Salsa Paper

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

BY SYED KAMRAN RAZVI

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

Synopsis: The paper discusses the issues of “Justice at the door-step”. The notion of Justice and Equity has seen further evolution under the International covenant on Human Rights. The exposition under Protection of Human Rights Act, 1993,(India)i is a manifestation of such obligation and collectivism1. It provides the structure for implementation of Human Rights. The subject of analysis is the success in establishment of Commissions , Courts and rules aimed at preserving the Human life and liberty and the need for amendments. The background contained in Part III of the Indian constitution close to ‘Bill of Rights’. It includes right (Article 32)to move Supreme Court of India to prevent infringement of fundamental rights2. However pursuant to the Social Democracy, community-specific legislation in India like Prevention of Atrocities (SC and ST) Act, 1989 (previously Protection of Civil 1

Following Vienna Declaration in 1993 the post of Human Rights Commissioner was created at UN, (vide resolution 48/141). First High Commissioner Mr.Jose Ayala Lasso assumed office on 5th April,1994. 2 Direct remedies under Article 32 and 226 of the Constitution of India Act 1 of 1950 are subjected to the Reasonable restrictions on the exercise of the Fundamental Rights as evolved by Case Law. This Writ peroragative emanate from section 7, of the Administrative of Justice (Miscellaneous Provisions) Act, 1938. As the Federal Court and the Supreme Court were established under the Charter by the British Colonial regime. Though Writ jurisdiction was not available to the colonial subject. 1/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Rights Act,1955) have also been enacted prior to Protection of Human Rights Act,1993. Thus in terms of sociological implication of Law it is impressed, in these set of legislation. These Rightsspecific legislation have acted if in support or is case of overlapping jurisdiction is also examined. Lastly, whether the Human Rights Commission and Courts have made progress in past one decade of existence. The challenge of Civil liberties in pursuing dynamic civil society.

Key Words : Act , NHRC, Justice, Constitution, Courts, fundamental Rights, Ouster clause, Police, ‘Police powers’, communal compensation.

Notion of Human Rights and Justice : Every segment of the society has a different definition of Justice. Human Rights is a growing definition adding impression to the universal application and implementation of the Laws conforming to the Human Rights. Indian example is a case in point. Inspired by International covenant of Human Rights or Universal Declaration of Human Rights, 1966 an enactment was passed with a topical terminology. A Central Act called Protection of Human

2/39

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

Seattle

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

BY SYED KAMRAN RAZVI 3

Rights Act, 1993 was passed and notified Act 10 of 1994. The Act envisages two Functionary bodies namely the National Human Rights Commission and State Commissionsii and permanent remedial edifice, establishment of Human Rights Courts. These courts are to work in aid of these commissions. Prior to the passing of this statute an Act, calling for National Commissions Act,1990 was passed. This statute brings into existence the commissions for the segment of the society discriminated and to study the welfare measures and propose the same to the government through their annual and Special reports. The Chairman of the these commissions are also ex-officio members of National Human Rights Commission.iii The Chairman of NHRC is ex-Chief Justice of India and holds office till one attains the age of 70 years. It has the powers of Civil Court for proceedings and execution of orders/decrees and powers to punish for contempt. NHRC has in case of Gujarat riots in March, 2002 launched a Court campaign which has resulted in hauling up making both accountable i.e.

State government and also High

Court of Gujarat.iv

3

It was assented by the President of India and published in Gazette of India Extraordinary, Part III, Sec.1, dated 10th Januray,1994. This was to confirm the ordinance promulgated by the President on 28th September,1993. 3/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Such Court campaigns have been described by an American Author ; “Americans have gone a lot of further(some would say too far(a bevy of Platonic Guardians’) Supreme Court Court described) in judging judges. This is mostly because of the Bill of Rights and the importance which the Supreme Court has in the US constitution. But there is no doubting that the judging of judges is a multi-million dollar and is widely regarded in the USA as essential to judging Judges. How is this an industry? The Bill of Rights leads Americans to favour single-issue pressure groups which mount Courtcampaigns-most famously in the case of the 1954 decisions to end racial segregation in the schools-to achieve political aims.”4 In a Petition in public interest on the same subject filed before the Supreme Court of India it has been represented that the trials of such violations of civil rights should be done by the Human Rights Courts.v In Indian context the access to the Courts has two hurdles , financial and physical.

India still is a rural

society if no more an Agrarian economy in terms of Urban and Rural ratio. The indicator being GDP. Primary sector is still a major contributor. Services is

only

now

catching

up with

the

Manufacturing sector. 4

Judging Judges ,Simon Lee, Faber and Faber Ltd.,1988 reprint,P.186 4/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Although the Legal Services Authorities Act, is almost a decade old, State legal-Aid boards are often plagued with financial crunch. There is another related issue that is of the Financial independence of the Judiciary. It is equally important for the Human Rights issues and law. While the Higher Judiciary income is not taxable. Those at the District Court, there salary is taxable barring a few states. Also even the higher Courts do not have the financial independence so far. There is debate on the same and each successive Chief Justice of India has been garnering efforts on the same. The other is the physical hurdle, in a developing economy infrastructure is often poor. Thus to seek Direct remedy, a litigant has to travel few miles and perhaps few days. Thus timely intervention may not be obtained. These issues become more obvious when one considers the rights and plights of the tribals, special geographic regions and those living in Hilly areas. Incidentally, India has an insurgency prone regions situated in remote regions of the land. This part is dealt in a separate section here. The Human Rights Act addresses these two issues.

