PRESENTATION AT 11 TH HRSS 24 DECEMBER, 2010. RESOURCE PERSON MAJ. GEN. NILENDRA KUMAR, FORMER JUDGE ADVOCATE GENERAL (ARMY ) AND DIRECTOR, AMITY LAW SCHOOL, NOIDA, INDIA. INDIAN JUDICIARY ON HUMAN RIGHTS AND ARMED FORCES. If there were no bad people, there would be
PRESENTATION AT 11TH HRSS
24 DECEMBER, 2010
MAJ. GEN. NILENDRA KUMAR, FORMER JUDGE ADVOCATE GENERAL (ARMY)
AMITY LAW SCHOOL, NOIDA, INDIA
If there were no bad people, there would be
no good lawyers.
1. What are Human Rights
Certain basic, inalienable and fundamental
rights as well as freedoms that every
citizen enjoys irrespective of the country
he belongs to.
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.
CONSTITUTION OF INDIA
Human Rights go by a different name.
Incorporated as Fundamental Rights.
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 18 - Abolition of titles.
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.
Protection of life and personal liberty: No
person shall be deprived of his life or personal
liberty except according to procedure
established by law.
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.
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 27 - 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.
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.
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.
The word aggression was examined and its import
gone into by the Supreme Court in Sarbananda
Sonowal’s case, (2005) 5 SCC 665.
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
Fight and embrace the consequences willingly.
God, give me strength that I ask nothing of you.
The Bhagwad Gita
To confer certain special powers upon
members of the Armed Forces in
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.
Prior sanction of the Central Government
before instituting any prosecution, suit or
Enacted for better protection of Human
Rights and for matter connected therewith.
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.
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.
Naga People’s Movement of Human Rights
Union of India; AIR 1998 SC 431;
(1998) 2 SCC 109
1. Act not a colourable legislation.
1.Periodic review of declaration before expiry of six months.
2. Desirable for Central Government to consult State Government.
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.
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
Masooda Parveen V Union of India; (2007) 4 SCC 548
Fundamental Rights cannot be given
away to the control of military
authorities or tribunals.
CS RAO V THE SUPREME COMMANDER
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.
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
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.
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
Sarbananda Sonowal V Union of India; (2005) 5 SCC 665
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
DK Basu V State of West Bengal; (1997) 1 SCC 416; AIR 1997 SC 610
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
Zukheli Sema, Smt. V Union of India; 1999 Cri LJ 70 (Gauhati)
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,
A question arose, when would the imposition
of death sentence be valid by enhancing of
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
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 1999. Order dated 24 April, 2001
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
Masooda Parveen V Union of India; (2007) 4 SCC 548
The acceptance of indiscipline is even
more disastrous than indiscipline itself.
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
State of Rajasthan V UOI; 1978(1) SLR 1
No system of justice can rise above the
ethics of those who administer it.