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Address by Justice Shri S.Rajendra Babu, Chairperson, NHRC, Foundation Day Function of National Human Rights Commission on 12th October, 2007 at FICCI Golden Jubilee Auditorium, New Delhi.

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Address by Hon’ble Justice Shri S.Rajendra Babu, Chairperson, NHRC at All India Seminar on “Human Rights in Relation to Tribals” organized by: International Institute of Human Rights Society on 28th August, 2007 at India International Centre, New Delhi.

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Workshop on using indicators to promote and monitor implementation of Human Rights Opening remarks by Justice Sri Rajendra Babu, Chairperson, NHRC, India.

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Address by Justice Shri S.Rajendra Babu, Chairperson, NHRC at National Consultation on “Incorporating Human Rights Education in the School and University Education System” organized by NHRC on 6th July, 2007 at Vigyan Bhawan, New Delhi.

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Inaugural Address of National Seminar To Mark The 30th Anniversary of The Adoption of the 1977 Additional Protocols to the Geneva Conventions of 1949 Delivered by: Justice Shri S,Rajendra Babu, Chairperson, NHRC organized by: International Committee of the Red Cross(ICRC) & Indian Society of International Law (ISIL) at India Habitat Centre, New Delhi on 8th June 2007

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Address by Hon’ble Justice Shri S.Rajendra Babu, Chairperson, National Human Rights Commission at The Inauguration of Two Day NGOs Conference on “Role of NGOs in Support of NHRC in Better Promotion and Protection of Human Rights” organized by National Human Rights Commission at Karnataka Judicial Academy, Bangalore on 28th April, 2007.

 

 
   

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PRESIDENTIAL ADDRESS BY: Dr. Justice A.S. Anand Chairperson National Human Rights Commission of India (former Chief Justice of India) AT FOUNDATION DAY FUNCTION OF NATIONAL HUMAN RIGHTS COMMISSION ON: 12th OCTOBER, 2006 AT: FICCI GOLDEN JUBILEE AUDITORIUM, NEW DELHI

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3rd V.R. KRISHNA IYER NATIONAL FOUNDATION FOR LAW AND SOCIAL JUSTICE LECTURE ON “HUMAN RIGHTS – SOME CHALLENGES FOR THE 21ST CENTURY” BY DR. JUSTICE A.S. ANAND (FORMER CHIEF JUSTICE OF INDIA) CHAIRPERSON NATIONAL HUMAN RIGHTS COMMISSION AT BHARAT HOTEL, DURBAR HALL ROAD, ERNAKULAM ON 7TH October 2006

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Lecture by Dr. Justice A.S.Anand, (Former Chief Justice of India) Chairperson, NHRC on “JUDICIAL ACTIVISIM” at The Army Institute of Law, Mohali on 30 September 2006

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Speech of Hon’ble Chairperson Dr. Justice A.S.Anand at the International Conference on “Right to Health and Development” –Human Rights Perspective — on 15th September 2006 at Hotel CIDADE-DE GOA

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Inaugural Address by Dr. Justice A.S.Anand, Chairperson, NHRC at Seminar on “Human Rights Sine-Qua-Non of Democratic” organized by Merchants’ Chamber of Commerce at Kolkata on 8th September 2006

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Speech of Hon'ble Chairperson Dr. Justice A.S. Anand at the meeting between NHRC & SHRC's Held on 1st September, 2006 at India International Centre, New Delhi.

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Speech of Dr. Justice Shivaraj V. Patil, Member, NHRC at the 11th Annual Meeting of Asia Pacific Forum of National Institutes at Suva, Fiji.

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Intervention on behalf of the National Human Rights Commission of India on “Right to Development” at First Session of the United Nations Human Rights Council by Dr. Justice A.S. Anand, Chairperson, National Human Rights Commission of India on 27th June 2006 at Geneva.

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Welcome Address by Dr. Justice A.S.Anand, Chairperson, NHRC at National Conference on “Effects of Corruption on Good Governance and Human Rights ”  held in New Delhi on 9th May 2006.

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 Inaugural address by Dr. Justice A.S.Anand, Chairperson, NHRC at National Seminar on “Human Rights: Policy issues for India” organized by Indian Institute of Advanced Study, Shimla in collaboration with NHRC held in New Delhi on 29 March 2006.

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Inaugural Address by Dr. Justice A.S.Anand Chairperson, National Human Rights Commission at a Seminar on "Rights of the Victim of Crime and their Effective Rehabilitation" organized by the Swami Sahajanand Saraswati Hithari Samaj at India International Center, on 26th February 2006.

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SECOND ROBIN MITRA MEMORIAL LECTURE ON “CRIMINAL JUSTICE DELIVERY SYSTEM – NEED FOR A RE-LOOK” BY DR. JUSTICE A.S. ANAND, CHAIRPERSON, NATIONAL HUMAN RIGHTS COMMISSION ON 6 JANUARY 2006 AT HOTEL GEMINI CONTINENTAL, LUCKNOW

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ADDRESS OF DR. JUSTICE A.S. ANAND, CHAIRPERSON, NATIONAL HUMAN RIGHTS COMMISSION ON HUMAN RIGHTS DAY ON, 10 DECEMBER 2005 AT FICCI GOLDEN JUBILEE AUDITORIUM, NEW DELHI.

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26th BHIMSEN SACHAR MEMORIAL LECTURE, 2005 ON “HUMAN RIGHTS AND ITS DIMENSIONS” BY DR. JUSTICE A.S. ANAND CHAIRPERSON NATIONAL HUMAN RIGHTS COMMISSION AT LAJPAT BHAWAN, NEW DELHI ON 1st DECEMBER 2005.

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Opening Remarks by Hon'ble Dr. Justice A.S.Anand, Chairperson, National Human Rights Commission of India (Former Chief Justice of India) at "ROUND TABLE ON NATIONAL INSTITUTIONS IMPLEMENTING ECONOMIC, SOCIAL AND CULTURAL RIGHTS" on 29th November, 2005 at The Ashok Hotel, New Delhi.

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KEY NOTE ADDRESS BY DR. JUSTICE A.S. ANAND AT NATIONAL SEMINAR ON TRAFFICKING IN HUMAN BEINGS ON 27 OCTOBER 2005 AT INDIA HABITAT CENTRE

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Inaugural Address by Dr. Justice A.S. Anand, Chairperson, National Human Rights Commission at a Seminar on “Neglect of Economic, Social and Cultural Rights – A Threat to Human Rights” organized by the Indian Law Institute (Chennai Chapter) at Chennai on 26 November 2005

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CHAIRPERSON'S SPEECH AT THE 10TH ANNUAL MEETING OF THE ASIA PACIFIC FORUM IN ULAANBAATAR, MONGOLIA ON 25TH AUGUST 2005.

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INAUGURAL ADDRESS AT CAPACITY BUILDING STATE LEVEL WORKSHOP ON "HUMAN RIGHTS AND HIV/AIDS " DELIVERED BY : DR JUSTICE A.S.ANAND (FORMER CHIEF JUSTICE OF INDIA ) CHAIRPERSON NATIONAL HUMAN RIGHTS COMMISSION ON 22ND JULY 2005 AT : C.I.I. HALL, CHANDIGARH

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VALEDICTORY ADDRESS AT NATIONAL DISABILITY CONFERENCE DELIVERED BY DR. JUSTICE A.S. ANAND (FORMER CHIEF JUSTICE OF INDIA) CHAIRPERSON NATIONAL HUMAN RIGHTS COMMISSION ON 23RD JUNE, 2005 AT: FICCI AUDITORIUM NEW DELHI JOINTLY ORGANIZED BY: NHRC, CHRC & IGNOU

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INAUGURAL SPEECH OF DR. JUSTICE A.S. ANAND CHAIRPERSON, NHRC AT THE NATIONAL CONFERENCE ON DISABILITY AT FICCI FEDERATION HOUSE ON 23 JUNE 2005

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Opening Remarks Of Hon’ble Chairperson At The Meeting Between NHRC & SHRC’s Held On 13th May 2005 At India International Centre, New Delhi

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R.V. KELKAR MEMORIAL LECTURE ON “RIGHTS  OF  VICTIMS  OF  CRIME – NEED  FOR  A  FRESH  LOOK” Delivered by: Dr. Justice A.S. Anand Chairperson, NHRC (former Chief Justice of India) ORGANISED BY: Faculty Of Law University of Delhi On: 30th April, 2005

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STATEMENT OF DR. JUSTICE A.S.ANAND CHAIRPERSON NHRC OF INDIA AT THE 61st SESSION OF THE COMMISSION ON HUMAN RIGHTS UNDER AGENDA ITEM 18(b) (NATIONAL INSTITUTIONS AND REGIONAL ARRANGEMENTS) GENEVA, 13th April 2005.

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N.N. PHUKAN MEMORIAL LECTURE ON HUMAN RIGHTS SOME CHALLENGES FOR THE 21ST CENTURY DELIVERY BY DR. JUSTICE A.S. ANAND (FORMER CHIEF JUSTICE OF INDIA) CHAIRPERSON NHRC ON 31ST MARCH, 2005 AT:JORHAT UNIVERSITY, DIBRUGARH

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KEYNOTE ADDRESS OF DR. JUSTICE A.S. ANAND (FORMER CHIEF JUSTICE OF INDIA) CHAIRPERSON NHRC ON HUMAN RIGHTS IN 21ST CENTURY ON 4th MARCH, 2005 ORGANIZED BY: INSTITUTE OF SOCIAL SCIENCES

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TERRORISM MEASURES TO COMBAT IT WITH FOCUS ON HUMAN RIGHTS by Dr. Justice .A.S. Anand Chairperson National Human Rights Commission At ( XXVIII Conference of Indian Society of Criminology) Organized by ISC & University of Jammu On 16th February 2005 At Abhinav Theatre, Jammu

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ADDRESS OF DR. JUSTICE A.S. ANAND CHAIRPERSON NHRC  AT CAPACITY BUILDING WORKSHOP ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ON: 7th February 2005   AT: NATIONAL JUDICIAL ACADEMY, KARNATAKA

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Speech of Hon’ ble Chairperson, NHRC, Dr. Justice A.S. Anand at the Valedictory Session of the National Public Hearing on the Right to Health Care at New Delhi on 17 December 2004

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ADDRESS BY THE CHIEF GUEST MR. MORTEN KJAERUM CHAIRPERSON INTERNATIONAL COORDINATING COMMITTEE OF NATIONAL HUMAN RIGHTS INSTITUTIONS AND EXECUTIVE DIRECTOR DANISH INSTITUTE FOR HUMAN RIGHTS ON HUMAN RIGHTS DAY 10TH DECEMBER ,2004

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PRESIDENTIAL ADDRESS OF DR. JUSTICE A.S. ANAND  ON HUMAN RIGHTS DAY ON 10TH DECEMBER ,2004 DELIVERED AT FICCI GOLDEN JUBILEE AUDITORIUM, NEW DELHI

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ADDRESS OF DR. JUSTICE A.S. ANAND ON “IPI INDIA AWARD FUNCTION FOR OUTSTANDING WORK IN JOURNALISM, 2004” ON 06TH DECEMBER ,2004 DELIVERED AT VIGYAN BHAWAN, NEW DELHI

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LATE JUSTICE OBUL REDDI SECOND ENDOWMENT LECTURE  ON "TERRORISM - COUNTER TERRORISM AND HUMAN RIGHTS"  BY DR. JUSTICE A.S. ANAND, CHAIRPERSON, NHRC AT HYDERABAD ON  30TH OCTOBER 2004

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ADDRESS OF DR. JUSTICE A.S. ANAND, CHAIRPERSON, NHRC AT THE 7th INTERNATIONAL CONFERENCE FOR HUMAN RIGHTS INSTITUTIONS AT SEOUL ON 15 TH SEPTEMBER 2004

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ADDRESS OF DR. JUSTICE A.S. ANAND, CHAIRPERSON, NHRC AT THE 60 TH SESSION OF THE COMMISSION ON HUMAN RIGHTS AT GENEVA ON 14 TH APRIL 2004

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ADDRESS OF DR. JUSTICE A.S. ANAND, CHAIRPERSON, NHRC ON "HUMAN RIGHTS,FREEDOM OF PRESS AND ROLE OF MEDIA" IN JAMMU ON 5TH APRIL 2004

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ADDRESS OF DR. JUSTICE A.S. ANAND, CHAIRPERSON, NHRC ON HUMAN RIGHTS DAY ON 10TH DECEMBER, 2003

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CHAIRPERSON'S SPEECH AT CAPACITY BUILDING WORKSHOP ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

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STATEMENT to the 2nd Sesssion of the AD HOC Committee

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Presidential Address by Justice Dr. A.S. Anand on disability - 29 May 2003

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STATEMENT OF DR. JUSTICE A.S. ANAND CHAIRPERSON, NATIONAL HUMAN RIGHTS COMMISSION OF INDIA TO THE 59 TH SESSION OF THE COMMISSION ON HUMAN RIGHTS

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Keynote address by Hon' ble Dr. Justice A.S. Anand, Chairperson, NHRC on the theme "Women Empowerment - the key to achieving the Millennium Development Goals" at a function organized by the UN Information Centre at 3.30 PM on 7 March 2003

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Speech of President of India on Human Rights Day 2002

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Statement of Justice Shri J.S. Verma, Chairperson on Human Rights Day 2002

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Message of the UN Secretary-General Mr. Kofi Annan On Human Rights Day 2002

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HUMANISM – THE UNIVERSAL CREED

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Statement of Justice J.S.Verma, Chairperson NHRC India, at Geneva

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NHRC Chairperson on Terrorism

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World Conference Against Racism etc. at Durban - NHRC's Statement

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Speech of the President of India on the Human Rights Day (10 December 2001)

Address by Justice Shri S.Rajendra Babu, Chairperson, NHRC, Foundation Day Function of National Human Rights Commission on 12th October, 2007 at FICCI Golden Jubilee Auditorium, New Delhi

Hon'ble Chief Justice of India, Shri K.G. Bhalakrishnan, Chief Guest of the Foundation Day, respected Former Chairpersons and Members, my esteemed colleagues, officers of the NHRC, past and present Members of the NHRC family, Distinguished invitees, ladies and gentlemen.

The struggle for Human Rights as exemplified in Universal Declaration in 1948 has undoubtedly been one of the great progressive achievement of the century.

The National Human Rights Commission of India (NHRC) came into existence on 12th October, 1993 pursuant to the enactment of the Protection of Human Rights Act, 1993. The National Human Rights Commission of India in its short journey of 14 years (will be completing 14 years on 12.10.2007) has endeavored to curb violation or ameliorate neglect of human rights occurring anywhere in the country which comes to its notice. We realize that protection and promotion of civil or political rights is not enough as deprivation or disparities in economic, social and cultural areas, which are wide spread, have reduced large number of citizens to the margins of human existence. Thus all rights whether political, civil or economic or social or cultural are inter-independent. Any one of the rights alone cannot be effectively exercised for a person who lives in utter poverty, political and civil rights may not have any significance. The Commission has been making efforts to minimize such aberrations and create an environment in which rights can be better promoted and protected. Apart from working for the eradication of bonded labour and child labour, rights of the child, women, dalits, minorities and other marginalized groups, the Commission has also undertaken work in other fields, such as, public health, right to food etc. The Commission has endeavoured to promote a culture of human rights in the country by pressing for the introduction of human rights education in the curricula, from schools up to the university. The Commission's endeavour in a short span has been recognized both nationally and internationally.

A clear indication of the trust reposed in the Commission by the citizens of the country - and an equally clear indication of the yearning for an accessible mechanism to redress their human rights grievances - is to be found in the exponential number of complaints addressed to the Commission which has steadily grown from 496 in 1993-94 to 82,233 complaints during the financial year 2006-2007. At the international level also the Commission has played an active role in promotion and protection of human rights in the country. Modesty deters me from going into details of the various activities of the Commission. Undoubtly there are several areas in which much needs to be done.

Over the years, the Commission has grown from strength to strength with a devoted and dedicated staff complement of over 340 personnel as on date in its office in New Delhi. I will be failing in my duty if I do not acknowledge the hard work put forth by the Special Rapporteurs, Consultants, officers and the ministerial officials of the Commission, regardless of office hours with a view to help those in distress. But for their committed efforts, this Commission would not have been able to cope up with the challenging task before it.

There has been a growing feeling that the Commission observe "Foundation Day" on the 12th October, every year. The day would be an occasion to, both introspect on the Commission's achievements and failures as well as to look forward on the path ahead.

The Commission has maintained that the main obligation to protect human rights is that of the State itself. The Commission acts as a facilitator. As we look ahead there are numerous challenges which we have to meet.

There have been significant developments, both at National and international level, on the Human Rights front in the past one year. At the National level, these extend to legislation, policy and programmes, with the National Human Rights Commission of India playing the role of a catalyst to direct action for the protection of rights of the most vulnerable sections. The Commitment of the Government to uphold the autonomy of the Commission and strengthening it further is reflected in the recent amendment to the Protection of Human Rights Act 1993. The amendment has been carried out by the Government on the basis of suggestions made by the Commission to remove certain lacunae in the original Act.

India has been facing tough challenges in the task of protection of human rights of the citizens of the country, tackling issues amongst others, such as terrorism, trafficking in women and children, disappearance of persons, displacement of persons due to disasters, conflicts and development, child labour, education, health, custodial deaths, prisons and the disabled. The Commission has tackled these issues by not only dealing with individual cases but also issuing policy guidelines for implementing agencies.

The recent resolution adopted by the Human Rights Council on 18th June 2007, during its meeting in Geneva envisages stronger role of NHRIs participating in deliberating in the complaint procedure.

I am happy to say that although the Commission's powers extend to making recommendations only, all its recommendations are accepted/implemented by the Central/State Governments. May be, there may be doubts and governments seek clarifications and when they are cleared, there is compliance.

The Apex Court of the country reposing confidence in the Commission entrusted it with the responsibility of overseeing the functioning of three Mental Institutions on 11.11.1997. The Commission has been continuing its work through the Special Rapporteur. Due to continuous efforts of the Commission, during the year 2005-06 there has been a significant progress. It is heartening to note that more than 90% of the admissions are voluntary admissions in these hospitals consistent with the provisions of the U.N. Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care (1999). There has been an overall shift from custodial care to treatment and rehabilitation. Cell admissions have been totally stopped and closed wards are being progressively converted into open wards.

Since December, 1996, the Commission has been dealing with complaints alleging starvation deaths in Koraput, Bolangir and Kalahandi (KBK) districts of Orissa. The issue was also raised in writ petition in Supreme Court. On learning that the Commission had taken cognizance of the matter, the Supreme Court allowed the Commission to deal with the matter and empowered it to issue enforceable recommendations and directions. The Commission after hearing the parties formulated a practical programme covering rural water supply schemes, public health care, social security schemes, water and soil conservation measures and rural development schemes. Much progress has been made in this regard due to monitoring of the programme by the Commission through Special Rapporteurs.

In the case of death of unidentified persons due to terrorists attack and alleged fake encounter by police in Punjab, i.e., 'Punjab Mass Cremation Case' the Commission recommended compensation of Rs. 2.5 lakhs to the next kin of each of 195 diseased identified to be in deemed custody of police and Rs. 1.75 lakhs to each of next of kin of other 1103 identified persons whose dead bodies were cremated by Punjab police, amounting to Rs. 24,27,25,000/- till the end of the year 2006-2007.

There are several other activities under taken by the commission, in the field of Human Rights and I do not wish to dilate on them for they are all spelt out in various news letters and reports which are available on the website of the Commission.

Now Right to Development is accepted and a gradual convergence of positions are becoming more and more manifest amongst various actors - the State, Human Rights Institutions and civil society - on different aspects relevant to implementation of this right. This convergence is even more palpable in the work of UN bodies. Political responsibility has now passed to the newly created Human Rights Council to propose critical steps to make current process of globalization work towards improving the well being of people in every corner of the world. Two challenges need to be met before this right can be taken seriously in policy and action. The first is to create a robust concept of development; the second is to identify the practical steps to implement this right by gearing up the administration and the operation of law. The object of this right is to reduce disparities, harmonize aspirations of freedom and dignity with material improvement of human conditions. Neither objective is possible under conditions of poverty. Poverty often results from wilful neglect and discrimination. Lack of adequate development or that which permits exclusion and discrimination in action to and allocation of resources paves the way to increased inequality and marginalization of the poor and the vulnerable. It denies them their human rights. Economic and social inequalities create differences in access to political power / justice / basic goods / services, all of which are essential for the full realization of human rights. The process of development must strive to realize all human rights entitlements of all rights holders. This is particularly relevant for the poor and the marginalized. For them, it is necessary that the development process move away from needs based exercise in charity and assistance to one that creates and sustains genuine entitlements that span all aspects of their life - economic, social and cultural as well as civil and political.

The second challenge is to translate political commitment to practice. Development with social justice cannot be achieved in the absence of respect for human rights. There has to be an enabling environment - legal political, economic and social - sensitive in the local context for realization of right to development. The gap between intention and action has undermined the credibility of several schemes.

In conclusion, we must all keep working with a sense of compassion for each other in our hearts, with a sense of justice and fair play, banishing from our hearts, prejudices of caste, creed and gender. Its time we understood that these prejudices don't take us too far nor, does it give us peace. Life is too precious to be frittered away on such petty thoughts.

Thank you very much.
 

Address by Hon’ble Justice Shri S.Rajendra Babu, Chairperson, NHRC at All India Seminar on “Human Rights in Relation to Tribals” organized by: International Institute of Human Rights Society on 28th August, 2007 at India International Centre, New Delhi

PREAMBLE
The ST population accounts for 8.2% of the total population in the country. Known for their unique way of life, customs, traditions, beliefs and practices, the tribals of India are scattered all over the country. While the condition of the tribals has improved over the years, their situation vis-à-vis the rest of the population may even have worsened on various counts of development.
The Constitution devotes more than 20 Articles to the redressal of grievances and uplift of the underprivileged following the policy of positive discrimination and affirmative action, particularly with reference to the Scheduled Tribes. Recognising the special needs of STs, the Constitution has certain special safeguards to protect these communities from exploitation and, thus, ensure social justice. While Article 14 confers equal rights and opportunities to all, Article 15 prohibits discrimination against any citizen on the grounds of sex, religion, race, caste etc; Article 15 (4) enjoins upon the State to make special provisions for the advancement of any socially and educationally backward classes; Article 16 (4) empowers the State to make provisions for reservation in appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State; Article 46 enjoins upon the State to promote, with special care, the educational and economic interests of the weaker sections of the people and, in particular, the STs and promises to protect them from social injustice and forms of exploitation. Further, while Article 275 (1) promises grant-in-aid for promoting the welfare of STs and for raising the level of administration of the Scheduled Areas. Articles 330, 332 and 335 stipulate reservation of seats for STs in the Lok Sabha, in the State Legislative Assemblies and in the services. The Constitution also empowers the State to appoint a Commission to investigate the conditions of the socially and educationally backward classes (Article 340) and to specify those Tribes or Tribal Communities deemed to be STs (Article 342).
The Fifth Schedule to the Constitution lays down certain prescriptions in regard to the Scheduled Areas as well as the Scheduled Tribes in States other than Assam, Meghalaya, Tripura and Mizoram through submission of Annual Reports by the Governors to the President of India regarding the Administration of the Scheduled Areas and the setting up of Tribal Advisory Councils to advise on matters pertaining to the welfare and advancement of the STs (Article 244(1)). Likewise, the Sixth Schedule to the Constitution refers to the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram by designating certain tribal areas as Autonomous Districts and Autonomous Regions and also by constituting District Councils and Regional Councils (Article 244(2)). To ensure effective participation of the tribals in the process of planning and decision-making, the 73rd and 74th Amendments of the Constitution are extended to the Scheduled Areas through the Panchayats (Extension to the Scheduled Areas) (PESA) Act, 1996.
Priority was also given to the welfare and development of tribals right from the beginning of the First Five Year Plan.
Despite the concern reflected in the Constitution and the developmental efforts initiated for the welfare of the Scheduled Tribes, much more needs to be done in this direction, including strengthening their empowerment – educational, social, economic and political - keeping in view their special identity – culturally, habitationally, traditionally – and in terms of the tribals’ age-old rights and customs. All these aspects pertain to human rights.
Human rights are those which are available to all human beings by virtue of his being member of human race. They are innate, universal and inalienable and are essential for the survival and development of all human beings.
EDUCATION
Despite several campaigns to promote education ever since Independence, the literacy rate among Scheduled Tribes is only 29.60 per cent compared to 52.21 per cent for the country as a whole (1991 Census). The female literacy rate is only 18.19 per cent compared to the national female literacy rate of 39.29 per cent. Alienation from the society, lack of adequate infrastructure like schools, hostels and teachers, abject poverty and apathy towards irrelevant curriculum have stood in the way of tribals getting education.
TRADITIONAL KNOWLEDGE AND WISDOM
Dwelling amidst hills, forests, coastal areas, deserts, tribals over the centuries have gained precious and vast experience in combating environmental hardships and leading sustainable livelihoods. Their wisdom is reflected in their water harvesting techniques, indigenously developed irrigation channels, construction of cane bridges in hills, adaptation to desert life, utilisation of forest species like herbs, shrubs for medicinal purposes, meteorological assessment etc. Such invaluable knowledge of theirs needs to be properly documented and preserved lest it should get lost in the wake of modernisation and passage of time.
HEALTH
Although tribal people live usually close to nature, a majority of them need health care on account of malnutrition, lack of safe drinking water, poor hygiene and environmental sanitation and above all poverty. Lack of awareness and apathy to utilise the available health services also affect their health status. In wake of the opening of tribal areas with highways, industrialization, and communication facilities, diseases have spread to tribal areas. Endemics like malaria, deficiency diseases, venereal diseases including AIDS are not uncommon among tribal populations. However, lack of safe drinking water and malnutrition are well-recognised major health hazards. Tribals suffer from a deficiency of calcium, vitamin A, vitamin C, riboflavin and animal protein in their diets. Malnutrition and undernutrition are common among Primitive Tribal Groups who largely depend upon food they either gather or raise by using simple methods. The poor nutritional status of tribal women directly influences their reproductive performance and their infants’ survival, growth and development.
Tribal people, who are self-reliant and self-sufficient, have over the centuries developed their own medicinal system based on herbs and other items collected from the nature and processed locally. They have also their own system of diagnosis and cure of diseases. They believe in taboos, spiritual powers and faith healing. There are wide variations among tribals in their health status and willingness to access and utilise health services, depending on their culture, level of contact with other cultures and degree of adaptability.
ECONOMIC EMPOWERMENT
Tribals economic status is very poor and they are dependent for majority of their activities on forests. Some of them survive only on the collection of minor forest produce. The general problems include:
(i) The tribals living in the villages outside the TSP areas are not covered with any kind of developmental programmes inspite of their proximity to the scheduled areas;
(ii) The artisans and craftsmen belonging to tribal community are experiencing difficulties in collecting the raw material;
(iii) Inadequate awareness of availability of abundant medicinal plants and aromatic plants in situ (Tribal Areas);
(iv) Non-availability of appropriate and suitable technology for processing cottage and small scale industries to supplement income;
(v) Low-levels of agricultural yields due to non-adoption of improved agricultural methods;
(vi) Poor marketing infrastructure reflecting in low-income levels to tribals;
(vii) Lack of knowledge in taking up alternative avenues of employment other than agriculture;
(viii) Continued dependency on moneylenders and middle-men for financial assistance;
(ix) Supply of poor quality of seeds, pesticides and raw materials to tribal beneficiaries;
(x) Landlessness has been growing amongst Scheduled Tribes and the proportion of ST agricultural labour to ST cultivators is increasing.
SHIFTING CULTIVATION
In the evolution of human civilisation, shifting cultivation preceded agriculture as we know it today. In shifting cultivation, tribals do not use any mechanized tools or undertake even ploughing. A digging stick and a sickle are the usual tools. It is widely practised in whole of North- Eastern region besides the States of Andhra Pradesh, Orissa, Tamil Nadu and to some extent in Chhattisgarh and Jharkhand. Though the practice may be hazardous to environment, it forms basis of life for tribals. Traditionally, shifting cultivation has been in vogue in hilly terrains where tribals have had the right on land either individually or on community basis. Because of poor yields, crops do not meet their food requirement for more than four months or so in a year.
The tribals involved in shifting cultivation do not seem to have any emotional attachment to the land as an asset or property needing care and attention as in non-tribal areas. In shifting cultivation lands, no attention is paid to the replenishment of soil fertility. Tribals merely believe in harvesting crops without putting in efforts or investments. Land is just left to nature to recoup on its own.
LAND ALIENATION
While, on the one hand, the tribals are alienated from their lands, there has not been much progress on health, education or infrastructure development. Industrialization is, in fact, not leading to corresponding improvement in these sectors for the tribals. There has also been little attempt to improve the skills of tribals to compete in taking up responsible positions in the industrial units set up in their areas.
The first type of land alienation pertains to alienation of land to non-tribals which has been a major form of transfer of land from tribals. The State was required to play pro-active role in monitoring the restoration of lands to the tribals from the non-tribals. The State Governments had framed protective laws and the results have been varied. While Andhra Pradesh has a Land Regulation Act (Land Transfer Regulation Act, 1959) (later amended in 1970), even such legislation has not quite ensured that the pending cases (where land has to be restored to the tribals) were settled expeditiously.
Another type of land alienation is the “State induced tribal land alienation”. In the name of economic development through industrialization, the State has often been alienating tribal lands to private industries and for mining, hydro-electric schemes, tourism and even for schools where no tribal child is admitted. Research studies, NGOs and local tribal campaigns have outlined the evidence that these projects have hardly resulted in economic, social or political empowerment or progress of the tribal communities affected by such projects. There are several complex issues which need to be resolved in this behalf.
DISPLACEMENT AND REHABILITATION
Displacement or forced eviction of tribals from their lands and natural habitats has for long been a serious problem. Displacement takes place on account of development projects which include large irrigation dams, hydro-electric schemes, open cast and underground coal mines, super thermal power plants and mineral based industrial units. In these projects, tribals lose their lands not only to the project authorities but also to non-tribals who converge into these areas and “corner” both land and the emerging economic opportunities.
Surveys show that the number of displaced tribals till 1990 was about 85.39 lakhs (55.16% of the total displaced) of whom 64.23% are yet to be rehabilitated. (source: Walter Fernandes, 1994). Although accurate figures of displacement vary, it is clear that many of those displaced have not been rehabilitated and that those displaced have been forced to migrate to new areas and have often encroached on forest lands and are, on record, considered illegal. It is also known that displacement has led to far-reaching (and negative) socio-economic consequences, not to mention the simmering disturbance and extremism in tribal pockets. Economic planning cannot ignore these consequences. Inadequate rehabilitation of the displaced tribals further compounds their woes making them assetless, unemployed, trapped in debt bondage (and even destitution). Effective steps have, therefore, to be taken towards effective systems of relief and rehabilitation.

FOREST RIGHTS OF TRIBALS
Tribal’s age-old symbiotic relationship with forests is well known. Recognising this fact, even the National Forest Policy committed itself to the close association of tribals with the protection, preservation and development of forests and envisaged their customary rights in forests. It is, however, a matter of serious concern that about 5000 forest villages do not have minimum basic living conditions and face a constant threat of eviction.
The National Policy suggests that any forceful displacement should be avoided. Human beings move on their own to places with better opportunities. The forest villages may be converted into revenue villages or forest villages may be developed on par with revenue villages to enable the forest villagers enjoy at least the minimum amenities and services that are available in revenue villages.
PRIMARY TRIBAL GROUPS (PTGs)
Primary Tribal Groups (PTGs) are Scheduled Tribes known for their declining or stagnant population, low levels of literacy, pre- agricultural technology, primarily belonging to the hunting and gathering stage, and extreme backwardness. They were considered as a special category for support for the first time in 1979. There are 75 Primary Tribal Groups spread over 15 States and Union Territories. The 25 lakh PTG population constitutes nearly 3.6 per cent of the tribal population and 0.3 per cent of the country’s population.
PTGs have not benefited from developmental activities. They face continuous threats of eviction from their homes and lands. They live with food insecurity and a host of diseases like sickle cell, anaemia and malaria.
DENOTIFIED AND NOMADIC TRIBES
The terms ‘de-notified’ and ‘nomadic’ do not belong to the same typology as the former term is legal and the latter ecological. The communities which were notified as criminal during the British rule and which were de-notified after independence are called de-notified tribes. However, as some of the de-notified communities were nomadic and vice versa, they are usually considered together.
As they are constantly on the move, they do not have any domicile. Though many of them have now begun to settle down, traditionally they did not possess land rights or house titles. As a result, they are deprived not only of welfare programmes, but also of citizenry rights. They were not considered untouchables but occupied lowermost positions in social hierarchy.
The first and foremost problem of the DNTs is that of classification and enumeration. The DNTs are not categorised as a class under the constitutional schedules like the scheduled castes (SCs) and scheduled tribes (STs). Some of them have been included in the respective state lists of SCs and STs but there is no uniformity across the country. As in the case of the STs, the problem of pseudo-identities also affects the DNTs. The concessions of the DNTs are usurped by other communities having a similar nomenclature. The DNTs are also not covered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989), under which the SCs and STs are protected. As a result, the violation of human rights cannot be addressed effectively.
SCHEDULED TRIBES AND SCHEDULED AREAS
There is inadequate comprehension among those concerned in the implementation of the Fifth and Sixth Schedules under Articles as 244(1) and 244(2) of the Constitution. Article 244 provides for special provisions for Scheduled Areas in V and VI Schedules to the Constitution. Ten States have been included in V Schedule while Seven sisters of Assam are covered by VI Schedule. The Governors of the States have special responsibility and powers to protect the interests of Tribals. By anticipation, He may execute application of any law to a Scheduled Area or any part thereof or any part of the State or may modify application of laws to Tribals after consulting Scheduled Tribes Advisory Board. But in actual exercise of that power there are too many legal complications to be effective. For example, in Samatha case, Supreme Court interpreted the regulation framed by the Andhra Pradesh Governor. When that interpretation was sought to be relied upon in Balco’s case, the correctness of that decision is doubted.

In Balco Employees Union Vs. UOI (2002) 1 SCC 340 , the Supreme Court of India observed:
“While interpreting Section 3 of the A.P. Scheduled Areas Land Transfer Regulation, 1969 framed by the Governor in exercise of powers under Article 244 read with para 5(2) of the Fifth Schedule of the Constitution, the Supreme Court held that the words “transfer of immovable property …. by a person” in that clause included the transfer by way of grant of mining lease by the State Government. Section 3(1) was interpreted as prohibiting any such transfer in favour of a non-scheduled tribe and it was further declared that such transfer shall be absolutely null and void. While there are strong reservations with regard to the correctness of the majority decision in Samatha case, which has not only interpreted the provisions of the aforesaid Section 3(1) of the A.P. Scheduled Areas Land Transfer Regulation, 1959 but has also interpreted the provisions of the Fifth Schedule of the Constitution, the said decision is not applicable in the present case because the provisions of the Madhya Pradesh Land Revenue Code, 1959 and Section 165, in particular, are not in pari materia with the aforesaid Section 3 of the Andhra Pradesh Regulation. Article 145 (3) of the Constitution provides that any substantial question of law as to the interpretation of the provisions of the Constitution can only be decided by a Bench of five Judges. In Samatha case, it is a Bench of three Hon’ble Judges who by majority of 2:1 interpreted the Fifth Schedule of the Constitution.”
Thus there is no clear cut enunciation of law on this subject matter.
TRIBAL ART, CULTURE AND TRADITION
Issues relating to tribal art, culture and tradition such as proper documentation of culture of various tribal communities, including arts and crafts; appreciation and encouragement of traditional tribal dance and music; commercialization of arts and crafts; insufficient information and data base on tribal artisans and artists and lack of awareness of culture and heritage of tribal communities by the administrators and field functionaries needs to be addressed.
TRIBAL LANGUAGES
Tribal languages are treated as unscheduled languages. In the wake of changing educational scenario, many of the tribal languages are facing the threat of extinction. The loss of language may adversely affect tribal culture, especially their folklore.
INTELLECTUAL PROPERTY RIGHTS
Scheduled Tribes are known for their knowledge and wisdom of ethnic origin. There is, however, no legal and/or institutional framework to safeguard their intellectual property rights. In addition, their rich biodiversity is to be protected through a proper framework of intellectual property rights.
After independence, the forest department took over monopoly of developing forests and Tribals became foreigners in their own forests especially after enforcement of Forest Conservation Act, 1980. Demand had been pending consideration before the government to regularize agricultural possession of Tribals.
The Indian Parliament has passed a historic law seeking to give the country’s forest-dwelling tribes rights over forestland (their traditional home) and its resources that are the only source of livelihood.
The Scheduled Tribes and Other Traditional Forest-Dwellers (Recognition of Forest Rights) Act 2006 recognises and vests forest rights and occupation in forest land, in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded. The law provides for a framework for recording the forests rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land.
The Act also recognizes the rights of ST and other forest dwellers include the authority and responsibility for sustainable use, conservation of biodiversity and maintenance of ecological balance and thereby strengthening forest regime while ensuring livelihood and food security of the forest dwelling Scheduled Tribes and other traditional forest dwellers.
In consolidation of State, both during British period and after independence, the forest rights on ancestral lands and their habitat was not recognized resulting in injustice to forest dwelling Scheduled Tribes and other traditional forest dwellers who are integral to the survival and sustainability of the forest ecosystem.
It also addresses the problem of insecurity of tenure and access rights of Scheduled Tribes and traditional dwellers including those who were forced to relocate their dwelling due to State development interventions.
With its passage, scheduled tribes and other tribals who have been living in forests for three generations will be entitled to the right to four hectares of land, which they can cultivate. They will also have access to and ownership of minor forest produce, rights of grazing, and access to traditional seasonal resources.
The government accepted an amendment suggested by some of its political allies that the cut-off date for being covered under the new bill be extended from October 31, 1980, to December 13, 2005. The original date was opposed on grounds that it would have led to the mass eviction of tribals from forests. Members of parliament in the Lok Sabha were unanimous in demanding the withdrawal of cases registered against forest-dwellers at the behest of forest officials.
The government has also accepted the right of jurisdiction of gram sabhas (village governing councils) to settle tribals’ claims.

If tribal culture is to be preserved, the traditional law can be divided into three categories:
(i) Those which protect economic interests of tribals and empower them.
(ii) Those which are against the spirit of progressive law of the land.
(iii) Those which involve benefit of development programmes to tribals.

The laws should be appropriately blended bearing in mind these aspects.

Before we proceed further, we may review the implications of the process of scheduling of tribal communities and their habitats for their Constitutional and Human Rights which can be summarized as follows:

(i) The left out, but eligible tribes like Gonds, Kharwar of Sonbhadra, UP, have been totally denied the safeguards envisaged for them by the Indian Constitution.

(ii) Even those tribal communities which have been Scheduled, but whose habitats were not included in the Scheduled Areas, remained bereft of the protection of the Fifth Schedule. The implicit violation of human rights in extensive areas not scheduled, notwithstanding the clear commitment in the Parliament in 1976 to schedule the entire tribal sub-plan area, is continuing for more than a quarter century.

(iii) Even in the Scheduled Areas, the total failure to adapt the legal frame in keeping with the intention of the Constitution for 46 years until 1996 and half-hearted measures even after a clear mandate in the Extension Act, the Scheduled Tribes remained stripped of the most basic of all human rights, recognition of their identity as a community and their vital natural rights of self-governance including command over resources and dispute resolution.

(iv) The abrogation of human rights is total in respect of preagricultural tribal communities because of non-recognition in the general law of the resource-use at their stage of progression such as hunting and gathering, fishing, pastorals and even shifting cultivators (recognised only in Sixth Schedule areas).

(v) The programmes of primitive tribal communities comprise largely routine beneficiary schemes. The vital issue of command over resources and loss of socio-ecological balance has been missed. Consequently many communities with the gradual denial of access to the natural resources in their traditional habitat are virtually vanishing like the Great Andamanese. The Chenchus in A.P. and many other groups, who are being currently forced from their habitats in the name of protection of wild life or environment, are destined to meet the same fate. Thus there is open denial of human rights to the most vulnerable groups simply because of the failure of the system to appreciate the nature of their crisis and to honour the spirit of the Fifth Schedule.

(vi) The communities branded as criminal and now de-notified tribes had passed through the same traumatic process earlier. Their current state is despicable for they are still deemed to be criminals and hauled up by the police at the slightest pretext. They do not have the benefit of even a formal ritualistic protection of the State.

(vii) Many tribal communities or groups thereof and other groups are being currently forced into the mould of criminal tribe, albeit, without formally branding them as such. They are unwanted by the advanced communities, which have captured their resource base and are hunted by the police. The worst from of violation of human rights continues simply because the system does not acknowledge the very existence of the problem.


The set of ‘legalistic’ human rights in the UDHR comprise a broad spectrum including equality before law and equal protection of law (Article 6), protection against arbitrary arrest (Article 9), hearing before an impartial tribunal (Article 10) and presumption of innocence until proved guilty (Article 11). The Indian Constitution fully subscribes to this frame and the provisions in the relevant laws of our country are broadly unexceptionable barring a few like Prevention of Terrorism Act (POTA). That this frame is inadequate for the tribal people is implicit in the extra-ordinary powers vested in the Governor to adapt any law. While the UDHR and provisions of Indian Constitution are general, Convention 107 has a clear and categorical provision with regard to the tribal tradition. Article 8 envisages that:

“To the extent consistent with the interests of the national community and with the national legal system:

(a) The methods of social control practiced by the populations concerned shall be used as far as possible for dealing with crimes or offences committed by members of these populations.

(b) When use of such methods of social control is not feasible, the customs of these populations in regard to penal matters shall be borne in mind by the authorities and courts dealing with such cases.”

In fact, all proceedings against the tribals in courts of law, about whose procedures the people know virtually nothing. The provisions about assistance are only in name. The people, therefore, are totally defenceless and not in a position even to make simple submissions. The final verdict is passed by a presiding officer who has no inkling about the tribal traditions and custom and who, in most cases, would not care to go beyond the literal frame of the law. Moreover some basic premises of the legal frame, for example, documentary evidence being virtually conclusive in the face of mere oral evidence, are antipodal to the tribal values according to which word is conclusive and there is no value for the written word except in formal proceedings. Such proceedings, notwithstanding in accordance with due process, cannot be deemed to be impartial in terms of UDHR. Accordingly, all ‘due processes’ in terms of the present legal frame with no regard for the tribal social milieu comprise serious violation of human rights.

For the tribal people living in their traditional habitat, the right to life with dignity is a natural endowment. Their way of life is directly related to the nature of the habitat, its resource endowment, level of technology and people’s perception about quality and goals of life. The enjoyment of these human rights acquires a new dimension of externally imposed limitations as the tribal people and their habitat formally becomes a part of a larger system of the State. This formal legal frame may not necessarily be in consonance with the tradition and customs of the tribal people, the nature of their institutions and the value frame governing their life.

The command over resources, on which a people subsist for their living, is the life-breath of the right to life with dignity. The edifice of dignity collapses with the appearance of the State on the scene with aura of eminent domain. For example the tribal people were deprived of their natural rights over forest under this dispensation. A set of rights and concessions, however were worked out by the State at the time of reservation of forests to defuse their resistance. But in course of time even these rights and concessions became, in the perception of the administration, a dispensable burden as observed by Dhebar Commission in 1960. The situation at the moment is ambivalent. After accepting elimination of exploitation as a top priority item in the formal agenda of tribal development under tribal sub-plan strategy, there was concerted effort to end the confrontation between the tribal people and the State on various issues relating to forests. The symbiotic relationship between the forests and tribal people was formally incorporated in the National Forest Policy, 1988. In the mean time, there was consensus about conceding ownership rights over minor forest produce (MFP) in favour of tribal communities. The MFP is the main stay of tribal economy in many areas. This decision changed the status of tribal people from mere wage labourers to owners of MFP. Madhya Pradesh was the first State to formalize this consensus in 1986. It is now a Constitutional mandate under Section 4 (m) (ii) of the Extension Act. This Act also acknowledges the competence of the community in the form of Gram Sabha to manage ‘community resources’. The scope of ‘community resources’ has been made explicit in Madhya Pradesh Panchayat Raj & Gram Swaraj Adhiniyam, 1993 vide Section 129C (iii) as ‘natural resources including land, water and forest ....’

According to Article 23 of UNHR, ‘everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against employer.’ This Article is ideally set in the scenario of industrial and postindustrial Western world. At the tribal end of the spectrum, the focus in ILO Conventions 107 and 169 is an effective command over resources in the concerned territory and an honourable alternative acceptable to the people, should that land be taken for some other purpose. The State has failed in protecting this vital right of tribal people so far. The essence of entire gamut of human rights in respect of the tribal people is being put to test in the way they are enabled to negotiate the imminent structural transformation which the tiniest group amongst the tribal communities may face, some time or the other. The right to work in its real spirit can be the only reliable anchor for the tribal people in that tumultuous phase of change. Right to work is particularly crucial in the context of the prevailing situation on ‘land’ front discussed in detail above. It is not only a Constitutional but also moral obligation of the Indian State since the trauma, which the tribals are facing, is largely because of executive failure.

‘Everyone has a right to take part in the Government of his county, directly or through freely chosen representatives,’ is the essence of modern democracy and condition precedent for honouring all other human rights in an essentially iniquitous world. The humankind is segmented and fractured, arranged in countless hierarchies, comprising crowds of competing persons out to ‘achieve’ at any cost. It enables the concerned nations to be genuinely convinced about imbibing the spirit of the basic premise that ‘all human beings are born free and equal in dignity and rights.’ Every legal State is, therefore, obliged to formulate ‘due process’ which would add flesh and blood to make that skeleton a living reality. As we have seen, India fully honours this right having established ‘due processes’ for people’s representation in Parliament, at the national level down to Panchayats at the village level. And yet, the dilemma arises in the tribal areas where ‘living reality’ of true democracy is so natural an endowment like the very life-breath that even its existence is not realised by the people there. This is what Khan Abdul Gaffar Khan, Jaipal Singh and Muhammed Sadulla were pleading for tribal area when the spirit of democracy was being given the frame of ‘due processes’ in the form of Indian Constitution.

The form superseded the spirit in the case of representative institutions notwithstanding the warning, the pleadings and profusion of good will on all sides. The ‘due process’ superseded the ‘living reality’ in the tribal areas. In the North East this was done ironically in association with the traditional institutions without their realising what it was all about. The Autonomous Councils and even the State with its formal authority, but with no channels of communication with the living system, have remained concerned largely with matters, which are inconsequential in people’s perception. The traditional system remains strong and dissonant with the legal State, for example, in Nagaland in the North-East. Creation of space for the traditional system in the formal legal frame remains a major issue without which the realisation of these crucial human rights for a real democracy will remain an enigma.

The failure to evolve a synthesis between the formal and the living systems and deeming the formal representative democracy as the real democracy has played havoc in the Scheduled Areas. There has been no conflict between the formal and the real in practice in three situations, viz., (i) in inaccessible areas where the system exists only in name with no manifestation of its authority in any form, (ii) where the traditional institutions are so strong that the presence of the formal authorities is inconsequential, and (iii) where members of the formal system are sensitive with appreciation for the value system of traditional institutions and prefer not to interfere merely for the sake of form. The formal participation of elected representatives in the democratic institutions did not really serve the purpose of directing or even influencing the governance at various levels. It was not possible for the people’s representatives to understand the complexities of the modern system, appreciate their linkages with the interests of the people, particularly in the long run and the dilemmas of their own dual conflicting roles as members of traditional communities and the formal institutions whose values are incongruous, if not outright contradictory.

In the beginning participation of simple representatives of simple communities in democratic institution was largely a ritual with not much significance for either side. But given an opportunity, the representatives did reflect people’s perception. However, as the tentacles of formal system spread out, its powerful authoritarian presence gave rise to a variety of conflicts in which ultimately the formal system prevailed. It weakened the traditional institutions, which, in many areas, have virtually disappeared. A new class of articulate tribals, imbibing new values, is slowly emerging with far-reaching implications. It is this group, which tends to represent the tribal people but does not necessarily reflect their perception or even their interests. For example, this class has generally come to accept land as property and resents regulation of transfer, which depreciates its value in the market. This assertion on their part is against tribal tradition, national laws and ILO Conventions, which have provided some protection albeit inadequate during the crucial transition. It is a truism to state that farther the representative institution from the real life, larger the dissonance between the precepts and concepts at the two ends.

Even though attempts had been from the very beginning to solve this riddle not only in the tribal areas under the Fifth and the Sixth Schedules but also in general areas of the country, for example, in the Directive Principles concerning Panchayats under Article 40, the traditional institutions waned and the spirit of this basic Human Rights was not honoured notwithstanding the formal provisions. As the confrontation between the people and the State continued to grow, meaningful participation is now being attempted under the provisions of the Extension Act. The community at the village level in the form of Gram Sabha is now central in the governance of these areas. The Gram Panchayat, the representative body, is answerable to the village assembly and has no powers of its own. Other representative institutions at higher levels, block and district, are supposed to play a supportive role to the Gram Sabhas.

Nevertheless, the concerned State laws remain to be suitably adapted. In the mean time, the traditional institutions themselves particularly in Jharkhand like munda-manki, parka, etc. have started asserting their natural rights by virtue of the competence of the community ‘to safeguard and preserve traditions and custom of the people, their cultural identity...’ enshrined in the Constitution. The Jharkhand Panchayat Raj Act 2001 envisages that the meetings of Gram Sabhas shall be presided over by a traditional leader of the community like paraha, munch, pahan or by a member of a Scheduled Tribe elected by the Assembly. Thus, while the traditional institutions have been honoured yet hereafter ‘the traditional leader shall be their leaders because the community recognises him as a leader,’ and no leader can claim his position due to recognition by the State.
He will have to abide by the people’s verdict.

It is this blend of the traditional and modern, of the energy of the young and wisdom of the elders in the grand frame of the assembly of people at the village level the best in the individualistic and communitarian human rights will blossom and create conditions to participative in the cultural life of the community, ‘to enjoy the arts and share in scientific advancement and its benefits.’

India can be proud of a virtually ideal Constitutional conceptual frame for realisation of the rights and freedoms of its citizens as persons, set forth in UDHR and also the natural rights of the community, the real nursery for development of human personality, specially of the Scheduled Tribes as envisaged in ILO Conventions and more. While the rights of Scheduled Tribes in the modern Sector have been reasonably operationalised, the position in the traditional sector is rather dismal largely because of inaction on the part of administration and also the political executive. The creation of space for the self-governing community and its traditions and customs in the Constitution in 1996 can become the foundation for realizing the ideal.

Workshop on using indicators to promote and monitor implementation of Human Rights Opening remarks by Justice Sri Rajendra Babu, Chairperson, NHRC, India

It is a matter of great pleasure for me to have you all here to interact in this Asian Sub-Regional Workshop on ‘Using Indicators to Promote and Monitor the Implementation of Human Rights’.

I am extremely grateful to the Hon’ble Chief Justice of India for having kindly consented to inaugurate the Workshop by taking out time from his busy schedule of judicial and administrative work. I am beholden to him personally.

The recent Resolution adopted by the United Nations Council for Human Rights has not only endorsed inviting National Human Rights Institutions (NHRIs) to participate in all agenda items of the Commission but also a first recourse for complaint remedy, has enhanced the importance and responsibility of the NHRIs in the task of protecting and promoting human rights.

In the debate on development there is a constant shift from the welfare to rights agenda. Just as there are development indicators, there should be specific identified indicators to promote and monitor the implementation of Human Rights. The Universal Periodic Review and Special Procedures will be using parameters for scaling the human rights performance.
Assessing the effectiveness of these indicators is complex. The attempt in this workshop is therefore to enlist the indicators which are computed in individual countries which in turn will also reflect the human rights scale of performance. This would not therefore enable to advocate collection of fresh information but to use the existing indicators to indicate the human rights performance. For example, extent of malnutrition could be an indicator for right to food security, immunization and institutional deliveries are indicators for right to health.

National Institutions have not only been giving recommendations but monitoring economic, social and cultural rights as well as civil and political rights. This experience gained with policy makers and statisticians will enable to identify appropriate indicators.

The test of effectiveness for these parameters will be as to not how far they made uninterrupted progress towards a society in which all human rights are respected, protected and fulfilled. In many countries, NHRIs operate in an environment in which human rights are not an official priority or, worse, are under attack. They have limited powers. Their first responsibility may be to hold the line by continuously monitoring government behaviour and keeping awareness of human rights alive in society.

Thus, there is a need to develop indicators as also to understand them in the right perspective and interpret them taking into account the economic and political context. No single set of indicators will be able to provide information which is universally applicable and as such, often, a group of indicators may have to be used for assessing effectiveness.
The indicators can be qualitative and quantitative. The indicators should have certain inherent attributes, such as – it must be precisely defined, it has to be measurable through available data and characteristics, it must be relevant and it must be viable.

In this workshop our primary objective would be to bring together human rights stakeholders, for example, NHRIs , policy makers, national statistical agencies and some civil society representatives from the South Asian region. So that amongst other things a common approach to identifying indicators for monitoring civil, political, economic, social and cultural rights, thereby strengthening the notion of the indivisibility and interdependence of various human rights.

The workshop will also provide opportunity to critically examine the advantages and pitfalls of indicators. It has to be borne in mind that the indicators are essentially a tool to help policy makers, evaluators and also national institutions plan and evaluate their work, but not an end in themselves. The deliberations in the coming two and half days will be going in these finer details of the indicators.

Finally, the single most important use of well-formulated indicators has to be that they allow the public to form a clear view of the human rights performance and to decide whether the governments are adequately fulfilling its mandate and reaching its overall goal:- to protect and promote human rights.

Thank you

 

Address by Justice Shri S.Rajendra Babu, Chairperson, NHRC at National Consultation on “Incorporating Human Rights Education in the School and University Education System” organized by NHRC on 6th July, 2007 at Vigyan Bhawan, New Delhi.

Shri Arjun Singhji, Minister for Human Resource Development, my esteemed colleagues in NHRC, Prof. S.K. Thorat, Chairman, University Grants Commission, distinguished Vice Chancellors, Members of the NHRC Task Force on university and school education, Academicians, Secretaries to Govt. of India, my brothers and sisters.

Indeed it is a pleasure to be with you this morning for sharing the concern of National Human Rights Commission and my own concern on the issue of human rights education in the formal education system at all levels. Well, as far as I think the human rights education and human rights in itself is a major concern of each and everyone in the fast changing socio-economic cultural order, particularly, in the light of emerging view as a result of rights based approach to development. I am grateful to the Hon’ble Minister for Human Resource Development, Shri Arjun Singh, for having consented to inaugurate the National Consultation. I am equally grateful to Prof. S.K. Thorat, Chairman, University Grants Commission for having delivered the key note address and in supporting our efforts.

Human rights are usually based on the three basic documents that collectively are known as international bill of human rights: the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocol, and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and also what is contained in the Constitution as Fundamental Rights or in other enactments. In substance they relate to life, liberty, equality and dignity of the individual. Human Rights are those that do not relate to citizenship but what is taken to be the entitlement of any human being. Inherent dignity and of equal and inalienable rights of all members of human family is the foundation of freedom, justice and peace in the world. Disregard and contempt of Human Rights have resulted in barbarous acts which have outraged the conscience of the mankind. It is essential, if a man is not compelled to have recourse as a last resort, to rebellion against tyranny and oppression that Human Rights should be protected by Rule of Law.

In the last few decades there has been a worldwide growing awareness and explosion of interest in human rights education, which means that “all learning that develops the knowledge, skills and values of human rights”. The United Nation proclaims that human rights education is “training, dissemination and information efforts aimed at the building of a universal culture of human rights through imparting knowledge and skills and the moulding of attitudes”. These efforts are designed to strengthen respect for human rights and fundamental freedom, facilitate the full development of human personality, sense of dignity, promote understanding, respect, gender equality and friendship to enable all persons to participate effectively in a free society, and further activities for maintenance of peace.

Human rights education, training and public information are, therefore, necessary and essential for the promotion and achievement of stable and harmonious relations among the communities and for fostering mutual understanding, tolerance and peace. Through the learning of human rights as a way of life, fundamental change can be brought about to eliminate or eradicate poverty, ignorance, prejudices, and discrimination based on sex, caste, religion, and disability and any other forms among the people at large. We ourselves are required to discover the human remedies for human maladies, to eradicate these shortfalls in human rights.

The major International Instruments on Human Rights include education as integral part of the right to education and have gained of late larger recognition as human right in itself. Human Rights Education cannot be reduced to a single introduction of human rights content. It brings about a profound reform of education, which touches upon curricula in-service and pre-service training, textbooks, methodology, classroom management and the organization of the education system at all levels. Human rights education implies the learning and practice of human rights. Therefore, human rights education should not be theoretical but must be relevant of people’s lives, in the sense that such education must also provide opportunities for young people to develop and practice the skills to respect the human rights and citizenship through school/college life.

Human rights education is needed to everyone, whose decisions or policies affect the lives of other human beings. Human Rights Education serves as means of understanding and embracing principles of human equality, dignity and commitment to respect and protect the rights of all. Once the people grasp human rights concept, they begin to look for their realization in their own lives, examining their communities, families and personal experiences through the human rights lens.

Dissemination of knowledge of human rights and duties must therefore, aim at bringing about attitudinal changes in human behaviour. It is commonly acknowledged that students are the dynamic and progressive component of citizenry. When properly trained and guided they can become instruments for ensuring social justice and development. Similarly, teachers have a crucial role in developing awareness among the students to translate human rights into social and political realities.

Human rights education has to grapple with three important concerns: one, clarification of contemporary civilizational dilemmas; two, intergenerational transmission of experience; three, acceleration of the process of transformation. The contemporary civilization faces several dilemmas arising from different contradictions. These contradictions at an individual level are located in selflessness vs. selfishness, at institutional level at individual vs. collective, state power vs. democratic culture. The development models have come to increasingly pre-suppose that self-interest alone can be the propeller of faster development of the productive forces. The crisis of the socialist world added strength to this general belief. Despite the crisis, the potentialities and possibilities of nobility inherent in human nature will have to be rediscovered and realized. This can be made possible by not only recounting and resurrecting the historical memory about the positive achievements and advancements but also transmitting them to coming generations. The indifference to past achievements in such domains not only negates the past but cripples societal capacity to move to higher realms of social life. A critical reflection of the past heightens the consciousness, which, in turn can create necessary climate for not only democratic governance but a democratic way of life. This effort has to be continuously made at the individual, group, national and international levels. Human rights education can be a catalyst in this process.

The experience of the last five decades in the area of human rights has become a matter of deep concern. The adoption of Universal Declaration of Human Rights or transfer of power from the colonial masters to colonized people or adoption of various international instruments has not qualitatively changed the ground realities. There have been massive violation of human rights. The humanity landed itself at the end of the 20th century in a more violent, brutalized and dehumanized world. Nevertheless the human assertions of the suffering people continue to hold the hope all over the world. This experience suggests that human beings have to make far more conscious effort to alter the world reality. Human rights education should aim at this goal.

Having had the concern towards the issue of human rights education the National Human Rights Commission has made an effort to bring out its concern in the form of recommendations leading to formulation of model curriculum for induction in the university education system which would further lead to the award of various academic degrees. At the same time, it has been our sustained effort to ensure that the recommendations on the issue does take care of developments that have taken place in the area of human rights concerns in the past at national and international level. Besides, having incorporated a serious element of practical experience in the field to be taught not only to the students of human rights education but also various disciplines of study at graduate and post-graduate levels in the form of foundation course. Further, the recommendations of the Commission also covering under-graduate and post-graduate degree, diploma, certificate and research degree programmes in human rights have been made in view of the advancement in the knowledge of human rights per se. In addition, the recommendations of the Commission are also in the form of syllabus leading to teachers training module. Thus, by and large the recommendations have covered more or less every aspect of human rights education.

I am beholden to Justice Shri Y. Bhaskar Rao, my esteemed colleague in NHRC for his initiation in the course of the formulation of the recommendations on human rights education. My gratitude is also due to the members of NHRC Task Force on Human Rights Education for University and School. Behind any successful team there is an army of quite and dedicated individuals whose efforts must be acknowledged. In this endeavor I thank the team of NHRC for their excellent efforts.

I am sure the recommendations of the Commission would be given due cognizance by various stakeholders while introducing the human rights education at various levels of education. In any case, if there is a sustained effort made to disseminate human rights concerns through the process of education in the society, it would certainly bring about a sustainable conspicuous results and will lead to positive change in the society in 21st century. Finally, the ultimate goal of education for human rights is empowerment, giving the knowledge and the skill to take the control of their own lives and decisions that affect them.