Legal structure and Procedure under the Act:

5/39

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

Seattle

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

BY SYED KAMRAN RAZVI

This brings to the discussion on the legal structure and the procedure it provides for ensuring the remedial process. Section 30, Chapter VI of the Act: “Human Rights Courts – For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of High Court by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences: Provided that nothing in this section shall apply if – (a) a Court of session is already specified as a Special Court; or (b) a Special Court is already constituted. For such offences under any other Law for the time being in force. Section 31. Special Public Prosecutor.- For every Human Rights Courts, the State Government shall, by notification, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years , as a Special Public Prosecutor for the purpose of conducting cases in that court. These two sections have been dealt and interpreted by High Court of Andhra Pradesh saying in its operative part; 6/39

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

Seattle

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

BY SYED KAMRAN RAZVI

The Human Rights Court, being a Court of Session 5(refer to chart in Schedule B) for trial of offences violative of Human Rights, does not have the power to take cognizance of any offence as a Court of original jurisdiction unless the case is committed to it by a Magistrate. A Magistrate of the First Class or a Magistrate of the second class, as the case may be, when empowered can take cognizance of an offence upon receiving a complaint of facts, upon a police report or upon information received from any person other than police officer or upon his knowledge. Court of session , however, cannot do so and accordingly Human Rights Courts also cannot take cognizance of the offence as the Court of the first instance.6 There are two other sections of the Act relevant to the aspect of Judicial process. Chapter VIII (Miscellaneous) Section 36.Matters not subject to jurisdiction of the Commission.(1)

The Commission7 shall not inquire into any mater

which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force. 5

Two tier of Criminal Courts in India, under Criminal Procedure Code,1973, Court of Session and Magistracy. Court of Session sits in appeal from magistrates court and tries heinous offences and death sentence. It shares some powers in Bail with High Court(Constitutional Court). 6 A.Goverdhan Reddy v. Superintendent of Police,Allahabad,1998 Cr.L.J.561 at p.562(AP) 7 National Human Rights Commission 7/39

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

Seattle

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

BY SYED KAMRAN RAZVI

(2)

The Commission or the State Commission shall not inquire into any matter after the expiry of one year form the date on which the act constituting violation of Human rights is alleged to have been committed.”

This clause of special Bar created anamoly (Ousting and Overriding Clause) and suspicion. The Supreme court of India clarified : “The power and jurisdiction of the Apex Court under Art.32 of the Constitution cannot be curtailed by any statutory limitation, including those contained in Sec.36(2). If the Apex Court can exercise that power unaffected by the prohibition contained in Sec.36(2), there is no reason why the commission, at the request of the Apex Court, cannot investigate or look into the violations of human rights even though the period of limitation indicated in Sec.36(2) might have expired . In such a situation, the commission will not be affected by the bar contained in Sec.36(2) and it will be well within rights to investigate the matter referred to it.8 However the issue of suspicion remains. This emanates from the Executive intent to skirt away or simply avoid any accountability or action on the violations of Human Rights. There are two set of examples to emphasize such gross abuse of sovereign privilege. 8

Paramjit Kaur v. State of Punjab,AIR 1999 SC 340: (1999)2 SCC 131.(Also see endnote iii) 8/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Role of ‘any other commissions’ on communal riots:

Under the Commission of Inquiry Act No.60 of 1952, any State or Central government can appoint a Commission of Inquiry. This is a Colonial legacy, although enacted after India became republic in 1950. On Communal Riots there have been at least ten Commission of Inquiries since 1960. Each has recommended set of reforms in police and “police powers” of the State. How to be sensitive to the minorities. None of the recommendations have been implemented till date. No Law has been enacted ,specifically to deal with the (Anti-Minority) administrative vice. The illustrations from two important commissions are provided here :

Para No.106.57 : Communal discrimination by officers and men: “ In the ultimate analysis the implementation of any measure must depend upon human agencies, namely the offices and men on the spot. No measures, however good on paper, can succeed unless those charged with the responsibility of carrying them out acts with integrity and without communal bias. In the course of this Inquiry, we have seen that even some of the senior officers were not free of the taint of communalism. When, therefore, any instance comes to light of any police officer, policeman or Government 9/39

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

Seattle

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

BY SYED KAMRAN RAZVI

servant

having

communal

discrimination

in

favour

of

a

community, the person guilty should be severely dealt with.”9

B.N.Srikrishna, J. Commission report on Mumbai riots of 1992-93 : “Even after it became apparent that the leaders of the Shiv Sena were active in stoking the fire of communal riots, the police dragged their feet on the facile and exaggerated assumption that if such leaders were arrested the communal situation would further flare up , or to put it in the words of then Chief Minister, Sudhakar Rao Naik, “Bombay would burn”; not that Bombay did not even burn otherwise.” The same Commission has bitterly criticized government. Note the consistency in observation about role of Police (Anti Minority

