criminal justice

system have the right to interview for prisoners (recognised in Prabha Dutt

v Union of India[5]), the right to a fair trial (recognised in Police

Commissioner, Delhi vRegistrar, Delhi High Court[6]), the right against

handcuffing (recognised in Prem Shankar Shukla v Delhi

Administration[7]), and the right against torture and custodial violence as a

human right (recognised inD.K. Basu v State of West Bengal[8]); they also

have the human right of being presumed innocent (recognised inNarendra

Singh v State of M.P[9]), the right against being compelled to be a witness

against oneself (inD.K. Basu quotingMiranda v Arizona[10], and have the

right of access in the broadest possible terms, including access with free legal

aid (recognised in State of Maharashtra vM.P.Vashi[11]) and in the most

expedited manner possible (see,Abdul Rehman Antulay vR.S. Nayak and
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Ors.[12]).

Much ink has been spilled in expounding on the contours of the rights

mentioned above. As regards implementation, many, both nationally and

internationally, have opined the need for such a rights-based approach.

For instance, the International Commission of Jurists remarked that, "

[c]onsidering the widely documented human rights abuses committed every

day in India, a reform of the criminal justice system must follow a rights-

basedapproach and be built on an independent and incorrupt judiciary, with

authority to review all actions of law enforcement officials and the

prosecution. [emphasis supplied]

In addition to a rights based approach, it is also necessary that judgesmould decisions to the specific facts and circumstances of case. for instance,

recently, in Phillipines, a young boy who was paralytic has been charged

with rape of a girl. His lawyer even failed to obtain an order of bail although

it was contended that the boy is required to take help from others for going

to toilet and even cannot lift a spoon. It had strongly been contended that

such a case should not go for trial at all. Similarly, an appellate court of

France acquitted several persons including some foreigners who were

charged with commission of pedophilia. They were convicted by a

magisterial court only on the basis of evidence of a child witness, but before

the appellate court, the prosecution case failed like a pack of cards. The

acquitted accused persons including two couples had to remain behind bar

for three years. The case gave rise to troubling questions about the

willingness of social services and psychiatric experts to accept

uncorroborated allegations made by young children, and about the power

given to lone examining magistrates under the French judicial system. The

Judicial Minister had to apologize to the accused and their families on

television.[13] Keeping in view the human right perspective, it should be the

duty of the judicial officers to scrutinize such cases more strictly so that

innocent persons are not met to suffer.

Efforts of the superior courts of the country to provide new contents to

criminal justice have also resulted in paradigm shifts in prison reforms,

treatment of undertrials, and rehabilitation of victims. As a measure of the

advances achieved in the protection of human rights, one may also turn the

pages of the landmark judgment inRudul Sah v State of Bihar[14], where

the Supreme Court ruled that the victims of unlawful or illegal arrest wereentitled to compensation for violation of their fundamental rights under Part

III of the Constitution. The judgment is similar in many respects to that

delivered in R (Mullen) v Secretary of State for the Home
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Department[15], where a convict who was deported from Zimbabwe to

the United Kingdom was granted compensation for illegal incarceration since

it was found that his deportation was an abuse of process, and that the

resulting conviction was a miscarriage of justice, violating Section 133 of

the English Criminal Justice Act that implemented Article 14(6) of the

International Covenant on Civil and Political Rights (ICCPR).

It may therefore be safely said that great strides have been made on both

sides of the prison walls that is, in open society, as well as in prisons where

the fear of torture lets the principle of silence be the rule. Far-reaching

rulings handed down by the superior courts of the country have ensured that

no ones human rights are taken away by way of incarceration, or that a

prisoner becomes a non-entity in captivity. This has been possible because

our national courts have commendably discharged their responsibilities in

accordance with the famous Bangalore Principles (1988) which invite

national constitutional courts to interpret their constitutional texts in a way

that is generally harmonious with the basic principles of international law,

including as that law states human rights and fundamental freedoms. Justice

Kirby of the Australian High Court, drawing from the opinion of Justice

Kennedy of the United States Supreme Court inLawrence[16], termed it as

the acceptance of jurisprudence from a wider civilization[17].

