“Human Rights,
Criminal Law and the Role of Judiciary”
By
J.L. Gupta
The 20th century saw the
scourge of two wars. The world witnessed the holocaust of the Nazi regime and
the American Atom bomb. As the war ended, we were left with two armies. The
crippled and the mourners. The nations at war felt the futility of their
action. The world recognized the need to respect fundamental freedoms and human
rights. Sixty five years back, on Dec. 10, 1948, ‘the General Assembly of the
United Nations adopted and proclaimed the Universal Declaration of Human
Rights.’
The Declaration acknowledged that ‘disregard and contempt for
human rights have resulted in barbarous acts which have outraged the conscience
of mankind.’ It affirmed that ‘recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world.’ Thus, it laid down ‘a
common standard of achievement for all peoples and all nations’ which ‘every
individual and every organ of society … shall strive by teaching and education
to promote …’
The Declaration embodies a statement of basic social values.
It is a reiteration of the rights and freedom that every person irrespective of
his caste, sex or place of birth, is entitled to enjoy. Thus, it has been
acknowledged that ‘all human beings are born free and equal …’ They are
entitled to ‘all the rights and freedoms … without distinction of any kind …’
Everyone ‘has the right to life, liberty and security of person.’ No one can be
‘held in slavery’ or ‘subjected to torture.’ All ‘are equal before the law’ and
are entitled ‘to equal protection of law…’ They have a ‘right to an effective
remedy … for acts violating the fundamental rights …’ Every one is entitled to
protection against ‘arbitrary arrest.’ There is a presumption of innocence and
every accused must get ‘a fair and public hearing by an independent and
impartial tribunal …’
The rights - to privacy, to movement, to get ‘asylum’ so as
to escape persecution, to belong to a nation, to marry a person of one’s
choice, to own and possess property, to take part in the government of the
country, to have access to public service, to avail of social security and to get
education have been recognized. The need to guarantee freedom of assembly and
association; opinion and expression; of faith; to work in just and fair
conditions; to participate in the cultural life of the community, has been
unequivocally acknowledged.
While the world was fighting bloody battles and a violent
war, we in India, were engaged in a peaceful struggle for freedom. We
succeeded. Having got independence, we gave ourselves a Constitution. Justice -
social, economic and political; Liberty - of thought, expression, belief, faith
and worship; Equality - of status and of opportunity are the preambulatory
promises that the Constitution makes to the people of India.
Still more, just like the British Bill of Rights of 1688; the
French Declaration of the Rights of Man and of the Citizen, 1789 and the American
Bill of Rights of 1791, we incorporated human rights and freedoms as
Fundamental Rights at the threshold. These form Part III of our Constitution.
Illustratively, it may be mentioned that the right to equality as contained in
Arts. 1, 2, 4, 6 and 7 of the Declaration is found in Arts. 14 to 18 of
the Constitution. The rights to life,
liberty and privacy as contained in Arts. 3, 5, 9, 10 and 12 of the Declaration
are embodied in Arts. 21 & 22 of the Constitution. The freedoms figure in
Arts. 19 & 25. The Rights relating to social security and to work etc. are
in part IV. These are the goals that the State has to strive to achieve. The
duties as envisaged under Art. 29 of the declaration are delineated in Art.
51-A of the Constitution.
Every executive action and legislative measure has to meet
the test of Part III of the Constitution. If an Act passed by the Parliament or
a State legislature violates a provision in Part III, it is liable to be
declared void and struck down.
The rights exist. But what do these rights mean to the poor
for whom pavement is the only place to live and discarded crumbs the only food
to eat? We got freedom from foreign rulers more than six decades back. But have
we got freedom from the bias of caste, colour and creed till today? Have we
abandoned untouchability?
A reality check is indeed essential. However, in the context
of the subject I shall confine myself to considering the impact of the Rights
on the Criminal Justice Delivery System.
In the very nature of things, the State exists to protect its
people and their property. It has to ensure life and liberty; a dignified
existence for everyone irrespective of their caste, creed or station in life.
It must ensure ‘security to possessors, facility to acquirers and liberty and
hope to the people.’ It is with this objective that the society has evolved the
system of policing and justice. One of the essential attributes of the Criminal
Justice Delivery system is to protect the innocent and to punish the guilty.