Bias)by

these

two

important

and

most

vocal

Commissions:

“The working of the Special Investigation squad is a study in communal discrimination. The officers of the squad systematically set about implicating as many Muslims and exculpating as many Hindus as possible irrespective of whether they were innocent or guilty. Cases of many Hindus belonging to the Shiv Sena, Rashtrya 9

D.P.Madon,J. Commission of 1970 on the Bhiwandi, Jalgaon and Mahad: Sabrang publications,Mumbai,p.320 10/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Utasav mandal(an extension of the local branch of the Jana Sangh were wrongly classified as ‘A’ category and investigations closed and no proper investigation was undertaken into several complaints of murders of Muslims and arson of their property. No investigation was conducted into the composition and activities of Hindu

communal

and

allegedly

communal

organizations

operating in Bhiwandi but only in respect of Muslim Communal and allegedly communal organizations. Deputy superintendent of police S.P.Saraf held private conferences and discussions with several leaders of Hindu organizations including many who were implicated by Muslims in offences of arson and murder.”10

B.N.Srikrishna, J. Commission report on Mumbai riots of 1992-93 : “ The response of police to appeals from desperate victims, particularly Muslims, was cynical and utterly different. On occasions, the response was that they were unable to leave the appointed post; on others , the attitude was that one Muslim killed was one Muslim less….Police officers and men, particularly at the junior level, appeared to have an in-built bias against the Muslims which was evident in their treatment of the suspected Muslims and Muslim victims of riots. The treatment given was harsh and brutal 10

D.P.Madon,J. Commission of 1970 on the cBhiwandi, Jalgaon and Mahad: Sabrang publications,Mumbai,Page vii 11/39

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

Seattle

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

BY SYED KAMRAN RAZVI

and, on occasions, with their adopting the role of passive onlookers on occasions, and ,finally, their lack of enthusiasm in registering offences against Hindus even when the accused was clearly identified and post-haste classifying the cases in ‘A’ (True but not detected)summary.”

Report of the Ranganath Mishra J., Commission report on the 1984 anti-Sikh riots in Delhi:

“ The riots occurred broadly on account of the total passivity, callousness and indifference of the police in the matter of controlling the situation and protecting the people of Sikh community….Several instances have come to be narrated where police personnel were found marching behind or mingled in the crowd. Since they did not make any attempt to stop the mob from indulging in criminal acts as inference has been drawn that they were part of the mob and had the common intention and purpose…The Commission was shocked to find that there were incidents where the police wanted clear and definite allegations against the anti-social elements in different localities to e dropped out while recording FIRs(First Information Report)”

12/39

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

Seattle

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

BY SYED KAMRAN RAZVI 11

Further response of government vide mention of Action Taken Report would amplify the magnitude of sovereign immunity and general insensitivity : Para No.32 : “The Commission has observed that the police were biased against the Muslims. The Government cannot accept these conclusions of the Commission. The Commission has itself accepted the explanation given by the Commissioner of Police and has further written that(Para.1.4, Chapter II, Volume-1), “the aggressive and violent mobs in the initial stages (emphasis mine) comprised Muslims and therefore, Muslim casualties were higher”. The Commission itself dismisses the theory(Para1.5, Chapter II, Volume I) that disproportionately large number of deaths indicate that police had targeted and liquidated Muslims because of bias. The Muslims too a greater part in the riots and violence by the mob. Therefore, larger number of Muslim deaths took place. The Commission itself says that “ the explanation of the Commissioner of Police that the aggressive and violent mobs in the initial stages comprised Muslims and , therefore , Muslim casualties were higher does not appear to be as far-fetched as it has been made out by Muslims(Para.1.4, ChapterII, Volume I).” Para No.50: 11

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

13/39

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

Seattle

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

BY SYED KAMRAN RAZVI

“ Earlier, too, a number of serious and violent communal riots had taken place in Maharashtra. We have not still forgotten the 1967 riots of Malegaon, 1970 riots which engulfed Bhiwandi, Jalgaon and Mahad and 1984 communal riots of Mumbai. Against this background it was ‘expected’(commas mine) that the Commission would come out with suitable directions on the violent and unprecedented riots and serial bomb blasts of 1992-93.It is regretfully noted that the Commission did not fulfil this expectation.(emphasis mine).”

