REMEDIES FOR VIOLATION OF HUMAN RIGHTS

Introduction

When a right of a person is legally recognised, there is a procedure provided to address

grievances related to the enjoyment of such a right. A person who has legal ‘standing’ in
respect of a right can follow this procedure. In this context, ‘standing’ refers to the capacity
of the person to seek relief in relation to that right, when the enjoyment of that right is
disturbed or denied. In other words, “Standing, or locus standi, is capacity of a party to bring
suit in court. [… and] is the requirement that plaintiffs have sustained or will sustain direct
injury or harm and that this harm is redressable.”

It is a fundamental principle of law that only the person whose right has been affected can
seek a remedy to address the problem. This concept is reflected in many statutes—a good
example of this is the provisions to claim compensation for motor vehicle accidents under the
Motor Vehicles Act, 1988, (“MV Act”). Section 166 of the MV Act provides for
compensation for damage to property, injury or death sustained by anyone in an accident as
described by the MV Act. It clearly states that such an application to claim compensation can
only be made by the person who has sustained the injury or the owner of the property that is
damaged. Hence, as you can see, only the person whose right is affected—in this case, the
victim of a motor vehicle accident—can seek redress against such disturbance in the
enjoyment of his or her right.

There are, however, instances, when the affected person cannot access the legal mechanism
provided for such redress. In such situations, the law provides different methods to enable
access to justice. Let us take another look at the example of the MV Act. Section 166 also
provides that when a motor vehicle accident results in the death of a person, the legal
representative of that person can make such an application to claim compensation.

As you can see, in most cases, it is necessary to establish one’s capacity to claim redress for
the violation of a right. This rule has exceptions and some corollaries as well, which we will
study in this Unit. The Code of Civil Procedure, 1908, Issues involving rights can be of a
civil or a criminal nature. This means that depending on the right affected, the remedy may
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lie before a civil court or a criminal court. Civil cases usually involve disputes between
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individuals or organisations, involving the exercise of a right or an entitlement. Criminal
cases, on the other hand, involve action to be taken against a person (or persons) who has
been accused of committing a crime or an offence. Each type of court follows a different
series of procedures. The Code of Civil Procedure, 1908, (“CPC”) guides the processes in
civil courts and the Code of Criminal Procedure, 1973 usually guides criminal courts. For the
purpose of this current discussion, we will study the steps and requirements outlined in the
CPC for matters before civil courts.

Jurisdiction of Civil Courts

The CPC recognises that civil courts have the jurisdiction to try all civil suits in keeping with
the provisions of the CPC, unless there is an express prohibition on trying a particular matter.
It is important to keep this principle in mind, as there may be times when it is unclear before
which court or authority a matter can be raised.

Statutes that govern particular types of rights and disputes, such as those arising from motor
vehicles accidents for instance, usually provide for specific authorities, courts, or tribunals,
before which those rights can be claimed. In case such a law does not expressly provide for a
particular redress mechanism and if the matter is of a civil nature, one can file a suit under
Section 9 of the CPC.

Public Nuisances and Wrongful Acts

Secondly, the CPC provides for the filing of a case in circumstances of public wrongs. This is
a special provision in the CPC where, “in the case of a public nuisance or other wrongful act
affecting, or likely to affect, the public, a suit for a declaration and injunction or for such
other relief as may be appropriate in the circumstances of the case, may be instituted, with the
leave of the Court, by two or more persons, even though no special damage has been caused
to such persons by reason of such public nuisance or other wrongful act.”

This is in direct contrast to the tenets regarding ‘standing before court’ that we have studied
above and is a recognised legal exception to that rule. This is because cases filed under
Section 91 of the CPC usually involve injury to the public at large – such as seeking
directions from the court that require the municipal authorities to repair public infrastructure
or provide essential services like potable water or sanitation services.
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Suits against the State

A cause of action may arise from the denial of the enjoyment of a right. Such denial could
occur due to State inaction or the failure of the State to fulfill its obligations. In such a
scenario, the individual will have a cause of action against the government. The CPC also
provides for a procedure through which cases can be filed against the government.

Part IV of the CPC contains the procedure to be followed when a case is to be filed against
the government of India, or a government of a state or states. It is important to keep these
provisions in mind as they are often required when filing a case against a government (or a
government authority) in matters of incorrect state action, or state inaction, or even
negligence by the state.

