In recent times, one of the emerging subjects of importance both in national and international arena is protection and vindication of human rights.
The concept and dimension of human rights has been spelt exhaustively in the fundamental rights chapter of the Indian Constitution, but very often there are allegations of violations of human rights by the State besides the violations by society through its various social and economic structures and institutions.
The available data on human rights would show that a large section of India’s population has been subjected to injustice over the years by fellow individuals and by the mighty State authority.
The establishment of the Human Rights Commissions both at National and State levels has strengthened the institutional framework to safeguard, promote and preserve human rights.
It is distressing that India being the world’s largest democracy and having a vibrant Press suffers from gross violation of the rights of the people. Abuse of powers by armed forces and police, extra-judicial killings in the name of encounter, failure on the Government’s part to implement policies to protect the rights of vulnerable groups such as women, children, migrant workers, aliens, indigenous people, older persons, disabled persons and minorities are some examples of widespread violations of human rights.
The background story of human rights may be traced back to the existence of mankind on this Earth. Human rights were also prevalent even in primitive societies by different names at different times. The present concept of human rights is referred to as civil rights, political rights, personal rights, legal rights, economic rights, social rights, cultural rights and solidarity rights as per the Universal Declaration of Human Rights Charter 1948 and the International covenants. Protection of human rights vis-à-vis criminal justice system has been catalogued in Articles 20, 21, 22 of our Constitution.
The interpretation of these provisions by the Supreme Court and their expanding horizon are the surest safeguard for protection of human rights. Human Rights do not belong to five-star cultures or to an elitist club. Right to speedy trial is part of fundamental rights and particularly of under-trial prisoners (UTPs) and this has been emphasised by the apex court in several cases.
Right to free legal services at the State’s cost is part of fundamental rights and not an act of State charity. Any law and procedure which does not make provision for free legal services to the needy, poor persons to put up his defence will not be a just and reasonable procedure as ruled by the Supreme Court in the famous case of Menaka Gandhi VS Union of India. Now, free legal service at the State cost to an UTP or a poor and indigent accused that is in jeopardy of his life or liberty which is part of fundamental rights symbolises protection of human rights.
Compensation by court for long and unjustified detention is another case for protection of human rights in the Criminal Justice System which has been pronounced by the Supreme Court in the case of Rudal Sah VS State of Bihar. Torture and degrading treatment to prisoners is a gross violation of human rights as held by the Apex Court. Notably, of late, custodial death has to be reported to the NHRC within 24 hours which is a step forward to safeguard infraction of human rights.
Care of the children in custody is of prime concern under the Juvenile Justice Act-2000 which would ensure best protection of human rights of a child. The Supreme Court’s dictum in the Shela Barse case is that “jail is hardly a place for a child” which ordered release of all the children detained in different jails, which would be monitored by District Judges. The Shela Barse case changed the outlook of the subordinate judiciary, magistracy and police to deal with the cases of juveniles.
Correctional measures and prison reforms are part of strengthening human rights protection of prisoners, who can be redeemed as worthy citizens and integrated in the social mainstream at the end of the period of sentence.
That’s why prisoners are released, granted furlough and parole, and in the case of convicts with life sentence, their cases are reviewed by the State Sentence Review Board for their premature release for their good conduct, etc, after they complete 14 years of sentence.
The law to deprive a person of his life or personal liberty must be just, fair and reasonable in consonance with Article-7 of the International Covenant on Civil and Political Rights and Maneka Gandhi’s passport impounding case being a landmark decision on the subject.
The Supreme Court in the Maneka Gandhi and Francis Coralie Mullim case amplified that the word “life” employed in Article-21 of the Constitution meaning right to live with dignity and not animal existence.
Therefore, if any regulation is arbitrary or unreasonable regarding interview of a prisoner with his family, friend and lawyer, it is liable to be struck down as violation of Articles—14 and 21. The Apex Court in the case of DK Basu VS State of West Bengal has prescribed certain legislative safeguards which have touched the spinal cord of human rights jurisprudence in which the entire gamut of law relating to arrest of a person has undergone a sea change.
The court held, “The precious right guaranteed by Article-21 of the Constitution of India cannot be denied to convicts, under-trials, detunes and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal aid organisation in the district and the police station of the area concerned has to be informed about the arrest, telegraphically within a period of 8 to 12 hour after the arrest.”
It is a matter of grave concern that there is female foeticide which continues unabated despite legislation under PC and PNDT Act to curb the social malady. Girl child’s right to survival is now a matter of anxiety in view of low ratio of births of girl child.
Female foeticide is the worst form of violation of human rights. Besides, of late, racial discrimination and killing and brutal assault of students from North-East in Delhi also speaks of flagrant violation of human rights on the ground of colour, sex, ethnicity and language, etc.
lastly, poverty and starvation death are the greatest violations of human rights although the Supreme Court in the case of Olga Tellis VS State of Maharashtra, popularly known as “pavement dweller’s” case, and in the case of Nawab Khan VS State of Maharashtra has ruled that rights to food and shelter are fundamental rights.
For safeguarding human rights in the best possible manner, the State and civil society must rise to the occasion in all affairs where human right issues are involved. It is imperative that human rights in the curriculum of the studies from the level of the school to university and in all training courses of the officers of the State should be mandatory. And a human rights culture has to be created and nurtured far and wide which would safeguard human rights.
(The writer is a former CBI Special Judge, Bhubaneswar and a former Prof of law at lal Bahadur Shastri National Academy of Administration, Mussoorie)