Transcript Document

PRESENTATION AT 11TH HRSS
24 DECEMBER, 2010
RESOURCE PERSON
MAJ. GEN. NILENDRA KUMAR,
FORMER JUDGE ADVOCATE
GENERAL (ARMY)
AND
DIRECTOR,
AMITY LAW SCHOOL, NOIDA, INDIA
INDIAN JUDICIARY
ON
HUMAN RIGHTS
AND
ARMED FORCES
If there were no bad people, there would be
no good lawyers.
Charles Dickens
APPROACH
1.
2.
3.
4.
5.
6.
What are Human Rights
Statutory framework
AFSPA
HR and the Armed Forces
Case Law
Conclusion
HUMAN RIGHTS
DEFINITION
Certain basic, inalienable and fundamental
rights as well as freedoms that every
citizen enjoys irrespective of the country
he belongs to.
HUMAN RIGHTS
These are universal and belong to
every one, rich or poor, male or
female. Such rights may be violated
but they can never be taken away.
CONSTITUTION OF INDIA
Human Rights go by a different name.
Incorporated as Fundamental Rights.
CONSTITUTIONAL PROVISIONS
1.
Right to Equality
Article 14
-Equality before Law.
Article 15
-Prohibition of discrimination
on grounds of religion, race, caste, sex or
place of birth.
Article 16
-Equality of opportunity in
matters of public employment.
Article 17
-Abolition of un-touchability.
Article 18
- Abolition of titles.
2. Right to Freedom
Article 19Protection of certain rights
regarding freedom of speech etc.
Article 20Protection
conviction for offences.
Article 21Protection
personal liberty.
in
of
respect
life
of
and
Article 22 - Protection against detention
in certain cases.
ARTICLE 21
Protection of life and personal liberty: No
person shall be deprived of his life or personal
liberty except according to procedure
established by law.
3.
Right against Exploitation
Article 23Prohibition of traffic
human beings and forced labour.
Article 24 -
of
Prohibition of employment
of children in factories, etc.
4.
Right to Freedom of Religion
Article 25 - Freedom of
pursuit of profession,
propagation of
religion.
Article
affairs.
26-
Freedom
to
conscience
practice
manage
of
free
and
religious
Article 27 Freedom as to payment
taxes for promotion of any particular religion.
of
Article 28 Freedom as to attendance
at
religious instruction or religious worship in
certain educational institutions.
5. Cultural and Educational Rights
Article 29 minorities.
Protection
of
interests
of
Article 30 - Right
of
minorities
to
establish
and
administer
educational
institutions.
6.
Right to Constitutional Remedies
Article 32 Remedies.
Right
to
Constitutional
ARTICLE 355
Duty of the Union to protect States against
external aggression and internal disturbance. It
shall be the duty of the Union to protect every
State against external aggression and internal
disturbance and to ensure that the government
of every State is carried on in accordance with
the provisions of this Constitution.
The word aggression was examined and its import
gone into by the Supreme Court in Sarbananda
Sonowal’s case, (2005) 5 SCC 665.
INTER PLAY
1. Human Rights.
2. Armed Forces.
3. Higher Judiciary.
CODE OF THE WARRIOR
I am a warrior. Defending my nation is my
dharma. I will train my mind, body and spirit to
fight. Excel in all devices and weapons of war,
present and future. Always protect the weak. Be
truthful and forthright. Be humane, cultured and
compassionate.
Fight and embrace the consequences willingly.
God, give me strength that I ask nothing of you.
The Bhagwad Gita
RELEVANT STATUTES
• Constitution of India, 1950
• Army Act, 1950
• The Armed Forces (Special Powers)
Act, 1958
• Geneva Conventions Act, 1960
• The Protection of Human Rights Act,
1993
• The Unlawful Activities (Prevention)
Act, 1967 (Amendment Act 2008)
ARMED FORCES (SPECIAL
POWERS) ACT, 1958
Preamble
To confer certain special powers upon
members of the Armed Forces in
disturbed areas.
THE ARMED FORCES (SPECIAL
POWERS) ACT, 1958
1. Notification
2. Special Powers
a) Fire upon or otherwise use force.
b) Destroy arms dump, fortified position
or shelter etc.
c) Arrest without warrant.
d) Enter and search without warrant.
3. Protection
PROTECTION
SECTION 6
Prior sanction of the Central Government
before instituting any prosecution, suit or
other proceedings.
