ROAD MAP FOR HUMAN RIGHTS JUSTICE

Pattabhi Rama Rao Kovuru*

One of the great achievements of modern political and legal thought is the rise

of human rights. The subject is now considered to be important in all walks of human

life and across continents and different cultures. Enough legal literature on origin and

development of human rights is in circulation and no fresh attempt in this paper in

this regard is needed as the point for focus here is entirely different. There are

however, serious critics who consider subject of human rights as a trick of language

without any foundational base in truth or empirical reality. This criticism is a mixture

of truth and myth. “Human Rights” is a concept with strong philosophical base and

during course of time, legal and political scholars developed a structure of this

otherwise scattered subject. Courts have contributed rise of issues of human rights by

progressive interpretation of constitution and other statutes. Human Rights literature

with legal, social, political and philosophical underpinnings failed to transform these

rights in to empirical reality. Supreme Court of India, which gained respect in Asian

region as progressive protector human rights, stood tall in deciding and defending the

human rights of the citizens. Human rights jurisprudence developed in the

neighboring countries is by and large Indo-centric.

 Despite enjoying such great reputation, fruits of authoritative pronouncements

of the Supreme Court did not reach the man at the bottom. Picture of human rights is

grim and discontenting. National Human Rights Commission and State Human

Rights Commissions established under the Protection of Human Rights Act, 1993

with their seats in New Delhi and respective State capitals can afford to serve little

acting within the sphere of the statute under which they were established. Functioning

of National Human Rights Commission in issuing directions and formulating

guidelines regarding certain practices is however appreciable and occasionally State

Human Rights Commissions also acted fairly well.

But whether these two bodies, one at State level and another in New Delhi can

deal with all kinds of human right violations through out the country? How many

sufferers of human rights violations have easy to access to these bodies? Statistics

available on the website of NHRC reveal that it is only very few that are able to

approach them. Following can be mentioned as reasons for poor access to Human

Rights considering and for their poor functioning:-

1. Victims of violations or complainants who reside far away from capital cities

find it difficult to reach the NHRC and SHRCs due to geographical barriers.

2. Often, apart from victims, witnesses also have to be examined by the enquiring

authorities. These witnesses may not be willing to travel along with the victims

or complainants.
3. If large number of complainants pour in to Human Rights Commissions, it

may not be possible to examine all of them and this situation may result pick

and choose policy.

4. Complainants/victims or witnesses may not feel comfortable at a place far

away from their residence to give evidence in different environment in which

they do not have the support of their near and dear. Particularly in the face of

trauma after occurrence of human rights violations, victims or even the

witnesses need emotional support.

5. Perpetrator of human rights violations get enough time and opportunity to

intimidate and prevent the victims from reaching the Human Rights

Commissions.

6. Time consumed between the occurrence and reporting as well as recording the

statements of witnesses seriously affect their memory and credibility.

7. Having understood from the experience that the large number of victims are

from the groups of poor and average income levels, financial constraints is a

serious challenge for them in approaching the Human Rights Commissions.

8. In hilly areas like North-eastern States, Jammu and Kashmir, Himachal Pradesh

and forest tracks of Uttarakhand lack of adequate transport facilities to the

 main land of the State is an additional hardship. Same is true in cases of

Andaman and Nicobar and Lakshadweep islands.

9. It may not be possible for the enquiring Human Rights Commission to easily

summon any documents if required to appreciate the oral testimony and

understand the situation.

10. Above all the skeleton staff and scant facilities at SHRCs and NHRC stand

strong between human rights violations and human rights justice.

The above non-exhaustive list of reasons elevates the cause for setting up of Human

Rights Protection Stations at all easily approachable places to the common man.

When public authorities and more particularly the police and revenue wings of

executive from top to grass root levels behave in reprehensible manner and quite

often violate basic human rights of citizens, availability of a mechanism at grass root

levels is a dire need. In this back drop the author of this write up proposes an easy

and effective way of protection of some of the human rights at grass root levels, by

involving legal services institutions established under the Legal Services Authorities

Act, 1987.

