Salsa Paper

59
PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA BY SYED KAMRAN RAZVI PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA BY Syed Kamran RAzvi Synopsis: The paper discusses the issues of “Justice at the door-step”. The notion of Justice and Equity has seen further evolution under the International covenant on Human Rights. The exposition under Protection of Human Rights Act, 1993,(India) i is a manifestation of such obligation and collectivism 1 . It provides the structure for implementation of Human Rights. The subject of analysis is the success in establishment of Commissions , Courts and rules aimed at preserving the Human life and liberty and the need for amendments. The background contained in Part III of the Indian constitution 1 Following Vienna Declaration in 1993 the post of Human Rights Commissioner was created at UN, (vide resolution 48/141). First High Commissioner Mr.Jose Ayala Lasso assumed office on 5 th April,1994. 1/59 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

description

Treating minority rights in case law and constitution of India

Transcript of Salsa Paper

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIPROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY Syed Kamran RAzvi

Synopsis:

The paper discusses the issues of

“Justice at the door-step”. The notion of Justice and Equity

has seen further evolution under the International

covenant on Human Rights. The exposition under

Protection of Human Rights Act, 1993,(India)i is a

manifestation of such obligation and collectivism1. It

provides the structure for implementation of Human

Rights. The subject of analysis is the success in

establishment of Commissions , Courts and rules aimed at

preserving the Human life and liberty and the need for

amendments. The background contained in Part III of the

Indian constitution close to ‘Bill of Rights’. It includes right

(Article 32)to move Supreme Court of India to prevent

infringement of fundamental rights2. However pursuant to

the Social Democracy, community-specific legislation in

1 Following Vienna Declaration in 1993 the post of Human Rights Commissioner was created at UN, (vide resolution 48/141). First High Commissioner Mr.Jose Ayala Lasso assumed office on 5th April,1994.2 Direct remedies under Article 32 and 226 of the Constitution of India Act 1 of 1950 are subjected to the Reasonable restrictions on the exercise of the Fundamental Rights as evolved by Case Law. This Writ peroragative emanate from section 7, of the Administrative of Justice (Miscellaneous Provisions) Act, 1938. As the Federal Court and the Supreme Court were established under the Charter by the British Colonial regime. Though Writ jurisdiction was not available to the colonial subject.

1/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIIndia like Prevention of Atrocities (SC and ST) Act,

1989 (previously Protection of Civil Rights Act,1955) have

also been enacted prior to Protection of Human Rights

Act,1993. Thus in terms of sociological implication of Law it

is impressed, in these set of legislation. These Rights-

specific legislation have acted if in support or is case of

over-lapping jurisdiction is also examined. Lastly, whether

the Human Rights Commission and Courts have made

progress in past one decade of existence. The challenge of

Civil liberties in pursuing dynamic civil society.

Key Words :

Act , NHRC, Justice, Constitution, Courts,

fundamental Rights, Ouster clause, Police, ‘Police

powers’, communal compensation.

Notion of Human Rights and Justice :

Every segment of the society has a different

definition of Justice. Human Rights is a growing definition

adding impression to the universal application and

implementation of the Laws conforming to the Human

Rights. Indian example is a case in point. Inspired by

International covenant of Human Rights or Universal

Declaration of Human Rights, 1966 an enactment was

2/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIpassed with a topical terminology. A Central Act called

Protection of Human Rights Act, 19933 was passed and

notified Act 10 of 1994. The Act envisages two

Functionary bodies namely the National Human Rights

Commission and State Commissionsii and permanent

remedial edifice, establishment of Human Rights Courts.

These courts are to work in aid of these commissions.

Prior to the passing of this statute an Act, calling for

National Commissions Act,1990 was passed. This statute

brings into existence the commissions for the segment of

the society discriminated and to study the welfare

measures and propose the same to the government

through their annual and Special reports. The Chairman of

the these commissions are also ex-officio members of

National Human Rights Commission.iii The Chairman of

NHRC is ex-Chief Justice of India and holds office till one

attains the age of 70 years. It has the powers of Civil Court

for proceedings and execution of orders/decrees and

powers to punish for contempt.

NHRC has in case of Gujarat riots in March,

2002 launched a Court campaign which has resulted in

hauling up making both accountable i.e. State

government and also High Court of Gujarat.iv

3 It was assented by the President of India and published in Gazette of India Extraordinary, Part III, Sec.1, dated 10th Januray,1994. This was to confirm the ordinance promulgated by the President on 28th September,1993.

3/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVISuch Court campaigns have been described by an

American Author ;

“Americans have gone a lot of further(some would

say too far(a bevy of Platonic Guardians’) Supreme Court

Court described) in judging judges. This is mostly because

of the Bill of Rights and the importance which the Supreme

Court has in the US constitution. But there is no doubting

that the judging of judges is a multi-million dollar and is

widely regarded in the USA as essential to judging Judges.

How is this an industry? The Bill of Rights leads

Americans to favour single-issue pressure groups which

mount Court-campaigns-most famously in the case of the

1954 decisions to end racial segregation in the schools-to

achieve political aims.”4

In a Petition in public interest on the same subject

filed before the Supreme Court of India it has been

represented that the trials of such violations of civil rights

should be done by the Human Rights Courts.v In Indian

context the access to the Courts has two hurdles , financial

and physical. India still is a rural society if no more an

Agrarian economy in terms of Urban and Rural ratio. The

indicator being GDP. Primary sector is still a major

contributor. Services is only now catching up with the

Manufacturing sector.

4 Judging Judges ,Simon Lee, Faber and Faber Ltd.,1988 reprint,P.186

4/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIAlthough the Legal Services Authorities Act, is

almost a decade old, State legal-Aid boards are often

plagued with financial crunch. There is another related

issue that is of the Financial independence of the Judiciary.

