Obstacles to Justice and the Suffering Humanity
I. Constitutional Mandate
Justice, social, economic and political is the constitutional aim proclaimed in the preamble of the Constitution of India which contains the requisite guidelines and provides for the infrastructure for attaining it. The Fundamental Rights guaranteed under the Constitution include prohibition of traffic in human beings and forced labour (Article 23), freedom of conscience and free profession, practice and propagation of religion (Article 25), protection of interests of minorities including their right to establish and administer educational institutions (Article 29 & 30), right to protection of life and personal liberty (Article 21), protection against arrest and detention (Article 22), and right to Constitutional remedies (Article 32). Anyone acquainted with the silent zeal with which the Indian Courts have safeguarded the rights of the people as reflected in the judicial pronouncements will instantly know that the instances of human rights violations that are bound to occur in any social order due to conflicting interests of its components are mere aberrations that get corrected by the sound constitutional mechanism of this vibrant democracy.
II. The International Efforts
Human right violations occur through human beings and human agencies and constitute typical social aberrations. The mechanism of judicial justice is devised in all civilized societies to remedy the wrongs that may be perpetrated through individual, executive, legislative injustices or even injustices caused by judicial system itself. In an orderly society a check on the indiscriminate individual or collective behaviour is essential to prevent breakdown and anarchy. If rule of law is to prevail regulation of conduct violative of human rights becomes an essential aspect of governance of the country. The right to access to justice as contained in the relevant international human rights instruments forms an important basis for strengthening the rule of law through the administration of justice. The importance of ensuring respect for the rule of law and human rights in the administration of justice, particularly in post-conflict situations as a crucial contribution to building peace and justice and ending impunity can hardly be over emphasized. The office of the High Commissioner for Human Rights has done commendable work on development of human rights which includes organizing various activities aimed at enhancing the promotion and protection of human rights in the field of administration of justice within the framework of the United Nations Decade for Human Rights Education, 1995-2004. In the Resolution adopted by the General Assembly in the fifty-fifth session on Agenda item 60 (b) it was resolved to strengthen the capacity of all the member countries to implement the principles and practices of democracy and respect for human rights, including minority rights and "to eliminate the increasing acts of racism and xenophobia in many societies and to promote greater harmony and tolerance in all societies" No effort should be spared domestically or internationally to ensure that all civilian populations that suffer disproportionately the consequences of mob violence, natural disaster and other humanitarian emergencies are rendered every assistance and protection so that they can resume normal life as soon as possible. Judicial institutions have a major role to play in this direction
III. The Approach of Municipal Courts
By Article 51 of the Constitution of India the State is enjoined with a duty, inter-alia, to promote international peace and security, maintain just and honorable relations and foster respect for international law and treaty obligations in dealings of organized peoples with one another. In the absence of contrary legislation, municipal Courts in India are under an obligation, within legitimate limits, to so interpret the municipal statute as to avoid confrontation with the comity of nations or the well established principles of International Law as held by the Supreme Court, (See Gramophone Co. Vs Birendra reported in AIR 1984 SC 667). The provisions of International Conventions / Covenants which elucidate and effectuate the Fundamental Rights guaranteed by the Constitution of India, can be relied upon by Courts in India as facets of those Fundamental Rights and would there fore be enforceable. (See People’s Union for Civil Liberties Vs Union of India, reported in (1997) 3 SCC 433). The Supreme Court and the High Courts in India are obliged to apply international instruments and conventions when there is no inconsistency between them and the corresponding domestic laws, (See Apparel Export Promotion Council Vs A.K.Chopra (1999) 1 SCC 759). If two constructions of the municipal law are possible, the Courts should lean in favour of adopting such construction as would harmonise provisions of the municipal law with the international law or treaty obligations (See ADM V, Shivkant Shukla (1976) 2 SCC 521.)