The idea is to provide for compensation to the victims of human right violations after

making an enquiry in to the allegations by a committee set up for the purpose of the

enquiry. Under the provisions of the Legal Services Authorities Act, 1987, National
Legal Services Authority State Legal Services Authorities, District Legal Services

Authorities (DLSA), Taluq Legal Services Committees (TLSC) were established in all

the States and Union territories. Composition of bodies under these institutions is a

combination of civil servants, judicial officers, advocates and representative of civil

society. Permanent Lokadalats were also constituted under the provisions of Legal

Services Authorities Act, 1987and their function hither too is confined to conciliation

and mediation. This set up has been looking after various activities relating to free

legal services and legal literacy. A better and decentralized system for protection of

human rights can be developed by involving human rights courts, Legal service

institutions and SHRCs as supervising bodies by amending the provisions of The

Protection of Human Rights Act,1993 and The Legal Services Authorities Act,1987.

Proposed System

Human rights violations need to be enquired in to it and at the same time there shall

be fool proof system to protect the public servants from false allegations. A system

shall be constituted in which every care shall be taken to see that enquiries are not

delayed for any reason. Entrusting the task to overburdened judicial officers alone

results in delay in enquiries contemplated under proposed scheme. Further the judicial

officers who day in day out follow civil and criminal procedure codes tend to follow

those procedures. As it is said that collective wisdom shall prevail over the individual

reasoning the enquiries proposed in the scheme shall be made by committees

constituted for the specific purposes. Under the proposed system all the Taluq Legal

Services Committees shall be declared as Human Rights Protection Stations. They

shall be rechristened as “Taluq Legal Services Committees cum Human Rights

Protection Stations”. Since the term ‘Human Right violations’ is not defined and the

term as it is being used too wide and general the government has to enumerate the

list of human right violations in respect of which such complaints can be made to

TLSCs in the guide lines or rules framed for this purpose. Every TLSC shall be

authorized to receive complaints relating to those human rights violations by public

authorities and refer the same to the committee constituted for making enquiries. The

following committees shall be constituted for every DLSA and TLSC.

Human Rights Protection Committee for TLSC

Every State Government in consultation with State Legal Service Authority shall

constitute a Human Rights Protection Committee(HRPC) for every TLSC with

chairman of TLSC as chairman of the HRPC and four members out of which one

shall be advocate, one shall be a retired government servant and one social worker

preferably human rights activist and one retired police officer. At least two out of the

four members shall be women. Chairman of HRPC shall decide minimum number of

the quorum from time to time basing on the gravity of the allegations and as far as

possible all the members shall present and participate in conducting the enquiry. In

district head quarters where DLSA alone renders legal services HRPC shall be
constituted on the similar lines stated above with one of the judicial officers working

at that place as it’s chairman and other members as stated above.

Human Rights Protection Review committee for DLSA

Every State Government in consultation with State Legal Service Authority shall

constitute a Human Rights Protection Review Committee (HRPRC) for every DLSA

with it’s Secretary as the chairman and four members out of whom one shall be

advocate, one shall be a retired government servant and one social worker preferably

human rights activist and one retired police officer. At least two out of the four

members shall be women. Chairman of HRPC shall decide minimum number of the

quorum from time to time basing on the gravity of the allegations and as far as

possible all the members shall present and participate in the reviewing work

undertaken by the committee.

Procedure for enquiry by HRPC

Officer in charge of every Human Rights Station who is not below the rank of a

junior assistant (L.D.C) or any employee specially authorized by the chairman of the

DLSA shall receive the complaints of human rights violations. If the complainant is

not in a position to give a written complaint the in charge officer shall reduce the

same in to writing and prepare a Complainant Information Report (CIR) in the form
that shall be prescribed by the rules and guidelines made for this purpose of

implementation of the Scheme. The officer in charge shall make three copies of the

same and send one copy to the District collector, one copy to the State Human Rights

Commission and place the same with the original complaint or statement before the

Chairman of TLSC without any delay. One copy shall be furnished to the complainant

free of cost. The Chairman if satisfied that the complainant constitute violation of

Human Rights that can be enquired by HRPC shall intimate all the members of the

HRPC and initiate enquiry on the same day or if not practicable on the following day

of the registration of CIR. The statement of the complainant, victim and witnesses

shall be recorded by any of the members of the committee under the supervision and

in the presence of the chairman and if there are more number of witnesses

simultaneous recording of the statements of more than one witness also can be

ordered by the chairman. The Chairman either suomotu or on oral or written request of

the complainant or victim or witness can summon any document from the possession

of any public authorities for perusal or he can order for furnishing of the certified true

copies of the same.

