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HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM
JUSTICE J.K.MATHUR MEMORIAL TRUST
HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM
Home VIII Justice J.K.Mathur Memorial Lecture by Mr Justice S.H.Kapadia HUMA N RIGHTS VIS-À VIS THE CRIMINA L JUSTICE SYSTEM JUSTICE S.B.SINHA , JUDGE SUPREME COURT OF INDIA A rticle: TERRORISM: Justice S.B.Sinha, Judge Supreme Court of India Lecture by Justice Pradeep Kant on Human Rights IIIrd Memorial Lecture By Justice M.N.Venkatchalia
-JUSTICE S.B.SINHA, JUDGE SUPREME COURT OF INDIA
Human Rights vis-à-vis the Criminal Justice System
Justice S. B. Sinha Judge, Supreme Court of India
The protection of human rights through the criminal justice delivery system is an indispensable feature of any system governed by the rule of law. the protection of human rights have been acknowledged to varying extents across time, but since the Second World War, the universality of human rights has been recognised by the United Nations as inherent in the very nature of human beings – a reflection of their common humanity.
Criminal law has always been a great source for the enlargement of human rights. In other words, many of our existing fundamental and inalienable rights, if studied carefully, would have their origins in situations and cases relating to criminal jurisprudence. Basic human rights, such as the presumption of innocence, the right to silence of the accused and the burden of proof of the prosecution are also the pillars on which a just criminal justice system stands. To this end, Lord Steyn states that, “[t]he basic premise is that in a democratic society government exists in order to protect and promote the interests of the people.
In countries where this premise is accepted. In countries where this premise is not accepted. Article 10 of the Universal Declaration of Human Rights (UDHR) provides that: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal. implementation has not been that satisfactory. Recently. In addition. It must. is the right of access to courts of law. however. be borne in mind that ensuring human rights within the framework of the criminal justice delivery system cannot be narrowly construed to mean merely the protection of the rights of the under-trials.” Although the importance of these human rights is universally accepted. n the determination of his rights and obligations and of any criminal charge against him. In the context of human rights this is the core meaning of the rule of law. Emphasizing this crucial importance. the actions of government and its agencies must be constrained by law and citizens must be given enforceable and effective legal rights against the state.” jkmtrust.com/id5. In fact it can very rightly be contended that the most essential of all human rights in a criminal justice delivery system. or detainees. the International Commission of Jurists. global human rights abuse watchers argue that if such fundamental principles of fair trial are disregarded by the various agencies of the state.html 2/17 .tripod. or convicts. implementation levels vary from jurisdiction to jurisdiction. In India. India clearly would be guilty of clearly violating it’s international human rights obligations to which it is bound by international treaty and customary law. in spite of vast expansions across the spectrum of human rights. Geneva had warned that in India these very human rights stand threatened.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM To achieve this goal. human rights law must struggle on infertile ground. human rights law has scope for developing.
or of Stalin’s Russia and apartheid-era South Africa are the very antithesis of the court system we have sought to build in our Nation. courts such as that of Nazi Germany. Even in the future.” Our country has strived greatly in this direction and thereby. suspects. A second facet of the right of access is that such access must be to an “independent and impartial court of law.com/id5. The special situation of the vast majority of Indians also has to be borne in mind. legal assistance becomes imperative at each stage. Access to justice also implicitly indicates an effective access. It is not sufficient to physically have courts in all remote corners of the country. thus. status offenders or prisoners cannot be over-emphasised. the law. communist countries of East Europe.tripod. Further. these human rights and there place in the criminal justice system and constitutional jurisprudence are explored alongside the judicial craft that led to their expansion. which is a non-derogable right. It is no secret that this vast majority are illiterate and uneducated and even the elite are rarely well versed with even their basic rights. it will be vital to bear in mind the Basic Principles on the Independence of the Judiciary endorsed by the United jkmtrust.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM In the portions that follow. procedures and practices that govern the functioning of the system are largely incomprehensible to the layperson and. As already stated. the denial of access to justice. Therefore. could result in multiple violations of human rights including the deprivation of the means of survival and have the effect of delegitimising the legal system in relation to such person. Concepts that have emerged and their proposed solutions are also delved into. the imperativeness of “access” is compounded by recent studies that show that for the economically and socially disadvantaged person. it is perhaps the most essential of all human rights in the criminal justice system. VIABLE ACCESS TO JUSTICE: The importance of the right of access to justice for those interacting with the criminal justice system as complainants.html 3/17 . processes.