IV. The Ambit of Judicial Power
The judicial power and independence that the Indian Judiciary enjoys is enviable even in many democratic and developed countries. It is an understanding of highest cultural order that permits judiciary to play its role fearlessly and respect its verdicts in legislative and executive spheres. Laws inconsistent with or in derogation of the fundamental rights are void to the extent of inconsistency and the State is ordained not to make any law which takes away or abridges the Fundamental Rights and any law made in contravention of this provision shall to the extent of contravention be void (Article 13 of the Constitution of India). The Constitution of India expressly confers upon the Courts the power of judicial review. To specifically safeguard the fundamental rights, the Courts are assigned a special role by this provision and are required to determine finally the constitutionality of an impugned statute. The superior Courts have high prerogative power to issue commands to the executive in cases of failure of statutory duty by the executive. The subordinate Courts in a state are kept under the control jurisdiction of the High Court of that State to ensure separation of judiciary and its independence from the executive. Once the Court is satisfied as to the public mischief to be remedied , it would not insist on the locus standi of the petitioners, who may not have any personal interest in the matter.
V. Internal and External Obstructions
There are three outstanding forms of social control i.e. of control of the behaviour of individuals through some sort of pressure and these are: organized religion which can exert pressure by religious teaching and appeal to a religious sense, public opinion or morality which can exert pressure through organizations, and the administration of justice by the State by enforcing the accepted norms of behaviour for orderly conduct and peace. With an easy access to the wide jurisdiction of the Superior Courts and an elaborate system of legal aid to the poor one would think that the genuine grievances resulting from the violations of the fundamental rights should be redressed without any obstacles. There have, however, been both internal and external obstructions that tend to prevent justice from reaching where needed most in certain delicate areas of human relationship.
VI. The Quality of Manpower
Amongst the biggest obstacles to justice is the unseen obstacle of the mind set of the dispensers of justice. Without a revolution of the spirit, the forces which produced the iniquities of the old order continue to be operative, posing a constant threat to the process of reform and regeneration. Judges, at times, function under severe pressure and time constraints. They must therefore be persons equipped with adequate knowledge, understanding and have competence required to resolve complex issues without prejudice. It is difficult to detect when gender bias, religious bias and even racial bias find their way into judicial acts. When the Judge lacks a proper understanding of law to deal with a complex issue he is prone to depend upon his personal leanings as a substitute for law and equity. This situation is compounded by absence of effective control on the judicial con duct by making them accountable. The code of judicial conduct expects judges to uphold the integrity and independence of the judiciary and avoid impropriety and even appearance of impropriety in all his activities and perform the duties of his office impartially and diligently requires enforcement. The problems created by judges who do not understand the law, or irresponsibly handle the matters that they decide or act improperly with prejudice, promote injustice. The remedy for removing this obstacle to justice perhaps lies in handing over the reins of judicial power to persons known for their competence, understanding of law and impartiality. Judicial incompetence and irrationality in decision making process should be detected and dealt with by appropriate judicial reforms aimed at raising the quality of the judicial system.
VII. Perjury
A dirty little secret of the judicial system that no one wants to admit or confront is perjury towards which the system has turned a blind eye. The fact is, perjury occurs in Court cases as a regular feature. People would be shocked if it were truly known how many witnesses lie under oath in courts everyday. Lying under oath undermines the very purpose of recording evidence to search for the truth. There is no systematic study of this malaise that hampers justice both in civil and criminal cases. When under oath, a party or witness is under an obligation to tell truth but if he deliberately deviates or an authority prepares a false statement on oath it is a serious offence and inaction in detecting and dealing with cases of perjury and fabrication of false evidence has resulted in grave prejudice to the outcome of the proceedings with justice as a casualty defeating interests o f the society and encouraging wrongs and crimes. In all cases where the witnesses are proved to be disowning their previous versions recorded by any authority before whom the witness was obliged to tell truth under the law, there should be a compulsory investigation provided under the law to find out whether the previous version was correctly recorded by the Officer or authority concerned and action taken against the defaulters.
VIII. Independence and Impartiality
The mandate on the independence of judges and lawyers was established by the UN Commission on Human Rights in 1994 in response to the increasing frequency of attacks on the independence of judges, lawyers and court Officers and link exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights. The special Rapporteur in the report to the Commission noted that considerable concerns are beginning to be expressed over judicial corruption and acknowledged that problems concerning independence and impartiality of judiciary are not confined to the countries or territories noted in the report. In general the cases and communications summarized in the report, inter alia, referred to the ‘taint of corruption and political influence on the judicial system’. (See Report on United Nations Commission on Human Rights 56th session (20th March to 28th April, 2000) IV Thematic Reports under sub-head ‘Independence of Judges and lawyers’). There should not be any ‘quid pro quo’ element in making or securing judicial appointments amongst those empowered to initiate the process for such appointments. The usefulness of the incumbent should be for the judicial office that he would hold and not for the possible gains of those who have a voice in such appointments. No appointment to a judicial post should be made on any consideration other than the suitability of the incumbent. The efforts to establish a predictable and effective judicial system are imperative. Judicial reform that ensures the attraction of qualified and efficient individuals into the legal system and greater judicial independence will provide a stronger rule of law.