The chairman shall peruse all the statements and documents if any summoned and

produced before him. There after he shall prepare the substance of allegations of

Human Right violations and once primafacie he is satisfied that human rights of the

victims which can be enquired by the committee are violated he shall issue notice to
the alleged violator asking him to state or file a written statement if he so desires

before HRPC why the committee shall not recommend for payment of compensation

by him/them to the victim/s. If the alleged violators appear the committee shall hear

the alleged violator and any statements given by him or his witnesses shall be

recorded. Any written statement filed by the alleged violator on the day of his

appearance also can be received and no adjournment can be given for filing such

written statement there after. The chairman can summon any document at the request

of alleged violator and after perusing those statements and documents he shall

prepare the substance of his defence. While recording the statements or immediately

after recording the statements chairman or any of the members of the committee can

put any question to the person whose statement is being recorded to get clarifications

regarding the facts relating to the incident. It is to be noted that neither the victim nor

the alleged violator has right to cross examine the witness and the chairman or

members of the HRPC can put any kind of questions to the witnesses who give

statements regarding the allegations.

If the alleged violator/s fails to appear or intentionally avoids service of notice on

him, after recording reasons for such conclusion the chairman can proceed with

enquiry in the absence of the alleged violator. How ever he can attend before the

committee any time during the enquiry and participate in enquiry from that stage

without insisting for any denovo enquiry. Basing on the statements recorded and
material available on record he shall formulate questions of fact and furnish the same

to all the members who participated in the enquiry and each of them shall answer the

questions in best of his judgment with in two days after receiving them from the

office of the chairman. Chairman of the committee after considering all the material

before him and after giving due consideration to the opinions of the members of the

committee shall prepare a final repot along with the entire record and send the same

to DLSA recommending awarding of compensation after reviewing the report.

Procedure for Review and determination of compensation

On receipt of the final report from the chairman of the HRPC the Secretary of DLSA

shall go through the record and findings of the committee and if the secretary is

satisfied that the TLSC and HRPC followed the procedure and that the finding is not

perverse, the report shall be circulated to the members of HRPRC requesting them

to make their comments. If the chairman of HRPRC finds any objection to the report

or finding of the HRPC he shall circulate such objections along with the report

requesting them to offer their comments and any other objections. If any adverse

comment/objection to the report is received from any of the members the chairman

of HRPRC shall request other members to give their opinion regarding objections

raised and after considering all the objections/comments if any received by him if the

chairman is satisfied that the objections are not worth considering he shall issue notice

to the violator and victim to hear on compensation that can be awarded to the
victims. Notice shall be issued to the alleged violator even in cases where he was set

exparte during the enquiry by HRPC. After issuing the notice HRPRC can consider

the report even when one or both the parties are absent. If the chairman of HRPRC

reaches the conclusion that the finding arrived by the HRPC is perverse he shall

record reasons for his dissatisfaction and pass orders accordingly intimating the same

to the alleged violator and victims. When the chairman of HRPRC is satisfied with the

report he shall issue notice to the victim and violator to be present for hearing on the

quantum of compensation The committee after hearing the alleged violator has to

determine the compensation that shall be payable to the victim and pass an award

directing the violator to pay the same and in case he agrees to pay and requests time

for complying with the award of compensation payment can be ordered to be made

out of the Victim Compensation Fund created under Section 357-A of the Code of

Criminal Procedure,1973 and can be recovered from the public servant either from

his salary or by any other mode which the committee deems fit and proper in the

circumstances of the case but with in one year from the payment of compensation. As

on today it is only the victims of crime who can be awarded the compensation out of

the fund created under section 357-A Cr.P.C and required amendments can be made

to bring the cases of compensation to the human rights violations also under the

scheme. Guide lines also shall be issued regarding quantum of compensation that can

be awarded by the committee and the procedure to recover the same from the public

servant in service and when he is retired. In order to ensure fairness in the process a
copy of every award passed by the Committee constituted by DLSA shall be sent to

the State Human Rights Commission which has to oversee the function of the

Human Rights Stations working in the State.

