FAIR TRIAL AND TERRORISM UNDER THE REALM OF INTERNATIONAL AND INDIAN MILIEU

Written by Ritupriya Gurtoo

Assistant Professor, Department of Law, Prestige Institute of Management and Research, Indore

 

Terrorism has a direct impact on the enjoyment of a number of human rights, in particular the rights to life, liberty and physical integrity. Terrorist acts can destabilize Governments, undermine civil society, jeopardize peace and security, threaten social and economic development, and may especially negatively affect certain groups. All of these have a direct impact on the enjoyment of fundamental human rights.

Terrorism, in modern times, clearly has a very real and direct impact on human rights, with devastating consequences for the enjoyment of the right to life, liberty and physical integrity of the victims. In addition to these individual costs, terrorism has the potential destabilize Governments, undermine civil society, jeopardize peace and security, and threaten social and economic development. All of these also have a real impact on the enjoyment of human rights of the victims.

Security of the individual is one of the basic human rights and the protection of individuals is, accordingly, a fundamental obligation of Government. States therefore have an absolute obligation to ensure the human rights of their nationals and others by taking positive measures to protect them against the threat of terrorist acts and bringing the perpetrators of such acts to justice. In recent years, however, the stringent measures adopted by States to counter terrorism have themselves often posed serious challenges to human rights and the rule of law. Some States have engaged in certain activities like torture and other ill-treatment to counter terrorism, while the legal and practical safeguards available to prevent torture, such as regular and independent monitoring of detention centers, and have often been disregarded. Other States have extradited persons suspected of engaging in terrorist activities to countries where they face a real risk of torture or other serious human rights abuse, thereby violating the international legal obligation of non-refoulement.

The independence of the judiciary has often been undermined, in some places, while the use of exceptional courts to try civilians has had a big impact on the effectiveness of regular court systems. Repressive measures have been used to stifle the voices of human rights defenders, journalists, minorities, indigenous groups and civil society.

These practices, particularly when assemble together, have a corrosive effect on the rule of law, good governance and human rights. They are also counterproductive to national and international efforts to combat terrorism. Respect for human rights and the rule of law must be the bedrock of the global fight against terrorism. This requires the development of national counter-terrorism strategies that seek to prevent acts of terrorism, prosecute those responsible for such criminal acts, and promote and protect human rights and the rule of law. It also implies measures to address the conditions conducive to the spread of terrorism, including the lack of rule of law and violations of human rights, ethnic, national and religious discrimination, political exclusion, and socio-economic marginalization; to foster the active participation and leadership of civil society; to condemn human rights violations, prohibit them in national law, promptly investigate and prosecute them, and prevent them; and to give due attention to the rights of victims of human rights violations, for instance through restitution and compensation.

Terrorism Perspectives through Lens of International Law

Terrorism is commonly understood to refer to acts of violence that target civilians in the pursuit of political or ideological aims. In legal terms, the international community has yet to adopt a comprehensive definition of terrorism. Martin Scheinin, United Nations special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, has highlighted the risks of codifying vague and overly broad definitions of terrorism and related terms into law.[1]

He notes that in many countries, such overbroad definitions are used by government authorities “to stigmatize political, ethnic, regional or other movements they simply do not like,” even though United Nations Security Council Resolution 1456 confirms that states must ensure that measures adopted to combat terrorism “comply with all their obligations under international law … in particular international human rights, refugee and humanitarian law.”[2]

In order to ensure that only conduct of a terrorist nature is covered by counterterrorism measures, the special rapporteur recommends that any definition of terrorism contain the following three cumulative characteristics[3]:

  • The acts are committed with the intention of causing death or serious bodily injury (and not just property damage).
  • The acts are committed for the purpose of provoking terror in the general public or part of it, intimidating a population, or compelling a government or an international organization to do or refrain from doing any act.
  • The acts constitute offenses within the scope of and as defined in the international conventions and protocols relating to terrorism.

The United Nations General Assembly adopted its first resolution on the subject of international terrorism in 1972.[4] Professor Tomuschat has recently pointed out that already the title of this Resolution indicates the extent to which the world community was divided over the subject. Resolution 3034 (XXVII) of 18 December 1972 is entitled: “Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms, and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes”.[5] Operative paragraph four of the resolution even goes further in expressly condemning “the continuation of repressive and terrorist acts by colonial, racist and alien regimes in denying peoples their legitimate right to self-determination and independence and other human rights and fundamental freedoms”.

On 9 December 1994, General Assembly adopted a “Declaration on Measures to Eliminate International Terrorism“.[6] In this declaration the General Assembly not only condemned “all acts, methods and practices of terrorism” by adding the formula “wherever and by whoever committed” but even more specifically pointed out that “Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.[7]

United Nations General Assembly adopted on 15th December 1997, the International Convention for the Suppression of Terrorist Bombings. India has been a party to this Convention, ever since the Union Cabinet approved it on 5th of August, 1999 and India formally ratified it on 17th of September 1999. This Convention creates a broad platform for international cooperation to suppress and deal with unlawful and international use of explosives and other lethal devices in various public places with the intention to cause serious bodily damage and extensive destruction. The Convention thus fills up a huge void in international law by expanding the legal framework and enabling several States to cooperate in the investigation, prosecution and extradition of several persons who are engaged in such international terrorism. It is of utmost importance as it strengthens international law enforcement in controlling international terrorism.

Several universal terrorism-related conventions also require compliance with the right to a fair trial and the rule of law. In the context of the International Convention for the Suppression of the Financing of Terrorism, for example, article 17 requires that the fair treatment of any person taken into custody, includes enjoyment of all rights which are guaranteed under applicable international human rights law making it clear that the Convention does not affect the enjoyment of other human rights, obligations and responsibilities of States parties.

Norms of Fair Trial in International Conventions in relation to Terrorism cases

The right to a fair trial is an umbrella right encompassing several sub-rights of any person who is subjected to criminal proceedings,[8] can be divided into three stages such as:

  1. PRE-TRIAL RIGHTS
  1. The prohibition on arbitrary arrest and detention[9]
  2. The right to know the reasons for arrest[10]
  3. The right to legal counsel[11]
  4. The right to protection against arbitrary imprisonment and to challenge the lawfulness of one’s detention as well as the right to be brought promptly before a judge.[12]
  5. Right for protection against torture.[13]
  6. The prohibition on incommunicado detention[14]
  1. AT THE TIME OF HEARING
  1. Right to equal access to court.[15]
  2. the right to equality of arms before a court, which has to be competent, independent, impartial and established by law;[16]
  3. the right to a public hearing and a public pronouncement of the judgment;[17]
  4. the right to be presumed innocent until guilt is proven according to the law[18] and the right not to be compelled to testify against oneself;[19]
  5.  the right to be informed of the charge and to have adequate time and facilities to prepare one’s defence including the right to have access to the proceedings and to the relevant documents supporting the charges, to choose a lawyer (if necessary, free of charge) and to communicate with him confidentially;[20]
  6. the right to be tried without undue delay within a reasonable time;[21]
  7.  the right to be assisted by an interpreter if necessary;[22]
  8. The right not to be tried twice for the same offence and the prohibition of retrospective legislation.[23]
  1. POST TRIAL RIGHTS
  • The right to have a convicting judgment reviewed by a higher court and to demand compensation for miscarriages of justice.[24]

Due to the specifics of each individual case and the interests of monitoring organizations, a detailed rendition of trial observation aims is not feasible. The key general goals as given by International Commission of Jurists (ICJ) on Guidelines for ICJ Observers to Trials may be summarized as follows[25]:

  • To make known to the court, the authorities of the country and to the general public the interest in and concern for the trial in question;
  • To encourage a court to give the accused a fair trial;
  • To obtain more information about the conduct of the trial, the nature of the case against the accused and the legislation under which s/he is being tried; and
  • To collect general background information about the political and legal circumstances leading to the trial and possibly affecting its outcome.

The standards against which a trial is to be tested in terms of fairness are numerous, complex and continuously evolving. They may constitute binding obligations that are included in human rights treaties to which the state is a party. But, they may also be found in documents which, though not formally binding, can be taken to express the direction in which the law is evolving.[26] In order to avoid possible challenges to the legal nature of the standards employed in evaluating the fairness of a trial, monitors should refer to norms of undisputedly legal origin.

These are:

  1. The laws of the country in which the trial is being held;
  2. The human rights treaties to which that country is a party, and
  3. Norms of customary international law.[27]

Before observing a trial, a monitor should read relevant materials pertaining to domestic legislation. Due to the various legal systems and legal orders involved, as well as the differing stages of their development, it is not possible to devise a comprehensive list of essential texts. A minimum list would comprise: i) a state’s Constitution, especially its provisions on human rights and the judicial system; ii) its Criminal Code and Code of Criminal Procedure; statutes on the establishment and jurisdiction of the courts and on the public prosecutor’s office, and iii) landmark court decisions pertaining to human rights, particularly in common law countries.

The Right to a Fair Trial in Times of Terrorism: Indian Perspective

To ensure a fair trial even in the absence of any specific provision in any enactment the Court has inherent power to order that no witness who has to give evidence should be present when the deposition of the other witnesses are being taken until he himself is examined as a witness. In criminal trials, a prosecutory is entitled to remain in Court only in his capacity as prosecutor and if he is witness also, he may be ordered to retire.[28]

Court held that the prosecutor ought not to be allowed to frame questions in such a manner, which the witness may answer in ‘yes’ or ‘no’ so as to enable him to elicit such answers, which he expects or desires. It also held that allowing such leading questions would offend the right of the accused to fair trial enshrined in Article 21 of the Constitution of India.[29]

In investigation, fairness is necessity and fairness in investigation and trial is a human right of an accused. Prosecution must also be fair to accused and state cannot suppress any vital document from court only because the same would support the case of the accused.[30] In india we have had the following legislation to deals with terrorism. These were:

The Unlawful Activities (Prevention) Act 1967

The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. The Act was a self-contained code of provisions for declaring terrorist associations as unlawful, adjudication by a tribunal, control of funds and places of work of unlawful associations, penalties for their members etc.

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)

It came on 3 September 1987 was The Terrorist & Disruptive Activities (Prevention) Act 1987 and it was much more stringent provisions then the UAPA. It was specifically designed to deal with terrorist activities in India. When TADA was enacted its constitutionality was challenged which was upheld by court.[31]  The rigorous provisions contained in the statute came to be abused in the hands of law enforcement officials. TADA lapsed in 1995.

The Prevention of Terrorism Act, 2002 (POTA)

Court upheld the constitutional validity of the various provisions of the Act[32] including defining terrorist act[33], possession of certain unauthorized arms[34], funding terrorist organization[35], admission to police amounting to confession[36] etc.

The Unlawful Activities (Prevention) Act, 2004

Finally on September 17, 2004 the Union Cabinet in keeping with the UPA government’s Common Minimum Programme, approved ordinances to repeal the controversial Prevention of Terrorism Act, 2002 and amend the Unlawful Activities (Prevention) Act, 1967.

Some of the clauses contained in POTA, which will be completely dropped in the amended Unlawful Activities Act, are: the onus on the accused to prove his innocence, compulsory denial of bail to accused and admission as evidence in the court of law the confession made by the accused before the police officer. In another major departure from POTA, the government has removed all traces of strict liability. Meaning, the burden of proof has shifted from the accused to the police. There is no presumption of guilt under UAPA. Like under any other ordinary criminal law, the police will have to establish that the accused person had a criminal intention for committing the offence in question. Another glaring shortcoming in the law pertained to the dichotomy in the provision for banning terrorist organisations and unlawful organisations. UAPA was originally meant only for banning unlawful organisations. Now it has a separate chapter for banning terrorist organisations as well. Thus, the procedures prescribed by the same law for the two kinds of bans are different. The government cannot, for instance, ban any group for unlawful activities without having its decision ratified within six months by a judicial tribunal headed by a sitting high court judge. There is no such requirement if the ban is on the charge of terrorism. This anomaly has arisen because of the strategy adopted by the UPA government to hide special provisions in an ordinary law.

The National Investigation Agency Act (NIAA)

The National Investigation Agency Act (NIAA)  creates a specialized federal police agency authorized to investigate certain crimes, including offenses under the UAPA.[37] It remains to be seen how the NIA will function in practice, but it is immediately concerning that the NIAA authorizes the creation of Special Courts to try numerous offenses, including “terrorism offenses” under UAPA.[38]

In India, fair trial is seen in Code of Criminal Procedure, the prosecutor cannot withdraw the case without the consent of the court[39], the court has been empowered to examine any accused at any point of time to get explanation[40], judge should not be in any manner related to the prosecution[41], venue of trial[42], right of accused to know accusation[43], interpretation of evidence to accused[44], accused to have expeditious trial[45], evidence to be taken in presence of accused, right against double jeopardy[46], free legal aid to accused[47], right of accused to examine witnesses[48].

Role of Indian Judiciary in Protecting the Rights of Terrorists Via Fair Trial

Though Indian judiciary has always maintained the stand that the accused, irrespective of the status, has always been given a fair trial, in spite of the reality is somewhat different. The right to a fair trial is one of the fundamental guarantees of human rights and the rule of law, aimed at ensuring the proper administration of justice. Indian judiciary ensures that Justice is administered in a way that achieves fairness for all, regardless of the identity of the parties to the proceedings or the nature of the proceedings themselves. Criminal charges are always determined by a competent, independent and impartial tribunal established by law. India is wedded to the concept of rule of law. State power is divided amongst the three chief organs, the Legislature, the Executive and the Judiciary. The role and responsibility of each has been properly defined and circumscribed, the Judiciary being given the prime place, and planted as the instrumentality of the Constitution to test the validity of acts of each organ through the concept of judicial review; the foremost reason for this scheme of things being the view that rule of law is the sole raison d’ etre for the survival of human rights which India is determined to conserve and preserve.[49] Yet, there have been cases where it is alleged by the human rights protector that judiciary has overlooked certain perspectives of Fair trial in cases involving terrorism. Taking the case of Mohammed Ajmal Amir Kasab’s[50] involvement in the terrorist attacks in Mumbai in November 2008 is an open-and-shut case for some as it took nearly four years to conclude because of India’s commitment to the rule of law and the due process of law. However, allegation of due process not being followed meticulously on the grounds that his actual age was in contention which was rejected by court nor sufficient time was not given to Kasab lawyer to study the chargesheet. Kasab initial lawyer Mr Kazmi, was replaced by the court on account of him being not cooperative. This was done after Mr Kazmi had examined 250 witnesses. Under the Code of Criminal Procedure, a judge does not have the power to dismiss a lawyer. Kazmi’s dismissal. Mere non-cooperation is no grounds for removing the lawyer when the accused has his confidence in him, and this may perhaps vitiate the final verdict in the case.[51] Amicus Curiae Raju Ramachandran, Senior Advocate in the Supreme Court did not feel the need to meet Kasab even once to take instructions from his client before arguing his case before the Supreme Court. The reason, according to him, was that the case records from the trial court and the High Court were fairly exhaustive and there was no occasion to meet Kasab.[52]

In State (N.C.T. of Delhi) vs. Navjot Sandhu @ Afsan Guru[53], where afzal guru along with 9 other terrorist attacked parliament in 2001 was another case where allegations of shoddy investigation had surfaced. Allegations were alleged that he had been awarded the death sentence entirely on the basis of circumstantial evidence , without any proper defence lawyer

In another case of State of Punjab v. Davinder Pal Singh Bhullar and Ors. etc [54] who was sentenced in 2001 by a trial court, under Terrorist and Disruptive Activities (Prevention) Act (TADA), for plotting terror attacks on Punjab Senior Superintendent of Police Sumedh Singh Saini in 1991 and Youth Congress leader M.S Bitta in 1993, in which nine people were killed. The manner in which his death sentence was executed, like confession made before police; excessive torture, gave an indication in international scenario that it was an unfair trial which is a violation of the right to life.

