Updated: Nov 9, 2020
In today’s arena, human rights violations are very common to see, to hear and therefore the awareness among individuals pertaining with their rights which are humanly recognized has emerged as a potential discourse as far as development among the citizens are concerned. And thus, it becomes a very responsive role of Judiciary that it should come into the action and perform its supportive role for pronouncement up of the judgments regarding human rights into reality.
The Indian system of protection of Human Right rests largely on the Indian constitution, where they are guaranteed as Fundamental Rights and Directive Principles of State Policy and other legislations, through the judiciary and commissions acting as a supervisory body. The Human Rights enforcement machinery in India may be broadly divided into four categories, which are as follows:
I. Human Rights Enforcement Machinery under the constitution of India:
(a) The Supreme Court of India
(b) High Courts in India
II. Human Rights Enforcement Machinery under the protection of Human
Rights Act, 1993:
(a) The National Human Rights Commission
(b) The State Human Rights Commissions
(c) The Human Rights Courts in Districts
III. Other Specific National Commissions for the promotion and protection of
Human Rights in India:
(a) The National Commission for Women
(b) The National Commission for Children
(c) The National Commission for Minorities
(d) The National Commission for Scheduled Castes
(e) The National Commission for Scheduled Tribes
(i) The National Commission for Backward classes.
IV. The Non-Governmental Organisations for the promotion and protection of
Protection of Human Rights Act, 1993
Respect for Human Rights is the hallmark of a civilised society. A civilised Nation cannot ignore the violations of the Human Rights of its people. The PHRA, 1993 sets out the legal framework of the (1) National Human Rights Commission (2) The State Human Rights Commissions (3) Human Rights Courts. PHRA, 1993 states that the constitutions of these institutions are for the better protection of Human Rights and for matters incidental thereto. However, the PHRA 1993 has been amended in the year 2006 for the effective enforcement of Human Rights.
One of the objects of the Protection of Human Rights Act, 1993 (here after referred to as PHRA, 1993) as stated in the preamble of the Act, is the establishment of human rights courts at district level. The creation of Human Rights Courts at the district level has a great potential to protect and realize human rights at the grassroots. Strengthening of the judiciary is much required in the context of human rights.
The Act provides that the state Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Sessions to be a Human Rights Court to try the said offences. For every Human Rights court, the state government in accordance with Section 31 of the Act shall appoint a public prosecutor or an advocate who has been in practice as an advocate for not less than seven years for the purpose of conducting cases in the Human Rights Courts. Such a person shall be called a special public prosecutor.
Shortcomings within the System and Evidence thereto
Astonishingly, it is not mandatory for the States to create Human Rights courts in each and every district as Section 30 of the Act expressly uses the words the State Government “may” set up the courts. As a result of this only a few states, namely Andhra Pradesh, Assam, Sikkim, Tamil Nadu, Uttar Pradesh, Madhya Pradesh, Meghalaya, Himachal Pradesh, Goa and Tripura have established Human Right Courts. Tamil Nadu and Assam have constituted Human Rights courts in Chennai and Guwahati respectively; Section 30 of the Act, which provides for establishment of District Human Rights courts does not lay down the jurisdiction of such courts. Additionally, it does not lay down as to what procedure shall be followed by such courts. This ambiguity creates problems when the cases for alleged violation of Human Rights are actually conducted in such courts.
Recommendationsrelating to Human Rights courts by the National Human Rights Commission (hereinafter referred to as NHRC) -
NHRC Annual Report 1997 – 1998: Section 30 of the Protection of Human Rights Act, 1993 envisages the notification of HRCs for the purpose of providing speedy trial of offences arising out of the violation of human rights. While a number of States have notified the constitution of HRCs, an ambiguity remains as to the precise nature of the offences that should be tried in such courts and other details regarding conduct of their business
NHRC Annual Report 1998 – 99: Draws attention to the ambiguity as to the precise nature of offences that could be tried and the procedural issues governing the conduct of the business in the HRCs as envisaged in Sec.30 of the PHR Act.The Commission recognizes that substantive amendments to Sec.30 of the PHR Act, 1993 and other laws are necessary in order to enable the courts designated as HRCs to fulfil the expectation that they would provide speedy trial of offences arising out of violation of human rights.