Thank you very much.

 

Inaugural Address of National Seminar To Mark The 30th Anniversary of The Adoption of the 1977 Additional Protocols to the Geneva Conventions of 1949 Delivered by: Justice Shri S,Rajendra Babu, Chairperson, NHRC organized by: International Committee of the Red Cross(ICRC) & Indian Society of International Law (ISIL) at India Habitat Centre, New Delhi on 8th June 2007
 

The Geneva Conventions

The Geneva Conventions of 1949 and the two Additional Protocols of 1977 are the documents that currently outline the humanitarian rules applicable in armed conflict. There are four separate Conventions that govern the treatment of neutral personnel, medical workers, POWs and civilians. Specifically:
• Convention I: for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.

• Convention II: for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.

• Convention III: relative to the Treatment of Prisoners of War.

• Convention IV: relative to the Protection of Civilian Persons in Time of War.
These four Conventions have been signed by 190 states. The Additional Protocols of 1977 (AP I and II) have been signed by a majority of states, but by substantially fewer than the 1949 Conventions (161 and 156 states respectively of 191 UN member countries).However, they are still considered to have customary, if not moral, authority by many. The purpose of the two Additional Protocols was to clarify and strengthen the protection afforded to individuals, POWs and civilians in armed conflict.

Both the United States and Iraq are parties to the Geneva Conventions. The United States ratified the Conventions on 2 August 1955 and Iraq assented on 14 February 1956. However, both countries are not signatories to the Additional Protocols of 1977.
The Conventions become applicable at the beginning of hostilities. According to the Conventions, this includes “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” In the case of the present conflict, the Conventions would have become effective when the Coalition Forces began their attack on 18 March 2003, although international law, international humanitarian law and international human rights law would have always been in effect.
If a picture speaks a thousand words, the images transmitted around the world in late 2001 of the “unlawful combatants” being transferred to the US detention centre in Guantanamo Bay, Cuba, spoke volumes. Blindfolded, handcuffed and strapped to hospital beds, the prisoners looked like they were undergoing some hideous scientific experiment rather than merely being transported to their new prison.
But that was just the beginning of the PR nightmare in which the US government found itself regarding to the prisoners from the ‘war on terror.’ The Bush Administration came under fire for announcing that the captives, were illegal combatants, and therefore did not have any protection under the Geneva Conventions.
The outcry was immediate from NGOs, international organizations and allies who insisted that the United States adhere to the Geneva Conventions to which it was a signatory. All were quick to point out that even if the ‘detainees’ were not classified as Prisoners of War (POWs), they would be protected under the Fourth Geneva convention for the protection of civilians in conflict areas.

By late January 2002, US Secretary of Defense Donald Rumsfeld, under international pressure, acknowledged that the Conventions do apply to all of the prisoners at Guantanamo Bay, reversing earlier statements to the contrary.

The moral of this story is that despite the changing face and nature of war, the Geneva Conventions are surprisingly flexible and remain relevant for the protection of all individuals who find themselves embroiled in armed conflict. Even when given seemingly justifiable circumstances to do otherwise, countries continue to profess the importance of the Conventions and their commitment to adhere to them. They do so for the sake of their moral image and for the protection of their own personnel.

It has been over a year since the Guantanamo controversy. However, with the outbreak of war in the Gulf, the Geneva Conventions have again returned to the spotlight.



Degrading Treatment of POWs

Using prisoners of war for propaganda purposes is a violation of the Geneva Conventions and organizations which monitor compliance of international law, such as the International Committee of the Red Cross (ICRC), have requested that both the Iraqi and Coalition forces refrain from releasing images of POWs to the media. This is, of course, problematic as there are at least a thousand journalists in the region with the ability to send images of POWs all over the world.

The US has made the claim that by “parading” American POWs on television, Iraq has violated Common Article 3 of the Conventions which prohibit “outrages on personal dignity, in particular humiliating and degrading treatment.” Also, directly relating to this issue, the Conventions specify that “No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.” This could also be considered a violation under Article 13 of the Third Convention which states that “prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity."

POW status is also governed by Article 4 of the Third Convention. The General principal of this article is that any member of the armed forces of a party to a conflict is a combatant and any combatant captured by the opposing party is a POW.

Finally, as mentioned above, further clarification of POW status is located in Additional Protocols I and II. Specifically, AP II, 4 prohibits “outrages on personal dignity, in particular, humiliating and degrading treatment, enforced prostitution and any form of indecent assault."

Again, neither the US or Iraq are parties to AP I and II. However, this does not mean that the Protocols are not binding upon both Parties. The Geneva Conventions specify that in cases not covered by the Conventions, the Protocols or other international agreements, or in the case of denunciation of these agreements, “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.” This, the so-called Martens Clause, indicates that the Additional Protocols may be considered customary law and that all parties are morally bound by the rules in them if they truly wish to be seen as adhering to both the letter and the spirit of international law.

Irregular Forces

Another issue that may emerge as the Coalition forces make headway into Iraq are the Amn Al-Khas (Special Security Service/Office) and the Fedayeen Saddam (Saddam’s Martyrs/ “Men of Sacrifice”). These are not regular army personnel or members of the Republican Guard Special Forces. Rather, they paramilitary organizations who are fiercely loyal to Saddam and known to operate in plain clothes. By most accounts, they are led by Saddam’s sons. Other groups said to be participating in the fighting include the Al Quds (Jerusalem Brigades) made up of both men and women fighters, Ashbal Saddam (Saddam’s Cubs) – a military organization for children ages 10-16 and the Youth Civil Defence Force whose 12-17 year old members are trained to protect cities. (It is worth noting that enlisting soldiers under the age of 15 is considered to be a war crime.)

In the present conflict, the Al-Khas and Fedayeen have been providing assistance and enforcing loyalty to the regular Iraqi forces in cities like Nasiriyah. According to some reports, these forces fight without a uniforms, identification and/or without openly carrying their arms. In this case, these forces are “illegal combatants” – that is, private persons who do not have the right to take part in the conflict. These individuals may face trial for their participation. If a combatant who is not a member of a recognized armed force wishes to be accorded POW status, he/she must adhere to Article 4 of the Third Convention: 1) to be under the command of a person responsible for his subordinates (part of a hierarchical organized force); 2) having a fixed or distinctive sign recognizable at a distance; 3) carrying arms openly, and; 4) conducting their operations in accordance with the laws and customs of war. It is uncertain at this point how well the Al-Khas and Fedayeen have complied with these four requirements.

The exception to this would be if the Al-Khas and Fedayeen are considered to be participating in a levée en masse (a general uprising of the population against an invading force). It is doubtful that the US will regard their participation as a part of such a movement.

However, being designated an ‘illegal combatant’ does not mean that any such individual is not protected under the Conventions. Rather, instead of being given POW status under the Third Convention, they would be protected under the Fourth Convention as civilians.

Compliance with the Conventions

Iraq has declared that it will act in line with the Geneva Conventions – likely out of a desire to maintain a degree of respectability in the eyes of the international community. However, given its past record, it is understandable that many on the Coalition side and international organizations remain concerned. During the Iran-Iraq War of the 1980s, Iraq (as well as Iran) confounded the ICRC’s efforts to identify the deceased and captured POWs and prevented visits to some 20,000 Iranian POWs. Well over a decade since the last shot of that war has been fired, all prisoners have still not been released. During the Gulf War, captured American pilots were beaten while being interrogated by Iraqi forces. If the fighting in Baghdad becomes messy, Saddam’s willingness to abide by the Conventions is questionable at best. If allegations that American POWs were shot while attempting to surrender prove true, this would already be a grave breach of the Geneva Convention.

On the other hand, it is clear that the US and Coalition forces wish to be seen as adhering to international law as much as possible in this conflict. Yet already there has been concern over pictures of Iraqi POWs published in the Western media. On 23 March, the Washington Post published a picture of a bound and blinded Iraqi POW. Iraqi POWs have also been seen during “live-on-the-scene” reporting from the front lines of the conflict.Nevertheless, one can expect that the Coalition forces will attempt as much as possible to maintain the spirit of the international law. Even while it denied that the prisoners in Guantanamo were protected by the Conventions during the war in Afghanistan, spokespersons for the US government and military insisted that all prisoners would be treated along the lines specified under international humanitarian law.

It is clear that the Geneva Conventions are profoundly important to American and Coalition forces. It also appears that Iraq has shown a greater degree of respect for the Convention than in previous wars.Respecting the Conventions is crucial to launching complaints when the rights of one’s own troops are abused. Any time one side in a conflict shows less than full compliance with the rule of law, they have diminished their moral stature and made it easier for their opponents to refuse to comply. It is hoped that the damage done over the rights of prisoners in Afghanistan will not result in a tougher time for Coalition POWs in Iraq. It is in the interest of the of all warring parties to adhere to international humanitarian law at all times.

Despite its capacity for devastation and destruction, war has always been a vital part of human society. Indeed, historically, it has played an enormous role in economic, social, technological and political development. In 3000 years of recorded history, less than 300 years have been free of armed conflict. However, at the beginning of the twenty-first century, the destructive capacity of modern weaponry has made armed conflict, for the first time, inconceivable as anything but a final alternative. Increasingly, international concern has focused, not just on humanitarian affects of modern warfare, but the massive scale of potential environmental destruction. This concern has resulted in attempts to provide legal protection for the environment in times of armed conflict, based on the Geneva Protocol of 1977, as well as existing Laws of War and Environmental Convention. And yet, this protection is limited - the Geneva Protocol itself is ambiguous and any environmental damage can almost always be justified by the principle of 'military necessity'. A degree of protection is offered by conventions prohibiting specific weapons of mass destruction; however this is becoming obsolete, as the destructive capacity of modern 'conventional weaponry' begins to surpass these older weapons in scale. Unless the international community is able to formulate more specific protection and regulation than is currently offered, the damage to the environment in armed conflict will only continue to worsen, with unforeseeable consequences.


Whether the international community chooses simply to strengthen the application and enforcement of existing laws, or to create a new unambiguous "Environmental Laws of War", there is an urgent need to review the protection the environment in armed conflict. Currently, environment laws relating to warfare prohibit only a limited number of weapons and techniques deemed to pose a great threat to the environment: indirect damage to the environment due to acceptable 'conventional warfare' is mentioned only in the most ambiguous of terms. During the Vietnam War the focus on the impact of the use of 'environmental warfare' meant that the significant environmental havoc caused by conventional munitions was almost entirely overlooked. And it is arguably this conventional warfare that will pose the most significant threat to the environment in the twenty-first century - particularly as the destructive nature of modern 'conventional weapons' is now far greater than outlawed nuclear weapons of the 1950's. It has been argued by industrial powers that the use of sophisticated weapons against carefully selected targets will minimise environmental and other collateral damage. However, although modern warfare allows industrialized states to go to war with few human casualties, the environmental damage has not lessened, and the next century may even see a return to the acceptance of war "as an instrument of foreign policy" due to decreased humanitarian commitment required from a belligerent state. It should be remembered that the 'military revolution' and acquisition of increasingly sophisticated weaponry is taking place almost exclusively in countries of the North; and that the majority of conflicts since 1945 have taken place in the South. Although the weapons used in these "low intensity" conflicts are more primitive, environmental damage is still significant; both the direct impact of battle itself, and indirect effects such as logging, and the movement of refugees. In addition, the temptation for Third World countries to resort to the now inexpensive means of modern warfare - including nuclear weapons and environmental modification techniques - in order to gain military advantages will be increasingly harder to resist. It is unlikely the current environmental conventions can continue to impose restrictions on the use of such weapons on countries of the South, when far more destructive technology is internationally acceptable.
Any attempt to impose restrictions on a situation as irrational as warfare seems an impossible task, as does the concept of environmental protection at times when human lives are being lost on a large scale. However, the effects of modern warfare on the environment are unsustainable. In light of the ever-increasing destructive capacity of modern 'conventional weapons', and the likelihood that war will continue to play an important role in international relations, more comprehensive measures are urgently needed to prevent and punish unreasonable environmental damage. Without the determination of unambiguous international protection of the environment in times of war, then in the future States may have to face a new, common enemy of far greater threat to national security than any other state has ever been - that of environmental degradation.

In the programme set-out, many distinguished experts would explain the nature and scope of Additional Protocols and Guarantees that are available therein, the aspects of modern warfare, limitations on the development and use of weapons under the Additional Protocols, definition of combatants and legal status of belligerents, situation of women in armed conflicts, problem of child soldiers, aspects of terrorism and whether India should become a party to the 1977 Additional Protocols. When such comprehensive discussion is going to take place through the eminent persons, I do not think I should add any more then what I have stated. My interest is to the extent to implementation of human rights even when there is a armed conflict of an international or non-international nature.

One thing that really worries me is that how to operate Conventions and Protocols in the context of modern warfare. By sitting in a room in Pentagon or from a distant hideout in Afghanistan, a button is pressed by which a missile moves to destroy a whole city in Iraq or a part of Washington/Pentagon. If this kind of war is fought where are no soldiers or the combatants who need to be given the protection of human rights. The entire nation becomes a theatre for war and is subjected to annihilation wherein the civilian population and establishments such as schools/hospitals are targets apart from military stations. This kind of war leaves the nation a traumatic experience as we witnessed after Second World War when atom bomb was exploded in Japan, affecting not only civilians but eroding the natural environment for all time to come. By reason of the development of technology which has reached such an efficient level as we often see on the television, the animation of star wars is becoming a reality. I do not know whether the current Protocols are sufficient to meet such situation or new ones have to be drawn-up or developed in the context of the change in the latest weaponry and modern warfare. This question needs to be deliberated upon during your discussions.

Thank you very much for having me this opportunity to participate in this programme. I have great pleasure in inaugurating this National Seminar to mark the 30th anniversary of the 1977 Additional Protocols to the Geneva Conventions of 1949. Wish you all success in your endeavour.






















When I was a student of Law, I had to study separately International Law of Peace and International Law of War. As exclaimed somewhat skeptically by Cicero, “laws are silent amidst the clash of arms”. Can law really help the warring States to settle their conflicts peacefully without loss of life or wholesole ruination? Under the Charter of the United Nations, war is prohibited. If war is prohibited, what is the role of law? Does it mean that the war thereby gains a halo of respectability. The UN Charter even prohibits the threat to use force against the territorial integrity or political independence of any State. The States have to settle their disputes by peaceful means but with an exception of the right of every State to defend itself against an attack. The fact that humanitarian aspects are dealt with by international law would not mean that it would in any way weaken the general prohibition of war. This is made clear in the Preamble to the Additional Protocol I to the Geneva Conventions. While emphasizing every State to refrain in its international relations from the threat or use of force, reaffirms to protect the victims of armed conflicts and to supplement measures intended to reinforce their application; it is made clear that it should not be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations.

In the comity of nations, the question of right to resort to force is clearly debarred as contained in the United Nations Charter but the international humanitarian law comes into play in another plane. It is applicable whenever an armed conflict actually breaks out, no matter for what reasons – good, bad or indifferent. All that matters is the fact that there is a war and therefore the necessity for the humanitarian law. It may be as a result of an aggression or by way of defence against an aggressor or to contain an armed conflict inside a country leading to a civil war.

The sources of humanitarian approach or law even when a war is fought is available in all cultures. We find many instances in the Indian epic of Ramayana and Mahabharata – when they fought war as a Dharmayudha (it is rather difficult to explain the meaning Dharma). All that I can say is that it is an ethic or moral obligation. We have known instances in the epics that when an opponent falls down, the other combatant uses his weapon to protect such combatant from the heat of the sun or to use it as a fan so that the fallen hero gets sufficient air. Such instances are available in many religious books and also in Japanese code of behaviour. Indeed, the position in that regard is well set-out by Rousseau in The Social Contract, “War is in no way a relationship of man with man but a relationship between States, in which individuals are only enemies by accident, not as men, but as soldiers……that soldiers may only be fought as long as they themselves are fighting. Once they lay down their weapons, they again become mere men. Their lives must be spared.” The basic truth enunciated by Rousseau is that the purpose of a bellicose attack is never to destroy the enemy totally; thereby he laid the basis for the difference between members of a fighting force (the combatants), and remaining citizens of an enemy State, the civilians not participating in the conflict. The use of force is permissible only against the soldiers since the purpose of war is to overcome enemy armed forces and not total annihilation of the enemy nation.

On August 12, 1949, Geneva Conventions were adopted for the protection of the victims of war in which ICRC had an importance role to play. The Red Cross movement inspired the four Geneva Conventions. The first three Conventions are on the topics of the Wounded, Sick and Shipwrecked and Prisoners of War, the fourth protects the civilians who have fallen into enemy hands from arbitrary treatment and violence. In subsequent years, the Geneva Conventions have become the most universal of the international treaties and are binding on all 175 countries, with few exceptions the entire community of the world.

The second half of the 20th Century, in fact, is a great victory for human rights by reason of the Universal Declaration of Human Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, The Refugee Convention, the United Nations Human Rights Covenants of 1966 and regional human rights treaties. The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts held in Geneva from 1974 to 1977 adopted the two Protocols additional to the Geneva Conventions on 8th June, 1977. While the Protocol I contains new rules on international armed conflict, Protocol II develops the rules of international humanitarian law governing non-international armed conflicts. The four Conventions remained unchanged but the additional protocols effectively supplemented the same.

The international humanitarian law is established by treaties or custom to address humanitarian problems and directly arising from international or non-international armed conflicts and for humanitarian reasons, limit the right of the parties to a conflict to use methods and means of warfare of their choice or protect persons and property that are or may be affected by the conflict. In other words, the aim of international humanitarian law is to protect the human being and safeguard the dignity of man in the extreme situation of war. Indeed, it is ideal to protect all men from the consequences of brute force. As with every rule of law, the provisions of international humanitarian law is the outcome of a compromise after balancing various conflicting interests thereby making allowance for the phenomenon of war and legitimate military goals. There has to be a balance struck between military necessities and humanitarian considerations. There are two important notions or aspects in the international humanitarian law, namely, ‘combatant’ and ‘protected person’. All provisions of Geneva Convention and the Additional Protocols rivet on these basic concepts but one can clearly say that a ‘combatant’ can easily become a ‘protected person’ when he is wounded and surrenders, or taken prisoner of war, without loosing combatant status. Thus the two expressions are not necessarily opposites and are not mutually exclusive. Whoever is a soldier in the armed forces of a State is a combatant whereas medical personnel or other personnel do not have combatant status even if they are members of the armed forces, while combatants are allowed to fight and not others. A protected person, as anyone, has a right to special protection like the wounded, sick and shipwrecked members of the armed forces and civilians, prisoners of war, civilian internees, civilians on the territory of the enemy and civilians in occupied territories.

Address by Hon’ble Justice Shri S.Rajendra Babu, Chairperson, National Human Rights Commission at The Inauguration of Two Day NGOs Conference on “Role of NGOs in Support of NHRC in Better Promotion and Protection of Human Rights” organized by National Human Rights Commission at Karnataka Judicial Academy, Bangalore on 28th April, 2007

H.E. the Governor of Karnataka, Shri T.N. Chaturvedi, is an administrator with varied and long experience. Parliamentarian, author of books like Transfer of Technology among Developing Countries and Comparative Public Administration, Editor for more than a quarter century of Indian Journal of Public Administration. We are fortunate to have him to inaugurate this Conference, especially when he has the good of fellow beings at heart. Not only as head of the State, in fitness of things, in view of his concern for human rights, he is best suited to the occasion. I am beholden to him for his prompt response accepting my invitation without any hesitation.

I accord a very special welcome and express our gratitude to the delegates for participating in the two days Conference on “Role of NGOs in support of NHRC in better Protection and Promotion of Human Rights.”

Encouraging the efforts of the non-governmental organizations (NGOs) working in the field of human rights is a statutory responsibility of the Commission under Section 12 (i) of The Protection of Human Rights Act, 1993.

The promotion and protection of human rights will gather momentum if there is cooperation between the Commission and the NGOs. In essence, any activity designed to protect the rights of specific individuals or to respond to violations that have occurred targeting a particular group may be classified under protection. Any activity more general less targeted nature is considered promotional which accommodates a multitude of activity that do not otherwise have a lot in common. The NHRC provides financial assistance to NGOs for holding seminars, workshops, training programmes for spread of awareness of human rights movement.

In order to strengthen the relationship with NGOs, the Commission has been holding a series of consultations with NGOs and voluntary organizations engaged in the promotion and protection of human rights, on a regional basis. This has proven to be of considerable value both to the Commission and to the NGOs, reinforcing their understanding of each other and their capacity to work together in the furtherance of rights across the country. Regional consultations with NGOs have been held from time to time in Delhi, Bhubaneshwar, Chennai, Pune and Guwhati.

As provided under the Protection of Human Rights Act, 1993, human rights relate to life, liberty, equality and dignity of individual guaranteed by the Constitution or embedded in the international Covenants and enforceable by Courts in India. They are either political and civil rights or social, economic and cultural rights. The Commission steps in when there is violation of human rights or abetment to the same or negligence in prevention of violation.

Human Rights are those that do not necessarily relate to citizenship as such but to what is taken to be entitled of every human being, no matter which country does or does not guarantee. A human right, can be invoked in many contexts not necessarily in a legal enforcements or sometimes it would be inapt and unhelpful like, for example, in the case of equal participation of spouse in running the house and in the event of violation in such a case, a police intervention or of public authority is embarrassing.


Economic, Social and Cultural rights involve basic necessities of life, namely, work, food, shelter, health-care, education and culture. The significance of these rights becomes evident when one considers the proportion of the population that does not have access to food, safe drinking water and health. According to a report of the United Nations, a fifth of developing world’s population goes hungry every night, a quarter lakhs have no access to safe drinking water and a third lives in abject poverty – at such margin of human existence that words fail to describe it. Though, many of these rights are provided for under the Constitution of India dealing with the Directive Principles of State Policy, their enforcement or promotion of the same is virtually lacking.

The Commission receives complaints relating to custodial violence, false encounter and disappearances; enforcement of child rights; rights of bonded labour; rights of refugees; protection of rights of migrants; rights of dalits and tribals; right to shelter; right to health; right to education; right against torture. In addition, there are problems relating to nutrition, health, education, jail reforms, mental health institutions, right of the disabled, criminal justice system and rule of law. Thus, the task ahead of the Commission is stupendous, staggering with the expanding nature of human rights and so on. The complaints apart from all necessary details and information reveal enormous courage, dedication to the cause and sincerity on the part of the complainants.

A Core Group of NGOs has been constituted under section 12 (i) of the Protection of Human Rights Act, 1993, to encourage the efforts of the Non-Governmental Organizations (NGOs) and institutions engaged in the field of human rights. The Core Group provides the Commission with crucial inputs regarding the hopes, aspirations and expectations of the civil society from the Commission.

The Commission has worked closely with NGOs in respect of the specific issues, these included: systemic reforms in police and jail administration; matters relating to custodial institutions of various kinds, including women’s homes, children’s homes and the like; the rights of persons with disabilities, especially women and those belonging to disadvantaged sections of society; issues relating to Dalits and the human rights of un-organized workers in, both, urban and rural areas.

The Commission has not hesitated to make use of any information from any ‘reliable source’. It has sought to develop working relationships with a wide variety of NGOs and others as possible. All procedures at getting information appear to have a healthy disregard for formality and to have employed a wider range of sources than officially permitted. Given the artificiality of different of procedures and indispensable need for access to all available sources, such an approach is surely appropriate. I would exhort all governments to allow unhampered contract between private individuals and NGOs.

The NGOs have adopted many methods in meeting with problems relating to human rights. For analytical purposes, I would identify five methods, routine requests for information; urgent action requests; spot visits; prompt interventions; and report to the Commission. Several criticisms may however, be levelled. Mainly, the range of issues are skewed. No doubt, torture, custodial death, encounter deaths, disappearances are of utmost importance, but then there remain many other important issues that are not being accorded comparable attention. A more telling criticism is that the Commission cannot succeed in putting much pressure on governments. But once a recommendation is made and publicized, the moral pressure on the concerned government is so high, it will be more costly to disobey than to abide by it.

The Commission has also had several significant partnerships with the non-governmental organizations during the year on various critical areas of human rights concerns. In the area of Human Rights Education, a constructive outcome fructified in the form of a publication on ‘Human Rights Education for Beginners’. This publication was brought out by the Karnataka Women’s Information and Resource Centre (KWIRC), an NGO based in Karnataka, for the National Human Rights Commission. The Commission’s involvement in the project has been out of growing realization that human rights cannot be taught only from formal documents. Indigenization of human rights education has to be made one of the crucial components of human rights education in India. The publication was released by the Hon’ble Speaker, Lok Sabha, on the 10th December, 2005, on the occasion of Human Rights Day.

The efforts of the Commission to abolish the abominable practice of Manual scavenging has been continuing. The Commission’s view has been that the action of the State towards eradication of manual scavenging has been painfully slow and that there is a need for total commitment and absolute dedication in order to tackle this degrading practice. While reviewing the progress with the Central and state Government representatives, the Commission, inter-alia, stressed the importance of utilizing the services of the NGOs who could give valuable assistance as they are aware of the ground realities. Keeping in view the efforts of Sulabh International, an NGO, which has done considerable work in the area the former, was also associated in the meeting. The Commission has stressed the need for the involvement of genuine NGOs in the implementation of programme to motivate people in the direction of making sincere efforts to abolish the practice of manual scavenging more efficacious.

In November 2003, the Commission partnered with Jan Swasthya Abhiya, an NGO based in PUne, for holding a series of regional public hearings on Right to Health Care, covering all the regions of the country. The regional hearings culminated with the holding of a nation level consultation in New Delhi, on 16-17 December, 2004 in which a set of recommendations was adopted. The recommendations were transmitted to the Central and State Governments on 11.03.2005 for appropriate action. The progress of the implementation of the recommendation on Health were reviewed in a meeting held on March 4, 2006 and on 6th March 2007, which was attended by representatives of the State Governments as well by the representatives of Jan Swasthya Abhiyan besides the Core Group on Heath constituted by the Commission.

The Commission organized a “Health Week” targeted for benefit of the elderly people (senior citizens), in collaboration with Help Age India, an NGO, from 20-24 March 2006 at New Delhi and from 26th Feb to 2nd March 2007 at Ahmedabad. Lectures on, prevention of heart attack and strokes; diabetes; vision problems; arthiritis and bone management; diseases of the prostate gland; specific health concerns of older women; mental health and nutrition for the older people etc., were delivered by medical specialists in the field. The Commission believes that generating awareness amongst the elderly on health related issues, is important given the fact that this category of citizens have been neglected, to a great extent by the society at large.

The Core Group on the Right to Food constituted by the Commission has two of its members representing the NGO sector, namely, Dr. (MRS) Amrita Rangasami, Centre for the study of Administration of Relief (CSAR) and Shri Babu Mathew, Country Director, Action Aid India, New Delhi. The Commission has stressed that the primary aim is to invite suggestions from experts in the field for a Plan of Action for smooth distribution of food grains in the country. It is hoped that the involvement of NGOs would enable getting crucial field level realities, thus making the deliberation of the Core Group much more effective.

The Commission in collaboration with Penal Reform and Justice Asociation (PRAJA), an NGO organized a two-day seminar on Custodial Justice on 30 &31 March, 2006 at Vigyan Bhawan, New Delhi. The objective of the Seminar was the welfare of the people in custody which called for focusing on two interrelated areas, police and prisons, generating awareness, disseminating information about human rights, with the aim of preventing and avoiding custodial violence.

Need for close cooperation between NHRC and NGO’s active in various fields affirm the work of the Commission as dynamic process and NGOs as a catalyst for action. The Commission has been benefited by the alternative and comprehensive efforts by NGOs which provide fuller and offer more critical analysis of the problem from the State agencies. The cooperation between the Core Group and the Commission on specific issues have gone a long way in ameliorating the condition of the marginalized and disadvantaged section of the society. The fact is that the NGOs who have been working at the grass root level long before the Commission even came into existence have attained enormous experience in interacting with the people and can assist and facilitate the Commission in its endeavour for the better protection of rights of the people of the Country.

The task that lies ahead of us is a tremendous one for promoting and protecting human rights of present and future generation and need help in this endeavour from every one and, more so, from NGOs.

 

PRESIDENTIAL ADDRESS BY: Dr. Justice A.S. Anand Chairperson National Human Rights Commission of India (former Chief Justice of India) AT FOUNDATION DAY FUNCTION OF NATIONAL HUMAN RIGHTS COMMISSION ON: 12th OCTOBER, 2006 AT: FICCI GOLDEN JUBILEE AUDITORIUM, NEW DELHI

Dr.Mohamed El Said El Dakkak, Member, National Council for Human Rights, Egypt, Chief Guest of the Function, Former Chairperson and Members, my colleague, officers of the NHRC, past and present, Members of NHRC family, Distinguished invitees, ladies and gentlemen,

The National Human Rights Commission was brought into being by an Act of Parliament – Protection of Human Rights Act, 1993. Today is its Foundation Day. It is a day to rejoice for the Commission is entering its teens. It is also an occasion to introspect and evaluate its journey thus – far and foresee the challenges ahead.

The journey, from birth to teens has not been altogether smooth. There have been bumps as well as road blocks on the way. Despite all this, the Commission, in furtherance of its task of better protection and promotion of human rights, has tried its best to steadfastly remain focused towards the fulfillment of its mandate. I shall not repeat the role which the Commission has played thus far as that has been elaborately detailed by my colleague Dr.Justice Shivraj Patil. I would only say that we still have ‘miles to go before we sleep’.

The struggle for the promotion and protection of human rights inevitably requires the elimination of aberrations that, over the time, have wounded and fractured our society, leaving some more equal than others. The Commission has been making efforts to minimize such aberrations and create an environment in which rights can be realised by the voiceless and under-privileged particularly. The decisions taken by the Commission in individual complaints, its programmes and projects, have all aimed to build a culture of human rights in the country.

At the international scene, the Twentieth Century stands out as a century that witnessed unprecedented denial of human rights. Unfortunately, at the beginning of the 21st century also no country can look back on its own record of Human Rights with any sense of pride.

On 10th December, 1948 the Universal Declaration of Human Rights was adopted by an affirmative vote of 48 members States with 8 abstentions, by the General Assembly as “a common standard of achievement of all peoples and nations”. On account of reservations of many State Governments, it was not presented to the General Assembly as a treaty for ratification, which would have been binding upon the signatory nations, but only as an instrument to be endorsed as “a statement of goals and aspirations – a vision of the world as the International community wanted it to become”. Perhaps the state of Human Rights would have been better globally if the declaration had acquired the status of a binding treaty.

The Universal Declaration of Human Rights was followed by two Covenants – International Convention on Economic, Social and Cultural Rights (ICESCR) and International Convention on Civil and Political Rights (ICCPR) in 1966. India signed the International Convention on Economic, Social and Cultural Rights in 1979.

However, in spite of the Universal Declaration and the two Covenants, widespread violation of human rights continue to occur almost daily everywhere. There is, therefore, some sting but more than a grain of truth in the cynic’s taunt that the only thing universal about human rights is their universal violation. Human Rights and democracy are mutually supportive. Unless human rights are made the focal point by the State, good governance would remain an unfulfilled dream.

The Universality of human rights, their focus on human dignity and their concern for accountability make them uniquely appropriate for reshaping development, cooperation, fostering good governance and combating discrimination, disease and despair to reach the goal of achieving a society where ‘human rights for all’ becomes a reality. Human dignity is the spine of human rights. It is infact the very foundation on which Human Rights rest. By its very nature, they are indivisible and, therefore, violation of one human right cannot be compensated by enhancement of another. The aim of human rights is empowerment of people through human development. Both are inter-dependent and inter-related and have a direct relationship with human development. Universality of human rights demands eradication of global inequities and to achieve this end the importance of “Right to Development” cannot, but, be emphasized.

The Commission has maintained that the main obligation to protect human rights is that of the State itself. The Commission acts as a facilitator. As we look ahead there are numerous challenges which we have to meet. I may point out only a few of such challenges, which we are facing.


Poverty is the biggest violator of human rights. However, for a programme of eradication of poverty, one has to look at a number of indices together, and a right to development approach would imply considering improvement in each of the indices through schemes that have to be implemented following the rights approach where the beneficiaries are empowered to participate in the decision making and executing the different schemes, transparently and accountably, and sharing the benefits equitably. Statistics provided by The Human Development Reports demonstrate that there exist massive inequalities, more particularly in the developing countries, which render the enjoyment of human rights rather illusory. Political freedom would not have much significance or meaning for millions of poverty stricken people in various countries who suffer the social evils flowing from poverty. Eradication of poverty is, therefore, a big challenge.

Neglect of social, economic and cultural rights of the citizens is yet another big challenge. In our Constitution civil and political rights are contained as “fundamental rights” in Part-III, while social economic and cultural rights are contained in Part IV as Directive Principles. The mandate of Article 37 of the Constitution, however, is that even though directive principles are not justiciable or enforceable by the courts, the same are “fundamental in the governance of the country” and it shall be the “duty” of the State to apply these principles. Unfortunately, the Governments at the Centre and the States, as statistics tell us, never whole-heartedly pursued the implementation of Directive Principles. The government dilly-dallied implementation of each principle generally citing the reasons of resource crunch. Governments have so far contented themselves by chalking out only strategies for promotion of economic and social rights. Even those strategies have hardly borne any fruits because of rampant corruption in implementing the same. Millions of people in this country still live in a state of abject poverty, without food, shelter, employment, health care and education. According to UNDP Report of 2003, Indian society is a highly inequitable society where the richest 10% consume 33.5% of resources and the poorest 10% get only 3.5% of resources. Around 233 million people are chronically hungry. Official figures state that in our country 26% people are living Below Poverty Line.

The State must realize the importance of Economic, Social and Cultural Rights and should not content itself by only chalking out strategies for promotion of the same. The neglect of Economic, Social and Cultural Rights like right to food, health care, education, etc. gives rise to internal conflicts, which are caustic factors of conflict and terrorism. They pose a threat not only to human rights but also to peace. Where hunger persists, peace cannot prevail.

One other important challenge to the enjoyment of human rights is the issue of rampant corruption.

Corruption inhibits enjoyment of human rights. It has become all pervasive and is eating into the vitals of the society. It directly contributes to inequalities in income, status and opportunities. It remains one of the biggest threats to ‘full human development’ and ‘human rights for all’. It undermines the rule of law. It distorts the development process and also poses a grave threat to human security. Corruption is not a new phenomenon. What is new and worrying is the magnitude and size of corruption. It has spread its tentacles to every sphere of national life. It is one of the biggest threats to development. It can tear the very fabric of the society and, infact, it is doing so. Corruption benefits the rich and the well-to-do. It enriches the rich and disproportionally affects the poor, unprotected and the underprivileged and thereby it deepens their deprivation. Unless it is checked, the governments and people will have to pay a very heavy price in the consequent result of lower incomes, lower investments and lower developments resulting in volatile economic swings. It is unfortunate, but true, that growing politicization of public services and criminalization of politics have contributed in no small measure to let corruption flourish and the corrupt not only go scot-free but even earn a position of false respectability! Zero tolerance to corruption by We the People of India, would go a long way to check the menace. To have corruption free governance is a basic human right and the need to recognize it as such and to take steps to eradicate it, is the need of the hour.

Friends,
These are deeply troubled times in which we live. Everywhere the pervasive threat of terrorism has cast a pall on efforts to promote and protect human rights, for terrorism is deeply hostile to human rights, including the most fundamental of all rights, the right to life itself. Terrorism hinders development and thereby affects human rights. Those who respect human rights cannot support terrorism. All liberal democracies must unite to fight the menace and curb terrorism strongly. We at the Commission have consistently held the view that the actions which any State takes to fight and triumph over this evil, must themselves fall within the parameters of the Rule of Law and conform to the high standards that we have set for ourselves – in our Constitutions, our laws, and in the great human rights treaties adopted since the founding of the United Nations. I firmly believe that there can be no selective approach while dealing with terrorism and there has to be a united and concerted effort to fight the menace, without chilling the civil liberties of the citizens. The actions must be in accordance with the Rule of Law since the actions are aimed at preserving both Rule of Law, democracy and human rights.

Sexual exploitation of women and children is also posing a big challenge for protection of human rights. Trafficking in women and children is a gross violation of their human rights and an affront to the supreme dignity of the females, apart from being a serious crime. It is a problem of Human Rights. It is a problem which should make the heads of the civil society fall in shame because here we are treating human beings as chattels, commodities, saleable items - the price tag varying with age, class, colour and sex. What used to be sometimes an affair in the remote corner of some hidden unknown street, is today available in five stars establishments.

India is not only a transit point for supply of trafficked women and children but also a recipient and a supplier of such persons. The exploitation of women and children for sex purposes, however, is not confined to India alone, which has porous borders with Nepal, Sri Lanka and Bangladesh, but is a problem of global dimensions. Statistics tells us that this crime is a flourishing trade to the tune of 8 billion dollars in a year. It is almost surpassing the profits from drugs trafficking. In Asia- Pacific itself, 4,50,000 persons are trafficked every year and out of them Two Hundred Thousands are from South Asia. Unfortunately trafficking in women and children has remained confined to intellectual discussions to understand as to what is prostitution or commercial sex and how to control it. That is only one side of the coin. When we confine it to prostitution or commercial sex or exploitation as a result thereof, we are only trying to identify the disease, we are neither looking for the symptoms nor the causes let alone the remedies. Trafficking has wider dimensions and requires multi-prong attack to tackle it. May be it is because of a weak law enforcement mechanism and inadequacies in the criminal justice system, but the situation in every case invites attention of all concerned agencies: legislature, judiciary and other enforcers of law. It appears that our society is becoming a psycho-sick society with an uncivilized behavior. Whenever crime is committed against women and that too a violent crime, it sends shock waves to the society but those shock waves burst like bubbles in a very short time. The society must change its attitude.

The challenge which trafficking in women and children is posing is a formidable one – the crime is on the increase and sex-tourism, which today has become a reality, has compounded the problem. There are laws to deal with the crime but not only are those inadequate but are also not being implemented properly. The sexual exploitation of women and children is a threat to the enjoyment of human rights by that segment of the society – we must accept the challenge and take all possible steps today – tomorrow may be too late.

Custodial violence including death in custody is yet another challenge which requires to be met squarely and decisively. Custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. No civilized nation can permit that convicts, prisoners or under-trials are denuded of their fundamental rights, more particularly the right to life and liberty. They can only suffer such restrictions as are permitted by law for the enjoyment of their fundamental rights. There is a great responsibility on the police and prison authorities to ensure that the citizen in its custody is not deprived of his right to life. A profound respect for the sanctity of human life underpins jurisprudence. The latest pronouncement by the Supreme Court of India in Shri Prakash Singh’s case, in which National Human Rights Commission had intervened, aimed at police reforms, when implemented would perhaps go a long way to sensitize the police and prison authorities.

One another factor of concern is in the area of administration of criminal justice system. Large-scale acquittals (almost 80%) are eroding public confidence in the effectiveness of criminal justice delivery system. It is natural also because when people see persons accused of heinous and ghastly offences getting acquitted, they believe that either courts are too liberal or pro-criminal or are not functioning the way they ought to function. When a crime goes unpunished, the criminal is encouraged, the victim of crime is discouraged and the society in the ultimate analysis suffers, which has an adverse impact on the law and order situation in the country. However, the rising crime rate in the post independence era and the inadequacy of the law in balancing individuals liberty and State’s duty to ensure protection of life and liberty has made the criminal justice system a subject of heated debates, but despite the concern over the shortcomings of the system to check the growing crime rate, we are still unable to check the rise in crime. Giving the victim of crime his rightful place and taking a serious note of his existence, his feelings and his rights with a view to offer redress to him for his ‘injuries’ may in the long run help check the rising graph of crime as well as the low conviction rate. Protection of witnesses and victims of crime requires a very serious thought.

What I have pointed out are only some of the challenges, which we are facing and need to address in this century. The list is only illustrative and by no means exhaustive. The finest hour would be reached only when we develop a culture of respect for human rights in the country.

Before taking your leave, I would like to recall the statement of Shri Kofi Annan, Secretary General, made to the 191 member U.N. General Assembly on 21st March, 2005. He said:

“We will not enjoy development without security, we will not enjoy security without development and we will not enjoy either without respect for human rights.”

3rd V.R. KRISHNA IYER NATIONAL FOUNDATION FOR LAW AND SOCIAL JUSTICE LECTURE ON “HUMAN RIGHTS – SOME CHALLENGES FOR THE 21ST CENTURY” BY DR. JUSTICE A.S. ANAND (FORMER CHIEF JUSTICE OF INDIA) CHAIRPERSON NATIONAL HUMAN RIGHTS COMMISSION AT BHARAT HOTEL, DURBAR HALL ROAD, ERNAKULAM ON 7TH October 2006

The Twentieth Century stands out as the century that witnessed unprecedented denial of human rights. League of Nations established after the First World War failed to prevent another World War which was more disastrous than the first.
Appalled by man’s capacity to destroy himself and showing scant respect for Human Rights the world community started to think. On 26th June 1945, fifty nations, including India, signed the United Nation’s Charter creating the United Nations. This Charter refers to ‘human rights’ in as many as seven places. The repeated reference to human rights in the United Nations’ Charter demonstrates the extraordinary concern exhibited by the members of the United Nations for preservation and promotion of human rights. The UN Charter hoped to save succeeding generations from self-destruction by proclaiming and establishing equal and inalienable rights of all members of the human family — great or small, virtuous or vicious, rich or poor, wise or foolish and their inherent dignity, regardless of birth, status, race, colour, sex, language, religion or political or other opinion.
In 1948 when the Universal Declaration of Human Rights was adopted as “a common standard of achievement of all peoples and nations” there were reservations of many State Governments. Virtually all States shielded behind Article 2(7) of the UN Charter in arguing that human rights matter were strictly an internal matter of the States concerned. This view today, mercifully, receives very little credence from the International community which accepts the universality of human rights all over.
Due to reservations of the State governments, the Universal Declaration of Human Rights was not presented to the General Assembly as a treaty for ratification, which would be binding upon the signatory nations, but as an instrument to be endorsed as “a statement of goals and aspirations – a vision of the world as the International community wanted it to become”. The Declaration was adopted by an affirmative vote of 48 member States and 8 abstentions. A UN Commission on Human Rights was set up. The Commission’s mandate was confined to the drafting of new treaties and other legal instruments.
The Universal Declaration of Human Rights adopted by the General Assembly on 10th December, 1948, was followed by two Covenants – International Convention on Economic, Social and Cultural Rights (ICESCR) and International Convention on Civil and Political Rights (ICCPR) in 1966. India signed the International Convention on Economic, Social and Cultural Rights in 1979.
The Preamble to the 1966 Covenant on Civil and Political Rights, speaks of ‘the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedom.’ The World Conference on Human Rights also emphasized this aspect in The Vienna Declaration and Programme of Action, 1993 when it said that ‘every state should provide an effective framework of remedies to redress human rights grievances or violations”. The International Covenant on Economic, Social and Cultural Rights, to which India is a State party, specifically recognizes the “fundamental right of everyone to be free from hunger” and the right of everyone to “adequate food”. It also recognizes the “right of everyone to education” and asserts that “primary education shall be compulsory and available free to all”; we have miles to travel yet!! However, in spite of the Universal Declaration and the two Covenants, widespread violation of human rights continues to occur almost daily everywhere. There is, therefore, some sting but more than a grain of truth in the cynic’s taunt that the only thing universal about human rights is their universal violation. Human Rights and democracy are mutually supportive. Unless human rights are made the focal point by the State, good governance would remain an unfulfilled dream
Unfortunately, at the beginning of the 21st Century no country can look back on its own record of Human Rights of the last Century with any sense of pride. Estimates say that in the 20th Century, some 100 million persons have been killed in armed conflicts and 120 million more deaths have resulted from politically-related violence. The UN Human Development Report of 1998 records that, while civilian casualties in situations of armed conflict were some 5% at the beginning of the Century; they were over 90% in the 1990’s, with children being the main sufferers.
SOME OF THE CHALLENGES TO HUMAN RIGHTS IN THE 21ST CENTURY NEGLECT OF SOCIAL, ECONOMIC AND CULTURAL RIGHTS

On 26th of November, 1949, the Founding Fathers accomplished the challenging task of framing a Constitution for free India. WE THE PEOPLE OF INDIA resolved to give to ourselves the Constitution aimed at securing for all its citizens – Justice, social, economic and political; Equality of status and opportunity, besides Liberty of thought, expression, belief, faith and worship and Fraternity. The Founding Fathers were conscious of the need to provide for real freedom for each of its citizens. Civil and Political Rights were, therefore, incorporated in the Constitution as Fundamental Rights and were made enforceable. The rationale underlying these Rights is that human rights flow from the common humanity and inherent dignity of every human being irrespective of race, religion, caste, colour, sex or status and these inhere in all human beings by reason of his/her birth as a member of the human family. These rights are not negotiable and no compromise with their violation is permissible.
In part IV of the Constitution, with the aim of creating a welfare State, Economic, Social and Cultural Rights were enshrined as Directive Principles of the State Policy. Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee, while explaining the nature of Directive Principles, opined that they would be the guiding principles of governance. The inter-dependence of both sets of rights is essential for full development of human personality. The mandate of Article 37 of the constitution is that even though directive principles are not justiciable or enforceable by the courts, the same are “fundamental in the governance of the country” and it shall be the “duty” of the State to apply these principles. However, the Governments at the Centre and the States, as statistics tell us, never whole-heartedly pursued the implementation of Directive Principles. The government dilly-dallied implementation of each principle generally citing the reasons of resource crunch. Governments have so far contented themselves by chalking out only strategies for promotion of economic and social rights. Even those strategies have hardly borne any fruits because of rampant corruption in implementing the same. Millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education. According to UNDP Report of 2003, Indian society is a highly inequitable society where the richest 10% consume 33.5% of resources and the poorest 10% get only 3.5% of resources. Around 233 million people are chronically hungry. Official figures state that in our country 26% people are living Below Poverty Line.
Around 51% of the population does not have sustainable access to affordable essential drugs. Infant Mortality rate is 68 per 1000; under 5 child mortality rate is 93 per 1000; 26% children are under weight; and 24% of the population is undernourished. Maternal mortality ratio is 440 per 1,00,000 and 72% of the population does not have access to improved sanitation (UNDP Report 2003).
Realising that Fundamental Right to live with dignity was not possible without proper realization of economic and social rights, the judiciary stepped in to narrow the distinction between civil and political rights on the one hand and economic and social rights on the other.
Thanks to the judiciary, the Directive Principles started getting importance when the Judiciary stepped in and interpreted the underlying principles of Directive Principles. The distinction between civil and political rights and the economic, social and cultural rights was sought to be narrowed by judicial interpretations. Realising that the Fundamental Right to live with dignity was not possible without proper realization of economic, social and cultural rights, the court did not favour the concept of treating Fundamental Rights as superior to Directive Principles. In State of Kerala vs. M. Thomas [1976 (2) SCC 310] the Supreme Court commented that the Fundamental Rights and the Directive Principles were complementary.
In the case of Francis Coralie Mullin vs. the Administrator, Union Territory of Delhi[1981 2 SCR 516], the Supreme Court declared:
“The right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”
The courts in India have related healthcare, food security and elementary education with the Right to Life, Article 21 of the Constitution making these rights justifiable. Following the judgment of the Supreme Court in Unni Krishnan v. State of AP [1993 (1) SCC 645] the Union Parliament adopted 86th Constitutional Amendment whereby elementary education has been made fundamental right in the Constitution. Despite the 86th Constitutional Amendment, around 35% of the population is still tottering in the darkness of illiteracy. About 50 million children are out of school. Even where enrolment is high, the dropout rate is over 50% by the time the students move over to high school. Gender Parity Index is 0.82. It means for every 1000 boys enrolled, there are 820 girls seeking admissions (UNDP 2003).
The State must realize the importance of Economic, Social and Cultural Rights and should not content itself by only chalking out strategies for promotion of the same. The neglect of Economic, Social and Cultural Rights give rise to internal conflicts which is a threat to the democratic society and enjoyment of human rights. Systemic denial of Economic, Social and Cultural Rights, like right to food, health care, education, etc., are caustic factors of conflict and terrorism. They pose a threat not only to human rights but also to peace. Where hunger persists, peace cannot prevail.
It needs to be realized that for any country to find its due place among the civilized nations the three most important factors are: eradication of poverty, health care and education. Unfortunately, even after more than half a century of independence, our country stands only at the fringe on all the three counts.
RAMPANT CORRUPTION
Corruption inhibits enjoyment of human rights. It has become all pervasive and is eating into the vitals of the society. It directly contributes to inequalities in income, status and opportunities. It remains one of the biggest threats to ‘full human development’ and ‘human rights for all’. It undermines the rule of law. It distorts the development process and also poses a grave threat to human security. Corruption is not a new phenomenon. What is new and worrying is the magnitude and size of corruption. It has spread its tentacles to every sphere of national life. It is one of the biggest threats to development. It can tear the very fabric of the society and, infact, it is doing so. Corruption benefits the rich and the well-to-do. It enriches the rich and disproportionally affects the poor, unprotected and the underprivileged and thereby it deepens their deprivation. Unless it is checked, the governments and people will have to pay a very heavy price in the consequent result of lower incomes, lower investments and lower developments resulting in volatile economic swings. It is high time that we appreciate an urgent need to combat the deadly menace which poses a threat to the democratic fabric of our nation and is a challenge for protection of human rights. It is unfortunate, but true, that growing politicization of public services and criminalization of politics have contributed in no small measure to let corruption flourish and the corrupt not only go scot-free but even earn a position of false respectability!
We have cried ourselves hoarse about the persistent evil effects of corruption and talked about it, yet it flourishes with impunity. The need of the hour is to bring about a change in our political morality and society’s sense of values. What is more unfortunate, today is the growing tolerance and our acceptance of corruption as an inevitable and integral part of the civil society. Unless an alert and active citizenry adopts zero-tolerance to corruption and shuns the corrupt, it may not be possible to meet the challenge with any amount of sincerity – remedy, therefore, to a large extent, lies with us – WE THE PEOPLE.
Internationally also the world community has been concerned about the growing phenomenon of corruption. With a view to launch a global war against it, United Nations’ Convention against Corruption, adopted by the General Assembly on October 31, 2003, came into force on 14th December, 2005 with the 30th ratification of the instrument. The instrument, after its adoption in 2003, was open for signatures till December 9, 2005. India was perhaps one of the last member States to sign it, though ratification is yet to be announced. This Convention deals with crucial aspects of corruption. It is a significant step towards meeting the challenge of corruption. Let India not delay joining the global war.
To have corruption free governance is a basic human right and the need to recognize it as such and to take steps to eradicate it, is the need of the hour.

ERADICATION OF POVERTY AND HUMAN DEVELOPMENT

Poverty is the biggest threat and challenge for human rights - it tears all the dignity of the deprived ones. Human dignity is the spine of human rights. Human dignity is infact the very foundation on which Human Rights rest. Emphasis on human dignity is enshrined in the UN Charter, the Universal Declaration of Human Rights and several covenants as also in the Constitution of India, which proclaims “dignity of individual” as a core value in its Preamble. Human dignity is, by its nature, indivisible and, therefore, violation of one human right cannot be compensated by enhancement of another. The aim of human rights is empowerment of people through human development. Human rights are inter-dependent and inter-related and have a direct relationship with human development. Universality of human rights demand eradication of poverty and global inequities and to achieve this end the importance of “Right to Development” cannot, but, be emphasized. Human development has come to be accepted as an enhancement of capabilities, widening of choices and an expansion of freedoms. Empowerment of the people through human development is the aim of human rights.

Poverty is the biggest violator of human rights. Its eradication is vital for development. Poverty should not be treated as merely a developmental project. The agenda must include provisions of all such basic amenities like health care, safe drinking water, adequate nutrition, educational facilities, etc. Prof. Amartya Sen, in his Development as Freedom claims that poverty must be seen as deprivation of basic capabilities rather than merely as low incomes, which is the standard criterion of poverty. Poverty can be traced to inadequacies and inequalities in the distribution of opportunities – economic, social, cultural and political - between women and men, across regions, within communities and between rural and urban areas.

For a programme of eradication of poverty, one has to look at a number of indices together, and a right to development approach would imply considering improvement in each of the indices through schemes that have to be implemented following the rights approach where the beneficiaries are empowered to participate in the decision making and executing the different schemes, transparently and accountably, and sharing the benefits equitably.
Political freedom would not have much significance or meaning for millions of poverty stricken people who suffer the social evils flowing from poverty.
There has to be a paradigm shift from Human Development as seen merely in terms of economic growth, to Human Development as a basic human right.
DENIAL OF GENDER EQUALITY EXPLOITATION OF WOMEN

Gender inequities throughout the world are among the most pervasive, though deceptively subtle forms of inequality. Gender equality concerns each and every member of the society and forms the very basis of a just society. Human rights issues, which affect women in particular, play a vital role in maintaining the peace and prosperity of a just society.

Women continue to be discriminated all over the world and are subject to many forms of violence. Inspite of ratification of regional and International Instruments, many States still maintain laws and practices, which discriminate against women. Selective practices and customs used by states perpetuate discrimination. This is particularly true in the field of access to land and other important economic resources and rights within the family. Crimes against women, which are increasing exponentially are actually crimes against humanity and expose the failure of the governments to effectively prosecute those who are responsible for Commission of such crimes.

Today, in this 21st century, we are still unable to boast of a society where there is gender equality or gender equity.

Consider the following statistics:
 Two-thirds of world’s adult illiterates are women, who number about half-a-billion adult women.
 70% of the world’s poor are women.
Women now account for 50% of those infected by HIV worldwide.
In the matter of equality, Article 14 of the Constitution of India confers on men and women equal rights and opportunities in the political, economic and social spheres. Article 15 prohibits discrimination against any citizen on the grounds of religion, race, caste, sex, etc. Article 15(3) makes a special provision enabling the State to make affirmative discriminations in favour of women. Similarly, Article 16 provides for equality of opportunities in matter of public appointments for all citizens. Article 39(a) lays down that the State shall direct its policy towards securing all citizens, men and women, equally, the right to means of livelihood, while Article 39(c) ensures equal pay for equal work. Article 42 directs the State to make provision for ensuring just and humane conditions of work and maternity relief. Above all, the Constitution imposes a fundamental duty on every citizen through Article 51A(e) to renounce the practices derogatory to the dignity of women. The question, however, is: Have the women in this country been able to reap the benefits provided for them under the Constitution of India? The answer, unfortunately is not encouraging. There is a long way to go to achieve the goals enshrined in the Constitution. There are several areas of deep concern:
Female foeticide is such a murky and clandestine business that it is difficult to give an exact figure. But it is estimated that between 1.5 million and 5 million female fetuses are being destroyed in India every year. With the emergence of new technology, female infanticide has been replaced by female foeticide. And if you thought that the big bad wolves gobbling up unborn female fetuses are only in the cities, think again. A staggering 204 districts of the country have a lower child sex ratio than the national average of 927 in the zero to six age group. Fortyeight districts have a female sex ratio of less than 850.
Thus, there has been sharp decline in female sex ratio:
1961 = 941/972 females = 1000 male births
1999 = 927 females = 1000 male births
2001 = 933 females = 1000 male births
2003= 927 females (850) = 1000 male births
Studies have shown that country wide prevalence of moderate to severe anemia among pregnant women is around 47% and that 30% of Infant mortality in India is accounted for by maternal anemia related low birth weight. The maternal mortality rate in India at about 410 per 100,000 births is more than 50 times higher than the rates that exist in the developed countries. Unless we recognize her rights – her basic human rights – gender justice will only be “lip-service” with no tangible results. This situation calls for urgent remedial steps.
One other issue of concern is the rise in crime against women.
One big challenge which we face today is the increase in Trafficking in women and children – a gross violation of their human rights and an affront to the supreme dignity of the females, apart from being a serious crime. It is a problem of Human Rights. It is a problem which should make the heads of the civil society fall in shame because here we are treating human beings as chattels, commodities, saleable items - the price tag varying with age, class, color and sex. What used to be sometimes an affair in the remote corner of some hidden unknown street, is today available in five stars establishments.
The Immoral Traffic (Prevention) Act, 1956 (amended in 1986) had been enacted to combat prostitution but prostitution is on the rise. Police is unable to keep a check on the brothel-keepers and pimps. Many unfortunate teenaged female children are being sold in various parts of the country for paltry sums even by their own parents, compelled by poverty, who find themselves unable to maintain their children, hoping that their children would be engaged in household duties or manual labour. But they are actually selling them to the broker in the flesh trade, who treat them brutally till they succumb to his wishes. Thus, girls and women in large number in the prime of their youth are being forcibly pushed into the flesh trade, which flourishes, in utter violence of all canons of morality, decency and dignity of a human being.
India is not only a transit point for supply of trafficked women and children but also a recipient and a supplier of such persons. The exploitation of women and children for sex purposes, however, is not confined to India alone, which has porous borders with Nepal, Sri Lanka and Bangladesh, but is a problem of global dimensions. Statistics tells us that this crime is a flourishing trade to the tune of 8 billion dollars in a year. It is almost surpassing the profits from drugs trafficking. In Asia- Pacific itself, 4,50,000 persons are trafficked every year and out of them Two Hundred Thousands are from South Asia. Unfortunately trafficking in women and children has remained confined to intellectual discussions to understand as to what is prostitution or commercial sex and how to control it. That is only one side of the coin. When we confine it to prostitution or commercial sex or exploitation as a result thereof, we are only trying to identify the disease, we are neither looking for the symptoms nor the causes let alone the remedies. Trafficking has wider dimensions and requires multi-prong attack to tackle it. It posses not only an affront to the supreme dignity of the females but is also a challenge for human rights.
Prostitution is not prohibited under the amended Prevention of Immoral Trafficking Act, 1986. Despite the amendment, the legislation falls short of its objective and has not proved to be an effective measure to check commercialized flesh trade. It acts more as supplement to the provisions of the IPC concerning kidnapping, sale, abduction, wrongful restraint of women and children, emphasizing only the punitive aspects of the problem. The Act does not provide for punishment to the client and makes no provision for the rehabilitation of commercial sex workers who are rescued from the brothel. Instead of aiming at the abolition of prostitution as such, the Act makes it per se a criminal offence or punishes a woman because she prostitutes herself. May be it is because of a weak law enforcement mechanism and inadequacies in the criminal justice system, but the situation in every case invites attention of all concerned agencies: legislature, judiciary and other enforcers of law. It appears that our society is becoming a psycho-sick society with an uncivilized behavior. Whenever crime is committed against women and that too a violent crime, it sends shock waves to the society but those shock waves burst like bubbles in a very short time. The society must change its attitude.
The challenge which trafficking in women and children is posing is a formidable one – the crime is on the increase and sex-tourism, which today has become a reality, has compounded the problem. There are laws to deal with the crime but not only are those inadequate but are also not being implemented properly. The sexual exploitation of women and children is a threat to the enjoyment of human rights by that segment of the society – we must accept the challenge and take all possible steps today – tomorrow may be too late.
NEGLECT OF RIGHTS OF CHILD

In the evolution of human rights, the child is relatively a late entrant. The Convention on Rights of Child was signed only in 1989. It has been ratified by 192 countries except Somalia and the United States. The late action on child rights is a sad reflection of the uncaring attitude, nay almost total neglection, towards the rights of this weak segment of the society.

Today, the child is a victim of sexual abuse, torture, war, violence, poverty, bonded labour, deprivation and denial. Health of the child and particularly malnutrition of children belonging to the disadvantaged segments of the society is an area of concern. According to statistics, 26 per cent of children are underweight and malnourished. Undernutrition is much higher in rural areas than in urban areas, and is particularly high among children from disadvantaged socio-economic groups. Nearly three quarters [74 per cent] of children between the age of 6-35 months are anemic. The prevalence of anemia among children (age 6-35 months) varies from 44 per cent in Kerala and Nagaland to 80-84 per cent in Haryana, Rajasthan, Bihar, and Punjab.

Child labour in India is a historical fact and the exploitation of children for extracting labour is a grim reality. Almost 150 million children in this country continue to languish in slavery. The weak and the poor of the world, often end up being mere footnotes of history. A child is perhaps the weakest element in the global community dominated by the adult. We need to eliminate child labour. It is high time that the artificial distinction between ‘hazardous’ and ‘non-hazardous’ industry for the purpose of child labour is done away with. A comprehensive legislation to address the entire issue of child labour from the perspective of prevention, prohibition, regulation and rehabilitation to achieve the final objective of elimination of child labour is a pressing necessity and a challenge.