“….But the Government is of the view that some of the conclusions are one-sided, biased and arrived at with a view to indict a particular person or community. Therefore the Government rightly fears that after 5 years, the wounds , instead of getting healed, will be reopened again and may start festering. The Government, therefore , reiterates that on account of the reasons given above, it cannot agree with the conclusions of the Commission recorded in Chapters I to IV of Volume I of the Report.” This Memorandum of Action to be taken by Government was issued by the State government which was headed by the political alliance of Shiv-Sena-Bhartiya Janata Party(1995-1999). The ShivSena activists were severely indicted by the Commission. Thus the government response and bias is not out of context. 14/39

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

Seattle

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

BY SYED KAMRAN RAZVI

The Commission was presided by a sitting High Court Judge,Mr.B.N.Srikrishna,J. The then chief Minister of Maharashtra is now Speaker of the Indian Parliament. In view of the above, the ouster clause in the Act is only to avoid accountability in the political system. Some of the State governments have been so far-fetched that they booked a few NGO activists working on HIV-AIDS in hilly areas under Preventive Detention Law called National Security Act No.65 of 1980. Their fault, teaching sex education and organizing people, against the wishes of local politicians.

Turning to the remedy to such political malaise is creating special teams which is provided under Section 37 of the Act.

Section 37:

Constitution

of

Special

Investigation

Teams.-

“Notwithstanding anything contained in any other law for the time being in force, where the government considers it necessary so to do, it may constitute one or more special investigations teams, consisting of such police officers as it thinks necessary for the purpose of investigation and prosecution of offences arising out of violations of Human rights.”

15/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Although here also the discretion lies with the government. NHRC though has issued instructions to the Police throughout India to report any deaths in police shoot-outs within 24 hours of the incident. However this is constrained in real terms by the physical verification of the versions that of the Police and citizens (victims or otherwise) POLICE As Instrument of Law and Human Rights: In a series of Judgements the Supreme Court of India has indicted Police and policing in a Civil Society in innumerable cases. The Law under Article 141 of Constitution of India has been laid down on search, seizure and arrest. Indian Judiciary particularly Court of record has been receptive to the Judgements passed by various Constitutional Courts including US, ICJ, and House of lords. The rights of the accused have been detailed in 1997 judgement considering whole gamut of criminal Law and jurisprudence available round the Civil societies across the globe including PACE Act of 1984(UK). This was reiterated in an observation : “In cases involving violation of human rights, the courts must for ever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field. In the instant case, the High Court appears

16/39

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

Seattle

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

BY SYED KAMRAN RAZVI

to have totally ignored the intent and content of the International Conventions and Norms while dealing with the case.”12 In an unprecedented Judgement, a Precedent has been laid down, whereby the High Courts in the States have been empowered to supervise the implementation of the orders. Thus balancing the “opposite interests” rule of Adam’s case 68 NE 636, or as Justice Cardozo observed in People v. Defore13 “that the question is whether the protection of individual would not be gained at a disproportionate loss of protection of society. On one side is the social need that crime shall be repressed. On the other, the social need that the law shall not be flouted by the insolence of office. There are dangers in any choice.” A very similar interpretation and view was expressed by Supreme Court of India : “To strike the balance between the needs of the enforcement on the one hand and the protection of the citizen from oppression and injustice at the one end of the law enforcement machinery on the other is a permanent problem of statecraft”14 The guidelines issued in the 1997 being as below::

12

Apparel Export Promotion Council v. A.K.Chopra, AIR 1999 SC 625 (1926)242 NY 13. (cited in “Interpretation and Enforcement of Fundamental Rights”, D.J.De,Eastern law House(India),2000edn,p.692 14 Nandini Satpathy v. P.L.Dani; AIR 1978 SC1025; (1978)4 SCC 424. 13

17/39

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

Seattle

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

BY SYED KAMRAN RAZVI 15

“…The following guidelines to be followed in all cases of

arrest or detention till legal provisions are made in that behalf as preventive measures: (1)

The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and

clear

identification

and

name

tags

with

the

designations,. The particulars of such persons who handle the interrogation of the arrestee must be recorded in the register. (2)

The police officer arresting a person must prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness. Who may be either a member of family of the arrestee or a respectable person of the locality from where the arrest has been made. It must be countersigned by the arrestee and shall contain the time and date of arrest.

(3)

A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in the welfare being informed, as soon as practicable, that he has been arrested and is being detained at a particular place, unless

15

D.K.Basu v.State of West Bengal AIR 1997 SC610 (1997)1 SCC 416.

18/39

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

Seattle

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

BY SYED KAMRAN RAZVI

the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4)

The time, place of arrest and venie of custody of an arresteee must be notified bny the police whgere the next friend or relative of the arrestee lives outside the district or twon through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5)

The person arrested must be made aware of this rights to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6)

An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police official in whose custody the arrestee is.

(7)

The arrestee should, where he requests, be examined at the time of his arrest and major or minor injuries, if any, present on his/her body , must be recorded at that time. The inspection memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8)

The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody

19/39

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

Seattle

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

BY SYED KAMRAN RAZVI

by a doctor on the panel of approved doctors appointed by the Director of Health Services etc. (9)

Copies of the documents including the memo of arrest should be sent to the illaqa Magistrate for his record.

(10)

The arrestee may be permitted to meet his lawyer during interrogation, though not through out the interrogation.

(11)

A police central room should be provided at all Districts and State Headquarters, where the information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and the particulars of the persons arrested shall be displayed in a conspicuous notice Board.”