Taking all the above things into consideration, Human Rights watch legal concerns with respect to key aspects of India’s new counterterrorism laws are now drawing favour from the public. Several recommendations have been floated are[55]:

  • Expand the vague and overbroad definition of terrorism under existing Indian law to encompass a wide range of non-violent political activity, including political protest by minority populations and civil society groups.
  • Strengthen the existing power of the government to ban an organization on limited evidence and with limited rights to judicial review, and to make membership of summarily proscribed groups a criminal offense.
  • Authorize warrant-less search, seizure and arrest with wide authority and few safeguards, and compulsion of information from third parties without a court order.
  • Allow detention without charge of up to 180 days, including up to 30 days in police custody, and create a strong presumption against bail.
  • Create a presumption of guilt for terrorism offenses where certain kinds of evidence are found, without a showing of criminal intent.
  • Authorize the creation of special courts at the state and federal level, with wide discretion to hold in camera (closed) hearings and use secret witnesses.
  • Contain no sunset provisions or mandatory periodic review schedule that could help safeguard against abuse.


 

Conclusion

India continues to face serious threats of terrorist attacks in spite having stringent legislations. However, resuscitating counterterrorism measures have already shown to the government that it had failed; it violates fundamental human rights guarantees and is not a sound or effective response.

A human rights analysis of the impact of these counter-terrorism have to measures merits particularly consideration in the light of the serious consequences they may have for the individual, as well as for his or her family and community. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between ‘may be’ and ‘must be’ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ‘may be’ true and ‘must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. The right to a fair trial involves the right to a public hearing. Any restrictions on the public nature of a trial, including for the protection of national security, must be both necessary and proportionate, as assessed on a case-by-case basis. Any such restrictions should be accompanied by adequate mechanisms for observation or review to guarantee the fairness of the hearing. The protection and promotion of human rights while countering terrorism is both an obligation of States and a condition for an effective and sustainable counter-terrorism strategy. All counter-terrorism measures must comply fully with States’ international human rights obligations, including the right to a fair trial.

In order to counter terrorism there is an urgent need to revise the law envisaging the definition of terrorism to be consistent with the recommendations of the UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, notably that it cover only those acts that are committed with the intention of causing death or serious injury; are committed for the purpose of provoking terror or coercing the government to do or refrain from doing any act; and are in line with international conventions relating to terrorism. A fair balance has to be struck between Human Rights norms and the need to tackle transnational crime.  There is an absolute search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. As movement about the world becomes easier, faster and crime takes on a larger international dimension, it is increasingly in the interests of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would only results in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in cases involving terrorism

 

 

[1]  UN Commission on Human Rights, “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin,” E/CN.4/2006/98, December 28, 2005,http://www.coe.int/t/e/legal_affairs/legal_cooperation/fight_against_terrorism/3_CODEXTER/Working_Documents/2006/Sheinin%20E-CN.4-2006-98.pdf

[2] Ibid., para. 56; United Nations Security Council, Resolution 1456 (2003), S/RES/1456 (2003), http://www.unhcr.org/refworld/docid/3f45dbdb0.html

[3] UN Commission on Human Rights, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, E/CN.4/2006/98, December 28, 2005,

[4] See in respect, J. Dugard, Towards the Definition of International Terrorism, Proceedings of the American Society of International Law 67 (1973), 94 ff. (96); Franck/Lockwood, note 33, 71

[5] ibid

[6] General Assembly Resolution. 49/60 of 17 February 1995

[7] ibid

[8] L. Doswald-Beck, Human rights in Times of Conflict and Terrorism, 2011, pp.251-372

[9] Under Article 9(1) of ICCPR “No one shall be subjected to arbitrary arrest or detention” and “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

[10] Article 9(2) of the ICCPR13 provides that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”

[11] Principle 1 of the Basic Principles on Lawyers states that “[a]ll persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.” This right is particularly relevant in case of pre-trial detention. This was reiterated in the Report of the Special Rapporteur on the Independence of Judges and Lawyers regarding the Mission of the Special Rapporteur to the United Kingdom, UN Doc E/CN.4/1998/39/Add.4, March 5, 1998, para 47.

[12] Article                9(3) of ICCPR

[13] Article 7 of the ICCPR prohibits torture or cruel, inhuman or degrading treatment or punishment; Article 2(2) of the Torture Convention no exceptional circumstances whatsoever, “whether a state of war or a threat of war, internal political instability or any other public emergency” may be invoked as a justification of torture.; Body of Principles, Principle 6: “No person under any form of detention or imprisonment  shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or  punishment.” See further Code of Conduct for Law Enforcement Officials, supra note 6, Article 5: “No law  enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading  treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional  circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or  any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or  punishment.”

[14] See e.g., Human Rights Commission Resolution 1997/38 para 20 holding that “prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or

degrading treatment.” Article 7 of the ICCPR which prohibits torture, inhuman, cruel and degrading treatment. Principle 19 of the Body of Principles states that a “detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate  opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations. Principle 16 of the Body of Principles requires that the family of any arrested or detained person must be notified promptly of the arrest and the location of their family member. If the detainee is moved to another facility the family must be notified of that change.

[15] Article 14(1) of ICCPR

[16] ibid

[17] ARTICLE 10 OF UDHR

[18] Article 14(2) of ICCP

[19] Article 11 of UDHR; Article 14(3)(g)of ICCPR

[20] Article 14(3)(a),(b),(d),(e) of ICCPR

[21] Article 14(3)(c)                of ICCPR; Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary (N.P. Engel, Arlington:  1993) [hereinafter Nowak Commentary], at 244

[22] Article 14(3)(f) of ICCPR 7; Principle 14 of the Body of Principles sets out the right to an interpreter in all legal proceedings subsequent to arrest. Article 67(1)(f) of the ICC Statute guarantees the right to a “competent” interpreter

[23] Article 14(6) of ICCPR

[24] Article                14(5) of ICCPR; The right to appeal is aimed at ensuring at least two levels of judicial scrutiny of a case, the second of which must take place before a higher tribunal. The review undertaken by such a tribunal must be genuine. This, among other things, means that appeal proceedings confined only to a scrutiny of issues of law raised by a first instance judgement might not always meet that criterion. See for example the concerns of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions in his 1993 Report (7 December 1993, UN Doc E/CN.4/1994/7 at paras 113 and 404.

[25]See  International Commission of Jurists (ICJ), “Guidelines for ICJ Observers to Trials”

[26] Non-binding documents of relevance to the conduct of criminal proceedings and to ascertaining fair trial standards include: the Basic Principles for the Treatment of Prisoners, UN General Assembly resolution 45/111, December 14, 1990 [hereinafter Basic Principles on Prisoners]; Standard Minimum Rules for the Treatment of  Prisoners, UN Economic and Social Council resolution 663 C (XXIV), July 31, 1957 and resolution 2076 (LXII)

[27] The provisions of the Universal Declaration of Human Rights, (UN General Assembly resolution 217A (III), December 10, 1948 [hereinafter UDHR]), are for the most part considered declarative of customary international law and may be of paramount importance if a state has not ratified or acceded to the ICCPR, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (UN General Assembly resolution 39/46, December 10, 1984, entered into force June 26, 1987 [hereinafter Torture Convention]), or any regional human rights instrument. The most directly relevant articles of the UDHR are 5, 9, 10 and 11. As customary international law will most probably be used as a supplementary source of a state’s obligations in ensuring the right to a fair trial, it will not be further considered.

[28] Dr. Kasi Iyer Vs. State of Kerala AIR.2004. SC 1280,

[29] Varkey Joseph v. State of Kerela [AIR 1993 SC 1892]

[30] Samadhan dhudaka Koli vs. State of Maharastra 2010  4 SCC (crl) 62.

[31] Kartar Singh vs State of Punjab (1994) 3 SCC 569.

[32] People’s Union for Civil Liberties Vs. Union of India (UOI) (2004) 9 SCC 580

[33] Section 3(a) of POTA

[34] Section 4 of POTA

[35] Section 21 of POTA

[36] Section 32 of POTA

[37] National Investigative Agency Act 2008, No. 75 of 2008; NIAA, secs. 3-5.

[38] NIAA SECTION 11-12

[39] Section 228 of CrPc

[40] Section 313 of CrPc

[41] Section 479 of CrPc

[42] Section 177 to 189 of CrPc

[43] Section 211-224

[44] Section 279

[45] Section 309(1)

[46] Section 300(3)

[47] Section 304

[48] Section 230,231 and section 242

[49] Justice Y. K. Sabharwal, Chief Justice of India, Meeting The Challenge Of Terrorism – Indian Model (Experiments In India)

[50] Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra AIR 2012 SC 356

[51] Gaps in Kasab case, V. Venkatesan, Frontline, Volume 29, Issue 22 ,Nov. 03-16, 2012

[52] ibid

[53] AIR 2005 SC 3820

[54] State of Punjab v. Davinder Pal Singh Bhullar and Ors. etc AIR 2012 SC 364

[55] Human Rights Watch , Back To Future: India’s 2008 Counterterrorism Laws, July 2010

COMPARATIVE STUDY OF HUMAN RIGHT UNDER TRAIL

Written by Sheena Taqui

4th year BBA LLB STUDENT Amity Law School

 

Human rights are inalienable rights and every human is entitled to such rights by birth. During the procedure of trail under criminal justice system in India the procedure is so long and stretched that these basic rights of both the parties are under question to a very great extent. The criminal justice system works on the very well settled principle of innocence and presumes the accused to be innocent and all the burden of proof is on the prosecution. And all those basic rights that are mentioned under the law are to be given to the accused, mere investigation saying that he has committed any offence would not take away his rights, but the other side of the coin is not in every case is the accused innocent and may be because of the presumption of innocence the prosecution is under undue pressure of burden proof. The author in this paper has discussed and compared the human rights of both the parties’ i.e the accused and the victim, and tried to draw a comparison of state and human rights or natural rights of both the parties.  The paper focuses on the rights that the legislation has given to the accused and a situation of prosecution where the presumption of innocence acts as a boom for one party and curse for another.

KEY WORDS- inalienable rights, presumption of innocence, burden of proof, investigation

 

INTRODUCTION

Trial, a stage in criminal justice system that is very difficult to answer from where it begins. There is a common perception that as the court takes cognizance of the case the stage of “trial” starts but there is a distinction of the beginning of trail stage in the cases trial able by magistrate and that of trial able by session. Supreme Court under common causes said that the cases trail able by session are only considered under trail after the Magistrate frame the charges.

Trial may go on for years and any stretched period of time and the parties that are under the trial are subjected to number of problems.

Human rights that are considered to be inalienable rights that are guaranteed by the Constitution and many other international organization. Every citizen weather an accused or the prosecution have certain rights and that cannot be taken away by the courts during the pendency of the trails.

This paper discusses about these rights of both the parties and with special emphasis on prosecuting rights.

PROSECUTION RIGHTS

The main objective of the criminal trial is to determine whether an accused person has violated the penal law and where found guilty, to prescribe the appropriate sanction. Prosecution is an executive function of the state and is usually discharged through the institution of the prosecutor. The burden of proof rests on the prosecution as per the prescribed standard of proof. The prosecutor faces several problems in proving the guilt of the accused person. Some of these problems fall beyond the scope of his duties and responsibilities. The legal framework, the law enforcement infrastructure and the quality of the personnel operating within the legal system, amongst other factors, considerably affect the conviction rate. In the first part of the paper, our group has defined conviction rate, and analyzed the reasons for variation in rates in different countries. The group has discussed some of the problems which may arise in proving the case in a court from the perspective of the prosecutor under four categories relating to investigation, prosecution, trial, and legal and systemic factors. The group has also proposed solutions to some of these problems.

The right to a speedy trial is a fundamental human right. It has been affirmed in the Universal Declaration of Human Rights 1948 and enshrined in the constitution’s and statutes of some countries. Speedy trial is a vital element in the administration of criminal justice. In fact, unnecessary delay in the trial constitutes a denial of justice. The prevention and control of crime as well as the effective rehabilitation of the convict are enhanced by speedy trial. The prosecutor is at the centre stage of a criminal trial and plays a leading role in its conduct. In the second part of the paper, the group has examined some of the laws and practices which prevail in different countries where this right is guaranteed. Factors affecting the realization of a speedy trial have also been discussed from the perspective of the prosecutor. Sentencing is the final stage of a criminal trial. An appropriate sentence is one which strikes a balance between the preservation of social order and the rehabilitation of the convict. The participation of the prosecutor in sentencing and the stage of the such participation differ depending on the legal systems as practiced in different countries. Sentencing remains the prerogative of the presiding judge/magistrate who usually enjoys wide discretion, and the recommendations of the prosecutor are not binding on him. In the third part of this paper, the group discussions revealed problems which may arise in the sentencing process. The countermeasures proposed therein, are intended to ensure that the prosecutor effectively assists the court in arriving at an appropriate sentence.

HOW WELL DOES THE PROSECUTION ESTABLISH ITS CASE AGAINST THE DEFENDANT TO OVERCOME THE PRESUMPTION OF INNOCENCE

The preservation of life and property is one of the fundamental functions of the state. Over the millennia, the state has endeavored to perform this function through various institutions. Crime and criminality are as old as humanity itself and their total elimination appears to be beyond human ingenuity. The investigative, prosecutorial, adjudicatory and correctional institutions aim at containing criminality within socially acceptable limits. The state causes sanctions to be imposed upon the criminals commensurate with the gravity of their crimes. Any violation of the law is investigated by the competent agencies and if a prima facie case is made out, a charge sheet/bill of indictment is filed in the competent court. Prosecution is conducted by the prosecutor on behalf of the state. The court adjudicates the case on the basis of evidence adduced and either convicts the offender or acquits him. The court imposes the sentence on the convict after it has heard him and the prosecutor. The aforesaid procedure is followed in most jurisdictions, with occasional variations to punish the offender as per the procedure established by law. The correctional services attempt to rehabilitate him.

Conviction Rate

Under the Indian Penal Code offences, the conviction rate was 47.8 percent in 1991 and 42.1 percent in 1995. In 1995, the conviction rate for grave offences was as follows: murder, 37.0 percent; culpable homicide not amounting to murder, 36.3 percent; rape, 30 percent; kidnapping and abduction, 303 percent; robbery, 34.1 percent; and burglary, 42.7 percent. However, for the Special and Local Laws, the conviction rate was 85.8 percent in 1995. This is largely explained by a high conviction rate in traffic related offences i.e., 90.4 percent.[i]

Problems in Proving the Guilt of the Defendant

The conviction rate in countries like Indonesia, Japan and the Republic of Korea is very high, whereas in countries like India it is relatively low. It is now proposed to examine problems in proving guilt particularly in the context of countries having a low conviction rate. The problems are divided in four categories, namely;

(a) Investigation;

(b) Prosecution;

(c) Trial; and

(d) Legal and systemic problems.

BASIC PROBLEMS IN THE TRIAL DEFENDANT RELATED

  • Insufficiency of evidence due to poor investigation

The investigating agencies are required to collect all available evidence during investigations. If painstaking and timely investigations are not conducted, valuable evidence maybe lost. Sometimes the police11 fail to collect vital evidence from the site such as blood stains, fingerprints and other evidence in cases of physical violence, due either to lack of training or inefficiency. At times, the statements of key witnesses are not recorded as their importance in proving the case is not understood. Statements may also be recorded in a casual and slipshod manner by the investigating officer which leaves gaps in the evidence. Occasionally, the police fail to work in collaboration with forensic experts.  As a result, forensic evidence is not collected for use against the offender. The police may send cases to the court even when the evidence is insufficient for reasons of expediency.

  • Inexperience and inadequate qualification of investigating officers

Investigations are often conducted by low-ranking officers who are new in service and lack experience. As the caliber of such officers is not high, they may be deficient in procedures.  Hence their inability to conduct quality investigations. The lacunae left are often harmful in trial.

  • Non-separation of investigative staff

Even though some countries have set up specialized investigative agencies to handle specific category of crimes, the police still remains the main investigating agency to handle general crimes. In most countries, investigations are conducted at police stations where the police handle both investigations and duties to maintain social order. No staff is earmarked exclusively for investigative work. Generally, the police gives preference to activities related to the preservation of social order which results in lack of sustained and systemic investigation, inordinate delay and the consequential loss of valuable evidence.