SUGGESTED INNOVATIONS FOR BETTER

IMPLEMENTATION:

In order that implementation might be improved the adoption of several

innovations has been suggested from time to time. For instance, the Justice

Malimath Committee on Criminal Justice Reforms, a component of any

discourse on human rights vis--vis the criminal justice system, had

suggested certain radical, yet progressive, reforms in the system, including

the need for a Victim Support Service Coordinator to work closely with the

police and courts to ensure delivery of justice during the pendency of the

case. It also spoke of economic crimes and organised crimes. The

presumption of the Committees suggested reforms was that an inquisitorial

system was more conducive to delivering justice in criminal cases than the

present adversarialsystem. Critiques however argue that the suggested

reforms of the Committee concentrate more on strengthening the hands of

the administrative machinery than on the rights-based approach mentioned


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earlier.

SENTENCING POLICY:

The time is ripe to develop a sentencing policy in recognition of the fact

that sentencing is an important and universally recognized aspect of human

rights. After all, the question that must inevitably be answered is: why should

a person, even if he is lawfully convicted, spend more time in prison than is

absolutely necessary? In this respect, the case ofDPP v Mollison[18], from

Jamaica immediately leaps to mind. In that decision, the Privy Council ruled

that a convict who had been detained, and was liable to be so incarcerated

during Her Majesty pleasure or that of the Governor General of Jamaica

exercising her authority, was entitled to relief as such incarceration would

tantamount to a violation of the principle of separation of powers. It was

held that only a court, and not the executive, was authorized to determine

how long the period of detention should be. Some other watershed decisions

are those ofReyes v R[19],R v Hughes[20], andFox v R[21], in which it

has been held that a mandatory death penalty for murder would be

unconstitutional as violative of the right to protection against inhuman and

degrading treatment, if the court did not have the opportunity to exercise its

discretion as to whether the extreme penalty was required to be awarded.

EMERGING CONCEPTS:

I would now turn to certain emerging concepts in the field of human

rights vis--vis the criminal justice system. This would help provide an insight

into the broad spectrum of contemporary issues concerning human rights in

the criminal justice system that are often ignored in conventional discourses

on the subject.

(i) Measures for the Prevention of Terrorism:

Perhaps the most heated debates concerning the protection of human
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rights in the criminal justice delivery system have occurred with respect to

terrorism that poses a clear and present danger to the sovereignty and

integrity of our Nation. The now-repealed Prevention of Terrorism Act

2002 had created much controversy when it sought to incorporate special

measures into the ordinary criminal justice system. For instance, POTA

allowed for extended police custody, intrusive police investigation, admission

of police confessions in trial, and summary procedures in special courts.

Such deliberations on the balance required between the protection of human

rights on the one hand, and the interests of national security on the other, are

however, not specific to India alone. The rise of fundamentalism and

international terrorist organizations has made countries around the world

gravitate in favour of more stringent measures for the safety of their people.

Needless to say, in many a case and Guantanamo Bay is only one example

the necessities of national security have resulted in large-scale violations of

human rights.

In very recent judgments of the House of Lords and the United States

Supreme Court one can quite easily discern the role that courts and the

administration must play in efforts to curb international terrorist activities. A

and Ors. v Secretary of State for the Home Department[22], was a case

in which certain foreign (non-UK) nationals had been detained for an

indefinite period under the EnglishAnti-terrorism, Crime and Security Act

2001 following the September 11 attacks on the United States. While

acknowledging that the legislature and the executive reserved the right as per

the principle of proportionality to determine what measures would secure the

safety of the citizens, the House also indicated that the measures adopted for

protecting the security and sovereignty of a country must not be permitted to

transgress the human rights of detainees. Thus, in the opinion of the House,

while suspected terrorists could be detained indefinitely proportionate to the

need for such detention in the interests of national security, the human rights

of such detainees could not be violated in as much as they could not be
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discriminated against for detention merely on the basis of their nationality or

race or colour of skin. In Abbasi and Anr. v Secretary of State for

Foreign and Commenwealth Affairs[23], the Court of Appeal (Queens

Bench) the Court expressed its anxiety at the state of the British detainees

held at Guantanamo Bay by the United States on charges of waging war

against that country and its allies.