It further reads as “…Any failure to comply with the said requirements shall apart from rendering the concerned official liable to departmental action,vi also render him liable to be punished for contempt of court and the proceedings for the contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.” The Court directed that the aforesaid directions of the court should be given widest circulation in the Radio and Television and other newspapers to create awareness about the right of the arrestee to bring down the custodial crimes. 20/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Although these are now displayed on the notice boards at all police stations. The compliance and reporting of violations of the same is sadly lacking. Thus there is need for the monitoring mechanism. In States where the Human Rights Courts have been notified. Such monitoring is done by them. However there are just two states out of 30 States and two Union Territories and two autonomous regions who have notified such courts. There is a move at the annual Chief Ministers conference to take up this issue. In UK , in compliance with the ECHR convention, Human Rights Act,1998 was passed. The act exposes the Policemen to Civil Tort. The position is no different in India.16vii “For the first time, the law gave the constable effective protection under the umbrella of the police organization by making the chief constable liable. However the Human Rights Act 1998 may reverse this effect, especially if constables are held to be ‘public authorities’ in their own right. This possibility has clearly been in the minds of police officers in the UK. Many have insured against the public liability claims to cover this eventuality.”17

Indian Police Act and Prison Authorities ::

16

Uphaars case, Policing : An introduction to concepts and practice; Alan Wright, Lawman(India)PLtd.2002Ed.Reprint 2003 P.31. 17

21/39

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

Seattle

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

BY SYED KAMRAN RAZVI

“ In light of the evidence, we should abandon any attempt to understand policing as a range of functions of the police. Instead we should develop an account which recognizes the diversity of meanings which now characterise the terms ‘police and ‘policing’.18

The Indian Police is governed by the India Police Act, 1860, a colonial piece of legislation. It is the basic structure for all the State Police Acts. The police is further divided on the basis of status in service, whereby preserving the higher posts for those at the pay rolls of the Central Government. There is severe neglect of the local police. It is them who are responsible for investigation and prosecution under the Criminal Procedural Code of 1973. Like other Commissions , the National Police Commission recommendations has been gathering dust for past two decades. Thus the translation of words into action lacks on this count keeping the aims and object of the Act in abeyance. In case of Prisoners Act, the Prison has its own recruitment rules and staff, under the various Jail rules and manuals as applicable in the State. The Jails are subject to the monthly inspections by the District Judges wherever the District Jails are located. 18

ibid

22/39

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

Seattle

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

BY SYED KAMRAN RAZVI

However there have been instances where Courts of record while deliberating on the issue of death in Jail riot, did not award compensation. Thus there are conservative elements in Judiciary also. While in another example within a week of passage of the guidelines mention in 1997 judgement. I moved an application before the Magistrate court for enforcement of such provisions by calling for release of young persons, one of them as young as 13 years from the illegal detention of the Police acting on the instruction of the local minister. This is

typical example quite common, where the local

politicians use police for they are the masters in absence of the independent Police commissions and regulatory mechanisms. A consequence is that a large number of violations are unreported. An important observation by a very senior and prominent retired police officer is pertinent (on Gujarat riots 2002)19: “On the night of the barbaric killing of 59 Kar Sevaks in Godhra, instead of going after the culprits and taking precautions to prevent revenge killings of innocent Muslims, the government joined the call for the bandh20. The Chief Minister, I learnt called a meeting of officials that night and told tem that they need not be

19

“Lost Middle Ground A community loses hope in Gujarat” by Julio Ribiero, Time of India (English Daily) 24/04/2002 20 protest call : closures of markets, etc by a body. 23/39

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

Seattle

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

BY SYED KAMRAN RAZVI

too enthusiastic about preventive measures because he said that the bandh would pass off peacefully. Then, one of his ministers sat in the city police commissioner’s control room and another Minister in the DGPs State control room each with a band of supporters to put subtle pressure on the police.(emphasis mine) Much has been written about the failure of the police. There is no doubt that it failed.” “…My inquiries showed that the BJP government of Narendra Modi, with a VHP activist named Govardhanbhai Zadapiya as minister of state for home, has systematically emasculated the leadership by placing pliable officers and men of its choice in every possible position at the cutting edge.” “…Gujarat is easily the worst (or best) case study of a police force becoming politicised by the misuse of the powers of appointments and transfers. The phenomenon has been commonly noticed in every state since the eighties.” He warns not without basis ; “…Unless corrective measures are quickly taken, people are going to experience a worse breakdown of the law and order machinery leading to a threat to the security of life and property.” A further federal principle that law and order being essentially State subject. The Central government has to take the necessary permission to send the para-miltary forces or Defence 24/39

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

Seattle

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

BY SYED KAMRAN RAZVI

forces to assist the State forces when it comes to the breakdown of law and order. There is no provision even to investigate the embezzlement of Central Funds through State machinery until specific request is made. Although now there is redressal through ombudsman. The courts of record have on occasions acted as Inquisitorial and retained prospective jurisdiction in the interest of justice when the issue of corruption at the highest level arose.