TERRORISM AND COUNTER MEASURES:

I would like to refer to one other challenge which effects human rights of innocent people the world over and has been a cause of concern in this country for more than three decades. The spectre of terrorism continues to haunt us globally. While it is a historical fact that Human Rights recognize the essential worth of a human being, it is also a reality that the cult of terrorism strikes at the very root of human rights of innocent people. Terrorism and human rights are natural enemies with no possibility of their co-existence. Conflicts and Terrorism have today emerged serious threats to humanity. No person who supports human rights can support terrorism, which results in a grave violation of human rights of innocent citizens. I must, however, acknowledge that though nothing justifies terrorism, far too many people live in conditions where it can breed. It is common knowledge that systemic human rights violations for long periods of time are often the root cause of conflicts and terrorism. When there is tyranny and wide spread neglect of human rights and people are denied hope of a better future, it becomes a fertile ground for breeding terrorism.

Terrorism has been the subject of a huge debate over the years but as yet there is no universally acceptable definition of what is “terrorism”, against which we have to fight. Indeed despite definitional difficulties, we can recognize terrorism in action since it is an assault on a civilized society. Terrorism is not merely a heinous criminal act. It is more than mere criminality. It is a frontal assault on the most basic human rights namely, right to life and liberty, by faceless murderers whose sole aim is to kill and maim human beings, whether they are innocent young children, elderly men or women. The very right to life of the innocent people is the target of terrorism.

Let us be clear that there can be no alibis or justification for terrorism under the spurious slogans of “fight for freedom” or “struggle for liberation”. As Senator Jackson has aptly stated:

“The idea that one person’s ‘terrorist’ is another’s ‘freedom fighter’ cannot be sanctioned. Freedom fighters or revolutionaries don’t blow up buses containing non-combatants; as terrorist murderers do. Freedom fighters don’t set out to capture and slaughter school children; terrorist murderers do… It is a disgrace that democracies would allow the treasured word ‘freedom’ to be associated with acts of terrorists”.
Undoubtedly, the spectre of terrorism is haunting many countries of the world. It has acquired a sinister dimension. The terrorist threats that we are facing are now on an unprecedented global scale.
The menace of terrorism has to be curbed and the war against terrorism has to be fought relentlessly but in doing so, no democratic society can be permitted to chill civil liberties of the citizens. In the fight against terrorism, sensitization level of human rights cannot be allowed to be sacrificed. A terrorist who violates human rights of innocent citizens must be punished but his human rights should not be infringed except in the manner permitted by law. A critical task of striking a fair balance by way of security concerns and human rights is to be performed and need of proportionality must not be ignored. While fighting war against terrorism relentlessly, the State cannot be permitted to be either selective in its approach or to go over board and in effect declare a war on the civil liberties of people because the rationale of anti-terrorism measures is aimed at protecting human rights and democracy. Counter terrorism measures should, therefore, not undermine democratic values or subvert the rule of law, because the fundamental rational of anti-terrorism measures should be to protect human rights and democracy. It is during anxious times when care has to be taken to ensure that state does not take recourse to bend the rule of law. Counter- terrorism or anti-terrorism measures must, therefore, always conform to international human rights obligations.

It must, therefore, stand as a caution that in times of distress, the shield of necessity and national security must not be used to protect governmental actions from close scrutiny and accountability where the same affect enjoyment of human rights. The manner in which a State acts to exercise this right and to perform this duty must be in accordance with the Rule of Law. The Supreme Court of India has, in DK Basu vs. State of West Bengal, [jt 1997(1) SC 1] cautioned:

“State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to terrorism: that would be bad for the State, the community and above all for the rule of law. The State must, therefore, ensure that the various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves”
One other area of serious concern is the rise of fundamentalism. Fundamentalism in all its forms and manifestations is yet another subtle form of terrorism and posses a serious challenge to enjoyment of human rights. Use of terrorist activities for imposing their “so called religious or ideological will” is a serious challenge. While all faithful believe in harmony and brotherhood in religion, it is the misguided fanatics who do not value human life and in the name of religion resort to all types of attacks on human rights. These include forcible imposition of self-righteous social code and undermining of freedom of expression and belief. These fanatics contribute to a climate of religious bigotry, which leads to discrimination, harassment and attacks on all those who do not follow their dictates which may be right or wrong. In doing so, they violate human rights of fellow citizens without any justification whatsoever. The challenge it poses stares us in the face. We need to meet it by loud and positive condemnation.

Expensive & Delayed Justice :

Delayed and expensive justice also strikes at Human Rights, more particularly of those belonging to the underprivileged and vulnerable segments of the society. The Supreme Court has in a number of cases held that fair and speedy trials is part of fundamental rights of the citizens to “equal protection of law”. The high cost of litigation is a serious challenge. Even after decades of independence the poor, backward and weaker sections of the society feel that they do not have equal opportunities for securing justice because of their socio-economic conditions. The Government of India has demonstrated its resolve to meet the challenge of expensive justice, though without any spectacular success by enforcing National Legal Services Authority Act, 1986 aimed at introducing various schemes for providing inexpensive justice to the poor and down trodden. Proper implementation of NALSA and ensuring its benefit go to the right quarters, however, leaves much to be desired.

There are almost three crore cases pending in the courts in the country. The pendency of cases in the lower courts is 2,33,19,679 cases : over thirty three lakh cases (33,79,033) are pending in the High Courts and 30,151 cases are pending in the Supreme Court. The disposal of cases has not been able to keep pace with the institution of cases and, therefore, arrears keep mounting.

One of the challenges which stares the judiciary in India in its face is its failure to deliver justice expeditiously particularly in the subordinate courts. It has brought about a sense of frustration amongst the litigants. Human hope has its limits and waiting endlessly is not possible in the current life style. There may be various causes for the mounting arrears like the shortage of courts and Judges, the shortage of infrastructure besides delay in filling up even the vacant posts. There are nearly 13,000 judicial officers for a population of over one billion people. According to the statistics there are about 150 vacancies of high court judges (748 - total strength) and about 2000 vacancies in the subordinate courts (11,500 courts app.). This by itself is a major cause for delayed justice. Besides, low expenditure on the judiciary (0.2% GNP) shows the low priority being given to the judiciary by the state. (In U.K. it is 4.3% of GNP).

The consumer of justice wants unpolluted, expeditious and inexpensive justice. He is not interested in knowing the causes for delay in disposal of cases. The delay in disposal of cases is resulting in the citizen getting tempted to take law in his own hands and take recourse to extra judicial methods to settle scores and seek redress of his grievance. This is a matter which is of grave concern. Delay in disposal of cases also gives rise to many other aberrations which hit at the basic credibility of the institution. The high regard that people have for the judiciary can turn to dismay when faced with the working of the justice delivery system.

For efficient discharge of the responsibilities of the courts, it is essential that the broad confidence, which people have in them, the high prestige and the great respect that they have enjoyed should be maintained and not be allowed to be eroded in any way. The community has tremendous stake in the preservation of the image of the courts as dispensers of justice. Weakening of the judicial system, in the long run, has necessarily the effect of undermining the foundations of the democratic structure. The primary responsibility for projecting the great image of the courts, however, lies with those, who are connected with the functioning of the courts, whether as judges or as lawyers.

One another factor of concern is in the area of administration of criminal justice system. Large-scale acquittals (almost 80%) are eroding public confidence in the effectiveness of criminal justice delivery system. It is natural also because when people see persons accused of heinous and ghastly offences getting acquitted, they believe that either courts are too liberal or pro-criminal or are not functioning the way they ought to function. Unfortunately, they do not know nor do they try to know the reasons for such acquittals. When a crime goes unpunished, the criminal is encouraged, the victim of crime is discouraged and the society in the ultimate analysis suffers, which has an adverse impact on the law and order situation in the country. However, the rising crime rate in the post independence era and the inadequacy of the law in balancing individuals liberty and State’s duty to ensure protection of life and liberty has made the criminal justice system a subject of heated debates, but despite the concern over the shortcomings of the system to check the growing crime rate, we are still unable to check the rise in crime. But what appears to be certain is that more police, more prisons, more laws, more courts – will not achieve the object to bring about reform in the system of criminal justice and check the growing crime rate. Giving the victim of crime his rightful place and taking a serious note of his existence, his feelings and his rights with a view to offer redress to him for his ‘injuries’ may in the long run help check the rising graph of crime as well as the low conviction rate. Protection of witnesses and victims of crime requires a very serious thought.

What I have pointed out are only some of the challenges, which we are facing and need to address in this century. The list is only illustrative and by no means exhaustive. The finest hour would be reached only when we develop a culture of respect for human rights in the country.

Before taking your leave, I would like to recall the statement of Shri Kofi Annan, Secretary General, made to the 191 member U.N. General Assembly on 21st March, 2005. He said:
“We will not enjoy development without security, we will not enjoy security without development and we will not enjoy either without respect for human rights.”

He went on to caution:
“Unless all these causes are advanced, none will succeed.”
Thank you.

Lecture by Dr. Justice A.S.Anand, (Former Chief Justice of India) Chairperson, NHRC on “JUDICIAL ACTIVISIM” at The Army Institute of Law, Mohali on 30 September 2006

The expression “Judicial Activism” is not of ancient vintage but came into focus somewhere in 1980s and thereafter. To appreciate Judicial Activism, therefore, one shall have to consider the power of judicial review vested in the higher judiciary – the Supreme Court and the High Courts as also the general role of the judicial institutions.
The Legislature, the Executive and the Judiciary are three co-ordinate organs of the State. All the three are bound by the Constitution. The Ministers representing the Executive, the elected candidates as Members of Parliament representing the Legislature and the Judges of the Supreme Court and the High Courts representing the Judiciary have all to take the oaths prescribed by the Third Schedule of the Constitution. All of them swear to bear true faith and allegiance to the Constitution. For the progress of the nation, however, it is imperative that all the three wings of the State function in complete harmony.

Judicial review is an essential component of the rule of law, which is a basic feature of the Indian Constitution. The essence of judicial review is a constitutional fundamental. Its growth is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Every State action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by reason of a doubt raised in that behalf, by the courts. Judicial Review, has a more technical significance particularly in countries having written constitutions. In such countries it means that courts have the power of testing the validity of the legislative as well as other governmental actions. The necessity of empowering the Courts to declare a statute unconstitutional arises not because the Judiciary is to be made supreme but only because a system of checks and balances between the Legislature and the Executive on the one hand and the Judiciary on the other hand provides the means by which mistakes committed by one are corrected by the other and vice versa. The function of the Judiciary is not to set itself in opposition to the policy and politics of the majority rule, but to test the validity and constitutionality of the actions of the State. This well-established constitutional principle of the existence of the power of judicial review and its need was indicated by Chief Justice Marshall in Marbury vs. Madison . He said:
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the Court must determine which of these conflicting rules governs the case. This is of very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary Act of the Legislature, the Constitution, and no such ordinary act, must govern he case to which they both apply. . .Why otherwise does it (the Constitution) direct the judges to take an oath to support it?"

Thus, judicial institutions have a sacrosanct role to play not only for resolving inter-se disputes but also to act as a balancing mechanism between the conflicting pulls and pressures operating in a society. Courts of law are the products of the Constitution and the instrumentalities for fulfilling the ideals of the State enshrined therein. Their function is to administer justice according to the law and in doing so, they have to respond to the hopes and aspirations of the people because the people of this country, in no uncertain terms, have committed themselves to secure justice – social, economic and political – besides equality and dignity to all.
In human affairs, there is a constant recurring cycle of change and experiment. A society changes as the norms acceptable to the society undergo a change. The judges have been alive to this reality and while discharging their duties have tried to develop and expound the law on those lines while acting within the bounds and limits set out for them in the Constitution.
Finding that the citizens of this country had been denied access to justice for long long years and to them seeking judicial redress in respect of a legal injury or a legal wrong by reason of their poverty and disability to approach the court for enforcement of their rights was illusory, the judiciary forged a potent weapon by way of Public Interest Litigation (PIL). Supreme Court ruled that where judicial redress is sought in respect of a legal injury or a legal wrong for the benefit of under-privileged and down-trodden, any member of the public, acting bonafide can maintain an action for judicial redress. The weapon was forged for the benefit of weaker sections of the society and those who, as a class cannot agitate their legal problems by themselves, through public spirited persons to enable the court to use this weapon effectively for the benefit of the deprived segment of the society. A thrust was given to Public Interest Litigation by Supreme Court in S.P. Gupta’s case by liberalizing the concept of locus standi to make access to the courts easy. The higher judiciary, thus, started operating on a wider canvass of judicial review.

It is this expanded role and more particularly the expansion of the jurisdictional limits of the courts exercising judicial review, which has been given the title of “Judicial Activism” by those who are critical of this expanded role of the judiciary. The main thrust of the criticism is that the judiciary by its directives to the administration is usurping the functions of the legislatures and of the executive and is running the country and, according to some, ruining it. According to the critics the judiciary in this country has become active in expansion of judicial review into non-traditional areas, which earlier were considered beyond judicial review. What these critics of the judiciary, however, overlook is that it is the tardiness of legislatures and the indifference of the executive to address itself to the complaints of the citizens about violations of their human rights which provides the necessity for judicial intervention. In cases where the executive refuses to carry out the legislative will or ignores or thwarts it, it is surely legitimate for courts to step in and ensure compliance with the legislative mandate. When the Court is apprised of and is satisfied about gross violations of basic human rights it cannot fold its hands in despair and look the other way. The judiciary can neither prevaricate nor procrastinate. It MUST respond to the knock of the oppressed and the downtrodden for justice by adopting certain operational principles within the parameters of the Constitution and pass appropriate directions in order to render full and effective relief. If the judiciary was also to shut its door to the citizen who finds the legislature as not responding and executive indifferent, the citizen would take to the streets and that would be bad both for the Rule of Law and democratic functioning of the State. Courts have come to realise and accept that judicial response to human rights cannot be blunted by legal bigatory. Courts no longer feel bound by the rigid rule of locus standi where the question involved is injury to public interest. Notwithstanding the criticism, the role of courts has received acceptability not only by the people but sometimes even by other wings of the State. What may appear to be non-traditional at the time of performance of such a task by the judiciary, when considered in its proper perspective may turn to be really the process of development of the law to respond to the needs of the society.

Judicial activism in India encompasses an area of legislative vacuum in the field of human rights. Judicial activism reinforces the strength of democracy and reaffirms the faith of the common man in the Rule of law. The judiciary, however, should act only as an Alarm-clock but not as a time-keeper. After giving the alarm call it must ensure to see that the executive performs its duties in the manner envisaged by the Constitution.

It would be seen that judicial activism which is the search for the spirit of law, has been profitably used for the benefit of powerless minorities, such as bonded labour, prison inmates, under-trial prisoners, sex workers and such other powerless minority groups as are crusading for protection of human rights of women and children or seeking redressal against government lawlessness, or relief against developmental policies which benefit the haves at the cost of the have-nots.

Even in Great Britain, which has no written Constitution and where Parliament is sovereign and is source of all power the trend of expansion of judicial review has been quite marked and the judiciary has been taking a much more active course. The rcent trend of judicial review in England, (which even became subject matter of a debate in the House of Lords in June, 1996) as indicated in an Article by Anthony Lewis is interesting. In his Article – “Judges in Britain create a flutter” (Times of India, Bombay Edn. Of 7.11.1995), he said that the significant change towards judicial activism in British Courts is on account of outlook of judges and the functions they perform. The reason given in the analysis made therein are interesting. I quote:

“(1) The judges realise that there is a vacuum since Parliament is virtually under the total control of the executive when it was supposed to correct any Government injustice to individual;

(2) the modern legislation is loosely drafted and delegates large powers to the Government which tends often to be arbitrary in its exercise;

(3) the new generation of Judges think of law not as fixed rules but as a set of values designed above all to protect democracy and human rights; and

(4) the new judicial generation is more outward looking and is influenced by the courts in Commonwealth countries, for examine, India in the rigorous enforcement of Individual rights.”

The articles ends thus:

“The politicians, or many of them, will resist judicial review. But my guess is that the British public likes it when judges stand up for them against the State – and that the public will demand more of the new constitutionalism, not less.”


Please mark the identity of the views of the critics in the context of Indian experience also!!
The progress of the society is dependant upon proper application of law to its needs and since the society today realises more than ever before its rights and obligations, the judiciary has to mould and shape the law to deal with such rights and obligations. The mere existence of a particular piece of beneficial legislation cannot solve the problems of the society at large unless the judges interpret and apply the law to ensure its benefit to the right quarters. Initially the Court followed a policy of adhering to a narrow doctrine and tended to shy away from development of the law. Soon after the Constitution came into force in 1950 in A.K. Gopalan’s case , the Supreme Court placed a rather narrow and restrictive interpretation upon Article 21 of the Constitution. By a majority, it was held in that case that “..‘the procedure established by law’ means procedure established by a law made by the State” and the Court refused to infuse in that procedure the principles of natural justice. The Court also arrived at the conclusion that Article 21 excluded enjoyment of the freedoms guaranteed under Article 19. Gopalan’s case was decided soon after the Constitution came into force, more than 49 years ago. The judgment was mainly based on the language of the Constitution and the requirements of the particular case before the court. The law has not remained static. The doctrine of exclusivity of fundamental rights as evolved in Gopalan’s case was thrown overboard by the same Supreme court, about two decades later in Bank Nationalisation case , and four years later in 1974, in Hardhan Saha’s case , the Supreme Court judged the constitutionality of preventive detention with reference to Article 19 also.
Twenty eight years after the judgment in Gopalan’s case in 1978, the Supreme Court in Maneka Gandhi’s case , pronounced that the procedure contemplated by Article 21 must be ‘right, just and fair’ and not arbitrary; it must pass the test of reasonableness and the procedure should be in conformity with the principles of natural justice and unless it was so, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
The courts have, thus, been making judicial intervention in cases concerning violation of human rights as an ongoing judicial process. Decisions on such matters as the right to protection against solitary confinement as in Sunil Batra vs. Delhi Admn., the right not to be held in fetters as in Charles Sobraj vs. Supdt., Central Jail, the right against handcuffing as in T.V. Vatheeswaran vs. State of Tamil Nadu, the right against custodial violence as in Nilabati Behera vs. State of Orissa, or the rights of the arrestee as in D.K. Basu vs. State of West Bengal the right of the female employees not to be sexually harassed at the place of work as in the case of Vishaka vs. State of Rajasthan, and Apparel Export Promotion Council vs. A.K. Chopra are just a few pointers in that directions to illustrate how the Supreme Court has been expanding the dimensions of Article 21 by purposeful interpreation. I need not multiply illustrations.

What has been and is being done by the higher judiciary in India today is not something which can be said to be a "new innovation". Let us not fool ourselves into believing that the present generation is the pioneer in this field. Ours is only a participatory role in an ongoing judicial process. Experience is the basis for the development and evolution of law, which cannot be allowed to remain static. Development of law by the Supreme Court of the United States would provide an apt example. In Dred Scott vs. Sandford , that Court held that a 'Negro' was the property of his master and not a 'citizen' thereby legitimising "slavery" and discrimination on the grounds of "colour and creed". This doctrine was cast away, a century later by the same Court, in Brown vs. Board of Education , when it said that slavery is "de-humanizing" despicable institution denying human dignity to such an extent that no court of law can uphold it and later that Court gave it a decent burial in Bakke's case . The Court realised that the values which guided the society when Dred Scott's case came to be decided had undergone a sea change and could not stand the scrutiny of the age when the judgment in Brown case or Barkey case was given.

The judiciary has, thus, been rendering judgments which are in tune and temper with the legislative intent while keeping pace with time and jealously protecting and developing the dimensions of the fundamental human rights of the citizens so as to make them meaningful and realistic. New contents are being provided to criminal justice also resulting in prison reforms and humanitarian treatment of the prisoners and the under trials. The doctrine of equality has been employed to provide equal pay for equal work. Ecology, public health and environment are receiving attention at the hands of the courts. Exploitation of children, women and labour is receiving the concern it deserves. The Executive is being made more and more to realise its responsibilities.

Judiciary in this country has been the most vigilant defender of democracy, democratic values and constitutionalism. Having talked about constitutional obligations of the courts and their role not to remain ‘passive’ to the violation of human rights, there is one other aspect I wish to talk about.

Judicial activism is not an unguided missile. It has to be controlled and properly channelised. Courts have to function within established parameters and constitutional bounds. Decision should have a jurisprudential base with clearly discernible principles. Limits of jurisdiction cannot be pushed back so as to make them irrelevant. Courts have to be careful to see that they do not overstep their limits because to them is assigned the sacred duty of guarding the Constitution. People of this country have reposed faith and trust in the courts and, therefore, the judges have to act as their trustees. Betrayal of that trust would lead to judicial despotism - which posterity would not forgive.
We must always remember that the Judges in exercise of their power of judicial review, are not expected to decide a dispute or controversy which is purely theoretical or for which there are no judicially manageable standards available with them. The courts do not generally speaking interfere with the policy matters of the executive unless the policy is either against the Constitution or some statute or is actuated by malafides. Policy matters, fiscal or otherwise, are thus best left to the judgment of the Executive. The danger of judiciary creating a multiplicity of rights without the possibility of adequate enforcement will in the ultimate analysis be counter productive and undermine the credibility of the institution. Courts cannot "create rights" where none exist nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles.
It is in fact stating the obvious to say that courts must while exercising the power of judicial review exercise proper restraint and base their decisions on recognised doctrines or principles of law. Judicial Activism and Judicial Restraint are two sides of the same coin. It is therefore essential to remember that judicial restraint in the exercise of its functions is of equal importance for the judiciary while discharging its judicial obligations under the Constitution. With a view to see that judicial activism does not become "judicial adventurism", the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile – failure to bear this in mind would lead to chaos. People would, thus, not know which organ of the State to look to for ensuring check on the abuse or misuse of power.
It would be prudent to remember the following observations of Lord Justice Lawton in Laker Airways :
"In the United Kingdom aviation policy is determined by ministers within the legal framework set out by Parliament. Judges have nothing to do with either policy making or the carrying out of policy. Their function is to decide whether a minister has acted within the powers given him by statute or the common law. If he is declared by a court, after due process of law, to have acted outside his powers, he must stop doing what he has done until such time as Parliament gives him the powers he wants. In a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play."

Thus, 'judicial whistle' needs to be blown for a limited purpose and with caution. It needs to be remembered that Courts cannot run the Government nor the Administration indulge in abuse or non-use of power and get away with it.
The courts have the duty of implementing the constitutional safeguards that protect individual rights but they cannot push back the limits of the Constitution to accommodate the challenged violation. All it means is that Judges are expected to be circumspect and self disciplined in the discharge of their judicial functions. It is an onerous duty cast on the judiciary to see that either inadvertently or overzealously, they do not allow the instrumentality of the courts to be polluted thereby eroding public trust and confidence in the Institution.
The societal perception of judges as being detached and impartial referees is the greatest strength of the judiciary and every judge must ensure that this perception should not receive a setback. To the extent that judicial activism is making the legislative and executive branches function properly in accordance with the rule of law, the courts functioning is unexceptionable but we must remember that sole check on judicial power is the use of proper judicial restraint by the Judges in discharge of their functions. The courts, must however, not shy away from discharging their constitutional obligations to protect and enforce human rights of the citizens and while acting within the bounds of law must always rise to the occasion as “guardians of the Constitution”, criticism of “judicial activism” notwithstanding.
The society has placed judges on a high pedestal. We must justify that position in the society remembering for ever that the Constitution does not give unlimited powers to anyone including the judges of all levels.
Judicial activism is a delicate exercise involving creativity. Great skill is required for innovation. Caution is needed because of the danger of populism imperceptibly influencing the psyche. Public adulation must not sway the judges and personal aggrandisement must be eschewed. It is imperative to preserve the sanctity and credibility of judicial process.
Thank you for your patience.
**********
 

 

Speech of Hon’ble Chairperson Dr. Justice A.S.Anand at the International Conference on “Right to Health and Development” –Human Rights Perspective — on 15th September 2006 at Hotel CIDADE-DE GOA

Human rights, which inhere in every human being by virtue of his birth as a member of the human family are demands to protect our only common identity as human beings. These rights flow from the common humanity and inherent dignity of every human being. No compromise with violations of the same is permissible in any civilized society. These rights, which are non-negotiable, non-alienable, indivisible and recognize an essential worth of a human being, are ethical norms for the treatment of individuals. Human Rights are, thus, certain rights which have come to be recognized as basic conditions of civilized living for full development of a human being. These are not the gifts conferred by the State nor owe their existence to the Universal Declaration of Human Rights, 1948 or even the Constitution of India. They only confirm their existence and guarantee their protection.

The aim of human rights is empowerment of people through human development. These rights are inter-dependent and inter-related and have a direct relationship with human development. Universality of human rights demands eradication of global inequities and to achieve this end the importance of “Right to Development” cannot, but, be emphasized. The wide global disparities in different parts of the world are shown to be linked with varying levels of human development. Global disparities must be minimized to ensure that the minimum needs of everyone throughout the world are met. Strategies must be developed to achieve this result. It is only when the potential of all human beings is fully realized that we can talk of true human development.
In 1948 when the Universal Declaration of Human Rights was adopted as “a common standard of achievement of all peoples and nations” there were reservations by many State Governments. Virtually all States shielded behind Article 2(7) of the UN Charter in arguing that human rights matter were strictly an internal matter of the States concerned. This view today, mercifully, receives very little credence from the International community which accepts universality of human rights all over.

Due to reservations of State governments, the Universal Declaration of Human Rights was not presented to the General Assembly as a treaty for ratification which would be binding upon the signatory nations, but an instrument to be endorsed as “a statement of goals and aspirations – a vision of the world as the International community wanted it to become”. The Declaration was adopted by an affirmative vote of 48 member States and 8 abstentions. A UN Commission on Human Rights was set up. The Commission’s mandate was confined to the drafting of new treaties and other legal instruments. That Commission has now been replaced by an elected Human Rights Council in May, 2006.

The Right to health has been enshrined in the Universal Declaration of Human Rights under Article 25 stating – “Everyone has a right to standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and the right to security in the event of sickness and disability”. Healthcare is hence not merely a goal towards which a nation aspires but rather it is an obligation of the State to the individual. It is a human right that needs to be protected and assured.

Leaders of the movement for Independence in India were aware of the enormous inequities and injustices in the society. The Founding Fathers of our Constitution were committed to the protection and promotion of human rights and incorporated the same as Fundamental Rights in Part III of our Constitution and made them enforceable by an independent judiciary. Part IV of our Constitution sets out Directive Principles of State Policy. They embody the goals and ideals for making India a true welfare state in the right sense. Directive Principles are not directly enforceable by any court but are nonetheless “fundamental in the governance of our country”.

At one stage of our constitutional development, fundamental rights were given primacy over directive principles which were regarded as subordinate to fundamental rights. That view mercifully is no longer considered as valid. It was considered necessary to give as much importance to the positive obligations of the State as to the negative. It was felt that merely restraining the State from interfering in the affairs of an individual will not get the desired results of ensuring a life with human dignity to a large majority of people, unless equal importance was given to socio-economic rights contained in the Directive Principles.

The Constitution of India envisages establishment of a welfare State at the federal level as well as at the State level. In a welfare State, it is the primary duty of the Government to secure welfare of the people. Providing adequate medical facilities for the people is, thus, an essential part of the obligations undertaken by the Government in a welfare State. Human dignity is infact the very foundation on which Human Rights rest. Emphasis on human dignity is enshrined in the UN Charter, the Universal Declaration of Human Rights and several covenants as also in the Constitution of India, which proclaims “dignity of individual” as a core value in its Preamble. Inspite of all this, it is sad but true that today – even after fifty six years when the Republic was formed, millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education. Inequities and injustices continue to stare us in the face.

The Constitution of India aims at securing social justice. However, the expression ‘Socio-Economic Justice’ is not a constitutional rhetoric or political claptrap meant for heroic sloganeering. It is the conscience and soul of the Constitution. The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of a welfare state.

The Supreme Court of India has played a pivotal role in balancing the civil and political rights on the one hand and the social and economic rights on the other so as to develop human rights both horizontally and vertically. The Supreme Court has expanded the scope and ambit of Article 21 of the Constitution which guarantees protection of life and personal liberty. The Supreme Court has held that the right to life does not indicate merely a negative duty on the part of the government to not take an individual’s life, but also a positive duty to provide the basic conditions necessary to lead a life that is more than a mere ‘animal existence’. The court read the right to health, right to clean environment, right to privacy and so on into Article 21 which guarantees Right to Life. In Consumer Education and Research Centre v. Union of India [1995 (3) SCC 42], the Supreme Court said:

“The jurisprudence of personhood of philosophy of the Right to life envisaged under Art.21, enlarges its sweep to encompass Human personality in its full blossom with invigorated health… to sustain the dignity of person and to live a life with dignity and equality…. Right to health and medical care to protect health and vigour… is a Fundamental Right of a worker under Art…21… the Right to health of a worker is an integral facet of meaningful Right to life… lack of health denudes him of his livelihood.”

In the case of Francis Coralie Mullin vs. the Administrator, Union Territory of Delhi[1981 2 SCR 516], the Supreme Court declared:

“The right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

According to UNDP Report of 2003, Indian society is highly inequitable society where richest 10% consumes 33.5% of resources and poorest 10% gets only 3.5% of resource. Around 233 million people are chronically hungry. Official figures state that in the country 26% people are living Below Poverty Line. However, in the Alternative Economic Survey 2000-01 based on the National Sample Organisation Survey, it is shown that the number of people living below poverty line in the rural areas has increased from 35% in 1990 to 45.3% in 1998.

The position in the area of health care is also worrisome. According to statistics, health care and medical facilities are very low. Around 51% of the population does not even have sustainable access to affordable essential drugs. Infant Mortality rate is 68 per 1000; under 5 child mortality rate is 93 per 1000; 26% children are under weight; and 24% of the population is undernourished. Maternal mortality ratio is 440 per 1,00,000 and 72% of the population does not have access to improved sanitation (UNDP Report 2003).

The India vision 2020 document notes that its major focus must be on improving access to health services to meet health care needs, particularly of women and children. The inadequacy of the current health care system is starkly illustrated by the fact that only a percentage of the population has access to essential drugs. Infant immunization against measles and DPT for children under twelve years is only 60% and 78% respectively. The vision 2020 document also emphasizes the fact that the level of public expenditure on health care needs to rise about four-fold from the current level of 0.8% of GDP to reach the UMI reference level of 3.4%.

It needs to be realized that for any country to find its due place among the civilized nations the three most important factors are: eradication of poverty, health care and education. Unfortunately, even after more than half a century of independence, our country is only at the fringe on all the three counts. The situation seems to be even more paradoxical when we have almost the largest force of technical personnel in the world. Indian doctors have to their credit remarkable achievements as faculty teachers and practitioners in some of the most advanced countries. They have helped set up hospitals and health care in the developing countries and yet we find that health care facilities for our own countrymen are far from satisfactory. This is a common lament which you and I as citizens of this country share, for surely there is something fundamentally wrong with our national priorities. Doctors blame infrastructure — infrastructure cries for resources and the general helplessness percolates to the average citizen. It is in this context that I view the relevance and importance of holding this Conference. Thoughtful and considered development of the infrastructure both at the stage of planning, designing and implementing, keeping in view the needs of the health and medical care sector would go a long way to use even the available resources in a more judicious manner to provide health and medical care to the citizens of this country. Should the hospitals be not planned in a manner that all the felt needs of providing quality heath care is achieved?

The Twenty-first century, started with two important events emanating from the Declaration adopted by 189 countries at the United Nations Millennium Summit on 8th September, 2000: (i) the new initiatives by poor and rich nations in fulfilling a long unfinished agenda of “full human development” and “human rights for all”; and (ii) the Millennium Development Goals. The UN Millennium Development Goals, which lists specific targets to be achieved by the year 2015, are in a way value based resolves among nations to end human poverty, promote human dignity and to take steps in furtherance of the attack on widespread hunger and lack of education and health care towards the convergence of human development and human rights in action.

The Millennium Development Goal lists specific targets to be achieved by year 2015: improvement of reproductive health of women, reduction in IMR and MMR. To ensure that this resolve does not remain just a rhetoric, the need is to bring in convergence of not only efforts of the Government but also active role of Private sector, Civil societies.

It is necessary that Right to Health Care is not considered merely a welfare measure but is treated as a basic human right to be guaranteed to every citizen. It would be, therefore, appropriate to have a paradigm shift from ‘welfare’ to a “rights perspective” in health care, as that would go a long way in ensuring proper formulation and implementation of the policies by the Government, which both under the International Instruments and Constitution of India, places an obligation on it to protect and promote human rights of the citizens for their full development. Human development does not only mean economic development but development of the personality of an individual so as to enable living of life with dignity. Making human rights as the focal point is sine-qua non of good governance.

I would, therefore, like to emphasize to this august gathering of medical experts, planners and designers of health care facilities that now the time has come to shift agenda from ‘welfare’ approach to the ‘rights based’ approach in delivery of services for all the three essential components of health care – Accessibility; Availability and Affordability and if I may add proper and planned utility of the infrastructure.
Ladies and Gentlemen, I hope that this international conference will deliver, discuss and advocate for the adoption of a rights-based approach to strengthen public health infrastructure and all other steps needed to realize the right to health care for everyone. Let “Health for All” not remain only a distant dream but become a reality.

*****
 


Inaugural Address by Dr. Justice A.S.Anand, Chairperson, NHRC at Seminar on “Human Rights Sine-Qua-Non of Democratic” organized by Merchants’ Chamber of Commerce at Kolkata on 8th September 2006

Shri Santosh Saraf, President, Merchants’ Chamber of Commerce, Shri Rabi Lal Maitra, Minister of Law and Judicial Department, Govt. of West Bengal, Justice Shri Shyamal Sen, Chairperson, West Bengal Human Rights Commission, Justice Shri Prabir Kr. Samanta, Shri Ashish Jhunjhunwala, distinguish invitees, ladies and gentlemen.

I congratulate Shri Santosh Saraf, President and Members of the Committee of Merchants’ Chamber of Commerce for organizing this seminar on a very important topic “Human Rights: Sine-Qua-Non of Democratic Governance”. The topic assumes special significance at this juncture, since the functioning of democratic governance in an effective manner postulates respect for Human Rights. Liberal democracies the world over are passing through a tense and chaotic stage. Good governance, therefore, assumes great relevance. The very concept of Govt. of the people, for the people and by the people, puts human beings at the centre stage and unless the State makes Human Rights its focal point, it cannot provide good governance.

Democratic governance refers to the management of societal affairs in accordance with the universal principles of democracy as a system of rule that maximizes popular consent and participation, the legitimacy and accountability of rulers, and the responsiveness of the later to the expressed interests and needs of the public.

Human rights, which are basic to civilized existence, are conceived primarily as protection against the tyranny of the majority even in a democracy because the ultimate hope for those rights lies in the democratic process. As the majority of the people, whose rights are most frequently violated, are poor and deprived sections of the society, democratic process is the most potent and effective weapon for the protection of those rights. However, inspite of the claim of universality of human rights, their contents, perspectives and priorities differ from society to society. It needs to be recognized and accepted that protecting and promoting human rights sustains rule of law and political stability which is sine-qua-non of good governance.

It is now well accepted that the State is primarily responsible for both formulating and enforcing polices relating to good governance and human rights. Unless human rights are made the focal point, good governance would remain only a distant dream. The rule of law is a higher ideal and it must be recognized by those governing the State that adherence to the rule of law is sine-quo-non of any society that hopes to have stability and peace and achieve social equality.

Leaders of the movement for Independence in India were aware of the enormous inequities and injustices in the society. On the attainment of Independence in 1947, they had the choice to adopt governance either by an authoritarian rule or through the Rule of Law and constitutionalism of the Western Model. In framing our Constitution, our Founding Fathers made a conscious and deliberate choice to adopt democracy or rather the democratic way of life as the basis of our Constitution. They were committed to the protection and promotion of human rights and incorporated the same as Fundamental Rights in Part III of our Constitution and made them enforceable by an independent judiciary. The rationale underlying fundamental rights is that human rights flow form the common humanity and inherent dignity of every human being irrespective of race, religion, caste, colour, sex or status. These are not the gifts conferred by the State nor owe their existence to the Universal Declaration of Human Rights, 1948 or even the Constitution of India. They only confirm their existence and guarantee their protection.

Part IV of our Constitution sets out Directive Principles of State Policy. They embody the goals and ideals for making India a true welfare state in the right sense. Directive Principles are not directly enforceable by any court but are nonetheless “fundamental in the governance of our country”.

At one stage of our constitutional development, fundamental rights were given primacy over directive principles which were regarded as subordinate to fundamental rights. That view mercifully is no longer considered as valid. The Supreme Court has described the correct interrelationship between fundamental rights and directive principles, thus:

“The fundamental rights and the directive principles constitute the ‘conscience’ of our Constitution. The purpose of the fundamental rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the directive principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. …… Without faithfully implementing the directive principles, it is not possible to achieve the welfare State contemplated by the Constitution.”

It was, therefore, considered necessary to give as much importance to the positive obligations of the State as to the negative. It was felt that merely restraining the State from interfering in the affairs of an individual will not get the desired results of ensuring a life with human dignity to a large majority of people, unless equal importance was given to socio-economic rights. The Supreme Court of India has played a pivotal role in balancing the civil and political rights on the one hand and the social and economic rights on the other so as to develop human rights both horizontally and vertically. We must realize that there can be no good governance, if Directive Principles are flouted and neglected. Failure to implement and effectuate directive principles is a serious drawback and poses constant problems to the functioning of our democracy. Fulfillment of directive principles is vital for the functioning of a healthy democracy.


Securing economic and social justice is a moral imperative for any democracy, which respects real equality. Failure to do so results in disillusionment with democracy and leads to emergence and ultimate acceptance of authoritarian regime.

One of the obligations imposed upon the State by the Directive Principles is to minimize inequalities in income, status, facilities and opportunities.
The inter-dependence of both sets of rights is essential for full development of human personality. However, the Governments at the Centre and the States, as statistics tell us, never whole-heartedly pursued the implementation of Directive Principles. Governments have so far contented themselves by chalking out only strategies for promotion of economic and social rights. Even those strategies have hardly borne any fruits because of rampant corruption in implementing the same. Millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education.

While winding up the debate in the Constituent Assembly, on 25th November, 1949, before the Constitution was finally adopted, Dr. Ambedkar pointed out the perils of a life of contradictions in these memorable words:

“On the 26th January, 1950, we are going to enter upon into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment else those who suffer from inequality will blow up the structure of democracy which this Constituent Assembly has so laboriously built up.”
The life of contradictions, unfortunately, persists even after 56 years of formation of the Republic. It cannot be ignored, let alone denied, that far too many people continue to live in conditions where there is wide spread neglect of human rights and people are denied hope of better future. The existence of social, economic and political disparities to a large measure contribute to the eruption of conflicts within the State and beyond which are threatening the democratic societies worldwide. It cannot be denied that disillusionment with a society where there is exploitation and massive inequalities and whose systems fail to provide any hope for justice are fertile breeding grounds for conflicts, which more often than not thrives in environments where human rights and more particularly Economic, Social and Cultural Rights are denied by the State and political rights are violated with impunity both by the State and non-State actors. Systemic denial of Economic, Social and Cultural Rights, like right to food, health, education etc. are caustic factors of conflict and terrorism. The protection and promotion of Economic, Social and Cultural Rights must go hand in hand with protection of Political Rights for giving human rights a true meaning. Any worthwhile strategy to resolve conflicts and terrorism will have to ensure enjoyment of the full range of Economic, Social and Cultural Rights- worthy objectives for democratic governance.

The Twenty-first century, started with two important events emanating from the Declaration adopted by 189 countries at the United Nations Millennium Summit on 8th September, 2000: (i) the new initiatives by poor and rich nations in fulfilling a long unfinished agenda of “full human development” and “human rights for all”; and (ii) the Millennium Development Goals. The UN Millennium Development Goals are in a way value based resolves among nations to end human poverty, promote human dignity and equality, and to take steps in furtherance of the attack on inadequate incomes, widespread hunger, gender inequality, environmental deterioration and lack of education, health care and clean water, towards the convergence of human development and human rights in action.

Corruption inhibits enjoyment of human rights. It has become all pervasive and is eating into the vitals of the society. It directly contributes to inequalities in income, status and opportunities. It remains one of the biggest threats to ‘full human development’ and ‘human rights for all’. It undermines the rule of law. It distorts the development process and also poses a grave threat to human security. Corruption is not a new phenomenon. What is new and worrying is the magnitude and size of corruption. It has spread its tentacles to every sphere of national life. It is one of the biggest threats to development. It can tear the very fabric of the society and, infact, it is doing so. Corruption benefits the rich and the well-to-do. It enriches the rich and disproportionally affects the poor, unprotected and the underprivileged and thereby it deepens their deprivation. Unless it is checked, the governments and people will have to pay a very heavy price in the consequent result of lower incomes, lower investments and lower developments resulting in volatile economic swings. It is high time that we appreciate an urgent need to combat the deadly menace which poses a threat to the democratic fabric of our nation. It is unfortunate, but true, that growing politicization of public services and criminalization of politics have contributed in no small measure to let corruption flourish and the corrupt not only go scot-free but even earn a position of false respectability!

Let me, however, hasten to add that citizens’ obligation in a democracy is not discharged by the exercise of franchise once in five years and thereafter retiring in passivity and not taking any interest in the working of the government. An alert and active and educated citizenry is essential to meet the challenges to democracy and to ensure its successful functioning. Accountability is a sine-qua-non of democracy because as Benjamin Disraeli rightly reminds us “all power is a trust – that we are accountable for its exercise that, from the people and for the people, all springs, and all must exit”. This accountability is to be enforced not merely at the time of elections but during the life of the government in power. Otherwise democracy will become merely a ritualistic exercise in voting and not a continuous process of democratic governance.

There is one other factor I would like to talk about to this august gathering. Of all the challenges to our democracy to my mind, the gravest is the rise of fanaticism and intolerance which has assumed menacing proportions. One trend in violations of human rights is ever-growing fundamentalism in all its forms and manifestations and use of terrorist activities for imposing their “so called religious or ideological will”. While all faithful believe in harmony and brotherhood in religion, it is the misguided fanatics who do not value human life and in the name of religion resort to all types of attacks on human rights. These include forcible imposition of self-righteous social code and undermining of freedom of expression and belief. Fundamentalism is sometimes used to exploit innocent citizens in the name of religion to secure “political” advantage over the rivals, unmindful of the harm their actions may cause to the nation by such exploitation. They contribute to a climate of religious bigotry, which leads to discrimination, harassment and attacks on all those who do not follow their dictates which may be right or wrong, on believers of other faiths. In doing so, they violate human rights of fellow citizens without any justification whatsoever. Society’s response to such type of fundamentalism has to be clear and effective. Indifference of the society to such acts encourages fundamentalists – Loud and positive condemnation of their activities by the society, on the other hand is bound to discourage them. A violent group, whatever its politics, has no right to kill, and no claim to such a right must ever be allowed. What more fundamental attack on human rights can there be than to deprive the innocent of the right to life? Does murder cease to be murder just because the killer believes human life is expendable in pursuit of some particular species of fanaticism?

In a free democratic society tolerance is vital, because firstly, it promotes receiving or acknowledging new ideas and helps to break the status quo mentality. Secondly, tolerance is particularly needed in large and complex societies comprising people with varied beliefs and interests.

It is not sufficiently realized that intolerance has a chilling, inhibiting effect on freedom of thought and discussion. Development and progress in any filed of human endeavour are not possible if any thought or opinion which questions the current ideology incurs the ire of the authorities or a certain section of the population and is visited with dire consequences. Without free and frank discussion there can be no progress in any filed of human endeavour. The consequence is that dissent dries up. Healthy and vigorous debate is no longer possible. And when that happens democracy is under siege and under threat. And that is the challenge we must counter fully with all our might. We must realise the urgent need to combat intolerance and the deadly threat it poses to the democratic fabric of our nation.

Democratic governance being a form of practice based on universal principles of rule of law provides a means towards development and human security. Therefore, ignoring protection and promotion of human right is a threat to democratic governance, which is a continuing process of expanding the political space to ensure for everyone equal access to basic rights and liberties. It is in a way a Fundamental Human Right essential for the realization of dignity and worth inherent in the human beings. The time has come to make human rights as sine-quo-non of democratic governance. Just a constitutional democracy will not ensure prosperity and equitable distribution of opportunity to the citizens. Ensuring protection and promotion of human rights will enable the most vulnerable to exercise true democracy not just in letter but also in spirit.


I have, ladies and gentlemen, great pleasure in inaugurating this seminar and hope that the deliberations would be prosperous and fruitful.

 

Speech of Hon'ble Chairperson Dr. Justice A.S. Anand at the meeting between NHRC & SHRC's Held on 1st September, 2006 at India International Centre, New Delhi.

          On behalf of the Members and staff of the National Human Rights Commission and on my own behalf I extent to you all a very warm welcome to this third annual meeting.

        It was during my interaction with the Chairpersons of various State Human Rights Commissions soon after I took over as Chairperson, NHRC in February, 2003 that a need was felt for closer interaction between the NHRC and SHRCs, to develop a culture of human rights in the country for better protection of human rights of the citizens.  The organization of the first meeting by the NHRC of the State Human Rights Commissions in January, 2004 was, therefore, a modest beginning and we did not know what to expect or how fruitful the meetings would prove to be. However, during the first meeting itself, we resolved to meet regularly atleast once a year.  The second interactive meeting took place on 13th May, 2005.

           At our second meeting held on 13th May, 2005 a unanimous Resolution was adopted in the following terms:

“The National Human Rights Commission and the State Human Rights Commissions present in the meeting unanimously resolve to urge the State Governments to:

Set-up, on priority basis, State Human Rights Commissions where the same have not, as yet, been set up;

 

Resolved further that, it should be ensured that SHRCs are structurally and financially independent in conformity with the principles relation to the status of national institutions (the “Paris Principles”) which were endorsed by the UN General Assembly Resolution 48/134 of 20th December, 1993”.

 

          This Resolution had been preceded by a number of requests made by me, both in writing and from various platforms to all the State Governments to set up the State Human Rights Commissions as expeditiously as possible. Unfortunately, however, the response had not been very encouraging.

           To me personally and as a Chairperson of the NHRC, today is a very gratifying experience emanating from the enthusiastic response that we have received from each one of the State Commissions.  Your presence today is a proof of your commitment to better protect and promote human rights of the citizens.  One very positive result of holding of this meeting today is that during the last week itself, Chairpersons have been appointed to Kerala State Human Rights Commission; Tamil Nadu State Human Rights Commission and Gujarat State Human Rights Commission.  I extend to them, on behalf of all of us present here, my congratulations and wish them a very successful tenure. It indeed is a very welcome step, though, unfortunately, even after their appointment, the total number of State Human Rights Commission is only 16 with 5 Commissions being without Chairpersons. We expect better response from the States to set-up the State Human Rights Commissions. I wish to emphasise that the State Commissions play an important role in the effective implementation of human rights standards.  The State Government need to appreciate that the State Commissions act as facilitators and assist the governments concerned in fulfilling their constitutional obligation and responsibilities of protecting and promoting human rights of the citizens – an absolute element for good governance.  It is my firm belief that unless human rights are made the focal point, good governance cannot be actualized.  I hope that the State Governments would act with all the sincerity and set up the Commissions where those have not  been set up till  now.

 During the period between the last Annual Meeting and this meeting many events of great importance and significance in the sphere of human rights have taken place, both at the International level as well as nationally.

          Internationally, the Commission for Human Rights has been replaced by an elected body of 47 members. Elections took place in May, 2006. India has been elected as a member of the new Human Rights Council.  Its first session was held in Geneva in June, 2006. The Resolution establishing the Human Rights Council (GA Resolution 60/251 dated 15.3.2006), while addressing the question of relationship between the Human Rights Council and other entities, very specifically referred to the Council to “work in close cooperation in the field of human rights with Governments, Regional Organizations, National Human Rights Institutions and Civil society”.

 

The world community has very high expectations from the Human Rights Council.  One of the procedures which is under consideration of the Council is about the Periodic Review of the human rights record of the members of the Council.  This places a great responsibility on all the members not only to ensure the promotion and protection of human rights in all their dimensions in their respective countries but also to take effective steps to prevent violation of human rights.  It, therefore, brings to focus the role which National Institutions can play to ensure that the States protect human rights of the citizens by acting as facilitators.

         

I am happy to share with you that in the first session of the Human Rights Council, NHRC (India) was the only NHRI, apart from country representatives and some others, which was given the privilege to address the Council.  I was asked by the President of the Council to address the Council on “Right to Development” which I did on 26th June, 2006.

 

          During the 17th Session of the International Coordinating Committee of National Human Rights Institutions (ICC) held in April, 2006, shortly before the Commission for Human Rights was replaced by the Council, it was decided that a Working Group consisting of one representative each from the four Regional Groups of NHRIs should prepare a draft ICC position paper on the role of NHRIs in the Human Rights Council.  Working groups were accordingly formed in each region to examine the potential role of National Human Rights Institutions in the new UN Human Rights Council.  National Human Rights Institutions of the Asia-Pacific region unanimously nominated Chairperson of NHRC (India) to be the spokesperson of the Forum Councillors of APF in the Working Group.

 

A draft position paper was prepared by the APF and circulated to all Forum Councillors.  Ultimately, the draft paper was put in position by the APF, after taking into account the comments received from Forum Councillors.  The paper concentrated on the role of NHRIs in the working of the Human Rights Council.  The position paper was forwarded to the ICC for consideration.  I, as the Spokesperson of the APF, interacted with spokespersons of the three other regional bodies to assist the ICC in preparing a draft position paper.    Discussion on the draft position paper particularly about the role of the NHRIs in the ‘Special Procedures’ and the ‘Universal Periodic Review’ is on the agenda for discussion at the Annual Meeting of the International Coordinating Committee of National Institutions scheduled to be held in Bolivia in October, 2006.  

 

Appreciating the need for a comprehensive Convention on Disability, United Nations appointed an ad-hoc committee to draft the Convention.  International Coordinating Committee of the National Human Rights Institution was invited to be on the ad-hoc committee.  It is indeed a matter of pride for me to share with you that the International Coordinating Committee of NHRIs appreciating and recognizing the role being played by National Human Rights Commission of India in the area of disability rights unanimously nominated it to the U.N. Adhoc Committee as its representative for drafting the convention.  Ms.Anuradha Mohit, Special Rapporteur, NHRC was requested to provide technical assistance, as representative of the ICC and Asia Pacific Forum, to the Ad-hoc committee for drafting the Convention.  The assistance rendered by Ms.Mohit has been greatly appreciated and acknowledged by the office of the High Commissioner for Human Rights.  The Convention has now been drafted by the Ad-hoc Committee in August, 2006. The final draft has references to the role of independent institutions and reflects the view point expressed on behalf of the NHRIs by Ms.Anuradha Mohit. 

 

At the national level, National Human Rights Commission, in collaboration with the Office of the United Nations High Commissioner for Human Rights (OHCHR), organized a three-day International Round Table of National Institutions for implementing Economic, Social and Cultural Rights at New Delhi,  from 29 November to 1 December, 2005.  The principal objective of the Round Table was to discuss and strengthen the role and capacity of National Insitutions in protecting and promoting economic, social and cultural rights (ESCR).  Its specific objectives were to:

 

§        Familiarize national institutions with ESCR including the key international and regional mechanisms available for their protection and promotion;

 

§        Explore the “new dimension” of ESCR in the changing political, economic and social scenario;

 

§        Provide a forum for national institutions to meet and exchange best practices on ESCR including the best ways to implement them.

 

Twenty four National Institutions from countries in Americas, Africa, Europe and Asia-Pacific participated in the Round Table. A declaration called the ‘New Delhi Declaration’ was adopted by the delegates at the conclusion of the Round table. A copy of the proceedings of Round Table have been provided to you today to give an insight, not only on the wide deliberations that took place but also on the acknowledgement world wide of the importance of ESCR in the ultimate goal of full realization of human rights of all.

 

The Commission also organized a National Conference on “Effects of Corruption on Good Governance and Human Rights” on 9th May, 2006.  The conference was aimed at generating a debate to redefine corruption as a violation of human rights rather than treating it only as a crime or legal issue.  It was organised in fulfillment of the mandate of Section 12(e) of the Protection of Human Rights Act, 1993, viz., to review factors which inhibit the enjoyment of human rights.  In the view of the Commission, corruption inhibits enjoyment of human rights.  It has become all pervasive and is eating into the vitals of the society.  It directly contributes to inequalities in income, status and opportunities.  It remains one of the biggest threats to ‘full human development’ and ‘human rights for all’.  It undermines the rule of law.  It distorts the development process and also poses a grave threat to human security.  It has spread its tentacles to every sphere of national life.  It is one of the biggest threats to development.  It can tear the very fabric of the society and, in fact, it is doing so.  Corruption benefits the rich and the well-to-do.  It enriches the rich and disproportionally affects the poor, unprotected and the under privileged and thereby it deepens their deprivation.  Unless it is checked, the governments and people will have to pay a very heavy price in the consequent result of lower incomes, lower investments and lower developments resulting in volatile economic swings.  The conference was inaugurated by the President of India, Dr.A.P.J. Abdul Kalam and the valedictory address was given by the Hon’ble Chief Justice of India, Shri Y.K. Sabharwal.  It was very well attended and the papers presented were of a very high quality.  It was a very successful conference.  A number of State Human Rights Commissions participated and made useful contributions.  The recommendations of the Commission on the basis of the discussions held are being finalized and shall be forwarded to all concerned.

 

Another development of significance is the amendment to the Protection of Human Rights Act, 1993 which has been passed by both the Houses of Parliament and is now awaiting the assent of the President.  During our earlier meetings we had emphasized about the need to amend the Act in terms of the suggestions made by Justice Ahmadi Committee.  In the Amendment Bill, as passed by both the Houses of Parliament, unfortunately all the amendments which had been proposed by the Commission, based on the Report of Justice Ahmadi Committee have found no place.  Some of the proposed amendments have, ofcourse, been incorporated.  One of the amendments in the Bill would have a direct impact on the operational work-load on the working of the State Human Rights Commissions after the Amendment Act is notified, i.e., provision contained in section 13 of the Act.  It relates to the transfer of any complaint filed or pending before the NHRC to the State Human Rights Commission of the State from which the complaint arises, for disposal in accordance with the provisions of the Act.  The impact of the above is obvious.  There can, undoubtedly, be an increase in the number of complaints to be dealt with by the State Commissions.  It is, therefore, imperative that every State Government acts with promptness and decisiveness in improving the infrastructure and staff complement of the SHRCs so that every SHRC is in a position to deal with the complaints effectively.  I am sure all SHRCs will work out the increased workload and put up suitable proposals to their respective State Governments.  During our deliberations we shall be considering the broader impact of the Bill.

 

I have highlighted only some of the important developments which have taken place during the past year.  There are many issues which we shall discuss during this meeting – some proposed by State Human Rights Commission and some which are otherwise of great common concern.

 

I would like to conclude on a personal note.  This is, in a way, a ‘Good Bye’ meeting so far as I am concerned in my capacity as Chairperson, NHRC.  I wish to place on record my deep appreciation of the consideration shown by each one of you to me.  I have enjoyed working with you.  I take your leave with a certain amount of satisfaction of having started the process of mutual cooperation through these interactive annual meetings.  I wish you all good luck and God speed in your efforts to better protect human rights of the citizens.

 Thank You.

 

Speech of Dr. Justice Shivaraj V. Patil, Member, NHRC at the 11th Annual Meeting of Asia Pacific Forum of National Institutes at Suva, Fiji.

            The National Human Rights Commission of India was set up on 12th October, 1993 under a Parliamentary enactment, namely, The Protection of Human Rights Act, 1993 in conformity with `Paris Principles’.  The Commission is an autonomous institution both functionally and financially with a wide mandate for better protection of Human Rights of the people of the country.

             Dr. Justice A.S. Anand as Chairperson and Dr. Justice Shivaraj V. Patil, Justice Bhaskar Rao, Shri R.S. Kalha and Shri P.C. Sharma as Members of the Commission continued to serve.

             During the year 2005-06, the Commission received 74,444 complaints.  Against this, the Commission disposed of 80,923 complaints which included complaints carried forward from earlier years. In the first year of the establishment, the Commission received 496 complaints complaining violation of the Human Rights.    The enormous increase in the number of complaints indicates the awareness of Human Rights among the people and the confidence the people have in the Commission.

             On an average 93% of recommendations made by the Commission are accepted/ implemented by the Central / State Governments as the case may be. 

             As reported earlier, at the 10th Annual Meeting of the APF Forum at Mongolia, next of the kin of  each of the 109 deceased persons were given monetary relief @ Rs. 2.5 lakhs in Punjab Mass Cremation case.  During the year under report, the monetary relief at the same rate was given to the next of the kin of the deceased in 85 cases  amounting to Rs. 2,12,50,000/-.    This was the case remitted by Supreme Court to the Commission. 

             The Commission deeply concerned with better protection of Human Rights continued its work on issues like terrorism and insurgency, torture, custodial death, prison reforms, rights of disabled, health, rights of mentally challenged, food security, education, rights of minorities, Scheduled Castes and Scheduled Tribes and internally displaced persons, etc.

            On 11.11.1997, the Supreme Court entrusted to the Commission the responsibility of overseeing the functioning of three mental institutions.  The Commission has been continuing its work through the Special Rapporteur.  Due to continuous efforts of the Commission, during the year 2005-06 there has been a significant progress.   It is heartening to note that more than 90% of the admissions are voluntary admissions in these hospitals consistent with the provisions of the U.N. Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care (1999).  There has been an overall shift from custodial care to treatment and rehabilitation.  Cell admissions have been totally stopped and close wards are being progressively converted into open wards.

            Since December, 1996, the Commission has been dealing with complaints alleging starvation deaths in Koraput, Bolangir and Kalahandi (KBK) districts of Orissa.  The issue was also raised in writ petition in Supreme Court.  On learning that the Commission had taken cognizance of the matter, the Supreme Court allowed the Commission to deal with the matter and empowered it to issue enforceable recommendations and directions.  The Commission after hearing the parties formulated a practical programme covering rural water supply schemes, public health care, social security schemes, water and soil conservation measures and rural development schemes.  Much progress has been made in this regard due to monitoring of the programme.  Shri Chaman Lal, Special Repporteur, after visiting the area has presented recently an encouraging picture of execution of theses schemes which was considered in the proceedings of the Commission dated 18.7.2006.

            These remitted cases by the Supreme Court to the Commission and the Commissions proceedings clearly indicate the complementary and cooperative role of the judiciary and the Commission in serving the cause of Human Rights.

Economic, Social and Cultural Rights

            There exist massive inequalities particularly in the developing countries which render the enjoyment of Human Rights illusory.  Clearly realizing that political freedom would not be purposeful for the teaming millions of people who suffer from poverty and social evils unless economic, social  and cultural rights are assured to them, the Commission, during the year 2005-06 has made intense and serious efforts towards realization of economic social and cultural rights.

            In the Constitution of India, Part-III and Part-IV deal with Fundamental Rights and Directive Principles of State Policy.  Part III relates to civil and political rights, Part IV talks of economic, social and cultural rights.  Austin aptly stated that both “Fundamental Rights and Directive Principles” constitute conscience of the Constitution.  The concept of socio and economic justice embodied in the form of Directive Principles is the most dynamic, flexible and revolutionary aimed at removing inequalities among the citizens.

 The Supreme Court of India dealing with number of cases under Article 21 of the Constitution of India as to life and liberty has delivered several landmark judgments meaningfully expanding  the concept of “Right to Life” to mean right to live with human dignity and all that goes with it.

 International Round Table on National Institutions Implementing Economic, Social and Cultural Rights 

 The Commission in collaboration with the Office of the United Nations High Commissioner for Human Rights (OHCHR) organized a three-day International Round Table on National Institutions Implementing Economic, Social and Cultural Rights at New Delhi from 29th November to 1st December, 2005 mainly to discuss and strengthen the role and capacity of National Institutions in protecting and promoting economic, social and cultural rights (ESCR). 

 Twenty-four National Institutions from countries in America, Africa, Europe and Asia-Pacific participated in the Round Table.  A declaration called the `New Delhi Declaration’ was adopted by the delegates at the conclusion of the Round Table.