  • Poor supervision by the superiors

Sometimes senior officers are unable to monitor and supervise investigations in a timely manner due to heavy work load or indifference. Hence, vital lacunae are left in cases and are exploited at the trial stage.

  • Lack of qualified personnel

Logistics and financial resources investigating agencies do not have well qualified officers in sufficient numbers. Often they after have excessive work load and the quality of investigation is adversely affected. Efficient investigation necessitates qualified personnel commensurate with the work load. Besides, lack of resources such as transportation, communication and office equipment may affect the quality of investigations. Investigating agencies suffer from these constraints in some countries.

  • Lack of cooperation and coordination with prosecutors

The prosecution is separate from the police in most countries and they often function under separate ministries. In countries where the prosecutors do not enjoy the statutory authority to guide and supervise police investigations, they are not usually consulted by the police during investigation even when legal advice is necessary. Sometimes, prosecutors are consulted but their directions are not complied with due to departmentalized perceptions.

  • Lack of practice and other forms of malpractice

In some countries, investigations are not always conducted in a fair and just manner due to extraneous factors such as lack of probity amongst the investigators, political pressures, etc. This leads to various forms of malpractice which include the failure to record statements from key witnesses or the intentional manipulation of statements with a view to screening the offenders.

PROSECUTION RELATED PROBLEMS

 

Public prosecution is an executive function of the state which is conducted by the prosecutor. It is his primary responsibility to prove the guilt of the defendant. Public prosecution, inter alia, has a significant bearing on the conviction rate. The problems in efficient prosecution are enumerated hereinafter.

 

 

Inadequate or delayed scrutiny by the prosecutor

In Indonesia, Japan, Maldives, Nepal, the Republic of Korea and Sri Lanka, the prosecutor has absolute authority to determine whether a case should be sent for trial or not, and he alone determines if the evidence is sufficient. In some countries, the case file is sent to the prosecutor for screening at the pre-trial stage, even though he does not make the final decision. Sometimes, the prosecutor does not conduct proper screening due to heavy work load or other extraneous factors. In Sri Lanka, the police sends the case file to the Attorney General’s Office for advice. Scrutiny may take a long time, and it may be too late for the State Counsel to make any meaningful suggestion to the police, to improve the quality of investigations. Hence, relatively weak cases are sent to court.

IS SPEEDY TRIAL REALIZED?

Preface Courts are the citadels of justice—they are the vanguards of life, liberty and property. They radiate the last ray of hope to those in despair. Indeed courts perform a very vital role in society. They have the enormous task of deciding cases and controversies so that justice may be rendered. The fulfilment of this duty by the court in promptly resolving controversies is necessary for the people’s continued belief in them and respect for the law.

 What is Speedy Trial?

Speedy trial is considered a fair process conducted within a reasonable period of time. Our group considered speedy trial an indicator of the efficiency of a criminal justice system because where it exists:

  • There is a faster flow of cases.
  • It may facilitate the writing of court judgements.
  • There will resultantly be more cases heard and disposed of.
  • Litigation expenses are reduced as cases may be heard and completed in one or more court sessions. • Tension on the part of the parties, especially those in police or prison custody, will be eased, since the pendency of a case is reduced to the minimum period. People will, thus resort to the judicial process instead of taking the law into their hands.

“Justice delayed is justice denied” runs the proverb. Delay in the criminal justice system is a matter of major concern. It raises a number of issues of legal significance, some constitutional, others of statutory dimensions.

It cannot be denied that speedy trial is in the interest of both the defendant and the society. It is a guarantee to the defendant against his infinite incarceration without trial, (if he is in custody) and tends to minimize anxiety if he is admitted bail. Speedy trial serves the public interest in that it minimizes the possibility of the defendant jumping bail or influencing witnesses. Besides, pre-trial incarceration is costly and delayed trial may cause key witnesses to suffer from memory loss, or become unavailable. It is difficult to determine a precise time frame for a speedy trial. However, speedy trial not only means the commencement of trial within a statutory prescribed time frame from the time the suspect is arrested, it also encompasses the completion of the trial within the legally prescribed time frame. It is the endeavour of our group to address these issues in the light of legal and constitutional provisions prevailing in some countries.

 PRESENT SITUACTION IN INDIA

India Article 21 of the Constitution of India guarantees the right to life, which has been interpreted by the Supreme Court of India to mean right to speedy trial. According to section 167 of the Criminal Procedure Code, the charge sheet must be filed against the defendant within 90 days from the date of arrest in offences punishable with death, imprisonment for life or imprisonment of not less than 10 years, and within 60 days in other offences, failing which he will be released on bail. The failure to file the charge sheet in the afore time frame, however, does not prejudice the trial. Besides, there is no law in India which prescribes a time frame for the completion of trial

Causes of Delays in Trials

Our group in its deliberations considered that delays may be classified under four categories: • court-related, • prosecution-related, • defence counsel-related, and • general.

  1. Court-related Factors a) The split trial process Cases are generally tried on a piecemeal basis. This means that the trial proceedings are conducted in sessions spread out over a period of time. Usually one witness testifies for an hour or less in one hearing and then continues at the next hearing for “lack of material time”, a stereotype reason stated.
  2. b) Incompetence and ignorance of the law As a factor in unnecessary delay, our group has considered the incompetence of some judges/magistrates. The failure to keep abreast with the law and jurisprudence also causes undue delay, particularly when a judge is unfamiliar with the rules of procedure.
  3. c) Heavy case load and poor case flow management Due to the increase in the population in most countries and the deterioration of economic conditions, considerable number of new cases are added yearly to the already overcrowded dockets of the courts. There seems to be a tendency to schedule cases over a long lapse of time. This is so because there are too many cases scheduled for a given trial date and it is impossible for the trial judge to hear them all. Those that cannot be called are re-scheduled for some other date. As a result, only a few cases are heard on any given trial date.
  4. d) Delay caused by court personnel Delay may be caused by court personnel who are unprofessional or who lack proper managerial and technical skills. The scheduling of cases, issuance of summons, record keeping, the retrieval of information and the docketing of cases are done by court staff, thus relieving the judges/magistrates of the “housekeeping” chores of the court. Since the jobs of court staff are interrelated, the absence or incompetence of any one of them can scuttle trial proceedings, e.g., the absence of a court stenographer will cause the postponement of all the cases scheduled for hearing and may delay the completion of records of proceedings for those cases that are appeal.
  5. Prosecution-related Factors
  6. a) Inadequate preparation and lack of evaluation of evidence The excessive workload of a prosecutor may result in inadequate preparation for trial. Additionally, the lack of cooperation between the prosecution and the investigating agencies would undoubtedly result in non-production of exhibits and/or witnesses during the trial date, hence leading to adjournment.
  7. b) Failure to show a clear outline of proving cases Failure by prosecutors to show a clear outline as to how they intend to present their cases, makes it difficult for the court to allocate sufficient time to hear and determine cases. Factors such as documentary evidence, statements of witnesses and of the defendant should enable prosecutor to calculate the number of witnesses and the length of time necessary for their respective testimonies.
  8. Defence Counsel-related Factors
  9. a) Abuse of court process Defence counsel are known to use dilatory tactics to gain an advantage over the opposing party. By filing unnecessary motions for the review of court orders, a defence counsel hopes that the prosecution may lose interest in the case. Defence counsel think that by prolonging the cross examination of a material witness, he may become tired and will simply disappear. Other dilatory tactics include the presentation of corroborative witnesses to prove matters that have already been established; filing of writs for certiorari, mandamus or prohibition; and seeking a review of orders by a trial court.
  10. b) Heavy volume of cases The heavy volume of cases handled by a defence counsel eventually leads to scheduling conflicts which, may result in adjournments, thereby inadvertently delaying court proceedings.
  11. c) Incompetence and failure to prepare The heavy case load of the defence counsel may result in inadequate preparation for trial. The defence counsel thus unprepared for the trial may ask for a adjournment, thereby delaying the disposition of the case.
  12. General
  13. a) Our group considered other general factors such as lack of discipline and moral probity in the execution of different functions. External pressure and interference from politicians and/or other senior government officials with vested interests in particular cases and other forms of malpractice such as corruption within the criminal justice system were also considered contributory to unnecessary delay in trials. In addition, the group observed that sufficient initial and continued professional training was lacking in the judiciary and the prosecution.
  14. b) Our group observed that there is wide-spread poverty and ignorance of the law in many developing countries, which was identified as one of the factors contributing to the delay in trials. The group cited examples where a defendant or a witness could not travel to court due to lack of bus fare or a means of transportation. In some countries where defence counsel is not provided the defendant by the state, they apply for adjournment on the ground that they were still making arrangements for such defence counsel. In this respect, the courts found it difficult to deny them their constitutional right to defence counsel and grant such applications.

IS THE APPROPRIATE SENTENCE IMPOSED ON DEFENDANTS?

What Is Appropriate Sentence?

Appropriate sentence should reflect the major objectives of punishment which include retribution, general and specific deterrence and rehabilitation. The court has wide discretionary powers in the selection of the type of punishment considering the gravity of the offence and personality of the convict. The prosecutor has professional duties as a representative of the public interest to ensure that the appropriate sentence is meted out by the court. It is for this reason that prosecutors in most jurisdictions are required to assist the court by disclosing as much information as possible relating to sentencing, that is, the circumstances of the commission of the offence and the personality of the convict.

Present Situation

The degree of involvement and the time of such involvement by prosecutors in sentencing, varies depending on the system in application in different countries. In some common law countries, the prosecutor makes general recommendations relating to sentencing at the end of the trial during the closing statement/argument. Following conviction, he is only expected to disclose the past criminal record of the convict to the court. In countries following the civil law system, the prosecutor makes recommendations which may be detailed or not in his submissions to the court at the end of the trial. The past criminal record of the convict is contained in the case file, which is transmitted to the trial judge or magistrate before the commencement of the trial. Before imposing sentence, the court shall provide the defence counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally to ask him if he wishes to make a statement or to present any information in mitigation of punishment. In some common law countries, the pre-sentence inquiry is a procedural step prior to sentencing at which the judge of a court may examine the pre-sentence report and all other relevant documents before imposing sentence. Sentencing is a crucial stage of criminal prosecution requiring the assistance of an appointed defence counsel. The prosecutor shall also have an opportunity to speak to the court. In Japan, during the trial, mitigating circumstances are presented to the court by the prosecutor and the defence counsel respectively. The prosecutor submits, in addition to the charge, any other aggravating evidence such as the past criminal record of the defendant. On the other hand, the defence counsel may produce witnesses to present mitigating circumstances. In this case, the defence counsel examines the witnesses in relation to mitigating circumstances. In his closing argument, the prosecutor makes a detailed recommendation for specific punishment to be determined by the court.

CONCLUSION

The importance of the role played by the prosecutor in a criminal trial cannot be overemphasized. Adequate initial and continued professional training are necessary for the efficient and diligent performance of prosecutorial functions. Furthermore, probity should be a requisite for admission into the profession. The prosecutor should adhere to the professional ethics throughout his career. There is a need for sustained cooperation between the prosecutor, the investigating agencies, defence counsel, judges, supporting staff and all persons involved in the administration of criminal justice. The quality of investigations, prosecution and trial in some jurisdictions needs to be improved. The legal framework may require substantial reforms to better respond to prevailing circumstances in different countries, so as to meet the challenges posed by the sophistication of crime and its transnational character resulting from technological advancement. These reforms can only materialize where there is a firm political commitment and necessary funds are made available by the competent authorities .The group fully understands and respects the systems prevailing in different countries. The political, social and economic conditions of some countries may not be conducive to the implementation of some of the measures proposed. The intention of the group is to make meaningful contributions with a view to optimizing the efficacy of the different systems and practices.

[i]  As per data published by National Crime Records Bureau, Ministry of Home Affairs, Govt. of India, in Crime in India, 1995

ROLE OF NATIONAL HUMAN RIGHTS COMMISSION IN PROTECTION OF HUMAN RIGHTS IN INDIA

Written by Dr. Showkat Ahmad Bhat* & Mudassir Nazir**

* Assistant Professor, Department of Law, University of Kashmir, Srinagar

** LL.M student, Department of Law, Jamia Milia Islamia, New Delhi

 

 

Give to every human being every right that you claim for yourself” Robert Ingersoll

 

  1. Introduction

Human beings are rational beings. By virtue of being humans they possess certain basic and inalienable rights which are commonly known as human rights. They are inherent in all the individuals irrespective of their caste, creed, religion, sex and nationality. These rights are essential for all the individuals as they are consonant with their freedom and dignity and are conducive to physical, moral, social and spiritual welfare. More or less people are aware about their rights but the question is how these rights will be protected. Yes, we have various mechanisms to protect our rights. In this assignment, an attempt has been made to discuss about one of such mechanisms, i.e. the role of National Human Rights Commission (NHRC) in protection of human rights. After introducing the topic with the meaning of human rights, next part of the assignment deals with the importance of national institutions of human rights in a country and further discussed the various stages at the international level towards establishment of such institutions. After that position in India has been discussed with the enactment of Protection of Human Rights Act. In addition to that the structure and functioning of NHRC has been discussed in brief and how far it has been effective in protecting human rights in India.

  1. Importance of National Institutions

The setting up of national institution is one of the most effective means to perform the various functions relating to the implementation of human rights. Such an institution raised human rights awareness through education, training, research and conduct impartial investigation into alleged violations. It may also prove or secure effective redress either by negotiation with the government concerned or may assist the victims by providing relief through a court of law. The domestic institution of human rights may also influence the legislators to preserve human rights in the widest sense of the term and may also monitor government compliance with treaty commitments.[1]

 

 

III. Phases towards establishment of National Institutions- International Attempts

III.1 First Phase

The idea of the creation of an impartial institution of human rights in the States was initiated by the UNESCO in as early as in 1946. In the Memorandum ‘Supervision and Enforcement of Human Rights’ in 1947, the Secretariat had suggested for the creation of such a body in the States.[2]

III.2 Second Phase

In 1966, the General Assembly adopted a resolution for considering the advisability of the proposal for the creation of a national commission on human rights to perform certain functions pertaining to the observance of ICCPR and ICESCR. The resolution invited the Economic and Social Council to ask the Commission of Human Rights to examine the question in all its aspects.[3]

III.3 Third Phase

The Commission in 1970 considered the question and agreed that the question of the establishment of the national commission on human rights should be decided by each government in the light of traditions and institutions of its own country.[4]

III.4 Fourth Phase

The Commission in 1978 again emphasized the need for the creation of a national institution. But all these attempts went in vain. States paid little heed towards them. Their attitude towards creation of the national institution was not encouraging perhaps in view of the fear that such an institution may condemn the action of the State’s executive and judiciary if the occasion would demand.[5]

 

 

III.5 Fifth Phase

The first international Workshop on National Institutions for the protection and promotion of human rights and fundamental freedoms was held in Paris in October, 1993. Its conclusions were endorsed by the Commission on Human Rights in resolution 54 of 1993 as the principles relating to the status of National Institution (the Paris Principles). Further, it was endorsed by the General Assembly in 1993. The principles affirmed that national institutions are to be vested with competence to protect and promote human rights and given as broad a mandate as possible, set forth clearly in a constitutional or legislative text. It also includes guidelines on the composition of National Institutions and the appointment of members.[6]

III.6Sixth Phase

The World Conference on Human Rights in 1993 realising the importance of such an institution or commission, stated that the World Conference on Human Rights urges Governments to strengthen national structures, institutions and organs of society which play a role in promoting and safeguarding human rights. The Conference also recommended for strengthening the United Nations activities and programmes to meet request for assistance by States which want to establish or strengthen their own national institutions for the promotion and protection of human rights.[7] It also recommended for strengthening of cooperation between national institutions particularly through exchange of information and experience as well as co-operation with regional organisations and the United Nations. Periodic meetings of the representatives of such institutions under the auspices of the Centre for Human Rights to examine ways and means of improving their machinery and sharing experiences were also recommended. Thus, the World Conference attached great importance to national institutions for the protection and promotion of human rights.[8]