Complimenting Statutes :

In past one decade a number of Statutes have been passed by Indian parliament which compliment the aims and objectives of this Act. Although many have been passed without any debate, hence there is little public awareness. Although Parliamentary proceedings are now open to Television and radio, yet only Question hour and Budget are telecast as live programs. The statutes on increasing the accountability and availability of information, government documents to the public are Freedom of Information Act, 2002(Central Statute) and similar State Laws. This has amended some Civil Service(Conduct) rules and manual of office procedure. Many states have passed their own bills on the 25/39

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

Seattle

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

BY SYED KAMRAN RAZVI 21

same subject. Like Delhi and Goa. The two small states are more open. The Media and NGOs have been the main beneficiary of this opening. Though even these States official websites have little to offer. Under these statutes the dilution of Official Secrets Act,1923 and the Defence and Internal Security of India Act,1971 has been done with genuine legislative intent. Further the Public Records Act,1993 now prescribes the saving of the declassified documents in the Archives of India. The Courts have liberally exercised the Judicial review to place the check on the Executive and even legislature but the separation of powers doctrine under Article 50 and 105 of the Constitution has stopped them short of striking down many colonial legislation, and like legislation, as inconsistent with the Fundamental Rights or simply being unconstitutional.

The

preventive powers exercised by the Executive authorities under various procedural and substantive statutes have been prescribed some Judicial safeguards. Many of the provisions of Government of India Act, 1935

22

have been duly incorporated in the

constitution. On many occasion the Supreme Court of India simply refused to give opinion on reference by the Government, as part of 21 22

The Delhi Right to Information Act,2001. Indian Independence Act,1947 and Partition Act,1947; with the Adaptation of Laws Act,1950 .

26/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Constitutional politics. Notable being the return of Presidential reference23 on deciding the Mosque/temple controversy in the year 1995-1996. This matter is now pending in various Courts, for past 50 years.

Detention and Terrorism Laws and the Act : In quest for the maintenance of Law and Order and security of state, and the change in tact of militancy sans political ideology. What is also described as terrorism. Couple with the growing clout of Organized crime, so sophisticated that NYSE once warned about the same. Yet the quest in civil society and libertarian view of Rights of the accused and the wronged face a challenge. The balance of competing interests and safeguards are often negated when the modern societies and nations are faced with an imminent threat. A situation which brings them very near to suspension of Civil liberties. Judicial review is often marginal in affecting outcome (moderating) of such Executive action which are based on stringent Laws. In historical perspective an interesting Joint-opinion of the Attorney and Solicitor-General, Sir John Campbell and Sir M.M.Rolfe as to the power of the Governor of Canada to proclaim 23

Article 143: Powers of President to Consult Supreme Court , on subjects mentioned in Article 131. 27/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Martial Law. On correctness of the Law Officers of the Crown in Lower Canada, Temple, January 16,1838 : “My LORD,…. On the subject of the power vested in the Governor of that province to proclaim martial law…” “…has the power of proclaiming, in any district in which large bodies of the inhabitants are in open rebellion, that the executive Government will proceed to enforce martial law. We must, however, add that in our opinion such proclamation confers no power on the governor which he would not have possessed without it. The object of it can only be to give notice to the inhabitants of the course which the Government is obliges to adopt for the purpose of restoring tranquility…” “…It is hardly necessary for us to add that, in our view of the case, martial law can never be enforced for the ordinary purposes of civil or even criminal justice, except, in the latter so that; so far as the necessity arising from actual resistance compels its adoption.”24 Indian insurgency prone areas are two one in the upper North(Kashmir valley) and the North-East(China border). These two areas have seen the largest number of Habeas Corpus Petitions. The State High Courts have been at odds with the executive. Most of the cases of compensation of failure to produce corpus have been from these States only. There are some Naxalite 24

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

28/39

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

Seattle

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

BY SYED KAMRAN RAZVI

(militant under-ground movement) prone areas. At one point of time, both Central and State government became so circumspect when it even refused the diplomats from Western countries to see the Human Rights situation in Kashmir Valley. North-East India still remains beyond the reach of even Indian Nationals (in some parts where the permit has to be taken). This security paranoid, is a political hype. Indian

government

experimented

twice

with

tough

legislation which made onerous on the accused to rebut the presumption of his omission(innocence). Earlier it was TADA25 and now POTA26 there are few things common in the Acts. However, these acts were not notified in all states. The strong limitation is compensating the miscarriage of justice. Also the Pre-Trial detention which can spread for years. Very often Courts of record/Appellate Courts and even Trial Courts while acquitting the accused, have little sympathy for the accused. The only possible safeguard then can be making the officials responsible with reasonable immunity ‘acts done in good faith’.

