HUMAN RIGHTS VIOLATIONS: STILL NO EFFECTIVE REMEDY

N Chandrashekharayya 

The Constitution of India recognizes human rights in the form of fundamental, non-derogable rights in Part III. However, the lack of efficient remedies and proper fora has ensured that these rights remain illusory.  Thirteen years after the Protection of Human Rights Act, 1993 which had the avowed object of establishing Human Rights Courts at the district level, apart from establishing Human Rights Commissions at the national and state level. But till date, not a single case has been reported as having come up before any of these Human Rights Courts.
 
The thinking behind Human Rights Courts: 
 
One of the objects of the Protection of Human Rights Act, 1993 (hereinafter, the Act) as stated in the preamble of the Act is the establishment of special courts at the district level to protect and realise human rights at the grassroots. These courts would provide for the speedy trial of offences arising out of violations of human rights. It 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, and speedily dispose of, the offences mentioned in the Act.

Lack of definition of offences:

The Act suffers from certain defects which are at least partly responsible for the Human Rights Courts having not taken of. Crucial among these, is that the offences for which these courts have been established lack any sort of definition. There is mere reference to "offences arising out of violations of human rights" without any effort to define or explain the meaning of that phrase. The proposed human rights machinery is thus a victim of vague drafting, and no efforts were made by the Central Government to correct this situation. According to Section 2(1)(d) "human rights" refers to the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution, or embodied in the international covenants and enforceable by courts in India . A violation of human rights refers to the offences arising out of a violation of the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India . "International covenants" refers to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December, 1966 [Section 2(1)(f)]. "The rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants", is too general a phrase to have any enforcement value in criminal courts.[1] Furthermore, maximum punishments have not been specified for these offences.[2]
The Special Courts established under Section 30 of the Protection of Human Rights Act, 1993 are Criminal Courts because and not District Court. Unless the offences are not defined and punishments for different offences triable by the Special Courts are not prescribed, the courts will find it extremely difficult to take cognizance of the offences and try them. Till then, the machinery to redress human rights grievances will remain on paper only.
 
Lack of provision as to taking of cognizance:

Even if "offences arising out of violations of human rights" are defined and clarified, the problems of taking cognizance of the offences will remain. The Act mandates the appointment of one Sessions Court in each district to try these offences. It is silent about taking of cognizance of the offence. The Prevention of Corruption Act, 1988 on the other hand, while providing for the appointment of a Sessions Judge in each district as a Special Judge to try corruption offences under it, also makes provision in s. 5, empowering the Special Judge to take cognizance of these offences.
Under s. 193 of the Criminal Procedure Code, a Sessions Judge cannot take cognizance of offences. He can only try the cases committed to him by the magistrate. A similar problem had arisen with the working of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Special Judges used to take cognizance of the offences. In Potluri Purna Chandra Prabhakara Rao v. State of A.P., [2002(1) Criminal Court Cases 150], Ujjagar singh & others v. State of Haryana & another, [2003(1) Criminal Court Cases 406] and some other cases it was held that the Special Court without committal by the Magistrate. The Supreme Court also held same view in Moly & another v. State of Kerala, [2004(2) Criminal Court Cases 514]. Subsequently, all trials under the Prevention of Atrocities Act were stopped and all the cases were sent to the courts of jurisdictional Magistrates. Thereafter the respective Magistrates took cognizance of the cases and then committed them to the Special Courts. The Special Courts started trying the cases after they were committed to them. The Act was later amended giving the Special Courts the power to take cognizance of the offences under   Act only in the state of Karnataka. The situation in respect of the Human Rights Courts under the Protection of Human Rights Act, 1993 is not different in all states.

Problem of sanction:

Apart from the above, the Special Courts will face yet another question from the provisions of s. 197 of Cr.P.C which provides for the special procedure for the prosecution of public servants for offences committed in the course of their duty. In most of the cases of violation of human rights, it is the police and other public officers who will be accused. The offence will necessarily relate to the acts or omissions of public servants in discharge of their duties. Even though there are a plethora of precedents in favour of dispensing with the applicability of Section 197 of Cr.P.C. on the ground that certain acts (like the ones which result in a violation of human rights) do not come within the purview of the duties of public servants. However, there is still scope for speculation as long as there is no specific provision in the Act dispensing with the applicability of Section 197 of Cr.P.C.
Unless the lawmakers take note of the above anomalies and remove them through proper amendments, India will remain without effective remedies against human rights violations.