The Fourth International Workshop of National Institutions held at Merida (Mexico) and regional meetings in Asia and Pacific (1997) and Africa (1998) highlighted the role of national institutions in dealing with complex human rights problems.[9]

The United Nations High Commissioner for Human Rights in its Final Report on the Implementation of the Vienna Declaration and Programme of Action of September 12, 1998 stated that States should consider establishing and/or strengthening National Human Rights Structure and Institutions. They should also take assistance from existing programmes of technical assistance to support this process. The world community should provide sufficient resources to that purpose and ensure their optimum use at the regional and national levels.[10]

  1. Human Rights Commission- Attempts at National Level (India)

India has shown keen interest in the past in establishing or strengthening a national institution for the promotion and protection of human rights before the Third Committee of the General Assembly. It introduced a draft resolution wherein it emphasized the importance of the integrity and independence of such national institutions. In the draft resolution it also requested the Secretary-General of the United Nations to submit a report to the General Assembly in two years regarding the functioning of the various kinds of national institutions and their contribution towards implementing human rights instruments. The interest shown by India in the establishment of a national institution for the protection and promotion of human rights was laudable. The interest shown in the international forum implied that it was in favour of establishing such an institution. However, at that time no such institution was established.[11]

In early 1990s, India felt the need of establishing a Commission as a positive response to the criticisms of the foreign governments in the context of political unrest and violence in Punjab, Jammu & Kashmir, North-East and Andhra Pradesh. Pressure was added from the domestic front as well for the creation of such commission because of the awareness among the people for the protection of human rights. All this led the Government to decide to enact a law to establish a Human Rights Commission. Government’s proposal to establish the Commission was of course sudden and without due deliberations.[12]

  1. Protection of Human Rights Act

The Protection of Human Rights Act was enacted in the year 1993. It provides for the constitution of a National Human Rights Commission, State Human Rights Commission in States and Human Rights Courts for better protection of human rights. Section 2(d) of this Act defined human rights by stating that human rights means the rights relating to life, liberty, equality and dignity of the individuals guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.[13]

VI.1 National Human Rights Commission- Composition

The Commission shall consist of a Chairperson and seven other members. A person who has been a Chief Justice of the Supreme Court is alone eligible to become the Chairperson. The other members are appointed from the following categories:-

  • One member may be sitting or retired judge of the Supreme Court of India;
  • One member may or retired Chief Justice of any High Court;
  • Two members are appointed on the basis of their special knowledge or experience in the field of human rights and;
  • The Chairpersons of the National Commission for Scheduled Castes, the National Commission for Scheduled Tribes, National Commission for Minorities, and the National Commission for Women are the members.[14]

VI.2 Appointing Authority

The Chairperson and the members of the Commission are appointed by the President of India upon the recommendation of a committee consisting of the Prime Minister as the Chairperson and five other members as specified in the Act.[15]

 

VI.3 Tenure

The Chairperson and the members of the Commission shall continue to hold office for a period of five years from the date on which they assume the office or until they attain the age of seventy years, whichever is earlier. The members of the Commission alone are eligible for reappointment of one more term, provided if they have not attained the age of seventy years. After relinquishing the office, the Chairperson and the members of the Commission are barred from taking up any appointment either under the Central or any of the State governments.[16]

VI.4 Vacancy

If any vacancy occurs in the office of the Chairperson by reason of his being on leave, resignation, death or otherwise, such other member as may be directed by the President of India shall act as Chairperson, until the Chairperson resumes office or a new incumbent is appointed.[17]

VI.5 Removal

The Protection of Human Rights (Amendment) Act, 2006 provides that the Chairperson or any Member may, by notice in writing under his hand addressed to the President of India, resign his office. The Chairperson or any of the members of the Commission shall only be removed from office by the President of India on the grounds of proved misbehaviour or incapacity in accordance with a report submitted by the Supreme Court after conducting a due inquiry upon a referral by the President of India. However, the above provision has no bar on the President to remove the Chairperson or the members of the Commission on any of the grounds if they are

  1. Adjudged as an insolvent; or
  2. Engaged in any paid employment outside during their term of office;
  3. Unfit to continue in office by reasons of infirmity of mind or body;
  4. Declared as of unsound mind by a competent court of law; or
  5. Convicted or sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.[18]

VI.6 Officers and other staff of the Commission

The Commission, in addition to the Chairperson and the members, shall consist of a Secretary-General, Police and investigative, administrative, technical and scientific staff to support it in its effective functioning. The Secretary-General is the Chief Administrative Officer of the Commission. The Government of India is empowered to appoint any officer holding a post not below the rank of the Secretary to the Government of India as the Secretary-General of the Commission. The Police and other investigative staff are also provided by the Central Government and placed under an officer not below the rank of a Director-General of Police.  The administrative, technical and scientific staffs are appointed by the Commission to suit its need in accordance with the rules framed by the Central Government. The Commission is empowered to frame its own rules and regulations for its effective functioning.[19]

VI.7 Headquarters of the Commission

The Commission shall normally conduct its meetings and sittings in its office in New Delhi. However, with the prior permission of the Central government, and if in its discretion it is necessary and expedient in its functioning it can hold meetings or sittings outside its seat of place as decided by it. The Commission shall ordinarily have its regular meetings in the first and third weeks of every month excepting holidays. However, the Chairperson by himself or at the instance of one or more of the members may have a special sitting to deal with any specific matter if it requires immediate action.[20]

VII.Functions of the Commission

  1. To inquire into the violation of human rights or abatement thereof either on its own or on a petition submitted by an affected party or on his behalf by any person, or negligence shown by a public servant in the prevention of such a violation.
  2. To intervene in any of the proceedings pending before a court with the permission of such a court on any complaint of violation of human rights.
  3. To visit any jail, or any other institutions where persons are detained or lodged for purposes of treatment reformation or protection under the control of a State government with an advance notice to study the living conditions of the inmates and to make recommendations.
  4. To review the safeguards for the protection of human rights provided by the constitution or any of the existing law and to suggest measures to the Central and State governments for their effective implementation.
  5. To review all the aspects that inhibits the enjoyment of human rights including the acts of terrorism and recommends the remedial measures to the Government.
  6. To study the treaties and other international instruments on human rights and make recommendations to the Central government for their effective implementation.
  7. To undertake and promote research in the field of human rights
  8. To propagate the concept of human rights and to promote the awareness for their protection among the various sections of the society, it can undertake publication of books or pamphlets or conduct seminars, or use the media or any other means available to it.
  9. To promote and support the non-governmental organisations and institutions in the field of human rights.[21]

VIII.1Powers of the Commission

The Commission exercises the following powers while inquiring into the violation of human rights

  1. The Commission while inquiring in the violations of the human rights exercises the same powers of a Civil Court trying a suit under the Civil Procedure Code, 1908. They are especially in respect to:
  2. Summoning and enforcing the attendance and examining them on oath;
  3. Discovery and production of any document
  4. Receiving evidence on affidavits
  5. Requisitioning any public record or copy thereof from any court or office
  6. Issuing commissions for the examination of witnesses or documents;
  7. Any other matter which may be prescribed
  8. The Commission if in its opinion arrives at a conclusion that any information may be useful for or relevant on any such aspects or matters under its consideration it can direct any person to submit such information required to it. Any such person directed by it, in whatever capacity he may be, is legally bound to furnish such information as directed by it within the meaning of Sections 176 and 177 of the Indian Penal Code.
  9. The Commission or any other officer authorised by it can enter into any building or place, wherein, if in the opinion of the Commission that any document relating to the subject matter of inquiry may be found and to seize such a document or to take extracts of copies therefrom subject to the provisions of Section 100 of CrPC to the extent it may be applicable.
  10. The Commission is though empowered to exercise the powers of a civil court only during the course of inquiring into the complaints, it can also record the facts constituting the offence and the statement of an accused person as is described in Sections 175, 178, 179, 180 or 228 of the IPC. The Commission after recording the facts constituting the offence and the statement of the accused as specified in CrPC has to transmit the case to a Magistrate having jurisdiction to conduct the trial. Since all the proceedings before the Commission are considered as judicial proceedings, the Magistrate to whom the case is referred bound to conduct the trial.[22]

VIII.2 Investigation

The Commission exercises the following investigative powers while inquiring into the complaints:-

  1. It may utilise the services of any officer or any of the investigative agency of the Central or State government with their prior approval.
  2. The officer or agency whose services are utilised by it shall be under the control and direction of the Commission. Further, the Commission may-
  3. Summon and enforce the attendance of any person and examine him; or
  4. Direct such person to discover or produce any document before it;
  • Requisition any public record or copy therefrom from any office.
  1. Any statement made by a person before any officer or agency whose services are utilised or a statement made by a person in the course of giving evidence before the Commission shall not be used against him in any civil or criminal proceedings; except for the purpose of prosecution for giving false evidence by such statement. However, the Commission is empowered to use such statement if it is made in reply to a question asked by the Commission or relevant to the subject matter of inquiry.
  2. If the Commission is not satisfied about the correctness of the facts stated and any conclusion arrived at in the report submitted by such person, it may conduct an inquiry or examine such person or persons assisted the investigation.[23]

VIII.3 Inquiry into Complaints

The Commission while inquiring into the complaints of the violations of human rights may adopt the following procedure:

  1. It can call for information or report either from the Central or any of the State government concerned or any other Authority, or organisation subordinate to them within the time frame fixed by it. However, it may proceed to inquire into the complaint on its own if it does not receive the information or report within the time frame. But the Commission shall not proceed further if it is satisfied upon the report submitted by the concerned government or authority along with the action initiated.
  2. If in the opinion of the Commission a matter requires immediate action, it can initiate an inquiry even without asking the relevant government or authority for their report or information.[24]

VIII.4 Procedure with respect to Armed forces
In accordance with the provisions of the Act while dealing with the complaints of the armed forces it adopts the following procedure:-

  1. It may, either on its own or upon receipt of a petition, can ask the Central Government to submit a report. After receiving the report from the Central government it may not either proceed further, or may make recommendations to that effect.
  2. From the date of the receipt of the recommendations the Central Government is bound to inform the Commission of the action taken by it within three months, or within the period of extension as permitted by the Commission.
  3. The Commission has to publish a report on its recommendations and the action initiated by the Central government upon them.
  4. The Commission transmits copy of the published report to the petitioner or his representative.[25]

If the Commission at any stage of inquiry considers it necessary to inquire into the conduct of any person it may do so. But if in the opinion of the Commission such an inquiry may prejudicially affect the reputation of the person, it has to give a reasonable opportunity to that person to produce evidence in his favour during such inquiry. However, the Commission cannot conduct an inquiry if it affects the reputation of the person in any manner.

  1. Divisions of the Commission

There are six divisions in the Commission. Each of these divisions has been entrusted with some specific tasks. They work in close consultation and coordination with each other.[26]

IX.1 Administration Division

This Division is headed by a Joint Secretary, assisted by a Director, under-secretaries, section officers and other secretarial staff, and functions under the overall guidance of the Secretary General. This Division looks after the administrative, personnel, establishment and cadre matters of the staff and officers of the Commission.[27]

IX.2 Law Division

The Division is headed by Registrar (Law). The post has a scale of Additional Secretary to the Government of India. The Division services the Commission in the receipt and disposal of complaints relating to human rights violations. The Registrar (Law) is assisted by a Joint Registrar, Deputy Registrars, Assistant Registrars and others. Besides, there are four Presenting Officers, coming from the subordinate judiciary, who assist the Commission in dealing with the complaint cases.[28]

The inquiry into complaint is dealt by the Law Division. When the complaint is received by the Complaint Registry (CR) section after giving the diary number it is segregated or sorted out into fresh complaints and urgent complaints.

For the sake of convenience, the Law Division has been divided in two classes. One is Scrutiny Branch 1 which deals with the cases which comes from Uttar Pradesh and Uttarakhand and another branch, i.e. Scrutiny Branch 2 which deals with rest of India and foreign related complaints.[29]

Urgent cases are those where immediate action needs to be taken by the Commission. The inquiry depends on the various factors such as nature of the complaint.[30]

If the complaint is not in English or Hindi language then in that case the complaint is handed over to translators who translate the complaint and then it is scrutinized by the Law Division.[31]

After sorting out the complaints, the scrutiny branch scrutinizes the complaint whether it is cognizable by the Commission or not. Scrutiny is done by the Assistant Registrar with the help of the legal consultants and it is approved by the registrar and then on the basis of merit. The details are filled in either ‘green form’ or ‘pink form’ of the complaint is of such a nature that cognizance cannot be taken by the Commission then details of that case are filled in ‘pink form’ and with the seal and sign of the Chairperson and it is taken forward by the Commission and only the necessary data entry is done by the Commission.[32]

If the complaint has the merit in that case, green form is used to fill the details of complaint and other related aspect. It is to be noted that Registrars are the law experts. So they are well equipped person to decide the merits of the complaint.[33]

After filling of the form, the form goes for data entry in the data entry section of the Law Division. Here, the complaint is registered in computer and a specific automatic computer generated number is given to the complaint that is called opening of case file or file number is provided to each and every complaint.[34]

After giving the file number, the complaint comes to the ‘Presenting Officer’ who are persons from lower judiciary and they prepare the complaint in a draft from so that it can be presented to the Hon’ble member of the Commission for their direction.[35] The member may ask the concerned authority for the information of as provided under Section 17 and for that purpose the file is send to the report branch of the law division.[36]

Report Branch

After that Report Branch  sends the notices as to the concerned authority as directed by the member of the commission in a proper format and report branch also receives the reply of those notices and thereby coordinate with presenting officer.[37]

IX.3 Investigation Division

When the Commission requires an independent inquiry to be conducted, it is done through the Investigation Division, which is headed by an officer of the rank of Director General of Police. The Division also assists the Commission in examining complaints, in scrutinizing reports received from the police and other investigation agencies and in looking into reports of custodial violence or other misdemeanors. It analyses the intimations and further reports from the State authorities regarding deaths in police and judicial custody, encounter deaths and advising the Commission.[38]

 

IX.4 Training Division

The Division has been created to disseminate information and focus attention on sensitizing various agencies and NGOs, civil society to heighten respect for human rights by organising human rights training programmes. This Division is headed by a Chief Coordinator, who is a joint secretary rank officer. The Chief Coordinator is assisted by a senior Research Officer and other secretarial staff.[39]

IX.5 Policy research, Projects and Programmes division

Whenever the Commission, on the basis of its hearings, deliberations or otherwise, arrives at a conclusion that a particular subject is of generic importance, it is converted into a project/programme to be dealt with by this Division. It also undertakes and promotes research in human rights and organised seminars, workshops and conferences on pertinent issues. It is headed by the Joint Secretary and consists of two Directors, a Senior Research Officer and Secretarial staff.[40]

IX.6 Information and Public Relations Division

This Division disseminates information relating to the activities of the Commission through the print and electronic media and is headed by an Information and Public Relations Officer, who also functions as the Editor of the monthly Human Rights Newsletter. This Division is responsible for the website and publications of the Commission. It also has an Assistant Information Officer. A Public Information Officer has also been appointed for the purpose of facilitating information under the Right to Information Act. The Appellate Authority is the Joint Secretary.[41]

  1. Procedure for handling complaints by NHRC

Promoting good complaint handling is a key part of your work if you receive complaints from time to time. Good complaint handling can make the people to have more faith on NHRC.