 Rights of Disabled

  Clearly bearing in mind that the persons with disabilities are equally entitled to a full range of Human Rights like any other section of people, the Commission has been making efforts to create awareness at all levels of training for the administrators and other professionals.  The Commission has advised Government of India and the State Governments to introduce disability components in all their training initiatives and in their development plans. 

 The Indian Commission has been privileged to be involved, through its Special Rapporteur on disability related issues, in the role assigned to National Institutions in the drafting of the international Convention on Disability which has made substantial progress.  In June, 2006 the Commission facilitated a discussion between the Special Rapporteur and a delegation from the Irish Commission as a prelude to the next meeting of the Ad-Hoc Committee which is scheduled to meet in August, 2006.

 Terrorism

 It is unfortunate that millions of innocent people all over the world have been helpless victims of mindless and inhuman violence perpetrated by the various terrorist groups in recent years.  Violating Human Rights by terrorist groups are a serious and major concern for the world community.  The current century has begun with the emergence of international networks of terror directly targeting democratic and peace-loving States.  Our Prime Minister Dr. Manmohan Singh in his address at the 59th Session of the U.N. General Assembly on 23rd September, 2004 observed:-

“Terrorism exploits the technologies spawned by globalisation, recruits its foot soldiers on ideologies of bigotry and hatred, and directly targets democracies.  And yet it is a sad reality that international networks of terror appear to cooperate more effectively than the democratic nations that they target.”

            The Commission has always stood firm in its belief that the twin concepts of individual and national security are mutually compatible and attainable and not contradictory as the lay person often erroneously believes.  At the same time, the Commission believes that terrorism has to be dealt with firmly and decisively.  The recent killing of hundreds of innocents in Mumbai Train Blasts on 11.7.2006 can never be condoned.  It has been heartening that the world has been quick and emphatic to condemn these acts of terrorism faced by India.

 National Action Plan for Human Rights

 The Commission has taken up the task of preparing the National Action Plan. The Commission constituted a Working Group and an Advisory Committee including representatives of various departments of the Government, NGOs and eminent lawyers to prepare a National Action Plan for Human Rights. The Working Group decided to focus on the following areas which would require a continuous dialogue and discussion before taking an appropriate shape for its documentation in the body of National Action Plan for Human Rights: Human rights education; Criminal justice system - encompassing police , prosecution court etc; Rights of vulnerable (women, children, bonded labour, dalits, elderly, tribals, minorities, disabled etc.); Right to food, water, health and environment; Right to social security  Globalization and human rights.

 The Working Group has recently decided to prepare draft chapters of the proposed National Action Plan for Human Rights and these chapters will be extensively discussed with the concerned ministries/departments of the Government of India before they are finalized.

 Prevention and Combating of Child Marriage

  In order to curb the practice of child marriage, the Commission recommended to the Central Government (Ministry of Women & Child Development) a number of amendments to the Child Marriage Restraint Act, 1929.  In pursuance of these recommendations, the Central Government introduced a Bill entitled the Prevention of Child Marriage Bill, 2004 in the Rajya Sabha (Council of States) on 20.12.2004 incorporating almost all the recommendations of the Commission.

 The Commission, however, has continuously been emphasizing on the need for public awareness to end this evil practice of child marriage. The Chairperson of the Commission has written on 17.3.2005 to the concerned Ministries/Departments in the Central Government and all the State Governments and Union Territories to organise mass-scale awareness programmes/campaigns, in association with the field level implementing agencies so as to educate and sensitise people about the demerits of child marriage.   

 International Conventions and Treaties

 A )       Optional Protocols to the Convention on the Rights of the Child

        The Commission’s persistent efforts yielded dividends with the  Government of India ratifying,  both, the Optional Protocols. Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict was ratified on 30th November 2005 with the following Declaration:-

 “Pursuant to article 3(2) of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the Government of the Republic of India declare that: 

 (i)         The minimum age for recruitment of prospective recruits into Armed Forces of India (Army, Air Force and Navy) is 16 years. After enrollment and requisite training period, the attested Armed Forces personnel is sent to the operational area only after he attains 18 years of age;

 (ii)    The recruitment into the Armed Forces of India is purely voluntary and conducted through open rally system/open competitive examinations. There is no forced or coerced recruitment into the Armed Forces”.

 The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography was ratified by the Government of India on 16 August 2005.

 B)        Convention Against Torture

 The Commission has been requesting the Government of India to ratify the Convention against Torture and other Cruel, Inhuman Or Degrading  Treatment Of  Punishment 1984, which was signed by India on 14 October 1997 on the recommendation of the Commission. The Commission has been urging early ratification of the Convention against Torture and other Cruel, Inhuman or Degrading  Treatment Of  Punishment 1984.  The Government has now drafted a Bill to ratify the Convention Against Torture. The Ministry of Home Affairs has requested the Commission to send the comments on the draft Bill. The Commission has responded on  14.7.2006 to the Government and is hopeful that the Convention Against Torture  will be ratified in near future.

 Spread of Human Rights Awareness

             Creating Human Rights awareness is considered important and useful for better protection and promotion of Human Rights.  With this in view, the Commission has organized/supported several workshops, training programmes and seminars for sensitizing the stakeholders on Human Rights issues consisting of   academicians, activists, NGOs, civil servants, etc. In the year 2005-06, twenty-five training programmes were conducted addressing problems of human rights and prevention of atrocities against the weaker sections, legal literacy for the women, mental health education, combating trafficking in women and children, child rights, are a few to mention.  As the country is vast, the Commission has tried to reach all the regions of the country.

 Corruption being one of the key violators of human rights, a two-day National Conference on “Effects of Corruption on Good Governance and Human Rights” was organised in the month of May 2006.  The main objective of the Conference was to explore the factors responsible for precipitating corruption in India as well as ponder over strategies that could contain the problem of corruption in the country.

This Conference was inaugurated by President of India and the concluding address was delivered by the Chief Justice of India. 

 The Indian Army also organized sensitization workshop on Human Rights at Kargil on 22.5.2005 and Leh on 15.4.2005 which were chaired by Member Dr. Justice Shivaraj V. Patil and Member Shri P.C. Sharma respectively.

             The Commission conducted summer internship programmes from 15.5.2006 to 14.6.2006 to create awareness in Human Rights among the students of various law colleges and universities.

             The Commission published / encouraged to publish the following books for creating awareness in Human Rights during the year 2005-2006:-

 1)         “Know Your Rights” Series (Booklets)

2)         Disability Manual – Human Rights Disability and Law

3)                 Report of the Proceedings of the International Round Table on National Institutions implementing Economic, Social and Cultural Rights

 4)         From Bondage to Freedom : An Analysis of International Legal Regime on Human Trafficking

 5)         Hand Book on Human Rights for Judicial Officers

6)         Handbook on Employment of Persons with Disabilities in Government of India

 Trafficking in Women and Children

 The Commission had conducted an Action Research on Trafficking to know the trends, dimensions, factors and responses related to trafficking in women and children in India.  It had also organised a National Workshop on 27th & 28th February, 2004 to Review the Implementation of Laws and Policies Related to Trafficking: Towards an Effective Rescue and Post-Rescue Strategy. In order to ensure implementation of the recommendations made in the Action Research as well as the National Workshop in true spirit, the Commission formulated a Plan of Action to Prevent and End Trafficking in Women and Children in India and has disseminated the same on 18th July, 2006  to all concerned for necessary action.

 Juvenile Justice in India

 Poor implementation of the Juvenile Justice (Care and Protection of Children) Act, 2000 by the States and Union Territories, necessitated the Commission to review the status of implementation of the Act all over the country.  For this purpose, the Commission is collecting information from all the State Governments and Union Territories.  The Commission has also undertaken a research study on the subject.  The study is on the verge of completion.

 Exchanges and other Interactions

            A number of dignitaries concerned with Human Rights and of the National Institutes from different countries visited the Commission and  there was sharing of experiences.

 Abolition of Manual Scavenging

             The Commission has been vigorously pursuing the need to end the degrading practice of manual scavenging in the country.

             The Commission has held a number of meetings with the State Governments.  The last such meeting was held on 25th February, 2006 on Eradication of Manual Scavenging with the representatives of the Central and State Governments and other stakeholders.  On the basis of detailed deliberations follow up action is being taken.

             Pursuant to the efforts of the Commission, the Prime Minister made an   announcement for abolition of manual scavenging.  The Planning Commission accordingly formulated a National Action Plan for Total Eradication of Manual Scavenging by the end of 2007.

 Financial Contribution to the APF

 The Commission has remitted an amount of US $ 100,000 as its contribution to the Asia Pacific Forum during the year 2005-06

 Right to Health

             Emergency Medical Services

            The Commission has been concerned with the prevailing unsatisfactory system of emergency medical care in the country, which results in the loss of many lives.  To look into this issue, the Commission constituted an Expert Group headed by an eminent medical specialist.  The report of the Group revealed the lacunae which exist in the present system and made a number of recommendations for implementation, in the short term as well in the long term.  These include enunciation of a National Accident Policy, establishment of Centralized Accident and Trauma Services in all Districts of all States / Union Territories etc.  These recommendations were sent to the Government for taking necessary action  on  12th May, 2004.

 In addition, a National Action Plan to operationalise the Right to Health Care was proposed.  The objectives of the National Action Plan include : explicit recognition of the Right to Health Care; delineation of essential health services and supplies; legal enshrinement of the Right to Health Care;  initiation of mechanisms for joint monitoring etc.  The recommendations of Regional Public Hearing and National action Plan were communicated to the Government in March, 2005.

 Right to Food

 The NHRC has consistently maintained that right to food is inherent to living a life with dignity.  It has also expressed that right to food includes nutrition at an appropriate level.  To deliberate on the food situation in the country as well as ways and means to make the right to food a reality to the common man, the Commission reconstituted its Core Group on Right to Food and met on 13 January 2006.  The Group dwelled on issues relating to food security, monitoring of existing schemes and reforms in Public Distribution System, starvation deaths/suicides including the State’s response to these occurrences, need for up-gradation of scientific and technological measures in the country and the spreading of awareness among the masses that all of them were entitled to get two square meals.

 Health Awareness Week for the Older Persons

 A health awareness week for the elderly was organised by the Commission along with an NGO working for the older persons from 20-24 March 2006 in New Delhi.  The weeklong initiative was an attempt to address the crucial needs of the elderly that are not fully understood by them and their caregivers and to spread awareness of diseases that affect the elderly.

 Visit to Prisons and Mental Hospitals/Institutions

             The Chairman and Members of the Commission have been visiting prisons and mental hospitals/institutions from time to time with a view to seeing the prevailing conditions therein and to make recommendations for improving them and for providing necessary facilities.

 Best Bakery Case

          On 27.2.2002, some of the compartments of the Sabarmati Express Train were set on fire by a mob.  Fifty-eight persons were burnt alive and more than 40 passengers received injuries.             The Commission took suo motu cognizance of the news report and approached the Supreme Court as reported at the 10th Annual Meeting of the APF.

             The Supreme Court directed retrial of the case in Mumbai i.e. outside the State of Gujarat. The victims of the Best Bakery Case finally got justice by the Mumbai trial court on 21.2.2006 when the Court convicted and awarded life imprisonment to 9 out of 17 accused.  The court also issued show cause notice to all the witnesses, including Zaheera Shaikh, who had turned hostile asking them to show cause why they should not be prosecuted for perjury.

 

 

Honda Motor Cycle and Scooters Workers case

 

On 25.7.2005 the police brutally assaulted the agitating workers of Honda Motor Cycle and Scooters  India at Gurgaon.  The Commission took suo motu cognizance of the news item and recommended to the Government of Haryana to take effective steps for getting an independent enquiry preferably by CBI. 

           

            In response the State Government of Haryana informed (1) that certain cases have been registered at the Police Station against the workers and (2) the State Government had sanctioned payment of Rs. 20,000/- to each of the persons injured in the incident.  The matter is under investigation.

 

Conclusion

 

These are turbulent times in many parts of the world. It becomes apparent that in many ways the world has become complicated, to say the least. The destinies and interests of nations and its peoples have become interlinked to such an extent that invariably the actions of one have adversely affected the other, leading to strife and suffering. In all such tragic situations, it has been the common people, men, women and children who have their rights violated. Martin Luthar King said – “Injustice anywhere is threat to justice everywhere.” This is the greatest challenge which all of us are faced with. In the constant endeavour for  a better future, nations and its people should always respect the human rights of the people who could be affected in the process. But experience has shown that more often this is not so. The result is that innocent people all over the world, irrespective of their colour, religion and creed have suffered devastatingly.

 

The existence of the national institutions has  to be seen in the above context. Every nation/State has its own priorities and goals. However, there can be minimum standards which can rightfully be expected to be fulfilled by all to meet their international obligations and the larger world order. The ‘Paris Principles’, adopted by the General Assembly is the edifice on which national institutions have to be set up. National institutions set up on  the basis of these principles survive. A free and fully autonomous national institution, is the best guarantor for  the protection  of human rights within the country and  the National Human Rights Commission of India is fully conscious of the same.

******

 

Intervention on behalf of the National Human Rights Commission of India on “Right to Development” at First Session of the United Nations Human Rights Council by Dr. Justice A.S. Anand, Chairperson, National Human Rights Commission of India on 27th June 2006 at Geneva

 Mr. President,

I speak on behalf of the National Human Rights Commission of India in my capacity as its Chairperson.  May I thank you for giving me the floor at the first session of the Human Rights Council, from which, the world community has high expectations.

 Mr. President,

Human dignity is the spine of human rights.  Human dignity is infact the very foundation on which Human Rights rest. Emphasis on human dignity is enshrined in the UN Charter, the Universal Declaration of Human Rights and several covenants as also in the Constitution of India, which proclaims “dignity of individual” as a core value in its Preamble.  Human dignity is, by its nature, indivisible and, therefore, violation of one human right cannot be compensated by enhancement of another.  The aim of human rights is empowerment of people through human development. Human rights are inter-dependent and inter-related and have a direct relationship with human development.  Universality of human rights demand eradication of global inequities and to achieve this end the importance of “Right to Development” cannot, but, be emphasized. 

 Human development has come to be accepted as an enhancement of capabilities, widening of choices and an expansion of freedoms. On the recognition of Human Development Index as a new measure of development, the Human Development Reports of the past decade have emphasized the integration of human rights with human development as a true measure of progress.

 It is important to appreciate that development, which has to be equitable, cannot brook any discrimination in the sharing of the benefits and in the activities producing the benefits between different people irrespective of gender or caste, religion or geographical boundaries.  The wide global disparities in different parts of the world are shown to be linked with varying level of human development.  Global disparities must be minimized to ensure that the minimum needs of everyone throughout the world are met. Strategies must be developed to achieve this result.  It is only when the potential of all human beings is fully realized that we can talk of true human development.  Empowerment of the people through human development is the aim of human rights.

 Poverty is the biggest violator of human rights.  Its eradication is vital for development.  Poverty should not be treated as merely a developmental project. The agenda must include provisions of all such basic amenities like health care, safe drinking water, adequate nutrition, educational facilities, etc. Prof. Amartya Sen, in his Development as Freedom claims that “poverty must be seen as deprivation of basic capabilities rather than merely as low incomes, which is the standard criterion of poverty. Poverty can be traced to inadequacies and inequalities in the distribution of opportunities – economic, social, cultural and political - between women and men, across regions, within communities and between rural and urban areas.  Poverty has to be eradicated through the process of human development. 

 For a programme of eradication of poverty, one has to look at a number of indices together, and a right to development approach would imply considering improvement in each of the indices through schemes that have to be implemented following the rights approach where the beneficiaries are empowered to participate in the decision making and executing the different schemes, transparently and accountably, and sharing the benefits equitably. 

 Statistics provided by The Human Development Reports demonstrate that there exist massive inequalities, more particularly in the developing countries, which render the enjoyment of human rights rather illusory. Political freedom would not have much significance or meaning for millions of poverty stricken people in various countries who suffer the social evils flowing from poverty, unless economic, social and cultural rights are assured to them. 

 The linkage between the realization of ESCR and the development debate cannot be underscored. Similarly, the linkage between good governance and human rights cannot be denied. Essentially, we are talking of a situation where none of these above factors can be tackled in isolation without concurrently addressing the other issues as well. The Indian Commission has taken the view that the Right to Development is inherent to a life with dignity under Article 21 of the Constitution which is an enforceable right. Recognizing the importance of the ESCR, the OHCHR and the Indian Commission had organized a Round Table on Economic, Social and Cultural Rights in New Delhi in November- December 2005.

 One other important factor having a bearing on the development debate is the issue of corruption as a violator of human rights. Good governance is not possible unless it is free from corruption. To bring the issue of corruption to the forefront, the NHRC, India recently organized a conference on the “Impact of corruption on good governance and human rights”. The idea behind the conference was to highlight the importance of tackling this issue as it is seen to be one of the biggest drains on the resources of a country. No country can afford to close its eyes to this malaise.

 These are deeply troubled times in which we live.  Everywhere the pervasive threat of terrorism has cast a pall on efforts to promote and protect human rights, for terrorism is deeply hostile to human rights, including the most fundamental of all rights, the right to life itself.  Terrorism hinders development and thereby affects human rights. The Indian Commission has consistently held the view that the actions which any State takes to fight and triumph over this evil must themselves fall within the parameters of the Rule of Law and conform to the high standards that we have set for ourselves – in our Constitutions, our laws, and in the great human rights treaties adopted since the founding of the United Nations.  The Indian Commission firmly believes that there can be no selective approach while dealing with terrorism and there has to be a united and concerted effort to fight the menace, without chilling the civil liberties of the citizens.

 With the formation of the Human Rights Council, we need to address the imbalances that exist and which threaten the values and, thus, cause inequalities.  It would  be in the fitness of things that we aim at ensuring distributive justice in the national as well as the global context.  To achieve that, there has to be a paradigm shift from Human Development as seen merely in terms of economic growth, to Human Development as a basic human right.  Human Rights Council needs to move towards bringing the Rights perspective on the centre stage in the debate over equality of opportunities.

 The universality of human rights with focus on human dignity and concern for accountability, makes them uniquely appropriate for re-shaping development, cooperation, fostering good governance and combating discrimination, disease and despair with the ultimate aim of reaching the goal of achieving “human rights for all”.

Thank you.

 Welcome Address by Dr. Justice A.S.Anand, Chairperson, NHRC at National Conference on “Effects of Corruption on Good Governance and Human Rights ” held in New Delhi on 9th May 2006.

Hon’ble the President of India, Dr. A.P.J. Abdul Kalam, Hon’ble the Union Home Minister Shri Shivraj Patil, distinguished speakers at the Conference and other dignitaries present here this afternoon, ladies and gentlemen.

On behalf of my esteemed colleagues, Justice Shivraj Patil, Justice Y. Bhaskar Rao, Shri R.S. Kalha, Shri P.C. Sharma, officers and staff of the National Human Rights Commission and on my own behalf, it is my great privilege to extend to you all a cordial welcome.

To respected Rashtrapati ji, I accord a very special welcome and express our gratitude to him for kindly consenting to inaugurate this Conference on “Effects of Corruption on Good Governance and Human Rights”. Sir we sincerely appreciate your taking time off your very busy schedule to be with us this afternoon. We are indeed beholden to you.

I accord a very warm welcome to the Union Home Minister, Shri Shivraj Patil and thank him for readily agreeing to be in our midst this afternoon.

The National Human Rights Commission was set-up under the Protection of Human Rights Act, 1993. Some of the functions of the Commission have been catalogued in Section 12 of the Act. Section 12(e) of the Act provides that the Commission may review the factors which inhibit the enjoyment of human rights and make appropriate recommendations. This Conference is being organized in furtherance of that mandate. It is the considered view of the Commission, that unless the State makes human rights as the focal point, good governance would remain a distant dream. The Commission is also of the view that corruption is a potent violator of human rights, particularly the Economic and Social Rights of individuals as well as those of the state. It not only undermines development and growth, it also inhibits efforts aimed at poverty eradication, socio-economic transformation and creation of an egalitarian society in accordance with the Directive Principles of the State Policy.

Today, the 9th of May, 2006, is a significant day for National Human Rights Institutions globally. While we are meeting here for the conference, elections are taking place for the membership of the 47 member U.N. Human Rights Council, which will replace the existing U.N. Commission for Human Rights. India is one of the countries which has declared its candidature for the elections and we wish it all the best. That this conference is being held today is not by design but by coincidence and let us hope that it augurs well for the future.

On 26th of November, 1949, Founding Fathers accomplished the challenging task of framing a Constitution for free India. WE THE PEOPLE OF INDIA resolved to give to ourselves the Constitution aimed at securing for all its citizens – Justice, social, economic and political; Equality of status and opportunity, besides Liberty of thought, expression, belief, faith and worship and Fraternity. The Founding Fathers were conscious of the need to provide for real freedom for each of its citizens. Civil and Political Rights were, therefore, incorporated in the Constitution as Fundamental Rights in Part-III and made enforceable. The rationale underlying these Rights being that human rights flow from the common humanity and inherent dignity of every human being irrespective of race, religion, caste, colour, sex or status and these inhere in all human beings by reason of his/her birth as a member of the human family. These rights are not negotiable and no compromise with their violation is permissible.
In part IV of the Constitution, with the aim of creating a welfare State, Economic, Social and Cultural Rights were enshrined as Directive Principles of the State Policy. Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee, while explaining the nature of Directive Principles, opined that they would be the guiding principles of governance. The inter-dependence of both sets of rights is essential for full development of human personality. However, the Governments at the Centre and the States, as statistics tell us, never whole-heartedly pursued the implementation of Directive Principles. Governments have so far contented themselves by chalking out only strategies for promotion of economic and social rights. Even those strategies have hardly borne any fruits because of rampant corruption in implementing the same. Millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education. According to UNDP Report of 2003, Indian society is a highly inequitable society where the richest 10% consume 33.5% of resources and the poorest 10% get only 3.5% of resource. Around 233 million people are chronically hungry. Official figures state that in our country 26% people are living Below Poverty Line.
Realising that Fundamental Right to live with dignity was not possible without proper realization of economic and social rights, the judiciary stepped in to narrow the distinction between civil and political rights on the one hand and economic and social rights on the other. The Supreme Court of India has interpreted that the right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter. It has also held that the ‘right to life’ must include the right to health for enjoyment of the human life with dignity.
The Twenty-first century, started with two important events emanating from the Declaration adopted by 189 countries at the United Nations Millennium Summit on 8th September, 2000: (i) the new initiatives by poor and rich nations in fulfilling a long unfinished agenda of “full human development” and “human rights for all”; and (ii) the Millennium Development Goals. The UN Millennium Development Goals are in a way value based resolves among nations to end human poverty, promote human dignity and equality, and to take steps in furtherance of the attack on inadequate incomes, widespread hunger, gender inequality, environmental deterioration and lack of education, health care and clean water, towards the convergence of human development and human rights in action. Corruption inhibits enjoyment of human rights. It has become all pervasive and is eating into the vitals of the society. It directly contributes to inequalities in income, status and opportunities. It remains one of the biggest threats to ‘full human development’ and ‘human rights for all’. It undermines the rule of law. It distorts the development process and also poses a grave threat to human security. Corruption is not a new phenomenon. What is new and worrying is the magnitude and size of corruption. It has spread its tentacles to every sphere of national life. It is one of the biggest threats to development. It can tear the very fabric of the society and, infact, it is doing so. Corruption benefits the rich and the well-to-do. It enriches the rich and disproportionally affects the poor, unprotected and the underprivileged and thereby it deepens their deprivation. Unless it is checked, the governments and people will have to pay a very heavy price in the consequent result of lower incomes, lower investments and lower developments resulting in volatile economic swings. It is high time that we appreciate an urgent need to combat the deadly menace which poses a threat to the democratic fabric of our nation. It is unfortunate, but true, that growing politicization of public services and criminalization of politics have contributed in no small measure to let corruption flourish and the corrupt not only go scot-free but even earn a position of false respectability!
We have cried ourselves hoarse about the persistent evil effects of corruption and talked about it, yet it flourishes with impunity. The need of the hour is to bring about a change in our political morality and society’s sense of values. We need to ensure that certain basic values like integrity and honesty are inculcated in our education system itself. What is more unfortunate, today is the growing tolerance and our acceptance of corruption as an inevitable and integral part of the civil society. Unless an alert and active citizenry adopts zero-tolerance to corruption and shuns the corrupt, it may not be possible to meet the challenge with any amount of sincerity – remedy, therefore, to a large extent, lies with us – WE THE PEOPLE.
Internationally, the world community has been concerned about the growing phenomenon of corruption. With a view to launch a global war against it, United Nations’ Convention against Corruption, adopted by the General Assembly on October 31, 2003, came into force on 14th December, 2005 with the 30th ratification of the instrument. The instrument, after its adoption in 2003, was open for signatures till December 9, 2005. India was perhaps one of the last member States to sign it, though ratification is yet to be announced. This Convention deals with crucial aspects of corruption. It is a significant step towards meeting the challenge of corruption. Let India not delay joining the global war.
At this Conference, we shall have an opportunity of listening to many distinguished speakers, who would be dealing with different aspects of corruption and its specific effect on good governance and human rights. We do hope that a free and frank discussion at the Conference will enable us to make suggestions for reforming the governance mechanisms and thereby protect and promote human rights of the citizens. It shall be the endeavour of the National Human Rights Commission to make recommendations based on the outcome of the discussions at the Conference so that all stake-holders are able to meet the lethal challenge of corruption, which not only violates human rights but also derails good governance. To have corruption free governance is a basic human right and the need to recognize it as such and to take steps to eradicate it, is the need of the hour.
Ladies and Gentlemen, I once again welcome you all this afternoon and request you to join with me in invoking the blessings of the Almighty for the success of our efforts.
Thank you.
 

 Inaugural address by Dr. Justice A.S.Anand, Chairperson, NHRC at National Seminar on “Human Rights: Policy issues for India” organized by Indian Institute of Advanced Study, Shimla in collaboration with NHRC held in New Delhi on 29 March 2006.


Dr. Mungekar, Chairpersons of State Human Rights Commissions, Dr. Sibal and friends,
It is with great pleasure that I participate in this Seminar. Before I say a few words about the theme of today’s Seminar, which is being jointly organized by the National Human Rights Commission and Indian Institute of Advanced Studies, Shimla, I want to express my immense satisfaction about this joint initiative between academics or if you permit me to say theoreticians and the practitioners, because before any corrective endeavor, it is extremely important that there is debate and deliberation, with critical and rational examination of concerns and interests so as to provide a sound foundation for subsequent action. Knee-jerk reactions, propagandists’ stances, vested interests and the loudest wail of the most vocal might do more harm than good. The loudest cry may not always come from the most wronged.
Intellectuals and academics are by the rigour of their analytical training attuned to take a non-partisan view aiding rationality and just action. I may go even a step further and say that intellectuals have the courage and conviction of their thesis, which can become a very important input in policy formulation. The detached assessment of scholars has the backing of their perspective, of sound underlying principles juxtaposed against practical situations. It is all the more important because we have met in this seminar to take cognizance of Policy Issues in tackling Human Rights problems.
In the history of mankind, in a study of civil societies the one constant that prevails is human suffering in its myriad manifestations. The histories of nations, the shaping of the destinies of the peoples of the world, the stirring of the social consciousness, the agonized reverberations in creative literature, in social pronouncements and in simple revolt and rebellion at an individual level has always been the outcome of a perception of some violation, of injustice, of suffering and of a sadness born from the consciousness of the human condition. Political and territorial disputes as well as social revolutions have mostly been driven by horrors of human suffering. That is the only constant. Conflicts arise because of feelings of deprivation, outrage and a compromise of human dignity.
The Universal Declaration of Human Rights adopted by General Assembly on 10th December 1948, was not presented as a Treaty for ratification which would be binding upon the signatory nations but as a “statement of goals and aspirations” common for all nations. Virtually all States shielded behind Article 2(7) of the U.N. Charter in arguing that human rights were matters of the concerned State. This view, today, mercifully, receives very little credence from the international community, which accepts universality of human rights. Unfortunately, however, the only thing that can be said to be the common “achievement” appears to be the widespread violation of Human Rights almost daily everywhere – no country appears to be an exception. The Universal Declaration of Human Rights was followed by two Covenants – International Convention on Economic, Social and Cultural Rights (ICESCR) and International Convention on Civil and Political Rights (ICCPR) in 1966. India signed the International Convention on Economic, Social and Cultural Rights in 1979. However, protection of social, economic and cultural rights as compared to civil and political rights, both at the national and international level, has been poor and irregular. The fallacy lies in treating one set of rights as inferior to the other set of rights. To correct the fallacy, we need to have a definite policy. Both sets of rights must go hand in hand.
Millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education. The State must appreciate the importance of Economic, Social and Cultural Rights and should not content itself by only chalking out strategies for promotion of the same. Lack of sensitivity and absence of honesty of purpose on the part of those responsible for implementation of socio-welfare schemes, contributes in no small measure to frustrate the aspiration of the society. Systemic denial of Economic, Social and Cultural Rights, like right to food, health care, education, etc. for long periods of time, are often caustic factors of conflict and terrorism. They pose a threat not only to human rights but also to peace. When there is widespread neglect of human rights and people are denied hope of better future, it, in a large measure, contributes to the eruption of conflicts within the State and beyond. Where hunger persists, peace cannot prevail. Since the Universal Declaration, many new questions and critical discourses have arisen, for example multiculturalism, feminine rights, sexual harassment at work places, ecological issues etc. It is safe to say that no action can be envisaged which does not throw up encroachment on someone’s rights and ensuing human suffering.

Since the end of World War II and the Universal Declaration of Human Rights, there have been pronounced concerns for the rightless and suffering people. Paradigms shift as social, political, economic and environmental changes occur but the one enduringly disturbing phenomenon, which continues, is human suffering. The catalytic changes vary, the vocabulary evolves and therefore under different provocations the rhetoric undergoes a transformation. But the underlying wiper that gnaws at the desideratum of liberty, equality, fraternity can arise from well-known factors like poverty, disease, physical and economic disabilities, political vendettas, territorial disputes and natural calamities Imperialist wars have given way to terrorism which truly threatens to shatter civilized humanity. Terrorism poses a serious threat to human rights and challenge for liberal democracies.

The menace of terrorism has to be curbed and the war against terrorism has to be fought relentlessly but in doing so, no democratic society can be permitted to chill civil liberties of the citizens. In the fight against terrorism, sensitization level of human rights cannot be allowed to be sacrificed. A terrorist who violates human rights of innocent citizens must be punished but his human rights should not be infringed except in the manner permitted by law. A critical task of striking a fair balance by way of security concerns and human rights is to be performed and need of proportionality must not be ignored. While fighting war against terrorism relentlessly, the State cannot be permitted to be either selective in its approach or to go over board and in effect declare a war on the civil liberties of people because the rationale of anti-terrorism measures is aimed at protecting human rights, democracy and Rule of Law.

The National Human Rights Commission of India is of the firm view that a proper observance of human rights is not a hindrance to the promotion of peace and security. Rather, it is an essential element in any worthwhile strategy to preserve peace and security and to defeat terrorism. The purpose of anti-terrorism measures must therefore be to protect democracy, rule of law and human rights, which are fundamental values of our society and the core values of the Constitution.

Fundamentalism in all its forms and manifestations is yet another subtle forms of terrorism and posses a serious challenge to enjoyment of human rights. Use of terrorist activities for imposing their “so called religious or ideological will” is a serious challenge. While all faithful believe in harmony and brotherhood in religion, it is the misguided fanatics who do not value human life and in the name of religion resort to all types of attacks on human rights. These fanatics contribute to a climate of religious bigotry. The mindless fanaticism defies all tenets of rationality and brings in its wake atrocities that show the naked face of cruelty and exposes humanity to mind-shattering irrational, misplaced fanaticism and the worst possible crime against the rights of innocent, hapless human beings. A violent group whatever its politics, has no right to kill, and no claim to such a right must ever be allowed.

There has, of late, been heightened consciousness about the right of human beings to live with dignity. The whole approach has undergone a change. It has graduated from compassion to rights, from lament to tangible social action, to redressal at Government levels. The universality of human rights, their focus on human dignity and their concern for accountability make them uniquely appropriate for reshaping development cooperation, fostering good governance and combating discrimination, disease and despair to reach the goal of achieving a joint and peaceful world. There is a widening gap between power and ethical standards of behaviour. Over the years, human rights have expanded not only vertically by ensuring their protection and promotion but also horizontally by making Human Rights as the basis for good governance. It is the belief of the National Human Rights Commission that unless human rights are made the focal point by the State, good governance would remain a distant dream and developmental goals, which reflect broad societal aspirations and priorities, would suffer.
The presence of the academics and intellectuals along with other stake holders at this seminar gives me hope that important issues with a view to end inequality and promote human dignity, aiming at convergence of human development and human rights in action, would receive the desired importance. We have ample historical precedence in World History where the conscience of intellectuals revolted against atrocities, against injustice and exploitation. It has been the thinkers and the academicians, the philosophers and social analysts, the scientists, who without an ulterior motive and minus a specific agenda for themselves influenced governments and policy makers to address the ills that brought indignities and suffering to fellow human beings. This provides a sound justification for holding this seminar to discuss various issues concerning human rights.
Since our agenda is policy formulations, it would be in the fitness of things that definite recommendations emerge from discussions during this Seminar that can give us a firm basis to proceed to concrete action. The combined efforts should not become just an intellectual exercise. Free and frank discussions and appreciation of divergent points of view, I am sure, would result in concrete recommendations being made.
Ladies and Gentlemen, I have great pleasure in inaugurating this Seminar and wish its deliberations a great success.
Thank you.
 

Inaugural Address by Dr. Justice A.S.Anand Chairperson, National Human Rights Commission at a Seminar on "Rights of the Victim of Crime and their Effective Rehabilitation" organized by the Swami Sahajanand Saraswati Hithari Samaj at India International Center, on 26th February 2006.

It is with great pleasure that I participate in this function on the Mahashivratri Day which coincides with the Birth Anniversary of Swami Sahajanandji, the great Kisan leader of the last century.

Swami Sahajanand was the first President of All India Kisan Sabha in the year of my birth - 1936. A close associate of Acharya Narendra Deva, he was universally respected and regarded as a selfless leader and a scholar. His interest in creating public awareness on various issues was well known and he wrote as well as spoke about burning national and social issues which were well received by the concerned members of the civil society.

I am very happy that Swami Sahanand Saraswati Hitkari Samaj organizes seminars to generate public awareness of certain burning problems of the society on the occasion of his birth anniversary. These seminars not only help the citizens to focus on a particular issue of the seminar but also help to start a thought process leading to a debate and further action. I am grateful to the President of the Samaj, Shri Tripurari Rai for inviting me to inaugurate the seminar on a very important subject “Rights of the Victims of Crime and their Effective Rehabilitation”. The birth anniversary of Swami Sahajanand is an appropriate occasion for holding a seminar on this burning problem which faces the society.

This seminar is being held just a few day after all the accused in “Jessica Lal Murder Case” stand acquitted by the Trial Court. I would not like to comment upon the merits of that case at this stage but would point out that the acquittal raises many issues of great consequence and relevance like the role of the civil society in punishment for crime – the rights of the victims of crime, i.e., next of kin of the deceased as also the effectiveness of the criminal justice delivery system; protection of witnesses and need for better scientific investigation and effective steps for dealing with witnesses turning hostile today. Some of these issues were raised by the NHRC in the Best Backery case and are pending consideration of the Supreme Court as public interest litigation.

Coming now to the topic of the Seminar: “Rights of the Victims of Crime and Their Effective Rehabilitation”.
Who is a Victim?

The term victim is lacking descriptive precision. It implies more than the mere existence of an injured party, in that innocence or blamelessness is suggested as well as a moral claim to a compassionate response from others. The term victim is defined in Oxford English Dictionary as:
“victim is a person who is put to death or subjected to misfortune by another; one who suffers severely in body or property through cruel or oppressive treatment: one who is destined to suffer under some oppressive or destructive agency: one who perishes or suffers in health etc., from some enterprise or pursuit voluntarily undertaken.”

As per Collins English Dictionary

‘victim’ means a person or thing that suffers harm, death, etc. from another or from some adverse act, circumstance, etc.

According to New Webster’s Dictionary victim means:

“a person destroyed, sacrificed, or injured by another, or by some condition or agency; one who is cheated or duped; a living being sacrificed to some deity, or in the performance of a religious rite”.

In the context of criminal justice system the term victim is defined in Black’s Law Dictionary as:-

“The person who is the object of a crime or tort, as the victim of a robbery is the person robbed”.

The U.N. Declaration on Justice to Victims of Crimes and Victims of Abuse of Power has related the term victim to two distinct categories, namely victims of crimes and victims of abuse of power.

The history of crime is as old as of mankind itself; but in the premative period “ a tooth for a tooth, an eye for an eye and a life for a life”, was the essence of criminal justice in those days. As the civilization developed, new ideas regarding individuals rights and his corresponding duty to his fellow human beings took shape. The crime was no longer considered an offence against the individual only, but a revolt against the norms of an organized society and an attack on the civilization of the day. Soon the state took upon itself the right to identify and punish the offenders. Thus, the Criminal Justice System the world over remained pre-occupied with crime, criminal and punishments. However, by the mid of the last century victims, perspective in crime was being appreciated after the publication of Hans Von Hentigs, Criminal and His Victim (1948) and Wolfgang’s, Patterns of Criminal Homicide (1958). The victim perspective received an emphatic endorsement with the enactment of the U.N. Declaration on Justice to Victims of Crime and Victims of Abuse of Power (1985).

Under our constitution, it is the primary responsibility of the State to maintain law and order so that the citizens can enjoy peace and security. The State discharges the obligation to protect life, liberty and property of the citizens by making suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society. It, therefore, becomes an obligations of the State to identify and apprehend the offender, subject him to a fair trial and if found guilty, to punish him. The right to a fair trial is, thus, a constitutional impertive. Substantive penal laws enacted, prescribe punishment, whenever there is an invasion of those rights of the citizens. Thus, in the prevailing system of criminal justice whenever a crime is reported, it is the State, which get the crime investigated by its agency, move the Court for trial of the offender and prosecute him in the Court of Law.

What is the status of victim under the Criminal Justice System?

The criminal justice system today is basically concerned with criminals, whether it is their conviction, treatment, reformation or rehabilitation. The purpose of criminal justice system appears, at present, to be confined to the simple object of ascertaining guilt or innocence of an accused. The role of the victim of a crime in the present criminal justice system is restricted to that of a witness for the prosecution — even though he or she is a person who has suffered harm — physical, mental, emotional, economical or impairment of his/her fundamental rights. Since, the central object of legal process is to promote and maintain public confidence in the administration of justice, there is an urgent need for giving a well-defined status to the victim of crime under the criminal law. His interest in getting the offender punished cannot be ignored or completely subordinated to the social control by the State.

Neither at the stage of the framing of a charge or passing of an order of discharge, are the views of the victim ascertained, let alone considered. He is not to be consulted during the trial. Even after the case ends up in a conviction, it is the State, which defends the judgment of the trial court in appeal, if any, filed against the conviction and sentence.

It is necessary to give a central role to the victims of crime, as otherwise, the victim will remain discontented and may develop a tendency to take law into his own hands in order to seek revenge and pose a threat to the maintenance of Rule of Law, essential for sustaining a democracy. This challenge was noticed by the Supreme Court in P. Ramachandra Rao Vs. State of Karnataka1, when it expressed its concern for the plight of the victims of crime who, if left without a remedy might “resort to taking revenge by unlawful means resulting in further increase in the crimes and criminals”.

As at present, broadly speaking, there are two systems of dispensation of criminal justice — Adversarial and Inquisitorial. The system, followed in India, for dispensation of Criminal Justice System, is Adversarial System of common law inherited from the British rulers. In this system the accused is presumed to be innocent and the burden of proving his guilt beyond reasonable doubt lies on the prosecution. The accused also enjoys the “right of silence” and he cannot be compelled to answer the queries. In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the Prosecution and the defence before a neutral judge. The judge acts as a referee and decides whether the prosecution has been able to prove the guilt of an accused beyond a reasonable doubt. The system, per-se, appears to be fair and justified, but viewed from the perspective of the victim, it is heavily loaded in favour of the accused and is insensitive to the rights of the victims or their plight because generally the judge in his anxiety to maintain his position of neutrality, fails to take initiative to find out the truth.

The presumption of innocence gives rise to various constitutional and legal rights insofar as an offender is concerned. His right not to be arrested except in accordance with the law; right to be produced before the Magistrate within 24 hours of his arrest; right to know the grounds of his arrest; right to be represented by a counsel; right to legal aid in certain cases; right to bail; right to public trial; right to test the evidence by cross-examining; right to be heard on the question of sentence; immunity from compulsory testimony and so on and so forth. Thus, we find that the rights of an accused have been well-safeguarded in the scheme of criminal justice delivery system but in all those laws there is hardly any reference to the “rights” of victims of crime. After setting the criminal justice mechanism in motion, the victim is reduced to the status of being merely an “informer” — ignoring that he is a major stakeholder in the scheme of justice delivery system since he has suffered at the hands of the offender. There are some “illusory” rights available to the victims of crime, but even those are grossly inadequate. The victim of crime has hardly any role to play in the whole proceedings except that he may, if alive, be examined by the prosecution as a witness. It is strange that in spite of the fact that a victim of crime, who suffers at the hands of the accused and moves the State through the police or the courts to seek justice is given the impression that after having lodged the report or the complaint, he is a “Mr. Nobody”. A victim of crime is, thus, a mute witness to the whole drama. If alive, he may appear as a witness and there again the provisions of Evidence Act of relevancy of facts not withstanding, he is subjected to continual questioning, with the court almost silently watching. The law, today, fails to address the needs of the victims to be treated with dignity, to protection from intimidation, inside or outside the court room. Expressing concern particularly about the treatment of victims of sexual offences in the courts during their cross-examination, in State of Punjab Vs. Gurmit Singh & Ors.2, the Supreme Court observed:

………The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence in the court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the creditability of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.”

An indifference to the rights of the victim of crime is fast eroding the faith of the society in general and the victim of crime in particular in the criminal justice system and this has already given rise to the incidents of crime and lawlessness, in the form of terrorism, raising their ugly head to settle private and political scores over the adversary with a barrel of gun.

Right to bail is regarded as a right of an accused with no corresponding right available to the victim or his heirs to oppose grant of bail. It is left to the State only to oppose or not to oppose the grant of bail. Indeed, Section 439(2) Cr.P.C., as interpreted by the Courts, recognizes the right of the complainant or any “aggrieved” party to move the High Court or the Court of Sessions for cancellation of bail granted to an accused person3 but that is at a subsequent stage. Of course, thanks to the judiciary, no case can be compounded without the participation of the complainant under Section 320 Cr. P.C. nor a closure report be accepted by the Court without hearing the informant.4 The Supreme Court even set aside the order of the trial court allowing the prayer of the state for withdrawing prosecution on a plea of the father of the policeman killed by the forest brigand Veerappan.5 An appeal against an order of acquittal can be preferred by the complainant, but only with the prior leave of the High Court. It is desirable to grant right of appeal to the victim or next of kin. In case the State also files an appeal, both can be clubbed together but if the State does not, for any reason, file the appeal, the victim’s case should be heard. Let justice seem to be done and give satisfaction to the victims and their next of kin. The right to file a Special Leave Petition under Article 136 of the Constitution was granted to a near relative of a victim, who was not a party to the proceedings, to challenge an order of acquittal passed by the High Court6 — but that again was response of the judiciary to the plight of a victim of crime.

In the scheme of Code of Criminal Procedure and the Evidence Act, if there are gaps or faults in the investigation the benefit generally goes to the accused. This is because the right of an accused, under the criminal justice system takes precedence over the right of the victim. Let us not forget that a victim of crime has a stake in the result of the trial of the offender. It humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the present system pays no attention to his injured feelings. Imposition of appropriate punishment on the criminal or the offender is the response of the courts to the society’s cry for justice. Dealing with the object of sentencing, in the case of Bheru Singh Vs. State of Rajasthan7, wherein the appellant had murdered his wife and five children, the Supreme Court observed:

“The object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking on overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.

In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenseless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

Under the Criminal Procedure Code, a victim of crime has got a very limited right of revision and that too under exceptional circumstances. It requires a fresh look. An accused has the statutory right to be heard on the question of quantum of sentence after conviction is recorded, but unfortunately a victim of the crime is not so heard. Even where he engages a counsel, during the trial of a case, instituted on a police challan or at the hearing of an appeal, his counsel is treated only as a “counsel by sufferance” and may or may not be heard by the court depending upon the attitude of the State counsel. He can at the best assist the public prosecutor but that also in case the public prosecutor really wants to be assisted by him. Thus, it is seen that a victim of crime in this country has hardly any guaranteed right except may be of getting some assistance by way of payment of compensation, but even here the statutory provisions (Section 357 (3) Code of Criminal Procedure, 1973) are grossly inadequate. These provisions suffer from inherent limitations and are invoked grudgingly, sparingly and often inconsistently by the courts even though the Supreme Court has exhorted criminal courts to take recourse to the provisions since “this power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system”, observed the Supreme Court:8

“Section 357 (2) is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of the accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to the crimes. It is indeed a step forward in our criminal justice system.”

International Developments on Effective Rehabilitation of Victims of Crime

The United Nations General Assembly at its Plenary Session on November 29, 1985, adopted a declaration of ‘Basic Principles of Justice for Victims of Crime and Abuse of Power’ This declaration is in a way the magna carta of the Rights of Victims globally and contributes an important recognition of the needs to care for victims of crime. The declaration has made certain suggestions for dealing with the problems of victims of crime including victims of abuse of power. For example:
a) Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to promote redress, as provided for by national legislation, for the harm that they have suffered.
b) Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
c) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information.
d) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected without prejudice to the accused and consistent with the relevant national criminal justice system.
e) Providing proper assistance to victims throughout the legal process.
f) Taking measures to minimize inconvenience to victims, protect their privacy where necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation. Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

The European Convention on “Compensation of Victims of Violent Crimes” also contains many of the rights recognized in the U.N. Declaration of 1985.

In its 154th Report, the Law Commission of India recommended incorporation of a provision for a comprehensive scheme of payment of compensation for all victims fairly and adequately by the Courts. The recommendation, however, has not so far been acted by the Government.

Award of fair and reasonable compensation to the victim of crime may not act only as a balm on his wound but may also deter to whatever little extent, the criminal from committing the crime. But there is no such statute in this country, which takes care, or it. Under clause 12 of the U.N. Declaration of 1985 the onus is on the State to “endeavour to provide financial compensation to both victims who have suffered bodily injury or impairment or physical or mental health as a result of serious crimes as well as the family of those who have died as a result of victimization”.

Emotional assistance or charity has its own limitations. A permanent mode of compensation has to be worked out. It may be worth considering as to whether the State which fails to protect the life and property of the citizen, should not be made to pay compensation to the victim of the crime, of course, reserving the right of the State to reimbursement from the guilty. Setting up of a fund for payment of compensation to victims of crime as is in vogue in Canada, Australia, New Zealand, United Kingdom, under the control of a Board, for awarding compensation to victims of crime would constitute a positive and a welcome step to assure the victims of crime that “We care”. (State of Tamil Nadu has already created a Victim Assistance Fund.)

A beginning can be made by bringing about a model legislation based on the U.N. Declaration of 1985 and by setting up a fund for payment of compensation to the victims of crime under an independent Board For Awarding Compensation To The Victims of Crime. The State which creates the fund should be entitled to reimbursement from the offender or the guilty party in the same manner as a decree holder, the manner of reimbursement in cash or kind being left to the State to be decided on the facts of each cases and the capacity of the individual.

The Supreme Court in Nilabati Beherea Vs. State of Orissa9 held that the concept of sovereign immunity is not applicable in cases of violation of the right to life and liberty guaranteed by Article 21 of the Constitution. The Court observed:
“The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting “compensation” in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

The Court then went on to say:
“Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

And further observed:
“The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligations to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations.”

And added:
It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole.”

The enforceable right to compensation was further developed in D.K. Basu vs. State of West Bengal10 wherein it was observed that the “award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages…..” and that “the relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them...”.

Victims of crime, today, feel left out, ignored and are crying for attention and justice. Let us hear their loud cry today —tomorrow may be too late. There is an urgent need to take a fresh look and recognize the rights of the victims of crime in the criminal justice delivery system.

Ladies and Gentlemen, I take your leave and have great pleasure to inaugurate this Seminar.

*****


 

SECOND ROBIN MITRA MEMORIAL LECTURE ON “CRIMINAL JUSTICE DELIVERY SYSTEM – NEED FOR A RE-LOOK” BY DR. JUSTICE A.S. ANAND, CHAIRPERSON, NATIONAL HUMAN RIGHTS COMMISSION ON 6 JANUARY 2006 AT HOTEL GEMINI CONTINENTAL, LUCKNOW

When, more than 47 years ago, I joined the faculty of Law at Lucknow University in 1958, the name of Rabindra Nath Mitra, more popularly known as Robin Mitra, was vibrating in students circles. He had been Secretary of the Lucknow University Students Union in the year 1953-54 and later it’s President in 1954-55. He was a student of law of Lucknow University and after completing his studies joined the Bar in the year 1955 as a junior to Late Babu Har Govind Dayal Srivastava. He left a mark in the University and was remembered as a courageous student leader, who possessed excellent qualities of an orator. During his student days at the Lucknow University, he not only led but also controlled an agitation against government’s initiation of a plan to make membership to the University Unions voluntary for the students. He, thus, gave a new direction to the students’ movement.
While at the Bar, he was known to be a fair and fearless lawyer. He also served as the Deputy Government Advocate of Uttar Pradesh. Those, who practiced with him at the Bar, bear testimony to the fact that he was respected both by the Bench and the Bar for his advocacy hard work and fairness. In the year 2000, he was designated as a senior advocate of the prestigious Allahabad High Court. Though a very busy lawyer, he always had time for the juniors. He gave a helping hand to his juniors and was very popular with them. He was available to them whenever his guidance was sought. His contemporaries remember him as a kind and affectionate human being who possessed great values of head and heart and as a sincere friend.
Robin Mitra married Smt. Maitrayi Mitra, a lady belonging to Bengal. He had great affinity with the Bengali culture and literature and during his days at the Lucknow University, he remained associated with Lucknow’s Bengali Club & Youngmen’s Association. The Bengali Club was like a second home for him. His organizing capacity was used to the hilt by the Club for organizing various Samellans, Conferences and Drama competitions and he headed the organization on a number of occasions. It can truly be said of Robin Mitra that he believed in Gandhian ideology, perhaps inherited from his father Late Shri Anant Lal Mitra, who was a known Gandhian.
He departed for his heavenly abode on April 1, 2004. I must congratulate Robin Mitra Memorial Society to organize lectures to commemorate the memory of Late Robin Mitra. These lectures provide an occasion to reflect on the legacy of the person in whose memory they are held and provide inspiration to the younger generations. It was, therefore, with great pleasure that I accepted the invitation to deliver the Second Memorial Lecture today, which I dedicate to the memory of Robin Da.
Now to the topic.


CRIMINAL JUSTICE DELIVERY SYSTEM –
NEED FOR A RE-LOOK

The history of crime is as old as of mankind itself; but in the premative period “ a tooth for a tooth, an eye for an eye and a life for a life”, was the essence of criminal justice. As the civilization developed, new ideas regarding individuals rights and his corresponding duty to his fellow human beings took shape. The crime was no longer considered an offence against the individual only, but a revolt against the norms of an organized society and an attack on the civilization of the day. Soon the state took upon itself the right to identify and punish the offenders.

Under our constitution, it is the primary responsibility of the State to maintain law and order so that the citizens can enjoy peace and security. The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace as well as law and order in the society. It is, therefore, an obligations of the State to identify and apprehend the offender, subject him to a fair trial and if found guilty, to punish him. Substantive penal laws enacted, prescribe punishment, whenever there is an invasion of those rights of the citizens. In the prevailing system of criminal justice whenever a crime is reported, it is the State, which gets the crime investigated by its agency, move the Court for trial of the offender and prosecute him in a Court of Law. The right to a fair trial is a constitutional imperative.

“Criminal Justice Delivery System” in India which stems from the Anglo-Saxon system is essentially concerned with the offender, his activities, his rights and his correctional needs. The purpose of criminal justice system appears, at present, to be confined to the simple object of ascertaining guilt or innocence of an accused. Unfortunately rights of victim of crime are not given any importance. In order to find out whether the criminal justice system in India has so far been effective in imparting justice to all the stakeholders, it is necessary to introspect.

On analysis of the functioning of criminal justice delivery system in India, one finds that despite sufficient penal laws, exhaustive procedural laws and elaborate rules of evidence, the system suffers from several flaws, resulting in violation of rights of the stakeholders i.e., the accused and the victims. Delays in trial and low rate of conviction being the main flaws. The old adage of “justice delayed is justice denied” is dangerously close to coming true in the Indian Courts. People are losing faith in the Criminal Justice system. The problem has reached a stage where it can no longer be ignored.

The main components of Criminal Justice Delivery System are detection & investigation of crime, enquiry, prosecution, defence, trial, punishment, correction, probation, parole and the like. Broadly, the Criminal Justice System is constituted by the following processes:

1) Investigation;
2) Prosecution;
3) Trial.

I shall briefly deal with the human resource – operators of - processes.

1. INVESTIGATION:

The foundation of criminal trial is the investigation by the police. The investigation machinery is set into motion, by the victims of crime, as soon as the commission of a cognizable offence is brought to the notice of the police. This is when the victim of a crime gets his first contact with the justice delivery system. The atmosphere in the police station is generally hostile and indifferent. The police officers are rude, insensitive and callous towards the victim or the witness who are given an impression that they have committed some wrong by approaching the system for redressal. Not only this, there is a tendency amongst the police officials to avoid registering an FIR with a view to manipulate crime data. Even if the person succeeds in getting the FIR registered, it is often recorded for lesser offences. This frustrates a victim of crime. Even the amendments made to the Code of Criminal Procedure in the matter of registration of cases does not appear to have produced the desired results because the mind set of the police has not changed.

Investigation in detection of crime is an important factor in administration of justice. Investigation of a crime lays the foundation of a criminal trial which is the vehicle of justice delivery. To achieve the ends of justice it is important that investigation of a crime is done in a fair and impartial manner. It has often been observed that the investigation being conducted by the police is tardy and superficial. The oral evidence of eye-witnesses is very important to solve a crime but unfortunately unfriendly and hostile image which the police has created for itself, discourages the public to come forward with the information that they might have about the commission of crime. This makes the job of investigator difficult and gives rise to the tendency of introducing stock or false witnesses who obviously cannot stand the test of veracity during trial. The net result is acquittal of the accused and denial of justice to the victim of crime. In this connection I would also like to point out that the investigating agency must realize its responsibility of examining witnesses on the date fixed for it. Asking witnesses to come again and again for getting their statements recorded discourages them and gives rise to avoidable criticism and shortcomings.

Many a time, the Criminal Justice Delivery System is also a casualty to the unholy practice of torture by the police. Unfortunately, the practice of torture is still very much in vogue in day-to-day policing even though it is universally accepted that torture is perhaps the worst crime in any civilized State. It is a misconception that criminals will fear the police when they are dealt with an iron hand. What the criminals dread most is not torture but uncompromising and proper legal action. Often the information extracted by use of torture is incorrect and misleading. Torture merely hardens the criminals and brutalizes the police. This also makes the innocent and law abiding citizens wary of the police. The crimes, which are claimed to have been solved by the police by way of torture rarely result in the conviction of an accused at the trial because the evidence collected through hard interrogation techniques often suffer from legal infirmities. It is a matter of grave concern that despite its condemnation on paper by the authorities concerned, it has apparently only remained to be a lip service. Experience has shown that torture at hands of the police causes major setback to the Criminal Justice System. The police leadership in India is required to do some soul searching and whole-heartedly commit itself to end this menace. There should be zero percent tolerance for violence of the police.

The police system apparently has failed to achieve both of its primary goals i.e., control of crime and the protection of individual rights. The incidents of crime are increasing in a big way. People commit serious offences with impunity. Inefficacy of the State machinery in some parts of the country give an impression that “rule of law” is non-existent there and the police system has failed. The recent incident of beating of young girls and boys by the police in a park in a U.P. town has brought no credit to the image of the police. There is an urgent need for change of image of the police to a people friendly institution. It must become ‘police service’ from ‘police force’. The leadership of the police has probably failed to provide the conducive work culture to the police force. The poor working conditions of the police specially at the lower level has been instrumental in demoralizing and demotivating the police force and has also induced a sense of alienation from the whole system. The salary and perks paid to them is not commensurate with the work expected of them. Unless the working conditions of the police force is improved, it may not be possible to inculcate a sense of belongingness to the system. An attempt to bring a systematic improvement in the system is an urgent need.

It is also high time that the police is trained to the latest technology and scientific methods of investigation. It would avoid prolonged investigation which often leads to corruption. The Forensic Science Laboratories should be well equipped and the Government should ensure that a competent and sufficient manpower is employed in the same. It is also the need of the hour that there should be forensic unit attached with each and every police station so that the investigation can be concluded expeditiously and in a scientific manner. This will also reduce the allegations of corruption and faulty investigations. Besides, the role of a forensic scientist must be given its due place. He should be treated as an important person assisting the investigation. He is a facilitator and the investigating agency must treat him as such.


PROSECUTION

Prosecution is a very important component of the criminal justice delivery system. The quality of prosecution and capability of the prosecutor has great impact on the outcome of a criminal trial. The prosecutor is expected to marshal the facts and place the evidence before the Court in a competent and a systematic manner so as to recreate the scene of crime before the Court with a view to fix the identity and culpability of the offender. It is a pity that importance of prosecuting agency in the system has not been adequately realized. There has not been any sincere effort on the part of the State to introduce any systematic reforms in order to strengthen and streamline the prosecution wing. It has ignored the fact that prosecution is the Achilles heel of the Criminal Justice System.

It needs to be appreciated that a prosecutor’s job is very important. If the prosecutor fails to place the evidence before the Court in correct perspective, there is always the possibility of a culprit going scot-free with a benefit of doubt. This strikes at the very root of the system itself. The time has come to have a re-look at the role of the prosecutor. The State should consider bringing suitable amendments in law to introduce accountability of the prosecution for the failure of trial. Competence and capability of the prosecutor is the life-blood of a criminal trial. There is need for continuous training and reorientation courses for the prosecutor to improve their professional skill. For efficient performance, the prosecutors do require logistical support like access to the latest technological tools like computers and a well-equipped library. It is also essential that they are given manageable number of cases to handle so that they are able to prepare the brief thoroughly and conduct the trial effectively. Their working conditions need to be improved with proper pay packets so that best of talent can be attracted. Selection of the prosecutors must be based on their merit, integrity and reputation and not on party affiliations because they are required to represent the mighty State and not a political party. Appointing right and competent advocates as prosecutors would improve the criminal justice delivery system. The prosecutors must ensure that witnesses are not harassed by being called to the court again and again. They should be examined on the date fixed for recording their statements. So far as medical witnesses and police witnesses are concerned, respect for their time should not be overlooked.

TRIAL
In the criminal justice delivery system, the courts have the most important role to play. The system is being criticized for slow motion justice, too technical rules and over flowing of the dockets besides leniency in awarding punishment in many cases. The courts cannot avoid the responsibility of being one of the actors responsible for the same. The lack of commitment to their jobs as also disposal of cases in a mechanical manner, without proper application of mind by the courts, has contributed towards the failure of the criminal justice delivery system.
The primary function of the court is to conduct the trial in a free and fair manner. The main crisis being faced by the criminal justice system stems from intimidation or allurement of the victims or witnesses during the trial leading to inevitable consequence of collapse of the trial. An important responsibility rests on the judge to ensure that the witnesses depose without any fear, force or pressure in the court. Unfortunately, judges with a view to protect their image of impartiality have a tendency to avoid taking active part in the trial. This reduces a criminal trial into battle of wits between prosecutor and the defence counsel. Court trials are reduced into mind games like chess, with judge assuming the duty of only an umpire or referee. As a result, the focus is shifted from justice – quest for truth to – advocacy skills. There is an urgent need for a paradigm shift from adjudication to quest for justice. This can be achieved only if the judges take active part in the trial to ensure that course of the trial is directed towards the ends of justice. They cannot sit as silent spectators. They must control the recoding of evidence and ensure that the witnesses are not unduly harassed. The tendency to consider themselves only as umpires and not their responsibility to quest for truth must be avoided.