It is equally important for the Human Rights issues and

law. While the Higher Judiciary income is not taxable.

Those at the District Court, there salary is taxable barring

a few states. Also even the higher Courts do not have the

financial independence so far. There is debate on the same

and each successive Chief Justice of India has been

garnering efforts on the same.

The other is the physical hurdle, in a developing

economy infrastructure is often poor. Thus to seek Direct

remedy, a litigant has to travel few miles and perhaps few

days. Thus timely intervention may not be obtained.

These issues become more obvious when one

considers the rights and plights of the tribals, special

geographic regions and those living in Hilly areas.

Incidentally, India has an insurgency prone regions

situated in remote regions of the land. This part is dealt in

a separate section here.

The Human Rights Act addresses these two issues.

Legal structure and Procedure under the Act:

5/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVI

This brings to the discussion on the legal structure

and the procedure it provides for ensuring the remedial

process.

Section 30, Chapter VI of the Act:

“Human Rights Courts – For the purpose of

providing speedy trial of offences arising out of violation of

human rights, the State Government may, with the

concurrence of the Chief Justice of High Court by

notification, specify for each district a Court of Session to

be a Human Rights Court to try the said offences:

Provided that nothing in this section shall apply if –

(a)a Court of session is already specified as a Special

Court; or

(b)a Special Court is already constituted.

For such offences under any other Law for the time

being in force.

Section 31. Special Public Prosecutor.- For every

Human Rights Courts, the State Government shall,

by notification, specify a Public Prosecutor or appoint

an advocate who has been in practice as an

advocate for not less than seven years , as a Special

Public Prosecutor for the purpose of conducting

cases in that court.

6/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIThese two sections have been dealt and

interpreted by High Court of Andhra Pradesh saying

in its operative part;

The Human Rights Court, being a Court of

Session5(refer to chart in Schedule B) for trial of

offences violative of Human Rights, does not have

the power to take cognizance of any offence as a

Court of original jurisdiction unless the case is

committed to it by a Magistrate. A Magistrate of the

First Class or a Magistrate of the second class, as the

case may be, when empowered can take cognizance

of an offence upon receiving a complaint of facts,

upon a police report or upon information received

from any person other than police officer or upon his

knowledge. Court of session , however, cannot do so

and accordingly Human Rights Courts also cannot

take cognizance of the offence as the Court of the

first instance.6

There are two other sections of the Act

relevant to the aspect of Judicial process.

Chapter VIII (Miscellaneous)

5 Two tier of Criminal Courts in India, under Criminal Procedure Code,1973, Court of Session and Magistracy. Court of Session sits in appeal from magistrates court and tries heinous offences and death sentence. It shares some powers in Bail with High Court(Constitutional Court).6 A.Goverdhan Reddy v. Superintendent of Police,Allahabad,1998 Cr.L.J.561 at p.562(AP)

7/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVISection 36.Matters not subject to jurisdiction of the

Commission.-(1)The Commission7 shall not inquire

into any mater which is pending before a State

Commission or any other Commission duly

constituted under any law for the time being in force.

(2) The Commission or the State Commission shall

not inquire into any matter after the expiry of one

year form the date on which the act constituting

violation of Human rights is alleged to have been

committed.”

This clause of special Bar created anamoly (Ousting and

Overriding Clause) and suspicion. The Supreme court of

India clarified :

“The power and jurisdiction of the Apex Court under Art.32

of the Constitution cannot be curtailed by any statutory

limitation, including those contained in Sec.36(2). If the

Apex Court can exercise that power unaffected by the

prohibition contained in Sec.36(2), there is no reason why

the commission, at the request of the Apex Court, cannot

investigate or look into the violations of human rights even

though the period of limitation indicated in Sec.36(2) might

have expired . In such a situation, the commission will not

7 National Human Rights Commission

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIbe affected by the bar contained in Sec.36(2) and it will be

well within rights to investigate the matter referred to it.8

However the issue of suspicion remains. This

emanates from the Executive intent to skirt away or simply

avoid any accountability or action on the violations of

Human Rights.

There are two set of examples to emphasize such gross

abuse of sovereign privilege.

Role of ‘any other commissions’ on communal riots:

Under the Commission of Inquiry Act No.60 of 1952, any

State or Central government can appoint a Commission of

Inquiry. This is a Colonial legacy, although enacted after

India became republic in 1950.

On Communal Riots there have been at least ten

Commission of Inquiries since 1960. Each has

recommended set of reforms in police and “police powers”

of the State. How to be sensitive to the minorities. None of

the recommendations have been implemented till date. No

Law has been enacted ,specifically to deal with the (Anti-

Minority) administrative vice. The illustrations from two

important commissions are provided here :

8 Paramjit Kaur v. State of Punjab,AIR 1999 SC 340: (1999)2 SCC 131.(Also see endnote iii)

9/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIPara No.106.57 : Communal discrimination by officers

and men:

“ In the ultimate analysis the implementation of any

measure must depend upon human agencies, namely the

offices and men on the spot. No measures, however good

on paper, can succeed unless those charged with the

responsibility of carrying them out acts with integrity and

without communal bias. In the course of this Inquiry, we

have seen that even some of the senior officers were not

free of the taint of communalism. When, therefore, any

instance comes to light of any police officer, policeman or

Government servant having communal discrimination in

favour of a community, the person guilty should be

severely dealt with.”9

B.N.Srikrishna, J. Commission report on Mumbai

riots of 1992-93 :

“Even after it became apparent that the leaders of the

Shiv Sena were active in stoking the fire of communal

riots, the police dragged their feet on the facile and

exaggerated assumption that if such leaders were arrested

the communal situation would further flare up , or to put it

in the words of then Chief Minister, Sudhakar Rao Naik,

9 D.P.Madon,J. Commission of 1970 on the Bhiwandi, Jalgaon and Mahad: Sabrang publications,Mumbai,p.320

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVI“Bombay would burn”; not that Bombay did not even burn

otherwise.”