 

 

X.1 MADAD COUNTER

MADAD COUNTER is an important and inevitable part of the administrative structure of NHRC which is functioning effectively as an important “counter” in fulfilling the ‘complaints handling mechanism’ of NHRC. This counter usually receives around 50-100 visitors and 200 calls (in the year 2011) from different parts of the country for help. The working staffs give their best and necessary efforts to ensure that queries and questions are answered according to their utmost potential and ensure satisfactory on the part of the complainants. Currently only 3 Working Staffs are there – UDC, Translator, and data entry operator.[42]

X.2 Role and Functions of Madad Counter

(1) It acts as a “care center” for the complainants, so that, proper statement of complaints can be made before it is sent (by any means like post, fax, email etc.) or submitted personally to the COMPLAINT REGISTRY SECTION (CR SECTION).[43]

(2)This counter extends assistance in every possible manner to a person (/s) who seeks help in order to initiate the process of lodging complaints or to address grievances they have regarding matters relating to the violations of human rights.

(3)It is a panacea for the illiterate person (/s) because it helps them in ‘dropping down the complaints on paper’, after making proper clarification and communication about the very nature of the complaints they want to make.[44]

(4)It gives about the status of complaints already made when asked by the complainants (usually inquiry is made through phone or email).[45]

(5)Any other assistance relating to “complaint” is made by this counter.

Thus, is very clear that Madad Counter plays an important role in handling complaints by extending necessary assistance to those who seek assistance, before the formal delivery of complaints by any means to CR section. It also works like a “customer relations’ counter”.

 

X.3 Complaint Registry Section (CR Section)

The complaint handling mechanism of NHRC is a corollary of the roles and functions of all the ‘Divisions’ and ‘Section’. All the sections have their own respective jurisdiction and responsibility over the ‘handling of complaints’.[46]

In this connection CR Section can be considered as a “first input room” of all sections in getting the complaints processed systematically. It is the CR section where all the complaints are entertained first of all, before the complaints are dispatched to various sections for further procedural “handling”. CR section is one of the most important sections that deals with the complaints it received (by any means such as post, fax, email etc.) from the complainants, so as to undertake the responsibility of forwarding all the complains of different nature to respective sections, as for instance, for scrutinisation, complaints are sent to Scrutiny Branch (SB1) and Scrutiny Branch 2(SB 2) respectively.[47]

This section is headed over by Section Officer. There are at present 19 staffs including Section officer. The section receives around 600 to 1000 complaints every day and forwarded the same day to concerned sections.[48]

X.4 Role and Functions of the CR Section

Before the complaint letters are distributed to different sections for necessary actions, files are first treated in the CR section. The working system and procedures being followed by the CR section in handling the complaints can be regarded as the roles and function of the CR section which are given below.

Procedures

  1. Receive of complaints (by any means)
  2. This is followed by ‘Sorting of Complaint letters’ to identify whether they are “fresh complaints” or “reports”. Making of complaint letters is done to indicate “fresh complaints” or “reports”. Sorting of complaint letter also means, identifying those letters which are addressed directly to the Chairperson or other members of the Commission and forwarded the same to Chairperson or members directly.
  3. Diarisation (diary number is automatically generated in the computer) of the complaint letters separately for “fresh complains” and “reports” in CMIS (complaint management information system)
  4. Again, sorting for the second time of the complaint letters is to be done after ‘Diarisation’ of the same. This is for the purpose of indicating the complaint letters certain “code” (example SB1, SB2, M1 and so on) meant for different sections
  5. After sorting the complaint letters for the second time, it is followed by ‘grouping of complaint letters into separate files’ meant for different sections based on the nature of complaints or reports.
  6. After ‘grouping of complaint letters into separate files’ is being made, it is followed by scanning of the same.
  7. Finally, complaint letters which are segregated into different files are then forward to respective concerned sections.[49]
  8. Illustrative Cases

 

XI.1 National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC 1234

The Commission under article 32 of the Constitution of India has filed a writ petition as a public interest petition before the Supreme Court of India. The Commission filed this petition mainly for the enforcement of fundamental rights of about 65,000 Chakma\ Hajong tribals under article 21 of the Constitution. In this case a large number of refugees from erstwhile East Pakistan were displaced in 1964 due to KaptainHydel Project. These displaced Chakmas had taken shelter in North-Eastern States of India, namely, in Assam and Tripura. There were two main issues involved in this case;

  1. conferring of citizenship;
  2. fear of persecution by certain sections of the citizens of Arunachal Pradesh. Largely to these two issues NHRC was approached by two different NGOs.

In this case the Commission contended before the Court that the Commission found serving of quit notices by All Arunachal Pradesh Students Union (AAPSU) to Chakmas and their attempted enforcement appeared to be supported by the officers of Arunachal Pradesh. The State government deliberately delayed the disposal of the matter by not furnishing the required response to NHRC and infact assisted in the enforcement of eviction of the Chakmas from the State through its agencies.The Court after hearing the argument directed the government of Arunachal Pradesh to ensure the life and personal liberty of each and every Chakma residing within the State. The significance of this judgement also lies in clearing the doubts regarding the applicability of fundamental rights to refugees. This decision rules that foreigners are entitled to enjoy the protection of right to life and liberty under article 21 of Constitution. Timely intervention by the Commission has saved the life of thousands of innocent Chakmarefugees from AAPSU.[50]

 

XI.2 Indian Council of Legal Aid and Advice and others

On 3rd December, 1996, the Commission took cognizance of a letter from Chaturanan Mishra, then Union Minister for Agriculture regarding starvation deaths due to the drought in Bolangir district of Orissa.

In similar matter a writ petition was filed on 23 December 1996 by the Indian Council of Legal Aid and Advice and others before the Supreme Court of India under article 32 of the Constitution. The petition alleged that deaths by starvation continued to occur in certain districts of Orissa.

The Supreme Court of India on 26th July 1997 directed that since matter is seized with the NHRC and is expected to deliver some order, the petitioner can approach to the Commission.

Realizing the urgency of the matter the Commission acted quickly and initially prepared an interim measure for the two years period and also requested the Orissa State Government to constitute a Committee to examine all aspects of the Land Reform question in the KBK Districts.

A Special Rapporteur has been regularly monitoring the progress of implementation of its directions. The Commission observed that as starvation deaths reported from some pockets of the country are invariably the consequence of mis-governance resulting from acts of omission and commission on the part of the public servant. The Commission strongly supported the e view that to be free from hunger is a Fundamental Right of the people of the country. Starvation, hence, constitutes a gross denial and violation of this right.The Commission organized a meeting with leading experts on the subject, in January, 2004 to discuss issues relating to Right to Food. The Commission has approved the constitution of a Core Group on Right to Food that can advise on issues referred to it and also suggest appropriate programmes, which can be undertaken by the Commission. By this decision it is firmly established in the context of India that economic, social and cultural rights are treated par with the civil and political rights before the India Courts and the Commission. India is amongst the view countries in the world, which have accorded justifiability of economic, social and cultural rights.[51]

 

XI.3 Punjab Mass Cremation Order

Two writ petitions were filed before the Supreme Court of India containing serious allegations about large-scale cremations resorted to by the Punjab Police of persons allegedly killed in what were termed as “encounters”.

The main thrust of the Writ Petitions was that there were extra-judicial executions and hasty and secret cremations rendering the State liable for action.

These petitions were largely relied on a press note of 16th January 1995 by the Human Rights Wing of the ShiromaniAkali Dal under the caption “Disappeared” “cremation ground”. The note alleged that the Punjab Police had cremated a large number of human bodies after labelling them as unidentified.

The Supreme Court after examining the report submitted to the Court by Central Bureau of Investigation (CBI), relating to cremation of dead bodies observed that report indicates 585 dead bodies were fully identified, 274 partially identified and 1238 unidentified. The report discloses flagrant violation of human rights on a large scale.

On 12 December 1996 the Court requested the Commission to have the matter examined in accordance with law and determine all the issues related with the case. Though matter is still pending before the Commission for final consideration, however, the Commission granted in some cases compensation amounting of Rupees Two LakhFifty thousand (Rs. 2,50,000/-) to the next of kin of the 89 deceased persons. While granting thecompensation the Commission relied on the laws developed by the Courts in India in the field of evolving legal standards for remedial, reparatory, punitive and exemplary damages for violation of Human Rights.

The Commission observed, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right of life of a citizen by the public servants and the State. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation.[52]

 

XI.4 Gujarat Communal Riot

The Commission took suomotu action on communal riot which took place in Gujarat in early 2002, the decision to take action was based of media reports, and both print and electronic. The Commission also received an e-mail communication requesting the Commission to intervene.

A team of the Commission had visited Gujarat between19 to 22 March 2002 and prepared a confidential report, which is later made to the public. The release of the confidential report was initially withheld to provide an opportunity to the Gujarat government to comment on its contents, given the sensitivity of the allegations contained in it. Unfortunately, the State government did not bother much about this report. The Commission observed that the State has failed to discharge its primary and inescapable responsibility to protect the rights to life, liberty, equality and dignity of all of those who constitute it. The principle of res ipsa loquitur (the affair speaking for itself) applies in this case in assessing the degree of State responsibility in the failure to protect the Constitutional rights of the people of Gujarat. The responsibility of the State extended not only to the acts of its own agents, but also to those of non-State players within its jurisdiction and to any action that may cause or facilitate the violation of human rights.[53]

XII. Shortcomings of National Human Rights Commission

Though the NHRC is in existence since 1993, millions of people suffer from violations of human rights everyday. Due to some glaring defects and lacunae in the Protection of Human Rights Act, 1993, role and functioning of NHRC in protecting and promoting human rights is seriously affected. There is a dire need for certain radical modifications in the 1993 Act in order to make it more effective and so as to achieve the desired objectives in true manner.

  1. The method of selection of the members of the Commission needs attention. The selection of the members is wholly weighed towards the ruling party and the principal opposition, both at the centre and state level. The NHRC does not have power to appoint its own staff.
  2. The composition of NHRC is least balanced as three out of five members must be judges both, in the National as well as the State Commission and all would have to be political appointees. So, at least two members are required to be appointed from among the person having knowledge of, or practical experience in the matters related to human rights. Representations should be given to the NGO and human rights activists to instil confidence in the minds of people.
  3. The relation between NHRC and the State Commissions should be made amply clear because sometimes questions arise over jurisdiction and control. The revisional powers over the State Commission should be enumerated as of the powers of NHRC. The essence of the revisional power is to have control by way of supervision, especially the power to call for records. The need is to make special provision to make clear cut demarcation in the areas of their functioning and their administrative relation with each other.
  4. Another major drawback is the lack of independent budget of the NHRC. The present scenario is that the purse of NHRC is totally dependent on the government to meet the expenses of investigation and research apart from the allowance and salaries. Actually there should be provision for drawing the salaries directly from the consolidated funds so as to ensure greater autonomy and transparency. The financial independence will make the NHRC independent in the true sense of the term. It will ensure smooth and effective performance of NHRC.
  5. There is inherent drawback in Section 12(c) of the Act. The necessity of intimation severely inhibits and defeats the investigation of the Commission. It is such a loophole that makes the whole exercise eyewash. It is therefore recommended that the requirement of informing the State government about the Commission’s visit to such place should be waived off. This shall certainly help the Commission to make spot inquiries and present the true picture of human rights violation.
  6. Further Section 13 of the Act deals with powers of NHRC relating to inquiries. There is nothing in this section regarding the transfer of cases, it is suggested that NHRC may be given the power to transfer any of the complaints filed or pending before it to the State Commission of the State from where the complaint arises, whenever it considers expedient.
  7. The Commission suffers from the limitation on its own function. It can intervene in any proceedings pending before a court regarding violation of human rights as and when any matter is reported to it but it has to seek prior approval of concerned authority. This hinders its functioning as the concerned authority may linger it unnecessarily to avoid the commission. Therefore in the interest of discouraging the human rights violations, an amendment should be made in the Act to the effect that the prior approval should be time bound or the requirement of approval should be completely waived off.
  8. Section 36(1) of the Act provides that the NHRC shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force. This obstacle should be removed by the amendment in 1993 Act, because many a time government deliberately hands over the case to another Commission for side-lining the Commission. For any reason whatsoever, if the government intends to deprive the Commission of the jurisdiction to inquire into any violation of human rights, it can do so by constituting a separate Commission under any law in force. Another major impediment in the working of NHRC is imposed by Section 36(2) of the Act.
  9. The Commission under the 1993 Act is not empowered to take any punitive action against the violator. It is also not bestowed with any contempt power for defying its order by the government officials. It can only make recommendations for the action to be taken by the concerned authority. For getting better results from the working of NHRC, it should be given wider powers to call for the explanation, initiate the proceedings for prosecution against the violator and take appropriate action including the awarding of compensation to the victim.
  10. Another provision that needs attention is that the Commission under the 1993 Act merely acts as an instrumentality between the victim and the government for lawful solution to the violation of human rights, and make its own recommendations, leaving the results to the government or the courts. The Commission does not have any authority to award compensation or extend any other relief immediately required by victim especially in terms of monetary assistance. The government is also not being obliged to accede to the recommendations made by the Commission. Thus due to lack of effective mechanism recommendations of the Commission are not being taken seriously. This is one of the most glaring drawbacks in the 1993 Act which makes the Commission toothless and non-effective. If the working of the Commission is to be made good and effective, an amendment should be made in the 1993 Act so that the Commission’s recommendations must be totally accepted by the Government and implemented accordingly.

 

XIII. Conclusion

Inspite of its glaring defects in the Act, NHRC has made significant contributions to bring a human rights approach to legislation, policy and programs in our country. It would not be out of place to mention that NHRC as a watchdog had done reasonable work in propelling and protection of human rights. Its contributions in India have gone beyond the expected role of investigating alleged violations, conducting public inquiries, exercising advisory jurisdiction, providing advice and assistance to governments, creating awareness, promoting interaction, exchange, and better coordination among other state and international human rights institutions and publishing annual reports. It has been pertinent towards strengthening the Human Rights Jurisprudence in our country. NHRC has set the agenda towards a rights based approach at an international level as well. In the era of globalization the NHRC has a key role to play in ensuring that the all sections of society can productively engage with the expansion of opportunities. By ensuring equal opportunities and protecting citizens against discrimination and inaction, the NHRC can provide a level playing field to all our citizens and help in shaping our country protecting citizens against discrimination and inaction. The objective assessment of the Commission’s endeavours must come from the people of India, whom it seeks to serve in all of their rich diversity and varying circumstances. The performance of a national institution has to be assessed in terms of not only its successes in achieving its stated objectives, but also the constraints within which it has worked.

[1]H.O Agarwal, International Law & Human Rights954 (Central Law Publications, Allahabad, 16thedn., 2009).

[2]Ibid.

[3] Jai S. Singh, “Protection and Promotion of Human Rights and Fundamental Freedoms by National Human Rights Commission, State Human Rights Commission in States and Human Rights Court”, 45 (1&2) Journal of Constitutional and Parliamentary Studies 92 (2011).

[4]Supra note 1.

[5]Supra note 3 at 93.

[6]Ibid.

[7]Supra note 1.

[8]Id. at 955.

[9]Ibid.

[10]Supra note 3 at 94.

[11]Supra note 1.

[12]Y.P Chibbar, “Foreign Agents” to National Human Rights Commission”, 39 The Administrator 136 (1994).

[13]Ibid.

[14]Section 3 of the Protection of Human Rights (Amendment) Act, 2006.

[15]Supra note 3 at 97.

[16]Ibid.

[17]T. SuryanarayanaSastry, “The Structure, Functions and Powers of the National Human Rights Commission of India”, 37 Indian Journal of International Law 96 (1997).

[18]Ibid.

[19]Id at 96.

[20]Supra note 3 at 97.

[21]Section 12(1) of the Protection of Human Rights Act, 1993.

[22]Section 13 of the Protection of Human Rights Act, 1993.

[23]Section 14 of the Protection of Human Rights Act, 1993.

[24]Section 17 of the Protection of Human Rights Act, 1993.

[25]Section 19 of the Protection of Human Rights Act, 1993.

[26]NHRC, available at http://www.nhrc.nic.in/Documents/Publications/NHRCindia.pdf (Visited on September 5, 2013).

[27]Ibid.

[28]Ibid.

[29]Sundeep Kashyap Das, Neeraj Kumar Gupta, ThotreingamTungshangnao, Nikhil Pradeep Dubey, Complaint Handling in National Human Rights Commission of India (2011) (Project submitted to NHRC as part of Winter Internship Programme).