25 26

Terrorist and Disruptive Activities (Prevention) Act of 1987. Prevention of Terrorism Act,2002

29/39

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

Seattle

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

BY SYED KAMRAN RAZVI

“….domestic legislation on terrorism in the U.K. as founded upon international laws. Most notable mention is of the North Ireland (Emergency) provisions Act of 1991, where the Secretary of States implicit responsibility on the issue of violation of the individuals rights of internment may be interpreted on account powers relating to detention. Thus any excess can put the executive in deep trouble on individual and allied rights. Another institution being the independent assessor for military-excess complaints in North Ireland. These inherent safeguards worked successfully.”27 The Indian Anti-Terrorist Laws are inspired by similar set of US

Laws

and

jurisprudence

of

extending

extra-territorial

jurisdictions also. An attempt at the South Asian regional level was made by enacting the sub-Regional commitment . An enactment has been lying in the statute books, called ‘The SAARC28 Convention (Suppression of Terrorism) Act, 1993. However this piece of legislation stands lame and without sanction as the regional states lack cooperation. Thus there is an overall need to have the ‘State’ come to terms of with modern political reality in order to live up to the

27

Book Review: “International law Documents relating to Terrorism, Ed.by Omer Yousef Elaghab Cavendish,” published in THE HINDU, April 7,1996 by myself. 28 South Asian Association for Regional Cooperation. 30/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Rights which the man has inherited by virtue of birth as Human and because they have been prescribed. Indian Constitutional Courts have on such Preventive Laws stuck to the approach where Judicial Review is interpretation of section and the Enactment. Thereby resisting the otherwise liberal approach they have as “continuing colloquy” with political institutions and society at large. Judicial activism in Indian context has by and large meant protecting political pluralism and Separation of Powers . The secular fabric has been respected as to prevent religious appeal from making Electoral and other gains which create an imbalance in the basic structure of the Constitution. Though incumbent Central government has constituted the committee to review constitution. There has been no discussion in parliament or in general.

Conclusion : Supreme Court has awarded compensation on violation of life and personal liberty, under international covenant Article 9(5) of the International Covenant on Civil and Political Rights 1966, for death in hospital due to negligence, for loss of life in Communal riots, compensation on violation of right to health , workmen health and Medical care, loss of motherhood, all considered to be 31/39

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

Seattle

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

BY SYED KAMRAN RAZVI

the integral right to compensation as loss of life and personal liberty. However an examination of Compensation awarded in case of Rape29 and guidelines in domestic violence30 and Sexual harassment cases have very little effect in terms of enforcement of the same. Like the framing of Criminal Injuries Compensation Board for Rape victims, Guidelines for government by National Commission of Women on victims of Domestic Violence till the suitable legislation is in place or the application of CEDAW and in matter of Sexual harassment committees at work places. Further more there is very low conviction rate of those accused of communal riot . More recently those glorifying Sati31 have been acquitted for lack of clinching evidence. This failure to deliver justice is an example of lack of people’s commitment. The law was enacted by the British way back in 1860. It was passed afresh in the year 1987 with suitable changes and amendments.

The Act, has singular limitation of trying only the criminal violation, by the Human Right Courts and not the whole gamut of Life and personal liberty as interpreted by the Constitutional

29

Delhi Domestic Woring Women’s Forum v Union of India (1995)1 SCC 14. South Asian Research and Development Initiative V. Union of India and ors.(unreported) High Court of Delhi,CW765/01 by me. 31 Burning live of widow on the funeral pyre of husband, a temple is dedicated in Rajasthan to a young widow called Roopmati. There is annual fair commemorating at Deorala. 30

32/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Courts in India. The other possibly being its availability for the non-citizens. Although this is not implicit in the Act. Supreme Court position has been guarded in extending the ‘Direct remedy’ under Article 32 and 226 for enforcement of fundamental rights by the foreigners. The illustration below are self-explanatory of the legal position but liberal and conservative judge or those with defined positions can alter the same every time a petition is filed. 32

Fundamental rights to foreigners---scope of : One Mr.

Louis De Raedt has been staying in India continuously since 1937 excepting on two occasions when he went to Belgium for a short period in 1966 and 1973 and he continued to stay in India on a Belgian Passport. The petitioner who was foreign national was asked to leave the country by the 31st July 1987 and he challenged the order of expulsion which was turned down by the Supreme Court of India. It was held that the fundamental right to foreigner under the Constitution is confined to Article 21 for the life and liberty and does not include the right to reside and settle in India, as mentioned in Art.19 (1) (e), which is only applicable to the citizens of this country and the executive Government has unrestricted right to expel a foreigner.

32

AIR 1991 SC 1887

33/39

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

Seattle

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

BY SYED KAMRAN RAZVI 33

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

citizens-case of Chakmas34 in Arunachal: Incidentally this was the first Court campaign by the NHRC in first two years of its existence. “The AAPSU, as student organization of the Arunachal Pradesh issued ultimatum to the chakmas35 residing at Arunachal Pradesh to quit the State within the date fixed by them. The National Human Rights Commission too the matter to the Supreme Court in a public interest litigation under Article 32 of the Constitution seeing to enforce the rights under Article 21 of the Constitution. The Supreme Court issued the direction to the State of Arunachal Pradesh to ensure that the threat by the students organization is repelled with force and the life and liberty of the Chakmas residing at Arunachal Pradesh is protected. The Court observed that our constitution confers certain rights on every human being and certain other rights on the citizens. Every person is entitled to equality before the Law and the equal protection of laws, So also, no person can be deprived of his life and the personal liberty except according to the procedure established by Law. The State is bound to protect the life and liberty of every human being, be he a citizen or otherwise and it cannot permit anybody or a group of