IX. Minority Rights and Violence
(1) The Constitutional guarantees to religious minorities, cultural and educational rights, right against exploitation, right to freedom, right to life and personal liberty, empowerment of the State to make special provisions for women and children and for the advancement of any socially and economically backward classes of citizens or for Scheduled Castes and Scheduled tribes, are the built-in safeguards in the legal system which if properly adhered to are capable of reaching the goal of justice for the sectors of the community which may be vulnerable to violence and violations of their rights.
(2) There is much common in the miseries caused by all human rights violations. The mob attacks whether generated by hate against a particular race or members of a minority community or a class of people, be it politically motivated or caused by issue reactions, leave the same impact of devastations on the victims left behind in helpless agony. While it would be ideal to evolve standards and means to prevent violence directed against the vulnerable sectors of the community, the administration of justice is vitally concerned and responsible for providing adequate relief to the victims and to punish the guilty. The post-violence scenario is not merely a matter of law and order. The State has a special role to play in relief and rehabilitation of people affected by arson, loot and violence and to restore sense of security amongst the affected people. For restoration of trust amongst the affected persons irrespective of the sectors of the communities to which they belong, the foremost requirement is to provide adequate protection against violence and swiftly bring to justice the perpetrators of the crimes irrespective of their connections and affiliations. While some advocate setting up of special courts of inquiry or Inquiry Commissions, it would be appropriate to put the law in motion by swiftly launching the prosecutions, arresting the culprits, collecting evidence and filing charge sheets in the courts empowered to try such offenders. There is no need to first have elaborate inquiries and let time pass allowing for maneuverings to take place and then launch belated prosecutions after gathering conflicting versions that are often doctored.
(3) There are wide ramifications of mob violence. During mob frenzies there are horrendous deeds of murder, besieging of houses, acts of incendiaries and other scenes of violence in which political witches revel. The wantonness of the inciters and those who thrive on such strife amongst the members of the communities must be detected and severely dealt with to end the vicious circle that is brought about by such criminals to destroy peace and amity.
X. Racism, Religious and Political Bigotry
(1) Grave concerns have been expressed at certain manifestations of racism, religious and political bigotry, racial discrimination and related intolerance and all civilized nations in one voice have condemned the spurt in conflicts arising from the negative aspects of human conduct. Governments attempt at normalization amongst the various rival parties to such conflicts through democratic norms but the democratic paradox is that even parties which disavow the democratic principles of shunning discriminations on the grounds of caste, creed or religion, seek accession to power through democratic channels by manifestos that discriminate parochial ideologies. The propaganda that divides the community is aimed at gaining political mileage for coming to power, but the monster that is created in the process would destroy everything that is just and proper. The General Assembly in its resolution 54/153 of 17 December, 1999 concerning measures to combat contemporary forms of racism, racial discrimination, xenophobia and related intolerance, expressed its profound concern about and unequivocal condemnation of all racist violence, including related acts of random and indiscriminate violence, propaganda, activities and organizations based on doctrines of superiority of one race or group of persons that attempt to justify or promote racism and racial discrimination in any form.
(2) At the Regional Seminar for Central and Eastern European States, which took place in Warsaw from 5 to 7 July, 2000 in preparation for the World Conference against Racism, experts focused on the protection of minorities and strengthening human rights capacity at national level? The High Commissioner for Human Rights while opening the Seminar said: "The United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and regional instruments of the OSCE and Council of Europe, have sought to under-gird, the legal protection of minorities and vulnerable groups. Their faithful implementation in letter and in spirit, remains a key challenge before us." The protection of minority rights and prevention of ethnic conflicts was also discussed at the October 2000 Regional Seminar of Experts for Africa, held in Addis Ababa, Ethiopia. The seminar encouraged full participation in political life for all, non-discriminatory treatment of all regions and ethnic groups within a country and respect for the rights of minorities. Implementation of the policies for minorities should be done in a manner and with the purpose of bringing about a long-term stability and not just to appease the international community. Providing for the safeguards of the interests of minorities should not just be a strategy for pandering to special interests groups and appearing to be politically correct. There should be a genuine commitment on the part of the State functionaries including the judicial system to protect the identity of national minorities and create conditions for the promotion of that identity.
