Functioning of Human Rights Court

NATIONAL JUDICIAL ACADEMY

BHOPAL, 17.01.10

B.Mohan, Advocate,

No.122, Gurunathan Street,

Bhavani – 638301

Erode (Dt) Tamil Nadu

+91 9842725707

comrademohan@gmail.com

CIVIL LIBERTIES AND HUMAN RIGHTS VIOLATIONS

Respected Hon’ble Judges and participants of this session, let me at the outset, thank the organizers of this session for having invited me to share my views and address on human rights issues especially on civil liberties and human rights violations in this field from the point of a practicing advocate from rural side.

             When I was suddenly invited to attend this Session, I was reluctant to consent due my preoccupation and shortage of time to prepare for the subject with written papers. But Mr. Siddarth insisted me to attend at any cost, as I am a practicing advocate at Subordinate Courts especially in Tamil Nadu District Courts. That is why I accepted this invitation as I am able to subscribe the decision of the organizers of this Session. 

            India is a great country with ancient civilization and tradition followed the Human rights as a valuable rights. There is an anecdote in Tamil scripted by  poet from 1st century viz., “Kaliyan Poonguntrnaar” called “Hear all that all are our place” which emphasis the universality of brotherhood.

           Now after 62 years of Universal Declaration of Human Rights and several International Treaties and Protocol and 60 years of Independence, human rights idea has to be read an outcry against the injustices and violations of Law enforcing machineries. Anyone who prefers the rule of law to the rule of the stronger will find the necessary criteria to go along with in the human Rights Declaration. Moreover, they will find that rights don’t just set universal standards but are also a practical guide-line to cope with major global challenges: the preservation of peace and security, development, development, the conservation of the environment and dignity of the individual and the society.

      Of course, the human rights are legal rights, but they inhere in the very nature of the human person. They are not necessarily rights that have only become rights because of legal recognition. They embody only values; they are inherent in the Nature of the human person. As put it by the former Secretary General of UNO, that the purpose of human rights is to provide both a common language of humanity and a common standard of achievement for humanity in keeping human life human, Human rights exist to address and to redress inhuman wrongs. Human rights exists in order to ensure and protect and reserve that most precious of all human rights, to be the human, of which of course the right to be woman be an integral part.

                It is well to remember the International Criminal law developed to the extent of formation international Criminal Court to deal with the crimes against humanities, genocides and war crimes. It is clear that state responsibility for egregious crimes of their agents will continue to be one way, albeit limited, of breaking the cycle of impunity and deterring their future repetition. Prosecution and punishment of individual perpetrators, however, is indispensable to achieve the accountability.

               In this context, I would remind the participants in respect of the Human rights Committee is the treaty organ of the International Covenant and of the whole UN machinery for the protection of rights, the HRC has proven by far the most effective and respected over the years. The Subordinate Courts should be alive to the International law and Humanariatan law and the letter and spirit of the Indian Constitution especially with the preamble and fundamental rights enshrined in the Constitution by which they can dispense justice to the victims of human right violations.

       With this back ground, I would like to place my experience in the field of violation of human rights cases I dealt in the past as an advocate.

                 Human Rights Act, Human Rights Commissions and implementation of Act through the Courts

                   The Human Rights Act came to force in the year in the year 1993. The Human rights courts were constituted in important district designating the Chief Judicial Magistrate Courts apart from the establishment of Statutory body of National and State Human Right commissions at the National and State levels throughout the country. But unfortunately, those Courts designated as Human Rights Court did not function for pretty long time. The reason is known to all that the Rules of practice for the Human rights courts were not formulated dealing  about procedures for taking up complaints from individuals, penal provision for punishing the guilty persons. Since we are working among tribal  of the western Ghats came across the problems of the inhuman torture of tribals  and hill area people  at the Joint Task Forces of Tamil nadu and Karnataka in the nab of nabbing Forest brigand in the year 1992 to 1996. Number of incidents of illegal detentions in camps in the remote forest areas, encounter deaths, tortures in the camps of the men and woman folks and were brought to the notice of the activists and advocates. Since the perpetrators of human right violations are law enforcing machineries a namely Police, the Local police or district administration have not taken any action whenever the matter were brought to their knowledge. All representations fell in to deaf ears. At this Juncture, in the Talawadi Hills of Sathiamangalam Taluk of Tamil nadu, Number of tribals were detained in the camps for many days and tortured. When they were let of, they came to the notice of Tamil nadu Palzhankudi Makkal Sangam (Tamilnadu Tribal people Association representation before the District Collector, Erode who promised to look in to the matter, but in vein. Therefore, those people returned back to their hamlets where they were taken to hill side police station and spinned in the false case of murder of police constable in an encounter of police and Forest brigand. The tribals who were detained in the camps and put in to torture were reported to the higher authorities. Under these circumstances, private complainant was filed under Human Rights Act before Human Rights Court namely at Chief Judicial Magistrate, Erode, Tamilnadu who returned the complainant for want of rules of practice and penal provision for punishing the accused. This happened in the year1995 on which the complaint was sent to Retied Supreme Court Judge and great legend of protector human rights by his historical and land mark judgments in the Supreme Court, who in turn sent the complainant to Chief Justice of Madras High court. The then CJI of Madras High Court ordered to take up the complaint as a suo-moto revision under article 227 of the Constitution and Division bench consisting Justice Janarthanam and Karpavinayagam was constituted by which the land mark judgment  was pronounced to follow the Criminal Procedure Code till the comprehensive Rules are to be framed by the Govt.