CODE OF CONDUCT
1. Avoidance of HR violations under all
circumstances.
2. Be compassionate.
3. People friendly operations. Ensure least
possible inconvenience and harassment.
4. Use of minimum force. Avoid collateral
damage.
5. Co-opt Police representative/women Police.
6. Be truthful and honest (WHAM).
7. Sustain physical and moral strength.
THE PROTECTION OF HUMAN RIGHTS
ACT 1993
Preamble
Enacted for better protection of Human
Rights and for matter connected therewith.
MAIN FEATURES
1. Setting up of NHRC
2. State Human Rights Commissions
3. Human Rights Courts
FUNCTIONS
1. Inquire a violation of HR on a petition or suo
motu.
2. Intervene in any such proceedings.
3. Visit any jail or other institution and review
safeguards provided under the Constitution.
4. Review facts including acts of terrorism.
5. Study treaties and make recommendations.
NHRC AND ARMED FORCES
(Sec 19 of Protection of Human Rights Act)
1.
Procedure with respect to Armed Forces.
Notwithstanding anything contained in this Act, while dealing
with complaints of violation of human rights by members of
the armed forces, the Commission shall adopt the following
procedure, namely:(a)
it may, either on its own motion or on
receipt of
a petition, seek a report from the
Central Government.
(b)
after the receipt of the report, it may,
either not
proceed with the complaint or, as the
case may be, make its recommendations to
that
Government.
2.
The Central
commission
of
recommendations
further time as the
Government shall inform the
the
action
taken
on
the
within three months or such
Commission may allow.
3.
The Commission shall publish its report
together with its recommendations made to the
Central Government and the action taken by the
Government on such recommendations.
4.
The Commission shall provide a copy of the
report published under sub-section (3) to the
petitioner or his representative.
CASE LAW
REACH OF DECISIONS
1.
2.
3.
4.
5.
6.
7.
8.
Validity of AFSPA.
Guidelines in Naga People’s case.
Control on power of military.
Aggression and war.
Custodial violence.
Disappearance of a detenu.
Imposition of death sentence.
Compensatory justice.
Naga People’s Movement of Human Rights
V
Union of India; AIR 1998 SC 431;
(1998) 2 SCC 109
SCRUTINY BY THE SUPREME
COURT
1. Act not a colourable legislation.
2. Not a fraud on the Constitution.
3. Does not amount to handing over the
maintenance of public order to the
Armed Forces directly.
4. Conferment of drastic powers under
Section 4 is not discriminatory or
arbitrary.
CHECKS/SAFEGUARDS INTRODUCED BY
THE SUPREME COURT
1.
2.
3.
4.
5.
6.
Periodic review of declaration before expiry of
six months.
Desirable for Central Government to consult
State Government.
Armed Forces not to supplant or act as
substitute for the civil power. State
administration will continue to function.
Armed Forces personnel to use minimum force.
Hand over arrested person within 24 hours to
nearest Police Station.
Procedural safeguards under CrPC for search
and seizure to be followed.
7. Disregard to Do’s and Don’ts to invite
action under the Army Act.
8. Co-opt women police.
9. Award of compensation.
10. Speaking order under section 6.
IMPLIED POWERS
1. To interrogate.
2. To retain custody of seized
weapons.
GUIDELINES ON NAGA PEOPLE’S CASE
In a case where despite the police station located a stone’s
throw away, no effort was made by the Army to convey the
information regarding the deceased to the police at the
earliest and the police was called only in the morning after
the deceased had been done to death.
Held, application of the guidelines referable to Section 6
and in Naga people’s case cannot be mechanically applied
and must of necessity relate to the facts of each case.
Herein, the time gap between the arrest and the death was
clearly minimal.
Masooda Parveen V Union of India; (2007) 4 SCC 548
CONTROL ON POWERS OF
MILITARY
Fundamental Rights cannot be given
away to the control of military
authorities or tribunals.
CS RAO V THE SUPREME COMMANDER
AGGRESSION AND WAR
The word ‘aggression’ is not to be confused
only with ‘war’. Though war would be
included within the ambit and scope of the
word ‘aggression’ but it comprises many
other acts which cannot be termed as war.