Too liberal a recourse to “benefit of doubt” to take to the easy course of deciding cases is a poor reflection on the working of the system. Large-scale acquittals (almost 80%) are eroding public confidence in the effectiveness of criminal justice delivery system. It is natural also because when people see persons accused of heinous and ghastly offences getting acquitted, they believe that either courts are too liberal or pro-criminal or are not functioning the way they ought to function. Unfortunately, they do not know nor do they try to know the reasons for such acquittals. When a crime goes unpunished, the criminal is encouraged, the victim of crime is discouraged and the society in the ultimate analysis suffers, which has an adverse impact on the law and order situation in the country. However, the rising crime rate in the post independence era and the inadequacy of the law in balancing individuals liberty and State’s duty to ensure protection of life and liberty has made the criminal justice system a subject of heated debates but despite the concern over the shortcomings of the system to check the growing crime rate, we are still unable to check the rise in crime. But what appears to be certain is that unless the reforms are made in respect of each of the components of the criminal justice delivery system the system would not become effective.

The practice of conducting trial on day to day basis, particularly in important or sensitive cases, which was prevailing about fifty years ago has been given a go-bye. It is high time that the courts revert to that practice. Day to day trials have immense benefits. Witnesses are not required to visit the courts on various dates to get their statements recorded. It would also avoid the possibility of winning over witnesses either by allurement or by threats. Since, after day to day trial, evidence would be fresh in the mind of the court and the conduct of witnesses during trial also in their mind, the quality of judgment would improve.

After the bare discussion of the three important processes of criminal justice administration, let me discuss the five vital issues that necessitate a re-look:

i) Taking Victim’s plight seriously
Ignoring victims of crime is a factor which adversely effects the justice delivery system in criminal cases. At present the criminal justice delivery system is loaded heavily in favour of the accused. It has failed to strike a balance between the rights of the accused and that of the victim. Insensitivity towards the rights of the victim of crime is fast eroding the faith of the society in the criminal justice system and has already given rise to increased incidents of crime and lawlessness. There is a growing tendency amongst the people to settle these disputes through extra judicial means. There is need to arrest this tendency for otherwise the maintenance of Rule of Law would be at stake. Since the central object of any legal process is to promote and maintain public confidence in the administration of justice, there is an urgent need for giving a well-defined status to the victim under the criminal law. After all he is the one who has been wronged.
After setting the criminal justice mechanism in motion, the victim is reduced to the status of being merely an “informer”. He has hardly any role to play in the whole proceedings except that he may, if alive, be examined by the prosecution as a witness. It is strange that in spite of the fact that a victim of crime, who suffers at the hands of the accused and moves the State through the police or the courts to seek justice is given the impression that after having lodged the report or the complaint, he is a “Mr. Nobody”. A victim of crime is, thus, a mute witness to the whole drama. If alive, he may appear as a witness and there again the provisions of Evidence Act of relevancy of facts not withstanding, he is subjected to continual questioning, with the court almost silently watching. The law, today, fails to address the needs of the victims to be treated with dignity, to protection from intimidation, inside or outside the court room. Expressing concern particularly about the treatment of victims of sexual offences in the courts during their cross-examination, in State of Punjab Vs. Gurmit Singh & Ors. , the Supreme Court observed:

“There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence in the court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the creditability of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. ”

ii) Expeditious Justice

Inordinate delay during investigation and thereafter not only denies to an accused his constitutional right of speedy trial but also leads to many other drawbacks. One of the fall out of the delay in trial is the prolonged detention of an under-trial prisoner in jail, despite the fact that under law “everyone is presumed to be innocent unless proven guilty”. The plight of under-trial prisoners in this country is a distressing tale. Despite several pronouncements of the Hon’ble Supreme Court of India and certain High Courts on the subject, under-trials are languishing in jails in large numbers all over the country. The UTPs constitute almost 75% of the prison population in the country as a whole.

As I said earlier, a serious challenge which stares the judiciary in its face is its failure to deliver justice expeditiously particularly in the subordinate courts. It has brought about a sense of frustration amongst the litigants. Human hope has its limits and waiting endlessly is not possible in the current life style. There may be various causes for the mounting arrears like the shortage of courts and Judges, the shortage of infrastructure besides delay in filling up even the vacant posts. There are nearly 13,000 judicial officers for a population of over one billion people, the lowest judge-population ratio anywhere. According to the statistics there are also about 150 vacancies of high court judges (748 - total strength) and about 2000 vacancies in the subordinate courts (11,500 courts app.). This by itself is a major cause for delayed justice. Besides, low expenditure on the judiciary (0.2% GNP) shows the low priority being given to the judiciary by the state (In U.K. it is 4.3% of GNP). It is high time that the State realizes its obligation towards the judiciary and loosens its purse strings.

iii) Attracting competent and credible Judicial Officers

However, mere increase in the number of judges is not the only solution. An incompetent and inexperienced judge would only contribute to inefficiency and further delay in disposal of cases. The need of the hour is to have judges who are competent, impartial and independent. The responsibility lies with the persons at the helm of the affairs to ensure that competent persons of integrity are inducted into the service. It is also necessary to ensure that the meritorious and competent judges of impeachable integrity are given due regard while the black sheep in the system are dealt with firmly. It is the human resource who works for a system that can improve or destroy it. It is important to attract talent and competence into the service to make it more efficient.

The efficiency and effectiveness of the judiciary depends upon the quality of its human resource. Competence of a judge reflects in his judgment. Unfortunately, the judiciary at the lowest rung which generally comes in contact with public at large does not attract the best of talent. Reasons are obvious – service conditions of sub-ordinate judicial officers do not commensurate with the nature of their job. There is no scope for career advancement for them. The cherished desire of every sub-ordinate officers to at least adorn the seat of a high court judge generally becomes victim of seniority-cum-merit principle particularly when the system provides for large-scale lateral induction at the level of district judges. If justice is required to be quick, unpolluted and cheap, the State must realize that judges shall have to be expensive and their working conditions made good. The First National Judicial Pay Commission in its report has also addressed this issue by recommending that the quota of direct recruitment at the level of district judges should be reduced to the maximum of 25% of the cadre, whereas in most of the states the quota still is around 33%. I hope that the authorities concerned with the appointment, promotion and supervision of sub-ordinate courts while framing rules in that regard would have a re-look on this aspect of the matter to tone up the judiciary. A frustrated judicial officer cannot produce the best results even if he is very competent – the State and those at the helm of affairs in the judiciary must appreciate it and take early remedial steps. The subordinate judiciary is the backbone of the system. Not only are the subordinate judges over burdened but their working conditions also leave much to be desired. We must wake-up to the shortcomings in the system and sooner the better.

The consumer of justice wants unpolluted, expeditious and inexpensive justice. He is not interested in knowing the causes for delay in disposal of cases. The delay in disposal of cases is resulting in the citizen getting tempted to take law in his own hands and take recourse to extra judicial methods to settle scores and seek redress of his grievance. Delay in disposal of cases also gives rise to many other aberrations which hit at the basic credibility of the institution. In this materialistic world the witnesses being bought over is not an unknown factor. Some times even truthful witnesses may forget the sequence of events due to lapse of time. It is, therefore, necessary that delay during trial of cases should be avoided. The high regard that people have for the judiciary can turn to dismay when faced with the working of the justice delivery system.

iv) Recognising the stakes of the poorer sections
v) It has been experienced that often poor and illiterate people are unable to engage even a defense lawyer let alone a good advocate to represent them because of their poverty. They, therefore, suffer more than the ‘rich’ or ‘powerful’ accused who engage the best of talents. An impression, therefore, is created that the courts administering criminal justice are biased in favour of the rich or are against the poor. The cause factor for such impression requires a serious thought. The Government should allocate sufficient funds and other resources to ensure that the legal services are available to the poor and the disadvantaged persons. The courts should also ensure that an accused does not remain unrepresented during the trial. The Institution of Legal Aid should be strengthened as it will go a long way in improving the system itself. The Bar Associations should also come forward to share this responsibility. The lawyers should devote some of their time to render social service by providing free legal aid. This would create a positive image of the lawyer’s fraternity in the mind of the society as a whole. My experience with the Bar over the years has been that they are willing to contribute their skills in this behalf – the courts need to ask them to help – their response would be very positive.

v) Rationalising the Sentencing process

“Sentencing Process” also plays a crucial role in the Criminal Justice Delivery System. The sentence being the end result of all trials culminating into a conviction, it should be commensurate with the offence committed. It must reflect the court’s condemnation of the crime and response to the loud cry of the society for justice. The sentence must neither be whimsical, nor uncertain. A balance between the deterrent effect and the reformative theory of the sentencing process has to be achieved. For certain offences, the approach should be to rehabilitate and reintegrate into the main stream of social life such offenders who have committed the offence out of compulsion or passion and are not habitual criminals so as to reclaim them as useful members of the society. The State should need to consider improving the correctional facilities to the convicts. That would be in tune with the current thinking in the field of penology.

Friends, there are laws and procedure in place to deal with the crime. The requirement is to improve the human resource and to infuse motivation in them. The actors of the criminal justice delivery system are required to have a victim oriented approach. There is also a necessity of a paradigm shift from convicting the offenders to the redressal of grievances and payment of compensation to the victims, wherever possible. All stakeholders like the police, the lawyers and the judges can certainly improve the existing criminal justice delivery system by putting in sincere and honest efforts – State must, however, make the environment conducive to develop a proper work culture for all the stakeholders if the criminal justice delivery system is to be reformed. I am conscious of the fact that reforms cannot be achieved overnight as it is a long drawn process. However, our system has inherent strength to meet this challenge. What is needed is only a fresh look.

Ladies and gentlemen, thank you for your patience.



ADDRESS OF DR. JUSTICE A.S. ANAND, CHAIRPERSON, NATIONAL HUMAN RIGHTS COMMISSION ON HUMAN RIGHTS DAY ON 10 DECEMBER 2005 AT FICCI GOLDEN JUBILEE AUDITORIUM, NEW DELHI

Hon’ble Speaker Lok Sabha, Shri Somnath Chatterjee,
Excellencies,
Former Member, NHRC, Mr. Justice V.S. Malimath,
Former Member, NHRC, Mrs. Justice Sujata V. Manohar,
Chairpersons and Representatives of State Human Rights Commissions,
Ladies and Gentlemen,

It gives me an immense pleasure to welcome you all on the occasion of Human Rights Day. We are, indeed, privileged to have with us, as our Chief Guest this morning, Shri Somnath Chatterjee, Hon’ble Speaker of the Lok Sabha.

On 10th of December, 1948, the Universal Declaration of Human Rights was adopted by the General Assembly. It was not presented to the General Assembly as a treaty for ratification which would be binding upon signatory nations, but as “a statement of goals and aspirations – a vision of the world as the international community wanted it to become” because virtually all States shielded behind Article 2(7) of the UN Charter in arguing that human rights matters were strictly an internal matter of the State concerned. The Declaration was adopted by an affirmative vote of 48 member States, with 8 abstentions.

57 years have gone by but unfortunately the only thing that can be said to be a common “standard of achievement of all nations” today appears to be the widespread violations of human rights almost daily everywhere. It is sad that at the beginning of the 21st Century no country can look back on its own record of Human Rights of the last Century with any sense of pride.

Twentyfirst century, however, ushered in two heartening dimensions of human rights: (i) the new initiatives by poor and rich nations in fulfilling a long unfinished agenda of “full human development” and “human rights for all”; and (ii) the Millennium Development Goals (MDGs) emanating from the Declaration adopted by 189 countries at the United Nations Millennium Summit on 8th September, 2000. The UN Millennium Development Goals, expected to be realized by 2015, are in a way value based resolve among nations to end human poverty, promote human dignity and equality, and to take steps in furtherance of the attack on inadequate incomes, widespread hunger, gender inequality, environmental deterioration and lack of education, health care and clean water, towards the convergence of human development and human rights in action. The MDGs are indeed aspiring but even after five years of the adoption of the Declaration, the world community does not appear to have made much progress in the matter of protection and promotion of human rights in certain essential areas of health care, child abuse, trafficking in women, economic development, inequality, etc.

Human Development Report, 2005 discloses rather disturbing statistics:
Every hour 1200 children die. One crore children every year do not live to celebrate their fifth birthday;

More than 100 crore people survive on less than one dollar a day;
250 crore people live on less than two dollars a day;

The worlds richest 500 individuals have a combined income greater than 40 crore of world poorest;

As many as 250 crore people account for less than 5 percent of the worlds income.

The report estimates a cost of $ 300 billion for lifting 100 crore people above the extreme poverty line. This amount represents just 1.6 percent of the income of the richest 10 percent of the world’s population. The extent of inequality and disparity in income is, thus, writ large.

WE THE PEOPLE OF INDIA resolved to give to ourselves a Constitution aimed at securing– Justice, social, economic and political; Equality of status and opportunity besides Liberty of thought, expression, belief, faith and worship and Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The ground reality, however, is that even after 55 years, millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education. According to available statistics, Indian society is highly inequitable society where richest 10% consume 33.5% of resources and poorest 10% get only 3.5% of resource. The number of people living below poverty line has been on the rise. These statistics demonstrate how distant the goal of “Human Rights for All” is! The State does not appear to realize that one of the basic reasons for the disparity is on account of the neglect of Economic, Social and Cultural Rights. Systemic denial of Economic, Social and Cultural Rights like Right to Food, Health-care, Education etc. poses a threat not only to Human Rights but also to peace. Where hunger persists, peace cannot prevail. The state shields behind the non- justiciability of ESCR – directive principles – contained in chapter IV of the constitution. That is not a correct approach.

The mandate of Article 37 of the Constitution is that even though directive principles (ESCR) are not justiciable or enforceable by the courts, the same are “fundamental in the governance of the country” and it shall be the “duty” of the State to apply these principles. The State cannot, therefore, ignore the importance of economic, social and cultural rights while proclaiming itself to be a welfare state. The State must appreciate the importance of Economic, Social and Cultural Rights and take steps to promote the same. It should not content itself by only chalking out strategies. It needs to work towards full human development.

These considerations underpinned the Commission’s efforts in continuing to hold Capacity Building Workshops on Economic, Social and Cultural Rights to sensitize various stake-holders including government officials, policy implementers, NGOs, social workers and others. After holding a workshop in Kolkata, the Commission conducted Workshops in February, 2005 in Karnataka and in September, 2005 in Maharashtra.

In pursuance of its task of better protection and promotion of human rights, the Commission is deeply concerned with various dimensions of human rights. Public health care is a core area of concern for the Commission. The Commission has called upon the government to adopt a rights based approach to strengthen the public health infrastructure in the country and to take steps to ensure that everyone has the right to health care, not only on paper but in reality. The importance of good health requires hardly any emphasis. A country’s growth and development critically hinges on the quality of its human resource, which in turn depends on efficacy of public health system. The Commission has consistently taken the view that the right to a life with human dignity, enshrined in the Constitution, must result in the strengthening of measures to ensure that all people and particularly those belonging to the economically disadvantaged sections of the society, have access to better and more comprehensive health care facilities.

While on the issue of health care, I wish to share with this August gathering a recent distressing news item which has serious implications on the Right to Health.

The news report which appeared in the Media last week referred to a move by the AIIMS to levy charges for many tests and procedure which were hitherto free for economically weaker sections of the society.

AIIMS is a premier medical institution in the country providing quality medical and health care. Levy of charges for various investigations etc. may amount to indirect denial of quality health services to the patients, who are not financially well off. The authorities need to give this move a re-look in the interest of human rights of the marginally weaker sections of the society.

One other area of concern in this behalf is of those who are affected/infected by HIV/AIDS – more particularly the children – who suffer for no fault of theirs. Mother to child transmission of the disease is a matter of concern, particularly where the mother has a single partner only. These children suffer on account of discrimination and societal attitude. The discrimination takes extreme forms, which results in denial of care and treatment, removal from employment and education and other social security benefits. As per recent reports, there are about 5.13 million people affected by HIV/AIDS in the country. Only South Africa, with a higher HIV infected population, is ahead in the dreadful statistics. To compound the tragedy, it is also reported that a major percentage of those affected belong to the age group of 15 to 45, which is the most productive group. The Commission has urged the State Governments to prevent discrimination against the affected children in matters of access to education and health care. The Commission, recognizing the gravity of the problem facing the country, has established a Focal Point to handle all issues related to human rights and HIV/AIDS and designated a Member to be the Focal Point. It continues to hold training camps and seminars to create awareness and sensitize various stakeholders.

The Rights of the mentally ill has continued to attract consideration of the Commission. The Commission remained deeply involved in overseeing the functioning of the Government Protective Home for Women in Agra, and the Government Mental Hospitals in Agra, Gwalior and Ranchi, as directed by the Supreme Court, in their Order dated 11 November, 1997.

The Commission has been extremely disturbed by the plight of the mentally ill prisoners languishing in prisons. The case of Shri Charanjit Singh, an under trial prisoner languishing in Judicial custody in Tihar Jail for over twenty years came to light on the efforts of the Commission. Through its intervention before a Division Bench of the Delhi High Court, the Commission was instrumental in providing relief to him. The Delhi High Court, with the assistance of the Commission has laid down certain important guidelines, which if followed in letter and in spirit will go a long way to help such under-trial prisoners everywhere.

During an inspection of prisons, detention homes and mental institutions by the Special Rapporteur of the Commission, another heart-rendering case was brought to the notice of the Commission. It concerned an under-trial prisoner, Mr. Machang Lalung. He had been languishing in the mental institute in Tejpur, Assam as an under-trial prisoner for 54 years. Apparently, he had been forsaken by the system. The judiciary, under whose custody he was, appears to have forgotten about him and for the jail authorities, he was reduced only to a number. Civil society also did not bother about him. It was only after the intervention by the Commission that he was released on a personal bond of Re. 1 after spending 54 years of his life in detention. Detained at the age of 23, he could secure his release only when he was 77 years old. Who is responsible for his protracted incarceration – no one owns-up the responsibility? Is it failure of the system? State must give the matter a serious thought. We must not forget that they are human beings, not merely some number.

While still on the issue of health care, I wish to emphasize that the Commission is concerned about the protection and promotion of rights of persons with disability. Their rights are affected by social, economic, infrastructural and attitudinal barriers, which hamper their participation, access to opportunities and enjoyment of rights on equal terms. Despite international and domestic actions taken, the physically and mentally challenged persons in our country continue to face several obstacles in leading their life with dignity. Today, as it stands, their rights are more a myth than reality because disability is still, by and large, regarded as a "welfare" issue and has remained a subject matter laced with discourse of 'favors' and 'entitlements'. The Commission firmly believes that a rights approach is necessary to ensure rights and dignity of persons with disabilities. Our Commission has been redressing individual complaints of violations of human rights of persons with disability. In addition, it has taken up systemic issues with the Centre and the State Governments. Recently, all concerned authorities were asked to evolve a State Policy, ensure barrier free infrastructure, vertical integration and take other important actions for protecting the rights of the disabled. The disability perspective has been integrated into all activities of the Commission. Evidence suggests that the quality of life of persons with disabilities, and of their broader community, improves when disabled persons themselves actively participate in decision-making process. In this context the Commission has recommended that the government must make all out efforts to consolidate experience and expertise of the disabled in all premier institutions of democracy without which the concept of disability inclusive society will remain illusive. If access is guaranteed, persons with disabilities can use, interact and participate in social institutions and environments to the same extent as others.

By all counts, India is home to the largest number of persons with disability in the world. The 2001 census of the country estimated their number at 22 million. However, according to many observers the actual numbers could be as high as 50 million. Over the last decade, Government of India has introduced several measures for equalizing opportunities for full participation by persons with disabilities in all aspects of life. These measures include an impressive legal framework with a clear focus on disability. On the global scale the debate on disability and human rights is gaining momentum, and is likely to result in a new Human Rights Convention on the theme of disability. In the proposed International Convention on Disability, the Special Rapporteur of the National Human Rights Commission, India has been nominated as representative of the International Coordinating Committee of national human rights institutions (ICC). In fact, it is for the first time that national institutions have been asked to and actively associated with the development of an international Convention.

In partnership with the Canadian Human Rights Commission and the Indira Gandhi National Open University (IGNOU), a Project on ‘Training the Trainers’ on issues concerning disabilities was undertaken to lay down foundation for creating a new disability-sensitive generation of legal practitioners. The final outcome of the project was discussed at a conference held at New Delhi on 23rd June, 2005. A Manual has been prepared as an outcome of the Project. It compiles a range of positive examples of disability jurisprudence.

The issue relating to the rights of the Dalits and prevention of Atrocities against Scheduled Castes has continued to engage the attention of the Commission. It commissioned a study by Shri K.B. Saxena, IAS (Retd.) on ‘Prevention of Atrocities against Scheduled Castes’. Based on his Report, the Commission has made certain recommendations to the Prime Minister, 11 Union Ministers, Deputy Chairperson, Planning Commission and Chief Ministers of all the States and Union Territories for taking effective steps in that behalf. Responses are, however, still awaited.

Since better protection of human rights is an important task of the Commission, it has relentlessly endeavoured to be at the vanguard of the battle to curb violation of human rights happening anywhere in the country when brought to its notice or which otherwise come to its notice by suo-motu actions. An idea of the magnitude of the task before the Commission can be judged by the fact that almost 75,000 complaints were received by the Commission during the last year. This also indicates the faith and confidence which the citizens have been reposing in the Commission to protect and promote human rights. To rise to the hope and aspiration of the citizens, by making serious efforts the Commission disposed of about 84000 pending complaints during the year. The Commission has found with satisfaction that in undertaking the Herculean task before it, it has been receiving tremendous support from the Media, Non-governmental fraternity, the Representative of the People and members of the civil society. It is seen that during every session of Parliament, the Commission gets several questions from various departments of the Government, which are raised by the Members in both Houses of the Parliament, on allegations of, Custodial deaths, torture, fake encounters, human rights violations of women and other weaker sections of the society, etc. The questions reveal a genuine interest among the MPs to highlight various issues concerning violation of human rights of the citizens. It is also very heartening that several questions raised in Parliament are based on statistics and information provided in the Annual Reports of the Commission as well as other documents released by the Commission from time to time during the course of its work. This is cause for optimism, because, so long as the elected representatives of the people take an abiding interest in the protection of human rights of the citizens, the executive government in power, shall have to account for, both, its acts of omission and commission.

When nature dealt a cruel blow in the form of the deadly Tsunami, the Commission intervened, suo-motu, to ensure that the weak, the poor and the vulnerable are not neglected or exploited, in the aftermath of the tragedy. The Commission advised the States to prepare a computerized list of persons dead or missing as also a list of properties which were totally or partially destroyed or damaged so that relief could be evenly provided. Similarly, the Commission sent a team of its officials to Jammu and Kashmir in the wake of the devastating earthquake, which killed thousands on either side of the border. Based on the report of the team, the Commission passed appropriate directions to the State and Central Government, the objective being to pre-empt and plug any possible loopholes in the laudable efforts of the agencies involved in the relief efforts.

Given the large size of the country, its diversity of culture, language and customs, the Commission has also been emphasizing to the State Governments to set up State Human Rights Commissions, which are in conformity with the ‘Paris Principles’. I lay great emphasis on the ‘Paris Principles’ for the simple reason that merely setting up of a State Human rights Commissions will not suffice because a lame organization without functional, financial independence and autonomy will not be able to achieve anything. The Commission has increased the tempo of its interactions with the State Human Rights Commissions and institutionalized it through holding annual meetings since the last two years. Till date, however, only sixteen States have set up State Human Rights Commissions. At the last meeting held with the State Human Rights Commissions in May 2005, a Resolution was unanimously adopted urging the State Governments to set-up, on priority basis, State Human Rights Commissions where the same have not, as yet, been set up. Results are awaited.

I wish to refer to one other aspect also, which poses a serious threat to human rights. It is the outcome of ever-growing religious fundamentalism and use of terrorist activities for imposing “their will”. While all faithful believe in harmony and brotherhood in religion, it is the misguided fanatics who do not value human life and in the name of religion resort to all types of attacks on human rights. They violate the human rights of the fellow citizens without any justification whatsoever. Society’s response to such type of terrorism has to be clear and effective. Indifference of the society to such acts encourages the fundamentalists — loud and positive condemnation of their activities by the society, on the other hand may discourage them. A violent group whatever its politics, has no right to kill, and no claim to such a right must ever be allowed to override the right of the majority of citizens to live in peace. Everyone needs to co-operate.

By virtue of the responsibilities entrusted to NHRC, the Commission needs to be constantly vigilant and outspoken in the defence of human rights. In a democratic polity it is essential, that criticism, is received with respect even if not always with full agreement. The capacity, to differ with civility and mutual respect, is the hallmark of a democratic society and essential to the well being of a society. I need say no more on this aspect.

We are, indeed, grateful to the Hon’ble Speaker, Lok Sabha, Shri Somnath Chatterjee, for having kindly accepted our invitation despite his busy schedule. His benign presence on this occasion gives a thrust to a movement started by the National Human Rights Commission in India to promote a culture of human rights in the country.

Friends, let us resolve to rededicate ourselves to make human rights a fact of life and defence and protection of human rights an international secular religion – a religion which preaches, teaches and practices tolerance and mutual understanding. This is the least we owe to the succeeding generations.

Thank you.
 

26th BHIMSEN SACHAR MEMORIAL LECTURE, 2005 ON “HUMAN RIGHTS AND ITS DIMENSIONS” BY DR. JUSTICE A.S. ANAND CHAIRPERSON NATIONAL HUMAN RIGHTS COMMISSION AT LAJPAT BHAWAN, NEW DELHI ON 1st DECEMBER 2005

Mr. Justice Rajinder Sachar, Shri Kuldeep Nayar, Shri Prasannvadan Mehta, Admiral (Retd.) R.H.Tahiliani, Shri S.D. Sharma, distinguished invitees, Ladies and Gentlemen.
I feel extremely privileged to be invited to deliver the 26th Bhimsen Sachar Memorial Lecture in the memory of a person of remarkable vision, commitment, achievement – a stalwart of the country’s freedom struggle – Late Shri Bhimsen Sachar.
Shri Bhimsen Sachar was born on this day, 1st of December in 1893, in a highly respectable Hindu family. After his graduation from DAV College, Lahore, he obtained the degree of LL.B. from Law College at Lahore in 1918 and joined the Gujaranwala Bar in Pakistan the same year. In response to the call of ‘Non-Cooperation’ given by father of the Nation, Mahatama Gandhi, he suspended his legal practice in 1920 and joined the movement at Layalpur. He shifted to Lahore where he was arrested during the Non-Cooperation Movement. After the Movement was called-off in 1922, he returned to Gujaranwala and resumed his practice at the bar. Freedom struggle was a commitment for him and he continued his activities towards that end. He was arrested in 1930 during Salt Satyagraha Movement and detained at Lahore Central Jail. So deep was his commitment to turn the tide against the colonial powers, that he was arrested a number of times thereafter but every detention in jail made his resolve stronger. He took active part in Quit India Movement.
Shri Bhimsen Sachar was a gentleman with multifaceted qualities. He was elected to the Punjab Legislative Assembly in 1936 and returned to the Assembly again from Lahore in 1945 un-opposed. He continued as a Member of the Assembly till 1947 when he quit Pakistan. He then associated himself with relief work connected with the refugees coming from Pakistan at Amritsar and worked towards their rehabilitation and relief even in Delhi. He was appointed as Chief Minister of Punjab from April to October, 1949 and once again served as the Chief Minister of Punjab from April 1952 to 1956. He also served as Governor of Orissa and later on as Governor of Andhra Pradesh. He was High Commissioner for India in Ceylon from April, 1964 to February, 1966. Shri Sachar was a social activist and had associated himself with various religious and social activities. During the Emergency declared in 1975, he was, at the age of 82, arrested for protesting against the censorship of press and curtailment of civil liberties of the citizens and detailed in Ambala Jail. Soon after seeing the end of the Emergency, he left for his heavenly abode in1978.
If I were to describe Shri Sachar in three words, I would say he was a “great human being”. I am deeply conscious of my inadequacies vis-à-vis the stature of a man whom we commemorate today, but since protection of human rights, particularly of the vulnerable sections of the society, was an article of faith with Shri Sachar, I readily responded to the invitation to deliver this lecture, which I dedicate with all humility to the memory of the great soul.

Now to the topic.
Let me at the outset state that the topic of the lecture is too vast, therefore, I shall concentrate on a few dimensions of Human Rights only to kindle a thoughtful process.
Human rights inhere in every human being from his birth as a member of the human family. These are neither grants nor concessions but are demands to protect our common identify as human beings. No civilized country can allow compromise with violations of the same. Human rights are non-alienable. They are basic conditions of civilized living and are ethical norms for the treatment of individuals.
Twentieth Century stands out as the century that witnessed unprecedented denial of human rights. League of Nations established after the first World War failed to prevent another World War which was more disastrous than the first.
Appalled by man’s capacity to destroy himself and showing scant respect for Human Rights the world community started to think. On 26th June 1945, fifty nations, including India, signed the United Nation’s Charter creating the United Nations. This Charter refers to ‘human rights’ in as many as seven places. The repeated reference to human rights in the United Nations’ Charter demonstrates the extraordinary concern exhibited by the members of the United Nations for preservation and promotion of human rights.
The UN Charter hoped to save succeeding generations from self-destruction by proclaiming and establishing equal and inalienable rights of all members of the human family — great or small, virtuous or vicious, rich or poor, wise or foolish and their inherent dignity, regardless of birth, status, race, colour, sex, language, religion or political or other opinion. Article 55 of the Charter of the United Nations requires the United Nations to promote: “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Article 56 enjoins that : “All members pledge themselves to take joint and separate action in cooperation with the organisation for the achievement of the purposes set forth in Article 55.”
In 1948 when the Universal Declaration of Human Rights was adopted as “a common standard of achievement of all peoples and nations” there were reservations of many State Governments. Virtually all States shielded behind Article 2(7) of the UN Charter in arguing that human rights matter were strictly an internal matter of the States concerned. This view today, mercifully, receives very little credence from the International community which accepts universality of human rights all over.
Due to reservations of State governments, the Universal Declaration of Human Rights was not presented to the General Assembly as a treaty for ratification which would be binding upon the signatory nations, but an instrument to be endorsed as “a statement of goals and aspirations – a vision of the world as the International community wanted it to become”. The Declaration was adopted by an affirmative vote of 48 member States and 8 abstentions. A UN Commission on Human Rights was set up. The Commission’s mandate was confined to the drafting of new treaties and other legal instruments.
The Universal Declaration of Human Rights adopted by the General Assembly on 10th December, 1948, was followed by two Covenants – International Convention on Economic, Social and Cultural Rights (ICESCR) and International Convention on Civil and Political Rights (ICCPR) in 1966. India signed the International Convention on Economic, Social and Cultural Rights in 1979. However, in spite of the Universal Declaration and the two Covenants, widespread violation of human rights continues to occur almost daily everywhere. There is, therefore, some sting but more than a grain of truth in the cynic’s taunt that the only thing universal about human rights is their universal violation.
The Preamble to the 1966 Covenant on Civil and Political Rights speaks of ‘the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedom.’ The World Conference on Human Rights also emphasized this aspect in The Vienna Declaration and Programme of Action, 1993 when it said that ‘every state should provide an effective framework of remedies to redress human rights grievances or violations”.
One of the important advancements of the twentieth century was the recognition of democracy as, to quote Prof. Amartya Sen, “preeminently acceptable form of governance”. Though democracy is not the only means by which improved governance could be achieved, it is perhaps the only reliable one. By providing greater public participation, democracy enhances the likelihood that national developmental goals will reflect broad societal aspirations and priorities. By establishing political legitimacy of governments, democracy strengthens their capacity to function efficiently and effectively. Unless human rights are made the focal point by the State, good governance would remain an unfulfilled dream Human Rights and democracy are mutually supportive.
Unfortunately, at the beginning of the 21st Century no country can look back on its own record of Human Rights of the last Century with any sense of pride. Estimates say that in the 20th Century, some 100 million persons have been killed in armed conflicts and 120 million more deaths have resulted from politically-related violence.
Twentyfirst century, ushered in two new dimensions of human rights: (i) the new initiatives by poor and rich nations in fulfilling a long unfinished agenda of “full human development” and “human rights for all”; and (ii) the Millennium Development Goals emanating from the Declaration adopted by 189 countries at the United Nations Millennium Summit on 8th September, 2000. The UN Millennium Development Goals are in a way value based resolves among nations to end human poverty, promote human dignity and equality, and to take steps in furtherance of the attack on inadequate incomes, widespread hunger, gender inequality, environmental deterioration and lack of education, health care and clean water, towards the convergence of human development and human rights in action. Unfortunately, however, as compared to civil and political rights, economic, social and cultural rights do not receive proper consideration, thus, rendering the enjoyment of all human rights illusory.
NEGLECT OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education.
According to UNDP Report of 2003, Indian society is highly inequitable society where richest 10% consumes 33.5% of resources and poorest 10% gets only 3.5% of resource. Around 233 million people are chronically hungry. Official figures state that in the country 26% people are living Below Poverty Line. However, in the Alternative Economic Survey 2000-01 based on the National Sample Organisation Survey, it is shown that the number of people living below poverty line in the rural areas has increased from 35% in 1990 to 45.3% in 1998.
Around 51% of the population does not have sustainable access to affordable essential drugs. Infant Mortality rate is 68 per 1000; under 5 child mortality rate is 93 per 1000; 26% children are under weight; and 24% of the population is undernourished. Maternal mortality ratio is 440 per 1,00,000 and 72% of the population does not have access to improved sanitation (UNDP Report 2003).
According to Human Development Report, 2005:
 Every hour 1200 children die. One crore children every year do not live to celebrate them fifth birthday;
 More than 100 crore people survive on lessthan one dollar a day;
 250 crore people live on less than two dollars a day;
 The world richest 500 individuals have a combined income greater than 40 crore of world poorest;
 As many as 250 crore people account for less than 5 percent of the worlds income.
The report estimates a cost of $ 300 billion for lifting 100 crore people above the extreme poverty line. This amount represents just 1.6 percent of the income of the richest 10 percent of the world’s population.
The UNDP reports reflect that the Protection of social, economic and cultural rights as compared to civil and political rights, both at the national and international level, has been poor and irregular. The fallacy lies in treating one set of rights as inferior to the other set of rights. To correct the fallacy, is a challenge we face in this century.
When WE THE PEOPLE OF INDIA resolved to give to ourselves the Constitution, we aimed at securing for all its citizens – Justice, social, economic and political; Equality of status and opportunity besides Liberty of thought, expression, belief, faith and worship and Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The Indian Constitution, evolved after careful thought, excludes the mention of certain basic economic and social rights, such as the right to food, right to shelter, right to work and right to medical care, etc. from the chapter on Fundamental Rights contained in Part-III of the Constitution. Those rights have been made a part of Directive Principles of state policy in Part-IV of the Constitution. While the civil and political rights, having been incorporated as Fundamental Rights, are both justiciable and enforceable, the Economic, Social and Cultural rights, enshrined as the Directive Principles of the State Policy, are not enforceable or justiciable. While fundamental rights are justiciable, directive principles are not.
Perhaps, in the backdrop of the then social-economic conditions of the Indian society, the framers of the Constitution evolved the two sets of rights – representing, two streams in the evolution of human rights, which divide them between civil and political rights on the one hand and social, economic and cultural rights on the other. Both are equally important and interdependent. These rights which are aimed at living with dignity by members of the human family are essential for full development of human personality.
The mandate of Article 37 of the constitution is that even though directive principles are not justiciable or enforceable by the courts, the same are “fundamental in the governance of the country” and it shall be the “duty” of the State to apply these principles.
Dr.B.R. Ambedkar, Chairman of the Constitution Drafting Committee, interpreting the nature of Directive Principles, opined that they would be the guiding principles of governance. However, the Government of India, as statistics tell us, never whole-heartedly pursued the implementation of Directive Principles. The government dilly-dallied implementation of each principle generally citing the reasons of resource crunch. Thanks to the judiciary, the Directive Principles started getting importance when the Judiciary stepped in and interpreted the underlying principles of Directive Principles. The distinction between civil and political rights and the economic, social and cultural rights was sought to be narrowed by judicial interpretations. Realising that the Fundamental Right to live with dignity was not possible without proper realization of economic, social and cultural rights, the court did not favour the concept of treating Fundamental Rights as superior to Directive Principles. In State of Kerala vs. M. Thomas [1976 (2) SCC 310] the Supreme Court commented that the Fundamental Rights and the Directive Principles were complementary.
In the case of Francis Coralie Mullin vs. the Administrator, Union Territory of Delhi[1981 2 SCR 516], the Supreme Court declared:
“The right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

The courts in India have related healthcare, food security and elementary education with the Right to Life, Article 21 of the Constitution making these rights justifiable. Following the judgment of the Supreme Court in Unni Krishnan v. State of AP [1993 (1) SCC 645] the Union Parliament adopted 86th Constitutional Amendment whereby elementary education has been made fundamental right in the Constitution. Similarly in Bandhua Mukti Morcha v. Union of India in 1984 the Supreme Court held that the ‘right to life’ must include the right to health for the enjoyment of the human life with dignity. Thus it is seen that the law which has come to be developed in this country on the subject today seeks to harmonise the fundamental rights with the directive principles and, thereby, synthesise the civil and political rights and the economic, social and cultural rights. The inter-dependence of both set of rights is essential for full development of human personality. We must accept that indivisibility and inter-related nature of the two sets of rights is a reality.
Despite the 86th Constitutional Amendment, around 35% of the population is still tottering in the darkness of illiteracy. About 50 million children are out of school. Even where enrolment is high, the dropout rate is over 50% by the time the students move over to high school. Gender Parity Index is 0.82. It means for every 1000 boys enrolled, there are 820 girls seeking admissions (UNDP 2003).
The International Covenant on Economic, Social and Cultural Rights, to which India is a State party, specifically recognizes the “fundamental right of everyone to be free from hunger” and the right of everyone to “adequate food”. It also recognizes the “right of everyone to education” and asserts that “primary education shall be compulsory and available free to all”; it further recognizes the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.
The State must realize the importance of Economic, Social and Cultural Rights and should not content itself by only chalking out strategies for promotion of the same. Public awareness and education on economic, social and cultural rights would go a long way in making the State realize its responsibility to protect, promote and fulfil economic, social and cultural rights so that human rights are capable of being enjoyed, protected and promoted for the vulnerable sections of the society.
The expression ‘Socio-Economic Justice’ is not a constitutional rhetoric or political claptrap meant for heroic sloganeering. It is the conscience and soul force of the supreme law of the land. The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of a welfare state.
The neglect of Economic, Social and Cultural Rights give rise to internal conflicts which is a threat to the democratic society and enjoyment of human rights. Systemic denial of Economic, Social and Cultural Rights, like right to food, health care, education, etc., are caustic factors of conflict and terrorism. They pose a threat not only to human rights but also to peace. Where hunger persists, peace cannot prevail.
Poverty itself is the biggest violation of human rights. If hunger persists, peace cannot prevail. In this connection, I would like to point out that one factor which contributes to causing despair and anger among the underprivileged and economically disadvantaged segments of the society arises from the failure of the State to properly execute the poverty alleviation schemes and programmes. The large grants meant for poverty alleviation schemes are often ‘misused’ or ‘diverted’ – due to maladministration, non-accountability, lack of transparency or corruption. It needs to be emphasized that corruption weakens the very foundations of the administrative and legal framework and disrupts the Rule of Law, thereby giving rise to lawlessness.
GENDER EQUALITY

One other dimension of human rights requiring our serious thought is gender equality.

Gender inequities throughout the world are among the most pervasive, though disceptively subtle forms of inequality. Gender equality concerns each and every member of the society and forms the very basis of a just society. Human rights issues, which affect women in particular, play a vital role in maintaining the peace and prosperity of a just society.
Women continue to be discriminated all over the world and are subject to many forms of violence. Inspite of ratification of regional and International Instruments, many States still maintain laws and practices, which discriminate against women. Selective practices and customs used by states perpetuate discrimination. This is particularly true in the field of access to land and other important economic resources and rights within the family. Crimes against women, which are increasing exponentially are actually crimes against humanity and expose the failure of the governments to effectively prosecute those who are responsible for Commission of such crimes.

Today, in this 21st century, we are still unable to boast of a society where there is total gender equality or gender equity.

Consider the following statistics:
 Two-thirds of world’s adult illiterates are women, who number about half-a-billion adult women.

 70% of the world’s poor are women.
Women now account for 50% of those infected by HIV worldwide.
In the matter of equality, Article 14 of the Constitution of India confers on men and women equal rights and opportunities in the political, economic and social spheres. Article 15 prohibits discrimination against any citizen on the grounds of religion, race, caste, sex, etc. Article 15(3) makes a special provision enabling the State to make affirmative discriminations in favour of women. Similarly, Article 16 provides for equality of opportunities in matter of public appointments for all citizens. Article 39(a) lays down that the State shall direct its policy towards securing all citizens, men and women, equally, the right to means of livelihood, while Article 39(c) ensures equal pay for equal work. Article 42 directs the State to make provision for ensuring just and humane conditions of work and maternity relief. Above all, the Constitution imposes a fundamental duty on every citizen through Article 51A(e) to renounce the practices derogatory to the dignity of women. The question, however, is: Have the women been able to reap the benefits provided for them under the Constitution of India? The answer unfortunately is not encouraging. There is a long way to go to achieve the goals enshrined in the Constitution.
At the national level, there are several areas of deep concern:
Female foeticide is such a murky and clandestine business that it is difficult to give an exact figure. But it is estimated that between 1.5 million and 5 million female fetuses are being destroyed in India every year. With the emergence of new technology, female infanticide has been replaced by female foeticide. And if you though that the big bad wolves gobbling up the unborn fetuses are only in the cities, think again. A staggering 204 districts of the country have a lower child sex ratio than the national average of 927 in the zero to six age group. Fortyeight districts have a female sex ratio of less than 850.
Thus, there has been sharp decline in female sex ratio:
1961 = 941/972 females = 1000 male births
1999 = 927 females = 1000 male births
2001 = 933 females = 1000 male births
2003= 927 females (850) = 1000 male births
Studies have shown that country wide prevalence of moderate to severe anemia among pregnant women is around 47% and that 30% of Infant mortality in India is accounted for by maternal anemia related low birth weight. The maternal mortality rate in India at about 410 per 100,000 births is more than 50 times higher than the rates that exist in the developed countries. Unless we recognize her rights – her basic human rights – gender justice will only be “lip-service” with no tangible results. One of the fall out of the gender inequality is the curse of trafficking in women and children, which is a gross violation of their human rights and an affront to the supreme dignity of the females, apart from being a serious crime. It is a problem of Human Rights. It is a problem which should make the heads fall in shame of the civil society because here we are treating human beings as chattels, commodities, saleable items - the price-tag varying with age, class, color and sex. What used to be sometimes an affair in the remote corner of some hidden unknown street is today available in five stars establishments.
The Immoral Traffic (Prevention) Act, 1956 (amended in 1986) had been enacted to combat prostitution but the prostitution is on the rise. Police is unable to keep a check on the brothel-keepers and pimps. Many unfortunate teenaged female children are being sold in various parts of the country for paltry sums even by their own parents, compelled by poverty, who find themselves unable to maintain their children hoping that their children would be engaged in household duties or manual labour. But they are actually selling them to the broker in the flesh trade, who brutally treat them till they succumb to his wishes. Thus, girls and women in large number in the prime of their youth are being forcibly pushed into the flesh trade which flourishes in utter violence of all canons of morality, decency and dignity of a human being.
India is not only a transit point for supply of trafficked women and children but also a recipient and a supplier of such persons. The exploitation of women and children for sex purposes, however, is not confined to India alone, which has porous borders with Nepal, Sri Lanka and Bangladesh, but is a problem of global dimensions. Statistics tells us that this crime is a flourishing trade to the tune of 8 billion dollars in a year. It is almost surpassing the profits from drugs trafficking. In Asia- Pacific itself, 4,50,000 persons are trafficked every year and out of them Two Hundred Thousands are from South Asia. Unfortunately trafficking in women and children has remained confined to intellectual discussions to understand as to what is prostitution or commercial sex and how to control it. That is only one side of the coin. When we confine it to prostitution or commercial sex or exploitation as a result thereof, we are only trying to identify the disease, we are neither looking for the symptoms nor the causes let alone the remedies. Trafficking has wider dimensions and requires multi-prong attack to tackle it.
Prostitution is not prohibited under the amended Prevention of Immoral Trafficking Act, 1986. Despite the amendment, the legislation falls short of its objective and has not proved to be an effective measure to check commercialized flesh trade. It acts more as supplement to the provisions of the IPC concerning kidnapping, sale, abduction, wrongful restraint of women and children, emphasizing only the punitive aspects of the problem. The Act does not provide for punishment to the client and makes no provision for the rehabilitation of commercial sex workers who are rescued from the brothel. Instead of aiming at the abolition of prostitution as such, the Act makes it per se a criminal offence or punishes a woman because she prostitutes herself. May be it is because of a week law enforcement mechanism and inadequacies in the criminal justice system, but the situation in every case invites attention of all concerned agencies: legislature, judiciary and other enforcers of law. It appears that our society is becoming a psycho-sick society with an uncivilized behavior. Whenever crime is committed against women and that too a violent crime, it sends shock waves to the society but those shock waves burst like bubbles in a very short time. The society must change its attitude.
There are four essential Rs - Raid and Rescue, Recovery, Rehabilitation and Reintegration which are required to be considered for dealing with the problem and we must plug the shortcomings. Coming to the first of the four Rs – RAID AND RESCUE.
The authorities conducting raid with a view to rescue the exploited victim must act with proper sincerity and sensitivity. They need to associate with them witnesses who would support the case and not the one who would turn hostile. Experience tells us that in case after case witnesses turn hostile. It is necessary for the authorities to associate NGO’s of credibility while conducting raids and rescuing victims so that the prosecution case does not suffer. This is the first important step which needs to be taken by the authorities but is overlooked leading to the frustration of the entire exercise.
Now, the next R-RECOVERY and REHABILITATION.
After the victims are recovered, it is necessary to see that they do not fall again into the hands of the exploiters and are given a chance to lead better life. We have to have shelter homes, short-stay homes or homes where we can provide vocational training to them. So far as the person recovered is concerned, unless you can take care of her, because a stigma attached to her, it comes in the way of even her family reclaiming or accepting her. We have very few shelter homes and short-stay homes and even in those the accommodation is only for a limited number of persons. What happens to the rest? A person who has been rescued after the raid finds herself at a cross-road, not knowing what to do because the State has taken no care to provide sufficient number of shelter homes, where vocational training can be provided to her and the civil society shuns her and don’t want to do anything to help her. It is at this cross-road that she may fall into the trap of some other traffiker. Mind you, these traffickers have a very strong partnership and union - almost a union incorporated. The State and more importantly the civil society must take steps to guard against this fall out.
REINTEGRATION: This is an area which is most important. The civil society needs to realize and appreciate that the concerned woman or child has been a victim of circumstances and, therefore, needs to be dealt with sensitivity. It is the duty of the society and, of course, of the State to ensure that the victim is reclaimed and integrated into the society – her past should be forgotten as a bad dream. Imparting of vocational training and make avenues of employment or even self-employment would help in the long run to tackle the problem.
The challenge which trafficking in women and children is posing is a formidable one – the crime is on the increase and sex-tourism, which today has become a reality, has compounded the problem. There are laws to deal with the crime but not only those are inadequate but are also not being implemented properly. The sexual exploitation of women and children is a threat to the enjoyment of human rights by that segment of the society – we must accept the challenge and take all possible steps today – tomorrow may be late.
Fight for justice by females or cry for gender equality should not be treated as if it is a fight against men. It is a fight against traditions that have chained them — a fight against attitude that are ingrained in the society — it is a fight against proverbial Lakshman Rekha which is different for men and different for women. Therefore, men must rise to the occasion. They must recognise and accept the fact that women are equal partners in life. It is high time that Human Rights of Women are given proper priority.
TERRORISM AND COUNTER MEASURES:

I would now like to refer to one other dimension of Human Rights – the challenge of terrorism. While the devastations caused by 9/11 acts were still fresh in our minds, came the attack on the Union Parliament and Akshardham. In 2005, what happened on 7/7 in London or 29/10 in Delhi brings to fore the serious threat which terrorism poses to a civilized society and to human rights of the innocent citizens. While this is a historical fact that Human Rights recognize the essential worth of a human being, it is also a reality that the cult of terrorism strikes at the very root of human rights of innocent people. The spectre of terrorism continues to haunt us globally. Terrorism and human rights are natural enemies with no possibility of their co-existence. Conflicts and Terrorism have today emerged as serious threats to the humanity. No person who supports human rights can support terrorism, which results in a grave violation of human rights of innocent citizens.

Terrorism has been the subject of a huge debate over the years but as yet there is no universally acceptable definition of what is “terrorism”, against which we have to fight. Indeed despite definitional difficulties, we can recognize terrorism in action since it is an assault on a civilized society. Terrorism is not merely a heinous criminal act. It is more than mere criminality. It is a frontal assault on the most basic human rights namely, right to life and liberty, by faceless murderers whose sole aim is to kill and maim human beings, whether they are innocent young children, elderly men or women. One of the rights incorporated in the Universal Declaration of Human Rights and in all International covenants is the right to life. For only this right ensures the enjoyment of all other rights. The right to life is of crucial significance for every person, every group of people, every class and every nation and as a matter of fact, for all humanity. This very right to life of the innocent people is the target of terrorism.

There is a clear and emphatic relationship between national security and the security and integrity of the individuals who comprise the state. Between them, there is a symbiosis and no antagonism. The nation has no meaning without its people. The worth of a nation is the worth of the individuals constituting the nation. This is the emphasis laid in the Constitution of India, which holds out the promise to secure both simultaneously. Just as there can be no peace without justice, there cannot be any freedom without human rights.
Let us, however be clear that there can be no alibis or justification for terrorism under the spurious slogans of “fight for freedom” or “struggle for liberation”. As Senator Jackson has aptly stated:

“The idea that one person’s ‘terrorist’ is another’s ‘freedom fighter’ cannot be sanctioned. Freedom fighters or revolutionaries don’t blow up buses containing non-combatants; as terrorist murderers do. Freedom fighters don’t set out to capture and slaughter school children; terrorist murderers do… It is a disgrace that democracies would allow the treasured word ‘freedom’ to be associated with acts of terrorists”.
It is common knowledge that systemic human rights violations for long periods of time are often the root cause of conflicts and terrorism. When there is tyranny and wide spread neglect of human rights and people are denied hope of better future, it becomes a fertile ground for breeding terrorism.
Fundamentalism in all its forms and manifestations is yet another subtle form of terrorism and posses a serious challenge to enjoyment of human rights. Use of terrorist activities for imposing their “so called religious or ideological will” is a serious challenge. While all faithful believe in harmony and brotherhood in religion, it is the misguided fanatics who do not value human life and in the name of religion resort to all types of attacks on human rights. These include forcible imposition of self-righteous social code and undermining of freedom of expression and belief. These fanatics contribute to a climate of religious bigotry, which leads to discrimination, harassment and attacks on all those who do not follow their dictates which may be right or wrong. In doing so, they violate human rights of fellow citizens without any justification whatsoever. Terrorism grows and thrives on ‘hatred policy’ – be that of rival political groups or fundamentalists or enemy agents. A violent group whatever its politics, has no right to kill, and no claim to such a right must ever be allowed. The challenge it poses stares us in the face. We need to meet it by loud and positive condemnation.
Undoubtedly, the spectre of terrorism is haunting many countries of the world. It has acquired a sinister dimension. The terrorist threats that we are facing are now on an unprecedented global scale. But it must be remembered that the fundamental rationale of anti-terrorism measures has to be to protect human rights and democracy. Counter terrorism measures should, therefore, not undermine democratic values, violate human rights and subvert the Rule of Law.
The menace of terrorism has to be curbed and the war against terrorism has to be fought relentlessly but in doing so, no democratic society can be permitted to chill civil liberties of the citizens. In the fight against terrorism, sensitization level of human rights cannot be allowed to be sacrificed. A terrorist who violates human rights of innocent citizens must be punished but his human rights should not be infringed except in the manner permitted by law. A critical task of striking a fair balance by way of security concerns and human rights is to be performed and need of proportionality must not be ignored. While fighting war against terrorism relentlessly, the State cannot be permitted to be either selective in its approach or to go over board and in effect declare a war on the civil liberties of people because the rationale of anti-terrorism measures is aimed at protecting human rights and democracy. Counter terrorism measures should, therefore, not undermine democratic values or subvert the rule of law. It is during anxious times when care has to be taken to ensure that state does not take recourse to bend the rule of law. Let us be clear that proper observance of human rights is not a hindrance to the promotion of peace and security. Rather, it is an essential element in any worthwhile strategy to preserve peace and security and to defeat terrorism. The purpose of anti-terrorism measures must therefore be to protect democracy, rule of law and human rights, which are fundamental values of our society and the core values of the Constitution.

Our experience shows that the rubric of counter-terrorism can be misused to justify acts in support of political agendas, such as the consolidation of political power, elimination of political opponents, inhibition of legitimate dissent. Labeling adversaries as terrorists is a notorious technique to de-legitimize political opponents. It is during anxious times that care has to be taken that state does not take recourse to bend the Rule of Law to accommodate popular sentiment for harsh measures against suspected criminals. An independent judiciary and the existence of an effective human rights institution are indispensable imperatives for protection of fundamental human rights in all situations involving counter-terrorism measures. It provides vital safeguards to prevent abuse of counter- terrorism measures. Counter- terrorism or anti-terrorism measures must, therefore, always conform to international human rights obligations.

In addressing the Security Council on 18th January 2002, the Secretary-General stated:

“While we certainly need vigilance to prevent acts of terrorism, and firmness in condemning and punishing them, it will be self-defeating if we sacrifice other key priorities – such as human rights – in the process”


Speaking on terrorism, Ms. Mary Robinson the then United Nations Commissioner for Human Rights, cautioned against the violation of human rights in the global ‘fixation’ with the war against terrorism and said:


“ What must never be forgotten is that human rights are no hindrance to the promotion of peace and security. Rather they are an essential element of any strategy to defeat terrorism.”


It must, therefore, stand as a caution that in times of distress, the shield of necessity and national security must not be used to protect governmental actions from close scrutiny and accountability where the same affect enjoyment of human rights. In times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from petty fears and prejudices that are so easily aroused. Indeed, in the face of terrorism, there can be no doubt that the State has not only the right, but also the duty, to protect itself and its people against terrorist acts and to bring to justice those who perpetrate such acts. The manner in which a State acts to exercise this right and to perform this duty must be in accordance with the Rule of Law. The Supreme Court of India has, in DK Basu vs. State of West Bengal, [jt 1997(1) SC 1] cautioned:





“State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to terrorism: that would be bad for the State, the community and above all for the rule of law. The State must, therefore, ensure that the various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves”





The statement of Shri Kofi Annan, Secretary General, made to the 191 member U.N. General Assembly on 21st March, 2005. He said:


“We will not enjoy development without security, we will not enjoy security without development and we will not enjoy either without respect for human rights.”

Delayed and Expensive Justice :

I will deal with one more dimension and I am through.

Delayed and expensive justice also strikes at Human Rights, more particularly of those belonging to the underprivileged and vulnerable segments of the society. The Supreme Court has in a number of cases held that fair and speedy trials are part of fundamental rights of the citizens to “equal protection of law”. The high cost of litigation is a serious challenge. Even after decades of independence the poor, backward and weaker sections of the society feel that they do not have equal opportunities for securing justice because of their socio-economic conditions. The Government of India has demonstrated its resolve to meet the challenge of expensive justice, though without any spectacular success by enforcing National Legal Services Authority Act, 1986 aimed at introducing various schemes for providing inexpensive justice to the poor and down trodden. Proper implementation of NALSA and ensuring its benefit go to the right quarters, however, leaves much to be desired.

As on 31st December 2004, there were almost three crore cases pending in the courts in the country. The pendency of cases in the lower courts is 2,33,19,679 cases: over thirty three lakh cases (33,79,033) are pending in the High Courts and 30,151 cases are pending in the Supreme Court. The disposal of cases has not been able to keep pace with the institution of cases and, therefore, arrears keep mounting.

One of the challenges which stares the judiciary in India in its face is its failure to deliver justice expeditiously particularly in the subordinate courts. It has brought about a sense of frustration amongst the litigants. Human hope has its limits and waiting endlessly is not possible in the current life style. There may be various causes for the mounting arrears like the shortage of courts and Judges, the shortage of infrastructure besides delay in filling up even the vacant posts. There are nearly 13,000 judicial officers for a population of over one billion people. According to the statistics there are about 150 vacancies of high court judges (748 - total strength) and about 2000 vacancies in the subordinate courts (11,500 courts app.). This by itself is a major cause for delayed justice. Besides, low expenditure on the judiciary (0.2% GNP) shows the low priority being given to the judiciary by the state. (In U.K. it is 4.3% of GNP)

The consumer of justice wants unpolluted, expeditious and inexpensive justice. He is not interested in knowing the causes for delay in disposal of cases. The delay in disposal of cases is resulting in the citizen getting tempted to take law in his own hands and take recourse to extra judicial methods to settle scores and seek redress of his grievance. Delay in disposal of cases also gives rise to many other aberrations which hit at the basic credibility of the institution. The high regard that people have for the judiciary can turn to dismay when faced with the working of the justice delivery system.

The plight of under-trial prisoners is a distressing tale. Despite several pronouncements of the Hon’ble Supreme Court of India and certain High Courts on the subject, under-trials are languishing in jails in large numbers all over the country. Slow progress of cases in Courts and the operation of the system of bail to the disadvantage of the poor and the illiterate prisoners is responsible for the pathetic plight of these “forgotten souls” who continue to suffer all the hardships of incarceration although their guilt is yet to be established. It is the overwhelming congestion of under-trials in jails which is making it difficult for the Prison Administration to ensure that the basic minimum needs of the prisoners such as accommodation, sanitation and hygiene, water and food, clothing and bedding and medical facilities are satisfied. While the prison population reported as 3,36,152 on 30th June, 2004 shows an increase of 10.28% over the prison population reported as 3,04,813 on 30th June, 2002, the overall jail capacity during the period has increased from 2,32,412 to 2,37,617 giving a rise of just 2.24%. There has been a significant rise in the overcrowding in jails in the country as a whole. It was 41.47% on 30th June, 2004 as compared to 31.2% as on 30th June, 2002. The UTPs constituted 75% of the prison population in the country as a whole as of 30th June 2002, their proportion in overall population has come down to 71.14% on 30th June 2004. Although progress is being noticed in some States, the Subordinate Courts are generally found reluctant to make use of this provision whose utility and importance has been emphasized by the Supreme court of India time and again.

For efficient discharge of the responsibilities of the courts, it is essential that the broad confidence, which people have in them, the high prestige and the great respect that they have enjoyed should be maintained and be not allowed to be eroded in any way. The community has tremendous stake in the preservation of the image of the courts as dispensers of justice. Weakening of the judicial system, in the long run, has necessarily the effect of undermining the foundations of the democratic structure. The primary responsibility for projecting the great image of the courts, however, lies with those, who are connected with the functioning of the courts, whether as judges or as lawyers.

One another factor of concern is in the area of administration of criminal justice system. Large-scale acquittals (almost 80%) are eroding public confidence in the effectiveness of criminal justice delivery system. It is natural also because when people see persons accused of heinous and ghastly offences getting acquitted, they believe that either courts are too liberal or pro-criminal or are not functioning the way they ought to function. Unfortunately, they do not know nor do they try to know the reasons for such acquittals. When a crime goes unpunished, the criminal is encouraged, the victim of crime is discouraged and the society in the ultimate analysis suffers, which has an adverse impact on the law and order situation in the country. However, the rising crime rate in the post independence era and the inadequacy of the law in balancing individuals liberty and State’s duty to ensure protection of life and liberty has made the criminal justice system a subject of heated debates but despite the concern over the shortcomings of the system to check the growing crime rate, we are still unable to check the rise in crime. But what appears to be certain is that more police, more prisons, more laws, more courts – will not achieve the object to bring about reform in the system of criminal justice and check the growing crime rate. Giving the victim of crime his rightful place and taking a serious note of his existence, his feelings and his rights with a view to offer redress to him for his ‘injuries’ may in the long run help check the rising graph of crime as well as the low conviction rate.
What I have dealt with are only some of the dimensions of human rights, which we need to address in this century. The list is only illustrative and by no means exhaustive. The finest hour would be reached only when we develop a culture of respect for human rights – let us all work in that direction – that would be a befitting tribute to the memory of the person we honour today.
Thank you.