In the American cases ofRasul et al. v Bush, President of the United

States, et. al.[24], Hamdi et al. v Rumsfeld, Secretary of Defense et.

al.[25], andRumsfeld v Padilla[26] as well the Court has stressed on the

absolute need for protecting the human rights of the suspected terrorists and

other such enemy combatants, including by providing them a right to

counsel.

This balancing of interests between the rights of the detainees and the

interests of national security is an essential characteristic of a fair trial.[27] In

our criminal justice system, it would not be wholly untrue to opine that the

interests of victims are in many instances marginalized for want of rules that

require the court to give equal merit to them. For instance, the rule that the

guilt of the accused must be proved beyond all reasonable doubtdoes

render it improbable in many cases of terrorist activities to give

corresponding weight to the interests of the victims, and the society at large.

In fact, in State of M.P. v Shyamsunder Trivedi[28], the Supreme Court

while referring to the recommendation of the 113th

Report of the Law

Commission to insert Section 114-B in the Indian Evidence Act observed

(albeit, in the context of the burden of proof on the police officer in cases of

custodial violence, but still a relevant observation):

The exaggerated adherence to and

insistence upon the establishment of

proof beyond reasonable doubt,

ignoring the ground realities, the factsituations and the peculiar

circumstances of a given case

often results in miscarriage of justice
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and makes the justice delivery

system a suspect.

Then, in Shivaji v State of Maharashtra[29], the Apex Court opined,

our jurisprudential enthusiasm for

presumed innocence must be

moderated by the pragmatic need to

make criminal justice potent and

realistic. A balance has to be struck

between chasing chance possibilities

as good enough to set the delinquent

free and chopping the logic of

preponderant probability to punish

the marginal innocents. The dangers

of exaggerated devotion to the rule

of benefit of doubt at the expense of

social defence and to the soothingsentiment that all acquittals are

always good regardless of justice to

the victim and the community

demand a special emphasis in the

contemporary context of escalating

crime and escape.

In a recent article in the Journal of the National Human Rights Commission

of India[30], Fali Nariman writes of the practice under Scottish criminal law

where the concept of a fair trial is not solely a question for the accused

fairness to the public is also a legitimate consideration (Lord Wheatley in

Miln v Cullen[31]). Similarly, the right of the accused to remain silent

protected by Article 20 (3) of the Constitution is also considered

favourable to the accused terrorist. It is therefore advocated that in cases of

terrorist activities, it would not be a violation of the human rights of the

accused if he or she were compelled by law to assist the State in

investigation of such heinous crimes.

(ii) Whistleblowing:

A recently discussed issue is that of protecting the interests of

whistleblowers through the criminal justice system. The legal

protection available under Indian law fails adequately to protect

whistleblowers against retaliatory action by employers, and as a

result employees who have access to information that would be in


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public interest to disclose, often remain silent.[32] The case for

allowing public sector employees to participate in debate is at its

clearest when the issue is seen as an aspect of freedom of

expression. The argument is strongest when applied to the speech

of those who work in the public sector, whose jobs involve the

carrying out of government policy. However, unlike the UnitedKingdom where the debate as to whistleblowers rights is confined

to issues relating to the justness of the whistleblowers dismissal

from service, in India, after the infamous Satyendra Dubey murder

case (currently the subject-matter of a PIL: Rakesh Uttamchandra

Upadhyay v Union of India and Ors.[33]), the issue has taken a

more sinister angle. The situation becomes graver when we

consider that despite assurances in the Supreme Court, theGovernment has done precious little to legislate on the matter. The

criminal justice system must, accordingly, be so modified as to

guarantee the whistleblowers their freedom of expression along

with safety and security of their being.