In this process of protection and punishment, the cops and
the courts, have an important role to play. At the commencement of a case the
complainant or the criminal comes into contact with the constabulary. From the
stage of a mere suspicion as envisaged under section 41 of the Code of Criminal
Procedure to the filing of the final report under section 173, the police plays
a pivotal role in every case.
The importance of this role has been recognized. Lord
Denning, acknowledged this position when he said, “In safeguarding our
freedoms, the police plays a vital role. Society for its defence needs a
well-led, well-trained and well-disciplined force whom it can trust: and enough
of them to be able to prevent crime before it happens, or if it does happen, to
detect it and bring the accused to justice.”
In fact, the existence of ‘the orderly society depends on the
sound and efficient functioning of the Criminal Justice System’ and ‘… a prompt
and quality investigation is the foundation …’
The duty to ensure proper investigation devolves on
the ‘Daroga’ as well as the Director General.
In a civilized society, an honest investigation, a fair and
speedy trial, protection against self incrimination and effective legal
assistance are the basic postulates of the Justice System. We, in India are
wedded to the rule of law. Not to the rule of men. Thus, the State, its
instrumentalities and ultimately the Courts have to work in search for truth.
Collectively, all have to ensure that the sanctity of the constitutional
guarantees to the people is not sacrificed.
What do we actually find? The number of custodial deaths has
been on the rise. According to the Report published by the National Human
Rights Commission, the number was 34 in the year 1993-94. It had risen to 1305
in 2001-02.
The malpractices are multiplying. The action or inaction of the police is
invariably colored by considerations which militate against impartiality. It is
no wonder that the cant of criticism against the police is continuous.
The
‘citizen and the criminal, the press and the politician, the rogue and the
reformist’ denounce the police at every available opportunity.
Even the courts have found cause to condemn the
police. Decades back, we read the observations of Justice Mulla. Then in
Kartar Singh’s case, the Supreme Court said,
‘It
is heart rending to note that day in and day out we come across the news of
blood-curdling incidents of police brutality and atrocities, alleged to have
been committed, in utter disregard and in all breaches of humanitarian law and
universal human rights as well as in total negation of the constitutional
guarantees and human decency.’
Such being the perception about the police, how
shall we achieve the desired objective of Justice to the people – the criminal,
the victim and the witness to the crime? It is true that the
teacher who demanded discipline was never popular. The cop who is charged with
the duty to enforce law and order can have no reason to be an optimist. Yet,
experience shows that the shoddy investigation, failure to collect relevant
evidence and to produce it before the court are the paramount causes of
delaying the decision of cases and defeating justice.
Truly, the
existing situation is not ideal. It cannot be allowed to continue. The man in
uniform is the most visible symbol of the State’s authority. He can deprive
anyone of his liberty. Even life. Such being the sweep of his power, his
conduct must inspire confidence in the minds of the people. Thus, police
reforms are not an option but a national imperative.
But shall the reforms be ever a reality? We are aware of the
not too recent decision of the Supreme Court in Parkash Singh’s case. We have
also witnessed the response of the States. We have to wait and see. Till then,
the courts have to exercise extra vigilance. The criminal’s cunning and the
cop’s collusion exist. The nexus between the cop and the criminal has to be
broken. Only then, we can hope to fulfill the promise of Justice according to
law to the people of our country.
The criticism of the police apart, in Kartar Singh’s case (supra)
the Court made meaningful observations even with regard to the rights of the
citizen. It said,
‘We are undoubtedly committed
to uphold human rights even as a part of long standing heritage and as
enshrined in our constitutional law. We feel that this perspective needs to be
kept in view by every law enforcing authority because the recognition of the
inherent dignity and of equal and inalienable rights of the citizens is the
foundation of freedom, justice and peace in the world.’
These observations are really instructive. Everyone has to
comply with the constitutional parameters. The human rights have to be
respected by all.
What are these rights? Besides the protective umbrella of
Arts. 14 and 19, there is protection against self incrimination in Art. 20 of
the Constitution. Under Article 21, no person can be deprived of his ‘life or
personal liberty except according to procedure established by law.’ Still more,
Art. 22 inter-alia says that ‘No person who is arrested shall be detained in
custody without being informed … of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by a legal practitioner of his
own choice.’ Still more, no one can be normally kept in custody for more than
24 hours ‘without the authority of a magistrate.’
The words of the Constitution have been given meaning and
content by the courts. The apex court has construed these provisions liberally.