Opening Remarks by Hon'ble Dr. Justice A.S.Anand, Chairperson, National Human Rights Commission of India (Former Chief Justice of India) at "ROUND TABLE ON NATIONAL INSTITUTIONS IMPLEMENTING ECONOMIC, SOCIAL AND CULTURAL RIGHTS" on 29th November, 2005 at The Ashok Hotel, New Delhi.

Mr.Orest Nowosad,
Excellencies,
Distinguished Participants,
Ladies & Gentlemen.

On behalf of the National Human Rights Commission of India, I extend to the distinguished delegates, participating in the Round Table Meet of The National Institutions to discuss 'Ways to implement Economic, Social and Cultural Rights', a very warm welcome. The National Human Rights Commission of India is, indeed, privileged to host this Round Table meeting at New Delhi - jointly with the office of the High Commissioner for Human Rights.
The purpose of the Round Table Meet of the representatives of the National Human Rights Institutions is to discuss the roles of the National Institutions to meet the challenges of protecting and promoting Economic, Social and Cultural rights in their respective countries.

In democratic societies, fundamental human rights are broadly classified into civil and political rights on the one hand and economic, social and cultural rights on the other. The object of both sets of rights is to make an individual an effective participant in the affairs of the society. Unless both sets of rights are available, neither full development of the human personality can be achieved nor can it be said that true democracy exists. Unfortunately, however, protection of economic, social and cultural rights compared to the protection of civil and political rights, both at the national and international level, has been poor and irregular. The UN Committee on Economic, Social and Cultural Rights (CESCR) is taking a robust attitude towards practical implementation of economic, social and cultural rights. It was recognized by the UN in 1986 when it acknowledged the Right to Development as a human right. The right to development as formulated in the 1986 UN Declaration is a synthesis of the two sets of rights. The distinction, long made, between civil and political rights on the one hand and the economic, social and cultural rights on the other was put to rest by the Vienna Declaration and Programme of Action, which affirms that "all human rights are universal, indivisible and inter-independent and inter-related". The Declaration, however, will amount to a little more than an aspiration so long as economic, social and cultural rights are not protected and promoted. The National Human Rights Institutions have a great role to play to correct the fallacy of treating one set of rights as inferior to the other set of rights so that they can implement economic, social and cultural rights in the political and social contexts in which they operate.
I must compliment Mr.Orest Nowosad, Coordinator, National Institutions Unit, Office of the High Commissioner for Human Rights to have thought of the idea of the Round Table of National Institution at this particular time, when the Human Development Report, 2005, records:
§ Every hour 1200 children die. One crore (Ten Million) children every year do not live to celebrate their fifth birthday;
§ More than 100 crore people survive on less than one dollar a day;
§ 250 crore people live on less than two dollars a day;
§ The world richest 500 individuals have a combined income greater than 40 crore of world poorest;
§ As many as 250 crore people account for less than 5 percent of the worlds income.

The Human Development Report estimates a cost of $300 billion for lifting 100 crore people above the extreme poverty line. This amount represents just 1.6 percent of the income of the richest 10 percent of the world's population.
These statistics demonstrate that there exist massive inequalities, more particularly in the developing countries, which render the enjoyment of Human Rights rather illusory. The political freedom would not have much of significance or meaning for the teeming millions of people in various countries who suffer from poverty and all social evils flowing from it unless economic, social and cultural rights are assured to them. The National Institutions need to address violations of economic, social and cultural rights as forcefully as they address those of civil and political rights.
This Round Table would provide the delegates an opportunity to have an in-depth discussion about the ways to implement economic, social and cultural rights. In an increasing number of constitutions of various countries, Economic, Social and Cultural Rights are acknowledged but they are usually stated to be non-justiciable. With over one-fifth of the world's population continuing to suffer from hunger, poverty, lack of health-care facilities and illiteracy, there is today an urgent need to seek means by which these rights can be enforced if the States fail to comply with the obligations they have voluntarily undertaken.
In India, thanks to the judiciary, the courts have been reading Civil and Political Rights into the Economic, Social and Cultural Rights by construing the two sets of rights harmoniously - by expanding the concept of "right to life and liberty" to mean the right to live with human dignity and all that goes with it. The courts in India have related health care, food security and elementary education with "Right to Life" and thereby ensured their "enforceability". It is also the firm view of the Indian Commission, that we must accept indivisibility and inter-related nature of the two sets of rights for full development of human personality. To effectively implement economic, social and cultural rights, we need to adopt a rights based approach. During the next two days, the delegates would be able to gain from each other's experience to promote Human Rights and usher in a "Better Tomorrow".

To the delegate,
I would like to take this opportunity to thank you for responding to the invitation and coming all the way to New Delhi. We, at the National Human Rights Commission, India, have endeavoured to take sufficient care for your comfortable and pleasant stay in India. I would request the delegates to kindly bear with us in case there have been any shortcomings.
You would have received a letter from our Joint Secretary giving you various details including the contact numbers of the team of officials of National Human Rights Commission, India, who shall be there at your disposal for any assistance you may require.
We have made arrangements for some local sight seeing after the conclusion of the Round Table on 1st December, 2005. The sight-seeing trip will include visit to some monuments of great historical importance, but of course, there will also be time for your shopping. You can loosen your purse strings without hesitation!
I would take this opportunity to thank the office of the High Commissioner for Human Rights and in particular Mr. Orest Nowosad, Coordinator, for their support in preparing the background paper and bringing out the Handbook on Economic, Social and Cultural Rights, besides for making other arrangements. I also wish to acknowledge the participation of the members of the UN family, who are here with us today.
On behalf of Members and staff of the NHRC, India and on my own behalf, I wish you all a pleasant and comfortable stay at New Delhi and free, frank, meaningful and fruitful discussions at the Round Table.
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Inaugural Address by Dr. Justice A.S. Anand, Chairperson, National Human Rights Commission at a Seminar on “Neglect of Economic, Social and Cultural Rights – A Threat to Human Rights” organized by the Indian Law Institute (Chennai Chapter) at Chennai on 26 November 2005

Human rights, which inhere in every human being by virtue of his birth as a member of the human family are demands to protect our only common identity as human beings. No compromise with violations of the same is permissible in any civilized society. These rights, which are non-negotiable, non-alienable, indivisible and recognize an essential worth of a human being and acknowledge the dignity inhering in all human beings, irrespective of their race, sex or economic level of living, are ethical norms for the treatment of individuals. Human Rights are, thus, certain rights which have come to be recognized as basic conditions of civilized living for full development of a human being.
In democratic societies fundamental human rights and freedoms are put under the guarantee of law and therefore, their protection becomes an obligation of those who are entrusted with the task of their protection. These rights are broadly classified into civil and political rights on the one hand and economic, social and cultural rights on the other.
The classification of these rights is, however, more dialectical than real. While the former are more in the nature of injunction against the authority of the State from encroaching upon the inalienable freedoms of an individual, the latter are demands on the State to provide positive conditions to capacitate the individual to exercise the former. The object of both sets of rights is, to make an individual an effective participant in the affairs of the society. Unless both sets of rights are available, neither full development of the human personality can be achieved nor true democracy can be said to exist. Unfortunately, protection of social, economic and cultural rights compared to protection of civil and political rights, at both national and international level has been poor and irregular.
As I have just said that protection and promotion of Human Rights is basic for civilized existence, therefore, the Theme of this seminar “Neglect of Economic, Social and Cultural Rights – a Threat to Human Rights” assumes great relevance and significance. Millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education. According to a UN Report, “1/5th of the population in a developing country, like ours, are hungry every night; 1/4th do not have access to basic amenities like drinking water; and 1/3rd live in a state of acute poverty”.

According to the Human Development Report 2005:
• Every hour 1,200 children die. One crore children every year do not live to see their fifth birthday;

• More than 100 crore people (the size of India’s population), survive on less than one dollar a day

• 250 crore people (about 40 per cent of the world’s population) live on less than two dollars a day.

• The world’s richest 500 individuals have a combined income greater than 40 crore of the world’s poorest.

• As many as 250 crore people account for less than 5 per cent of the world’s income.

The Human Development Report estimates a cost of $300 billion for lifting 100 crore people above the extreme poverty line. This amount represents just 1.6 percent of the income of the richest 10 percent of the world’s population.
As human rights and fundamental freedoms are indivisible and interdependent, equal attention and urgent consideration needs to be given to the implementation, promotion and protection of economic, social and cultural rights as otherwise their neglect shall pose a great threat to Human Rights.
In 1948 when the Universal Declaration of Human Rights was adopted as “a common standard of achievement of all peoples and nations” there were reservations by many State Governments. Virtually all States shielded behind Article 2(7) of the UN Charter in arguing that human rights matter were strictly an internal matter of the States concerned. This view today, mercifully, receives very little credence from the International community which accepts universality of human rights all over.
Due to reservations of State governments, the Universal Declaration of Human Rights was not presented to the General Assembly as a treaty for ratification which would be binding upon the signatory nations, but an instrument to be endorsed as “a statement of goals and aspirations – a vision of the world as the International community wanted it to become”. The Declaration was adopted by an affirmative vote of 48 member States and 8 abstentions. A UN Commission on Human Rights was set up. The Commission’s mandate was confined to the drafting of new treaties and other legal instruments.
The Universal Declaration of Human Rights adopted by the General Assembly on 10th December, 1948, was followed by two Covenants – International Convention on Economic, Social and Cultural Rights (ICESCR) and International Convention on Civil and Political Rights (ICCPR) in 1966. India signed the International Convention on Economic, Social and Cultural Rights in 1979. However, in spite of the Universal Declaration and the two Covenants, widespread violation of human rights continues to occur almost daily everywhere. There is, therefore, some sting but more than a grain of truth in the cynic’s taunt that the only thing universal about human rights is their universal violation.

The Preamble to the 1966 Covenant on Civil and Political Rights speaks of ‘the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedom.’

The enjoyment of certain Economic, Social and Cultural rights, set out in articles 26 to 28 of the Universal Declaration of Human Rights and elaborated in the International Covenant on Economic, Social and Cultural Rights as well as in a number of international conventions adopted by specialized agencies and other intergovernmental organizations, cannot be adequately ensured merely by the enforcement of existing laws or the passage of new ones but can only be achieved progressively through gradual improvement of the Economic, Social, and Cultural situations in which people live.

The UN Committee on Economic, Social and Cultural Rights (CESCR) is taking a robust attitude towards the practical implementation of these rights under the ICESCR. This was recognized by the United Nations in 1986 when it acknowledged the right to development as a human right. The right to development as formulated in the 1986 U.N. Declaration is a synthesis of the two sets of rights. The developments both in the capitalist and in the communist world till date have also demonstrated the validity of this holistic approach to human rights and the futility of insisting on one set of rights and ignoring the other. The distinction long made between civil and political rights on the one hand and the economic, social and cultural rights on the other was finally put to rest by the Vienna Declaration and Programme of Action which affirms that ‘All human rights are universal, indivisible and interdependent and interrelated’. This declaration, however, will amount to a little more than an aspiration so long as economic, social and cultural rights, unlike civil and political rights, are considered non-justiciable and thus not enforceable.

At the domestic level, while Economic, Social and Cultural rights are acknowledged in an increasing number of constitutions, they are usually stated to be non-justiciable. With over a fifth of the world’s population continuing to suffer from hunger, poverty and illiteracy, there is today an urgent need to seek means by which these rights can be enforced when states fail to comply with the obligations they have voluntarily undertaken.

Millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education.

According to UNDP Report of 2003, Indian society is highly inequitable society where richest 10% consumes 33.5% of resources and poorest 10% gets only 3.5% of resource. Around 233 million people are chronically hungry. Official figures state that in the country 26% people are living Below Poverty Line. However, in the Alternative Economic Survey 2000-01 based on the National Sample Organisation Survey, it is shown that the number of people living below poverty line in the rural areas has increased from 35% in 1990 to 45.3% in 1998.

Around 51% of the population does not have sustainable access to affordable essential drugs. Infant Mortality rate is 68 per 1000; under 5 child mortality rate is 93 per 1000; 26% children are under weight; and 24% of the population is undernourished. Maternal mortality ratio is 440 per 1,00,000 and 72% of the population does not have access to improved sanitation (UNDP Report 2003).

In his, perhaps the last speech before the Constituent Assembly, Dr. B.R. Ambedkar – the architect of India’s Constitution – prophetically warned that India was

“going to enter into a life of contradiction. In politics we will be recognizing the principle of one man, one vote, one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to defy the principle of one man, one vote, and one value. How long shall we continue to live this life of contradiction? How long shall we continue to deny equality in our social and economic life? If we continue to deny if for long, we shall do so by putting our political democracy at peril. We must remove this contradiction at the earliest possible moment or else those who suffer inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”

The Constitution of India is a store-house of social justice but the concept of social justice is flexible, dynamic and relative. Its form varies from place to place and from time to time. Social justice is a generous concept which assures to every member of the society a fair deal. Any remedial injury, injustice, inadequacy or disability suffered by a member, for which he is not directly responsible falls within the liberal connotation of social justice. Thus, social justice is the basis of the progressive stability of society and the right to life and liberty, as explained and expanded under Article 21 of the Constitution of India, is a part of social justice. Social justice to be meaningful and purposeful must be rooted in the acceptance of human dignity of every man. The whole scheme of the Constitution of India is aimed at to secure justice-social and economic. The seeds of socio-economic justice were sown by the freedom fighters during the freedom struggle, because they were convinced that political freedom is not and cannot be an end in itself. The political freedom has no significance or meaning to the teeming millions of this country who suffer from poverty and all social evils flowing from it unless the socio-economic content of history is assured to them.

The expression ‘Socio-Economic Justice’ is not a constitutional rhetoric or political claptrap meant for heroic sloganeering. It is the conscience and soul force of the supreme law of the land. The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of a welfare state.
In the Constitution of India, the civil and political rights are incorporated as Fundamental Rights and are made enforceable. The economic, social and cultural rights are enshrined as the Directive Principles of the State Policy and though not enforceable, are made fundamental in the governance of the State. In a way, the Fundamental Rights and the Directive Principles of State Policy are the product of human rights movement in the country. Roughly they represent, two streams in the evolution of human rights, which divide civil and political rights on the one hand and social, economic and cultural rights on the other. Justiciability is, essentially speaking, the basis of division between them. While fundamental rights are justiciable, directive principles are not.
The distinction, between the two sets of rights has, however, to be viewed from the historical context of the time when the Constitution was framed. Perhaps, in the backdrop of the then social-economic conditions of the Indian society, after about two hundred years of colonial subjugation, the framers of the Constitution evolved two sets of rights.
Perhaps, it was on account of realizing practical difficulties in the enforcement of directive principles by the courts, that the founding fathers settled for their judicial non-enforceability but made them “fundamental” in the governance of the country. Thus, the directive principles cannot, in any way be considered less important than fundamental rights. The resolve of the Preamble is elaborately repeated in the directive principles which, among others, specifically require, the State to minimize the inequalities in income and to eliminate inequalities in status, facilities and opportunities. The directive principles require the state to take special care of education and economic interests particularly of the vulnerable sections of the society.

The primacy between the fundamental rights and the directive principles, which are also sometimes described as the primary and the secondary rights respectively, has been a matter of considerable debate in the courts. The law which has come to be developed in this country on the subject today, seeks to harmonise the Fundamental Rights with the Directive Principles and, thereby synthesise the civil and political rights with the economic, social and cultural rights. The courts have been reading Fundamental Rights into the Directive Principles and expanding civil and political rights to include in them the economic, social and cultural rights and construing the two set of rights harmoniously. The development of human rights jurisprudence in the country is basically based on the Supreme Court expanding the concept of “right to life and liberty” under Article 21 so as to make the enjoyment of social, economic and cultural rights a reality.

Dr.B.R. Ambedkar, Chairman of the Constitution Drafting Committee, interpreting the nature of Directive Principles, opined that they would be the guiding principles of governance. However, the Government of India, as statistics tell us, never whole-heartedly pursued the implementation of Directive Principles. The government dilly-dallied implementation of each principle generally citing the reasons of resource crunch. Thanks to the judiciary, the Directive Principles started getting importance when the Judiciary stepped in and interpreted the underlying principles of Directive Principles. The distinction between civil and political rights and the economic, social and cultural rights has been narrowed by judicial interpretations. Realising that the Fundamental Right to live with dignity was not possible without proper realization of economic, social and cultural rights, the court did not favour the concept of treating the Fundamental Rights as superior to the Directive Principles.

In State of Kerala vs. M. Thomas [1976 (2) SCC 310] the Supreme Court commented that the Fundamental Rights and the Directive Principles were complementary.

In the case of Francis Coralie Mullin vs. the Administrator, Union Territory of Delhi[1981 2 SCR 516], the Supreme Court declared:

“The right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

The courts in India have also related healthcare, food security and elementary education with the Right to Life by expanding Article 21 of the Constitution, thus making these rights justifiable.

Following the judgment of the Supreme Court in Unni Krishnan v. State of AP [1993 (1) SCC 645] the Union Parliament adopted 86th Constitutional Amendment whereby elementary education has been made fundamental right in the Constitution.

Similarly in Bandhua Mukti Morcha v. Union of India in 1984 the Supreme Court held that the ‘right to life’ must include the right to health for the enjoyment of the human life with dignity. Thus, it is seen that the law which has come to be developed in this country on the subject today seeks to harmonise the fundamental rights with the directive principles and, thereby, synthesise the civil and political rights and the economic, social and cultural rights. The inter-dependence of both set of rights is essential for full development of human personality. We must accept that indivisibility and inter-related nature of the two sets of rights is now a reality.

With the growth of consumerism and the destruction of natural environment, the threat not only to the quality of life but also to life itself is becoming more and more real, when, therefore, cases are brought to the notice of courts, it becomes their imperative duty to take suitable action by balancing the need of the society for economic growth with the right of the people to lead life in a healthy environment. The Courts can and indeed are obliged to give both preventive and corrective directions to safeguard the environment and ecology and thereby human life.

The mandate of Article 37 of the constitution is that even though directive principles are not justiciable or enforceable by the courts, the same are “fundamental in the governance of the country” and it shall be the “duty” of the State to apply these principles.

The achievement of the Courts in promoting human rights would largely depend upon their success in synthesizing the civil and political rights with the economic, social and cultural rights by evolving a systematic approach whereby economic, social and cultural rights are assured to the have-nots to enable them to exercise their civil and political rights equally effectively with the haves. Unless, such synthesizing and systematic approach is adopted, there will always remain in the society, a sizeable deprived section – and this section forms the increasing majority in all developing countries. The neglect of Economic, Social and Cultural Rights also gives rise to conflicts which are threatening the democratic societies worldwide. It cannot be denied that disillusionment with a society where there is exploitation and massive inequalities and whose systems fail to provide any hope for justice are fertile breeding grounds for conflicts, which more often than not thrives in environments where human rights and more particularly Economic, Social and Cultural Rights are denied by the State and political rights are violated with impunity both by the State and the non-State actors. Systemic denial of Economic, Social and Cultural Rights, like right to food, health, education etc. are caustic factors of conflict and even terrorism. The importance of promoting Economic, Social and Cultural Rights to contain such conflicts must, therefore, be realized and appreciated. The protection and promotion of Economic, Social and Cultural Rights must go hand in hand with protection of Civil and Political Rights for giving human rights a true meaning.

Poverty, itself is the biggest violation of human rights. If hunger persists, peace cannot prevail. In this connection, I would like to point out that one factor which contributes to causing despair and anger among the underprivileged and economically disadvantaged segments of the society arises from the failure of the State to properly execute the poverty alleviation schemes and programmes. The large grants meant for poverty alleviation schemes are often ‘misused’ or ‘diverted’ – due to maladministration, non-accountability, lack of transparency or corruption. It needs to be emphasized that corruption weakens the very foundations of the administrative and legal framework and disrupts the Rule of Law, thereby giving rise to lawlessness and thereby create imbalance.

Having said all this, let me also point out that realization of the fact that both the sets of rights are essential for the full development of man does not, however, detract from the reality that the assurance of civil and political rights generally does not involve taxing of the resources of the State whereas the procurement of economic, social and cultural rights involves outlays of the resources, the extent of which depends upon the size of the deprived sections of the society. It is easier for every society to ensure civil and political rights, the capacity of each society to secure economic, social and cultural rights varies depending among others, upon its population, its resources, its level of economic development, the efficacy of its economic structure and the efficiency of its administrative machinery. Depending upon the economic organization of the society and the extent of the economic and social inequalities prevailing in it, the nature and degree of the conflict between the rights of the haves and the have-nots also varies. To secure economic, social and cultural rights for the have-nots and to ensure that the existing inequalities do not empower the haves to dominate the have-nots in the exercise of their civil and political rights, a balanced approach is necessary. In the developing countries in particular, where economic and social inequalities are galore, the courts are constantly called upon to resolve this conflict between the rights of a tiny section of the haves with those of the vast majority of the have-nots. The State, thus, has to adopt an appropriate approach for promoting human rights – an approach which seeks to harmonize and promote the rights of all.

Till the Government does the needful, let the courts, within the bounds of law, use their creativity and implement the spirit of the covenants through purposive approach while interpreting the statutes including the Suprema Lex. This can be done in the exercise of the public law jurisdiction of the courts – one of the essential attribute of which is to civilise and discipline public power for the betterment of the society.

Since the directive principles have been mandated to be “fundamental” in the governance of the country, it is obligatory on the States and its officials to not only protect and promote social, economic and cultural rights but also to ensure that their protection is a reality and not merely a pious hope or an illusion. This will be a guarantee to the society for “hope” of a “better tomorrow”. It is primarily through the directive principles that fundamental rights shall be protected and become meaningful. Together the two sets of rights will create a free and just society and usher in general welfare – avoiding conflicts both internally and beyond which pose a threat to Human Rights. When both set of rights are linked together, much can be done to promote human rights. It can then be said that Human Rights have been made a focal point for without that good governance would remain a distant dream.

Ladies and Gentlemen, I thank you for your patience.
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KEY NOTE ADDRESS BY DR. JUSTICE A.S. ANAND AT NATIONAL SEMINAR ON TRAFFICKING IN HUMAN BEINGS ON 27 OCTOBER 2005 AT INDIA HABITAT CENTRE

Trafficking in human beings has, unfortunately, become an organized transnational crime generating unaccountable profits of more than 8 to 10 billion dollars annually. It is acquiring alarming proportions. Trafficking in human beings is not new. What is new, are the appalling new dimensions it has acquired in recent decades and reached an epidemic proportion. No country is immune. As a form of organized crime, trafficking threatens sustainable development and the Rule of Law because illicit profits may be used for corruption, other criminal activities and in some cases even for promoting terrorism. A National Seminar like the present one is an occasion for introspection and self-assessment. I am sure the Seminar will provide the participants with an opportunity of a healthy discussion and enable them to identify gaps in the existing domestic laws on trafficking and related policies.
Till a few years back trafficking has been used interchangeably with “prostitution” or “commercial sex”. However, trafficking in human beings is not confined only to sexual exploitation. Trafficking in other forms also exists, as for example, children are trafficked to serve as domestic servants, as labour in hazardous industries and sweetmeat shops etc., for begging, for public sports, such as use of male children between the ages 5-10 years as camel jockeys in camel races, bonded labour, smuggling and the like. The only common factor is the exploitation of the marginalized sections by the traffickers.
The traffickers employ a spectrum of methods to enslave trafficked persons. These are:
• Kidnapping;
• Abduction;
• Rape and blackmail;
• Material inducements to parents; relatives, guardians so as to sell female family members;
• Deceit in the form of promises of well-paying, legitimate jobs, better quality of life, and more prosperous status;
• Luring by declaration of love and fake marriage.
• Employment prospects.
Women and children are the most vulnerable amongst the human beings, particularly those from marginalized sections of society and those from poor economic strata. Cascading discrimination, within and outside the household, lack of education, nutrition, health, skills and employment, apart from domestic and societal violence make them an easy prey for the traffickers. Therefore, they need special attention, more so, because nearly half of the world population compromises of women and 1/3rd are children. Statistics tell us that more girls, than boys are even withdrawn from schools to assist in household management, family care along with their mothers and sometimes even to augment family income, reducing their opportunity for better education and jobs which adversely affects their right to development – a recognized basic right.
Trafficking in women and children is a gross violation of human rights. It is the worst form of modern day slavery. Sexual exploitation of women and girls is an obscene threat to the dignity of a female. It indeed is a de-humanising concept to treat human being as commodities or chattels. The problem of trafficking in women and children is both real and present. One of the reasons why it has continued to flourish is the efforts of the authorities to brush the problem under the carpet and not even admit of its existence. Unless we identify a problem, there is no way that steps can be taken to tackle the same.
Historically efforts to combat trafficking have ended up justifying the repressive measures against victims of sexual exploitation – prostitutes – only in the name of their protection. These efforts have neither ended prostitution nor improved their lot. Anti-trafficking measures must take into account the role of the traffickers and steps to protect the rights of the sexually exploited. With a view to meet the problem a gender and rights based perspective is necessary. The primary objective should be to help the victims recover from serious human rights violations and ensure that they are not subjected to further harm or harassment.
Given the clandestine nature of trafficking accurate data has always been difficult to obtain and that has been an important constraint in developing a sustainable and comprehensive strategy to combat trafficking. It was to fill this gap and collect reliable data that the National Human Rights Commission launched an Action Research on Trafficking in women and children with the involvement of Department of Women and Child Development, Government of India and UNIFEM. The research was a multi-centric study carried out in 13 States and Union Territories under the academic insight of a reputed Research Institute – The Institute of Social Sciences. The objective of the research was to study the trends and dimensions of trafficking in order to identify the vulnerability factors and issues which could facilitate the response system to develop and implement policies and programmes aimed at combating trafficking. The Action Research brought to the forefront many depressing but significant findings. Indeed the research did not answer all the questions or concerns and dilemmas but it made an attempt to unravel some of the key issues and posed important questions for those who need further study and exploration. The research put forward several recommendations and suggestions to address the problem. Permit me to just point out some of the findings of the field research to appreciate how serious the problem is.
During the survey, interviews of over 4000 persons were conducted of different stake-holders. Amongst the survivors of commercial sexual exploitation it was revealed that:
• 51.7% were from deprived sections of society.
• The age at first sexual experience of 41.35% was between 7-15 years.
• The age of entry into commercial sexual exploitation before they reach the age of 18 was 61.7% with 45.6% of those who had been sexually exploited even before they reached the age of 16.
From amongst the clients interviewed it was found that:
• 10% were student and 82.3% were married below the age of 35 years, having wives at home;
• Only 67.9% used condoms and 32.1% did not go for any safe sex measures either;
• 82.6% of those interviewed stated that they had never encountered police in brothels, which just explains the poor law enforcement against abusers.
The study also brought out some more facts and figures regarding trafficking. It illustrated a strong linkage between trafficking and migration. It exposed an added dimension in trafficking because of unconventional means of commercial sexual exploitation like sex tourism and exploitation through massage parlours etc. The data collected by interviewing 852 police officials out of the total 4006 persons revealed some shocking facts:

• 40% of the police officials were not aware of the issue of trafficking.
• 54.8% police officials gave no priority at all to trafficking while 25.3% gave it low priority.
• The reporting on trafficking was only of 40% cases and the 60% of the cases go unreported.
• Only 6.6% of the police officials had undergone some sort of training/ sensitization on the issue.
To deal with the issue of trafficking amongst women and children a strategy of 4 R’s is needed.
• Raid
• Rescue
• Rehabilitation
• Re-integration
Raid and Rescue – There is need to associate NGOs and other credible persons. While conducting raid and effecting recovery, there is need to wean away the rescue victims from those who lured or misled them. It is necessary to have temporary shelters and short stay homes for the rescued females. The effort in these homes should be to help restore the dignity of the victims and facilitate them to come to terms with their rights. Steps for counseling and providing vocational training would be useful. We need to have clear cut policies and political Will to tackle the problem. There is also great need for protecting the privacy and identity of the victims. No amount of legislation or penal provisions can be effective unless there is sensitization of law enforcement officials, police officials, judicial officers and other stake-holders. Societal indifference needs to be given a go-by. It should not be considered to be somebody-else’s problem.
Rehabilitation and Reintegration - The aspect of rehabilitation and reintegration of victims of trafficking is challenging task in anti-trafficking measures. The research study has brought out the fact that there is a huge shortage of manpower, infrastructure and resources in most of the existing homes. These need to be replenished and augmented depending on the need. The Superintendents of these homes need to be given powers to cope with emergencies, especially when large number of rescued persons are brought to these homes without advance notice. Police officials have stated that they have to refrain from rescue operations for want of adequate rescue homes where the persons could be lodged. This definitely calls for setting up of such homes wherever required.
Rehabilitation measures need to be carried out keeping in view the best interests of the trafficked victim/survivor. The Department of Women and Child Development’s National Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children has specifically made some provisions for rehabilitation. This needs to be looked into in the light of the findings of the research.
I would like to emphasise that once the victim is rehabilitated, it is not in her interest to recall her to the court of law for any purpose including giving of evidence, as she is then compelled to revisit the trauma and indignity. It would be better, therefore, to take into consideration the statement given by her before repatriation and act accordingly. If, however, her recall is necessitated, it should be done in such a way that it causes least harm to her. This is because dislocating her from the rehabilitated ambience causes severe displacement.
Reintegration is one of the most difficult stages within the anti-trafficking process, especially in the case of girls returning from the sex industry. We all know that incidence of reintegration at the family and community levels has been low and painstakingly slow. Being in long-term process, it must be planned, taking into account the specific short and long-term needs of individual victims. And the overall aim should be to protect the rights of the victims.
In accordance with the mandate of the Constitution of India prohibiting trafficking, the Government of India enacted the Suppression of Immoral Traffic in Women and Girls Act, 1956, which criminalizes trafficking. The Act does not prohibit prostitution, but it does prohibit prostitution related activities such as keeping a brothel or allowing premises to be used as a brothel, living on the earnings of prostitution and procuring, inducting or taking a woman or a girl for purpose of prostitution. The Act was amended in 1986 and renamed as the Immoral Traffic (Prevention) Act (ITPA). The ITPA introduced several initiatives including setting-up of Protective Homes to provide protection and services to victims and education and vocational training to at-risk groups. The Act also provides for the appointment of Special Police Officers assisted by women police to investigate trafficking offences, and for the setting up of Special Courts.
The implementation of the ITPA is hampered by the existence of certain Sections, such as, Sections 8 and 20, which are the most commonly invoked Sections for any enforcement being done under the ITPA. These Sections result in prosecution of the trafficked persons and result in further victimization of the victims / trafficked persons. It has been found that instead of prosecuting the traffickers under Sections 3, 4, 5 and 6, most prosecutions take place under Section 8 of the ITPA. It is thus seen that there are enormous gaps in the ITPA, which need to be addressed to. At this seminar you can consider what amendments are required to be made so that focus is more on the traffickers including enhancement of penalties against them. Dialogue between the judicial officers, police officers, Government officials and representatives of non-governmental organization at this seminar would be a useful exercise to arrive at some meaningful recommendations.
Having said all this let me be candid about our role. Unless we stop commoditisation of human beings – unless we stop treating them as chattels, fit for trade only, no amount of amendments of law or strict enforcement would help. The society needs to change its mind-set. It must respond to the problem as its own and not somebody-else’s baby. The amendment of the law would help indeed to book those who continue to trade in human beings but for that the legislation may provide the basis but not the answer. It would require great sensitization on the part of law enforcement agencies, the police and the judiciary as well as the civil society. Unless each one of them becomes sensitive to the whole issue, it would not be possible to tackle this growing organized crime which is threatening the very fabric of the society. It is late but not too late. We can and we must wake up and rise to the occasion. Let us commit ourselves to tackle the issue and not to brush it under the carpet.
With these remarks, I hope the participants in the Seminar would examine and review the implementation of laws and policies related to trafficking and that the discussions would be meaningful and the results fruitful. Workshops are often held to be forgotten. I hope and wish it would not be so in this case. I wish the Seminar every success.

 

CHAIRPERSON'S SPEECH AT THE 10TH ANNUAL MEETING OF THE ASIA PACIFIC FORUM IN ULAANBAATAR, MONGOLIA ON 25TH AUGUST 2005

Introduction

During 2004, the National Human Rights Commission continued in its pursuit of the task of “better” protection and promotion of human rights in fulfillment of the mandate bestowed on it under the Protection of Human Rights Act, 1993.

            During the period, Dr. Justice A.S. Anand continued to serve as the Chairperson of the Commission with Shri R.S. Kalha, Justice Y. Bhaskar Rao  and Shri P.C. Sharma as Members.  Dr. Justice Shivaraj V. Patil, former Judge of the Supreme Court assumed office as Member, NHRC on 3rd February 2005 consequent on demitting of office by   Justice Smt. Sujata V. Manohar, Member.    The Commission continues to be benefited by the presence of Special Rapporteurs appointed by it to aid and assist it in several key areas of human rights.

 Similarly, the Commission has also been benefited by the system of Core Groups which have been constituted by the Commission in areas where it felt the need to have expert opinion on complex issues. These Core Groups   consist of eminent persons in specialized fields, who have given their valuable time to the Commission in spite of their busy schedules. Core Groups have been set up, inter-alia, on the Right to Food, on Mental Health, on emergency medical care, on Health, of Lawyers.

 Right to health care

The Commission, in partnership with an NGO, held public hearings on Right to Health care in five regions of the country followed by one at the National level in New Delhi. During the day-long public hearings, selected cases or instances, wherein individuals or groups who have suffered denial of right to health care and have not received mandated health care from  Public and private health facilities, were presented.  In these public hearings, the Commission brought victims, NGOs and concerned authorities on the same platform, which helped in the resolution of individual problems, identification of systemic problems and forging of partnerships. Over 1000 victims from marginalized sections presented their testimonies.  Their complaints are being redressed by the Commission and the concerned authorities. Systemic improvement in health care have been suggested to all concerned authorities.  The active participation of NGOs and State Governments have contributed considerably to the success of this programme.

                 The National Public Hearing was held in New Delhi on 16-17 December, 2004, in which the civil society representatives presented structural deficiencies noted in the various regional public hearings, followed by delineation of state-wise systemic and policy issues related to denial of health care. Special presentations were made on issues such as women’s right to healthcare, children’s right to healthcare, mental health rights, right to essential drugs, health rights in the context of the private medical sector, health rights in situations of conflict and displacement, health rights in the context of the HIV/AIDS, and occupational and environmental human rights. A National Action Plan to operationalize the Right to Health Care was proposed. Detailed recommendations on right to health care were made in the National Action Plan to the Government, State Human Rights Commissions and NGOs and health service networks.

 Trauma care project

            The Government has planned a Rs. 1000 crores (US $ 220 million) project to create an extensive trauma service network across the country  to tackle highway accidents. The project got its final push following a recommendation by the Indian National Human Rights Commission.   

 Human Rights and HIV/AIDS

 Deeply concerned about violations of human rights of those affected/infected by HIV/AIDS, the Commission made detailed recommendations to all concerned authorities based on the National Conference organized by it in New Delhi on 24 - 25 November 2000, in collaboration with the National AIDS Control Organization, Lawyers Collective, UNICEF and UNAIDS. The recommendations cover areas such as; consent and testing, confidentiality, discrimination in health care, discrimination in employment, women in vulnerable environments, children and young people, people living with or affected by HIV/AIDS and marginalized populations.

Acting on a press report regarding significant increase in the prevalence of HIV positivity among pregnant women attending antenatal clinics in Andhra Pradesh, one of the States in the country, the Commission made recommendations to all authorities on the prevention of mother-to-child transmission of HIV/AIDS.  The Commission is also taking steps to spread awareness about Human Rights and HIV/AIDS. It has published an ‘info kit’ on HIV/AIDS and Human Rights for wide dissemination amongst the general public. The Commission has also taken up the issue of production of six video spots with the Government  and also offered technical assistance in this regard.

 Deeply concerned by the plight of children affected by HIV/AIDS, the Commission addressed the Government to take steps to prevent discrimination of such children in access to education and healthcare.  In particular, the Commission has asked the government to;

·        Enact and enforce legislation to prevent children living with HIV/AIDS from being discriminated against, including being barred from school

 Rights of the Disabled

             Section 12 (d) of the Protection of  Human Rights Act, 1993 mandates the Commission to review the safeguards provided by the Constitution or any law and make recommendations for their effective implementation. The Commission undertook a detailed investigation of the functioning of many legislations, including the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. A questionnaire was circulated to all the State Governments and UT Administrations to examine range of measures introduced by them in keeping with the obligations of the Act.  Most of the States have neither instituted a mechanism  nor have used existing arrangement to undertake a systematic review of the Service Rules, building byelaws etc. in the light of 1995 Act. As a result inconsistencies continue but some improvements have been possible, although with the intervention of Courts and Tribunals.

In order to build capacity for better protection of rights of persons with disability, the Commission took up a project with the Canadian Human Rights Commission and a National Open University in 2003. The project culminated in a National Conference on Disability which was held on 23 June, 2005 in New Delhi. A detailed set of recommendations have been formulated as an outcome of the Project. As disability rights is a new dimension in the human rights regime, much needs to be done to develop awareness and enhance capacity of various institutions, and individuals. The Project can be described as one of the first organized initiatives that has laid the foundation for creating a new disability sensitive generation of legal practitioners. A Manual has been prepared as an outcome of the Project and compiles a range of positive examples of disability jurisprudence. The Commission hopes that the Manual will contribute towards sensitizing and educating lawyers, NGOs, academics, human rights activists and the general public not only in their work but also in their daily interactions as well.            

 National Rural Employment Guarantee Bill, 2004

         In the budget for 2004-05, the Government had announced the National Rural employment Guarantee Scheme, which guarantees a minimum of hundred days of employment in a year to ‘one able bodied person’ in every household. The Commission urged the Government to delete the reference ‘able bodied persons’ and to make appropriate provisions for employment of persons with disability. Following this intervention by the Commission, the National Rural employment Guarantee Bill which was introduced in the Parliament did not restrict the guarantee to ‘able bodied persons’. However, there were other lacunae in the Bill which have been commented upon by the Commission.

Police action on unarmed workers

             Recently, on 26th July, 2005, the Commission took suo-motu cognizance of new items appearing, both, in the press and electronic media about the alleged brutal assault on agitating workers of Honda Motorcycle and Scooters India, a multi national company located in Gurgaon, Haryana, a State neighboring Delhi.    The Commission strongly recommended to the Government of Haryana to take effective steps for getting an independent investigation commenced , preferably by the Central Bureau of Investigation, at the earliest. The Chief Secretary of the State has also been asked to send an action taken report to the Commission. The matter is being closely monitored by the Commission as it considers it to be an issue of grave concern affecting human rights of a large number of industrial workers.  

 Tsunami

The devastating Tsunami that affected many parts of South East Asia did not spare several coastal areas in the southern part of our country. The Commission took suo-motu cognizance of the calamity caused by the Tsunami to ensure smooth distribution of relief. The Commission has especially been concerned that women and children in tsunami affected areas might become victims of widespread trafficking and has, therefore, asked the concerned authorities to prevent this. The steps suggested by the Commission towards providing relief to the victims of the Tsunami include, preparing a computerized list of persons dead or missing as also a list of property which were totally or partially destroyed or damaged. Such a list would enable expeditious settling of insurance claims, hasten the rehabilitation process and help in tracing missing persons. A similar computerized list of widows and children would also be useful to authorities to guard against their exploitation. The Commission has asked for reports from all the concerned authorities and would be closely monitoring the progress on all these matters.      

 Right to Life and Civil Liberties

 i)          Case of Mr.Charanjit Singh, Delhi

Recently, the Commission was instrumental in providing relief to an under trial prisoner who was in Judicial custody for twenty years. The Commission intervened through a Criminal Writ No. 1278/04 before a Division Bench of the Delhi High Court depicting the plight of an under trial prisoner Mr. Charanjeet Singh, who continued to remain in judicial custody for 20 years, as his trial could not make any progress because of his unsound mind and, since the law prescribes that such a trial shall stand postponed till he is fit to stand trial. Despite prolonged treatment in Government and private hospitals, his condition had deteriorated and finally besides his mental ailment, he was suffering from cancer as well. The High Court noted that it has become clear by now that the under trial prisoner cannot be tried, as there is no chance of reversal of his deteriorating mental and physical condition and as per his medical history and expert opinion, there is no scope of improvement. Keeping in mind all these facts the chargesheet was quashed. The High Court has appreciated the filing of the petition by NHRC for quashing of the chargesheet as an appropriate step, since NHRC was constituted to safeguard the human rights of the citizens of this country. 

            The guidelines issued by NHRC regarding the cases of those who are mentally ill in jail have been quoted extensively by the Division Bench of the High Court in their judgment.  The High Court has directed that necessary scheme on the lines suggested by NHRC shall be prepared within three months and the Bench has further directed to take immediate steps for establishing half way homes for such destitute people.  The Bench has directed to send a copy of the judgment to Delhi Judicial officers likely to deal with mental health cases as mentioned in the NHRC’s guidelines and copies be also sent to Sessions Judges, Additional Sessions Judges and Metropolitan Magistrates so that they pass appropriate orders in such cases.

    ii)       Case of Mr. Jai Singh, Ambala, Haryana

During his visit to Central Jail, Ambala on 18th October 2003, the case of a mentally ill prisoner, Mr. Jai Singh, came to the notice of the Commission. The Jail authorities were requested to send full particulars of the under-trial prisoner giving details of his appearance before the Court. It appeared that after his admission to jail he was transferred to a Mental Hospital, on 9/5/79 for treatment and, thereafter,  was never produced in the trial court.  The under trial prisoner was facing trial in a case but had not been able to stand the trial, presumably because of his mental condition, never produced in the trial court for trial in the said case and continued as an under-trial prisoner for over 26 years. 

            The Commission observed that the relevant provisions of the Code of Criminal Procedure does not adequately address the cases in which the concerned accused fails to recover for a long duration and remain in custody for treatment at such mental hospital because no one comes forward to take his responsibility. The Commission approached the Hon’ble High Court of Punjab & Haryana for appropriate directions in the interest of justice.  Subsequently, the Commission came to know that the case of the under trial prisoner is already being considered along with similar other persons by the Hon’ble High Court.  However, the intervention application filed by NHRC has been allowed by the Hon’ble High Court and the matter is under consideration by the High Court.

 iii)        Case of Mr. Machang Lalung, Tezpur, Assam           

Recently, another heart rending case was brought to the notice of the Commission involving an under trial  prisoner languishing in a mental institution in Tezpur, Assam, since April, 1951. The report of the Special Rapporteur who visited the institution where the under trial was lodged, showed that he was admitted at the age of 23 years as an under trial prisoner. For 15-16 years he was regularly produced before the Board of Visitors. After several years of protracted and apparently contradictory exchanges of correspondence between the institution  and jail officials, the case seems to have been simply forgotten. The Commission took cognizance of the report of the Special Rapporteur and issued notices to the State administration. A report has been received indicating that the prisoner has been released. The matter is under consideration of the Commission.      

 Punjab Mass cremation case

The Supreme Court of India vide its order dated 12/12/96 had referred the Punjab Mass Cremation case to the National Human Rights Commission.  During the period 2004-2005, the Commission heard the matter from time to time and vide its proceedings dated 11/11/2004 it awarded compensation @ Rs. 2.50 lakhs to the next of kin of each of the 109 deceased persons who were admittedly in the custody of Punjab Police at the time of their deaths. The Commission held that the State of Punjab is accountable and vicariously responsible for the infringement of the indefeasible right to life of those 109 deceased persons as it failed to “safeguard their lives and persons against the risk of avoidable harm while in custody of the State”. The Commission has recommended a total amount of Rs. 2,72,50,000/- (US $ 600,000), as compensation to the next of kin of 109 deceased in the matter of Punjab Mass Cremation remitted by the Hon’ble Supreme Court of India.

In  2004-2005, the Commission, in 45 cases, recommended interim relief under section 18(3) of the Act to the extent of Rs. 23,27,000/- (US $ 50,000/-). Since 1993, the Commission has recommended more than Rs.10 crores (US $ 2.2. million) by way of interim relief  in 632 cases. The remaining issues are still under consideration of  the Commission.

Trafficking in Women and Children

            In order to know the trends, dimension, factors and responses related to trafficking in women and children in India, the Commission, in collaboration with the UNIFEM and the Institute of Social Sciences, New Delhi initiated an Action Research on Trafficking in Women and Children in India in the year 2001.  This was completed and its report was released to the public on 24 August 2004.  The report is also available on Commission’s website www.nhrc.nic.in.  This report has made a number of recommendations to prevent and combat trafficking.  The Commission has requested all concerned to implement these recommendations and intimate the action taken in this regard.   

 Judicial Handbook on Combating Trafficking of Women and Children for Commercial Sexual Exploitation

           The Commission and the Department of Women and Child Development, Government of India in partnership with UNICEF have prepared a Handbook for sensitizing the subordinate judiciary on the issue of Trafficking of Women and Children for Commercial Sexual Exploitation.  The purpose of the Handbook is to sensitize the Judicial Officers to the actual situation of the trafficked victims and to provide them with a perspective so that they could proactively safeguard the rights of victimised women and children, through a sensitive interpretation of the law. The Handbook has been finalised and is in the process of being printed by the UNICEF.

 TERRORISM

                 As in previous years, terrorism continued to be a major concern with the world community, including the Governments, the civil society, human rights institutions and voluntary organizations.  This has been more so after the "9/11 incident" which shook the very roots of the most powerful democracy in the world, the USA.  We, in India, had been voicing our concern regarding tackling terrorism at a global level for the past many years, particularly with regard to cross-border terrorism.  The evil of terrorism continued to raise its head again and again and hundreds of innocent people across the length and breadth of this country continued to become its targets.

                 From time to time, the Commission has expressed its views on terrorism and measures to combat it with focus on human rights. The protection and promotion of Human Rights is basic for civilized existence because these rights are demands to protect our only common identity as human beings.  In democratic societies fundamental human rights and freedoms are put under the guarantee of law and therefore, their protection becomes an obligation of those who are entrusted with the task of their protection. There has been a growing consciousness amongst citizens all over the world against violation of human rights.  Strong national and international movements have emerged.

 The Commission is convinced that a proper observance of human rights is not a hindrance to the promotion of peace and security. On the contrary, any lasting peace and long term national security depends on proper respect for human rights. The Commission has emphasized that anti-terrorism measures must, therefore, be consistent  with democracy and human rights, which are fundamental values of our society, and should not undermine them, even inadvertently.

 Gujarat

                        The Commission has continued to play an active role in regard to the events in the State of Gujarat beginning with the tragedy that occurred in Godhra on 27 February, 2002. We have, in our past reports to this Forum explained in detail the steps that had been taken by the Commission on this vital issue.  The intervention of the Commission before the Supreme Court resulted in the Supreme Court  accepting the plea of the Commission for transfer of some of the crucial criminal cases out of the State of Gujarat to ensure justice.  The Commission is keeping itself apprised on the progress of the trial of these cases which are now taking place.    

 Key Human Rights Concerns

Several key thrust areas formed the focus of the Commission’s attention. A brief account serves to highlight, the sensitivity of the Commission’s responsibility as well as it enables all to gain a perspective of work done and still remaining to be done.

Bonded Labour:

The Commission continued to monitor the implementation of the Bonded Labour System (Abolition) Act 1976 as directed by the Supreme Court in its Order dated 11 November 1997 passed in writ petition (civil) No. 3922 on 1985.  The Supreme Court Order has the effect of arming the recommendations of the Commission with force of law.  The Commission, through its Special Rapporteurs, is monitoring the status of bonded labour in the country.   As per the directions of the Apex Court, sensitization Workshops have been organized for sensitizing the District Administration, Police, NGOs and other field functionaries involved in the implementation of the Bonded Labour Act. 

 Child Labour:

The pernicious practice of child labour is still prevalent in some parts of the country. It is only natural for the Commission to not let the issue go to the back burner, as it is of the firm belief that children should not be seen anywhere except at school  or play. The monitoring of the Child Labour situation in the country is being carried out through the Commission's Special Rapporteurs, visits by the Commission, sensitization programmes and workshops, etc. The Commission has been deeply concerned about the employment of children below fourteen years as domestic servants by public servants. It took up the matter with the Central Government and the State Governments to amend the relevant Rules. It is heartening to note that the Central Government and almost all the State governments amended the rules barring employment of children below the age of fourteen years as domestic servants by Government employees, treating it as a misconduct inviting major penalty.    

Manual Scavenging: 

The practice of manual scavenging has been the focus of the Commission’s attention for the simple reason that it is a practice that violates human dignity in a very abhorrent manner. Forcing another human being to carry night soil is just not acceptable to the Commission. The Commission has made known its stand and voiced its anguish at every possible fora. While socio economic reasons do impede the progress towards the abolition of the practice, the Commission feels that effective monitoring and providing viable alternative employment by the Government, would hasten the results. It is in this context, that the Commission has repeatedly taken up this matter at the highest echelons of the Central and State Governments

Rights of the Mentally ill. 

The Commission remained deeply involved in overseeing the functioning of the Government Protective Home for Women in Agra and the Government Mental Hospitals at Agra, Gwalior and Ranchi, as directed by the Supreme Court of India in their Order dated 11 November, 1997. The Commission views this area with concern and therefore, a Member of the Commission has been nominated to head the Core Group on Mental Health.   The Group is in the process of formulating strategies for rehabilitation of long-stay patients cured, but who have nowhere to go.   Under a joint collaborative project submitted by Action Aid India and the Commission, 11 Sensitization Workshops were held in the three mental health institutions.

 Rights of Women and Children

              Dr. Justice Shivaraj V. Patil was appointed in the Commission as Member on 03 February 2005 and subsequently nominated by the Commission to serve as the Focal Point on matters relating to the Human Rights of Women, including Trafficking, in place of Justice (Smt.) Sujata V. Manohar, who demitted office.

 Guidebook for the Media on Sexual Violence against Children

             In order to encourage media professionals to address the issue of sexual violence against children in a consistent, sensitive and effective manner, consonant with the rights and best interest of children, the Commission and Prasar Bharati with support from UNICEF have jointly developed a Guidebook for the Media on Sexual Violence against Children.  The Guidebook is the culmination of four workshops organized in which professionals, legal functionaries, police personnel, communication specialists and media professionals participated.  The Guidebook aims to facilitate media intervention to protect the rights of children against sexual violence.

 National Policy on Resettlement and Rehabilitation:

 The Commission reviewed the provisions of the National Policy on Resettlement and Rehabilitation sent to it by the Ministry of Rural Development. The Commission has noted that the rehabilitation policy has not been made a part of the Land Acquisition Act of 1894. The Commission is of the firm view that resettlement and rehabilitation be incorporated in the legislation proposed to be enacted by the Ministry of Rural Development so that it becomes justiciable. Keeping in view human rights aspects and related public interest involved, the Commission has also sought a copy of the draft legislation in this regard for a critical review.

 Visit of the APF team to India on issue of IDPs 

             The Brookings-SAIS project on Internally Displaced and the Asia Pacific Forum undertook an eighteen month internal displacement project consisting of individual assessment of six institutions in countries experiencing displacement (India, Indonesia, Nepal, Philippines, Sri Lanka, and Thailand) and a regional workshop devoted to the issue to be undertaken in 2005.  A four-member team visited the Commission from 4-7 October 2004 to under take the fifth institutional assessment in the regional programme. The purpose of the visit was to discuss the NHRC’s activities with regard to IDPs and develop recommendations for the Commission’s consideration on means to enhance its role in this are.The recommendations of the Asis Pacific Forums’s IDP Projects team have been considered by the Commission. A number of steps have been proposed to address this issue.

 Prevention and Combating of Child marriage

               The problem of child marriage as such has continued to be a great concern to the Commission.  In order to eradicate the practice of child marriage in the country, the Commission has been working continuously ever since its inception in the year 1993.  With a view to curbing this practice, the Commission in the year 2001-2002 recommended to the Central Government (Department of Women & Child Development) a number of amendments to the Child Marriage Restraint Act, 1929.  In pursuance of these recommendations, the Central Government (Legislative Department, Ministry of Law & Justice) introduced a Bill entitled the Prevention of Child Marriage Bill, 2004, in the Rajya Sabha on 20.12.2004 incorporating almost all the recommendations made by the Commission. One of the key recommendations made by the Commission was to urge the Government to define a ‘Child’ as per the Convention on the Rights of the Child which defines a ‘child’ as a human being below the age of 18 years. The Bill introduced by the Government had defined a ‘child’ as a person who, if male, has not completed 21 years of age and if a female, has not completed 18 years of age.     

 Discrimination based on Caste

Despite elaborate provisions in the Constitution and other laws, it is an unfortunate reality that social injustice and exploitation of Scheduled Castes and Scheduled Tribes and other weaker sections persist.  There are reports in the press about atrocities against persons belonging to these groups and the frequency with which they occur is a cause for disquiet.  The humiliation which persons belonging to the Scheduled Castes in general and the Dalits in particular suffer even today, more than half a century after India proclaimed itself to be a Republic, is a matter of shame.

For the National Human Rights Commission, the protection of human rights is essential for defence of democracy itself-a democracy that is inclusive in character and caring in respect of its most vulnerable citizens.  The Commission holds the view that human rights must be made the focal point for good governance.  The Commission has been quite vocal and outspoken in defence of human rights particularly of the vulnerable sections of the society.  The Commission draws inspiration in its work for defence of human rights from Mahatma Gandhi’s very potent observation:

‘It has always been a mystery to me how men can feel themselves honoured by the humiliation of their fellow beings.’

 The Commission entrusted a Study to  a senior retired civil servant, to go into the  issue of discrimination faced by persons belonging to the Scheduled Castes. The study has been completed and a comprehensive report submitted, which contains a number of recommendations to various authorities. In order to monitor the implementation of these recommendations, the Commission set up a Dalit Cell and placed it under the charge of a Member of the Commission. The Commission has sent its recommendations on the ways and means to prevent atrocities against Scheduled Castes to various authorities, both in the Central and State Governments for taking necessary action.  In particular, States have been asked to

Ø      Identify atrocity and untouchability prone areas and prepare a plan of action;

Ø      Appointment of exclusive special courts where volume of atrocity cases is large and appoint competent and committed special public prosecutors

Ø      A 3-tier Training programme for police and civil functionaries;

Ø      An annual workshop of District Magistrates and Superintendents of Police on implementation of laws in this regard;

Ø      Women officers should be assigned to all atrocity prone areas, with cells   established to entertain complaints;

Ø      Self-help groups of Scheduled Caste women should be given elementary legal training along with sessions on confidence building;

Ø      Identify in each district a NGO which can be approached in case of custodial violence or any other atrocity;

Ø      Panchayats may be sensitized about the issues concerning the Scheduled Castes and various De-Notified Tribes;

Ø      Institute annual awards for the police stations and districts, which emerge as the most responsive to the complaints of the Scheduled Castes.

 The Commission proposes to closely monitor the implementation of these recommendations in the coming years.

 STATE HUMAN RIGHTS COMMISSIONS

Only 14 States have set up State Human Rights Commission.  The Commission has impressed upon all other States to set up Station Human Rights Commissions.  Given the federal structure of the country laid down in the Constitution, every State in the Union is also to constitute Human Rights Commissions. Enabling provisions exist for the purpose in the Protection of Human Rights Act, 1993. The National Human Rights Commission too is keen that such State Human Rights Commissions are set up in every State so that human rights promotion and protection are more easily accessible to every citizen, whatever be the culture she/he belongs to or language she/he speaks. To that end the Commission takes the initiative to hold regular interactions with the State Human Rights Commissions to explore and further strengthen areas of cooperation and partnership. The last interaction with the State Human Rights Commissions was organized by the Commission on 13 May, 2005, in New Delhi. It provided a useful platform for a free exchange of views on a whole range of human rights issues.  For the Commission, it provided a window to the nature of human rights violations affecting a particular area. In the multi-cultural and multi-lingual milieu that India nurtures, the role and importance of State Human Rights Commissions cannot be understated. 

 Coordination & Cooperation with other APF Member Institutions

            The Commission has always endeavored to share information and expertise with other APF member institutions. The Commission has developed an Internet based Complaint Management System (CMS), by which it is possible for a complainant to track the progress of his complaint lodged with the Commission through the internet. The Commission has been privileged to share its expertise with the Nepal Human Rights commission including training of the concerned personnel in handling the software. With the Nepal Commission, we have also imparted training on Investigation techniques, by officials from our Training division. A team from the APF Secretariat and the Jordan National Center for Human Rights had visited the Commission to understand the procedures and functioning of the Commission. Particular interest was evinced in the CMS package during the visit.     Our Commission is also in the process of sharing the CMS package with the Jordan National Center for Human Rights.

             The Commission has remitted an amount of US $ 100,000 as our contribution to the APF during the year 2004-05.

 The Commission was also privileged to receive several dignitaries, distinguished visitors as well as students, from overseas during the year.  Some of the visitors included:-

 A fifteen-member group of students from the Asia Pacific Human Rights Information Center, Osaka, Japan visited the Commission on July, 26th, 2004.

A delegation of senior officials from the United Kingdom visited the Commission on July 13, 2004.

Ambassadors from the European Union visited the Commission September 21, 2004.

A group of member of European Parliament from the South Asia Delegation (SAD) in the European Parliament visited the Commission on November 2, 2004.

Ambassador of the Arab Republic of Egypt visited the Commission on November 16, 2004.

A 11 member delegation from the Iranian Ministry of Education visited the Commission on January 20, 2005.

A delegation headed by H.E. Mr. Abdulrahim Mohamed Hussein, Interior Minister of Sudan visited the Commission on January 27, 2005.

H.E. Dr. Boutros Ghali, Former Secretary General of the United Nations and President, Human Rights Commission, Egypt visited the Commission on February 8, 2005.

 Mr. Saleh Al-Zubi, Executive Director, Jordan National Centre for Human Rights visited the Commission from 7-9 February, 2005, to understand the procedures being followed in the Commission.

 A delegation from the German Parliament’s German-Indian Friendship Group visited the Commission on February 10, 2005.

             Sr. Emilio Menendez  del Valle, Socialist Group in the European Parliament and Special Rapporteur  on EU-India strategic partnership relations visited the Commission on the 26th May, 2005.

The  Chairperson of the Commission was invited as Guest of Honour at a luncheon of EU Ambassadors in  New Delhi.

(1)               "Know Your Rights" Series of Booklets on Human Rights

 The Commission decided to bring out a series of booklets titled "Human Rights" on the pattern of booklets brought out by the United Nations. Eight booklets on human rights themes were brought out in collaboration with the reputed National Academy of Legal Studies and Research University (NALSAR), Hyderabad. These booklets were released on December 10, 2004 on the Human Rights Day.

The booklets were also translated into four regional languages and are also proposed to be translated into all the regional languages. 

 Complaints before the Commission

The total number of cases registered in the commission during the financial year 2004-05 was 74,401. The corresponding figure for the year 2003-04 was 72,990. This is a quantum jump from the figure of 496 cases registered in the first six months of the Commission’s existence. It is also a barometer of the enormous trust and faith reposed in the Commission’s sincerity of purpose. 

 Non-Governmental Organizations

Encouraging the efforts of the non-governmental organizations (NGOs) working in the field of human rights is a statutory responsibility of the Commission under Section 12(i) of The Protection of Human Rights Act, 1993.  The promotion and protection of human rights cannot gather momentum without the fullest cooperation between the Commission and the NGOs.  In order to strengthen the relationship with NGOs, the Commission has been holding a series of consultations with NGOs and voluntary organizations engaged with the promotion and protection of human rights, on a regional basis.  The Commission provides financial assistance to credible NGOs for organizing seminars, workshops, etc. associated with  spreading human rights awareness amongst the people.

             A Core Group of NGOs has been constituted under section 12(a) of the Protection of Human Rights Act, 1993 to encourage the efforts of the Non-Governmental Organizations (NGOs) and institutions engaged in the field of human rights. The Core Group provides the Commission with crucial inputs regarding the hopes, aspirations and expectations of the civil society from the Commission.

 Conclusion

The quest for a just, equitable and fair society is indeed a noble endeavor. But it is a march, where there is no time even to pause except to reflect and to introspect. India, is a vibrant democracy of more than one billion people. It has a free press where young responsible reporters bring out stories which otherwise escape attention. It has civil rights activists who spend their lifetime spreading awareness of people’s rights and empowering the weak and the vulnerable. A firm, fair and socially conscious Judiciary keeps an eagle eye on the happenings, or rather the mis-happenings that take place! The Commission is privileged in having a crucial link with the judiciary and believes that complimentarity with the judiciary is very useful to protect and promote Human Rights.