NHRC Annual Report 2000 – 2001:Suggestedamendment to Section 30 of the PHR Act. Many States have designated HRCs under the provisions of Section 30 of the present Act. However, in the absence of action being taken on the proposed amendment, these courts are not adequately discharging the purpose for which they were designated. This is deeply disappointing. The Commission would like to observe, in this connection, that it is not sufficient to set-up State Human Rights Commissions or to designate courts to serve as HRCs. The quality of both must be ensured, both in terms of personnel and competence, if this central purpose of the PHR Act is to be properly observed.
NHRC Annual Report 2001 – 2002:A continuing impediment to the proper functioning of these courts has, however, been the lack of clarity as to what offences, precisely, can be classified as human rights offences. The Commission has proposed a precise amendment to Section 30 of the Protection of Human Rights Act, 1993, but in the absence of any action being taken on that proposal, these courts have not been able to adequately discharge the purpose for which they were designated. The Commission takes this opportunity to reiterate that, both in respect of HRCs and in respect of State Human Rights Commissions, it is insufficient merely to designate or establish them. Their quality must be ensured, both in terms of personnel and financial autonomy, and they must be extended the support that they need if they are to fulfil the purposes envisaged for them under the PHR Act.
The NHRC throughout its reports has drawn attention to the ambiguity regarding the precise nature of offences, that could be tried by these courts. It has recognized that substantive amendments to section 30 of the Act are necessary to enable the courts to execute a speedy trial of the offences arising out of the violations of Human Rights. These courts cannot serve any fruitful purpose until a comprehensive legislation is passed to that effect.
Section 30 of the PHRA, 1993 refers to “offences arising out of violations of human rights”. In my opinion, this terminology makes the section very vague and open to interpretation. If the offence is not clearly defined, it might be difficult for the courts to take cognizance of the offences.
Even if "offences arising out of violations of human rights" are defined and clarified or classified, another problem arises in the working of the Human Rights courts in India. The problem is who can take cognizance of the offences. What the Act says is in each district, one Sessions Court has to be specified for trying "offences arising out of human rights violation". It is silent about taking of cognizance of the offence. The Prevention of Corruption Act, 1988 is another law, which provides for appointment of a Sessions Judge in each district as Special Judge to try the offence under the said Act. Provision has been made in section 5 of the Prevention of Corruption Act, 1988 empowering the Special Judge to take cognizance of the offences under the said Act. In the Protection of Human Rights Act, 1993 it is not so. Sessions Court of the district concerned is considered as the Human Rights Court. Under the Criminal Procedure Code, 1973 a Sessions Judge cannot take cognizance of the offence. He can only try the cases committed to him by the magistrate under Section 193 of the CrPC.
Proposition: Increasing the Role of District Judiciary
One of the several objectives mentioned in the preamble of the Protection of Human Rights, 1993 is regarding the establishment of Human Rights Courts at the District Level. Starting from the base line, each and every court shall have its jurisdiction to work upon, thus providing for extensive protection of the Human Rights. The objective behind building up of the courts at the district level is to ensure speedier redressal of cases.
The courts are functioning under the aegis of the District Courts which are headed by the District Sessions Judge. Nonetheless, in West Bengal special public prosecutors are appointed as mentioned under the guidelines of the section 31 of the PHRA, 1993.
Thus, my proposition is that the role of district judiciary must be increased by making it mandatory for every district to have a special Human Rights Court.
Evidently, at this point India urgently needs to undertake two tasks:
i) Mandatory establishment of Human Rights Courts in all states of the county.
ii) Changing the ambiguous nature of Section 30 of the PHRA, 1993.
Once these have been dealt with, the next issue we need to address is the lack of awareness about the existence of these courts. If enough people are made aware of this avenue for redressal of their grievances, the parliament and judiciary will be pressurised to clarify and mandate the proper working of the courts.