The same Commission has bitterly criticized

government.

Note the consistency in observation about role of Police

(Anti Minority Bias)by these two important and most vocal

Commissions:

“The working of the Special Investigation squad is a study

in communal discrimination. The officers of the squad

systematically set about implicating as many Muslims and

exculpating as many Hindus as possible irrespective of

whether they were innocent or guilty. Cases of many

Hindus belonging to the Shiv Sena, Rashtrya Utasav

mandal(an extension of the local branch of the Jana Sangh

were wrongly classified as ‘A’ category and investigations

closed and no proper investigation was undertaken into

several complaints of murders of Muslims and arson of

their property. No investigation was conducted into the

composition and activities of Hindu communal and

allegedly communal organizations operating in Bhiwandi

but only in respect of Muslim Communal and allegedly

communal organizations. Deputy superintendent of police

S.P.Saraf held private conferences and discussions with

11/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIseveral leaders of Hindu organizations including many who

were implicated by Muslims in offences of arson and

murder.”10

B.N.Srikrishna, J. Commission report on Mumbai

riots of 1992-93 :

“ The response of police to appeals from desperate

victims, particularly Muslims, was cynical and utterly

different. On occasions, the response was that they were

unable to leave the appointed post; on others , the attitude

was that one Muslim killed was one Muslim less….Police

officers and men, particularly at the junior level, appeared

to have an in-built bias against the Muslims which was

evident in their treatment of the suspected Muslims and

Muslim victims of riots. The treatment given was harsh and

brutal and, on occasions, with their adopting the role of

passive on-lookers on occasions, and ,finally, their lack of

enthusiasm in registering offences against Hindus even

when the accused was clearly identified and post-haste

classifying the cases in ‘A’ (True but not

detected)summary.”

10 D.P.Madon,J. Commission of 1970 on the cBhiwandi, Jalgaon and Mahad: Sabrang publications,Mumbai,Page vii

12/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIReport of the Ranganath Mishra J., Commission

report on the 1984 anti-Sikh riots in Delhi:

“ The riots occurred broadly on account of the total

passivity, callousness and indifference of the police in the

matter of controlling the situation and protecting the

people of Sikh community….Several instances have come

to be narrated where police personnel were found

marching behind or mingled in the crowd. Since they did

not make any attempt to stop the mob from indulging in

iNational Human Rights Commission for India was established in the year 1994 with the subordinate legislation on (procedure) Regulations in place under the Protection of Human Rights Act,1993.

ii Indian Constitution is federal in nature and through a list 1,II,III attached as Seventh Schedule to Article 246 which mentions the State amendments to the Central Legislation in matters pertaining to Criminal Law and some other categories of legislation. This is apart from the powers of the States to enact their own State-specific criminal laws. Many of such laws have been alleged to put to misuse. Also the State governments are less inclined to notify such central Acts which adds to accountability. Human Rights in social context in poorer states is considered to be liability. There is added dimension that of very competitive, aggressive and sometimes violent electoral politics.

iii The Supreme Court of India under Article 32 of Constitution of India also adjudicates on Fundamental rights. Thus in deciding a petition it clarified whereby Supreme Court says that matters so entrusted to the National Human Rights Commission, can be dealt by NHRC in the course and manner as it deems fit. “Therefore, the jurisdiction exercised by the National Human Rights Commission in these matters is of a special nature and not covered by enactment or law, and thus acts sui generis.” (Paramjit Kaur v.State of Punjab, A.I.R.1999SC340: (1999)2 SCC131.

iv During the Gujarat Riots,March,2002, the State was ruled by Rightist government i.e.Bhartiya Janata Party, also the heading the coalition government at the Centre. Even the High Court Judge had to leave his official residence and live with his relatives in a Muslim dominated area. The Best Bakery case Special Leave Petition has been admitted as the victim alleged intimidation by local BJP MLA. The lower court has acquitted the accused Right wing activists who murdered and burned few persons alive, during the riots.

vJamia Lawyers Alumni and Ors.v. Union of India and Ors. CW….. of 2004. It is to be listed towards the end of the month of Feb,2004 for hearing. The Petition calls for framing of the uniform compensation fromula as one prescribed in Motor Vehicles Act,1988 or any other formula. As it was witnessed that the State has discriminated in awarding compensation to Hindus and Muslims on loss of life in riots. The Act is deficient to that extent. Under Article 141 the Supreme Court of India has ample powers to enact Law till it is replaced by suitable amendments or special Law. Also please refer to the Schedule A to the paper for Laws dealing with Police powers of the State and accountability.

13/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIcriminal acts as inference has been drawn that they were

part of the mob and had the common intention and

purpose…The Commission was shocked to find that there

were incidents where the police wanted clear and definite

allegations against the anti-social elements in different

localities to e dropped out while recording FIRs(First

Information Report)”

Further response11 of government vide mention of

Action Taken Report would amplify the magnitude

of sovereign immunity and general insensitivity :

Para No.32 :

“The Commission has observed that the police were biased

against the Muslims. The Government cannot accept these

conclusions of the Commission. The Commission has itself

accepted the explanation given by the Commissioner of

Police and has further written that(Para.1.4, Chapter II,

Volume-1), “the aggressive and violent mobs in the initial

stages (emphasis mine) comprised Muslims and therefore,

Muslim casualties were higher”. The Commission itself

dismisses the theory(Para1.5, Chapter II, Volume I) that

disproportionately large number of deaths indicate that

police had targeted and liquidated Muslims because of

bias. The Muslims too a greater part in the riots and

11 To B.N.Srikrishna, J. Commission report on Mumbai riots of 1992-93: Jan.1993-Feb.1998

14/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIviolence by the mob. Therefore, larger number of Muslim

deaths took place. The Commission itself says that “ the

explanation of the Commissioner of Police that the

aggressive and violent mobs in the initial stages comprised

Muslims and , therefore , Muslim casualties were higher

does not appear to be as far-fetched as it has been made

out by Muslims(Para.1.4, ChapterII, Volume I).”