(iii) Right to Privacy:

In District Registrar and Collector, Hyderabad Vs. Canara Bank and

Another [(2005) 1 SCC 496] the draconian power given to the authority by A.P.Amendment of Stamp Act to go on a rampage searching house after house used for

custody of document and a possibility of wild exercise of said power; was struck

down. The Supreme Court noticed the development of law in India beginning from

M.P. Sharma Vs. Satish Chandra [1954 SCR 1077] to Sharda Vs. Dharmpal,

(2003) 4 SCC 493. It disapproved the right from person to property Fine

Financial Rights upon considering Miller (425 US 435) stating:

Once we have accepted in Gobind and in later

cases that the right to privacy deals with persons

and not places, the documents or copies of

documents of the customer which are in a bank,

must continue to remain confidential vis--vis the

person, even if they are no longer at the customers

house and have been voluntarily sent to a bank. If

that be the correct view of the law, we cannot

accept the line of Miller in which the Court

proceeded on the basis that the right to privacy isreferable to the right of property theory.

Innumerable cases demonstrate the significance of this right in
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the criminal justice system, in that this right is the ultimate

guarantee of the human dignity of any person subjected to

investigation or punishment under the system. In Valasinas v

Lithuania[34], a prisoner was ordered to be strip naked and be

subjected to examination by a team of prison officers, which

included a woman officer. Such searches were found to beviolative of Article 3 of the Convention for the Protection of Human

Rights and Fundamental Freedoms 1950, by the European Court

of Human Rights. In Fliss v R[35], the Supreme Court of Canada

held that secret recordings of confessions made by the accused by

undercover police officers was illegal; the court could only admit

such evidence as was made by the witness by refreshing his

memory of that conversation.(iv) Cyber Crimes:

Attendant to the issue of privacy is the growing menace of cyber-crimes

committed through the medium of computers, or against information on

computers.[36] In most countries around the world, however, existing laws

are likely to be unenforceable against such crimes. Consequently, undeterred

by the prospect of arrest or prosecution, cyber criminals around the world

lurk on the Internet as an omnipresent menace to the financial health ofbusinesses, to the trust of their customers, and as an emerging threat to

nations security. Outdated laws and regulations, and weak enforcement

mechanisms for protecting networked information, create an inhospitable

environment in which to conduct e-business within a country and across

national boundaries. In this context, it is important to consider the

perpetration of cyber crimes in four categories: data-related crimes, including

interception, modification, and theft; network-related crimes, including

interference and sabotage; crimes of access, including hacking and virus

distribution; and associated computer-related crimes, including aiding and

abetting cyber criminals, computer fraud, and computer forgery. India has

sought to infuse confidence in the general public that the existing laws are

sufficient to cover computer-related crimes, including those of aiding and

abetting cyber crimes, and computer-related fraud and forgery.

Amendments to the Indian Penal Code and the Information Technology Act

have helped extend the rule of law into cyberspace.

The weak penalties in most updated criminal statutes are nonetheless a

matter of concern, since they provide limited deterrence for crimes that can


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have large-scale economic and social effects. Despite the amendments, the

issue of human rights protection vis--vis cyber crimes has generated little

debate. Privacy and freedom of expression - the fundamental human rights

recognised in all major international and regional agreements and treaties

such as the UDHR (Articles 12 and 19), the ICCPR (Articles 17 and 19),

and the European Convention of Human Rights (Articles 8 and 10) - should

be taken into account while developing policies against cyber-crimes. Any

coordinated policy initiative at international levels for curbing trans-boundary

cyber crimes must also consider offering the best protection for individual

rights and liberties.