The previous Unit has already explained the concept of a State and the various aspects related
to a State’s duties vis-à-vis individual rights. This provision of the CPC can often be used in
relation to situations involving State inaction as we have studied in the previous Unit.

Suits by Indigent Persons

Often, accessing justice is a challenge for poor people. Indigent persons, that is, persons
without the means to fulfill procedural requirements such as payment of court fees, need
effective remedies to access basic human rights as such right to healthcare and nutrition. To
enable parity in access to justice, the CPC provides for suits that can be filed by indigent
persons where the payment of court fees and related expenses of litigation are exempt. Order
XXXIII of the CPC outlines the legal framework applicable in such situations.

With this, you should now be aware that the CPC lays down procedures that enable litigation
before civil courts. It contains many provisions that govern distinct aspects of the litigation
process before a court and can prove to be an important tool in accessing justice, especially
before lower courts.

Public Interest Litigation

This brings us to the last topic in this Unit—that of public interest litigation. As you can
gather from the discussions above, cases are often filed before courts to help people access
their fundamental rights.
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Similarly, causes of action can lie before courts when the rights of many are affected through
public wrongs or public nuisances. Such cases are usually termed as ‘public interest
litigation’. The following excerpt from

M.P. Jain’s Indian Constitutional Law provides a good insight. “The petitioner comes to the
court to espouse a public cause. The expression ‘public interest litigation’ means a legal
action initiated in a Court for the enforcement of public interest.”

In the case of S.P. Gupta v. Union of India 1 (“Additional Judges Case”), Bhagwati J.,
enunciated the broad principle of public interest litigation in the following words:

“Whenever there is a public wrong or a public injury caused by an act or omission of the
State or a public authority which is contrary to the Constitution or the law, any member of
the public acting bona fide and having sufficient interest can maintain an action for
redressal of such wrong or public injury.”

Since the Additional Judges Case in the 1980s, the law on public interest litigation has
evolved greatly. The scope to file a case before the courts to seek redress for public wrongs
has been widened considerably. In fact, in 2005, the court has moved to a stage where even a
case to seek relief for a personal injury could potentially be treated as a public interest
litigation as “the Court may, in furtherance of public interest consider it necessary to enquire
into the state of affairs of the subject matter of litigation in the interest of justice reflecting the
same in its approach as in a public interest litigation.”

We will revisit the scope and specific aspects of public interest litigation as well as class
action litigation throughout this course when we study various key areas of human rights law.

With this, you should now be familiar with important procedural requirements as well as
different methods to approach civil courts to seek relief related to various rights. Do bear
these points in mind when you are confronted with a situation to access human rights that
requires judicial assistance, especially when the rights of many are affected. In the next

Unit, we will take a look at the different kinds of civil remedies available to address issues of
access to human rights.
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CIVIL REMEDIES

Statutory Remedial Mechanisms

As you may recall from the first Unit of this course, “rights are entitlements (not) to perform
certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain
actions or (not) be in certain states.”1 When the enjoyment of such an entitlement is denied or
limited unlawfully, a cause of action is formed. A court of law, or anauthority that is
empowered by the law to provide relief, can act on the basis of such a cause of action.

Often, the laws that give legislative recognition to the rights also provide a process to ensure
the realisation of those rights. This includes redress mechanisms such as the creation of
authorities or fora, where grievances relating to the enjoyment of those rights can be aired.

Alternative Authorities

Sometimes, alternative authorities are specifically mandated to resolve specific issues such as
the complaints committees outlined in the previous illustration. Not only is it a legal necessity
to approach such fora in keeping with jurisdictional and procedural requirements, it is also
good practice to first seek resolution of issues at these specialised fora, before approaching
higher authorities such as constitutional courts. These authorities or fora, are distinct from the
civil and criminal judiciary as far as their jurisdiction, powers, and functions are concerned.
They usually have a narrower scope to exercise their power and their decisions are often
subject to appeal before regular civil or criminal courts.

The advantages of approaching these authorities include:

 Speedy resolution of issues, as the authorities have a narrow mandate to hear matters
pertaining only to specific subject matters
 Special powers and procedures that enable faster and more efficient resolution of
disputes.
 Expertise of the authorities in a particular subject matter that enables a better
understanding of issues.
 Often, such authorities are more accessible and conveniently located at the local
levels and are easier to contact than traditional judicial courts.