Para No.50:

“ Earlier, too, a number of serious and violent communal

riots had taken place in Maharashtra. We have not still

forgotten the 1967 riots of Malegaon, 1970 riots which

engulfed Bhiwandi, Jalgaon and Mahad and 1984

communal riots of Mumbai. Against this background it was

‘expected’(commas mine) that the Commission would

come out with suitable directions on the violent and

unprecedented riots and serial bomb blasts of 1992-93.It is

regretfully noted that the Commission did not fulfil this

expectation.(emphasis mine).”

“….But the Government is of the view that some of the

conclusions are one-sided, biased and arrived at with a

view to indict a particular person or community. Therefore

the Government rightly fears that after 5 years, the

wounds , instead of getting healed, will be reopened again

15/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIand may start festering. The Government, therefore ,

reiterates that on account of the reasons given above, it

cannot agree with the conclusions of the Commission

recorded in Chapters I to IV of Volume I of the Report.”

This Memorandum of Action to be taken by Government

was issued by the State government which was headed by

the political alliance of Shiv-Sena-Bhartiya Janata

Party(1995-1999). The Shiv-Sena activists were severely

indicted by the Commission. Thus the government

response and bias is not out of context.

The Commission was presided by a sitting High Court

Judge,Mr.B.N.Srikrishna,J. The then chief Minister of

Maharashtra is now Speaker of the Indian Parliament.

In view of the above, the ouster clause in the Act is

only to avoid accountability in the political system.

Some of the State governments have been so far-

fetched that they booked a few NGO activists working on

HIV-AIDS in hilly areas under Preventive Detention Law

called National Security Act No.65 of 1980. Their fault,

teaching sex education and organizing people, against the

wishes of local politicians.

16/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVITurning to the remedy to such political malaise is creating

special teams which is provided under Section 37 of the

Act.

Section 37: Constitution of Special Investigation

Teams.- “Notwithstanding anything contained in any

other law for the time being in force, where the

government considers it necessary so to do, it may

constitute one or more special investigations teams,

consisting of such police officers as it thinks necessary for

the purpose of investigation and prosecution of offences

arising out of violations of Human rights.”

Although here also the discretion lies with the

government. NHRC though has issued instructions to the

Police throughout India to report any deaths in police

shoot-outs within 24 hours of the incident. However this is

constrained in real terms by the physical verification of

the versions that of the Police and citizens (victims or

otherwise)

POLICE As Instrument of Law and Human Rights:

In a series of Judgements the Supreme Court of India has

indicted Police and policing in a Civil Society in

innumerable cases. The Law under Article 141 of

17/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIConstitution of India has been laid down on search, seizure

and arrest. Indian Judiciary particularly Court of record has

been receptive to the Judgements passed by various

Constitutional Courts including US, ICJ, and House of lords.

The rights of the accused have been detailed in 1997

judgement considering whole gamut of criminal Law and

jurisprudence available round the Civil societies across the

globe including PACE Act of 1984(UK). This was reiterated

in an observation :

“In cases involving violation of human rights, the

courts must for ever remain alive to the international

instruments and conventions and apply the same to a

given case when there is no inconsistency between the

international norms and the domestic law occupying the

field. In the instant case, the High Court appears to have

totally ignored the intent and content of the International

Conventions and Norms while dealing with the case.”12

In an unprecedented Judgement, a Precedent has

been laid down, whereby the High Courts in the States

have been empowered to supervise the implementation of

the orders.

12 Apparel Export Promotion Council v. A.K.Chopra, AIR 1999 SC 625

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIThus balancing the “opposite interests” rule of

Adam’s case 68 NE 636, or as Justice Cardozo observed in

People v. Defore13

“that the question is whether the protection of individual

would not be gained at a disproportionate loss of

protection of society. On one side is the social need that

crime shall be repressed. On the other, the social need

that the law shall not be flouted by the insolence of office.

There are dangers in any choice.”

A very similar interpretation and view was expressed by

Supreme Court of India :

“To strike the balance between the needs of the

enforcement on the one hand and the protection of the

citizen from oppression and injustice at the one end of the

law enforcement machinery on the other is a permanent

problem of statecraft”14

The guidelines issued in the 1997 being as below::

15“…The following guidelines to be followed in all

cases of arrest or detention till legal provisions are made

in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and

handling the interrogation of the arrestee should

13 (1926)242 NY 13. (cited in “Interpretation and Enforcement of Fundamental Rights”, D.J.De,Eastern law House(India),2000edn,p.69214 Nandini Satpathy v. P.L.Dani; AIR 1978 SC1025; (1978)4 SCC 424.15 D.K.Basu v.State of West Bengal AIR 1997 SC610 (1997)1 SCC 416.

19/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIbear accurate, visible and clear identification and

name tags with the designations,. The particulars of

such persons who handle the interrogation of the

arrestee must be recorded in the register.