(3) The General Assembly while considering the report of the Special Rapporteur noted the case of Amadon Diallo, a young Guinean immigrant, who on 4 February 1999 had died after being shot 41 times by four New York City policemen. The special Rapporteur noted that four policemen charged with this murder had been acquitted. While refraining from comment on the verdict he observed that " the Diallo case is one of more than a dozen incidents, in the past five years, in which black, Hispanic or other minorities have been shot in highly questionable and disputed circumstances", and cited the Presidential comment that Amadon Diallo would not have died had he been living in a white neighbourhood. [See A/55/304 Fifty-fifth sessions ‘Elimination of racism and racial discrimination, "Report of Special Rapporteur of the Commission on Human Rights on contemporary forms of racism, racial discrimination xenophobia and related intolerance. This disturbing instance of gross violation of human rights is typical of happenings during the period of violent disturbances that occur because of religious and racial intolerance and the miseries caused by the fellowmen are compounded by the guardians of law and order. Then where do the sufferers look, to get succor and speedy justice. This brings into sharp focus the need to remove obstructions in the way of the victims of intolerance and highhandedness in securing judicial justice.
XI. Police Brutalities
The superior Courts in India are armed with powers strong enough to direct the executive for failing in its duties to discharge them. On being seized of the complaint about deliberate failures and lapses of the executive and the police force it controls, can be dealt with, by issuing appropriate directions to the authorities to take action against the culprits by arrest and prosecution and to provide security to the victims or potential victims of the frenzy. In cases of police brutality and atrocities committed in utter disregard and in all breaches of human rights and constitutional guarantees, the Supreme Court of India is committed to uphold human rights even as a part of long standing heritage and as enshrined in the Constitutional Law of India. Courts have frequently dealt with cases of brutality practiced by overzealous Police Officers who resort to inhuman and barbaric ways of treating the suspects while collecting evidence and in dealing with instances of custodial deaths caused during interrogations and other investigations. The Supreme Court of India on several occasions has awarded exemplary compensation to the victims at the hands of the Police Officials (See Kartar Singh Vs State of Punjab (1994) 3 SCC 569) . No one should be subjected to physical violence of person or torture of any kind which undermines the faith of the community in the efficacy of criminal justice system. In a case where the Supreme Court made a reference to the National Human Rights Commission to have the matter of unceremonious disposal of thousands of dead bodies by the Police examined and jurisdiction of the Commission was questioned with reference to its statutory obligations and period of limitation for enquiry as provided under Section 36(2) of the Protection of Human Rights Act, 1993, the Supreme Court held that the Commission is a body sui juris created under the Act made by Parliament for examining and investigating the questions and complaints relating to violation of human rights, as also the negligence on the part of any public servant in preventing such violations. It was held that when the Supreme Court, in exercise of the jurisdiction under Article 32 of the Constitution, entrusted the Commission with the task of getting the matter examined, the Commission in doing so would function pursuant to the directions of the Supreme Court which were binding on all authorities in India and in deciding the matters so referred the Commission had a free hand and was not circumscribed by any conditions. The jurisdiction exercised by the Commission at the behest of the Supreme Court was of a special nature not covered by any enactment or law. The bar contained in section 36(2) which prescribed a period of limitation was held not to apply in such a situation. (See Paramjit Kaur Vs State of Punjab (1999)2 SCC 131).