(v) Atrocities against Scheduled Castes and Scheduled Tribes:

Another oft ignored aspect of protecting human rights in the

criminal justice system, is the crimes perpetrated against

members of the Scheduled Castes, Schedule Tribes, and other

oppressed classes by the socially higher strata though,

acceptably, misuse of Section 3 of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act 1989 by the

oppressed castes and tribes is also observed. Nonetheless, the

criminal justice system must be receptive to the plight of those who

may be the subject of indiscriminate use of State authority without

regard to the due process of law. Numerous studies indicate that

the police, prosecutors and courts principally prosecute lower-

class criminality, apart from organized crimes, white-collar crimes,

and consumer frauds. To prevent such discriminative targeting, it is

necessary that the various organs of the State, like the organs ofthe human body, coordinate and cooperate in functioning. Regular

meetings and continuous education of the police, prosecutors,

courts, and other criminal justice agencies, on protection of human

rights is therefore a sine qua non. In addition, we must continuously

endeavour to incorporate and evolve newer methods of delivering

justice as well as protecting human rights in the criminal justice

system. Use of electronic video linkages for expedited productionof under-trials, holding of regular sittings in jails by the Magistracy

for disposal of cases involving petty offences, and concerted


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efforts for execution of warrants and production of witnesses, some

other measures for ensuring that the human right to a fair and

speedy trial of those stepping into the criminal justice system are

protected.

BUILDING DUTIES TO BOLSTER RIGHTS:

It would also be profitable to realize that without a human rights

friendly approach of the police and other prosecuting agencies, the

courts cannot protect human rights; conversely, without strict

protection of human rights by the courts, the police and the

prosecuting agencies would be susceptible - rather encouraged -

to violate human rights. The onus is thus ultimately on the courts to

be seen in the eyes of the common man as the protector of human

rights, for, as Justice Arthur Vanderbilt would say[37]:

If they [the common citizenry] have

respect for the work of the Courts,

their respect for law will survive the

shortcomings of every other branch

of Government; but if they lose their

respect for the work of the Courts,

their respect for law and order will

vanish with it to the great detrimentof society.

The duty is cast on the courts to mould and shape the law to meet the rights

and duties of the people. Dr. A. S. Anand, the former Chief Justice of India,

had occasion to comment that [t]he mere existence of a particular piece of

beneficial legislation cannot solve the problems of the society at large unless

the judges interpret and apply the law to ensure its benefits to the right

quarters. TheProtection of Human Rights Act1993, the rights

guaranteed under the Constitution, and the protections provided under the

Criminal Procedure Code, the Indian Evidence Act, and the Indian PenalCode, need therefore be harmoniously construed to enable a just and

ordered society, where the criminal justice system adheres to the mandate of

the rule of law on which any high-quality democracy rests. To paraphrase

Professor Guillermo ODonnell: [w]hat is needed is a truly democratic

rule of law that ensures political rights, civil liberties, and mechanisms of

accountability which in turn constrain potential abuses of state power

[and protect] the equality and dignity of all citizens[38]

Besides, a duty is cast on us all to educate others and ourselves on ourhuman rights. So much so, I should think that perhaps the time has come

when the subject of human rights, like that of environmental protection, is

included in the curriculum at the school level. Article 26(2) of the Universal

Declaration of Human Rights mandates that education shall be directed to
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the full development of the human personality to strengthen respect for

human rights and fundamental freedoms. Knowledge of human rights is

therefore the preeminent defence against their violation. Realising this, the

United Nations General Assembly has enjoined that every individual and

organ of society, should strive by teaching and education to promote

respect for these rights and freedoms and by progressive measures, national

and international, secure their universal and effective recognition and

observance. This was the guiding light behind the United Nations Decadefor Human Rights Education (1995-2004) that ended last year. I am

therefore glad that institutions such as LASO and Amnesty International, and

its programmes such as the present symposium on protection of human

rights, seeks to carry forward the visions of the United Nations by

generating awareness on human rights, especially amongst those who must

dispense justice the judicial officers of this State.