the Apex Court has succeeded in incorporating some of the Directive Principles of State Policy into Part III of the Constitution – a judicial creativity commended even by the highest courts of other jurisdictions.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM Nations General Assembly on 29 November 1985. The latter principle requires that the courts of law in a fair and just legal system provide the prosecution and defence equal rights before the court. and in such manner as which provide the accused reasonable opportunity to place his or her case before the court of law. in a wave of PILs in the late 1970’s and early 1980’s were emphatic that the basic rights of human beings should be protected even when they are behind bars. at the stage of investigation as suspects. jkmtrust. however. Justice Albert Sachs of the South African Constitutional Court once had occasion to comment that. The Supreme Court. Within this constitutionally accepted practice of protecting the society from misguided human beings.html 4/17 . certain rights such as the right to liberty are confiscated from prisoners.tripod. We do not have a system of retributive justice. which cannot be confiscated by jail officials. what Justice Krishna Iyer termed “judiatrics”. where one can extract a tooth to pay for an eye. For instance.com/id5. They still have certain basic inherent rights as human beings.” Legal justice requires that offenders of law should be brought to book and punished. that all rights can be just confiscated from prisoners. and. at the stage of trial as under-trials. That is not the aim of the justice delivery system. “the Supreme Court of India smuggled the rights from Part IV to Part III of the Constitution. JUDICIAL CREATIVITY IN PROMOTING A RIGHTS BASED APPROACH: The Supreme Court of India displayed remarkable craftsmanship to promote and protect human rights. and at the stage of punishment through incarceration. We have instead a system of reformative justice and this requires the holistic reformation of the mind of the criminal to steer him away from committing further crimes. beaten and tortured. This does not mean. what Lord Steyn terms the principle of “equality of arms of the parties”. Through. Even the perpetrator of the most grievous crime against society does not deserve to be shackled.
The Andhra Pradesh High Court has noticed all these judgments and in Mir Mohammed Ali v. Government of Andhra Pradesh has given number of directions for release of under-trial prisoners who have been languishing in prison without proper trial for a long time. The Supreme Court sought to bring an end to these systems which were a dark blot on the Indian justice delivery endeavour.K. In fact.K. Basu quoting Miranda v Arizona. they also have the human right of being presumed innocent (recognised in Narendra Singh v State of M.P). on a visit to a jail these days.P. Delhi High Court). and the right against torture and custodial violence as a human right (recognised in D.tripod.S. The Supreme Court of India in a catena of decisions has recognized this. the right against handcuffing (recognised in Prem Shankar Shukla v Delhi Administration). Basu v State of West Bengal).html 5/17 . which are almost equal to the rights of those people in the society and in our country. it has been the judiciary who has truly been the torch bearer in this regard. and have the right of access in the broadest possible terms. the differences are noticeable and prisoners indeed owe the protection of their rights in detention to the strong line taken by the Supreme Court in this regard. Apart from being given property food and clothing. not only do those enveloped by the criminal justice system have the right to interview for prisoners (recognised in Prabha Dutt v Union of India).Vashi) and in the most expedited manner possible (see. including access with free legal aid (recognised in State of Maharashtra v M. In all societies there is a need to sensitise civilised world to the reality that the accused and prisoners have rights. As a result.com/id5.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM They were shocked by the prevalent conditions in jails across the country wherein even in model jails like the Tihar Jail there were such flagrant violations of Human Rights and gross subjections to indignity. they were tortured and beaten and kept chained up. the right to a fair trial (recognised in Police Commissioner. The judiciary has also worked extremely hard in order to prevent the denial of the right of speedy trial to under-trial prisoners. Nayak and jkmtrust. the right against being compelled to be a witness against oneself (in D. Delhi v Registrar. Abdul Rehman Antulay v R. today.