It has truly travelled a long distance from Gopalan
to Gandhi
.
It has been accepted that life is not mere ‘animal existence.’ It is now
accepted that ‘recognition of the inherent dignity and of equal and inalienable
rights of the citizens is the foundation of freedom and justice.’
And this aspect has been repeatedly reiterated by the apex court in various
cases. Illustratively a reference may be made to a few:
In Sunil Batra vs Delhi Administration
,
the Supreme Court while considering a petition under Art. 32 held that ‘
convicts are not wholly denuded of their fundamental
rights.’ The ‘solitary confinement has a degrading and dehumanizing effect on
the prisoners.’ Thus, the court gave a restricted meaning to the words of the
statute - ‘prisoner under sentence of death.’ As a result, a person sentenced
to death is not to be kept in solitary confinement till the conviction and
sentence attain finality.
Then, in Nilabati Behera vs State of Orissa
,
the court was considering the grant of compensation. It ruled that ‘
The old doctrine of only relegating the aggrieved to
the remedies available in civil law limits the role of the courts too much
as protector and guarantor of the indefeasible rights of the citizens. The
courts have the obligation to satisfy the social aspirations of the citizens
because the courts and the law are for the people and expected to respond to
their aspirations. The citizen complaining of the infringement of the
indefeasible right under Art. 21 cannot be told that for the established
violation of fundamental right to life, he cannot get any relief under the
public law by the courts exercising writ jurisdiction…. the courts have to
evolve ‘new tools’ to give relief in public law by moulding it according to the
situation with a view to preserve and protect the Rule of Law.’
In D. K. Basu vs State
of West Bengal
,
the court held that ‘
Custodial violence ,
including torture and death in the lock-ups, strikes a blow at the rule of law
… The rights inherent in Articles 21 and 22(1) of the Constitution require to
be jealously and scrupulously protected.’ The expression ‘life or personal
liberty’ in Art. 21 includes the right to live with human dignity and thus it
would also include within itself a guarantee against torture and assault by the
State or its functionaries.
Again in Vishakha etc. vs State of Rajasthan
,
the court noticed the
‘hazards to which a
working woman may be exposed.’ It acted to protect them against sexual
harassment. The court invoked Arts. 14, 15, 19 and 21 of the Constitution. It
also placed reliance upon the ‘Convention on the Elimination of All Forms of
Discrimination Against Women.’
Such instances can be multiplied.
While the Constitution prescribes the parameters for
protection, the Code of Criminal Procedure provides the rules governing
criminal cases. It makes elaborate provisions for the protection of the
accused. To illustrate:
Under S. 50 - A person arrested without warrant has a right
to be informed about the grounds of his arrest and of his right to bail. S. 56
requires the ‘police officer making an arrest without warrant’ to ‘take or send
the person arrested before a Magistrate having jurisdiction in the case, or
before the officer in charge of a police station.’ Similarly under Section 57 he cannot be
detained for more than 24 hours without producing him before a magistrate.
Section 75 of the Code provides that ‘the police officer or other person
executing a warrant of arrest shall notify the substance thereof to the person
to be arrested …’
Section 76 states: ‘The police officer or other person
executing a warrant of arrest shall … without unnecessary delay bring the
person arrested before the court before which he is required by law to produce
such person: Provided that such delay shall not, in any case, exceed 24 hours
exclusive of the time necessary for the journey from the place of arrest to the
Magistrate’s court.’
Broadly speaking, the Code has to conform to the
Constitution. The prescribed procedure has to be reasonable. The above
illustrations indicate that the constitutional mandate has been incorporated
into the rules of procedure.
But laws alone are not enough. These have to be applied and
implemented. This duty devolves upon the courts. They have to ensure that no
law becomes an instrument for injustice or a tool for torture.
The goddess of Justice is always holding the balance. Why? It
is symbolic of the court’s duty. To do justice. Under all circumstances. For
this, the courts can reduce the rigour of the strictest law. They can as well
enlarge the scope of a beneficent provision. But the courts have also to ensure
that the safeguards do not make the law enforcement impossible. It must be
remembered that there can be no justice without strength and no strength
without justice. Thus, the courts must ensure that the just are made powerful. Only
then, the powerful shall be just.
But I have a nagging doubt. May I share it with you?
The Criminal Justice Delivery System gives justice to the
criminal. Not to the victim. Should we not worry for the victim too?