XII. Immunity as a Defence
(1) The above approach of the Supreme Court assumes greater significance in context of the defence of immunity often put up by the Police Officers or the Government. No one can demand absolute immunity or claim unquestionable right and unlimited powers that disregard basic human rights. In context of the provisions of sections 159 and 160 of the Bombay Police Act, 1951, affording an absolute immunity to a public servant from any penalty or liability to pay damages in respect of any "act done in good faith" in pursuance of or intended in pursuance of "any duty imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any rule, order or direction made or given thereunder," it has been held by the Apex Court that such absolute immunity is not afforded in respect of any offence or wrong alleged to have been done by a public servant, if it was done under colour or in access of any such duty or authority (see K.K.Patel Vs State of Gujarat (2000) 6SCC 195). It may be necessary in the wake of terrorists activities, communal riots or mob violence to deal with the situation firmly which may require sufficient empowerment of the Police Officers and paramilitary forces so as not to wait till they are shot at, but administrative liquidation is certainly not a course open to them. Thus in a case where two persons along with some others were just apprehended from a hut, taken to a long distance away and shot dead there by the police, the Supreme Court of India held that this type of activity cannot be countenanced by the Courts even in the case of disturbed areas (People’s Union for Civil Liberties Vs Union of India (1997) 3 SCC 433). The defence of sovereign immunity is inapplicable, and alien to the concept of guarantee of fundamental rights. Immunity should no t be allowed to remain an obstacle to justice in cases of police excesses and atrocities. Not only is it within Court’s power to overcome such obstacles but the Court also has an obligation to grant relief to the victim or the heir of the victim by directing the State to pay suitable compensation for the damage cause by its officers by violating the fundamental rights of the citizen. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts in exercise of their writ jurisdiction have moulded the relief by granting compensation to the victims. In doing so the Courts take into account not only the interest of the parties but also the interests of the public as a whole with a view to ensure that public bodies or officers do not act unlawfully and do perform their duties properly. (see Nilabati Behera Vs State of Orissa (1993) 2 SCC 746).
(2) The practice and expectation of impunity for violations of international human rights or humanitarian law encourage such violations and are among the fundamental obstacles to the observance of human rights and law. Exposing violations of human rights, holding perpetrators and their accomplices and collaborators accountable, obtaining justice for victims and restoring their dignity, are integral to the promotion and implementation of all human rights and fundamental freedoms and to prevent future violations. Accountability of perpetrators of gross human rights violations is one of the central elements of any effective remedy for the victims and a key factor in ensuring a fair and equitable justice system and ultimately, reconciliation and stability within a State (see under Title Impunity No. 2000/68 (L.85/Rev.1) United Nations Commission on Human Rights, 56th Session).
XIII. The Role of Media and Internet
(1) The phenomenon of spreading communal or class hatred through the media is growing alarmingly due to lack of international regulation. There are several internet sites that continue to spread their messages of hatred with complete impunity. The potency of the media and internet is as much for good as for evil. If some messages can stir up passion and ill-will, equally, a strong beneficial impression can be created by messages of tolerance and mutual respect that transcend the barriers of religion. The internet service providers can be made criminally liable if the service is allowed to be used for spreading racial or religious hatred and access of such sites to the national territories can be cut off. The Government should prosecute propaganda or incitement to hatred and intolerance that might instigate acts of communal violence. On the other hand efforts to combat ordinary and everyday racial and religious discriminations can be reinforced by using the tolerant media and internet and introducing free access to authorities to give voice to victims. In France a free telephone number, "green number 114 against discrimination" has been in service since 16th May 2000, under the auspices of the study group on discrimination. The initiative has been highly successful and revealing of the extent of ordinary discrimination and nearly 2000 calls were received per day, as reported in Le Monde on 10th August, 2000, p.5.
(2) In India the rule of locus standi is liberalized making it possible to effectively police the corridors of power and prevent violations of law. Where a legal wrong or legal injury is caused or threatened to be caused to a person or a determinate class of persons by reason of violation of any constitutional right and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially and economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain a petition seeking appropriate direction, order or writ in the High Court under Article 226 of the Constitution of India and in case of breach of any fundamental right of such person or class of persons, in the Supreme Court under Article 32 seeking judicial redress for the legal wrong or injury caused. The Court would respond even to a letter addressed by an individual acting pro bono publico, despite the existence of formal rules with regard to presentation of petitions under Article 32. Such new methods and strategies are meant for the purpose of providing access to justice to large masses who are denied their basic human rights and to whom freedom and liberty have no meaning. The High Courts of the Country are also expected to adopt such pro-active and goal oriented approach (see S.P.Gupta Vs Union of India AIR 1982 SC 149) This is an important step for approaching the Court to draw its attention to the violations of human rights and for rescuing those who out of fear or extreme poverty and ignorance are unable to comprehend the extent of their rights and the redressal that they can legitimately get.