The judgment is similar in many respects to that delivered in R (Mullen) v Secretary of State for the Home jkmtrust.).” [emphasis supplied] In addition to a rights based approach.com/id5. For instance. for instance.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM Ors. many. As a measure of the advances achieved in the protection of human rights.tripod. It had strongly been contended that such a case should not go for trial at all. They were convicted by a magisterial court only on the basis of evidence of a child witness. Efforts of the superior courts of the country to provide new contents to criminal justice have also resulted in paradigm shifts in prison reforms. As regards implementation. treatment of undertrials. an appellate court of France acquitted several persons including some foreigners who were charged with commission of pedophilia. where the Supreme Court ruled that the victims of unlawful or illegal arrest were entitled to compensation for violation of their fundamental rights under Part III of the Constitution. in Phillipines. Much ink has been spilled in expounding on the contours of the rights mentioned above. one may also turn the pages of the landmark judgment in Rudul Sah v State of Bihar. The case gave rise to troubling questions about the willingness of social services and psychiatric experts to accept uncorroborated allegations made by young children. both nationally and internationally. it is also necessary that judges mould decisions to the specific facts and circumstances of case. Similarly. The acquitted accused persons including two couples had to remain behind bar for three years.html 6/17 . His lawyer even failed to obtain an order of bail although it was contended that the boy is required to take help from others for going to toilet and even cannot lift a spoon. the prosecution case failed like a pack of cards. and rehabilitation of victims. " [c]onsidering the widely documented human rights abuses committed every day in India. The Judicial Minister had to apologize to the accused and their families on television. a reform of the criminal justice system must follow a rightsbased approach and be built on an independent and incorrupt judiciary. and about the power given to lone examining magistrates under the French judicial system. recently. the International Commission of Jurists remarked that. with authority to review all actions of law enforcement officials and the prosecution. but before the appellate court. it should be the duty of the judicial officers to scrutinize such cases more strictly so that innocent persons are not met to suffer. Keeping in view the human right perspective. have opined the need for such a “rights-based approach”. a young boy who was paralytic has been charged with rape of a girl.
Critiques however argue that the suggested reforms of the Committee concentrate more on strengthening the hands of the administrative machinery than on the “rights-based approach” mentioned jkmtrust. or that a prisoner becomes a non-entity in captivity. It also spoke of economic crimes and organised crimes. reforms in the system. as well as in prisons where the fear of torture lets the ‘principle of silence’ be the rule.tripod. For instance. SUGGESTED IMPLEMENTATION: In order that implementation might be improved the adoption of several innovations has been suggested from time to time. Far-reaching rulings handed down by the superior courts of the country have ensured that no one’s human rights are taken away by way of incarceration. a component of any discourse on human rights vis-à-vis the criminal justice system. violating Section 133 of the English Criminal Justice Act that implemented Article 14(6) of the International Covenant on Civil and Political Rights (ICCPR).html 7/17 INNOVATIONS FOR BETTER . including as that law states human rights and fundamental freedoms. including the need for a Victim Support Service Coordinator to work closely with the police and courts to ensure delivery of justice during the pendency of the case. This has been possible because our national courts have commendably discharged their responsibilities in accordance with the famous Bangalore Principles (1988) which invite national constitutional courts to interpret their constitutional texts in a way that is generally harmonious with the basic principles of international law. and that the resulting conviction was a “miscarriage of justice”. Justice Kirby of the Australian High Court. It may therefore be safely said that great strides have been made on both sides of the prison walls – that is. the Justice Malimath Committee on Criminal Justice Reforms. had suggested certain radical. termed it as the acceptance of jurisprudence from a “wider civilization”.com/id5. drawing from the opinion of Justice Kennedy of the United States Supreme Court in Lawrence. in open society. where a convict who was deported from Zimbabwe to the United Kingdom was granted compensation for illegal incarceration since it was found that his deportation was an abuse of process. The presumption of the Committee’s suggested reforms was that an inquisitorial system was more conducive to delivering justice in criminal cases than the present adversarial system.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM Department. yet progressive.
(i) Measures for the Prevention of Terrorism: Perhaps the most heated debates concerning the protection of human jkmtrust. the question that must inevitably be answered is: why should a person.tripod. even if he is lawfully convicted. It was held that only a court.html 8/17 . Some other watershed decisions are those of Reyes v R. the case of DPP v Mollison. spend more time in prison than is absolutely necessary? In this respect. was authorized to determine how long the period of detention should be. was entitled to relief as such incarceration would tantamount to a violation of the principle of separation of powers. R v Hughes. After all. EMERGING CONCEPTS: I would now turn to certain emerging concepts in the field of human rights vis-à-vis the criminal justice system. and not the executive. This would help provide an insight into the broad spectrum of contemporary issues concerning human rights in the criminal justice system that are often ignored in conventional discourses on the subject. in which it has been held that a mandatory death penalty for murder would be unconstitutional as violative of the right to protection against inhuman and degrading treatment.com/id5. and Fox v R.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM earlier. from Jamaica immediately leaps to mind. SENTENCING POLICY: The time is ripe to develop a sentencing policy in recognition of the fact that sentencing is an important and universally recognized aspect of human rights. and was liable to be so incarcerated ‘during Her Majesty pleasure or that of the Governor General of Jamaica exercising her authority’. the Privy Council ruled that a convict who had been detained. if the court did not have the opportunity to exercise its discretion as to whether the extreme penalty was required to be awarded. In that decision.
