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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

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PRESENTATION AT 11 TH HRSS 24 DECEMBER, 2010

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Presentation at 11 th hrss 24 december 2010

PRESENTATION AT 11TH HRSS

24 DECEMBER, 2010


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


Presentation at 11 th hrss 24 december 2010

INDIAN JUDICIARY

ON

HUMAN RIGHTS

AND

ARMED FORCES


Presentation at 11 th hrss 24 december 2010

If there were no bad people, there would be

no good lawyers.

Charles Dickens


Approach

APPROACH

1. What are Human Rights

  • Statutory framework

  • AFSPA

  • HR and the Armed Forces

  • Case Law

  • Conclusion


Human rights definition

HUMAN RIGHTS DEFINITION

Certain basic, inalienable and fundamental

rights as well as freedoms that every

citizen enjoys irrespective of the country

he belongs to.


Human rights

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.


Presentation at 11 th hrss 24 december 2010

CONSTITUTION OF INDIA

Human Rights go by a different name.

Incorporated as Fundamental Rights.


Presentation at 11 th hrss 24 december 2010

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 18 - Abolition of titles.


Presentation at 11 th hrss 24 december 2010

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.


Article 21

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.


Presentation at 11 th hrss 24 december 2010

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.


Presentation at 11 th hrss 24 december 2010

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.


Presentation at 11 th hrss 24 december 2010

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.


Article 355

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.


Presentation at 11 th hrss 24 december 2010

The word aggression was examined and its import

gone into by the Supreme Court in Sarbananda

Sonowal’s case, (2005) 5 SCC 665.


Inter play

INTER PLAY

  • Human Rights.

  • Armed Forces.

  • Higher Judiciary.


Code of the warrior

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


Relevant statutes

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)


Armed forces special powers act 1958

ARMED FORCES (SPECIAL POWERS) ACT, 1958

Preamble

To confer certain special powers upon

members of the Armed Forces in

disturbed areas.


The armed forces special powers act 1958

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


Protection section 6

PROTECTIONSECTION 6

Prior sanction of the Central Government

before instituting any prosecution, suit or

other proceedings.


Code of conduct

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.


The protection of human rights act 1993

THE PROTECTION OF HUMAN RIGHTS ACT 1993

Preamble

Enacted for better protection of Human

Rights and for matter connected therewith.


Main features

MAIN FEATURES

  • Setting up of NHRC

  • State Human Rights Commissions

  • Human Rights Courts


Functions

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.


Presentation at 11 th hrss 24 december 2010

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.


Presentation at 11 th hrss 24 december 2010

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.


Case law

CASE LAW


Reach of decisions

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.


Presentation at 11 th hrss 24 december 2010

Naga People’s Movement of Human Rights

V

Union of India; AIR 1998 SC 431;

(1998) 2 SCC 109


Scrutiny by the supreme court

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.


Checks safeguards introduced by the supreme court

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.


Presentation at 11 th hrss 24 december 2010

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.


Implied powers

IMPLIED POWERS

  • To interrogate.

  • To retain custody of seized weapons.


Guidelines on naga people s case

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


Control on powers of military

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


Aggression and war

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.


Presentation at 11 th hrss 24 december 2010

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


Presentation at 11 th hrss 24 december 2010

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.


Presentation at 11 th hrss 24 december 2010

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


Custodial volence in the context of police

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


Disappearance of a detenu

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)


Imposition of death sentence

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.


Presentation at 11 th hrss 24 december 2010

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


Compensatory justice

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 1999. Order dated 24 April, 2001


Propriety of bias against state as a litigant party

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


Presentation at 11 th hrss 24 december 2010

The acceptance of indiscipline is even

more disastrous than indiscipline itself.

Nani Palkhivala


Presentation at 11 th hrss 24 december 2010

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


Presentation at 11 th hrss 24 december 2010

No system of justice can rise above the

ethics of those who administer it.

Wickersham Commission


Presentation at 11 th hrss 24 december 2010

THANKS


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