In this respect the case ofPeoples Union for Civil Liberties v Union

of India and Anr.[39], is of much significance. In that case, the Court was

apprised of a matter concerning the filling up of vacancies in the National

Human Rights Commission, wherein a retired Director of the Central Bureau

of Investigation was accepted for that post. His appointment was

subsequently challenged on the ground that apolice officerdoes not fall in

the category of members mentioned in Section 3(2)(d) of theProtection of

Human Rights Act 1993 who are to have knowledge and practical

experience in matters relating to human rights, and since the presence of a

police officer as a member of the NHRC would render that forum a violator

of the very concept that gave birth to protection of human rights. The Benchwas divided on the decision: while Justice Sabharwal was of the opinion that

police officers or members of security forces could not become members of

the NHRC as that would be a violation of the famousParis Principles[40],

Justice Dharmadhikari was inclined to hold that Section 3(2)(d) of the Act

on its plain meaning did not in any manner disqualify police officers from

becoming members of the NHRC. The matter has now been referred to a

larger Bench.

[1]See, HUMAN RIGHTS LAWAND PRACTICE [Lord Lester and David Pannick eds.,

Butterworths, 1999], p 1.

[2] In: The Centrality of the Right to Fair Trial as a Human Rights Norm,Developing

Human Rights Jurisprudence, INTERIGHTS (Vol. 8, 2001).

[3] S. MURALIDHAR, LAW , POVERTYAND LEGALAID - ACCESSTOCRIMINALJUSTICE

[Butterworths , 2004].

[4] 2000 (4) ALT 541 (DB)

[5] AIR 1982 SC 6

[6] AIR 1997 SC 95

[7] (1980) 3 SCC 526
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[8] (1997) 1 SCC 416. Also s ee,N.C. Dhoundial v Union of India , (2004) 2 SCC 579.

[9]2004 (4) SCALE 543

[10] 384 US 436 : 16 L Ed 2d 694 (1966)

[11]AIR 1996 SC 1

[12] (1992) 1 SCC 225

[13] See France Child Sex Case Collapses, 4th December 2005, World News Service

[14] (1983) 4 SCC 141

[15] (2003) 1 All ER 613

[16] (2003) 539 US 558

[17] Al Kateb Vs. Godwin, 78 ALJR 1056

[18] (2003) UK PC 6

[19]12 BHRC 219

[20]12 BHRC 243

[21] 12 BHRC 261

[22] [2004] UKHL 56

[23][2002] EWCA Civ.1598

[24] (2004) 72 USLW 4596

[25] (2004) 72 USLW 4607

[26] (2004) 72 USLW 4584

[27] See, for example, the Australian cases ofAl-Kateb v Godwin, [2004] HCA 37 : 78

ALJR 1056, andBehrooz v Secretary of the Department of Immigration andMulticultural and Indigenous Affairs, [2004] HCA 36 : 78 ALJR 1099.

[28](1995) 4 SCC 262

[29]AIR 1973 SC 2622. See also, the recent judgment inMunshi Singh Gautam (D)

and Ors. v State of Madhya Pradesh , JT 2004 (10) SC 547, holding that asking for

proof beyond reasonable doubt would be ignoring ground realities; andInder Singh

v State of Punjab and Ors., JT 1995 (9) SC 627.

[30] Fali S. Nariman, Terrorism a threat to Human Rights?,Journal of The National

Human Rights Commission, India , Vol. 3, 2004, p. 1.

[31] 1967 JC 2C

[32] Lucy Vickers, Whistleblowing in the public sector and the ECHR, [1997] Public

Law 594.

[33] WP (C) No. 539 of 2003[34] 12 BHRC 266

[35] 12 BHRC 366

[36]See, Cyber Crime . . . and Punishment? Archaic Laws Threaten GlobalInformation, McConnell International LLC, December 2000.

[37] In: THE CHALLENGEOF LAW REFORMS [Princeton University Press , 1955], pp. 4-5.

[38] Guillermo ODonnell, Why The Rule Of Law Matters, 15 (4)Journal of

Democracy (October 2004), p 32.

[39] 2005 (1) SCALE 402

[40] The six criteria of National Human Rights Institutions under Paris Principles are:(a) independence guaranteed by the statute or Constitution; (b) autonomy from

Government; (c) pluralism in membership; (d) broad mandate based on human rights

standards; (e) adequate power of State; (f) sufficient resources.

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HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM

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