not specific to India alone.html 9/17 . Thus. admission of police confessions in trial. the House also indicated that the measures adopted for protecting the security and sovereignty of a country must not be permitted to transgress the human rights of detainees. A and Ors. POTA allowed for extended police custody.tripod. intrusive police investigation. and summary procedures in special courts. and the interests of national security on the other. are however. Needless to say. the human rights of such detainees could not be violated in as much as they could not be jkmtrust. While acknowledging that the legislature and the executive reserved the right as per the principle of proportionality to determine what measures would secure the safety of the citizens. in many a case – and Guantanamo Bay is only one example – the necessities of national security have resulted in large-scale violations of human rights. Crime and Security Act 2001 following the September 11 attacks on the United States. in the opinion of the House.com/id5. In very recent judgments of the House of Lords and the United States Supreme Court one can quite easily discern the role that courts and the administration must play in efforts to curb international terrorist activities. v Secretary of State for the Home Department. was a case in which certain foreign (non-UK) nationals had been detained for an indefinite period under the English Anti-terrorism. The rise of fundamentalism and international terrorist organizations has made countries around the world gravitate in favour of more stringent measures for the safety of their people. Such deliberations on the balance required between the protection of human rights on the one hand.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM rights in the criminal justice delivery system have occurred with respect to terrorism that poses a clear and present danger to the sovereignty and integrity of our Nation. while suspected terrorists could be detained indefinitely proportionate to the need for such detention in the interests of national security. For instance. The now-repealed Prevention of Terrorism Act 2002 had created much controversy when it sought to incorporate “special measures” into the ordinary criminal justice system.
. In fact. the rule that the guilt of the accused must be proved beyond all reasonable doubt does render it improbable in many cases of terrorist activities to give corresponding weight to the interests of the victims. In Abbasi and Anr.com/id5. et. but still a relevant observation): “The exaggerated adherence to and insistence upon the establishment of proof beyond reasonable doubt. This “balancing of interests” between the rights of the detainees and the interests of national security is an essential characteristic of a fair trial. including by providing them a right to counsel. In our criminal justice system. it would not be wholly untrue to opine that the interests of victims are in many instances marginalized for want of rules that require the court to give equal merit to them. the fact situations and the peculiar circumstances of a given case … often results in miscarriage of justice jkmtrust. and the society at large. al. v Rumsfeld. v Secretary of State for Foreign and Commenwealth Affairs. In the American cases of Rasul et al.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM discriminated against for detention merely on the basis of their nationality or race or colour of skin.html 10/17 .. Hamdi et al. Secretary of Defense et. v Shyamsunder Trivedi. President of the United States. v Bush. al. the Supreme Court while referring to the recommendation of the 113th Report of the Law Commission to insert Section 114-B in the Indian Evidence Act observed (albeit. in the context of the burden of proof on the police officer in cases of custodial violence.tripod. in State of M. ignoring the ground realities. and Rumsfeld v Padilla as well the Court has stressed on the absolute need for protecting the human rights of the suspected terrorists and other such “enemy combatants”. the Court of Appeal (Queen’s Bench) the Court expressed its anxiety at the state of the British detainees held at Guantanamo Bay by the United States on charges of waging war against that country and its allies. For instance.P.