(2) The police officer arresting a person must prepare a

memo of arrest at the time of arrest and such memo

shall be attested by at least one witness. Who may

be either a member of family of the arrestee or a

respectable person of the locality from where the

arrest has been made. It must be counter-signed by

the arrestee and shall contain the time and date of

arrest.

(3) A person who has been arrested or detained and is

being held in custody in a police station or

interrogation centre or other lock up, shall be

entitled to have one friend or relative or other

person known to him or having interest in the

welfare being informed, as soon as practicable, that

he has been arrested and is being detained at a

particular place, unless the attesting witness of the

memo of arrest is himself such a friend or a relative

of the arrestee.

(4) The time, place of arrest and venie of custody of an

arresteee must be notified bny the police whgere the

20/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVInext friend or relative of the arrestee lives outside

the district or twon through the Legal Aid

Organization in the District and the police station of

the area concerned telegraphically within a period of

8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this

rights to have someone informed of his arrest or

detention as soon as he is put under arrest or is

detained.

(6) An entry must be made in the diary at the place of

detention regarding the arrest of the person which

shall also disclose the name of the next friend of the

person who has been informed of the arrest and the

names and particulars of the police official in whose

custody the arrestee is.

(7) The arrestee should, where he requests, be

examined at the time of his arrest and major or

minor injuries, if any, present on his/her body , must

be recorded at that time. The inspection memo must

be signed both by the arrestee and the police officer

effecting the arrest and its copy provided to the

arrestee.

(8) The arrestee should be subjected to medical

examination by a trained doctor every 48 hours

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIduring his detention in custody by a doctor on the

panel of approved doctors appointed by the Director

of Health Services etc.

(9) Copies of the documents including the memo of

arrest should be sent to the illaqa Magistrate for his

record.

(10) The arrestee may be permitted to meet his lawyer

during interrogation, though not through out the

interrogation.

(11) A police central room should be provided at all

Districts and State Headquarters, where the

information regarding the arrest and the place of

custody of the arrestee shall be communicated by

the officer causing the arrest, within 12 hours of

effecting the arrest and the particulars of the

persons arrested shall be displayed in a conspicuous

notice Board.”

It further reads as “…Any failure to comply with the said

requirements shall apart from rendering the concerned

official liable to departmental action,vi also render him

liable to be punished for contempt of court and the

proceedings for the contempt of court may be instituted in

any High Court of the country, having territorial jurisdiction

over the matter.”

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIThe Court directed that the aforesaid directions of

the court should be given widest circulation in the Radio

and Television and other newspapers to create awareness

about the right of the arrestee to bring down the custodial

crimes.

Although these are now displayed on the notice

boards at all police stations. The compliance and reporting

of violations of the same is sadly lacking. Thus there is

need for the monitoring mechanism. In States where the

Human Rights Courts have been notified. Such monitoring

is done by them. However there are just two states out of

30 States and two Union Territories and two autonomous

regions who have notified such courts. There is a move at

the annual Chief Ministers conference to take up this issue.

In UK , in compliance with the ECHR convention,

Human Rights Act,1998 was passed. The act exposes the

Policemen to Civil Tort. The position is no different in

India.16vii

16 Uphaars case,vi Limitation of approach in terms of “Miscarriage of Justice” being that there is little to hold him guilty and the Courts have passed Judgements where the Departmental Enquiries are not subjected to judicial scrutiny at all. There is an antique act called the Public Servants (Inquiries) Act, 1850. Government is the final word in the Act. Although the same has been unfettered by creation of Administrative Tribunals. In many cases related to corruption the Supreme Court and various High Courts has delivered judgements which clearly take away the immunity clause (sanction for prosecution) of Public servants. Also has widened the group of people in position to be covered under the definition of Public servants including the legislators, Corporators, under the Prevention of Corruption Act,1988. In one of cases Brij Mohan V.State & Ors.(unreported) , the Delhi High Court completely relied on the DE exonerating a Constable , against whom they have asked registration of FIR in their Judgement. The allegations were of physical assault and false case on four young men by two constables. The allegations were well supported by Photographs and the vigilance report of the Police Headquarters. There were three different Enquiries done by different sections of Delhi Police. Two in favour of the victims one was managed after the orders have been passed. Such is the finality of Departmental enquiry.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVI“For the first time, the law gave the constable

effective protection under the umbrella of the police

organization by making the chief constable liable. However

the Human Rights Act 1998 may reverse this effect,

especially if constables are held to be ‘public authorities’ in

their own right. This possibility has clearly been in the

minds of police officers in the UK. Many have insured

against the public liability claims to cover this

eventuality.”17

Indian Police Act and Prison Authorities ::

“ In light of the evidence, we should abandon any

attempt to understand policing as a range of functions of

the police. Instead we should develop an account which

recognizes the diversity of meanings which now

characterise the terms ‘police and ‘policing’.18

The Indian Police is governed by the India Police Act,

1860, a colonial piece of legislation. It is the basic

structure for all the State Police Acts. The police is further

divided on the basis of status in service, whereby

17 Policing : An introduction to concepts and practice; Alan Wright, Lawman(India)PLtd.2002Ed.Reprint 2003 P.31.18 ibid

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIpreserving the higher posts for those at the pay rolls of the

Central Government.

There is severe neglect of the local police. It is them

who are responsible for investigation and prosecution

under the Criminal Procedural Code of 1973.

Like other Commissions , the National Police

Commission recommendations has been gathering dust for

past two decades.

Thus the translation of words into action lacks on this

count keeping the aims and object of the Act in abeyance.

In case of Prisoners Act, the Prison has its own

recruitment rules and staff, under the various Jail rules and

manuals as applicable in the State. The Jails are subject to

the monthly inspections by the District Judges wherever

the District Jails are located.

