Human rights first!


Many of India’s State Human Rights Commissions are today dysfunctional. Hence, the latest Supreme Court pronouncement for better accountability and functioning of these Commissions, is a welcome step in the right direction, says Niyati Vakil.

Almost 18 years after the landmark judgment in 1997 of D.K. Basu v. State of West Bengal through which guidelines and directions were issued to ensure prevention of custodial deaths, comes another landmark pronouncement. The former dealt with and recognised custodial deaths as a naked violation of human rights and human dignity. The Supreme Court also went on to observe that while the freedom of an individual must yield to the security of the State, the right to interrogate the detenus, culprits or arrestees in the interest of the nation must take precedence over an individual’s right to personal liberty, but keeping in mind that the action of the State must be just and fair.

The dysfunctional SHRCs
Appointed as Amicus Curiae or assisting friend of the court, Dr. Abhishek Manu Singhvi, senior advocate, prayed for further directions in this regard keeping in mind the basic principle of making accessibility to justice a reality. Various states of India were required to respond to unanswered questions where State Human Rights Commissions (SHRC) remained dysfunctional.

Dr. Singhvi was simultaneously requested to identify areas that needed attention and make specific recommendations for consideration of the court based on the responses filed by the States/Union Territories to the application filed by him. Most important, these proceedings were sought to be concluded as they had remained pending before the court for over 30 years.

Despite an opportunity being granted for the purpose, the states that had failed to set-up Human Rights Commissions had not come forward to offer any justification for their omission to do so. As pointed out by Dr. Singhvi, the problems of insurgency, foreign immigration, tribal warfare and ethnic violence apart from custodial violence and deaths, which are rampant in each state, must be considered for this very purpose, making it of utmost importance to have a proper authority to look into such violations and grant redressal wherever sought. In its consideration of the matter, the court gave due regard to the Universal Declaration of Human Rights adopted by the United Nations (UN) General Assembly in December 1948. India, through an ordinance promulgated by the President on 28 September 1993, had provided for the constitution of a National Human Rights Commission (NHRC) and SHRCs in the states and Human Rights Courts for better protection of human rights. The ordinance was thereafter replaced by the Protection of Human Rights Act, 1993.

The Statement of Objects and Reasons of the Protection of Human Rights Act, 1993 inter alia mentions India as a party to various UN Conventions aimed at protecting human rights. Further, it states that our Constitution embodies and safeguards substantially such human rights.

SHRCs ‘shall’ or ‘may’ be formed?
A careful analysis of the wordings of the section in the Act dealing with setting up of the National and State Human Rights Commissions draws attention to the clarity instilled in the legislative intent of the statute. The wordings of the section came up for analysis where the terminology used by the Parliament for the formation and constitution of SHRCs translates into the word ‘may’ and the corresponding constitution of the NHRC is prefixed by the word ‘shall’. The meaning of the two expressions cannot be read differently and must be read in context of the legislative intent with which the statute itself was drafted.

Any meaning digressing from such intent would necessarily defeat the fundamental purpose of the Act. The interpretation constituting the setting up of the Commissions in light of the above principles highlights that the Act is aimed at providing a transparent and efficacious mechanism for the prevention of violation of human rights at the national as well as the state level. The powers exercisable by the State Commissions are therefore identical to those exercised by the NHRC and their constitution cannot be optional as compared to mandatory.

The setting up of SHRCs will make possible the formation of a solid network enabling protection of human rights throughout the country. It has therefore the capability of functioning at multiple levels and even working its way through to grass roots level implementation of essential basic human rights.
By virtue of formulating such a network the access to justice, a fundamental right becomes available to a greater number of people. Awareness and access to such justice are few reasons, amongst other things for ensuring the State Commissions are constituted responsibly and not just as a farce. Access to justice is a fundamental right and all persons must be able to approach such forums when they so require. The need for setting up of the State Commissions was reinforced without which justice in its true sense cannot be realised.

The ideal SHRC
To facilitate the same, the Court issued directions to certain specified states to set up State Human Rights Commissions within a period of six months; filling up of vacancies to posts of chairpersons/members because of which various duties of Commissions remained unfulfilled; all appropriate action to be taken by state governments for setting up Human Rights courts for access to justice by all persons to become a reality; installation of CCTV cameras in all the prisons in states at the earliest to identify and curtail crimes against human rights being committed; consideration of installation of CCTV cameras in police stations depending upon the incidents of human rights violation reported therein; state governments to launch in all cases where an enquiry establishes culpability of the persons in whose custody the victim has suffered death or injury, an appropriate prosecution for the commission of offences disclosed by such enquiry report and/or investigation in accordance with law and; consideration of deployment of at least two women constables in each police station wherever considered necessary.

The need for protection of human rights remains intertwined with good governance and welfare of the community at large. Laying emphasis on promotion and protection of human rights becomes vital in society. The rule of law can only be realised in its true sense if human rights are prevented from being violated, and the tone of this judgment is a reiteration of this principle. It is in extension of this spirit that the court has passed this landmark judgment and rightly so.


Niyati Vakil

The writer is a final year law student at Government Law College, Mumbai, and is at present serving Articleship of Solicitors with Tyabji Dayabji, Advocates, Solicitors & Notary, Mumbai.