4 If there were no bad people, there would be no good lawyers.Charles Dickens
5 APPROACH1. What are Human RightsStatutory frameworkAFSPAHR and the Armed ForcesCase LawConclusion
6 HUMAN RIGHTS DEFINITION Certain basic, inalienable and fundamentalrights as well as freedoms that everycitizen enjoys irrespective of the countryhe belongs to.
7 HUMAN RIGHTSThese are universal and belong toevery one, rich or poor, male orfemale. Such rights may be violatedbut they can never be taken away.
8 Human Rights go by a different name. CONSTITUTION OF INDIAHuman Rights go by a different name.Incorporated as Fundamental Rights.
9 CONSTITUTIONAL PROVISIONS 1. Right to EqualityArticle 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 personalliberty except according to procedureestablished 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 RemediesArticle 32 - Right to Constitutional Remedies.
15 ARTICLE 355 Duty of the Union to protect States against external aggression and internal disturbance. Itshall be the duty of the Union to protect everyState against external aggression and internaldisturbance and to ensure that the governmentof every State is carried on in accordance withthe provisions of this Constitution.
16 The word aggression was examined and its import gone into by the Supreme Court in SarbanandaSonowal’s case, (2005) 5 SCC 665.
17 INTER PLAYHuman 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 tofight. Excel in all devices and weapons of war,present and future. Always protect the weak. Betruthful and forthright. Be humane, cultured andcompassionate.Fight and embrace the consequences willingly.God, give me strength that I ask nothing of you.The Bhagwad Gita
19 RELEVANT STATUTESConstitution of India, 1950Army Act, 1950The Armed Forces (Special Powers) Act, 1958Geneva Conventions Act, 1960The Protection of Human Rights Act, 1993The Unlawful Activities (Prevention) Act, 1967 (Amendment Act 2008)
20 ARMED FORCES (SPECIAL POWERS) ACT, 1958 PreambleTo confer certain special powers uponmembers of the Armed Forces indisturbed areas.
21 THE ARMED FORCES (SPECIAL POWERS) ACT, 1958 NotificationSpecial Powersa) Fire upon or otherwise use force.b) Destroy arms dump, fortified positionor 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 orother 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 PreambleEnacted for better protection of HumanRights 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.
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 POWERSTo 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’sthrow away, no effort was made by the Army to convey theinformation regarding the deceased to the police at theearliest and the police was called only in the morning afterthe deceased had been done to death.Held, application of the guidelines referable to Section 6and in Naga people’s case cannot be mechanically appliedand must of necessity relate to the facts of each case.Herein, the time gap between the arrest and the death wasclearly minimal.Masooda Parveen V Union of India; (2007) 4 SCC 548
37 CONTROL ON POWERS OF MILITARY Fundamental Rights cannot be givenaway to the control of militaryauthorities 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 beincluded within the ambit and scope of theword ‘aggression’ but it comprises manyother acts which cannot be termed as war.
39 The word aggression is an all comprehensive word having very wide meaning having complexdimensions. Its meaning cannot be explained bya straitjacket formula but will depend on the factsituation of every case and its impact. Forexample, there could be a unique type ofbloodshed aggression from a vast and incessantflow of millions of human beings forced to flee intoanother State. If this invasion of unarmed men intotally unmanageable proportion were to not only
40 impair the economic and well being of the receiving victim State but to threaten its veryexistence it would have to be categorised asaggression. In such a case, there may not be useof armed force across the frontier since the use offorce may be totally confined within one’s territorialboundary, but if this results is inundating theneighbouring State by millions of fleeing citizens ofthe offending State, there could be an aggressionof 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 oflarge number of persons from across the border into Indiawould be an act of aggression. The definition ofaggression as adopted by the UN General AssemblyResolution 3314 was, for a limited purpose, namely, wherethe Security Council or UNO could interfere and adoptmeasures in the event of an aggression by one nationagainst another and the acts enumerated therein whichmay amount to aggression. This definition cannotrestrict or curtail the meaning or the sense in which theword aggression has been used in Article 355 of theConstitution.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 infringesArticle 21 as well as basic human rights and strikes a blowat rule of law. Torture involves not only physical sufferingbut also mental agony. It is naked violation of humandignity and destructive of human personality. Interrogationthough essential must be on scientific principles. Third-degree methods are totally impermissible. Custodial deathis one of the worst crimes in civilised society. Stateterrorism is no answer to terrorism. Transparency of actionand accountability are two safeguards against abuse ofpolice 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 thepetitioner is entitled to missing of precious and valuable lifefrom the custody of the respondent is definitely an act ofinfringement of fundamental rights. Although precious lifecannot be measured in terms of Rupees in the light ofvarious judgements of the Apex Court, the petitioner is atleast entitled to adequate compensation at this stage……The Union of India is vicariously liable for any acts orcommission of its instrumentality even if they acted beyondtheir authority.Zukheli Sema, Smt. V Union of India; 1999 Cri LJ 70 (Gauhati)
44 IMPOSITION OF DEATH SENTENCE Accused members of Veerappan gang causingdeath of 22 persons and injuries to several othersby blasting of landmines. Trial was held underTerrorist and Disruptive Activities (Prevention) Act,Accused were awarded life imprisonment.A question arose, when would the impositionof death sentence be valid by enhancing oflife imprisonment.
45 Simon & others V State of Karnataka; Held, the nature of crime and accused should beconsidered. Aggravating and mitigatingcircumstances should be weighed in the context offacts and circumstances of the case. Thataccused persons were compelled to join the gangby the gang leader cannot be considered as amitigating 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 JUSTICENobody is authorised under the mandate of the Constitution to takeaway the right of life and liberty of a person except according toprocedure established by law. Respects for the rights of individuals isthe bedrock of true democracy. It is the bounden duty of the State torepair the damage done by its officers to the individual’s rights. Inorder to prevent the violation of such right reasonably andalso to secure the due compliance of Article 21, it is needed to mulchits 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 ahapless and destitute widow in utter despair on theone side and the might of the State on the other;the search for the truth is decided by unequal andthe court must therefore tilt just a little in favour ofthe 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 ofpower. The wisdom of man has not yetbeen able to conceive of a government withpower sufficient to answer all its legitimateneeds and at the same time incapable ofmischief.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