[30]Ibid.

[31]Ibid.

[32]Ibid.

[33]Ibid.

[34]Ibid.

[35]Ibid.

[36]Ibid.

[37]Ibid.

[38]Supra note 20.

[39]Ibid.

[40]Ibid.

[41]Ibid.

[42]Supra note 23.

[43]Ibid.

[44]Ibid.

[45]Ibid.

[46]Ibid.

[47]Ibid.

[48]Ibid.

[49]Ibid.

[50]Manoj Kumar Sinha, “Role of National Human Rights Commission of India in Protection of Human Rights”, available at: http://www.rwi.lu.se/pdf/seminar/manoj05.pdf(Visited on September 25, 2013).

[51]Ibid.

[52]Punjab Mass Cremation Orders, available at http://nhrc.nic.in/disparchive.asp?fno=855(Visited on September 10, 2013).

[53]Vishwanath. M, “A Decade of National Human Rights Commission”, 4 Journal of Indian Legal Thought 83 (2006).

 

ASYLUM

Written by Soumya Singh

4th Year BA LLB Student, KIIT School of Law Bhubaneswar

 

ABSTRACT

The word Asylum is latin and derives from the Greek word ‘Asylia’ which means invoiable places. The term is referred to those cases where the territorial state declines to surrender a person to the requesting state, and provides shelter and protection in its own territory.

Asylum, understood as ‘the protection that a State grants on its territory or in some other place under the control of certain of its organs to a person who comes to seek it.[1], is a well-known institution in international law and its historical roots in state practice are well established. Asylum is different from refugee status, as the former constitutes the institution for protection while the latter refers to one of the categories of individuals –among others- who benefit from such protection and the content of that protection.

Clearly state has right to expel aliens generally, and a state has a right to grant asylum to aliens, but the question is whether  an individual has right to asylum opposable to the state’s right to expel. It is commonly understood that there no such right exist. Treaty obligations discussing “right to asylum” are understood in various ways, generally not to provide for a right to receive asylum but apply for it. However past few decades have shown a growth in conventions addressing asylum especially, but not limited to European context. With refugee flows being an inherently being an international concern with a need for durable solutions.

The paper will proceed broadly in various sections viewing the issue from different perspective. Paper will begin by examining “meaning of asylum then it will further proceed to types of asylum, right to asylum from the perspective of the state, reasons for asylum, forms of asylum cases dealing with political asylum, asylum in context of India. The paper will conclude that the “right to asylum is helpful or not “. In essence states have right vis a vis other states to grant asylum to aliens and not have that act be viewed as hostile.

 

INTRODUCTION

According to Black’s Law Dictionary “Asylum means a sanctuary or shelter. It’s a Protection of usually political refugees from arrest by a foreign jurisdiction; a nation or embassy that affords such protection is termed as political Asylum.[2]

Each year, hundreds of thousands of people apply for asylum in Europe, North America, and Australia and many other countries. Some fear political persecution and genocide; some are escaping civil war or environmental catastrophe; others flee poverty, crime, or domestic violence.

The concept of asylum in international law involves three elements. Firstly, the State admits the individual seeking refuge to its territory or other places under its control. Secondly, the State is prepared to provide a long-lasting sanctuary, i.e. its more than mere temporary refuge. Thirdly, it involves a degree of active protection, i.e. the State authorities are taking appropriate steps to ensure actual protection of the particular individual. Hence, the granting of asylum is not an instantaneous act which terminates with the admission of an individual at a given moment, but continues as long as protection is provided.[3]

 

REASONS FOR ASYLUM

A state grants asylum to a person because of many reasons. Firstly it is granted to save a person from the jurisdiction of the local authorities. It is feared that he would  not get fair trail, if extradited, because of the differences in the view as to his political or religious activities. Secondly a person may be granted asylum on extra- legal grounds or to say on humanitarian grounds. The international court of justice in Corfu Channel case[4], state that ‘asylum may be granted on humanitarian grounds in order to protect political offenders against the violent and disorderly action of irresponsible sections of the population’[5]. The court stated that  asylum protects the political offender against any measures of a manifestly extra-legal character which a government might take or attempt to take against its political opponents.[6] Thus asylum is granted for preventing other human rights violations. Thirdly national security also plays an important role in granting asylum. The relationship would be strained if he is extradited.

Although a state may grant asylum after taking into consideration of any of the above factors, states adopt a cautious approach before doing so. Its implications on the existing relationship with the state of whose person asylum is granted is well  studied because it normally affects the friendly relation of two states despite a clear provision in the Declaration on Territorial  Asylum that grant of asylum shall not be considered as an unfriendly act. Asylum granted to Dalai Lama and others Tibetans by India resulted in more strained relationship between India and China is an example.

RIGHT TO ASYLUM

It is said that a person has a right to get asylum in other states. Universal Declaration of Human Rights under Article 14 lays down that ‘everyone has right to seek and enjoy in other countries asylum from prosecution’. It may be however be noted that the Declaration simply recognises the right of asylum is probably nothing but the  competence of every state to allow a prosecuted alien to enter and do remain on, its territory under its protection. Such fugitive alien enjoy the hospitality of the state which grants him asylum; but it might be necessary to place him under Surveillance or even to intern him at some place to make his entry subject to condition. For it is the duty of every state to prevent individuals living on its territory from endangering the safety of another state by organising hostile expeditions or by preparing common crime against its Head, members of its Government or its property[7]

In 1967, United Nations Declaration on Territorial Asylum was unanimously adopted by the General Assembly. Among its most important provisions, it called on Governments to refrain from measures such as rejection at the frontier of persons seeking asylum. Being a Declaration, it lacked binding force, and it was considered necessary to strengthen the legal basis for granting asylum by means of a convention. With this aim in View the United Nations Conference of Plenipotentiaries on Territorial Asylum was held in Geneva from 10th January to 4th February, 1977. It recommended in its report that the General Assembly in 1977 consider reconvening a further  session of the conference at the appropriate time. The draft text, which was before the conference prepared by the legal experts also intended to reinforce to some extent Article 14 of the 1948 Universal Declaration of Human Rights but makes no mention of any obligation by states to grant asylum. Thus although everyone has a right to seek asylum yet there is no corresponding duty of states to grant asylum. The only international legal right involved[8] is that of the state of refuge itself to grant asylum.

 

FORMS OF ASYLUM

A state may grant asylum to a person in two ways. They are: territorial asylum and extra- territorial asylum.

(1) Territorial asylum:

When asylum is granted by a state in its  own territory, it is called territorial asylum. On 28th march 1945, a convention on Territorial sovereignty was adopted at Caracas. Article 1 of the said convention provided ” Every state has right in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable without, through the exercise of the right, giving rise to complaint by any other state”. Beside this, Article 1 of the Declaration of Asylum as adopted by the United Nation Human Right Commission, provided : “Asylum granted by state in the exercise of its sovereignty, to persons entitled to invoke Article 14, of the Universal Declaration of Human Rights, shall be respected by all other states. Article 3 of the Declaration  further provided, ” No one seeking or enjoying asylum in accordance with the Universal Declaration of Human Rights, should except for overriding reason of the population be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is well founded fear of prosecution endangering his life, physical integrity or liberty in that territory….” Article 31, 32 and 33 of the Refugee Convention of 1951 have incorporated the above principle.

In its resolution of 14th December 1967 the General Assembly of the United Nations recommended that in practice the States should do the following:-

(a) When a person requests for asylum, his request should not be rejected or if he enters the territory of such state, he should not be expelled but when a large number of people request for asylum, it may be rejected on the basis of the national security of its own people.

(b) If any state feels difficulty in granting asylum, it should consider the appropriate measures with the feeling of international unity through the medium of individuals states or the United Nations.

(c) When states grants asylum to the fugitives, other states should respect it.

A State is free to grant asylum to the people of other states but this freedom can be restricted on regulations through treaties.

 

DRAFT CONVENTION IN TERRITORIAL ASYLUM

The above provisions although laid down the standard which a state is required to follow, they are, in no way legally binding on states. In order to give legal basis for granting asylum, efforts were made to formulate a Convention on the topic. The Draft Convention on Territorial Asylum was adopted by the General Assembly on December 10, 1974 but it again did not improve the position.[9] Article 10 on Draft Convention recognized that the grant of asylum is a sovereign right of state, but state parties shall use their ‘best endeavours’ in a Humanitarian spirit to grant asylum in their territory. The General Assembly on December 9, 1975 adopted a resolution[10] for the elaboration of a Draft Convention on Territorial Asylum  wherein the Secretary General was requested to convene a conference of Plenipotentiaries on territorial asylum to consider and adopt a Convention on Territorial Asylum. Accordingly, a conference was held in Geneva[11] from January 10, 1977 to February 4, 1977, but the representatives from  the different countries could not succeed in reaching a consensus on the subject. Thus no convention has been formulated on the topic of territorial asylum.

EXTRA TERRITORIAL OR DIPLOMATIC ASYLUM

Extra territorial asylum is granted by the state outside its territory, e.g., its embassy or public vessel. This is about providing sanctuary to individuals in the premises of diplomatic missions. But less conventionally, sanctuary has been offered also in military facilities and on board military vessels and aircraft.[12]Extraterritorial or more commonly diplomatic asylum is problematic because, unlike in case of territorial asylum, the protected individual is still in the territory of his/her own country and therefore the protective State interferes with the sovereignty of another State.

Nowadays, one cannot take seriously the argument that the premises of diplomatic mission form a part of the territory of the sending State, not the receiving State, and diplomatic asylum is still provided in the “territory” of the State granting asylum. The theory of extraterritoriality was formulated by Hugo Grotius in the 17 century in order to explain why diplomatic missions do not fall under the jurisdiction of the receiving State in a similar manner as everything else. According to a fundamental rule of international law, States may not exercise their jurisdiction outside their territory, i.e. [13]abroad, and because diplomatic missions are also “abroad”, States must refrain from exercising their jurisdiction inthe premises of diplomatic missions. However, the International Law Commission, while drafting of the Vienna Convention on Diplomatic Relations (1961), rejected the theory of extraterritoriality because it is based on a legal fiction and does not reflect factual reality or modern understanding of diplomatic relations.[14]

Therefore, people seeking shelter in diplomatic missions are still in the territory of receiving States and sending States are, as a result, interfering in their territorial sovereignty. This explains why States mostly reject the right to diplomatic asylum. The International Court of Justice has equally been cautious about diplomatic asylum due to its dangerous and offensive interference is the sovereignty of another State: In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State.[15] Considering how much importance States and international law have always accorded to sovereignty, such an intrusion into independence is acceptable only if it has a clear basis in international law.

 

LEGAL POSITION UNDER INTERNATIONAL LAW(Columbia v. Peru)[16]

Victor Raul Haya de la Torre was the leader of the Peruvian political movement American People’s Revolutionary Alliance which was constantly in troubles with the government. When his movement revolted and lost a one day civil war on 3 October 1948, he sought refuge in the Columbian embassy. Columbia recognised Haya de la Torre as a political offender, but Peru refused to grant him safe passage to leave the country. To settle their dispute, the States turned to the International Court of Justice, giving the latter a great opportunity to clarify the position of international law on diplomatic asylum. The Court delivered a cautious judgment in Asylum case saying that (1) diplomatic asylum as a serious derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case and (2) when relying on customary international law, the protective State must prove that it has a right to grant diplomatic asylum and the territorial State has an obligation to respect diplomatic asylum.[17]

Overall, the Court was sceptical that diplomatic asylum is a generally recognised concept of international law. Indeed, when it comes to the treaties concerning diplomatic asylum, there are only regional, Latin and Central American instruments, but no global treaties. If the States from other regions of the world provide exceptionally sanctuary in their diplomatic missions, they use other justification than diplomatic asylum, e.g. humanitarian concerns. Also, contemporary diplomatic law does not include, intentionally, the right to grant diplomatic asylum. But one thing is certain – no State is known to claim or to admit a sanctuary for common criminals.[18] Diplomatic asylum is clearly confined to political offenders who hope to escape persecution by those in power and who cannot expect a fair trial.

 

INDIAN VIEW ON DIPLOMATIC ASYLUM

India has made its position regarding the diplomatic asylum by issuing a circular on December 30, 1967, to all foreign Diplomatic missions in India wherein it was stated that the Government of India does not recognize the  right of such missions to give asylum to any person or persons within their premises. In the statement, missions were requested that if they receive a request for asylum or temporary shelter, or refuge such request should not be granted. The above view was further clarified by the Indian Delegate Dr. Seyid Muhammad on November 3, 1975 in the in the sixth committee on the item concerning Diplomatic Asylum.[19] He stated that the diplomatic asylum involves a derogation from the sovereignty of the territorial state and an intervention in matters which are exclusively within the competence of the state. He further stated that ‘diplomatic mission are accorded privileges and immunities for functional reasons it clearly brought out in the Vienna Convention on Diplomatic Relations. This Conventions spell  out clearly the functions of diplomatic agents. Any unilateral expansion of these functions by a diplomatic mission would be considered as an encroachment on its authority by an territorial state. State practice permits a diplomatic mission to give within its premises temporary refuge to a person who is in imminent danger of his life until cessation of such danger.

ASYLUM IN INDIA

India in the year 1955 gave territorial asylum to Dalai Lama and his followers who were oppressed from the repressive policies of China. Although their asylum was criticised  by China on the ground that India by granting asylum has interfered in its internal affairs, India was competent enough to do so because of the principle of territorial  sovereignty. The grant of territorial asylum should not be considered as an unfriendly act by China. India does not recognize the grant of extra- territorial asylum. It is clear from the circular issued to all the diplomatic missions in India on December 30, 1967 and also from the statement of Indian delegate Dr. Seyid Muhammad on November 3, 1975 in the Sixth Committee  on the item concerning Diplomatic Asylum. However, it gave diplomatic asylum to late King Tribhuvan of Nepal when he sought asylum at the height of the Rana revolt against him. When the Soviet defector Aziz Ouloug- Zade took in the American Embassy in India, it was granted to him temporarily . On protest, he was surrendered to the Indian authorities.

ANAYSIS OF THE QUARREL OVER JULIEN ASSANGE

Over summer 2012, tensions accumulated in the relations between Ecuador and the United Kingdom, and almost lead to a diplomatic disaster. But this is not a dispute between just two States, it may well be seen as a clash between ideologies and two fronts, i.e. between States which recognise or reject the right to grant diplomatic asylum. The centre piece of this quarrel is Julian Assange, an Australian best known as the founder, spokesman and editor-in-chief of WikiLeaks.

Since November 2010, Assange is wanted by the Swedish authorities in relation to a rape and sexual assault investigation. Because he was living in the United Kingdom when the European Arrest Warrant was issued, they applied for the extraction of Assange to Sweden.[20] He decided to fight against the extradition, but his steps were unsuccessful on all levels. Finally, on 14 June 2012, Assange had exhausted all remedies available in the United Kingdom, but the decision to extradite him to Sweden remained in force.[21] He was given 14 days to appeal to the European Court of Human Rights, but he decided to pursue an unusual alternative. On 19 June, Assange entered the Ecuadorian embassy where he asked for the protection of the Ecuadorian government. The latter informed, on the same day, the British government that it was considering Assange’s request.[22] On 16 August, Ecuador informed the world that they have decided to grant Assange diplomatic asylum and provided a detailed explanation why sanctuary was given.[23] To sum the arguments, Ecuador found that Assange faced a situation

CONCLUSION

Although diplomatic asylum has been around for centuries and different States have granted diplomatic asylum to the individuals seeking refuge from the local authorities, its legality remains dubious and debatable. At the present moment, it is safe to conclude that diplomatic asylum has developed into a recognised concept  (Latin and Central America), where the State granting asylum has the unilateral and definitive competence to determine whether the individual is accused of a common crime or political offence. The territorial States are basically forced to recognise the decision to grant diplomatic asylum, but may ask that the individual in question leaves the country. But elsewhere in the world, the concept of diplomatic asylum is rejected as a legal right – under general international law, diplomatic asylum is regarded as a matter of humanitarian practice. States are prepared to provide and, more likely, to accept the sanctuary in diplomatic missions if it is provided for the purpose of saving life or preventing injury in the face of an imminent threat. Even then the States involved negotiate and try to find an amicable solution without severing irreparably their relations. Bizarrely, the fact that the receiving State rejects the concept of diplomatic asylum makes little difference because the premises of diplomatic missions are protected by unconditional inviolability against any forceful action proposed for arresting the refugee. In the case of Julian Assange, it is not obvious that the sanctuary is necessary for the purpose of saving life or preventing injury in the face of an imminent threat. It is rather a classic example of diplomatic asylum where the protective State wishes, for whatever reason, to extend its protection to a person accused of a political offence. But once again, this does not give the United Kingdom the right to forcefully enter the Ecuadorian embassy in order to arrest Assange. What next? Because the States involved have opposite understandings and legally binding obligations about diplomatic asylum, it is difficult, if not impossible, to find a legal solution. The stalemate is likely to end with negotiations.