However there have been instances where Courts of

record while deliberating on the issue of death in Jail riot,

did not award compensation. Thus there are conservative

elements in Judiciary also.

While in another example within a week of passage

of the guidelines mention in 1997 judgement. I moved an

application before the Magistrate court for enforcement of

such provisions by calling for release of young persons,

one of them as young as 13 years from the illegal

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIdetention of the Police acting on the instruction of the local

minister.

This is typical example quite common, where the

local politicians use police for they are the masters in

absence of the independent Police commissions and

regulatory mechanisms. A consequence is that a large

number of violations are unreported.

An important observation by a very senior and

prominent retired police officer is pertinent (on Gujarat

riots 2002)19:

“On the night of the barbaric killing of 59 Kar Sevaks in

Godhra, instead of going after the culprits and taking

precautions to prevent revenge killings of innocent

Muslims, the government joined the call for the bandh20.

The Chief Minister, I learnt called a meeting of officials that

night and told tem that they need not be too enthusiastic

about preventive measures because he said that the

bandh would pass off peacefully. Then, one of his ministers

sat in the city police commissioner’s control room and

another Minister in the DGPs State control room each with

a band of supporters to put subtle pressure on the police.

(emphasis mine) Much has been written about the failure

of the police. There is no doubt that it failed.”

19 “Lost Middle Ground A community loses hope in Gujarat” by Julio Ribiero, Time of India (English Daily) 24/04/200220 protest call : closures of markets, etc by a body.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVI“…My inquiries showed that the BJP government of

Narendra Modi, with a VHP activist named Govardhanbhai

Zadapiya as minister of state for home, has systematically

emasculated the leadership by placing pliable officers and

men of its choice in every possible position at the cutting

edge.”

“…Gujarat is easily the worst (or best) case study of

a police force becoming politicised by the misuse of the

powers of appointments and transfers. The phenomenon

has been commonly noticed in every state since the

eighties.”

He warns not without basis ;

“…Unless corrective measures are quickly taken,

people are going to experience a worse breakdown of the

law and order machinery leading to a threat to the security

of life and property.”

A further federal principle that law and order being

essentially State subject. The Central government has to

take the necessary permission to send the para-miltary

forces or Defence forces to assist the State forces when it

comes to the breakdown of law and order.

There is no provision even to investigate the

embezzlement of Central Funds through State machinery

until specific request is made. Although now there is

27/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIredressal through ombudsman. The courts of record have

on occasions acted as Inquisitorial and retained

prospective jurisdiction in the interest of justice when the

issue of corruption at the highest level arose.

Complimenting Statutes :

In past one decade a number of Statutes have been

passed by Indian parliament which compliment the aims

and objectives of this Act.

Although many have been passed without any

debate, hence there is little public awareness. Although

Parliamentary proceedings are now open to Television and

radio, yet only Question hour and Budget are telecast as

live programs.

The statutes on increasing the accountability and

availability of information, government documents to the

public are Freedom of Information Act, 2002(Central

Statute) and similar State Laws. This has amended some

Civil Service(Conduct) rules and manual of office

procedure. Many states have passed their own bills on the

same subject. Like Delhi21 and Goa. The two small states

are more open. The Media and NGOs have been the main

21 The Delhi Right to Information Act,2001.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIbeneficiary of this opening. Though even these States

official websites have little to offer.

Under these statutes the dilution of Official Secrets

Act,1923 and the Defence and Internal Security of India

Act,1971 has been done with genuine legislative intent.

Further the Public Records Act,1993 now prescribes the

saving of the declassified documents in the Archives of

India.

The Courts have liberally exercised the Judicial

review to place the check on the Executive and even

legislature but the separation of powers doctrine under

Article 50 and 105 of the Constitution has stopped them

short of striking down many colonial legislation, and like

legislation, as inconsistent with the Fundamental Rights or

simply being unconstitutional. The preventive powers

exercised by the Executive authorities under various

procedural and substantive statutes have been prescribed

some Judicial safeguards. Many of the provisions of

Government of India Act, 1935 22have been duly

incorporated in the constitution.

On many occasion the Supreme Court of India simply

refused to give opinion on reference by the Government,

as part of Constitutional politics. Notable being the return

22 Indian Independence Act,1947 and Partition Act,1947; with the Adaptation of Laws Act,1950 .

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIof Presidential reference23 on deciding the Mosque/temple

controversy in the year 1995-1996. This matter is now

pending in various Courts, for past 50 years.

Detention and Terrorism Laws and the Act :

In quest for the maintenance of Law and Order and

security of state, and the change in tact of militancy sans

political ideology. What is also described as terrorism.

Couple with the growing clout of Organized crime, so

sophisticated that NYSE once warned about the same.

Yet the quest in civil society and libertarian view of

Rights of the accused and the wronged face a challenge.

The balance of competing interests and safeguards are

often negated when the modern societies and nations are

faced with an imminent threat. A situation which brings

them very near to suspension of Civil liberties. Judicial

review is often marginal in affecting outcome (moderating)

of such Executive action which are based on stringent

Laws.

In historical perspective an interesting Joint-opinion of the

Attorney and Solicitor-General, Sir John Campbell and Sir

M.M.Rolfe as to the power of the Governor of Canada to

23 Article 143: Powers of President to Consult Supreme Court , on subjects mentioned in Article 131.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIproclaim Martial Law. On correctness of the Law Officers of

the Crown in Lower Canada, Temple, January 16,1838 :

“My LORD,…. On the subject of the power vested in the

Governor of that province to proclaim martial law…”

“…has the power of proclaiming, in any district in which

large bodies of the inhabitants are in open rebellion, that

the executive Government will proceed to enforce martial

law. We must, however, add that in our opinion such

proclamation confers no power on the governor which he

would not have possessed without it. The object of it can

only be to give notice to the inhabitants of the course

which the Government is obliges to adopt for the purpose

of restoring tranquility…”

“…It is hardly necessary for us to add that, in our view of

the case, martial law can never be enforced for the

ordinary purposes of civil or even criminal justice, except,

in the latter so that; so far as the necessity arising from

actual resistance compels its adoption.”24

Indian insurgency prone areas are two one in the upper

North(Kashmir valley) and the North-East(China border).