                         It is known to all that the judgment paved the way for the functioning of all Human Right s Court throughout the Country. But the fact remains that the purpose of formations of Human rights Courts were not achieved as still the comprehensive Rules of Practice were not framed after the verdict passed in the year 1996 by the Madras High Court and even advocates and judges show scant regard for the human rights cases being filed for inherent weaknesses the administration of justice is concerned.

            First of all the difficulty arose in filing the complaint before the Sessions Court. Previously, cognizance was taken straightaway by the Sessions Court u/s 193 Cr.P.C. later it was laid down by the apex Court and High Courts that committal proceedings should be followed as far as the Human Rights cases are concerned.  There are lots of practical problems for victims of the Human rights violations to get justice against the perpetrators of violators as the offenders are uniformed people wielding all sorts of influence.

        From the experience I had so far, the procedures for taking up the complainant should be made easier. Even when the suo-moto revision was being heard by the Hon’ble High Court, Madras, It was submitted by the Learned Senior Counsel K.G.Kannbiran, that once the Human rights Protection act was passed with a necessity with formation of Human rights act and Human rights commission, then the corollary is that the sanction for prosecution under section 197 Cr.P.C is impliedly repealed. Due to this tedious procedure, the poor victim is unable to fight in the court of law since it is a long drawn battle. There must be some restriction to file cases against public authorities in the name of Human rights violations, to avoid frivolous litigations. There must be loud thinking and open debate before amendment in new context emerging that nobody is above the law and are accountable to the people so that the abuse of power and violations of human rights can be prevented.

         The State is the custodian of law and protector of interest of people especially the weaker sections of the society namely the Dalits, Tribes.  Women, children, minorities and working people who produce wealth by their labor. These sections are victims of human rights violations at the hands of vested interest, state terrorism and by law enforcing agency.

Even though the old Act was repealed and new Prevention of Atrocities against SC and ST was passed, still Dalits have not achieved the expected status in the social, cultural economic sphere except in some Government services. There is no considerable improvement and empowerment even after 6 decades of Independence due to Globalization, Liberalization and Privatization.

The education has become costlier affair for the common man eventhough the parliament has enacted fundamental right. The human right education is a must and education is more prerequisite as a human right.

Number of legislations were brought to ventilate the grievances of the women and gender bias who constitute half of the population but, they are deprived still their basic right to access to those rights enshrined in the Constitution. The Media and press mostly depict the women as commercial commodity to sell their product.

Dalits are deprived of their lands. When the state itself acquired about one and half acres of land for Bauxite Company in the tribal area of Orissa, why not for the tribal who has been living for centuries in the hills and forest areas, are provided with 2 acre of land. To prevent deforestation and to have natural forest cover, Adivasis and forest living dwellers should be empowered as it is a traditional right of tribes and forest dwellers to be a part of the forest. Eventhough the recent enactment conferring the right of tribes to have residence and livelihood in the forest living for centuries, the question of implementation is at stake. Therefore the tribes naturally rise against State even with arms for which Maoist can’t be blamed.    What is happening in Chhattisgarh is an outstanding example as to how to tackle the problems of the people. Instead of addressing to the root cause of problems faced by the people, the state machinery stepped in to suppressing voices of democratic elements. That is what happened When Dr. Binak Sen raised the violation of Human rights of the tribes, he has been jailed and detained for ayear without any reasonable grounds under anti terrorist acts. At the same time, counter violent organizations like Salwar- judum, of upper caste movements are allowed to go scot-free. Here in Tamil and Karnataka, in the name of nabbing Veerappan, the Joint Special Task forces of Tamilnadu and Karnataka committed so many atrocities on the tribes and hill living people which we traced and represented right from the beginning of 1992 onwards which ultimately resulted in the appointment of Justice Sadasiva- Narasimman Panel which held detailed enquiry from 1999 onwards and filed the report in the year 2004 and NHRC accepted the report directed the State governments to disburse interim relief to the victims. The Justice Sadasiva panel categorically exposed on the basis of post mortem reports numbering about 60 more deaths in so called fake encounters wherein it has been found that the gun shot injuries were found either on the chest or head with shot range. It is very unfortunate that hundreds of thousands of victims at the hands of Special Task Force (STF) from 1993 to 1996 were not heard by the commission on the score that the scope of the commission is limited. But among the victims examined by the commission, 89 people were found to be victims of excesses. This is somewhat remarkable findings since independence to the effect that the STF of both the governments of Tamilnadu and Karnataka committed blatant violation of human rights of innocent tribes and forest dwellers. A mere disbursement of interim compensation is not suffice. Whereas, the commission itself observed to find out the officers who are responsible for the violations of human rights by separate investigation the concerned governments, so as to bring them to the justice. On the other hand, the victims of the atrocities committed by the STF have not been rehabilitated. Therefore the plight of the victims are very much pathetic. The TADA court in Mysore, while acquitting number of accused and convicting 4 persons for life sentences out of 121 persons foisted in the forest brigand Veerapan related cases occurred in the year 1992, observed that “these accused can’t be branded as associates of Veerappan. Whereas, the vulnerable conditions of the tribes and forest dwellers without enjoying the welfare measures of the governments. Where forced help the anti social elements in a given situations. The atrocities committed in the so called camps of the STF are alarming and unprecedented in the history of India after independence. The victims who were taken to New Delhi and knocked the doors of the NHRC in 2005 for release of the report of the Sadasiva Commission were physically examined by the Chairman of the NHRC, Justice A.S.Anand, Former Chief Justice of India and Justice Sivaraj Patil and other members. I feel that this is the measuring yardsticks for application of human rights laws in practice. If at all the voices of those people were not represented continuously by the joint actions of human right activist and group contentiously, the stark realities could not have come out to the lime light. Unless and until activists in the field of human right including advocates voice the voiceless people, the Acts and Commissions are only on papers. It is pertinent to note that the Human Right Act prohibits any complaint filed beyond the period of one year which is found to be a barricade to complaint before the commission as far as individual complainants are concerned. When gross and mass violations of human rights are reported, somehow or other the matter will be exposed. But not in the case of individual case.