 

[1]Institute of International Law (5th Commission), ‘Asylum in Public International Law’, Resolutions Adopted at its Bath Session, Sept 1950, art 1.

[2]Black’s Law Dictionary Ninth Edition Bryan A. Garner  Editor in Chief

[3]Kaladharan Nayar, M. G., “The Right of Asylum in International Law: Its Status and Prospects”

[4]ICJ Reports (1949) p. 4.

[5]Ibid, p. 282.

[6]Ibid. p. 294.

[7]Oppenheim’s International Law, Vol. 1, Edited by Sir Robert Jennings and Sir Arthur Watts, Ninth Edition Longman Group UK Ltd. and Mrs. Tomoko Hudson, 1992, p. 81

[8]Starke’s International Law, Eleventh Editon (1994), Edited by I.A Shearer, p. 324 *** C.S.E. (1993) Q. (c)

[9]General Assembly Resolution 3272 (XXIX), December  10, 1974

[10]General Assembly Resolution 3456 (XXX), December  9, 1975

[11]U.N. Monthly chronicle, March 1977, p. 41.

[12]Morgenstern, F., “‘Extra-Territorial’ Asylum”, 25 British Yearbook of International Law (1948) 236–261, pp 253–255; see also Convention on Diplomatic Asylum, Caracas, 28.3.1954, entry into force 29.12.1954, 1438 UNTS 101, Article 1.

[13]Grotius, H., The Rights of War and Peace (3 vols, Liberty Fund, Indianapolis, 2005), II, XVIII, IV, 5.

[14]Yearbook of the International Law Commission (2 vols, New York: United Nations, 1957), vol I, p 4: “It was true that the theory of extraterritoriality had found favour for a time, not only in connexion with diplomatic privileges and immunities … . It was not, however, in accordance with modern thinking to base international law on a fiction. Moreover, the theory of extraterritoriality could give rise to confusion and anomalies

[15]Asylum, supra nota 5, pp 274–275

[16]I.C.J. Reports (1950) p. 266

[17]Ibid p. 276

[18]See Ronning, C. N., Diplomatic Asylum: Legal Norms and Political Reality in Latin American Relations (The Hague: Martinus Nijhoff, 1965), p 8 as an authoritative source on earlier state practice, especially in Latin America.

[19]For the full of the Statement See IJI, Vol, p. 534.

[20]See, for example, Judicial Authority in Sweden v Julian Paul Assange, City of Westminster Magistrates’ Court, 24.2.2011, (29.9.2012) for background information and charges brought against Julian Assange.

[21]Assange v The Swedish Prosecution Authority, [2012] UKSC 22.

[22]Extradition proceedings against Julian Assange, Foreign and Commonwealth Office, 3.9.2012, (29.9.2012)

[23]Statement of the Government of the Republic of Ecuador on the Asylum Request of Julian Assange, Ecuadorian Ministry of Foreign Affairs, Trade and Integration, 16.8.2012, (29.9.2012).

SURROGACY ACT: THE NEED OF THE HOUR

Written by Kumari Titiksha* & Soumya Singh**

* 4th year BBA LLB Student, KIIT Law School, Bhubaneswar

** 4th year BBA LLB Student, KIIT Law School, Bhubaneswar

 

Nature has bestowed the beautiful capacity to procreate a life within women and every woman cherishes the experience of motherhood. Unfortunately, some women due to certain physiological conditions cannot give birth to their own off-spring. The desire for motherhood leads them to search for alternative solutions, and surrogacy presents itself as the most viable alternative. The first part of the paper will deal with the technical and common meaning of the term surrogate and the types of surrogacy whereas second part of the paper will discuss the evolution of the concept of surrogacy in India.

In the third part of the paper the author will try to be a critique to the status of surrogacy in India. In the fourth part of the bill authors will discuss upon the recent surrogacy bill, 2016 and lastly in the final part of the paper authors will conclude by giving suggestions.

KEYWORDS : Surrogacy, Commercialisation and Surrogacy Bill,2016.

 

 

When money is exchanged for pregnancy, some believe, surrogacy comes close to organ selling or even baby selling.

                                                           -Thomas Frank

  1. INTRODUCTION

Nature has granted the beautiful capacity to procreate a life within women and every woman reveres the experience of motherhood. Motherhood is the most beautiful and divine gift to a woman. Every woman has a dream and a natural instinct that she will become mother and nurture a baby. Unfortunately, some women due to certain physiological conditions cannot procreate off – spring. But the urge of motherhood leads them to search for alternative solutions. In such situation surrogacy emerged as a boon and the most viable alternative. It is a ray of hope in the life of women who feels deprived of motherhood. The very word surrogate means substitute.[1] That means a surrogate mother is the substitute for the genetic-biological mother. In common language, a surrogate mother is the person who is hired to bear a child, which she hands over to the other party with whom she has entered into the agreement of surrogacy, at the time of birth and relinquishes all her rights over the baby. Black’s Law Dictionary defines surrogacy as a process of carrying and delivering a child for another person.[2]

1.1 MEANING OF SURROGACY

“Surrogacy” means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the commissioning couple for whom she is acting as a surrogate.[3]

“Surrogate mother” means a woman who is a citizen of India and is resident of India, who agrees to have an embryo generated from the sperm of a man who is not her husband and the oocyte of another woman, implanted in her to carry the pregnancy to viability and deliver the child to the commissioning couple that had asked for surrogacy.[4]

1.2 TYPES OF SURROGACY

  • Natural Surrogacy – It is also known as traditional or straight surrogacy. Here, the surrogate mother is pregnant with her own biological child but the child is conceived with the intention of being raised by the other party such as his biological father. The child born is genetically related to the surrogate mother and can be conceived through artificial insemination, sexual intercourse or intra cervical insemination at the fertility clinic.
  • Gestational Surrogacy – There is no biological relation between the surrogate and the child. Surrogate conceives through the implantation of an embryo which is not her own and has been donated to her by the intended mother of the child.
  • Commercial Surrogacy – This involves a monetary consideration and is also known as ‘wombs for rent’. This procedure is legal in several countries including India. But the recent proposed surrogacy bill tends to ban the commercialisation of surrogacy.
  • Altruistic Surrogacy – No financial reward is given to the surrogate mother by the genetic parents of the new born except her necessary medical expenses.
  1. EVOLUTION OF THE CONCEPT OF SURROGACY IN INDIA

One of the very prominent rationale behind the practice of surrogacy is to avoid infertility. Infertility is a social stigma not only in India but worldwide. According to Bible the purpose of a human life and relation is to procreate and any relation which does not leads to procreation is a sin in the eye of this holy book; solely relying upon this argument common laws did not recognise the same sex relationships or marriage till the year 2014.

Indian society has got a very stable family structure, strong desire for children and particularly son to carry forth the lineage or “Vansh” can easily be traced from the social practices.[5]

Traces of surrogacy can be found way back in Indian history and Indian Vedic literature. Surrogate mother is not a new concept. In ancient time it was practiced somewhat in a rudimentary form.

According to a survey done by the centre for social research in Delhi and Mumbai it was found that Poverty and unemployment are the most affecting factors which influences the surrogacy decision in India.

  1. STATUS OF SURROGACY IN INDIA

Previously surrogacy arrangements were generally confined to kith and kin of close relatives, family and friends but the introduction of monetary consideration in the process has extended its network across the country. The natural process of giving birth to a child has now become one of the survival options for women from poor economical background because they have started taking this as a profession as they derive monetary benefits out of it.

Commercial surrogacy has been legal in India since 2002. This legalization of  commercial surrogacy has led to black market and baby selling. This has also led to the exploitation of children as well as the surrogates. It has shown a very adverse effect on the health of the women. Lack of laws in this field has led to abuse of women’s health. In the absence of laws relating to surrogacy the rights of the surrogate mothers and child born out of surrogacy stands unprotected. India has emerged as a popular tourist destination for the purpose of surrogacy. Cheap medical facilities, advanced technology and lack of regulatory laws has made India one of the most viable option. The process of renting a womb and getting a child is similar to outsourcing pregnancy.

It is very unacceptable and unnatural for a woman to surrender a child which she has bore for nine months. Women who become surrogates in India are mostly from lower class to lower middle class backgrounds and are in a need of money. So out of necessity they get ready to rental their womb. But this practice has made child a ‘saleable commodity’.

3.1 AGREEMENT OF SURROGACY A VALID CONTRACT

Commercial surrogacy is legal in India. Surrogacy in India is unregulated as they yet do not have legislations controlling surrogacy although the Indian Council of Medical Research (ICMR) has set “National Guidelines” to regulate surrogacy, these are simply guidelines. This means that surrogate mothers need to sign a “contract” with the childless couple. Moreover there are no stipulations as to what will happen if this “contract” is violated. Whether these contracts are enforceable is debatable.[6]

Under Section 10 of the Indian Contract Act, 1872, all agreements are contracts, if they are made by free consent of parties competent to contract, for a lawful consideration and with a lawful object, and or not expressly declared to be void. Therefore if any surrogacy agreements satisfies this conditions, it is an enforceable contract.

Thereafter under section 9 of Civil Procedural Code,1908, it can be the subject of a civil court for adjudication of all disputes relating to the surrogacy agreement and for a declaration/injunction as to the relief paid for.[7]

Surrogacy is a boon in the life of persons who have lost hope to procreate because of infertility and thus it also serves a moral cause. But this is not the scene always, nowadays there is a growing demand for fair skin and thus many women get ready to become the surrogate for foreign couples. Such surrogacy does not serve any social or moral purpose rather encourages the practice of racism which is morally as well as legally recognized offence in India and any such discrimination made against the person based on his/her complexion will result in the violation of his Fundamental Right conferred upon him by Article 14 of the Constitution of India,1949. In such Surrogacy contracts where the motive is of such immoral nature and is opposing public policy, the contract will stand void as per section 23 of Indian Contract Act.[8]

3.2 JUDICIAL INTERPRETATION

For the first time in the case of Baby Manji Yamada v/s UOI[9]  the apex court of the country recognised commercial surrogacy to be legal in India.

In this case Baby Manji was born to a surrogate mother through in vitro fertilization using a Japanese man’s sperm and an egg from an unknown donor at Anand. In less than a month, ‘Baby Manji’ has already seen fierce legal battles in two constitutional courts, Rajasthan High Court and now in Supreme Court, where an NGO has raised questions on legal propriety of surrogacy and the child’s nationality. Anxious for the outcome are her Japanese father and grandmother. Therefore the writ of Habeas Corpus has been filed claiming that money making racket is perpetuated in the name of the surrogacy. Therefore, Apex Court held that commercial surrogacy is permitted in India.

In the case of P Geetha Nagar V/s Kerela Live stock development Board[10] the Kerela High Court held that ‘even in the absence of statutory frame work, surrogacy in India is not illegal.’

3.3 NEED FOR THE SURROGACY ACT

Indian Baby Manji case triggered the debate on the sensitive issue of surrogacy. This incident highlighted the total disregard for the rights of the surrogate mother and child and have resulted in a number of public interest litigation in the Supreme court to control commercial surrogacy.

The 228th Law Commission Of India also recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to needy Indian citizens by enacting a suitable legislation.[11]

The law commission of India has submitted the 228th report on “need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy.” The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor, which the law has to address. The Law Commission has strongly recommended against Commercial Surrogacy.[12] The report has also recognised the exploitation of surrogate mothers due to the absence of laws and thus have strongly recommended for the regulating laws on surrogacy.

A typical objection is made to surrogacy by comparing it with prostitution. In both the situation women body is used for the purpose of financial benefits. Surrogacy also turns babies into commodities.

Before the draft Surrogacy (Regulation) Bill 2016 was cleared by the union cabinet, there were guidelines governing surrogacy in India. The Indian Council for Medical Research (ICMR) set guidelines that did not permit traditional surrogacy (where the surrogate’s own eggs were used; done to prevent an emotional link being formed between mother and child and to disallow all legal claims in the future). The guidelines, which were not legally binding, also stipulated that the surrogate should be between 21 and 36 years old, married, and have a child of her own.[13]

Law commission report has declared the ICMR Guidelines with full of loop holes. Hence it is a beacon to move forward in the  direction of preparing legislation to regulate not only ART clinics but rights and obligations of all the parties to a surrogacy including rights of the surrogate children.[14]

  1. THE SURROGACY BILL, 2016

The Union Cabinet has passed the Surrogacy Bill, 2016 which if gets passed by the parliament will then regulate surrogacy in India by establishing National Surrogacy Board at the central level, chaired by the health minister, and State Surrogacy Boards and Appropriate Authorities in the State and Union Territories. These boards will entertain all the matters dealing with surrogacy and will also keep a check on the hospitals and clinics that offers surrogacy in India.

The Surrogacy (Regulation) Bill, 2016 proposes to regulate surrogacy in India by permitting it as an option for couples who cannot naturally have children, have a lack of other assisted reproductive technology options, are keen to have a biological child, and can find a surrogate mother among their relatives. Altruistic surrogacy, which means an arrangement without transfer of funds as inducement, is currently practised in some centres in India, though the majority of surrogacy centres use women who are paid for their services. The child born through surrogacy will have all the rights of a biological child. Indian infertile couples between the ages of 23-50 years (woman) and 26-55 (man) who have been married for five years and who do not have a surviving child will be eligible for surrogacy. The surrogate mother should be a close relative of the intending couple and between the ages of 25-35 years and shall act as a surrogate mother only once in her lifetime. Implementation will be through the national and State surrogacy boards. Any establishment found undertaking commercial surrogacy, abandoning the child, exploiting the surrogate mother, selling or importing a human embryo shall be punishable with imprisonment for a term not be less than 10 years and with a fine up to Rs.10 lakh. Registered surrogacy clinics will have to maintain all records for a minimum period of 25 years.[15]

4.1 PROPOSED CHANGES IN THE BILL

  • First and foremost it bans commercial surrogacy, so once the bill gets passed by the parliament commercial surrogacy in India will not be legal any more.
  • Foreign nationals including N.R.I’s cannot get an Indian surrogate mother.
  • Homosexuals, unmarried couples and live-in-couples cannot go for surrogacy.
  • Surrogacy has been legalised for the Indian infertile couples.
  • Before going for surrogacy one has to be married for at least five years.
  • No monetary or financial benefits is to be given to the surrogate mother. Only medical expenses are to be paid by the intending parents.
  • If one already has his/her own child then the person is banned to go for surrogacy under the bill.
  • Bill also bans a person to go for second time surrogacy if he already has a surrogate child. Same applies for the surrogate mother, if a women has been a surrogate mother in the past then she cannot be a surrogate for the second time.
  • Only close relatives, not necessarily related by blood will be able to provide for altruistic surrogacy.
  • Surrogate chid will have the same right as of the biological child.
  • All Assisted Reproductive Technology Clinics i.e. ART needs to be registered and will be looked after by the state and the central regulatory bodies.
  1. CONCLUSION

Surrogacy is a very sensitive issue in the society. Due to lack of proper legislation many surrogate mothers have been exploited and many surrogate children have been denied their rights. Thus a proper law is required to stop such incidents. The law must be enacted in such a manner that it ultimately benefits the child, intended parents and the surrogate mother.