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INAUGURAL ADDRESS AT CAPACITY BUILDING STATE LEVEL WORKSHOP ON “HUMAN RIGHTS AND HIV/AIDS” DELIVERED BY: DR. JUSTICE A.S. ANAND (FORMER CHIEF JUSTICE OF INDIA) CHAIRPERSON NATIONAL HUMAN RIGHTS COMMISSION ON 22ND JULY, 2005 AT: C.I.I. HALL, CHANDIGARH ORGANIZED BY: Family Planning Association of India in collaboration with National Human Rights Commission & State AIDS Control Society, Chandigarh

            At the outset I would like to congratulate the Panchkula Branch of the Family Planning Association of India for organizing a State level workshop to create awareness on Human Rights and HIV-AIDS which poses a serious threat to the country as a whole.  Though HIV-AIDS was first noticed in 1981, in India it was first detected in 1986. 

            As a result of the rapid spread of the disease since then, India holds the second largest number of HIV infections in the world today. With around 5.1 million HIV infections in the country (2003), India accounts for nearly 10% of the world’s HIV/AIDS cases. While initially the higher prevalence rates were amongst vulnerable populations such as truck drivers, injecting drug users and sex workers, transmission of the virus from these groups is increasing and the infection is spreading to the general population. This shift is not only towards women but towards the youth as well. Today AIDS affects mainly young people in the sexually active age group, with 87.7% being in the age group of 15-44 years. There is also a reported shift of the disease from urban to rural areas.  This is mainly due to migrant workers who are highly mobile and often unknowingly transmit the disease to their partners back home by unprotected sex.  Most individuals among the mobile population are not aware of their personal risk for HIV infection because they are not resident anywhere long enough to receive targeted behaviour change communication messages and essential prevention education. HIV-AIDS has no geographical barriers. Sex-workers are particularly vulnerable as well as transmitters and carriers because of multiple partners. According to estimates, 4,50,000 girls and children are trafficked every year in South-East Asia and 2,20,000 such people are from the Asia-Pacific Region.  One factor – crucial – and peculiar for HIV-AIDS is, it is largely associated with sex and sexuality which most individuals and societies find uncomfortable to talk about, let alone deal with, because HIV is a highly stigmatized disease. 

            In February 2005, a report of November, 2004, published by the National Aids Control Organization (NACO) indicated that out of 1,02,733 AIDS cases in India, 29,530 were women and 37% of the cases reported were of people under the age of 30. The women affected include housewives in their early reproductive age group with single partners who get infected through unprotected sex with infected spouses. This is particularly disturbing, as it has resulted in an increase of mother to child transmission of HIV/AIDS.

            HIV-AIDS has, thus, emerged as a serious public health crisis.  Since, it is not only a medical problem but has also psychological and social dimensions, it requires a multi-pronged and multi-disciplinary approach.  The victims suffer in an atmosphere of silence, fear, prejudice, stigma, discrimination and denial of care and treatment.  Quite often the discrimination takes extreme forms, resulting in removal from employment and education, insurance, medical benefits and ostracisation.  The resultant effect is that infection spreads and continues unabated.

                HIV-AIDS is a cause for concern as the effects of HIV-AIDS multiply far beyond the infected individual.  At the family level, a person with HIV-AIDS will severely compromise household resources as the functional capacity to work is reduced, medical expenditures increases and the income of both the infected individual and those who care for that person is lost.  Reduced income in turn threatens food supply, the ability to pay for the education or health of surviving family members.  In other words, the entire socio-economic fabric of the family is potentially disrupted.  At the societal level, infected people experience discrimination from all ends – relatives, friends, colleagues, neighbours, healthcare workers, etc.  In India, HIV related counseling services are still not readily available, as majority of HIV testing is not accompanied either by pre-test or post-test counseling.  Individuals who receive an HIV-seropositive result, are handed a virtual death sentence when they are told, “you have HIV-AIDS”.   Hospitals too are widely known for shunning away persons with HIV infection.  Anecdotal evidence indicates that hospital staff commonly tells HIV-seropositive patients, “you have a problem in your blood.  Come back once it is treated”.

            We also need to sensitize the medical practitioners.  There are many instances, where the patient, who is HIV+ve, does not disclose that status to the doctor for fear of being turned away.  Cases have come to light where the doctor has turned away a HIV-AIDS patient for fear of transmission of the disease from patient to doctor – forgetting that chances are minimal and that by taking proper precautions, the chances are absolutely negligible. 

            According to the National AIDS Control Organisation (NACO), no person is to be tested for HIV without voluntary consent. The NACO policy rules out any mandatory testing for HIV. It encourages voluntary HIV testing with appropriate pre and post-test counseling. However, majority of the laboratories in India do not take part in quality-assurance and quality-control exercises for HIV testing, and poor techniques are commonplace. It has also been found out that HIV tests results are often inaccurate for several reasons: test kits are used after the expiration dates; kits are not stored at the correct temperature; electricity is shut down at night; air-conditioning for the testing equipment is erratic; poor quality water is used; and tubes, tips and other equipments are often recycled with makeshift laboratories that have scant respect for quality control or assurance. Patients cannot necessarily be sure of their test results, especially when these laboratories do not provide patients with an opportunity to discuss their life styles and risk histories with a counselor who could help them place the result within that context. 

             With a population of more than a billion, any attempt to control spread of HIV-AIDS must take into account the complex social, economic, cultural and environmental factors in which the disease is embedded.  It should be borne in mind that HIV/AIDS today is no longer a public health issue alone, but a human rights as well.  The refusal of treatment, denial of access to essential drugs, costly ARV drugs, discrimination in the healthcare and employment sectors, women  being deprived of their rights and thrown out of their homes, are just some examples of human rights violations associated with HIV-AIDS.  Though HIV-AIDS can affect anybody, it is the poor, the marginalized, the women and young who are most vulnerable. Many of these groups are ostracized by the society at large, and their life styles criminalized, making it practically impossible for them to participate in the mainstream processes whereby they could demand their rights. The point I am trying to emphasise here is that there are many social precursors for the rapid spread of HIV in the country, including inability to talk openly and learn about sex and sexuality, pressures on family to give birth to an heir and an implicit threat to the marriage when a woman is unable to become a mother, the high prevalence and acceptability of domestic violence against women, the moral double standards imposed on men and women, and the lower status of women in general. The pressure to be mother is so intense that when a woman has to choose between being HIV-seronegative but without children and possible conception with positive HIV infection, she often chooses the latter.  Coupled with this dismal situation, there is minimal awareness about HIV-AIDS and no real options for safer life styles.  It is time that we recognize the link between marginalisation, human rights and vulnerability, as this would enable us to create an enabling environment, where people could come forward on their own to access health and other services.

            The time has come that we change our mindset with regard to the manner in which we treat people infected with HIV-AIDS.  It is important that we have effective, voluntary counseling and testing services for HIV infection.  The benefits of this would include, early management of HIV infection and, thus, improvement in quality of life, and the primary and secondary prevention of HIV-AIDS infection.  Enabling of pregnant women to be provided with an opportunity to have HIV test since vertical transmission of HIV can be effectively stopped by the use of low cost drugs in pregnant women who test positive, with their right to go in for abortion where such cure is not possible – would be a useful step. Experiences from around the world clearly shows that apart from the above, HIV-AIDS infected persons and their families also require extensive education on nutrition, stress reduction, exercises as well as emotional support, to improve their quality of life.

            As a part of a serious consultation on “Health and Human Rights” planned by the National Human Rights Commission in partnership with other key agencies, the Commission organized a National Conference on “Human Rights and HIV-AIDS” in New Delhi in November, 2000.  It elicited broad based participation and enabled participants to scritinise the status of HIV-AIDS, protection, control and healthcare within the framework of human rights.  Based on the deliberations of the National Conference, recommendations on various aspects of human rights and HIV-AIDS were sent to the concerned authorities in the Central Government and various State Governments.  The recommendations cover areas like consent and testing, confidentiality, discrimination in healthcare, women in vulnerable environment and marginalized population.  The Commission made supplementary recommendations to all the States and UTs on 25th November, 2003 in connection with “mother to child transmission” of the virus.  It emphasized that public health action should focus on preventing mother to child transmission of the virus and measures to achieve its objective should receive prioritized attention from health policy makers both at the Central and State level.  The Commission recommended, the following, among other steps in this behalf.

“1.        Enact and enforce legislation to prevent children living with HIV/AIDS from being discriminated against, including being barred from attending schools

2.         Address school fees and related costs that keep children, especially girls, from going to school.

3.         Provide all children, both in and out of school, with comprehensive, accurate and age-appropriate information about HIV/AIDS.

4.         Provide care and protection to children whose parents are unable to care for them due to HIV/AIDS.  Institutional arrangements must be made for extending medical aid to such children.  Hospitals and medical professionals should not be allowed to turn away people who are HIV+ve from being treated.”

             The ethical issues relating to confidentiality in the context of HIV infection are, indeed, complex.  The right of an individual to confidentiality often comes in conflict with the right of the partner to be protected from the risk of infection.  The necessity of consent and testing services for HIV infection needs hardly any emphasis.  However, taking note of the rights of an individual to confidentiality, the Commission recommended:

·                     All staff of testing centres and hospitals, both in public and private sector should be trained and sensitised, on the added value of the right of any person or patient to make an informed decision about consenting to test for HIV. Further the same staff need to be sensitised on universal precautions, provided with an appropriate infrastructure and conducive environment enabling them to respect the right of any person or patient to decide whether to test for HIV or not. This right to self-autonomy must be combined with the provision of the best possible services of pre-test and post-test counselling.

·                     Persons detected at routine HIV screening at blood banks, should be referred to counselling centres at nearby health care facilities for further evaluation and advice. 

·                     The physical environment in which counselling and testing is carried out needs to be conducive and enabling to prepare HIV positive people physically and mentally, with accurate information on how to ‘live positively’. An important component of the enabling environment is sufficient time to internalise and consider the counselling and information provided to make an informed decision on consent to testing. 

·                     The availability and/or accessibility to voluntary testing and counselling facilities needs to be increased throughout India, including rural/remote areas, in an immediate or phased manner within previously defined and agreed timelines.

As I have said, the right of an individual to confidentiality which may come in conflict with the right of a party to be protected from the risk of infection requires a balanced approach.

     The Supreme Court of India in X vs. Hospital Z [1998 (8) SCC 296] has ruled on the issue of the right to confidentiality of subjects with HIV infection and the breach of confidentiality in order to protect the health of third parties.  The opinion of the Court is that the right to privacy and confidentiality is not absolute.  The right may be lawfully restricted in situations where third parties are at risk. Therefore, disclosure by the hospital to the prospective spouse would not be wrong but there is “no duty” to inform the world at large.

            The Bombay High Court in MX vs. ZY [AIR 1997 Bom. 406] ruled that the disclosure of HIV status of the person should not, in any way, affect his right to employment or position at his work place, while protecting his identity from disclosure.

            Ladies and gentlemen, exploding problem of HIV-AIDS calls for radical and courageous steps and a departure from traditional public health planning.  We need to remind ourselves of the enormous task at hand; the need for establishing of quality assured HIV Testing Centres, expansion of clinical facilities that provide HIV care, increased access to drugs with attendant laboratory facilities and above all enhanced psycho-social support for those living with or affected by HIV-AIDS.  Since, the virus was discovered about quarter of a century ago, more than 23 million people have died of the virus.  According to estimates, about 15,000 persons are affected daily all over.  It is a silent epidemic of death spreading.  We need to meet the problem squarely.  Creating awareness would be the first step.

                Every human being has a basic right to live with dignity.  HIV-AIDS affected and infected persons are no exception.  They also have a right to live their life with dignity.  They are entitled to proper medical treatment at affordable price.  The society needs to offer support and protection to HIV-AIDS patients to make them feel that they are not a threat to society.  They have every right to pursue occupations without losing their earning power.  Various misconceptions surrounding the stigma associated with HIV/AIDS need to be reversed.  Response of the society has to be by a ‘rights’ based approach – rather than only a welfare measures.  NACO has now set up a “Human Rights” Cell – The State  AIDS Control Authority could do likewise.  It is necessary that awareness about different aspects of the disease is created through multi-media campaign.  That would go a long way. 

Organisations like the Family Planning Association of India and other NGOs working in the field can contribute tremendously in creating awareness about prevention and treatment of HIV-AIDS – it may not be curable as at present – but it certainly is preventable.  Let us work towards that.

            I participate in this workshop with hope and optimism that a message for spreading awareness would go loud and clear from this workshop, which is being attended by so many dedicated workers and committed stake-holders.

            I have great pleasure to inaugurate the workshop.

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            VALEDICTORY ADDRESS AT NATIONAL DISBILITY CONFERENCE DELIVERED BY DR. JUSTICE A.S. ANAND (FORMER CHIEF JUSTICE OF NDIA) CHAIRPERSON NATIONAL HUMAN RIGHTS COMMISSION ON 23RD JUNE, 2005 AT: FICCI AUDITORIUM NEW DELHI JOINTLY ORGANISED BY: NHRC, CHRC & IGNOU

Distinguished colleagues, delegates, ladies and gentlemen:

                 The National Human Rights Commission is committed to create conditions in which persons with disabilities can enjoy their human rights and fundamental freedoms on equal basis. This necessarily means combating disability based discrimination because, “the first and foremost freedom must be freedom from discrimination for without this, the realization of human rights and the other freedoms by persons with disabilities would remain elusive”. The way to resolve differences is not to ignore those who are disabled but to notice them and recognize their rights.

                 Fortunately, today we possess an impressive range of international, regional and national, instruments and laws to fight various forms of discrimination.  The pronouncements of our Courts and the recommendations and directives of the National Institutions have also addressed issues discrimination and its consequences. There is, indeed, no dearth of legal frameworks and monitoring mechanisms.  Yet the problem of disability based discrimination persists, in varying and complex forms, in all parts of the country. It is, therefore, necessary to reflect and engage our intellectual, emotional and spiritual self in exploring answers that would influence change allowing greater freedom to persons with disability for participation in all aspects of the community life. Where equality is concerned, each and everyone of us has a role to play. Equality must not be part of our thinking but must be a part of our living. Let us accept the reality that while causes and consequences may vary from country to country, discrimination against disabled is wide spread.

                 Discrimination as a crime against humanity has much more adversely impacted the quality of life of the marginalized groups than any other crime. It, therefore, becomes the bounden duty of all of us to “right the unrightable wrong”. In the 21st century, it is the disability that holds the promise for the full inclusion and equal participation by the disabled in every facet of society. The road to equality and justice is the only highway to enable human beings to enjoy their life in full dignity.

                     I am glad that the recommendations which have just been presented are not only informed by the sound principles of equality and non-discrimination, fundamental to the human rights doctrine but they also contain useful elements for creating a genuinely inclusive society in which rights would not be discounted merely on ground of an impairment of a limb or any other part of the body. Let me on behalf of all the members of the Commission and myself, compliment each one of you for your enlightened, active and effective participation and the business like management of vast knowledge and diverse expertise in harmonizing a very pragmatic set of recommendations.

                     I said in the morning that, in order to position disability firmly in the paradigm of human rights, the participation by persons with disability in the key institutions of democracy is vital as they are most qualified and best equipped to support, inform and guide the process of law and policy formation including the practice. Therefore, the recommendation to include the representative of the disabled in the parliament and all the other premier institutions of democracy is well placed. I would, however, like to add a word of caution: To ensure that participation by the disabled should ultimately leverage systemic improvements, selection of the disabled nominees must be through a neutral and objective process, avoiding the tendency of decorative arrangement through token presence. The fight of the disabled, is not a fight against the abled, but against a mind-set which unjustifiably treats them unequal.

                     Friends, the NHRC has identified lack of capacity of various institutions and their functionaries as the central obstacle in the substantive realization of human rights by persons with disabilities. To empower the duty holders, the Commission actively promotes human rights literacy and awareness in general and from a disability perspective in particular.

                     It is my sincere hope that the premier institutions of learning in the country would actively promote human rights awareness and education at all levels with focus on how to eradicate exclusion of persons with disabilities. Personal contact with those who are differently abled at workshops, seminars, training programmes etc. would be very useful. It is my belief that personal contact is important because within this area of education programming, an intimate understanding of the events in life of persons, very much unlike us, is important.

                     The initiative taken by CHRC-NHRC-IGNOU Linkage Project has laid a foundation for creating a new disability sensitive generation. This trend must be advanced and continued because in the absence of a value system based on human rights doctrine, the dream of a genuinely inclusive society may never come true. On behalf of the Commission, let me assure you of our fullest cooperation. We would feel greatly honoured in working shoulder to shoulder with you in the mission of positioning disability in the paradigm of human rights.

                     Ladies and gentlemen, let me congratulate each one of you for your valued contributions. The work you have generated for us and for yourself, I am sure would keep you constructively engaged in the making of history and let me once again convey our most sincere thanks for your participation and contribution.

 Thank you.

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 INAUGURAL SPEECH OF DR. JUSTICE A.S. ANAND CHAIRPERSON, NHRC AT THE NATIONAL CONFERENCE ON DISABILITY AT FICCI FEDERATION HOUSE ON 23 JUNE 2005

                    I extend to you all a very warm welcome at this National Conference on Disability today. I have a fervent hope that all of us gathered here can work together to spread awareness, implement and institutionalize the rights of persons with disabilities.  According to available statistics today, every 10th person in the world is supposed to have one disability or another. At home, according to the census data released by the Registrar General of India (2001), there are 21.9 million disabled in the country.  This is about 2.13% of the total population.  The census figures show that the highest percentage of disabled is in the visual impairment category (48.5%) followed by the disability in movement (27.9%), while the lowest has been reported in those having hearing disability (5.8%).  Unfortunately, the number of disabled is increasing across all age groups.  While speech disability afflicts the younger population more, all hearing disability is more of an old age phenomenon.  It means that disability is an pervasive dimension of human culture as is gender, race, religion and language.  Most often, the difference that disability represents is viewed as deviation, an abnormality, a disqualification and in its extreme form, a danger against which society must be protected.  This skewed construction must be removed and the sooner the better.

                Persons with disability routinely face violations with regard to their basic rights including food, housing, education, health, work and social security. As a consequence, they suffer from acute poverty, malnutrition, and chronic illness. Some of the most insidious forms of discrimination come with the imposition of physical and social barriers – the root cause of their exclusion and marginalisation. A recent study by the UN High Commissioner for Human Rights confirms, that all the points of access to the structures of everyday life – to the world of education, of work, of family or of social interaction – are set largely by reference to the dominant norm of the able-bodied. Discrimination, thus, occurs when the difference of disability is discounted while regulating the terms of access.

                 To undo this historical wrong, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, has compiled provisions concerning barrier free physical and transport environments in a Chapter entitled ‘Non-Discrimination’. These measures actually draw on Articles 15 and 16 of the Constitution, which guarantee access to public places and employment without discrimination of any kind.  However, implementation of these arrangements has been lopsided and States often attribute this to a lack of economic capacity.  Constitutional guarantees cannot be permitted to be set at naught on economic considerations. 

                 Increasing consciousness of rights and the emergence of people with disabilities, displaying skills and knowledge to improve their own lives, are some of the factors which are contributing to the new thinking that the disabled deserve a dignified status in society on the same terms as the non-disabled. In the words of Henry Viscardi Jr. ‘None of us is without limitation, but sheer physical strength is no means of ability.  There are no disabled people – only people.  There is, nothing which can substitute for human rights, no honours, no pensions, no praise, no subsidy can replace a wish to work with dignity’.

                 Human rights law entertains the notion of a society for all, in which members participate actively in all aspects of the democracy, regardless of their difference. Thus, full inclusion is not merely about formal acceptance by the majority, but also includes the concept of participation that is directed both towards the majority who should allow for participation and the minority who want to participate actively. It implies that on one hand, persons with disabilities are helped to gain skills, knowledge and instruments vital to their participation while on the other it is equally crucial for the key functionaries of democracy to know how to, when to and what kind of knowledge to apply to eradicate vicissitudes of injustices resulting in exclusion of persons with disabilities.  

                    We all recognize that learning is a life long process. As a member of the legal fraternity I have, both as lawyer and as a judge, seen and contributed to the evolution of law, and realized that with the maturation of democracy, the content of rights too expands creating a new set of obligation for duty holders. Thus a dynamic, broad and context specific policy on continuing education in the human rights framework is imperative. Such a policy should target Government functionaries at all levels, particularly those directly involved in the planning, execution and management of public services and goods including information.

                    As disability rights is a new dimension in the human rights regime, much needs to be done to develop awareness amongst legal practitioners and academics across the spectrum.  Towards this end NHRC has launched a project in partnership with the Canadian Human Rights Commission (CHRC) and the Indira Gandhi National Open University (IGNOU), the leading distance education provider in India. The project aims to orient legal practitioners, academics, and activists with domestic and international law, encouraging its creative application for better protection and promotion of the rights of the disabled. This programme is perhaps one of the first organized initiative for building a cadre of disability sensitive generation of legal practitioners and has prepared a small cadre of human rights trainers in disability, capable of serving both formal and non-formal programmes of legal studies. A curriculum framework has also been outlined for the introduction of a paper on Disability, Human Rights and Law at the graduate level. For the efficient delivery of this course by the leading Universities and Law Schools, a Manual has been developed, that systematically compiles examples of law and positive jurisprudence. I sincerely hope that apart from dissemination of knowledge, the manual would strengthen the precedence value of the cases encouraging rapid evolution of more progressive jurisprudence in this field.

             On the global scale the debate on disability and human rights is gaining momentum, and is likely to culminate into a new Human Rights Treaty on the theme of disability. A single comprehensive treaty would enable the Governments to understand their obligations clearly and it would help to set clear targets for the development of disability-inclusive systems and processes. Adding a new treaty would also complement existing international standards for the rights of the disadvantaged. In this respect, persons with disabilities have offered the world a precious opportunity to redefine the norms of human rights, social justice, and well-being. They encourage openness and tolerance to difference and greater acceptance of variation in human potential. Therefore disability must be recognized as a catalyst that holds the potential for social transformation in the 21st century.

                     The elaboration of the disability convention has led to the emergence of a unique role for the National Human Rights Institutions. Normally, they seek to translate the international human rights norms and standards into practical action at the ground level, where it matters most. Their involvement in the standard setting process, however, is a new dimension.  The practical knowledge they possess about the functioning of laws and their vigilant inquiry into human rights violations equip them with unique knowledge and capabilities that have been found helpful in tailoring rights to the circumstances of disability. I am pleased to share that the National Human Rights Commission of India has had the honour of representing the International Coordinating Committee of National Institutions in the UN ad hoc Committee.

                     We are deeply concerned that despite international and domestic actions taken, however, the physically and mentally challenged persons in our country continue to face several obstacles in leading their life with dignity. Today, as it stands, their rights are more a myth than reality. Disability is still, by and large, regarded as a "welfare" issue and has remained a subject matter laced with discourse of 'favors' and 'entitlements'. Our emphasis of disability policy has remained individualized, rather than rights oriented, making them, hitherto, the object and not the subject of action. We therefore believe that a human rights approach is necessary to restore rights and dignity of persons with disabilities as it seeks to break down barriers by addressing shortcomings in the environment, vis-à-vis limiting the claims to rights based on disability.

             Evidence suggests that the quality of life of persons with disabilities, and of the broader community, improves when disabled persons themselves actively voice their concerns and participate in decision-making. Moreover to underpin this cultural shift, participation by persons with disabilities in all the key institutions of democracy is crucial. This alone would make our laws, policies and practices reflective of the disability experience necessary for a genuinely inclusive society.

                 Ladies and Gentleman, it is my belief that by positioning disability in the paradigm of human rights, we can emancipate millions of lives eager to claim their humanity before this word and ensure them dignity and life without discrimination.  We all need to put in our efforts to change the mindset of the society and give their legitimate dues to the persons with disability by recognizing, protecting and promoting their human rights. 

 Thank you,

 

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Opening Remarks Of Hon’ble Chairperson At The Meeting Between NHRC & SHRC’s Held On 13th May 2005 At India International Centre, New Delhi

 On behalf of the Members and staff of NHRC, I extend a very warm welcome to you all.

 Soon after its establishment, the United Nations undertook an exercise to identify mechanisms that could assist it in effectively implementing its goal in the area of protection and promotion of Human Rights. 

 The UN Commission on Human Rights organized a Seminar in Geneva in September, 1978, where a set of guidelines was evolved regarding the functions which NHRIs could discharge.  A series of reports were prepared by the Secretary General, United Nations on the subject and his efforts culminated in a Workshop by the Commission on Human Rights in 1990 with an object to review pattern of cooperation between National and International Institutions and to examine the factors that could result in improving the effectiveness of NHRIs.  The conclusion arrived at, after deliberations of this Workshop, came to be known as “Paris Principles” of 1991.  These were endorsed by the United Nations Commission on Human Rights in 1992.   The United Nations General Assembly through its resolution 48A/134 of 20th December, 1993 endorsed the same.  State parties were advised to set up National Institutions based on the “Paris Principles” which provide enormous guidance and directions not only regarding the formation of NHRIs, but also about the functions of NHRIs and principles they must follow in order to function effectively.

 The Protection and Human Rights Act, 1993, enacted thereafter, paved a way for the creation of the NHRC as well as Human Rights Commissions in various States in the country.  According to the Statement of Objects and Reasons of the Act, NHRC and the SHRCs were constituted “for better protection of human rights and for matters connected therewith or incidental thereto”. 

 Since, the enactment of the Legislation, more than 11 years have gone by. The journey, however, has not been smooth.  There have been bumps and potholes on the way.  In order to identify and overcome some of the structural deficiencies which impede the functioning of the NHRC and SHRC, a high level committee headed by a former Chief Justice of India was constituted to examine the Act and suggest amendments to make it more functional.  The committee submitted its report on 18th October, 1999.  Based on the report of the Committee, the Commission forwarded comprehensive recommendations to the Union Government in March 2000 for effecting amendments in the Protection of Human rights Act, 1993 to strengthen the regime of protection of human rights in the country. The amendments have not as yet been brought about though more than five years have lapsed. The Commission is deeply concerned about it and urges the Government to carry out the suggested amendments. It is my firm belief that domestic institutions like the State Commissions and the NHRC play an important role in the effective implementation of human rights standards at the National and the State level.  During my interaction with the Chairpersons of various State Commissions, after I took over as Chairperson, a need was felt to have closer interaction between the NHRC and the SHRCs as both are engaged in pursuit of the same objective – ‘better protection of human rights’.

 The National Human rights Commission accordingly organized a meeting with all the State Human rights Commissions in January, 2004. It was a modest beginning in as much as while we did not expect nor, plan for any path breaking decisions at that meeting, it was nevertheless a sign of the sincerity and commitment that we all have to the cause of human rights. We had resolved to meet regularly once a year. That we have assembled here again today, is another sign of the seriousness of our intent. Through these meetings or, rather interactions, I see a larger picture. A picture that is very relevant to a country of our size and diversity. It provides the crucial channel of propagation of ideas from every corner of our country, through the presence of State Commissions.  Through such annual interactions, we could optimistically see the future as one where the NHRC and the SHRCs work in a participative and harmonious manner.  The synergies that would, thus, be created are immeasurable.    

              At the last meeting we had discussed some important issues. A brief action taken report has been prepared highlighting a couple of instances where, as a direct consequence of the last meeting a new direction was taken. Exchanging information on cases of custodial deaths between the NHRC and the SHRCs, is one such instance.

            Though the 1993 Legislation placed an obligation on the State Governments to constitute State Human Rights Commission, it is indeed a matter of regret that till date only 14 States have set up Human Rights Commissions.   It is, imperative that all the States and Union Territories which have not as yet constituted State Human Rights Commissions do so expeditiously; The States must appreciate that the Commissions assist the governments concerned in fulfilling their constitutional obligations and responsibilities of protecting and promoting human rights of the citizens and thereby paving a way to usher in good governance.  It is my belief that Human Rights and democracy are mutually supportive and unless human rights are made focal point by each of the State Governments, good governance would remain only an unfulfilled dream. 

            I wish to emphasise upon the State Governments that it is not only desirable but necessary that State Human Rights Commission are not only set up but also made ’effective’ to discharge their functions. These Commissions need to be set up in accordance with the guidelines contained in the ‘Paris Principles’. State Commissions need to be strengthened in accordance with the following provisions of the ‘Paris Principles’, which read thus:

          “1.       A national institution shall be vested with competence to promote and protect human rights.

  

2.       A national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence.”

 

 Composition and guarantees of independence and pluralism:

  

“2.      The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence.”

 

 Several State Human Rights Commissions have evinced interest in the working of the National Human Rights Commission and the methodologies and procedures adopted by it. Particular interest has been shown in regard to the Complaints Management System (CMS), for which a software module had been developed by this Commission with the assistance of the National Informatics Centre (NIC). The Commission extended technical assistance to the Rajasthan and Maharashtra State Human Rights Commissions to set up the CMS packages there. It is an illustration of the scope of collaboration between NHRC and SHRCs. The NHRC looks forward to receiving concrete ideas from SHRCs on how to further improve coordination and information sharing. In addition the Commission welcomes suggestions for strengthening NHRC and the SHRCs.

          In furtherance of its task of better protection and promotion of human rights, the Commission realized that failures in the sphere of human rights in economic, social and cultural areas are widespread across the nation and these denials drive the citizens to margins of human existence.  The struggle for the promotion and protection of human rights inevitably requires the elimination of aberrations that, over the time, have wounded and fractured our society leaving some more equal that others.  We at the NHRC and at the SHRCs must, therefore, make all out efforts to minimize such aberrations and create an environment in which rights can be better protected and promoted.  During the past one year since we met, the Commission has continued with the same devotion and commitment in its efforts to minimize if not eliminate human rights violations across the country. It is indeed a herculean task, but we cannot afford to rest.  State Commissions can in their own way supplement the efforts of NHRC.

              Recognizing right to health care as an important issue, the Commission has during the past year, held five regional Public Hearings in various parts of the country. Senior officials of State Human Rights Commissions were invited to these meetings in which, individuals or groups who have been denied this right or have not received mandated health care from a public health facility, presented their case before a panel consisting of the NHRC and the State level public health officials. These regional hearings culminated in the National Public Hearing on Right to Health Care in December 2004, following which a National Action Plan to operationalize the Right to Health Care was discussed. The recommendations, inter-alia, include, enactment of State Public Health Services Rules, enactment of State Public Health Protection Acts that define the norms for nutritional security, drinking water quality, sanitary facilities and other key determinants of health. Substantial increase in State budgetary provisions for Public health, operationalising a State level health services monitoring mechanism, consisting of a State Health Services Monitoring and Consultative Committee, to periodically review the implementation of health rights, underlying policy and structural issues in the State. The SHRCs in each State, have been identified to  facilitate the State Health Rights Monitoring Committees and, oversee the functioning of the State level health rights redressal mechanisms.

           The NHRC has also been consistently emphasizing a shift of focus from ‘welfare’ to ‘rights’ of the disabled. In addition to redressing individual complaints of human rights violations faced by persons with disability, the Commission has been reviewing existing laws and proposed legislations from the perspective of rights of persons with disabilities. For example, the Commission noted that the National Employment Guarantee Scheme announced by the Union Finance Minister in his Budget Speech for 2004-2005, restricted the employment guarantee only for ‘able-bodied persons’. The Commission, therefore, addressed letters to the Union Finance Minister and the Labour Minister pointing out this anomaly created by exclusion of persons with disability and impressed upon them to correct it. As a result of the Commission’s efforts, the subsequent National Rural Employment Guarantee Bill 2004, did not restrict the guarantee to ‘able-bodied persons’. On 27th May, 2005 NHRC is organising National Conference on Disability. Participative role of SHRCs in creating awareness in this regard would go a long way to champion the cause of the rights of those differently abled persons.

It came to the notice of the NHRC directly as well as through some SHRCs that since ‘Armed Forces’ had been kept out of the reach of the Commissions, the allegations of violation of Human Rights at their hands were not being properly addressed. The Commission, therefore, took up the issue of the allegations of violations of human rights by the armed forces with the Chief of Army Staff who, appreciating the viewpoint of the Commission, conveyed to it on 24th May 2004 that with a view to further sensitise the Indian Army, it had been decided to appoint officers of the rank of Colonel in various headquarters to monitor cases relating to human rights. The Commission considers it as an appropriate step.

 The Commission had suggested changes in the Child Marriage Restraint Act and sent a draft bill to the Government in 2002.  While it is indeed gratifying to note that the Government has accepted all the changes proposed  the proposed amendments have not been enacted with the result that the evil of child marriage continues.   SHRC can play a vital role towards prevention of child marriages.

 I have highlighted only some of the areas of work in which State Commissions can play an effective participative role.

State Commissions have proposed certain items for discussion during this 2nd annual meeting.  Broadly, the suggestions relate to; Amendments to the PHRA, 1993; Service conditions of Chairperson/members of SHRCs; Financial/functional difficulties facing  SHRCs; Coordination, Training and Information sharing between NHRC and the SHRCs etc.  We shall consider these during the course of our discussions.

Events in every sphere of our lives only indicate the importance of consensus. While we may not agree on every point, it is necessary to have a dialogue, to evolve an  agreeable course of action, to exchange ideas, so that the larger cause of human rights of more than one billion citizens, almost one fifth of humanity, does not suffer.

 Thank you.

 

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R.V. KELKAR MEMORIAL LECTURE ON “RIGHTS  OF  VICTIMS  OF  CRIME – NEED  FOR  A  FRESH  LOOK” Delivered by: Dr. Justice A.S. Anand Chairperson, National Human Rights Commission (former Chief Justice of India) ORGANISED BY: Faculty Of Law University of Delhi On: 30th April, 2005

“Great teachers who not only impart knowledge but instill idealism and virtue in their pupils by practicing them in their own lives are a rare breed. Professor Raghunath Vinayak Kelkar belonged to this rare breed”, is how a colleague of Prof. R.V. Kelkar remembered him on his first death anniversary.

I wish to congratulate the Faculty of Law, University of Delhi for ogranising every year an endowment lecture as ‘R.V. Kelkar Memorial Lecture’ to commemorate the memory of their great law teacher, who was an acknowledged authority on criminal jurisprudence. I did not have any personal interaction with Prof. R.V. Kelkar and my knowledge about him is derived from the space he has occupied in the academic journals and the tributes paid to him on his first death anniversary. To deliver a lecture in the memory of a great teacher makes, one conscious of his own inadequacies vis-à-vis the stature of a man whom we commemorate today, but I consented to deliver the lecture as it gives me an occasion to deliver an address on the innocent peg of the name of a great teacher. 

Prof. Kelkar, who joined the Law Faculty of Delhi University in 1957, was an excellent scholar, researcher and a teacher. He was a dedicated teacher, uncompromising on principles and those who knew him well describe him as ‘a loyal and affectionate friend’. His specialty was criminal jurisprudence. He had a down-to-earth approach to criminal law problems. His book on Criminal Procedure Code is a standard work, very painstakingly written by a teacher who knew the subject thoroughly. Shortly before his death, he was working on a new approach to the study of specific crimes and it is with great humility that I dedicate this lecture – “Rights of Victims of Crime – Need for a Fresh Look” – to the memory of that great teacher, Prof. R.V. Kelkar. 

In a general sense, every crime has at least three components – (i) The criminal or offender; (ii) the crime and (iii) victim of crime.

The growing menace of intimidation or lurement of the victims or witnesses during the trial at the instance of the accused or other vested interests brings to fore the question: Do the victims of crime have any rights in the prevailing criminal justice delivery system?  The laws response to the ‘rights’ of the victims of crime has been inadequate and more often than not “merely a lip service”. 

The history of crime is as old as of mankind itself; but in the premative period “ a tooth for a tooth, an eye for an eye and a life for a life”, was the essence of criminal justice in those days.  As the civilization developed, new ideas regarding individuals rights and his corresponding duty to his fellow human beings took shape.  The crime was no longer considered an offence against the individual only, but a revolt against the norms of an organized society and an attack on the civilization of the day.  Soon the state took upon itself the right to identify and punish the offenders. 

The term victim is lacking descriptive precision.  It implies more than the mere existence of an injured party, in that innocence or blamelessness is suggested as well as a moral claim to a compassionate response from others.  The term victim is defined in Oxford English Dictionary as:

“victim is a person who is put to death or subjected to misfortune by another; one who suffers severely in body or property through cruel or oppressive treatment: one who is destined to suffer under some oppressive or destructive agency: one who perishes or suffers in health etc., from some enterprise or pursuit voluntarily undertaken.”

As per Collins English Dictionary

‘victim’ means a person or thing that suffers harm, death, etc. from another or from some adverse act, circumstance, etc.

According to New Webster’s Dictionary victim means:

“a person destroyed, sacrificed, or injured by another, or by some condition or agency; one who is cheated or duped; a living being sacrificed to some deity, or in the performance of a religious rite”.

            In the context of criminal justice system the term victim is defined in Black’s Law Dictionary as:-

“The person who is the object of a crime or tort, as the victim of a robbery is the person robbed”. 

The criminal justice system today is basically concerned with criminals, whether it is their conviction, treatment, reformation or rehabilitation.  The purpose of criminal justice system appears, at present, to be confined to the simple object of ascertaining guilt or innocence of an accused.  The role of the victim of a crime in the present criminal justice system is restricted to that of a witness for the prosecution — even though he or she is a person who has suffered harm — physical, mental, emotional, economical or impairment of his/her fundamental rights.  Since, the central object of legal process is to promote and maintain public confidence in the administration of justice, there is an urgent need for giving a well-defined status to the victim of crime under the criminal law.  His interest in getting the offender punished cannot be ignored or completely subordinated to the social control by the State.  It is necessary to give a central role to the victims of crime, as otherwise, the victim will remain discontented and may develop a tendency to take law into his own hands in order to seek revenge and pose a threat to the maintenance of Rule of Law, essential for sustaining a democracy.  This challenge was noticed by the Supreme Court in P. Ramachandra Rao Vs. State of Karnataka1, when it expressed its concern for the plight of the victims of crime who, if left without a remedy might “resort to taking revenge by unlawful means resulting in further increase in the crimes and criminals”.

Under our constitution, it is the primary responsibility of the State to maintain law and order so that the citizens can enjoy peace and security.  The State discharges the obligation to protect life, liberty and property of the citizens by making suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society.  It, therefore, becomes an obligations of the State to identify and apprehend the offender, subject him to a fair trial and if found guilty, to punish him. The right to a fair trial is, thus, a constitutional impertive.  Substantive penal laws enacted, prescribe punishment, whenever there is an invasion of those rights of the citizens.  Thus, in the prevailing system of criminal justice whenever a crime is reported, it is the State, which get the crime investigated by its agency, move the Court for trial of the offender and prosecute him in the Court of Law.

Neither at the stage of the framing of a charge or passing of an order of discharge, are the views of the victim ascertained, let alone considered.  He is not to be consulted during the trial.  Even after the case ends up in a conviction, it is the State, which defends the judgment of the trial court in appeal, if any, filed against the conviction and sentence.

As at present, broadly speaking, there are two systems of dispensation of criminal justice — Adversarial and Inquisitorial. The system, followed in India, for dispensation of Criminal Justice System, is Adversarial System of common law inherited from the British rulers.  In this system the accused is presumed to be innocent and the burden of proving his guilt beyond reasonable doubt lies on the prosecution.  The accused also enjoys the “right of silence” and he cannot be compelled to answer the queries.  In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the Prosecution and the defence before a neutral judge.  The judge acts as a referee and decides whether the prosecution has been able to prove the guilt of an accused beyond a reasonable doubt.  The system, per-se, appears to be fair and justified, but viewed from the perspective of the victim, it is heavily loaded in favour of the accused and is insensitive to the rights of the victims or their plight because generally the judge in his anxiety to maintain his position of neutrality, fails to take initiative to find out the truth.        

The presumption of innocence gives rise to various constitutional and legal rights insofar as an offender is concerned.  His right not to be arrested except in accordance with the law; right to be produced before the Magistrate within 24 hours of his arrest; right to know the grounds of his arrest; right to be represented by a counsel; right to legal aid in certain cases; right to bail; right to public trial; right to test the evidence by cross-examining; right to be heard on the question of sentence; immunity from compulsory testimony and so on and so forth. Thus, we find that the rights of an accused have been well-safeguarded in the scheme of criminal justice delivery system but in all those laws there is hardly any reference to the “rights” of victims of crime.  After setting the criminal justice mechanism in motion, the victim is reduced to the status of being merely an “informer” — ignoring that he is a major stakeholder in the scheme of justice delivery system since he has suffered at the hands of the offender.  There are some “illusory” rights available to the victims of crime, but even those are grossly inadequate. The victim of crime has hardly any role to play in the whole proceedings except that he may, if alive, be examined by the prosecution as a witness. It is strange that in spite of the fact that a victim of crime, who suffers at the hands of the accused and moves the State through the police or the courts to seek justice is given the impression that after having lodged the report or the complaint, he is a “Mr. Nobody”. A victim of crime is, thus, a mute witness to the whole drama.  If alive, he may appear as a witness and there again the provisions of Evidence Act of relevancy of facts not withstanding, he is subjected to continual questioning, with the court almost silently watching.  The law, today, fails to address the needs of the victims to be treated with dignity, to protection from intimidation, inside or outside the court room.  Expressing concern particularly about the treatment of victims of sexual offences in the courts during their cross-examination, in State of Punjab Vs. Gurmit Singh & Ors.2, the Supreme Court observed:

There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination.  The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape.  The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations.  The court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence.  It must effectively control the recording of evidence in the court.  While every latitude should be given to the accused to test the veracity of the prosecutrix and the creditability of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime.  A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.”

Though the Supreme Court in Delhi Domestic Working Women’s Forum vs. Union of India3 indicated some broad parameters particularly for assisting the victims of rape like their right to legal representation at the police station as well as during the trials, the legislative and the executive response is grossly inadequate.

An indifference to the rights of the victim of crime is fast eroding the faith of the society in general and the victim of crime in particular in the criminal justice system and this has already given rise to the incidents of crime and lawlessness, in the form of terrorism, raising their ugly head to settle private and political scores over the adversary with a barrel of gun. 

Right to bail is regarded as a right of an accused with no corresponding right available to the victim or his heirs to oppose grant of bail.  It is left to the State only to oppose or not to oppose the grant of bail.  Indeed, Section 439(2) Cr.P.C., as interpreted by the Courts, recognizes the right of the complainant or any “aggrieved” party to move the High Court or the Court of Sessions for cancellation of bail granted to an accused person4 but that is at a subsequent stage. Of course, thanks to the judiciary, no case can be compounded without the participation of the complainant under Section 320 Cr. P.C. nor a closure report be accepted by the Court without hearing the informant.5  The Supreme Court even set aside the order of the trial court allowing the prayer of the state for withdrawing prosecution on a plea of the father of the policeman killed by the forest brigand Veerappan.6  An appeal against an order of acquittal can be preferred by the complainant, but only with the prior leave of the High Court.  The right to file a Special Leave Petition under Article 136 of the Constitution was granted to a near relative of a victim, who was not a party to the proceedings, to challenge an order of acquittal passed by the High Court7 — but that again was response of the judiciary to the plight of a victim of crime.

            Under the Criminal Procedure Code, a victim of crime has got a very limited right of revision and that too under exceptional circumstances.  An accused has the statutory right to be heard on the question of quantum of sentence after conviction is recorded, but unfortunately a victim of the crime is not so heard.     Even where he engages a counsel, during the trial of a case, instituted on a police challan or at the hearing of an appeal, his counsel is treated only as a “counsel by sufferance” and may or may not be heard by the court depending upon the attitude of the State counsel.   He can at the best assist the public prosecutor but that also in case the public prosecutor really wants to be assisted by him.  Thus, it is seen that a victim of crime in this country has hardly any guaranteed right except may be of getting some assistance by way of payment of compensation, but even here the statutory provisions (Section 357 (3) Code of Criminal Procedure, 1973) are grossly inadequate.  These provisions suffer from inherent limitations and are invoked grudgingly, sparingly and often inconsistently by the courts even though the Supreme Court has exhorted criminal courts to take recourse to the provisions since “this power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system”, observed the Supreme Court:8

“Section 357 (2) is an important provision but courts have seldom invoked it.  Perhaps due to ignorance of the object of it.  It empowers the court to award compensation to victims while passing judgment of conviction.  In addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of the accused.  It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto.  This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender.  It is, to some extent, a constructive approach to the crimes.  It is indeed a step forward in our criminal justice system.”

In the scheme of Code of Criminal Procedure and the Evidence Act, if there are gaps or faults in the investigation the benefit generally goes to the accused.  This is because the right of an accused, under the criminal justice system takes precedence over the right of the victim.  Let us not forget that a victim of crime has a stake in the result of the trial of the offender. It humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the present system pays no attention to his injured feelings.  Imposition of appropriate punishment on the criminal or the offender is the response of the courts to the society’s cry for justice.  Dealing with the object of sentencing, in the case of Bheru Singh Vs. State of Rajasthan9, wherein the appellant had murdered his wife and five children, the Supreme Court observed:

“The object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking on overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.

 

In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenseless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

The United Nations General Assembly at its Plenary Session on November 29, 1985, adopted a declaration of ‘Basic Principles of Justice for Victims of Crime and Abuse of Power’ This declaration is in a way the magna carta of the Rights of Victims globally and contributes an important recognition of the needs to care for victims of crime.  The declaration has made certain suggestions for dealing with the problems of victims of crime including victims of abuse of power. For example:

a)       Victims should be treated with compassion and respect for their dignity.  They are entitled to access to the mechanisms of justice and to promote redress, as provided for by national legislation, for the harm that they have suffered.

b)       Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible.  Victims should be informed of their rights in seeking redress through such mechanisms.

c)       Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information.

d)       Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected without prejudice to the accused and consistent with the relevant national criminal justice system.

e)       Providing proper assistance to victims throughout the legal process.

f)         Taking measures to minimize inconvenience to victims, protect their privacy where necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation.  Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

The European Convention on “Compensation of Victims of Violent Crimes” also contains many of the rights recognized in the U.N. Declaration of 1985.

It is high time that rights of the victim of crime are recognized in this country – it may in the longer run even help in checking the rise in the crime rate and also bring credibility to the criminal justice system. 

In its 154th Report, the Law Commission of India recommended incorporation of a provision for a comprehensive scheme of payment of compensation for all victims fairly and adequately by the Courts.  The recommendation, however, has not so far been acted by the Government.

Award of fair and reasonable compensation to the victim of crime may not act only as a balm on his wound but may also deter to whatever little extent, the criminal from committing the crime. But there is no such statute in this country, which takes care, or it.  Under clause 12 of the U.N. Declaration of 1985 the onus is on the State to “endeavour to provide financial compensation to both  victims who have suffered bodily injury or impairment or physical or mental health as a result of serious crimes as well as the family of those who have died as a result of victimization”.

            In a number of cases, the Supreme Court has laid down certain guidelines with regard to assessment of ‘just and reasonable’ compensation to be paid to the victims of accidents.  Generally it is found that the courts and tribunals have been liberal in granting compensation to such victims in accordance with the observations made by the Supreme Court.

            When Sovereign functions are purportedly done by bosses and minions of Government and the citizens are damnified, sovereign immunity is often invoked.  When a solider shoots at a citizen without any justification or a police officer tortures an innocent citizen in his custody, no democracy, which honours human right, can vaccinate the Republic against liability for criminal or wrongful conduct.  In such cases, sovereign immunization negates the rule of law and discriminates unjustly in favour of the sovereign. The Supreme Court in Nilabati Beherea Vs. State of Orissa10 held that the concept of sovereign immunity is not applicable in cases of violation of the right to life and liberty guaranteed by Article 21 of the Constitution.  The Court observed:

“The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen.  The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights.  Therefore, when the court moulds the relief by granting “compensation” in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in   its    public  duty to protect the fundamental rights of the citizen.  The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

The court relied upon the following passage from the First Hamlyn Lecture by Lord Denning titled “Freedom under the Law”:

“No one can suppose that the executive will never be guilty of the sins that are common to all of us.  You may be sure that they will sometimes do things which they ought not to do, and will not do things that they ought to do.  But if and when wrongs are thereby suffered by any of us what is the remedy?  Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not.  Just as the pick and shovel is no longer suitable for the mining of coal, so also the procedures of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age.  They mush be replaced by new and up to date machinery by declarations, injunctions and actions for negligence……This is not the task for Parliament……   the courts must do this.  Of all the great tasks that lie ahead, this is the greatest.  Properly exercised, the new powers of the executive lead to the Welfare State; but abused they lead to a totalitarian State.  None such must every be allowed in this country.”

The Court then went on to say:

“Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

And further observed:

“The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens.  The courts have the obligations to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations.”

And added:

………The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law – through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting  with Rudul Sha Vs. State of Bihar granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, nothwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole.”

            The enforceable right to compensation was further developed in D.K. Basu vs. State of West Bengal11 wherein it was observed that the “award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages…..” and that “the relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them…..”.

Emotional assistance or charity has its own limitations.  A permanent mode of compensation has to be worked out.  It may be worth considering as to whether the State which fails to protect the life and property of the citizen, should not be made to pay compensation to the victim of the crime, of course, reserving the right of the State to reimbursement from the guilty.  Setting up of a fund for payment of compensation to victims of crime as is in vogue in Canada, Australia, New Zealand, United Kingdom, under the control of a Board, for awarding compensation to victims of crime would constitute a positive and a welcome step to assure the victims of crime that “We care”.  (State of Tamil Nadu has already created a Victim Assistance Fund.)

A beginning can be made by bringing about a model legislation based on the U.N. Declaration of 1985 and by setting up a fund for payment of compensation to the victims of crime under an independent Board For Awarding Compensation To The Victims of Crime.  The State which creates the fund should be entitled to reimbursement from the offender or the guilty party in the same manner as a decree holder, the manner of reimbursement in cash or kind being left to the State to be decided on the facts of each cases and the capacity of the individual.  It may be treated as a charge on the estate of the offender or the guilty party.  It is necessary that due compensation is paid to the victim of crime to assure him that the society cares and feels for him.  He needs justice and the society is obliged to give him justice and not merely lip service.  Let us make a beginning.  Victims of crime, today, feel left out, ignored and are crying for attention and justice.  Let us hear their loud cry today —tomorrow may be too late.  There is an urgent need to take a fresh look and recognize the rights of the victims of crime in the criminal justice delivery system. 

Ladies and Gentlemen, I take your leave and thank you for a patient hearing. 


1 (2002) 4 SCC 578 (at 596)

2  (1998) 2 SCC 384

3  (1995) 1 SCC 14

4  Puran vs. Rambilas (2001) 6 SCC 338; R. Rathiram vs. State (2000) 2 SCC 391

5  Union Public Service Commission vs. S. Papiah (1997) 7 SCC 614

6  S.A. Karim vs. State of Karnataka (2000) 8 SCC 710

7  PSR Sadhantham vs. Arunachalam (1980) 3 SCC 141

8  Hari Singh vs. Sukhvir Singh (1988) 4 SCC 515

9 1994 (2) SCC 467

10  (1993) 2 SCC 746

11  (1997) 1 SCC 416

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STATEMENT OF DR. JUSTICE A.S.ANAND CHAIRPERSON NHRC OF INDIA AT THE 61st SESSION OF THE COMMISSION ON HUMAN RIGHTS UNDER AGENDA ITEM 18(b) (NATIONAL INSTITUTIONS AND REGIONAL ARRANGEMENTS) GENEVA, 13th April 2005.

Mr. Chairman,

Thank you for giving me the floor.

 I rise to speak on behalf of the National Human Rights Commission of India of which I hold the Chair. 

          On behalf of the Indian Commission, I wish to place on record our deep sense of sorrow and grief on the loss of life and property in South and South-East Asia, including India, due to the calamity caused by the tsunami, which struck on 26th December, 2004. We extend our heartfelt sympathies to the next of kin of those who lost their lives and to the victims who have been deprived of their basic needs such as clean drinking water, food, shelter, clothing, means of livelihood and medical care.  Keeping in view the rights issues raised in the wake of this calamity, the Commission took suo motu cognizance and issued notices to all concerned State Governments and the Central Government regarding equitable distribution of relief to the tsunami victims, maintenance of transparency and ensuring that those in the greatest need of relief and rehabilitation measures like the poor, destitute women and children are well taken care of.  In order to protect and safeguard against trafficking and sexual abuse of young widows, girls and children, the Commission recommended that a computerized list of such persons, who have been rendered destitute by the disaster, be prepared.   The repercussions of the tragedy present significant human rights challenges for all the affected countries. The situation calls for foresight, monitoring and an appropriate response from us all.

 Mr. Chairman,

            Our Commission renews its commitment to act in defence of the range of civil and political rights, as also economic, social and cultural rights, pertinent to the circumstances of our country.   Our efforts are documented at some length in our Annual Reports to the Parliament, the monthly Newsletters that we publish and, increasingly, postings on our website.   

            The Commission is of the view that neglect of economic, social and cultural rights can drive the vulnerable sections of the society to the margins of human existence.  It has, therefore, been making efforts to create an environment in which economic, social and cultural rights can be better promoted and protected. The decisions taken by the Commission on individual complaints, its programmes and projects, aim to build a culture of human rights in the country. By way of illustration:

           The Indian Commission has consistently taken the view that the right to a life with human dignity, enshrined in India’s Constitution, must result in the strengthening of measures to ensure that citizens, particularly those belonging to disadvantaged sections, have access to better and more comprehensive health care facilities. In furtherance of this ideal, the Commission held five regional Public Hearings in various parts of the country on the Right to Health Care. In these hearings, individuals or groups who have been denied this right or have not received mandated health care from a public health facility presented their case before a panel consisting of the NHRC and the State level public health officials. Similarly, violation of health rights due to structural deficiencies at any health facility were presented. These regional hearings culminated in the National Public Hearing on Right to Health Care in December, 2004 following which a National Action Plan to operationalise the Right to Health Care was discussed. The Core Group of Doctors set up by the Commission provides very useful inputs on different aspects of health care.

              HIV/AIDS is another major public health challenge. Deeply concerned about the violation of human rights of those affected/infected by HIV/AIDS, the Commission has been recommending measures to all concerned authorities. The Commission recently addressed letters to the Union Ministers for Human Resource Development and Health and also to the Chief Ministers of all States/Union Territories urging them to take steps to prevent discrimination against such children in access to education and health care.

 The Commission has, inter alia, asked them to:

 v      Enact and enforce legislation to prevent children living with HIV/AIDS from being discriminated against, including being barred from school;

    v      Provide care and protection to those children whose parents are unable to care for them due to HIV/AIDS;

    v      Provide all children, both in and out of school, with comprehensive, accurate and age-appropriate information about HIV/AIDS.

          The response so far has been encouraging. The Commission has taken up multimedia campaign to spread awareness about human rights and HIV/AIDS.

              The Commission has been consistently emphasising a shift of focus from ‘welfare’ to ‘rights’ of the disabled. In addition to redressing individual complaints of human rights violations faced by persons with disability, the Commission has been reviewing existing laws and proposed legislations from the perspective of rights of persons with disabilities. The Commission noted that the National Employment Guarantee Scheme announced by the Union Finance Minister in his Budget Speech for 2004-2005 restricted the employment guarantee only for ‘able-bodied persons’. The Commission, therefore, addressed letters to the Union Finance Minister and the Labour Minister pointing out this anomaly created by exclusion of persons with disability and asked them to correct it. As a result of the Commission’s efforts, the subsequent National Rural Employment Guarantee Bill 2004 did not restrict the guarantee to ‘able-bodied persons’. The Commission also addressed letters to the Chief Justices of all High Courts regarding certain problems faced by the disabled, in particular when they are produced before the Courts.

 The Commission organised a Training for Trainers Programme on Disability in Bangalore in July 2004, wherein training on conceptual foundations was provided by a distinguished panel of resource persons.  Five Capacity-building Programmes on Disability have been organized in different regions of the country between January and March 2005. A National Conference on Disability is scheduled to be organised in New Delhi in 2005.

         Mr. Chairman

          One other related issue that has been engaging the attention of the Commission is the increase in trafficking in women and children, which is a gross violation of their human rights and an affront to the supreme dignity of the females. The problem of trafficking has acquired the dimensions of an organised crime. Steps for preventing trafficking in young women and children have continued to occupy a prominent place on the agenda of the Commission. The Action Research Programme on Trafficking in Women and Children that was undertaken jointly by the National Human Rights Commission of India, the UNIFEM and the Institute of Social Sciences, New Delhi, has been completed.  The report has made a number of recommendations and suggestions in the areas of preventing trafficking, protection of victims and survivors, prosecution of traffickers and other exploiters and proposed changes in relevant domestic legislation. It has been sent to the Government for their consideration.  The Manual for the Judiciary on Trafficking in Women and Children to sensitise judges on the issues related to trafficking has been completed.

In order to protect and promote the rights of persons belonging to the Scheduled Castes, a Dalit Cell has been established in the NHRC under the charge of a Member of the Commission. A Report on ‘Prevention of Atrocities against Scheduled Castes’ sponsored by the Commission was released on 19 October 2004. A copy of the Report has been sent to all concerned authorities urging them to take action on certain important recommendations contained in the Report. The Commission is also holding seminars and organising sensitisation camps and workshops to spread awareness amongst police personnel, other State functionaries, media persons and NGOs in this regard so that the human rights of this vulnerable section of the society are protected and promoted.

            Mr. Chairman,

              Human rights violations in India stem as much from the abuse of power by public servants as by dereliction of their public duties.  Section 12(a) of the Protection of Human Rights Act, 1993 has conferred powers on the Commission to receive and initiate investigation into complaints alleging violation of human rights by public servants, both suo motu or on a petition presented to it by a victim or any person on his behalf and make appropriate recommendations under Section 18 of the said Act after inquiry.

              A clear indication of the trust reposed in the Commission by the people of the country – and an equally clear indication of their yearning for an accessible mechanism to redress their human rights grievances – is to be found in the number of complaints addressed to the Commission over the years.  This number has increased exponentially. The total number of complaints registered in the last year till 31.3.2005 was 74,553 as against 6,987 in 1994-95; 40,724 in 1998-99; 68,779 in 2002-2003 and 72,990 in 2003-04. 

            Inspite of the bar contained in Section 19 of the Act relating to inquiries into allegations of violation of human rights by the armed forces, the Commission achieved a significant success in the matter.  While inquiring into complaints received from widows of two residents of Ganganagar District, Rajasthan, whose husbands had admittedly lost their lives at the hands of a Constable of the Border Security Force, the Commission made recommendations for grant of interim relief to the next of kin of the deceased. The Ministry of Home Affairs reconsidered its earlier decision and on 31.8.2002 concurred with the Commission that it could recommend grant of interim relief, even in cases relating to armed forces, where violation of human rights stand established. 

              The Commission took up the issue of the allegations of violations of human rights by the armed forces with the Chief of Army Staff who, appreciating the viewpoint of the Commission, conveyed to it on 24th May 2004 that  with a view to further sensitise the Indian Army,  it had been decided to appoint officers of the rank of Colonel in various headquarters to monitor cases relating to human rights. The Commission considers it as an appropriate step.

Mr. Chairman,

          Permit me to refer to one other aspect which affects human rights of innocent people the world over and has been a cause of concern in our country for more than three decades. The spectre of terrorism continues to haunt us globally. Human rights recognise the essential worth of a human being and acknowledge the dignity inhering in all human beings, irrespective of their race, sex or economic level of living.  While this is a historical fact, it is also a reality that the cult of terrorism strikes at the very root of human rights of innocent people. Terrorism and human rights are natural enemies and no person who supports human rights can support terrorism.  There can be no alibis and justification for terrorism as nothing can ever justify terrorism. The menace of terrorism has to be curbed and the war against terrorism fought relentlessly. However, the Commission is firmly of the view that no democratic society can be permitted to chill civil liberties of the citizens while taking measures against the terrorists.  In the fight against terrorism, sensitisation level of human rights cannot be allowed to be sacrificed.  The State cannot be permitted to go over board and in effect declare a war on the civil liberties of people because the rationale of anti-terrorism measures is aimed at protecting human rights and democracy.  Counter-terrorism measures should, therefore, not undermine democratic values or subvert the rule of law.     It is during anxious times when care has to be taken to ensure that the State does not take recourse to bend the rule of law. The Indian Commission shares the view expressed by the United Nations High Commissioner for Human Rights, Ms. Louise Arbour, in her address at the opening of the 61st Session of the Commission that the State security and Human security can no longer be viewed in isolation of the other.