Fali Nariman writes of the practice under Scottish criminal law where the concept of a fair trial is not solely a question for the accused – “fairness to the public is also a legitimate consideration” (Lord Wheatley in Miln v Cullen). A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish the marginal innocents. and as a result employees who have access to information that would be in jkmtrust.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM and makes the justice delivery system a suspect. in Shivaji v State of Maharashtra. it would not be a violation of the human rights of the accused if he or she were compelled by law to assist the State in investigation of such heinous crimes. The legal protection available under Indian law fails adequately to protect whistleblowers against retaliatory action by employers. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community demand a special emphasis in the contemporary context of escalating crime and escape.html 11/17 . It is therefore advocated that in cases of terrorist activities. “…our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic.” In a recent article in the Journal of the National Human Rights Commission of India. (ii) Whistleblowing: A recently discussed issue is that of protecting the interests of ‘whistleblowers’ through the criminal justice system. Similarly. the Apex Court opined. the right of the accused to remain silent – protected by Article 20 (3) of the Constitution – is also considered favourable to the accused terrorist.” Then.tripod.com/id5.
after the infamous Satyendra Dubey murder case (currently the subject-matter of a PIL: Rakesh Uttamchandra Upadhyay v Union of India and Ors. The argument is strongest when applied to the speech of those who work in the public sector. (iii) Right to Privacy: In District Registrar and Collector.tripod. the issue has taken a more sinister angle. the Government has done precious little to legislate on the matter. must continue to remain confidential vis-à-vis the person. Canara Bank and Another [(2005) 1 SCC 496] the draconian power given to the authority by A. was struck down. The case for allowing public sector employees to participate in debate is at its clearest when the issue is seen as an aspect of freedom of expression. However.” Innumerable cases demonstrate the significance of this right in jkmtrust.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM public interest to disclose. It disapproved the right from person to property – Fine Financial Rights upon considering Miller (425 US 435) stating: “Once we have accepted in Gobind and in later cases that the right to privacy deals with “persons and not places”. even if they are no longer at the customer’s house and have been voluntarily sent to a bank. The Supreme Court noticed the development of law in India beginning from M.P. Dharmpal. in India. (2003) 4 SCC 493. Amendment of Stamp Act to go on a rampage searching house after house used for custody of document and a possibility of wild exercise of said power. unlike the United Kingdom where the debate as to whistleblowers’ rights is confined to issues relating to the justness of the whistleblowers’ dismissal from service. The criminal justice system must. Satish Chandra [1954 SCR 1077] to Sharda Vs. be so modified as to guarantee the whistleblowers their freedom of expression along with safety and security of their being. whose jobs involve the carrying out of government policy. we cannot accept the line of Miller in which the Court proceeded on the basis that the right to privacy is referable to the right of “property” theory. accordingly.html 12/17 . Hyderabad Vs.). often remain silent. If that be the correct view of the law. the documents or copies of documents of the customer which are in a bank. Sharma Vs.com/id5.P. The situation becomes graver when we consider that despite assurances in the Supreme Court.
Consequently. The weak penalties in most updated criminal statutes are nonetheless a matter of concern. network-related crimes. including hacking and virus distribution. the court could only admit such evidence as was made by the witness by refreshing his memory of that conversation. and theft. in that this right is the ultimate guarantee of the human dignity of any person subjected to investigation or punishment under the system. In Valasinas v Lithuania. existing laws are likely to be unenforceable against such crimes.com/id5.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM the criminal justice system. Outdated laws and regulations. modification. computer fraud. or against information on computers. including those of aiding and abetting cyber crimes. create an inhospitable environment in which to conduct e-business within a country and across national boundaries. since they provide limited deterrence for crimes that can jkmtrust. by the European Court of Human Rights. the Supreme Court of Canada held that secret recordings of confessions made by the accused by undercover police officers was illegal. a prisoner was ordered to be strip naked and be subjected to examination by a team of prison officers. crimes of access. cyber criminals around the world lurk on the Internet as an omnipresent menace to the financial health of businesses. which included a woman officer. and computer-related fraud and forgery. and as an emerging threat to nations’ security. Such searches were found to be violative of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950.tripod. it is important to consider the perpetration of cyber crimes in four categories: data-related crimes. Amendments to the Indian Penal Code and the Information Technology Act have helped extend the rule of law into cyberspace. In this context. including interception. including aiding and abetting cyber criminals. including interference and sabotage. undeterred by the prospect of arrest or prosecution. and computer forgery. to the trust of their customers. however. and associated computer-related crimes. and weak enforcement mechanisms for protecting networked information. (iv) Cyber Crimes: Attendant to the issue of privacy is the growing menace of cyber-crimes committed through the medium of computers. In Fliss v R. In most countries around the world. India has sought to infuse confidence in the general public that the existing laws are sufficient to cover “computer-related crimes”.html 13/17 .