Crime is the cult of the criminals. They are cruel to the
core. To illustrate: A nine year old boy is picked up by child pornographers
who have ‘conspired to produce a sex-snuff film’; the young Chopra children are
molested and murdered by the ‘intractably savage delinquents’ – Billa and Ranga;
the eyes of the suspected criminals are punctured with needles and doused with
acid by the custodians of law and order; ‘right under the nose of police; two
men convicted of rape escape, chop of the victim’s leg and she pays a gruesome
price for justice.’ Such instances can be multiplied.
The system protects these sinners against God and man. Their
life and liberty are treated as sacred and sacrosanct. They are ‘fed and
housed.’ They are given ‘legal, medical, psychological and psychiatric aid.’
Even education and vocational training. But have we ever imagined the terrible
torture and trauma that the victims of crime go through? Today, the victims of
crime are the ‘forgotten children’ of the Criminal Justice Delivery System.
The crime occurs when the law
enforcing agency fails to perform its duty. The victims suffer. Despite that
the society expects them to support the system. The agony begins when one goes
to make a report and continues even after the conclusion of the trial. The
victims are made to repeat the soul crushing details. They face the agony of
ruthless cross-examination. Despite telling the truth, they are called liars.
Their plight is pitiable. The psychological wounds that they suffer last longer
than physical injuries. The ‘post crime distress’ does not end with the
decision. We need to do something.
Law needs to be changed. Till then, I feel that S. 357 can be
invoked. It enables the court to provide the much needed solace to the victims
of violence. It can be usefully used to remedy the wrong. At least partially.
It needs to be constantly kept in view and invoked invariably by the courts in
the country.
And
then - Is the District Judiciary merely concerned with the Code and not the
Constitution? No! The District Judiciary is the foundation of the Justice
Delivery System. The police can register a case but has to report to the
magistrate. It can arrest the accused on suspicion. But it has to produce him
before the concerned court within 24 hours. Ultimately, it is the court that decides
as to whether the accused gets bail or goes to jail. It is the court that tries
the accused and decides his fate. In a nutshell, the rights, irrespective of
the label, shall remain merely recorded on paper unless given life by the
court. The District Judiciary is the true guardian of the rights of the people.
In addition, we need to remember that laws and law courts
alone can never ensure justice. First of all, every individual must correct
himself. Everyone must tell himself ‘I have no right to make my liberty the
curse of my neighbour. If I do, my actions can be the cause of chains and
fetters upon me.’ There is no liberty in doing wrong. A ‘vitiated state of
morals and a corrupted public conscience are incompatible with freedom.’ Thus,
if we want to preserve human dignity, everyone has to play his role properly.
We all want reform. But each one of us expects the other man to make a
beginning. Reform like charity must begin at home.
Then the policeman. He must realize that he is the
‘gatekeeper’ in the temple of justice. He must remember the words of Novalis
that ‘There is but one temple in the world, and that is the body of man.
Nothing is holier than this high form. - We touch heaven when we lay our hand
on a human body.’ The protection of a person is the duty. This duty is the debt
that every policeman owes to the society. He must discharge it without delay or
demur.
The Judge in court is the deity in the temple. He sees
neither the plaintiff, nor the pleader. Every court, at whatever level, should be
the ‘protector and guarantor of the indefeasible rights of the citizens.’
The courts ‘have to evolve ‘new tools’ to give relief… by moulding it
according to the situation with a view to preserve and protect the Rule of Law.’
Inequity in the name of law is the worst injustice. We must guard against
injustice.
Today, there is criticism of courts. In fact, it has become
fashionable to blame the courts. People suggest that the system has collapsed.
The media campaigns to seek justice for Jessica and the like. Everybody seems
to forget that the courts do not deliver ‘justice by plebiscite.’ The court has
to decide every case on the basis of the evidence produced at the trial of the
case. Not on what is discussed in drawing rooms, spoken in streets or talked in
trains. Thus, the judges have to learn to ignore the insinuations with
indifference.
All of us must strive to create an environment in which a
person should not be scared of carrying a dying man to the hospital or
reporting a crime to the police. He should be able to depose fearlessly in
court. The system must ensure that a person who stands as a witness in court is
not embarrassed or harassed. Only then can the search for truth and justice can
become a reality.
Shall we strive? I am an incorrigible optimist.