These two areas have seen the largest number of Habeas

Corpus Petitions. The State High Courts have been at odds

with the executive. Most of the cases of compensation of

failure to produce corpus have been from these States

24 Cases in Constitutional Law: Ed.by D.L.Keir,F.H.Lawson,D.J.Bentley, ELBS,OUP,1979,P.231.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIonly. There are some Naxalite (militant under-ground

movement) prone areas. At one point of time, both Central

and State government became so circumspect when it

even refused the diplomats from Western countries to see

the Human Rights situation in Kashmir Valley. North-East

India still remains beyond the reach of even Indian

Nationals (in some parts where the permit has to be

taken). This security paranoid, is a political hype.

Indian government experimented twice with tough

legislation which made onerous on the accused to rebut

the presumption of his omission(innocence).

Earlier it was TADA25 and now POTA26 there are few things

common in the Acts. However, these acts were not notified

in all states.

The strong limitation is compensating the

miscarriage of justice. Also the Pre-Trial detention which

can spread for years. Very often Courts of record/Appellate

Courts and even Trial Courts while acquitting the accused,

have little sympathy for the accused.

The only possible safeguard then can be making the

officials responsible with reasonable immunity ‘acts done

in good faith’.

25 Terrorist and Disruptive Activities (Prevention) Act of 1987.26 Prevention of Terrorism Act,2002

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVI“….domestic legislation on terrorism in the U.K. as

founded upon international laws. Most notable mention is

of the North Ireland (Emergency) provisions Act of 1991,

where the Secretary of States implicit responsibility on the

issue of violation of the individuals rights of internment

may be interpreted on account powers relating to

detention. Thus any excess can put the executive in deep

trouble on individual and allied rights. Another institution

being the independent assessor for military-excess

complaints in North Ireland. These inherent safeguards

worked successfully.”27

The Indian Anti-Terrorist Laws are inspired by similar

set of US Laws and jurisprudence of extending extra-

territorial jurisdictions also.

An attempt at the South Asian regional level was

made by enacting the sub-Regional commitment . An

enactment has been lying in the statute books, called ‘The

SAARC28 Convention (Suppression of Terrorism) Act, 1993.

However this piece of legislation stands lame and

without sanction as the regional states lack cooperation.

Thus there is an overall need to have the ‘State’

come to terms of with modern political reality in order to

27 Book Review: “International law Documents relating to Terrorism, Ed.by Omer Yousef Elaghab Cavendish,” published in THE HINDU, April 7,1996 by myself.28 South Asian Association for Regional Cooperation.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIlive up to the Rights which the man has inherited by virtue

of birth as Human and because they have been prescribed.

Indian Constitutional Courts have on such Preventive

Laws stuck to the approach where Judicial Review is

interpretation of section and the Enactment. Thereby

resisting the otherwise liberal approach they have as

“continuing colloquy” with political institutions and society

at large.

Judicial activism in Indian context has by and large

meant protecting political pluralism and Separation of

Powers . The secular fabric has been respected as to

prevent religious appeal from making Electoral and other

gains which create an imbalance in the basic structure of

the Constitution. Though incumbent Central government

has constituted the committee to review constitution.

There has been no discussion in parliament or in general.

Conclusion :

Supreme Court has awarded compensation on

violation of life and personal liberty, under international

covenant Article 9(5) of the International Covenant on Civil

and Political Rights 1966, for death in hospital due to

negligence, for loss of life in Communal riots,

compensation on violation of right to health , workmen

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIhealth and Medical care, loss of motherhood, all

considered to be the integral right to compensation as loss

of life and personal liberty.

However an examination of Compensation awarded

in case of Rape29 and guidelines in domestic violence30 and

Sexual harassment cases have very little effect in terms of

enforcement of the same. Like the framing of Criminal

Injuries Compensation Board for Rape victims, Guidelines

for government by National Commission of Women on

victims of Domestic Violence till the suitable legislation is

in place or the application of CEDAW and in matter of

Sexual harassment committees at work places.

Further more there is very low conviction rate of

those accused of communal riot . More recently those

glorifying Sati31 have been acquitted for lack of clinching

evidence. This failure to deliver justice is an example of

lack of people’s commitment. The law was enacted by the

British way back in 1860. It was passed afresh in the year

1987 with suitable changes and amendments.

The Act, has singular limitation of trying only the

criminal violation, by the Human Right Courts and not the

29 Delhi Domestic Woring Women’s Forum v Union of India (1995)1 SCC 14.30 South Asian Research and Development Initiative V. Union of India and ors.(unreported) High Court of Delhi,CW765/01 by me.31 Burning live of widow on the funeral pyre of husband, a temple is dedicated in Rajasthan to a young widow called Roopmati. There is annual fair commemorating at Deorala.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIwhole gamut of Life and personal liberty as interpreted by

the Constitutional Courts in India. The other possibly being

its availability for the non-citizens. Although this is not

implicit in the Act.

Supreme Court position has been guarded in

extending the ‘Direct remedy’ under Article 32 and 226 for

enforcement of fundamental rights by the foreigners.

The illustration below are self-explanatory of the

legal position but liberal and conservative judge or those

with defined positions can alter the same every time a

petition is filed.