Numerous studies indicate that the police. the ICCPR (Articles 17 and 19).the fundamental human rights recognised in all major international and regional agreements and treaties such as the UDHR (Articles 12 and 19). Use of electronic video linkages for expedited production of under-trials. and consumer frauds. we must continuously endeavour to incorporate and evolve newer methods of delivering justice as well as protecting human rights in the criminal justice system. like the organs of the human body. apart from organized crimes. holding of regular sittings in jails by the Magistracy for disposal of cases involving petty offences. white-collar crimes. coordinate and cooperate in functioning. prosecutors.should be taken into account while developing policies against cyber-crimes. Regular meetings and continuous education of the police. To prevent such discriminative targeting. and other oppressed classes by the socially higher strata – though.com/id5. and other criminal justice agencies. In addition. misuse of Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 by the oppressed castes and tribes is also observed. (v) Atrocities against Scheduled Castes and Scheduled Tribes: Another oft ignored aspect of protecting human rights in the criminal justice system. Nonetheless. prosecutors and courts principally prosecute lowerclass criminality.html 14/17 . on protection of human rights is therefore a sine qua non. courts. is the crimes perpetrated against members of the Scheduled Castes. it is necessary that the various organs of the State.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM have large-scale economic and social effects. acceptably. the issue of human rights protection vis-à-vis cyber crimes has generated little debate. and concerted jkmtrust. and the European Convention of Human Rights (Articles 8 and 10) .tripod. Schedule Tribes. Despite the amendments. Any coordinated policy initiative at international levels for curbing trans-boundary cyber crimes must also consider offering the best protection for individual rights and liberties. Privacy and freedom of expression . the criminal justice system must be receptive to the plight of those who may be the subject of indiscriminate use of State authority without regard to the due process of law.
and the Indian Penal Code. is included in the curriculum at the school level. like that of environmental protection. the former Chief Justice of India. and the protections provided under the Criminal Procedure Code. for. civil liberties. and mechanisms of accountability which in turn … constrain potential abuses of state power … [and protect] the equality and dignity of all citizens…” Besides.” The Protection of Human Rights Act 1993. Article 26(2) of the Universal Declaration of Human Rights mandates that ‘education shall be directed to jkmtrust. BUILDING DUTIES TO BOLSTER RIGHTS: It would also be profitable to realize that without a human rights friendly approach of the police and other prosecuting agencies. their respect for law and order will vanish with it to the great detriment of society.” The duty is cast on the courts to mould and shape the law to meet the rights and duties of the people.com/id5.rather encouraged to violate human rights. Dr.tripod. the Indian Evidence Act. as Justice Arthur Vanderbilt would say: “If they [the common citizenry] have respect for the work of the Courts. The onus is thus ultimately on the courts to be seen in the eyes of the common man as the protector of human rights. the courts cannot protect human rights. So much so. A. conversely. the rights guaranteed under the Constitution. the police and the prosecuting agencies would be susceptible .html 15/17 . need therefore be harmoniously construed to enable a just and ordered society. had occasion to comment that “[t]he mere existence of a particular piece of beneficial legislation cannot solve the problems of the society at large unless the judges interpret and apply the law to ensure its benefits to the right quarters. some other measures for ensuring that the human right to a fair and speedy trial of those stepping into the criminal justice system are protected. S. a duty is cast on us all to educate others and ourselves on our human rights. without strict protection of human rights by the courts. where the criminal justice system adheres to the mandate of the rule of law on which any high-quality democracy rests. their respect for law will survive the shortcomings of every other branch of Government. but if they lose their respect for the work of the Courts. I should think that perhaps the time has come when the subject of human rights.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM efforts for execution of warrants and production of witnesses. To paraphrase Professor Guillermo O’Donnell: “[w]hat is needed … is a truly democratic rule of law that ensures political rights. Anand.