33

NHRC v.State of Arunachal Pradesh AIR 1996 SC1235 Tribals from upper Bangladesh. 35 ibid 34

34/39

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

Seattle

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

BY SYED KAMRAN RAZVI

persons, e.g. the AAPSU, to threaten the Chakmas to leave the State, failing which they will be forced to do so and no State Government worth the name can tolerate such threat by any group or groups of such persons. It will not be out of place and context to mention that many of the illegal-migrants(workers) from Bangladesh have been deported by Delhi Police under instructions from Union Home Ministry, as they find the people. They are loaded in trucks and then in trains to Calcutta. Many a times the Bangladesh government refused to recognize them as its citizens. Leaving another set of squatters in no-mans land. This has now stopped temporarily as the international agencies intervened.

Thus the impatience and lack of deference on part of Executive, for judicial pronouncements becomes obvious in matters of policy in particular. ----------------------Syed Kamran Razvi Flat No.7, 137B/12, Zakir Nagar, New Delhi-110 025 (India) Tel: 91-9810078799 ® 91-9312655151 E-mail :: [email protected]

35/39

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

Seattle

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

BY SYED KAMRAN RAZVI

Schedule A

List of Statutes Referred: 1. PROTECTION OF HUMAN RIGHTS ACT,1993 2. Prevention of Atrocities (SC and ST) Act, 1989 3. Universal Declaration of Human Rights, 1966 4. National Commissions Act,1990 5. Legal Services Authorities Act,1987, Rules in 1995. 6. Criminal Procedure Code,1973, 7. Commission of Inquiry Act No.60 of 1952, 8. National Security Act No.65 of 1980. 9. Article 32,136,141,226 of Constitution of India of 1950. 10. PACE Act of 1984.(UK) 11. ECHR convention, 1949, based on UN Declaration,1948 12. Human Rights Act,1998(UK) 13. India Police Act, 1860 14. Prisoners Act,1900. 15. Freedom of Information Act, 2002(Central Statute) 16. Civil Service(Conduct) rules and manual of office procedure. 17. Official Secrets Act,1923 18. Defence and Internal Security of India Act,1971 19. Public Records Act,1993 20. The Delhi Right to Information Act,2001 21. Government of India Act, 1935 22. Indian Independence Act,1947 23. Partition Act,1947 24. Adaptation of Laws Act,1950 25. Terrorist and Disruptive Activities (Prevention) Act of 1987. 26. Prevention of Terrorism Act,2002 27. North Ireland (Emergency) provisions Act of 1991, 28. The SAARC36 Convention (Suppression of Terrorism) Act, 1993. 29. International Covenant on Civil and Political Rights 1966, 30. Abolition of Sati Act,1850 31. Contempt of Courts Act,1971

36

South Asian Association for Regional Cooperation.

36/39

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

Seattle

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

BY SYED KAMRAN RAZVI

SCHEDULE B SUPREME COURT OF INDIA Sit in Division Benches( at least two Judges) HIGH COURTS OF STATES

SOME TRIBUNALS

(Appellate, Extraordinary, Ordinary Designated courts, Regulatory original, Company Jurisdiction authorities/Commissions, etc. exercisable in the territorial limits of the State.) 1.Some times two or more States has common High Court or Benches in various parts of a State. 2.They sit in Single and Division Benches 3.They are the inspecting judges on District Judges Criminal Courts

Civil Courts

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

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

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

37/39

Civil Judge Court/Small Causes Court

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

Seattle

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

BY SYED KAMRAN RAZVI

END NOTES

38/39

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

Seattle

i

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

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

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

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

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

Limitation of approach in terms of “Miscarriage of Justice” being that there is little to hold him guilty and the Courts have passed Judgements where the Departmental Enquiries are not subjected to judicial scrutiny at all. There is an antique act called the Public Servants (Inquiries) Act, 1850. Government is the final word in the Act. Although the same has been unfettered by creation of Administrative Tribunals. In many cases related to corruption the Supreme Court and various High Courts has delivered judgements which clearly take away the immunity clause (sanction for prosecution) of Public servants. Also has widened the group of people in position to be covered under the definition of Public servants including the legislators, Corporators, under the Prevention of Corruption Act,1988. In one of cases Brij Mohan V.State & Ors.(unreported) , the Delhi High Court completely relied on the DE exonerating a Constable , against whom they have asked registration of FIR in their Judgement. The allegations were of physical assault and false case on four young men by two constables. The allegations were well supported by Photographs and the vigilance report of the Police Headquarters. There were three different Enquiries done by different sections of Delhi Police. Two in favour of the victims one was managed after the orders have been passed. Such is the finality of Departmental enquiry. vii where Delhi High Court has asked Delhi Police to pay 10% of the total damages to be paid by various civic authorities Biggest damage awarded in Article 226. It was case of negligence where fire in cinema house killed some hundred people.