I make it clear that we had taken separate steps to file a private complaint under HR Act even for directions that could be granted by High Court in writ proceedings, side by side, the violations of atrocities committed by STF before the NHRC and the Government, therefore we were successful in getting a landmark Judgement on the intervention of Justice V.R.Krishna Iyer. (1997 MLJ (Cri) 655 Madras – Tamilnadu Pazhankudi Makkal Sangam –Vs- State of Tamilnadu, Crl.R.C.No.868 of 1996). The difference between Human Rights Commission and Human Rights Court, the human rights offences defined in S.2 (d) of HR Act, 1993, procedures to be followed in HR Court adopting Cr.P.C. as rules of practice and Evidence Act have been dealt in detailed in the said judgment. The Division Bench framed 25 points and answered for all of course some of the points for the victims in 223 pages of judgment. This is landmark judgment in the annals of Indian Judiciary in protection and promotion of human rights.     

        Eventhough the judgment of the Madras High Court paved the way functioning of the Human Rights Courts in India, the ultimate remedy has not been given as the return of complaint was upheld by the high court.

The approach of the subordinate judiciary in dealing with the cases of human right violation of the Dalits, tribes and offences against police is very orthodox and not up to the changing needs of the society. It is to be emphasized that many of the subordinate courts are not alive to the letter and sprits of the constitution especially to the preamble and Part III and IV of the Constitution which are conscience of the Constitution.

As far as, arrest, illegal detention, custodial torture are concerned, eventhough the Apex Court and high Court in number of cases laid dictum including in Jogindar Kumar –Vs- State of UP - AIR 1994 SC 1349 and in the D.K.Basu case AIR 1997 SC 3017, the mandatory provisions of S.54 of the Cr.P.C has not been complied. In number of cases of this nature, accused are produced during night time in their homes wherein accused where unable to place their objections voluntarily as to any ill treatment in the hands of police wherefore during trial the accused were unable to prove the illegal detention and ill-treatment that resulted in failure on the part of the victims to prove the violations of the human rights in illegal arrest and torture at the hands of the police.          

             To prevent the abuse of power by the police, India should amend the Indian penal code to the effect that the torture is also an offence as the Geneva Convention of UN on Human Rights passed unanimous resolution.

            So also, appropriate amendment has to be made in the evidence Act to draw presumption the accused that accuse has to discharge the burden of proof as far as cases relating to human right violation.   

            The central government immediately should frame rules for the HR Act in order to avoid difficulties in filing complaints, taking cognizance and awarding sentences. There should be suitable provisions for awarding compensations to the victims.

            It is most essentials and imperative to have a independent machinery to protect the witnesses till the end of trial. The recent Ruchika case as against former Haryana DGP Rathore is an outstanding example for the gross injustice caused on the victim’s family in proving case before the Court of Law.

            Finally the violation of human rights can be curbed not only by a state machinery or judicial pronouncement but create a human right culture by creating a egalitarian society where all are equal before law having equal opportunities in socio, political, economic and cultural life. To put it other words, the goal of the constitution is accomplished by fulfilling the fundamental rights enshrined in constitution to all.

            I conclude my address with the concluding speech of Dr. B.R.Ambedkar in the Constituent Assembly that “…. there is complete absence of two things in Indian society. One of these is equality.  On the social plan, we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January, 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction by evolving society of equality in all sphere of life in which independent judiciary will play a dynamite role in dealing with human rights violations with the human right perspective.

Once again I thank one and all for having patiently lent your ears views and shared for my and shared precious moment with you and National Judicial Academy.