1999].’ This was the guiding light behind the United Nations Decade for Human Rights Education (1995-2004) that ended last year. In that case. INTERIGHTS (Vol.  See.’ Knowledge of human rights is therefore the preeminent defence against their violation. 8. Realising this.tripod. p 1. should ‘strive by teaching and education to promote respect for these rights and freedoms and by progressive measures. Developing Human Rights Jurisprudence. the United Nations General Assembly has enjoined that every individual and organ of society.  In: “The Centrality of the Right to Fair Trial as a Human Rights Norm”. wherein a retired Director of the Central Bureau of Investigation was accepted for that post.  2000 (4) ALT 541 (DB)  AIR 1982 SC 6  AIR 1997 SC 95  (1980) 3 SCC 526 jkmtrust. HUMAN RIGHTS LAW AND PRACTICE [Lord Lester and David Pannick eds. is of much significance. and its programmes such as the present ‘symposium on protection of human rights’.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM the full development of the human personality to strengthen respect for human rights and fundamental freedoms. secure their universal and effective recognition and observance. LAW ... 2004]. seeks to carry forward the visions of the United Nations by generating awareness on human rights. Butterworths. the Court was apprised of a matter concerning the filling up of vacancies in the National Human Rights Commission. P OVERTY AND LEGAL AID . Justice Dharmadhikari was inclined to hold that Section 3(2)(d) of the Act on its plain meaning did not in any manner disqualify police officers from becoming members of the NHRC.ACCESS TO CRIMINAL JUSTICE [Butterworths. 2001).com/id5. In this respect the case of People’s Union for Civil Liberties v Union of India and Anr. especially amongst those who must dispense justice – the judicial officers of this State. The matter has now been referred to a larger Bench. national and international. The Bench was divided on the decision: while Justice Sabharwal was of the opinion that police officers or members of security forces could not become members of the NHRC as that would be a violation of the famous Paris Principles. His appointment was subsequently challenged on the ground that a police officer does not fall in the category of members mentioned in Section 3(2)(d) of the Protection of Human Rights Act 1993 who are to have “knowledge and practical experience in matters relating to human rights. M URALIDHAR.” and since the presence of a police officer as a member of the NHRC would render that forum a violator of the very concept that gave birth to protection of human rights. I am therefore glad that institutions such as LASO and Amnesty International.  S.html 16/17 .
 2004 (4) SCALE 543  384 US 436 : 16 L Ed 2d 694 (1966)  AIR 1996 SC 1  (1992) 1 SCC 225  See “France Child Sex Case Collapses”. Godwin.C. Vol. (f) sufficient resources. 539 of 2003  12 BHRC 266  12 BHRC 366  See.  HCA 37 : 78 ALJR 1056. JT 1995 (9) SC 627. Journal of The National Human Rights Commission. (c) pluralism in membership. “Why The Rule Of Law Matters”.  (1995) 4 SCC 262  AIR 1973 SC 2622.  Guillermo O’Donnell. 78 ALJR 1056  (2003) UK PC 6  12 BHRC 219  12 BHRC 243  12 BHRC 261   UKHL 56   EWCA Civ. . holding that ‘asking for proof beyond reasonable doubt would be ignoring ground realities’. for example.” Enter supporting content here jkmtrust.  2005 (1) SCALE 402  The six criteria of National Human Rights Institutions under Paris Principles are: “(a) independence guaranteed by the statute or Constitution.  WP (C) No. JT 2004 (10) SC 547.  Fali S. p 32. . and Punishment? Archaic Laws Threaten Global Information”. (e) adequate power of State. World News Service  (1983) 4 SCC 141  (2003) 1 All ER 613  (2003) 539 US 558  Al Kateb Vs. 3. “Terrorism – a threat to Human Rights?”.  HCA 36 : 78 ALJR 1099. 1.com/id5. See also. the recent judgment in Munshi Singh Gautam (D) and Ors. Also see. “Cyber Crime . (d) broad mandate based on human rights standards.1598  (2004) 72 USLW 4596  (2004) 72 USLW 4607  (2004) 72 USLW 4584  See.  Public Law 594. p. December 2000. 15 (4) Journal of Democracy (October 2004). and Inder Singh v State of Punjab and Ors.1/22/13 HUMAN RIGHTS VIS-À-VIS THE CRIMINAL JUSTICE SYSTEM  (1997) 1 SCC 416. 4th December 2005. N.tripod. India. pp.. and Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs. Nariman. 4-5. Dhoundial v Union of India. 2004. 1955].html 17/17 . (b) autonomy from Government. McConnell International LLC. v State of Madhya Pradesh. “Whistleblowing in the public sector and the ECHR”.  In: THE CHALLENGE OF LAW REFORMS [Princeton University Press. the Australian cases of Al-Kateb v Godwin.  1967 JC 2C  Lucy Vickers. (2004) 2 SCC 579.
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