The word aggression is an all comprehensive
word having very wide meaning having complex
dimensions. Its meaning cannot be explained by
a straitjacket formula but will depend on the fact
situation of every case and its impact. For
example, there could be a unique type of
bloodshed aggression from a vast and incessant
flow of millions of human beings forced to flee into
another State. If this invasion of unarmed men in
totally unmanageable proportion were to not only
impair the economic and well being of the
receiving victim State but to threaten its very
existence it would have to be categorised as
aggression. In such a case, there may not be use
of armed force across the frontier since the use of
force may be totally confined within one’s territorial
boundary, but if this results is inundating the
neighbouring State by millions of fleeing citizens of
the offending State, there could be an aggression
of a worst order.
The stand of India before the UNO has been that influx of
large number of persons from across the border into India
would be an act of aggression. The definition of
aggression as adopted by the UN General Assembly
Resolution 3314 was, for a limited purpose, namely, where
the Security Council or UNO could interfere and adopt
measures in the event of an aggression by one nation
against another and the acts enumerated therein which
may amount to aggression. This definition cannot
restrict or curtail the meaning or the sense in which the
word aggression has been used in Article 355 of the
Constitution.
Sarbananda Sonowal V Union of India; (2005) 5 SCC 665
CUSTODIAL VOLENCE
(in the context of Police)
Torture, rape, death in police custody/lock up infringes
Article 21 as well as basic human rights and strikes a blow
at rule of law. Torture involves not only physical suffering
but also mental agony. It is naked violation of human
dignity and destructive of human personality. Interrogation
though essential must be on scientific principles. Thirddegree methods are totally impermissible. Custodial death
is one of the worst crimes in civilised society. State
terrorism is no answer to terrorism. Transparency of action
and accountability are two safeguards against abuse of
police power.
DK Basu V State of West Bengal; (1997) 1 SCC 416; AIR
1997 SC 610
DISAPPEARANCE OF A DETENU
Now what remains to be seen is as to what relief the
petitioner is entitled to missing of precious and valuable life
from the custody of the respondent is definitely an act of
infringement of fundamental rights. Although precious life
cannot be measured in terms of Rupees in the light of
various judgements of the Apex Court, the petitioner is at
least entitled to adequate compensation at this stage……
The Union of India is vicariously liable for any acts or
commission of its instrumentality even if they acted beyond
their authority.
Zukheli Sema, Smt. V Union of India; 1999 Cri LJ 70
(Gauhati)
IMPOSITION OF DEATH SENTENCE
Accused members of Veerappan gang causing
death of 22 persons and injuries to several others
by blasting of landmines. Trial was held under
Terrorist and Disruptive Activities (Prevention) Act,
1987. Accused were awarded life imprisonment.
A question arose, when would the imposition
of death sentence be valid by enhancing of
life imprisonment.
Held, the nature of crime and accused should be
considered. Aggravating and mitigating
circumstances should be weighed in the context of
facts and circumstances of the case. That
accused persons were compelled to join the gang
by the gang leader cannot be considered as a
mitigating circumstance in isolation.
Simon & others V State of Karnataka;
(2004) 2 SCC 694
COMPENSATORY JUSTICE
Nobody is authorised under the mandate of the Constitution to take
away the right of life and liberty of a person except according to
procedure established by law. Respects for the rights of individuals is
the bedrock of true democracy. It is the bounden duty of the State to
repair the damage done by its officers to the individual’s rights. In
order to prevent the violation of such right reasonably and
also to secure the due compliance of Article 21, it is needed to mulch
its violations in the payment of monetary compensation.
Tekarongsen Sir and others V Union of India; Guwahati High Court
(Imphal)
WP No. 591 of 1999. Order dated 24 April, 2001
PROPRIETY OF BIAS AGAINST STATE
AS A LITIGANT PARTY
In an investigation based only on affidavits, with a
hapless and destitute widow in utter despair on the
one side and the might of the State on the other;
the search for the truth is decided by unequal and
the court must therefore tilt just a little in favour of
the victim.
Masooda Parveen V Union of India; (2007) 4
SCC 548
The acceptance of indiscipline is even
more disastrous than indiscipline itself.
Nani Palkhivala
It must be remembered that merely
because power may sometimes be abused,
it is no ground for denying the existence of
power. The wisdom of man has not yet
been able to conceive of a government with
power sufficient to answer all its legitimate
needs and at the same time incapable of
mischief.
State of Rajasthan V UOI; 1978(1) SLR 1
No system of justice can rise above the
ethics of those who administer it.
Wickersham Commission
THANKS