XIV. Public Prosecutors
The role of public prosecutors becomes critical when a spate of prosecutions is launched during communal and other riots. Prosecution of an offender for a serious offence is primarily the responsibility of the executive and withdrawal from the prosecution is an executive function of the Public Prosecutor who is not permitted to surrender that discretion to someone else. A prosecutor may decline to prosecution or do a poor job in presenting a case. There are many reasons why prosecutors may choose not to pursue a case against an allegedly brutal Police Officer. The traditionally close association between the Public Prosecutors and Police Officers who usually work together prosecuting Criminals, militates against vigorous pursuit of cases of police excesses. Special procedural protections for public officials including Police Officers accused of criminal conduct make criminal indictment difficult. These factors embolden Officers committing human rights violations as they have little reason to fear successful prosecution. There should therefore be created a special prosecutor’s office to handle criminal prosecutions of Officers accused of human rights violations including cases of brutality and corruption. Barriers to the filing of complaints should be removed and under no circumstances should the intake officer attempt to dissuade or intimidate the complainants. Any Officer who attempts to dissuade a complainant from filing a complaint should be appropriately punished. Governments and law enforcement agencies should ensure that superior Officers are held responsible if they know, or should have known, that law enforcement Officials under their command are resorting, or have resorted to the unlawful use of force and firearms, and they did not take all measures at their command to prevent, suppress or report such use. [see UN Basic Principles on the use of Force and Firearms by Law Enforcement Officials which call for accountability for superior Officers - Principle 24 UN DOC A/CONE.144/28/Rev./(1990)]
XV. Poverty
Extreme poverty is a denial of all human rights. Within the framework of the United Nations Decade for the Eradication of Poverty (1997-2006) the General Assembly has set itself two distinct goals : to eradicate absolute poverty and to reduce substantially overall poverty in the world (Resolution 53/198). An individual in a situation of poverty still has a possibility of exercising certain rights, whereas extreme poverty implies a total lack of resources and means of social integration (see report of A..M.Lizin, Independent Expert E/CN.4/2000/52, 25th February 2000 para 12). The extremely poor cannot express themselves or play any role in the communities in which they live. They lack resources for livelihood and have no means to approach or even reach the Court. Having no means to bear any expense for transport such person will be forced to walk to reach the Court if summoned. The first priority would therefore be to combat extreme poverty that is the biggest obstacle to justice. The violent clashes in the Communities, armed conflicts and natural disasters have devastating effects that may generate extreme poverty. Extreme poverty continues to spread in all countries of the world. The gulf between the rich and those living in dire poverty is widening. The rich may adopt a "fortress mentality" to defend their prosperity against perceived external threats and exploit migrants and displaced persons who provide cheap labour. The simmering discontentment can explode into a riotous situation. The fortress mentality is assuming global dimensions and the international community faces a fundamental choice "either we envisage a world of two vastly different parts, one with ever increasing wealth and technological sophistication, the other a place where people live in abject poverty; or we embrace the idea that we are all in this together as member s of one human family, with entitlements to economic, social and cultural rights which need to be progressively implemented. This embracing option regards diversity as strength, not weakness, and recognizes the great social, cultural, and yes, economic benefits of a multicultural society. It is a vision of a world where people of all colours, creeds and standing live together in harmony and peace" (Address by Mary Robinson, United Nations High Commissioner for Human Rights and Secretary General of the World Conference against Racism - on 1st May 2000.)