In India, there are various fora and authorities with special powers to hear matters related to
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motor vehicle accidents, consumer protection, insurance claims, and banking issues, amongst
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others. Each of these specialised authorities are granted exclusive jurisdiction to hear
particular kinds of complaints and provide resolution for them, as far as possible.

As we will study later in this course, constitutional courts usually require the petitioners
before them to have exhausted all remedies before lower courts and authorities before
invoking the extraordinary powers of the higher courts. This is another reason why as a
student of human rights law, one should be aware of the various authorities and redress
mechanisms that are in place to address issues outside of the traditional judiciary.

Now that you are aware of the concept of alternative authorities, let us study some provisions
of the law that can be innovatively utilised to access justice.

PROCEDURAL LAWS

In this discussion, we will focus on the provisions contained in the Code of Civil Procedure,
1908, (“CPC”), and the Code of Criminal Procedure, 1973, (“CrPC”). Both these laws
contain provisions that can be used to address public wrongs, that is, a disturbance of rights
collectively held by the public at large. We will focus our study on public wrongs and this
will help you understand how to access rights using legal provisions under regular judicial
systems.

The Code of Civil Procedure

The CPC outlines the procedures applicable to cases filed before civil courts in India. It is an
extensive legislation to be followed for cases before civil courts. It contains some provisions
that every student of human rights laws should be particularly aware of, including:

 Provisions that enable cases to be filed against public nuisances and other wrongful
acts against the public;
 Provisions that enable indigent (poor) people to file cases;
 Provisions that enable filing a case on behalf of other persons who have a similar
interest in the matter;
 Provisions that enable one or more people to appear on behalf of others, who are all
parties to the same case;
 Provisions that enable the courts to determine the body against whom relief can be
sought and to what extent, when the person seeking such relief does not know against
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whom the case may lie.

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Previously in the course, we have studied the concept of public wrongs and nuisances.
Provisions of the CPC can be used to address issues where the rights of more than one person
are affected by one set of circumstances.

We have also discussed the processes whereby the indigent can file cases before the courts,
previously in this course. Similarly, we have discussed how two or more people who are
affected by the same or similar set of circumstances can seek relief before the courts jointly.

These provisions can prove to be especially useful in situations where the rights of several
people have been affected. Keep in mind also the learnings about representative suits and
class action litigation from the previous Unit. All of these provisions, when taken together,
can be powerful tools to enable more efficient access to justice.

The Code of Criminal Procedure

The CrPC also contains provisions to help address public wrongs and nuisances. Of particular
importance are the provisions contained from Section 129 to 148. These focus on the
‘maintenance of public order and tranquillity’ and addresses issues of unlawful assemblies,
public nuisances, prohibition of the carriage of arms in processions of mass drill, and disputes
of immovable property likely to cause a breach of peace. While each of these provisions
outlines specific provisions that enable the criminal judicial system to address particular
issues, as a student of human rights law, you should keep these in mind as they can be utilised
especially in circumstances of rights affecting multiple parties in class action litigation.

When considering which kind of remedial method to adopt to seek redress, one is often faced
with a choice between civil remedies and criminal remedies. As is apparent, when the aim of
the resolution is to seek restitution of rights, then civil remedies may be best suited to the
case. On the other hand, if the aim of approaching the legal mechanism is to punish a
wrongdoer for wrongful or illegal acts, then the most appropriate mechanism may be criminal
in nature.

The criminal justice mechanism comprises of law enforcement agencies (such as the police),
the legal machinery (including state-appointed prosecutors and defence lawyers) and, of
course, the criminal courts. It is important to understand the repercussions of each of these
mechanisms before instituting actions there under.
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This brings us to the end of this Unit. With this, you should now know of the existence of
specialised authorities empowered to resolves disputes under specific fora and also how to
utilise provisions of the law innovatively.