32Fundamental rights to foreigners---scope of : One

Mr. Louis De Raedt has been staying in India continuously

since 1937 excepting on two occasions when he went to

Belgium for a short period in 1966 and 1973 and he

continued to stay in India on a Belgian Passport. The

petitioner who was foreign national was asked to leave the

country by the 31st July 1987 and he challenged the order

of expulsion which was turned down by the Supreme Court

of India. It was held that the fundamental right to foreigner

under the Constitution is confined to Article 21 for the life

and liberty and does not include the right to reside and

settle in India, as mentioned in Art.19 (1) (e), which is only

32 AIR 1991 SC 1887

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIapplicable to the citizens of this country and the executive

Government has unrestricted right to expel a foreigner.

33Under Article 21, Right to life and liberty-available to non-

citizens-case of Chakmas34 in Arunachal:

Incidentally this was the first Court campaign by the NHRC

in first two years of its existence.

“The AAPSU, as student organization of the Arunachal

Pradesh issued ultimatum to the chakmas35 residing at

Arunachal Pradesh to quit the State within the date fixed

by them. The National Human Rights Commission too the

matter to the Supreme Court in a public interest litigation

under Article 32 of the Constitution seeing to enforce the

rights under Article 21 of the Constitution. The Supreme

Court issued the direction to the State of Arunachal

Pradesh to ensure that the threat by the students

organization is repelled with force and the life and liberty

of the Chakmas residing at Arunachal Pradesh is protected.

The Court observed that our constitution confers certain

rights on every human being and certain other rights on

the citizens. Every person is entitled to equality before the

Law and the equal protection of laws, So also, no person

can be deprived of his life and the personal liberty except

according to the procedure established by Law. The State

33 NHRC v.State of Arunachal Pradesh AIR 1996 SC123534 Tribals from upper Bangladesh.35 ibid

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIis bound to protect the life and liberty of every human

being, be he a citizen or otherwise and it cannot permit

anybody or a group of persons, e.g. the AAPSU, to threaten

the Chakmas to leave the State, failing which they will be

forced to do so and no State Government worth the name

can tolerate such threat by any group or groups of such

persons.

It will not be out of place and context to mention that

many of the illegal-migrants(workers) from Bangladesh

have been deported by Delhi Police under instructions

from Union Home Ministry, as they find the people. They

are loaded in trucks and then in trains to Calcutta. Many a

times the Bangladesh government refused to recognize

them as its citizens. Leaving another set of squatters in no-

mans land. This has now stopped temporarily as the

international agencies intervened.

Thus the impatience and lack of deference on part of

Executive, for judicial pronouncements becomes obvious in

matters of policy in particular.

-----------------------

Syed Kamran RazviFlat No.7, 137B/12, Zakir Nagar,

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVINew Delhi-110 025 (India)Tel: 91-9810078799 ® 91-9312655151E-mail :: [email protected]

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVI

Schedule A

List of Statutes Referred:

1. PROTECTION OF HUMAN RIGHTS ACT,19932. Prevention of Atrocities (SC and ST) Act, 19893. Universal Declaration of Human Rights, 19664. National Commissions Act,19905. Legal Services Authorities Act,1987, Rules in 1995.6. Criminal Procedure Code,1973,7. Commission of Inquiry Act No.60 of 1952,8. National Security Act No.65 of 1980.9. Article 32,136,141,226 of Constitution of India of 1950.10. PACE Act of 1984.(UK)11. ECHR convention, 1949, based on UN

Declaration,194812. Human Rights Act,1998(UK)13. India Police Act, 186014. Prisoners Act,1900.15. Freedom of Information Act, 2002(Central Statute)16. Civil Service(Conduct) rules and manual of office

procedure.17. Official Secrets Act,1923 18. Defence and Internal Security of India Act,197119. Public Records Act,199320. The Delhi Right to Information Act,200121. Government of India Act, 193522. Indian Independence Act,194723. Partition Act,194724. Adaptation of Laws Act,195025. Terrorist and Disruptive Activities (Prevention) Act of

1987.26. Prevention of Terrorism Act,200227. North Ireland (Emergency) provisions Act of 1991,28. The SAARC36 Convention (Suppression of Terrorism)

Act, 1993.29. International Covenant on Civil and Political Rights

1966,30. Abolition of Sati Act,185031. Contempt of Courts Act,1971

36 South Asian Association for Regional Cooperation.

40/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVI

41/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVI

SCHEDULE B

SUPREME COURT OF INDIASit in Division Benches( at least two Judges)

HIGH COURTS OF STATES

(Appellate, Extraordinary, Ordinary original, Company Jurisdiction exercisable in the territorial limits of the State.)

1.Some times two or more States has common High Court or Benches in various parts of a State.

2.They sit in Single and Division Benches

3.They are the inspecting judges on District Judges

SOME TRIBUNALS

Designated courts, Regulatory authorities/Commissions, etc.

Criminal Courts

Session Judge Court (Offences punishable by more than three years barring exception), Designated Courts.

Metropolitan magistrates/Judicial Magistrates/Executive Magistrates/Revenue Magistrate Courts(exercising preventive law on reference from local police)

Civil Courts

District Judges Court(Appellate and original Trial of Suits pecuniary jurisdiction, Family Courts, etc)

Civil Judge Court/Small Causes Court

vii where Delhi High Court has asked Delhi Police to pay 10% of the total damages to be paid by various civic authorities Biggest damage awarded in Article 226. It was case of negligence where fire in cinema house killed some hundred people.

42/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.

Page 43: Salsa Paper

PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS IN INDIA

BY SYED KAMRAN RAZVIEND NOTES

43/43 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle University School of Law, WA, USA.