The poor lack the information about the programs of ameliorating their plight. Every law enacted, particularly welfare legislation for the benefit of the poor must be implemented in the proper spirit for achieving the noble object for which such law is made. It becomes the duty of the Court to ensure that rehabilitation measures contained in the legislative provisions are properly implemented. The fundamental rights to life and against exploitation cast a duty on the Government to suitably rehabilitate bonded labourers freed but living in a State of abject poverty (see Neeraja Chaudhary Vs State of MP (1984) 3 SCC 243) . Social backwardness is, on ultimate analysis, the result of poverty to a very large extent. Poverty demands affirmative action and its eradication is a Constitutional mandate. The Supreme Court of India has observed that in final analysis, poverty which is the ultimate result of inequities and which is the immediate cause and effect of backwardness has to be eradicated not merely by reservation policy, but by free medical aid, free elementary education, scholarships for higher education and other financial support, free housing, self-employment and settlement schemes, effective implementation of land reforms, strict and impartial operation of law-enforcing machinery .… free water supply…. and other ameliorative measures particularly in the areas densely populated by backward classes of Citizens. (see Indra Sawhney Vs Union of India 1992 supp (3) SCC 217). Free legal assistance at State cost is considered to be a fundamental right of a person accused of an offence which may jeopardize his life or personal liberty and this fundamental right is held to be implicit in the requirement of reasonable, fair and just procedure. The exercise of this fundamental right does not depend upon the accused applying for legal aid and even if the accused failed to apply he is entitled to legal aid. The Supreme Court of India has held that it would be the mockery of the legal aid programme if it were to be left to the poor, ignorant and illiterate accused to ask for free legal services (see Suk Das Vs Union Territory of Arunachal Pradesh, (1986) 2 SCC 401) . Article 39A of the Constitution of India provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that the opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The Parliament has framed Legal Services Authorities Act, 1987 to, inter alia, constitute legal services authorities to provide free and competent legal services to the weaker sectors of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The elaborate provisions of the Act have been operating successfully to obviate obstacles in the way of the poor by providing them free and competent access to justice.
XVI. Internally Displaced Persons
(1) Internal displacement of persons may be caused due to various reasons. It may be caused by natural calamities like earthquakes, submergence or mass exodus from one locality or area to the other, due to violence or other compulsions. The guiding principles on Internal Displacement (see E/CN.4/1998/53/Add.2) set out the rights and guarantees under the international law relevant to the protection of internally displaced persons in all phases of displacement. The principles affirm that the responsibilities for ensuring the protection of internally displaced persons rest primarily with the national authorities. Proper information about internally displaced persons can help in providing emergency relief promptly and to speed up efforts to assist and protect them. The internally displaced persons have to be rehabilitated. Rehabilitation is not mere providing of shelter. The real purpose of rehabilitation can be achieved only if those who are sought to be rehabilitated are provided with shelter, food and other necessary amenities of life. Thus allotment of land to provide a hospital for the disabled and for the crippled children of displaced persons was held by the Supreme Court of India to squarely come within the concept of the idea of ‘rehabilitation’ and consequently settlement of the refugees, (see Collector of 24 Paragnas Vs Lalit Mohan Mullick, (1986) 2 SCC 138).
(2) Trends in human population movements due to industrialization, lack of protection in workplace and passions whipped up by the political or religious leaders can result in domestic violence which has to be guarded against by regulation of public health, housing, employment, and education, and adequate security and above all access to justice. The fact that Court can take innovative steps to speed up rehabilitation of citizens displaced due to natural calamity of a devastating earthquake that erased all buildings to ground in many towns and villages of Kachchh is evident from a recent decision of the High Court of Gujarat in which the Court holding that the donations and contributions in cash and kind received for helping the earthquake victims were held in trust by the Government and that the funds were to be subject to periodic audit to ensure proper utilization, ordered the District Judge cum District Chairman of Legal Services Authority to act as Ombudsman in the work of distribution of relief materials in cash and kind to the quake victims and to redress their grievances and ensure that the citizens were not maltreated. (see Bipinchandra J. Divan & ors. Vs State of Gujarat & ors. , 2001 (2) GLR 1395)
XVII. Conclusions
The concern of the International Community to deal with the obstacles to access to justice is justified because the oppressed and the wronged who are denied justice may resort to revolt and violence or helplessly face extinction. The primary concern of the nations should be to remove the internal obstacles to access to justice which lie under the cover of power in the hidden forms of lack of understanding the law, inability to deal with cases, prejudices, amenability to political and other influences, the taint of corruption and insensitivity to human sufferings. The other obstructions hampering access to justice in the delicate areas of human relationship and peaceful co-existence which disturb the very fabric of a multicultural society are racial and religious intolerance, mob violence, extreme poverty, flaws in the legal system, propaganda of hatred, Police brutalities, and they call for a concerted effort of an enlightened judicial system and the governance that interest of all the citizens to its heart without searching for cleavages providing ropeways for journey to power. The neglect in removing obstacles to access to justice is fraught with grave dangers that may perpetuate strife and miseries thwart all progress and encourage mercenary activities giving rise to criminal acts of a terrorist nature. The solutions are there waiting for the will of the State functionaries to bring peace, harmony and prosperity.
*****************
"Loved reading this piece by MK Mohanan?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
Tags :Constitutional Law