SPECIFIC CIVIL REMEDIES

Relief

When the enjoyment of a right or an entitlement is disturbed, the most common aim is to
restore the enjoyment of that right. However, this is not always possible, or if it is, it is often
an inadequate solution. For example, if the disturbance of the enjoyment of the right has
resulted in stress or trauma, the person may need to be provided compensation in order
address the loss or damage caused by the disturbance. While the other Units of this course
outline various rights, the different methods to access them, and the processes and authorities
responsible for their application, in this Unit we will study a few remedies that can be availed
of, especially in actions before lower courts. When remedies before lower courts fail or when
the matter for which recourse is needed is of a grave nature and can only be addressed by the
higher courts, one should also take in to account the extraordinary remedies that may be
available before the constitutional courts. However, it is good practice to seek redress of
grievances before the authorities and lower judiciary in accordance with procedure before
approaching the higher judiciary for special remedies.

Compensation

Compensation is monetary relief that is given to someone who suffers an injury or a loss.
Usually compensation aims to provide means to address the pain and trauma caused by the
injury or loss. Many countries have legislative provisions to compensate for violations of
human rights. Over the last three decades, the Supreme Court and the High Courts of India
have played an active role in developing the concept of compensation for victims of human
rights violations. Especially in the context of writ remedies, it is now a settled principle of
law that the violation of human rights such as the right to life or liberty give rise to the right
to be compensated for such violation, in addition to any other remedy that may lie, in the
matter.

Even apart from writ remedies, compensation can play an important role in providing
practical relief in cases before lower courts or authorities.
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Injunctions

Injunctions can be availed of under Order 39 of the Code of Civil Procedure, 1908 (“CPC”)
in special circumstances, especially when the matter before the court involves a contract. An
injunction is an order of the court that stops a party (or parties) to a dispute from carrying out
certain activities (or mandates the party (or parties) to continue to carry out certain activities,
as the case may be) during the pendency of the case, in order to ensure that rights of parties to
the dispute are not adversely and irrevocably affected during the resolution process.

Injunctions are of two kinds – temporary and permanent. As the name suggests, a temporary
injunction operates for a limited period of time. It is usually granted while the case is being
heard by the court and subsists as long as it takes to come to a final resolution of the matter. It
is an interim remedy (or relief) and such orders for temporary injunctions usually stand
vacated as soon as the final judgment is pronounced in the matter.

Specific Performance

As the name suggests, specific performance consists of those remedies that are in kind, and
not merely in cash. When an agreement is not fulfilled by one of the parties, it may give the
other parties a right to claim compensation against such non-fulfillment. In some situations,
the agreement is of a nature that mere compensation is inadequate. In such cases, the remedy
of specific performance is a route through which parties can be brought to a situation similar
to the one they would be in, had the agreement been carried out in its entirety. This is to
minimise the loss that may occur due to non-fulfillment of the agreement. Human rights
disputes are often of a unique nature — for instance, the loss of shelter or the loss of a means
of livelihood. When such situations occur, the loss (or damage) is beyond that of the money
involved. In such cases, the specific performance of an agreement providing such a right or
fulfillment of a duty by an authority (or abstaining from acting in a particular manner, as the
case may be) is a far better remedy since it fulfills a particular gap. In the law of contract, the
relief of specific performance is governed by the Specific Relief Act, 1963 (“SRA”). Do note
that this law is not applicable to situations that arise outside of a contractual nature.

However, the principles contained in this act with regard to the grant of specific performance
are important, as these can be considered as general guidelines while granting relief in the
form of specific performance. According to Section 10 of the SRA, specific performance
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may, at the discretion of the court, be enforced:

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  When there is no standard to ascertain the actual damage caused by the non-
performance of the act agreed to be done; or
 When the act agreed to be done is such that monetary compensation for its non-
performance would not be adequate relief.

While specific performance is often a far better remedy than compensation, it is not available
easily or as a matter of course. For instance, a contract cannot be specifically enforced where
monetary compensation is adequate relief for non-performance.

A court is not bound to grant specific performance merely because it is lawful to do so. This
jurisdiction is discretionary. A court may not, for example, grant specific performance where:

 In a contract, the terms of the contract, or the conduct of the parties, or the
circumstances under which the parties entered into the contract, though not voidable,
were such that they gave the person seeking specific performance an unfair advantage
over the other party or, The performance of the contract would involve some hardship
on the party against whom such specific performance is sought which the party did
not foresee, but which would not involve any such hardship on the party seeking such
performance; or
 The person against whom such specific performance has entered into the contract
under circumstances, which though not voidable, would make it inequitable to enforce
specific performance.

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