Appeal to Human Rights Court

There shall not be any appeal or revision against the orders passed by the HRPRC

except as provided by the Statute. Amendments to the Legal Services Authorities Act,

1987 and The Protection of Human Rights Act, 1993 shall be made to granting right

to appeal to the Human Rights Court established under the Provisions of the Human

Rights Protection Act, 1993 against the order of refusal to make any enquiry by the

Chairman, TLSC (initial stage).In such an appeal the scope of the enquiry shall be

limited to the question as to whether the Chairman, TLSC requires to order an

enquiry in to the CIR or in other words whether the allegations in the CIR constitute

human rights violations which can be enquired by HRPC. Provision also shall be

made so that any person aggrieved by the passing of the award, by HRPRC shall

have the right to file an appeal, challenging the award or quantum of the

compensation awarded, to the Human Rights Court and if the appeal is filed by the

violator it can be entertained only after the appellant obtaining leave of the said court.

In those cases where the enquiry by HRPC and HRPRC was conducted in the

absence of the parties also the aggrieved can file an appeal and he shall not have any

liberty to file any kind of applications for annulling the enquiry report by HRPC or
determination of compensation by HRPRC. While dealing the applications for leave

the court has to consider whether the application for leave is filed only for defeating

the ends of justice or for delaying the execution of the award. In the appeals filed by

the violators only after satisfying that there is substance in the contention of the

appeal shall be entertained and there shall not be any such requirement for the appeals

filed by the victims. The Human Rights Court while hearing the appeal shall examine

whether the HRPC and HRPRC conducted enquiry or awarded compensation is as

per the rules and guidelines. The court also can interfere when the report of the

HRPC is perverse.

Provisions shall be made similar to those that are found in the Prevention of

Corruption Act to bar the courts from grating stay by any court by enquiry or review

by HRPC or HRPRC or on recovery of compensation from the violator.

Amendments shall be made in the Legal Services Act, 1987 and Human Rights

Protection Act, 1993 Acts for establishing the above system.

Advantages of the System

The system of human rights protection narrated above has the following advantages:

1. It provides for a decentralized mechanism for protection of human rights and will

have all the advantages of decentralization of any system.

2. It enhances to access to justice. Under this system victims will have easy access to

justice and a speedy remedy too.

3. Though it is a civil remedy it deters the public servants from indulging in acts that

tend to violate human rights.

4. The complicated procedures of recording evidence of the witnesses and their cross

examination is completely dispensed with. No party will have the right to cross

examine any witness and they can give statements and file documents to prove their

contentions. Members of HRPC can put any number of questions to the witnesses to

find out the truth.

5. The proposed system of human rights protection can be implemented with little

alterations to the existing mechanism for providing the legal services by involving

legal service institutions.

6. Existence of a human rights protection mechanism at local level and it’s easy access

to all itself deters the public servant from committing acts of human rights violations.

7. A three tier system affords protection to the public servants from frivolous

allegations and scrutiny by the HRPRC checks irregularities if any committed by

HRPC and during the course of time the path of human justice will be systematized.
8. Compensation to the victims of human rights violations by the public servants

which is a public law remedy that can be granted by the constitutional courts can be

made available to the one who can not approach such courts.

9. Witnesses can be examined at ease and relevant documents also can be summoned

and sent easily.

10. Possibility of intimidating or influencing the witnesses comes down as statements

of witnesses are recorded immediately and in the environment that is familiar to them

than at a far away places.

11. The decisions of HRPC and HRPRC will be the result of collective wisdom of

several members and in case of difference of the opinions amongst the members

chairman can reach to a conclusion which will be reviewed by another committee.

12. A simplified procedure for enquiry, determination and recovery of compensation

from the errant public servant absolves the victims of the ordeal of execution

proceedings.

While the above are some of the advantages of proposed system enough care shall be

taken in constituting HRPC and HRPRC. National Legal Services Authority, Law

Commission of India and National Human Rights Commission shall seriously think

about decentralization of the human rights protection system. Though apex court of

this country delivered land mark judgments on various human rights issues including
the violations of human rights by public authorities. These Judgments seldom deter

any one from committing the acts violating human rights.

Without taking any some concrete steps protection of human rights in the country

remains in long and dissertation style judgments rendered by our apex courts referring

to provisions contained in various international instruments. Such judgments can

make us feel proud of our judiciary for developing a justice system that constantly

speaks about the protection of human rights. As long as efforts are not taken at gross

root levels they remain literary pieces of great work and art.

• Assistant Professor, National Judicial Academy India, Bhopal - M.P. All the

views expressed herein are personal.