Universal Declaration of Human Rights

“Human Rights, Criminal Law and the Role of Judiciary”

By

J.L. Gupta

            The 20^th 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.”[1]

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 …’[2] 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.[3] 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.’[4]

 

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[5] to Gandhi[6]. 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.’[7] 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[8], 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[9], 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[10], 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[11], 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.

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[1] Due Process of Law.

[2] Malimath Committee Report 2003.

[3] NHRC Annual Report 2001-2002.

[4] Kartar Singh vs. State of Punjab (1994)3SCC 569 pp. 711.

[5] Gopalan vs State of Madras (1950) SCR 88

[6] Maneka vs UOI AIR 1978 SC 597

[7] Kartar Singh’s case (supra)

[8] (1978) 4 SCC 494

[9] (1993) 2 SCC 746 A letter from the mother of the deceased, a Youngman of 22, was treated as a petition under Art. 32. He had been taken into custody in a case of a theft in the village on Dec. 1, 1987. On the next morning, the dead body was found lying on the railway track with a handcuff and injuries. ‘Award of compensation in a proceeding under Art. 32 by the Supreme Court or by the High Court under Art. 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available in private law in an action based on tort.’ The court further said that ‘While granting relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Art. 21 it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in private law is indeed available to the aggrieved party.’

[10] (1997) 1 SCC 416

[11] (1997) 6 SCC 241