1. PRESENTATION AT 11TH HRSS
24 DECEMBER, 2010

2. AMITY LAW SCHOOL, NOIDA, INDIA
RESOURCE PERSON
MAJ. GEN. NILENDRA KUMAR, FORMER JUDGE ADVOCATE GENERAL (ARMY)
AND
DIRECTOR,
AMITY LAW SCHOOL, NOIDA, INDIA

3. INDIAN JUDICIARY ON
HUMAN RIGHTS
AND
ARMED FORCES

4. If there were no bad people, there would be
no good lawyers.
Charles Dickens

5. APPROACH
1. What are Human Rights
Statutory framework
AFSPA
HR and the Armed Forces
Case Law
Conclusion

6. HUMAN RIGHTS DEFINITION
Certain basic, inalienable and fundamental
rights as well as freedoms that every
citizen enjoys irrespective of the country
he belongs to.

7. 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.

8. Human Rights go by a different name.
CONSTITUTION OF INDIA
Human Rights go by a different name.
Incorporated as Fundamental Rights.

9. 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 Abolition of titles.

10. 2. Right to Freedom
  Article 19- Protection of certain rights regarding freedom of speech etc.
  Article 20- Protection in respect of conviction for offences.
  Article 21- Protection of life and personal liberty.
  Article 22 - Protection against detention in certain cases.

11. 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.

12. 3. Right against Exploitation
Article 23- Prohibition of traffic of human beings and forced labour.
  Article 24 - Prohibition of employment of children in factories, etc.

13. 4. Right to Freedom of Religion
  Article 25 - Freedom of conscience of free pursuit of profession, practice and propagation of religion. 
Article 26- Freedom to manage religious affairs. 
Article Freedom as to payment of taxes for promotion of any particular religion.
Article 28 - Freedom as to attendance at religious instruction or religious worship in certain educational institutions.

14. 5. Cultural and Educational Rights
Article 29 - Protection of interests of minorities.
Article 30 - Right of minorities to establish and administer educational institutions.
6. Right to Constitutional Remedies
Article 32 - Right to Constitutional Remedies.

15. 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.

16. The word aggression was examined and its import
gone into by the Supreme Court in Sarbananda
Sonowal’s case, (2005) 5 SCC 665.

17. INTER PLAY
Human Rights.
Armed Forces.
Higher Judiciary.

18. 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

19. 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)

20. ARMED FORCES (SPECIAL POWERS) ACT, 1958
Preamble
To confer certain special powers upon
members of the Armed Forces in
disturbed areas.

21. THE ARMED FORCES (SPECIAL POWERS) ACT, 1958
Notification
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.
Protection

22. PROTECTION SECTION 6 Prior sanction of the Central Government
before instituting any prosecution, suit or
other proceedings.

23. CODE OF CONDUCT Avoidance of HR violations under all circumstances.
Be compassionate.
People friendly operations. Ensure least possible inconvenience and harassment.
Use of minimum force. Avoid collateral damage.
Co-opt Police representative/women Police.
Be truthful and honest (WHAM).
Sustain physical and moral strength.

24. THE PROTECTION OF HUMAN RIGHTS ACT 1993
Preamble
Enacted for better protection of Human
Rights and for matter connected therewith.

25. MAIN FEATURES Setting up of NHRC State Human Rights Commissions
Human Rights Courts

26. FUNCTIONS Inquire a violation of HR on a petition or suo motu.
Intervene in any such proceedings.
Visit any jail or other institution and review safeguards provided under the Constitution.
Review facts including acts of terrorism.
Study treaties and make recommendations.

27. (Sec 19 of Protection of Human Rights Act)
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.

28. 2. The Central Government shall inform the commission of the action taken on the recommendations within three months or such further time as the 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.

29. CASE LAW

30. REACH OF DECISIONS 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.

31. Naga People’s Movement of Human Rights
Union of India; AIR 1998 SC 431;
(1998) 2 SCC 109

32. SCRUTINY BY THE SUPREME COURT
1. Act not a colourable legislation.
Not a fraud on the Constitution.
Does not amount to handing over the maintenance of public order to the Armed Forces directly.
Conferment of drastic powers under Section 4 is not discriminatory or arbitrary.

33. CHECKS/SAFEGUARDS INTRODUCED BY THE SUPREME COURT
1. Periodic review of declaration before expiry of six months.
2. 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.

34. 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.

35. IMPLIED POWERS
To interrogate.
To retain custody of seized weapons.

36. 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

37. 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

38. 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.

39. 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

40. 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.

41. Sarbananda Sonowal V Union of India; (2005) 5 SCC 665
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

42. 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. Third-
degree 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

43. 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)

44. 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,
Accused were awarded life imprisonment.
A question arose, when would the imposition
of death sentence be valid by enhancing of
life imprisonment.

45. Simon & others V State of Karnataka;
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

46. WP No. 591 of 1999. Order dated 24 April, 2001
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 Order dated 24 April, 2001

47. 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

48. The acceptance of indiscipline is even
more disastrous than indiscipline itself.
Nani Palkhivala

49. 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

50. No system of justice can rise above the
ethics of those who administer it.
Wickersham Commission

51. THANKS