 5.1 SUGGESTIONS

Rights and obligations of the surrogate mother, child and the intended parents must be determined in the statute. Proper medical check up of the surrogate mother should be done before she conceives the child in order to determine whether she is physically prepared to bear the child for nine months or not as most of the surrogate mothers are from the lower economical background and may not be having a proper intake of nutrition. It is very unnatural for a women  to give away her own child to another person thus a proper counselling by a counsellor should be done to understand the state of mind of the surrogate mother. Adoption as an alternative of surrogacy should also be taken into consideration by the childless couple as it will serve even more to the society as it will provide a bright future to an orphan child.

[1] Available at http://www.latindictionary.org/surrogatus, http://en.wiktionary.org/wiki/surrogatus; last visited on 5th September 2016 at 10:00 A.M.

[2] Oliphant RE. New York: Aspen Publishers; 2007. Surrogacy in Black Law Dictionary, family law; pg. 349.

[3] The Assisted Reproductive Technology (Regulation) Bill, 2014; section 2(zq).

[4] Ibid; section 2(zr).

[5] Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4345743/; last visited on 5th September, 2016 at 1:00 P.M.

[6] Monika Banode, Critical appraisal of legal spectrum regulating surrogacy contract: a comparative study with special reference to India, South Asian Journal of Multidisciplinary Studies (SAJMS) ISSN:2349-7858 :SJIF 2.246:Volume 2 Issue 2.

[7] Available at http://lawcommissionofindia.nic.in/reports/report228.pdf; last visited on 6th September, at 2016 at 9:00 A.M.

[8] Section 23 of Indian Contract Act, 1872,Universal Publication.

[9] JT 2008 (11) SC 150.

[10] WP(C).No. 20680 of 2014 (H).

[11] Available at http://www.thehindu.com/opinion/op-ed/why-the-surrogacy-bill-is-necessary/article9040755.ece, last visited on 7th September 2016 at 7:00 P.M.

[12] Available at http://surrogacylawsindia.com/legality.php?id=%207andmenu_id=71, last visited on 7th September 2016 at 9:00 P.M.

[13]Available at http://www.livemint.com/Opinion/Ie8H1Cp09ZjEeNPU5UwwyH/Surrogacy-bill-Modi-govt-sets-new-terms.html, Source cited on 7th September 1:00 A.M.

[14] Supra 7.

[15] Supra 11.

RIGHT TO HEALTH: A BASIC HUMAN RIGHT

Written by Mudassir Nazir

LLM student, faculty of Law, Jamia Milia Islamia, New Delhi

Abstract

In a democracy where sovereignty rests on people, people must be armed with certain basic fundamental rights. The Right to health is such a right which is foundation of all other right. Its primarily associated with the existence of an induvial. People can exist without jobs, money, education, and other rights but cannot remain in existence without good health except for a few days. The fundamental question which arises is only health means physical health, certainly not all other things which are necessary for the existence of human being are necessary. A healthy mind can only be protected and developed by only the healthy body. Adequate food is necessary for health. Food include all energy, celeries, vitamins which are foundation of a strong body. The paper will try to examine the right to health as basic human right and its implications and status in India.

 

INTRODUCTION

“The world needs a global health guardian, a custodian of values, a protector and defender of health, including the right to health.”    – Dr Margaret Chan, Director-General, WHO

As human beings, our health and the health of those we care about is a matter of daily concern. Regardless of our age, gender, socio-economic or ethnic background, we consider our health to be our most basic and essential asset. Health is one of the goods of life to which man has a right; wherever this concept prevails the logical sequence is to make all measures for the protection and restoration of health to all, free of charge; medicine like education is then no longer a trade – it becomes a public function of the State.

The operationalization of health rights is a dynamic and progressive process. International human rights law and constitutional obligations can provide a framework from which national health policies and laws can be formulated. The right to health is a fundamental part of our human rights and of our understanding of a life in dignity.[1]

The human right to health means that everyone has the right to the highest attainable standard of physical and mental health, which includes access to all medical services, sanitation, adequate food, decent housing, healthy working conditions, and a clean environment. It guarantees a system of health protection for all.[2] The right to health means that States must generate conditions in which everyone can be as healthy as possible. It does not mean the right to be healthy. Such conditions range from ensuring availability of health services, healthy and safe working conditions, adequate housing and nutritious food.[3] The right to health does not mean the right to be healthy.

INTERNATIONAL RECOGNITION OF HEALTH AS A HUMAN RIGHT

The right to the enjoyment of the highest attainable standard of physical and mental health is not new. Internationally, it was first articulated in the 1946 Constitution of the World Health Organization (WHO), whose preamble defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. The preamble further states that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”[4]

The 1948 Universal Declaration of Human Rights also mentioned health as part of the right to an adequate standard of living (art. 25). The right to health was again recognized as a human right in the 1966 International Covenant on Economic, Social and Cultural Rights. [5]

Since then, other international human rights treaties have recognized or referred to the right to health or to elements of it, such as the right to medical care. The right to health is relevant to all States: every State has ratified at least one international human rights treaty recognizing the right to health. Moreover, States have committed themselves to protecting this right through international declarations, domestic legislation and policies, and at international conferences.

In recent years, increasing attention has been paid to the right to the highest attainable standard of health, for instance by human rights treaty monitoring bodies, by WHO and by the Commission on Human Rights (now replaced by the Human Rights Council), which in 2002 created the mandate of Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health. These initiatives have helped clarify the nature of the right to health and how it can be achieved.[6]

The right to health is an inclusive right. The Committee on Economic, Social and Cultural Rights, the body responsible for monitoring the International Covenant on Economic, Social and Cultural Rights, calls the factors that help us lead a healthy life as the “underlying determinants of health”, being, safe drinking water and adequate sanitation; safe food; adequate nutrition and housing; healthy working and environmental conditions; health-related education and information; and gender equality.[7]

The right to health contains freedoms. These freedoms include the right to be free from non-consensual medical treatment, such as medical experiments and research or forced sterilization, and to be free from torture and other cruel, inhuman or degrading treatment or punishment.[8]

The right to health contains entitlements. These entitlements include the right to a system of health protection providing equality of opportunity for everyone to enjoy the highest attainable level of health; the right to prevention, treatment and control of diseases; access to essential medicines; Maternal, child and reproductive health; Equal and timely access to basic health services; The provision of health-related education and information; Participation of the population in health-related decision making at the national and community levels.[9]

Health services, goods and facilities must be provided to all without any discrimination. Non-discrimination is a key principle in human rights and is crucial to the enjoyment of the right to the highest attainable standard of health.[10]

All services, goods and facilities must be available, accessible, acceptable and of good quality. The functioning public health and health-care facilities, goods and services must be available in sufficient quantity within a State.[11]

They must be accessible physically (in safe reach for all sections of the population, including children, adolescents, older persons, persons with disabilities and other vulnerable groups) as well as financially and on the basis of non-discrimination.[12]

Accessibility also implies the right to seek, receive and impart health-related information in an accessible format (for all, including persons with disabilities), but does not impair the right to have personal health data treated confidentially.[13]

The facilities, goods and services should also respect medical ethics, and be gender-sensitive and culturally appropriate. In other words, they should be medically and culturally acceptable.

The importance given to the “underlying determinants of health”, that is, the factors and conditions which protect and promote the right to health beyond health services, goods and facilities, shows that the right to health is dependent on, and contributes to, the realization of many other human rights. These include the rights to food, to water, to an adequate standard of living, to adequate housing, to freedom from discrimination, to privacy, to access to information, to participation, and the right to benefit from scientific progress and its applications.[14]

In addition, the treaty bodies that monitor the International Covenant on Economic, Social and Cultural Rights[15], the Convention on the Elimination of All Forms of Discrimination against Women[16] and the Convention on the Rights of the Child[17] have adopted general comments or general recommendations on the right to health and health-related issues. These provide an authoritative and detailed interpretation of the provisions found in the treaties. Numerous conferences and declarations, such as the International Conference on Primary Health Care (resulting in the Declaration of Alma-Ata[18]), the United Nations Millennium Declaration and Millennium Development Goals,[19] and the Declaration of Commitment on HIV/AIDS,[20] have also helped clarify various aspects of public health relevant to the right to health and have reaffirmed commitments to its realization.

RIGHT TO HEALTH IN INDIA

Years after Independence the Indian State has failed to provide its citizens the basic requirements like food security, health care, housing and education, which are the basis for reasonable human existence. Due to rampant poverty and lack of social equity large sections of population have been denied adequate nutrition, clean drinking water and sanitation, basic education, good quality housing and a healthy environment, which are all prerequisites for health. A highly inequitable health system has denied quality health care to all those who cannot afford it.

There are numerous laws and Supreme Court Judgements, which reflect Right to Health as a basis for human existence. The Right to Life (Article 21) enshrined as a fundamental right in the Constitution makes a case for provision of emergency medical care, and protection from all threats to life.[21] Article 47, which is a Directive Principle of State Policy, relates to nutrition, standard of living and health.[22]

In addition to these constitutional provisions the judiciary has played an active role in ensuring the right to health to the common man. In the case of Consumer Education and Research Centre v. Union of India[23] it was held that the government has a positive duty to provide the basic conditions necessary to lead a life that is more than mere animal existence, including a Right to Health, right to Clean Environment, right to Privacy.

In an important judgement the case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal[24], the Supreme Court of India ruled that “in a welfare state the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. … Article 21 imposes an obligation on the State to safeguard the right to life of every person. … The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.”

But despite all these constitutional and judicial provisions India has been unable to secure the right to health for majority of its population. The first National Health Policy (NHP) of 1983 made its motto ‘Health Care for All by 2000’ which has not happened.[25]

The National Health Policy 2002 clearly acknowledges that the public health care system is grossly short of defined requirements, functioning is far from satisfactory, that morbidity and mortality due to easily curable diseases continues to be unacceptably high, and resource allocations generally insufficient.[26] The public spending on health care in India is as low as 0.9% of the Gross Domestic Product (GDP) in contrast to a total health expenditure of 5% of GDP making public health expenditure a mere 17% of total health spending in the country.[27] Decreasing public health expenditure has adversely affected the health outcomes. The NHP

2002 acknowledges that the public health investment in the country has been comparatively low[28] and planned to raise it to 2 percent of GDP by 2010, however this is much lower than the 5% GDP recommended by the World Health Organisation (WHO).

India has one of the most privatised health systems in the world, denying the poor access to even basic health care. The crushing burden of bearing expenses on health care is put on the people of this country resulting in out-of-pocket expenditure on private health care services which is as high as 82 per cent.[29] Various studies show that private health sector accounts for over 70% of all primary care, which is sought, and over 50% of all hospital care.[30] This is not a very healthy sign for a country in which three-fourth of the population lives at or below subsistence.

The judgements have reflected importance of health as a prerequisite for Right to Life. Thus it can be inferred that Right to Health is an important human right and its denial can be detrimental to the existence of human life. It is necessary to make Right to Health Care a fundamental right in the Indian Constitution rather than limiting it to the Directive Principles of State Policy.

CONCLUSION

 

Health is a social, economic and political issue and above all a human right. Inequity and poverty are the root cause of ill health leading to malnutrition and starvation deaths in the marginalised sections of the society. The current health scenario favours the urban affluent class, which is only about 10% of the total population. There is a need to remove regional imbalances.

There is a need to restructure the existing health system to usher equity and social justice. This can be achieved through promulgation of a comprehensive legislative framework, which should create conditions conducive to restore the balance in the health sector. The legislation should be complemented by making ‘Right to Health Care’ a fundamental right, which will be an enforceable right. The ultimate aim of Universal Access to Health Care could be achieved through the restructuring of health finance and introduction of universal coverage of health care.

India must strive to move towards a system where every citizen has assured access to basic health care, irrespective of capacity to pay. A number of countries in the world have made provisions in this direction Introducing a system of Universal social health insurance or some form of compulsory coverage such as national health insurance as in Canada or Germany is necessary. Insurance services could be provided by making a combination of a significantly strengthened and community-monitored public health system, along with some publicly regulated and financed private providers, under a single umbrella. The entire system would be based on public financing and cross-subsidy, with free services to the majority population of rural and urban people including vulnerable sections, and affordable premium amounts (which could be integrated with the taxation system) for higher income groups.

Ensuring the Right to Health Care as a fundamental right has become imperative for a nation, which as the ‘world’s largest democracy’ claims to accord certain basic rights to its citizens, including the Right to Life in its broadest sense.

 

 

 

 

[1] Sofia Gruskin & Daniel Tarantola, Health and Human Rights,  in Gruskin et al. (eds.) Perspectives on Health

and Human Right (New York: Routledge, 2005)

[2] World Health Organization. 25 Questions & Answers on Health & Human Rights. Health & Human Rights

Publications Series No.1. Geneva, July 2002: p. 16.

[3] SK Peruhoff, Health, Essential Medicines, Human Rights & National Constitutions XV (Geneva: World Health Organization, 2008).

[4] World Health Organisation, 1946, Constitution of World Health Organisation, http://www.who.int/about /definition/en/

[5]The Covenant was adopted by the United Nations General Assembly in its resolution 2200A (XXI) of 16 December 1966. It entered into force in 1976 and by 1 December 2007 had been ratified by 157 States.

[6] M Mulumba, D Kabanda Constitutional provisions for the right to health in east and southern Africa. Centre for Health, Human Rights and Development, CEHURD, in the Regional Network for Equity in Health in East and Southern Africa. EQUINET Discussion Paper 81, April 2010, http://www.equinetafrica. org/bibl/docs/Diss81%20ESAconstitution.pdf

[7] UN Committee on Economic, Social and Cultural Rights (CESCR), 2000, General Comment No.14, http://

www.unhchr.ch/tbs/doc.nsf/(Symbol)/40d009901358b0e2c1256915005090be?Opendocument .

[8] Ibid

[9] Ibid

[10] Ibid

[11] Ibid

[12] Ibid

[13] Ibid

[14] Abhay Shukla, Right To Health Care: Moving From Idea To Reality, Proceedings of the Seminar held at The Asian Social Forum, Hyderabad – 3 and 4 January, CEHAT.

[15] Committee on Economic, Social and Cultural Rights, general comment N° 14 (2000) on the right to the highest attainable standard of health.

[16] Committee on the Elimination of Discrimination against Women, general recommendations N° 19 (1992) on violence against women and N° 24 (1999) on women and health.

[17] Committee on the Rights of the Child, general comment N° 4 (2003) on adolescent health and development in the context of the Convention on the Rights of the Child.

[18] Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, USSR, September 1978.

[19] Supra 9.

[20] General Assembly resolution S-26/2 of 27 July 2001.

[21] Supra 45.

[22] Anant Phadke, “Right to Health Care: Towards an Agenda” Vol. 38, No.41 Economic and Political Weekly 4308-4309 (October 11-17, 2003).

[23] 1995 (3) SCC 42.

[24] 1996 (4) SCC 37.

[25] NFHS-1998, 2000: National Family Health Survey –2: India, IIPS, Mumbai.

[26] Ministry of Health and Family Welfare, 2002, Health Information of India Central Bureau of Health Intelligence, Directorate General of Health Services.

[27] Ravi Duggal “Operationalising Right to Healthcare in India” Vol 2 No.3The ICFAI Journal of Healthcare Law (August 2004).

[28] Government of India, National Health Policy 2002, available at: http://mohfw.nic.in/np2002.htm

[29] S Chakraborty,2003, Private Health Provisions in Uttar Pradesh, India, in Yazbeck, Abodo S, Peters David, (ed.) Health Policy Research in South Asia: Building Capacity for Reform (The World Bank, Washington DC).

[30] Ravi Duggal, 1993, For A New Health Policy, A Discussion Paper, CEHAT, Mumbai.