         Mr. Chairman,

The Indian Commission is firmly of the view that there is need for complementarity between the judiciary and the national institutions. Judiciary in every country has an obligation and a statutory role to protect human rights of citizens. The national institutions are also engaged in the task of protecting human rights of the citizens. Complementarity between the two would go a long way in giving a shot in the arm of the national institutions to perform their functions relating to protection of human rights in a more effective way.

 The Indian Commission has successfully approached the Supreme Court and the High Courts in a number of cases for ‘better protection’ of human rights of the concerned citizens. The Supreme Court of India as well as the High Courts have also reposed great faith and confidence in the Commission and a number of cases, which were under their consideration, particularly involving group rights, were remitted to the Indian Commission with various mandates. Some of the remits made to the Commission by the Supreme Court are:

·         cases arising out of allegations of deaths by starvation in the KBK districts of Orissa;[1]

    ·         the monitoring of programmes to end bonded and child labour in the country; [2]

    ·         the handling of allegations relating to the mass cremations of persons declared unidentified in certain districts of Punjab;[3]

    ·         the proper management of institutions for the mentally challenged in Ranchi, Gwalior and Agra; and of the Protective Home for Women in Agra[4] and

    ·         lifting the ban on the sale of non-iodised salt.

So much has been the confidence reposed in the Commission by the Supreme Court of India that in the Punjab Mass Cremation case, while making the remit to the Commission, the Supreme Court observed:

“……..The Commission would function pursuant to the directions issued by this Court and not under the Act under which it is constituted.  NHRC is given free hand and is not circumscribed by any conditions.  Therefore, the jurisdiction exercised by the NHRC in these matters is of a special nature not covered by enactment or law, and thus acts sui generis”.

 

The Commission is of the firm view that whenever and wherever human dignity of a citizen is violated while he is in the ‘custody of the State’, the flag of civilization must fly half-mast. On 11.11.2004, the Commission made an order holding the State of Punjab vicariously liable for the death of 109 people while in police custody during the period of heightened terrorism in that region (1984-99) and directed it to pay compensation of Rs.2,50,000 each to the next of  kin of the victims. This is the first instance of award of compensation by the Commission in the ‘Mass Cremations case’ remitted to it by the Supreme Court. The proceedings in the case are still continuing.

 In a Special Leave Petition filed by the Commission against the acquittal of the accused in what has come to be known as Best Bakery case of Gujarat, the Supreme Court by its order dated 12th April 2004 set aside the judgment of acquittal of all the accused in the above case and directed fresh investigation into the case and its retrial which is going on outside the State of Gujarat.

Similarly, in the gang-rape case of Ms. Bilkis Yakub Rasool of Gujarat, to whom the Commission had extended full assistance for approaching the Supreme Court, the Supreme Court made an order directing investigation by the Central Bureau of Investigation and the case has been transferred from the State of Gujarat to Mumbai, where it is being tried by a competent court.

 The Commission recently intervened in the case of Mr. Charanjit Singh, a seventy year old person, who was in detention for 20 long years as an undertrial prisoner because he was mentally ill and his physical and mental condition did not allow him to defend himself at the trial. As a result, his trial could not proceed further. He was even abandoned by his own relatives. The Commission moved a Criminal Writ Petition (Cr.W.P. No. 1278/04) for quashing criminal proceedings against him and suggested a set of guidelines to deal with cases of similarly situated undertrial  prisoners.  The Delhi High Court by an order dated 4th March 2005 allowed the Writ Petition and quashed the proceedings. It also asked the Government of National Capital Territory of Delhi to evolve an appropriate scheme based on the guidelines suggested by the NHRC and, inter alia, establish Half-way homes for cured mentally ill persons and also called upon the Delhi Judicial Academy to sensitise its judicial officers through training to deal with such cases. 

           The Commission has also a statutory obligation under Section 12(f) of the Protection of Human Rights Act, 1993 to study treaties and other international instruments on human rights and make recommendations thereon. Following the Commission’s efforts, the Government of India has recently approved the signing of the two Optional Protocols to the Convention on the Rights of the Child, namely – (i) on the involvement of children in armed conflicts; and (ii) on the sale of children, child prostitution and child pornography.

          In order to strengthen and consolidate the relationship between the Commission and NGOs, the Commission has been holding a series of consultations with them on a regional basis.  This has proved to be of considerable value both to the Commission and to the NGOs reinforcing their understanding of each other and their capacity to work together in furtherance of rights across the country.

 Mr. Chairman,            

 Keeping in view the need to build capacity, sensitise public servants and thereby create a culture of human rights, the Commission established a Training Wing in September 2003.  During 2004-2005 a series of training programmes were conducted on various human rights issues.  Response to these programmes from various stakeholders including from community-based organisations/NGOs was overwhelming in terms of participation. These training programmes were primarily organised for the police, the judiciary, civil servants, NGOs, university teachers and other key stakeholders. At regular intervals a number of in-house training programmes have also been conducted for officers and staff of the Commission.   With a view to securing better coordination with State Human Rights Commissions, the Indian Commission held a meeting with the Chairpersons and Secretaries of all the State Commissions last year.  Our Commission plans to make it an annual feature and also proposes to take concrete steps to build their capacity.

              During the past year the Commission took a number of initiatives to spread human rights education and awareness. The Commission has brought out seven booklets under a series entitled ‘Know your rights’ on various facets of human rights and an English-Hindi glossary of human rights terms. Efforts are also on to use the advertising space provided on postal stationery of the country to ensure that the social message on human rights issues reaches out to the common man. The Commission also proposes to produce a number of films on human rights with a view to harnessing the potential of this medium to spread human rights awareness.

 Mr. Chairman,

              Every year the struggle for human rights gets more complex with new threats rearing their heads and bringing with them different kinds of challenges. Disasters like the tsunami remind us of the importance of solidarity and the immense potential of cooperation at regional and international levels in human rights. All of us have much to learn from each other.  We must share our unique experiences and perhaps learn from each other’s mistakes.

Permit me to conclude by reminding ourselves of the caution administered by the Secretary General of the UN, Mr. Kofi Annan, in his address to the UN General Assembly on 21st March, 2005. He said: “We will not enjoy development without security, we will not enjoy security without development and we will not enjoy either without respect for human rights.”

 Thank you.

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[1] Case No.37/3/97-LD(FC)

[2] File No.2/6/2002-PRP&P

[3] Case No. 1/1997/NHRC

[4] Case No.40/2/2003-2004/NHRC

 

 

N.N. PHUKAN MEMORIAL LECTURE ON HUMAN RIGHTS SOME CHALLENGES FOR THE 21ST CENTURY DELIVERY BY DR. JUSTICE A.S. ANAND (FORMER CHIEF JUSTICE OF INDIA) CHAIRPERSON NHRC ON 31ST MARCH, 2005 AT:JORHAT UNIVERSITY, DIBRUGARH

            Mr.Justice S.N. Phukan, Vice-Chancellor, Dibrugarh University, President, Assam Law Society, members of the family of Late Shri N.N. Phukan, distinguished invitees, Ladies and Gentlemen:

I deem it a privilege to have been invited by the Assam Law Society to deliver a Memorial Lecture at Dibrugarh University in honour of late Shri N.N. Phukan, Founder Principal of the Jorhat Law College. 

          In September this year would fall the birth centenary of late Shri N.N. Phukan.  It is, therefore, in the fitness of things that the memorial lectures in his honour should commence in the centenary year. 

          Late Shri N.N. Phukan belonged to a family of lawyers.  He set up his practice initially at Jorhat, the place of his birth and later on was enrolled as an advocate of the Federal Court when the same was set up under the Government India Act, 1935.  He was the first Assamese lawyer to be so enrolled in the Federal Court.  Apart from being a successful lawyer, Shri Phukan also took active part in politics.  He contested elections to the Assam Legislative Assembly in 1937 and to the Lok Sabha from Jorhat Constituency in 1952.  He was a member of the North-East Bar Council for two terms. 

          Late Shri N.N. Phukan was the Founder Member of the Jorhat Law College, the first law college to be affiliated to the Dibrugarh University.  Legal attention in this country, till quite recently, did not receive the attention that it deserved.   Dr. Radha Krishnan lamented about the poor quality of legal education in the country and his lament was shared by The Chairman of Law Commission Mr.Seetalwad who went to the extent of saying that legal education in the country left much to be desired, as it was producing only “half baked lawyers”.  Shri N.N. Phukan was concerned about poor health of legal education in the country and took initiative to mould legal education and bring it on the right track in Assam.  He sacrificed his lucrative practice of law and took to teaching of law.

          While at the Jorhat Law College he taught subjects like the Constitutional Law, the Law of Evidence and Jurisprudence.  Those who knew him well speak of his high caliber, character and integrity.  He continued teaching law till about two decades ago.  His students fondly remember him as a helpful guide and a devoted teacher.  He believed in perfection and advocated following of proper value system to reach the goal.  His son Mr.Justice S.N. Phukan followed the foot-steps of his father by taking to law practice. Apart from serving as Chief Justice of the High Courts of Himachal Pradesh and Orissa, he also served as Judge of the Supreme Court of India.  On his retirement from the Supreme Court, he was appointed as Chairperson of the Assam State Human Rights Commission. 

          Considering the interest which late Shri N.N. Phukan had in the theme of Human Rights, the topic I have chosen to speak to this august gathering is “Human Rights – Some challenges for the 21st Century” and it is with great humility that I dedicate this lecture to the memory of Late Shri N.N. Phukan.  Now to the topic:

Twentieth Century stands out as the century that witnessed unprecedented denial of human rights.  League of Nations established after the first World War failed to prevent another World War which was  more disastrous than the first.

Appalled by man’s capacity to destroy himself and showing scant respect for Human Rights the world community started to think.  On 26th June 1945, fifty nations, including India, signed the United Nation’s Charter creating the United Nations. This Charter refers to ‘human rights’ in as many as seven places.[1] The repeated reference to human rights in the United Nations’ Charter demonstrates the extraordinary concern exhibited by the members of the United Nations for preservation and promotion of human rights.

The UN Charter hoped to save succeeding generations from self-destruction by proclaiming and establishing equal and inalienable rights of all members of the human family — great or small, virtuous or vicious, rich or poor, wise or foolish and their inherent dignity, regardless of birth, status, race, colour, sex, language, religion or political or other opinion.  Article 55 of the Charter of the United Nations requires the United Nations to promote: “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”  Article 56 enjoins that : “All members pledge themselves to take joint and separate action in cooperation with the organisation for the achievement of the purposes set forth in Article 55.”

            In 1948 when the Universal Declaration of Human Rights was adopted as “a common standard of achievement of all peoples and nations” there were reservations of many State Governments.  Virtually all States shielded behind Article 2(7) of the UN Charter in arguing that human rights matter were strictly an internal matter of the States concerned. This view today, mercifully, receives very little credence from the International community which accepts universality of human rights all over. 

Due to reservations of State governments, the Universal Declaration of Human Rights was not presented to the General Assembly as a treaty for ratification which would be binding upon the signatory nations, but an instrument to be endorsed as “a statement of goals and aspirations – a vision of the world as the International community wanted it to become”.  The Declaration was adopted by an affirmative vote of 48 member States and 8 abstentions.  A UN Commission on Human Rights was set up.  The Commission’s mandate was confined to the drafting of new treaties and other legal instruments.  

          The Universal Declaration of Human Rights adopted by the General Assembly on 10th December, 1948, was followed by two Covenants – International Convention on Economic, Social and Cultural Rights (ICESCR) and International Convention on Civil and Political Rights (ICCPR) in 1966.  India signed the International Convention on Economic, Social and Cultural Rights in 1979.   However, in spite of the Universal Declaration and the two Covenants, widespread violation of human rights continues to occur almost daily everywhere. There is, therefore, some sting but more than a grain of truth in the cynic’s taunt that the only thing universal about human rights is their universal violation.

          The Preamble to the 1966 Covenant on Civil and Political Rights speaks of ‘the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedom.’ The World Conference on Human Rights also emphasized this aspect in The Vienna Declaration and Programme of Action, 1993 when it said that ‘every state should provide an effective framework of remedies to redress human rights grievances or violations”.

          One of the important advancements of the twentieth century was the recognition of democracy as, to quote Prof. Amartya Sen, “preeminently acceptable form of governance”. Though democracy is not the only means by which improved governance could be achieved, it is perhaps the only reliable one. By providing greater public participation, democracy enhances the likelihood that national developmental goals will reflect broad societal aspirations and priorities. By establishing political legitimacy of governments, democracy strengthens their capacity to function efficiently and effectively. Unless human rights are made the focal point by the State, good governance would remain an unfulfilled dream Human Rights and democracy are mutually supportive.

Unfortunately, at the beginning of the 21st Century no country can look back on its own record of Human Rights of the last Century with any sense of pride.   Estimates say that in the 20th Century, some 100 million persons have been killed in armed conflicts and 120 million more deaths have resulted from politically-related violence.  The UN Human Development Report of 1998 records that, while civilian casualties in situations of armed conflict were some 5% at the beginning of the Century; they were over 90% in the 1990’s with children being the main sufferers.

Twentyfirst century, however, started with two important events: (i) the new initiatives by poor and rich nations in fulfilling a long unfinished agenda of “full human development” and “human rights for all”; and (ii) the Millennium Development Goals emanating from the Declaration adopted by 189 countries at the United Nations Millennium Summit on 8th September, 2000.  The UN Millennium Development Goals are in a way value based resolves among nations to end human poverty, promote human dignity and equality, and to take steps in furtherance of the attack on inadequate incomes, widespread hunger, gender inequality, environmental deterioration and lack of education, health care and clean water, towards the convergence of human development and human rights in action.

SOME OF THE CHALLENGES FACING THE 21ST CENTURY

NEGLECT OF SOCIAL, ECONOMIC AND CULTURAL RIGHTS

        Millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education. 

        According to UNDP Report of 2003, Indian society is highly inequitable society where richest 10% consumes 33.5% of resources and poorest 10% gets only 3.5% of resource.  Around 233 million people are chronically hungry.  Official figures state that in the country 26% people are living Below Poverty Line.  However, in the Alternative Economic Survey 2000-01 based on the National Sample Organisation Survey, it is shown that the number of people living below poverty line in the rural areas has increased from 35% in 1990 to 45.3% in 1998. 

        Around 51% of the population does not have sustainable access to affordable essential drugs.  Infant Mortality rate is 68 per 1000; under 5 child mortality rate is 93 per 1000; 26% children are under weight; and 24% of the population is undernourished.  Maternal mortality ratio is 440 per 1,00,000 and 72% of the population does not have access to improved sanitation (UNDP Report 2003). 

        Protection of social, economic and cultural rights as compared to civil and political rights, both at the national and international level, has been poor and irregular. The fallacy lies in treating one set of rights as inferior to the other set of rights. To correct the fallacy, is a challenge we face in this century.

            When WE THE PEOPLE OF INDIA resolved to give to ourselves the Constitution, we aimed at securing for all its citizens – Justice, social, economic and political; Equality of status and opportunity besides Liberty of thought, expression, belief, faith and worship and Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The Indian Constitution, evolved after careful thought, excludes the mention of certain basic economic and social rights, such as the right to food, right to shelter, right to work and right to medical care, etc. from the chapter on Fundamental Rights contained in Part-III of the Constitution. Those rights have been made a part of Directive Principles of state policy in Part-IV of the Constitution. While the civil and political rights, having been incorporated as Fundamental Rights, are both justiciable and enforceable, the Economic, Social and Cultural rights, enshrined as the Directive Principles of the State Policy, are not enforceable or justiciable.  While fundamental rights are justiciable, directive principles are not.     

        Perhaps, in the backdrop of the then social-economic conditions of the Indian society, the framers of the Constitution evolved the two sets of rights – representing, two streams in the evolution of human rights, which divide them between civil and political rights on the one hand and social, economic and cultural rights on the other.  Both are equally important and interdependent.  These rights which are aimed at living with dignity by members of the human family are essential for full development of human personality.

            The mandate of Article 37 of the constitution is that even though directive principles are not justiciable or enforceable by the courts, the same are “fundamental in the governance of the country” and it shall be the “duty” of the State to apply these principles.

            Dr.B.R. Ambedkar, Chairman of the Constitution Drafting Committee, interpreting the nature of Directive Principles, opined that they would be the guiding principles of governance.  However, the Government of India, as statistics tell us, never whole-heartedly pursued the implementation of Directive Principles.  The government dilly-dallied  implementation of each principle generally citing the reasons of resource crunch.  Thanks to the judiciary, the Directive Principles started getting importance when the Judiciary stepped in and interpreted the underlying principles of Directive Principles.  The distinction between civil and political rights and the economic, social and cultural rights was sought to be narrowed by judicial interpretations.  Realising that the Fundamental Right to live with dignity was not possible without proper realization of economic, social and cultural rights, the court did not favour the concept of treating Fundamental Rights as superior to Directive Principles.   In State of Kerala vs. M. Thomas [1976 (2) SCC 310] the Supreme Court commented that the Fundamental Rights and the Directive Principles were complementary.

In the case of Francis Coralie Mullin vs. the Administrator, Union Territory of Delhi[1981 2 SCR 516], the Supreme Court declared:

“The right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

 

          The courts in India have related healthcare, food security and elementary education with the Right to Life, Article 21 of the Constitution making these rights justifiable.  Following the judgment of the Supreme Court in Unni Krishnan v. State of AP [1993 (1) SCC 645] the Union Parliament adopted 86th Constitutional Amendment whereby elementary education has been made fundamental right in the Constitution.  Similarly in Bandhua Mukti Morcha v. Union of India in 1984 the Supreme Court held that the ‘right to life’ must include the right to health for the enjoyment of the human life with dignity.  Thus it is seen that the law which has come to be developed in this country on the subject today seeks to harmonise the fundamental rights with the directive principles and, thereby, synthesise the civil and political rights and the economic, social and cultural rights.  The inter-dependence of both set of rights is essential for full development of human personality.  We must accept that indivisibility and inter-related nature of the two sets of rights is a reality.

          Despite the 86th Constitutional Amendment, around 35% of the population is still tottering in the darkness of illiteracy.  About 50 million children are out of school.  Even where enrolment is high, the dropout rate is over 50% by the time the students move over to high school.  Gender Parity Index is 0.82.  It means for every 1000 boys enrolled, there are 820 girls seeking admissions (UNDP 2003).

The International Covenant on Economic, Social and Cultural Rights, to which India is a State party, specifically recognizes the “fundamental right of everyone to be free from hunger” and the right of everyone to “adequate food”. It also recognizes the “right of everyone to education” and asserts that “primary education shall be compulsory and available free to all”; it further recognizes the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. 

          The State must realize the importance of Economic, Social and Cultural Rights and should not content  itself by only chalking out strategies for promotion of the same.  Public awareness and education on economic, social and cultural rights would go a long way in making the State realize its responsibility to protect, promote and fulfil economic, social and cultural rights so that human rights are capable of being enjoyed, protected and promoted for the vulnerable sections of the society.

          The neglect of Economic, Social and Cultural Rights give rise to internal conflicts which is a threat to the democratic society and enjoyment of human rights.  Systemic denial of Economic, Social and Cultural Rights, like right to food, health care, education, etc., are caustic factors of conflict and terrorism.  They pose a threat not only to human rights but also to peace.  Where hunger persists, peace cannot prevail.

 DENIAL OF ENDER EQUALITY

Gender inequities throughout the world are among the most pervasive, though disceptively subtle forms of inequality.  Gender equality concerns each and every member of the society and forms the very basis of a just society.  Human rights issues, which affect women in particular, play a vital role in maintaining the peace and prosperity of a just society.

Women continue to be discriminated all over the world and are subject to many forms of violence. Inspite of ratification of regional and International Instruments, many States still maintain laws and practices, which discriminate against women. Selective practices and customs used by states perpetuate discrimination. This is particularly true in the field of access to land and other important economic resources and rights within the family. Crimes against women, which are increasing exponentially are actually crimes against humanity and expose the failure of the governments to effectively prosecute those who are responsible for Commission of such crimes. 

Today, in this 21st century, we are still unable to boast of a society where there is total gender equality or gender equity. 

Consider the following statistics:

Ø      Two-thirds of world’s adult illiterates are women, who number about half-a-billion adult women.

Ø      70% of the world’s poor are women.

Women now account for 50% of those infected by HIV worldwide.

In the matter of equality, Article 14 of the Constitution of India confers on men and women equal rights and opportunities in the political, economic and social spheres.  Article 15 prohibits discrimination against any citizen on the grounds of religion, race, caste, sex, etc.   Article 15(3) makes a special provision enabling the State to make affirmative discriminations in favour of women.  Similarly, Article 16 provides for equality of opportunities in matter of public appointments for all citizens.  Article 39(a) lays down that the State shall direct its policy towards securing all citizens, men and women, equally, the right to means of livelihood, while Article 39(c) ensures equal pay for equal work.  Article 42 directs the State to make provision for ensuring just and humane conditions of work and maternity relief.  Above all, the Constitution imposes a fundamental duty on every citizen through Article 51A(e) to renounce the practices derogatory to the dignity of women.  The question, however, is: Have the women been able to reap the benefits provided for them under the Constitution of India?  The answer, unfortunately is not encouraging.  There is a long way to go to achieve the goals enshrined in the Constitution.

At the national level, there are several areas of deep concern:

Female foeticide is such a murky and clandestine business that it is difficult to give an exact figure.  But it is estimated that between 1.5 million and 5 million female fetuses are being destroyed in India every year.  With the emergence of new technology, female infanticide has been replaced by female foeticide.  And if you though that the big bad wolves gobbling up the unborn fetuses are only in the cities, think again.  A staggering 204 districts of the country have a lower child sex ratio than the national average of 927 in the zero to six age group.  Fortyeight districts have a female sex ratio of less than 850.

Thus, there has been sharp decline in female sex ratio:

1961 =         941/972 females   = 1000 male births

1999 =         927 females        =           1000 male births

2001 =         933 females            =        1000 male births

2003= 927 females (850)  =        1000 male births

 

Studies have shown that country wide prevalence of moderate to severe anemia among pregnant women is around 47% and that 30% of Infant mortality in India is accounted for by maternal anemia related low birth weight. The maternal mortality rate in India at about 410 per 100,000 births is more than 50 times higher than the rates that exist in the developed countries.  Unless we recognize her rights – her basic human rights – gender justice will only be “lip-service” with no tangible results.  This situation calls for urgent remedial steps.

     One other issue of concern is the rise in crime against women.

THE CURSE OF TRAFFICKING IN WOMEN AND CHILDREN

One related issue that has been engaging the attention of the National Human Rights Commission is the increase in Trafficking in women and children – a gross violation of their human rights and an affront to the supreme dignity of the females,  apart from being a serious crime.  It is a problem of Human Rights. It is a problem which should make the heads fall in shame of the civil society because here we are treating human beings as chattels, commodities, saleable items - the price stag varying with age, class, color and sex. What used to be sometimes an affair in the remote corner of some hidden unknown street, is today available in five stars establishments.

The Immoral Traffic (Prevention) Act, 1956 (amended in 1986) had been enacted to combat prostitution but the prostitution is on the rise.  Police is unable to keep a check on the brothel-keepers and pimps.   Many unfortunate teenaged female children are being sold in various parts of the country for paltry sums even by their own parents, compelled by poverty, who find themselves unable to maintain their children hoping that their children would be engaged in household duties or manual labour.  But they are actually selling them to the broker in the flesh trade, who brutally treat them till they succumb to his wishes.  Thus, girls and women in large number in the prime of their youth are being forcibly pushed into the flesh trade which flourishes in utter violence of all canons of morality, decency and dignity of a human being.

India is not only a transit point for supply of trafficked women and children but also a recipient and a supplier of such persons.  The exploitation of women and children for sex purposes, however, is not confined to India alone, which has porous borders with Nepal, Sri Lanka and Bangladesh, but is a problem of global dimensions. Statistics tells us that this crime is a flourishing trade to the tune of 8 billion dollars in a year. It is almost surpassing the profits from drugs trafficking.  In Asia- Pacific itself, 4,50,000 persons are trafficked every year and out of them Two Hundred Thousands are from South Asia. Unfortunately trafficking in women and children has remained confined to intellectual discussions to understand as to what is prostitution or commercial sex and how to control it.   That is only one side of the coin. When we confine it to prostitution or commercial sex or exploitation as a result thereof, we are only trying to identify the disease, we are neither looking for the symptoms nor the causes let alone the remedies. Trafficking has wider dimensions and requires multi-prong attack to tackle it. 

Prostitution is not prohibited under the amended Prevention of Immoral Trafficking Act, 1986.  Despite the amendment, the legislation falls short of its objective and has not proved to be an effective measure to check commercialized flesh trade.  It acts more as supplement to the provisions of the IPC concerning kidnapping, sale, abduction, wrongful restraint of women and children, emphasizing only the punitive aspects of the problem.  The Act does not provide for punishment to the client and makes no provision for the rehabilitation of commercial sex workers who are rescued from the brothel.  Instead of aiming at the abolition of prostitution as such, the Act makes it per se a criminal offence or punishes a woman because she prostitutes herself.  May be it is because of a week law enforcement mechanism and inadequacies in the criminal justice system, but the situation in every case invites attention of all concerned agencies: legislature, judiciary and other enforcers of law.   It appears that our society is becoming a psycho-sick  society with an uncivilized behavior. Whenever crime is committed against women and that too a violent crime, it sends shock waves to the society but those shock waves burst like bubbles in a very short time.  The society must change its attitude.

There are four essential Rs  - Raid and Rescue, Recovery, Rehabilitation and Reintegration which are required to be considered for dealing with the problem and we must plug the shortcomings.  Coming to the first of the four Rs – RAID AND RESCUE. 

The authorities conducting raid with a view to rescue the exploited victim must act with proper sincerity and sensitivity.  They need to associate with them witnesses who would support the case and not the one who would turn hostile.  Experience tells us that in case after case witnesses turn hostile.  It is necessary for the authorities to associate NGO’s of credibility while conducting raids and rescuing victims so that the prosecution case does not suffer.  This is the first important step which needs to be taken by the authorities but is overlooked leading to the frustration of the entire exercise.

Now, the next R-RECOVERY and REHABILITATION.

After the victims are recovered, it is necessary to see that they do not fall again into the hands of the exploiters and are given a chance to lead better life. We have to have shelter homes, short-stay homes or homes where we can provide vocational training to them. So far as the person recovered is concerned, unless you can take care of her, because a stigma attached to her, it comes  in the way of even her family reclaiming or accepting her. We have very few shelter homes and short-stay homes and even in those the accommodation is only for a limited number of persons. What happens to the rest? A person who has been rescued after the raid finds herself at a cross-road, not knowing what to do because the State has taken no care to provide sufficient number of shelter homes, where vocational training can be provided to her and the civil society shuns her and don’t want to do anything to help her. It is at this cross-road that she may fall into the trap of some other traffiker. Mind you, these traffickers have a very strong partnership and union - almost a union incorporated. The State and more importantly the civil society must take steps to guard against this fall out.

REINTEGRATION: This is an area which is most important. The civil society needs to realize and appreciate that the concerned woman or child has been a victim of circumstances and, therefore, needs to be dealt with sensitivity. It is the duty of the society and, of course, of the State to ensure that the victim is reclaimed and integrated into the society – her past should be forgotten as a bad dream. Imparting of vocational training and make  avenues of employment or even self-employment would help in the long run to tackle the problem.

The challenge which trafficking in women and children is posing is a formidable one – the crime is on the increase and sex-tourism, which today has become a reality, has compounded the problem. There are laws to deal with the crime but not only those are inadequate but are also not being implemented properly. The sexual exploitation of women and children is a threat to the enjoyment of human rights by that segment of the society – we must accept the challenge and take all possible steps today – tomorrow may be late.  

Let me, however, caution that fight for justice by females or cry for gender equality should not be treated as if it is a fight against men.  It is a fight against traditions that have chained them — a fight against attitude that are ingrained in the society — it is a fight against proverbial Lakshman Rekha which is different for men and different for women. Therefore, men must rise to the occasion.  They must recognise and accept the fact that women are equal partners in life.  They are individuals who have their own identity. Over the centuries of human civilization, clear-cut gender roles have emerged, based on the stereotype conceptions of feminine and masculine characteristics. Society needs to change its attitude.  It is high time that Human Rights of Women are given proper priority.    

NEGLECT OF RIGHTS OF CHILD

        In the evolution of human rights, the child is relatively a late entrant. The Convention on Rights of Child was signed only in 1989. It has been ratified by 192 countries except Somalia and the United States. The late action on child rights is a sad reflection of uncaring attitude towards the rights of this weak segment of the society which borders on almost total neglect. 

       Today, the child is victim of sexual abuse, torture, war, violence, poverty, bonded labour, deprivation and denial.   Health of the child and particularly malnutrition of children belonging to the disadvantaged segments of the society is an area of concern.  According to statistics, 26 per cent of children are underweight and malnourished. Undernutrition is much higher in rural areas than in urban areas, and is particularly high among children from disadvantaged socio-economic groups. Nearly three quarters [74 per cent] of children between the age of 6-35 months are anaemic. The prevalence of anaemia among children (age 6-35 months) varies from 44 per cent in Kerala and Nagaland to 80-84 per cent in Haryana, Rajasthan, Bihar, and Punjab.

         Child labour in India is a historical fact and the exploitation of children for extracting labour is a grim reality.  Almost 150 million children in this country continue to languish in slavery. The weak and the poor of the world, often end up being mere footnotes of history.  A child is perhaps the weakest element in the global community dominated by the adult.  We need to eliminate child labour.  It is high time that the artificial distinction between ‘hazardous’ and ‘non-hazardous’ industry for the purpose of child labour is done away with. A comprehensive legislation to address the entire issue of child labour from the perspective of prevention, prohibition, regulation and rehabilitation to achieve the final objective of elimination of child labour is a pressing necessity and a challenge.

TERRORISM AND COUNTER MEASURES:

I would like to refer to one other challenge which effects human rights of innocent people the world over and has been a cause of concern in this country for more than three decades. The spectre of terrorism continues to haunt us globally.  While this is a historical fact that Human Rights recognize the essential worth of a human being, it is also a reality that the cult of terrorism strikes at the very root of human rights of innocent people. Terrorism and human rights are natural enemies with no possibility of their co-existence.   Conflicts and Terrorism have today emerged serious threats to the humanity.  No person who supports human rights can support terrorism, which results in a grave violation of human rights of innocent citizens. 

Terrorism has been the subject of a huge debate over the years but as yet there is no universally acceptable definition of what is “terrorism”, against which we have to fight.  Indeed despite definitional difficulties, we can recognize terrorism in action since it is an assault on a civilized society.  Terrorism is not merely a heinous criminal act.  It is more than mere criminality.  It is a frontal assault on the most basic human rights namely, right to life and liberty, by faceless murderers whose sole aim is to kill and maim human beings, whether they are innocent young children, elderly men or women.   One of the rights incorporated in the Universal Declaration of Human Rights and in all International covenants is the right to life.  For only this right ensures the enjoyment of all other rights.  The right to life is of crucial significance for every person, every group of people, every class and every nation and as a matter of fact, for all humanity.   This very right to life of the innocent people is the target of terrorism.

Let us be clear that there can be no alibis or justification for terrorism under the spurious slogans of “fight for freedom” or “struggle for liberation”.  As Senator Jackson has aptly stated:

 

The idea that one person’s ‘terrorist’ is another’s ‘freedom fighter’ cannot be sanctioned.  Freedom fighters or revolutionaries don’t blow up buses containing non-combatants; as terrorist murderers do.  Freedom fighters don’t set out to capture and slaughter school children; terrorist murderers do… It is a disgrace that democracies would allow the treasured word ‘freedom’ to be associated with acts of terrorists”.

I must, however, acknowledge that though nothing justifies terrorism, far too many people live in conditions where it can breed. It is common knowledge that systemic human rights violations for long periods of time are often the root cause of conflicts and terrorism.  When there is tyranny and wide spread neglect of human rights and people are denied hope of better future, it becomes a fertile ground for breeding terrorism. The existence of social, economic and political disparities in a large measure contribute to the eruption of conflicts within the State and beyond. The importance of promoting Economic, Social and Cultural Rights to contain such conflicts must, therefore, be realized and appreciated. The protection and promotion of Economic, Social and Cultural Rights must go hand in hand with protection of Political Rights for giving human rights a true meaning.

Fundamentalism in all its forms and manifestations is yet another subtle form of terrorism and posses a serious challenge to enjoyment of human rights.  Use of terrorist activities for imposing their “so called religious or ideological will” is a serious challenge.  While all faithful believe in harmony and brotherhood in religion, it is the misguided fanatics who do not value human life and in the name of religion resort to all types of attacks on human rights.  These include forcible imposition of self-righteous social code and undermining of freedom of expression and belief.  These fanatics contribute to a climate of religious bigotry, which leads to discrimination, harassment and attacks on all those who do not follow their dictates which may be right or wrong.  In doing so, they violate human rights of fellow citizens without any justification whatsoever.  Terrorism grows and thrives on ‘hatred policy’ – be that of rival political groups or fundamentalists or enemy agents.  A violent group whatever its politics, has no right to kill, and no claim to such a right must ever be allowed.   The challenge it poses stares us in the face.  We need to meet it by loud and positive condemnation.

There is a clear and emphatic relationship between national security and the security and integrity of the individuals who comprise the state. Between them, there is a symbiosis and no antagonism. The nation has no meaning without its people.  The worth of a nation is the worth of the individuals constituting the nation.  This is the emphasis laid in the Constitution of India, which holds out the promise to secure both simultaneously. Just as there can be no peace without justice, there cannot be any freedom without human rights.

Undoubtedly, the spectre of terrorism is haunting many countries of the world. It has acquired a sinister dimension. The terrorist threats that we are facing are now on an unprecedented global scale. But it must be remembered that the fundamental rationale of anti-terrorism measures has to be to protect human rights and democracy.   Counter terrorism measures should, therefore, not undermine democratic values, violate human rights and subvert the Rule of Law.

The menace of terrorism has to be curbed and the war against terrorism has to be fought relentlessly but in doing so, no democratic society can be permitted to chill civil liberties of the citizens.  In the fight against terrorism, sensitization level of human rights cannot be allowed to be sacrificed.  A terrorist who violates human rights of innocent citizens must be punished but his human rights should not be infringed except in the manner permitted by law. A critical task of striking a fair balance by way of security concerns and human rights is to be performed and need of proportionality must not be ignored. While fighting war against terrorism relentlessly, the State cannot be permitted to be either selective in its approach or to go over board and in effect declare a war on the civil liberties of people because the rationale of anti-terrorism measures is aimed at protecting human rights and democracy.  Counter terrorism measures should, therefore, not undermine democratic values or subvert the rule of law.    It is during anxious times when care has to be taken to ensure that state does not take recourse to bend the rule of law.

Our experience shows that the rubric of counter-terrorism can be misused to justify acts in support of political agendas, such as the consolidation of political power, elimination of political opponents, inhibition of legitimate dissent.   Labeling adversaries as terrorists is a notorious technique to de-legitimize political opponents. It is during anxious times that care has to be taken that state does not take recourse to bend the Rule of Law to accommodate popular sentiment for harsh measures against suspected criminals.  An independent judiciary and the existence of an effective human rights institution are indispensable imperatives for protection of fundamental human rights in all situations involving counter-terrorism measures. It provides vital safeguards to prevent abuse of counter- terrorism measures.  Counter- terrorism or anti-terrorism measures must, therefore, always conform to international human rights obligations.

            In addressing the Security Council on 18th January 2002, the Secretary-General stated:

“While we certainly need vigilance to prevent acts of terrorism, and firmness in condemning and punishing them, it will be self-defeating if we sacrifice other key priorities – such as human rights – in the process”

 

          Speaking on terrorism, Ms. Mary Robinson the then United Nations Commissioner for Human Rights, cautioned against the violation of human rights in the global ‘fixation’ with the war against terrorism and said:

 

What must never be forgotten is that human rights are no hindrance to the promotion of peace and security.   Rather they are an essential element of any strategy to defeat terrorism.

  

It must, therefore, stand as a caution that in times of distress, the shield of necessity and national security must not be used to protect governmental actions from close scrutiny and accountability where the same affect enjoyment of human rights.  In times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from petty fears and prejudices that are so easily aroused. Indeed, in the face of terrorism, there can be no doubt that the State has not only the right, but also the duty, to protect itself and its people against terrorist acts and to bring to justice those who perpetrate such acts.  The manner in which a State acts to exercise this right and to perform this duty must be in accordance with the Rule of Law.  The Supreme Court of India has, in DK Basu vs. State of West Bengal, [jt 1997(1) SC 1] cautioned:

 State terrorism is no answer to combat terrorism.  State terrorism would only provide legitimacy to terrorism:  that would be bad for the State,  the community and above all for the rule of law.  The State must, therefore, ensure that the various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves

 

The National Human Rights Commission of India is of the firm view that a proper observance of human rights is not a hindrance to the promotion of peace and security.  Rather, it is an essential element in any worthwhile strategy to preserve peace and security and to defeat terrorism.  The purpose of anti-terrorism measures must therefore be to protect democracy, rule of law and human rights, which are fundamental values of our society and the core values of the Constitution.

          Before parting with this topic, I would like to recall the statement of Shri Kofi Annan, Secretary General, made to the 191 member U.N. General Assembly on 21st March, 2005. He said:

 “We will not enjoy development without security, we will not enjoy security without development and we will not enjoy either without respect for human rights.”

 

and went on to caution:

 

“Unless all these causes are advanced, none will succeed.”

 

Expensive & Delayed Justice :

           Delayed and expensive justice also strikes at Human Rights, more particularly of those belonging to the underprivileged and vulnerable segments of the society. The Supreme Court has in a number of cases held that fair and speedy trials is part of fundamental rights of the citizens to “equal protection of law”. The high cost of litigation is a serious challenge.  Even after decades of independence the poor, backward and weaker sections of the society feel that they do not have equal opportunities for securing justice because of their socio-economic conditions.  The Government of India has demonstrated its resolve to meet the challenge of expensive justice, though without any spectacular success by enforcing National Legal Services Authority Act, 1986 aimed at introducing various schemes for providing inexpensive justice to the poor and down trodden. Proper implementation of NALSA and ensuring its benefit go to the right quarters, however, leaves much to be desired.

           As on 31st December, 2004, there were almost three crore cases pending in the courts in the country. The pendency of cases in the lower courts is 2,33,19,679 cases : over thirty three lakh cases (33,79,033) are pending in the High Courts and 30,151 cases are pending in the Supreme Court. The disposal of cases has not been able to keep pace with the institution of cases and, therefore, arrears keep mounting. 

        One of the challenges which stares the judiciary in India in its face is its failure to deliver justice expeditiously particularly in the subordinate courts.  It has brought about a sense of frustration amongst the litigants.   Human hope has its limits and waiting endlessly is not possible in the current life style.  There may be various causes for the mounting arrears like the shortage of courts and Judges, the shortage of infrastructure besides delay in filling up even the vacant posts.  There are nearly 13,000 judicial officers for a population of over one billion people.  According to the statistics there are about 150 vacancies of high court judges (748 - total strength) and about 2000 vacancies in the subordinate courts (11,500 courts app.). This by itself is a major cause for delayed justice. Besides, low expenditure on the judiciary (0.2% GNP) shows the low priority being given to the judiciary by the state. (In U.K. it is 4.3% of GNP)

             The consumer of justice wants unpolluted, expeditious and inexpensive justice.  He is not interested in knowing the causes for delay in disposal of cases.  The delay in disposal of cases is resulting in the citizen getting tempted to take law in his own hands and take recourse to extra judicial methods to settle scores and seek redress of his grievance.  This is a matter which is of grave concern.  Delay in disposal of cases also gives rise to many other aberrations which hit at the basic credibility of the institution.  The high regard that people have for the judiciary can turn to dismay when faced with the working of the justice delivery system. 

         For efficient discharge of the responsibilities of the courts, it is essential that the broad confidence, which people have in them, the high prestige and the great respect that they have enjoyed should be maintained and be not allowed to be eroded in any way.  The community has tremendous stake in the preservation of the image of the courts as dispensers of justice.  Weakening of the judicial system, in the long run, has necessarily the effect of undermining the foundations of the democratic structure.  The primary responsibility for projecting the great image of the courts, however, lies with those, who are connected with the functioning of the courts, whether as judges or as lawyers.

              One another factor of concern is in the area of administration of criminal justice system.  Large-scale acquittals (almost 80%) are eroding public confidence in the effectiveness of criminal justice delivery system.  It is natural also because when people see persons accused of heinous and ghastly offences getting acquitted, they believe that either courts are too liberal or pro-criminal or are not functioning the way they ought to function.  Unfortunately, they do not know nor do they try to know the reasons for such acquittals.  When a crime goes unpunished, the criminal is encouraged, the victim of crime is discouraged and the society in the ultimate analysis suffers, which has an adverse impact on the law and order situation in the country. However, the rising crime rate in the post independence era and the inadequacy of the law in balancing individuals liberty and State’s duty to ensure protection of life and liberty has made the criminal justice system a subject of heated debates but despite the concern over the shortcomings of the system to check the growing crime rate, we are still unable to check the rise in crime. But what appears to be certain is that more police, more prisons, more laws, more courts – will not achieve the object to bring about reform in the system of criminal justice and check the growing crime rate. Giving the victim of crime his rightful place and taking a serious note of his existence, his feelings and his rights with a view to offer redress to him for his ‘injuries’ may in the long run help check the rising graph of crime as well as the low conviction rate.

What I have pointed out only some of the challenges, which we need to address in this century.  The list is only illustrative and by no means exhaustive.  The finest hour would be reached only when we develop a culture of respect for human rights – let us all work in that direction.

Thank you. 

[1] The Preamble to the Charter speaks of the determination of the people of the United Nations “to re-affirm faith in fundamental human rights in the dignity and worth of human person…” Clause (3) of Art. 1 sets out the purposes and principles of the United Nations; it speaks of Promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion” Clause 1(b) of Art. 13 which deals with the functions and powers of the United Nations, authorizes the General Assembly to initiate studies and make recommendations for the purpose of assisting in the realization of “human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”. Art. 55 in Chapter IX speaks of International economic and social cooperation and Clause (c) of this article says that the United Nations shall promote “(c) universal respect for all, and observance of, human rights and fundamental freedoms for all…” Article 62 which speaks of functions and powers of the Economic and Social Council (UNESCO) lays down that the Council may “make recommendations for the purpose of promoting respect for and observance of human rights and fundamental freedoms for all…” Article 68 which is procedural in nature says that the Council shall “set up commission in economic and social fields and for the promotion of human rights…” Lastly Art. 76, which provides for international trusteeship system declares that basic objects of the trusteeship system shall be inter alia “to encourage respect for human rights and for fundamental freedoms for all…”

 

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KEYNOTE ADDRESS OF DR. JUSTICE A.S. ANAND (FORMER CHIEF JUSTICE OF INDIA) CHAIRPERSON NHRC ON HUMAN RIGHTS IN 21ST CENTURY ON 4th MARCH, 2005 ORGANISED BY: INSTITUTE OF SOCIAL SCIENCES

Twentieth Century stands out as the century that witnessed unprecedented denial of human rights.  League of Nations established after the first World War failed to prevent another World War which was   more disastrous than the first.

Appalled by the man’s capacity to destroy himself and showing scant respect for Human Rights the world community started to think.  On 26th June 1945, fifty nations, including India, signed the United Nation’s Charter creating the United Nations. This Charter refers to ‘human rights’ in as many as seven places.[1] The repeated reference to human rights in the United Nations’ Charter discloses the extraordinary concern exhibited by the members of the United Nations for preservation and promotion of human rights.

The UN Charter hoped to save succeeding generations from self-destruction by proclaiming and establishing equal and inalienable rights of all members of the human family — great or small, virtuous or vicious, rich or poor, wise or foolish and their inherent dignity, regardless of birth, status, race, colour, sex, language, religion or political or other opinion.  Article 55 of the Charter of the United Nations requires the United Nations to promote: “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”  Article 56 enjoins that : “All members pledge themselves to take joint and separate action in cooperation with the organisation for the achievement of the purposes set forth in Article 55.”

            In 1948 when the Universal Declaration of Human Rights was adopted as “a common standard of achievement of all peoples and nations” there were reservations of many State Governments.  Virtually all States shielded behind Article 2(7) of the UN Charter in arguing that human rights matter was strictly an internal matter of the States concerned.  Due to reservations of State governments, the Universal Declaration of Human Rights was not presented to the General Assembly as a treaty for ratification which would be binding upon the signatory nations, but an instrument to be endorsed as “a statement of goals and aspirations – a vision of the world as the International community wanted it to become”.  The Declaration was adopted by an affirmative vote of 48 member States and 8 abstentions.   A UN Commission on Human Rights was set up.   The Commission’s mandate was confined to the drafting of new treaties and other legal instruments. 

          The Universal Declaration of Human Rights adopted by the General Assembly on 10th December, 1948, was followed by two Covenants – International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) in 1966. However, in spite of the Universal Declaration and the two Covenants, widespread violation of human rights continues to occur almost daily everywhere. There is, therefore, some sting but more than a grain of truth in the cynic’s taunt that the only thing universal about human rights is their universal violation.

          The Preamble to the 1966 Covenant on Civil and Political Rights speaks of ‘the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedom.’ The World Conference on Human Rights also emphasized this aspect in The Vienna Declaration and Programme of Action, 1993 when it said that ‘every state should provide an effective framework of remedies to redress human rights grievances or violations”.

          One of the important advancements of the twentieth century was the recognition of democracy as, to quote Prof. Amartya Sen, “preeminently acceptable form of governance”. Though democracy is not the only means by which improved governance could be achieved, it is perhaps the only reliable one. By providing greater public participation, democracy enhances the likelihood that national developmental goals will reflect broad societal aspirations and priorities. By establishing political legitimacy of governments, democracy strengthens their capacity to function efficiently and effectively. Thus human rights and democracy are mutually supportive. Unless human rights are made the focal point by the State, good governance would remain an unfulfilled dream

However, before the twentieth century came to an end there were also some remarkable and important developments in the domain of human rights.  The view that human rights matters were essentially internal matters of the concerned states now receives very little credence from the International Community.  It concerns the universality of human rights all over. 

Unfortunately, at the beginning of the 21st Century no country can look back on its own record of Human Rights of the last Century with any sense of pride.  Estimates say that in the 20th Century, some 100 million persons have been killed in armed conflicts and 120 million more deaths have resulted from politically-related violence.  The UN Human Development Report of 1998 has added that, while civilian casualties in situations of armed conflict were some 5% at the beginning of the Century; they were over 90% in the 1990’s with children being the main sufferers.

Twentyfirst century, however, started with two important events: (i) the new initiatives by poor and rich nations in fulfilling a long unfinished agenda of “full human development” and “human rights for all”; and (ii) the Millennium Development Goals emanating from the Declaration adopted by 189 countries at the United Nations Millennium Summit on 8th September, 2000.  The UN Millennium Development Goals are in a way value based resolves among nations to end human poverty, promote human dignity and equality, and to take steps in furtherance of the attack on inadequate incomes, widespread hunger, gender inequality, environmental deterioration and lack of education, health care and clean water, towards the convergence of human development and human rights in action.

CHALLENGES FACING THE 21ST CENTURY

GENDER EQUALITY

          Women continue to be discriminated all over the world and are subject to many forms of violence. Inspite of ratification of regional and International Instruments, many States still maintain laws and practices, which discriminate against women. Selective practices and customs used by states perpetuate discrimination. This is particularly true in the field of access to land and other important economic resources and rights within the family. Crimes against women, which are increasing exponentially are actually crimes against humanity and expose the failure of the governments to effectively prosecute those who are responsible for Commission of such crimes.

          The Report on “Human Development in South Asia, 2000”, dealing with gender question focuses on deprivation borne by women in South Asia. At home, however, gender equality appears to be long way off. The plight of the girl child; selective abortions of females; the increase in cases of domestic violence besides the rise in crime against women are serious challenges which face us in this century.

One related issue that has been engaging the attention of the National Human Rights Commission is the increase in Trafficking in women and children – a gross violation of their human rights and an affront to the supreme dignity of the females.  Besides, it is a serious crime. The existing systems in the spheres of prevention, protection and prosecution of offenders are not adequately geared towards tackling this complex problem in a holistic and rights-based manner.  The NHRC, UNIFEM and Institute of Social Sciences conducted an Action Research on Trafficking in women and children in 13 States/ UTs, which brought out many depressing but significant findings.  The Study has made a number of recommendations, among other things, on prevention of trafficking, protection of victims and survivors, prosecution of traffickers and other exploiters. Those recommendations are being examined by the Government. If implemented in right earnest and with sincerity, the recommendations would go a long way to deal with the issue effectively.

RIGHTS OF CHILD

In the evolution of human rights, the child is relatively a late entrant. The Convention on Rights of Child was signed only in 1989. The late action on child rights is a sad reflection of uncaring attitude towards the rights of this weak segment of the society which borders on almost total neglect. 

       Today, the child is victim of sexual abuse, torture, war, violence, poverty, bonded labour, deprivation and denial.  Health of the child and particularly malnutrition of children belonging to the disadvantaged segments of the society is an area of concern.  According to the National Family Health Survey 1998-99, 47 per cent of children under age of five years in India are malnourished. Undernutrition is much higher in rural areas than in urban areas, and is particularly high among children from disadvantaged socio-economic groups. Nearly three quarters [74 per cent] of children between the age of 6-35 months are anaemic. The prevalence of anaemia among children (age 6-35 months) varies from 44 per cent in Kerala and Nagaland to 80-84 per cent in Haryana, Rajasthan, Bihar, and Punjab.

         Child labour in India is a historical fact and the exploitation of children for extracting labour is a grim reality.  Almost 150 million children in this country continue to languish in slavery. The weak and the poor of the world, often end up being mere footnotes of history.  A child is perhaps the weakest element in the global community dominated by the adult.  We need to eliminate child labour.  A comprehensive legislation to address the entire issue of child labour from the perspective of prevention, prohibition, regulation and rehabilitation to achieve the final objective of elimination of child labour is a pressing necessity and a challenge.

 

POVERTY

Poverty is the biggest violator of human rights – it is also a threat to peace because if hunger persists, peace cannot prevail.  Poverty destroys human dignity and without human dignity there can be no human rights or the capacity to fight against the denial of human rights.   Unfortunately, in today’s world nearly three quarters of humanity who live in developing countries of Asia, Africa and Latin America are weighed down by poverty and underdevelopment. Widespread poverty among the masses in the developing countries is a great cause of denial of human rights. Human rights have a transformative potential. They are a constant challenge to the vested interests in society riven by enormous disparity of wealth and power with traditions of authoritarianism and helplessness of disadvantaged communities.  The time has, therefore, come to return to the values and principles reflected in the Universal Declaration of Human Rights. 

SOCIAL, ECONOMICAL AND CULTURAL RIGHTS

Millions of people in this country live in a state of abject poverty, without food, shelter, employment, health care and education.  According to a UN Report, 1/5th of the population in a developing country, like ours, are hungry every night, 1/4th do not have access to basic amenities like drinking water and 1/3rd live in a state of acute poverty.  Protection of social, economic and cultural rights as compared to civil and political rights, both at the national and international level, has been poor and irregular. The fallacy lies in treating one set of rights as inferior to the other set of rights. To correct the fallacy, is a challenge we face in this century.

When WE THE PEOPLE OF INDIA resolved to give to ourselves the Constitution, we aimed at securing for all its citizens – Justice, social, economic and political; Equality of status and opportunity besides Liberty of thought, expression, belief, faith and worship and Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The Indian Constitution, evolved after careful thought, excludes the mention of certain basic economic and social rights, such as the right to food, right to shelter, right to work and right to medical care, etc. from the chapter on Fundamental Rights contained in Part-III of the Constitution. Those rights have been made a part of Directive Principles of state policy in Part-IV of the Constitution. While the civil and political rights, having been incorporated as Fundamental Rights, are both justiciable and enforceable, the Economic, Social and Cultural rights enshrined as the Directive Principles of the State Policy are not enforceable or justiciable.  Justiciability is, essentially speaking, the basis of division between them.   While fundamental rights are justiciable, directive principles are not.  Nonetheless, the mandate of Article 37 of the constitution is that even though directive principles are not justiciable or enforceable by the courts, the same are “fundamental in the governance of the country” and it shall be the “duty” of the State to apply these principles. Thus, the directive principles cannot, in any way be considered less important than fundamental rights. The directive principles require the state to take special care of education and economic interests particularly of the vulnerable sections of the society.

 

Perhaps, in the backdrop of the then social-economic conditions of the Indian society, the framers of the Constitution evolved the two sets of rights – representing, two streams in the evolution of human rights, which divide them between civil and political rights on the one hand and social, economic and cultural rights on the other.   Both are equally important and interdependent.  These rights which are aimed at living with dignity by members of the human family are essential for full development of human personality. 

 

The International Covenant on Economic, Social and Cultural Rights, to which India is a State party, specifically recognizes the “fundamental right of everyone to be free from hunger” and the right of everyone to “adequate food”. It also recognizes the “right of everyone to education” and asserts that “primary education shall be compulsory and available free to all”; it further recognizes the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.  Domestic application of the covenants is the need of the hour.

HEALTH CARE AND HIV/AIDS

        ‘Health Care’ and more particularly neglect of it, poses a formidable challenge to the enjoyment of human rights by the disadvantaged segments of the society.  In this connection I wish to point out that HIV/AIDS is a major public health challenge.  According to some experts, our country today hosts the second largest number of persons affected or infected with HIV/AIDS.  Studies have shown that the disease is moving from high-risk groups to the general population, from urban to rural areas and that a significant percentage of women are affected by this disease.  The stigma and discrimination faced by these persons are important issues touching upon their human rights.  The National Human Rights Commission apart from creating awareness among citizens and redressing a number of individual complaints, made systemic recommendations concerning human rights of persons affected by HIV/AIDS more particularly the children affected/infected by HIV/AIDS with regard to their right to education and access to medical care.

 TERRORISM

          I would like to refer to one other challenge which effects human rights of innocent people the world over and has been a cause of concern in this country for more than three decades. The spectre of terrorism continues to haunt us globally.  While this is a historical fact that Human Rights recognize the essential worth of a human being, it is also a reality that the cult of terrorism strikes at the very root of human rights of innocent people. Terrorism and human rights are natural enemies with no possibility of their co-existence.   No person who supports human rights can support terrorism, which results in a grave violation of human rights of innocent citizens.  There can be no alibis and justification for terrorism as nothing can ever justify terrorism. The menace of terrorism has to be curbed and the war against terrorism has to be fought relentlessly but in doing so, no democratic society can be permitted to chill civil liberties of the citizens.  In the fight against terrorism, sensitization level of human rights cannot be allowed to be sacrificed.  A terrorist who violates human rights of innocent citizens must be punished but his human rights should not be infringed except in the manner permitted by law. A critical task of striking a fair balance by way of security concerns and human rights is to be performed and need of proportionality must not be ignored. While fighting war against terrorism relentlessly, the State cannot be permitted to be either selective in its approach or to go over board and in effect declare a war on the civil liberties of people because the rationale of anti-terrorism measures is aimed at protecting human rights and democracy.  Counter terrorism measures should, therefore, not undermine democratic values or subvert the rule of law.    It is during anxious times when care has to be taken to ensure that state does not take recourse to bend the rule of law.

          Fundamentalism in all its forms and manifestations is yet another subtle form of terrorism.  Use of terrorist activities for imposing their “so called religious or ideological will” is a serious challenge.  While all faithful believe in harmony and brotherhood in religion, it is the misguided fanatics who do not value human life and in the name of religion resort to all types of attacks on human rights.  These include forcible imposition of self-righteous social code and undermining of freedom of expression and belief.  These fanatics contribute to a climate of religious bigotry, which leads to discrimination, harassment and attacks on all those who do not follow their dictates which may be right or wrong.   In doing so, they violate human rights of fellow citizens without any justification whatsoever.  Terrorism grows and thrives on ‘hatred policy’ – be that of rival political groups or fundamentalists or enemy agents.  A violent group whatever its politics, has no right to kill, and no claim to such a right must ever be allowed.   The challenge it poses stares us in the face.  We need to meet it by loud and positive condemnation.

ROLE OF NGOs

An important development in the field of human rights is the increasingly important role of Non-Governmental Organisations (NGOs). They have done useful work in popularizing the ideas and concepts of human rights and drawing attention of national and international agencies to egregious   violations of human rights in different quarters of the globe. NGOs have also encouraged the growth of human rights culture that cuts across national political boundaries. Their functions include education, advocacy, standard-setting and monitoring and in some cases enforcement. Civil Society Organizations have a key role to play in ensuring that governments live upto the commitments made by them.  It is sad that many countries in the world are falling short of the commitments made by the governments at the gathering of Heads of States in the 2000 UN Millennium Declaration to spare no effort to free fellow men, women and children from the abject and de-humanising conditions of extreme poverty. There is need to effectively involve credible NGO’s for promoting the Millennium Declaration goals. Five years have gone by since the Millennium Declaration of Development Goals was made.   Lot still remains to be done.  The challenge is to reach the Goals by 2015 as stipulated by the U.N. Millennium Declaration. It is not “impossible” – we need determination, commitment and a desire to move forward with a secular agenda for promoting and protecting human rights.

What I have pointed out only some of the challenges which we need to address in this century.  The list is only illustrative and by no means exhaustive.  The finest hour would be reached only when we develop a culture of respect for human rights – let us all work in that direction.

[1] The Preamble to the Charter speaks of the determination of the people of the United Nations “to re-affirm faith in fundamental human rights in the dignity and worth of human person…” Clause (3) of Art. 1 sets out the purposes and principles of the United Nations; it speaks of Promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion” Clause 1(b) of Art. 13 which deals with the functions and powers of the United Nations, authorizes the General Assembly to initiate studies and make recommendations for the purpose of assisting in the realization of “human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”. Art. 55 in Chapter IX speaks of International economic and social cooperation and Clause (c) of this article says that the United Nations shall promote “(c) universal respect for all, and observance of, human rights and fundamental freedoms for all…” Article 62 which speaks of functions and powers of the Economic and Social Council (UNESCO) lays down that the Council may “make recommendations for the purpose of promoting respect for and observance of human rights and fundamental freedoms for all…” Article 68 which is procedural in nature says that the Council shall “set up commission in economic and social fields and for the promotion of human rights…” Lastly Art. 76, which provides for international trusteeship system declares that basic objects of the trusteeship system shall be inter alia “to encourage respect for human rights and for fundamental freedoms for all…”

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TERRORISM MEASURES TO COMBAT IT WITH FOCUS ON HUMAN RIGHTS by Dr. Justice .A.S. Anand Chairperson National Human Rights Commission At ( XXVIII Conference of Indian Society of Criminology) Organized by ISC & University of Jammu On 16th February 2005 At Abhinav Theatre, Jammu

The protection and promotion of Human Rights is basic for civilized existence because these rights are demands to protect our only common identity as human beings.  In democratic societies fundamental human rights and freedoms are put under the guarantee of law and therefore, their protection becomes an obligation of those who are entrusted with the task of their protection. There has been a growing consciousness amongst citizens all over the world against violation of human rights.  Strong national and international movements have emerged.

                  In their correct perspective, it needs to be pointed out that human rights of citizens which are first of all ethical norms for treatment of an individual in the society are non-negotiable and non-derrogable.  No compromise with violations of the same is permissible in any civilized society.  These rights recognize the essential worth of a human being and acknowledge the dignity inhering in all human beings, irrespective of their race, sex or economical level of living.  While this is a historical fact, it is also a reality that the cult of terrorism strikes at the very root of human rights of innocent people. Terrorism and human rights are natural enemies with no possibility of their co-existence.    No person who supports human rights can support terrorism, which results in a grave violation of human rights of innocent citizens.  The growing menace of terrorism is a fight between barbarism and civilisation and is a morally degrading means of struggle, with no justification whatsoever.  It is not merely a heinous criminal act  - it is more than mere criminality.   It poses a formidable challenge to the enjoyment of human rights. 

                      Traditional thinking has been that it is the State that violates human rights but the violation of human rights by the terrorist is a reality, which poses a serious problem. Terrorism, in all its form, is the greatest violator of human rights.   It is a clear and present danger to world today; it strikes a fatal blow to human rights of innocent citizens. The ruthless, barbaric, inhuman killing of innocent people is carried out by the terrorists with a view not only to challenge the authority of the Government, but also to put the security and sovereignty of the country in jeopardy and bring trauma and perpetual grief to the families who suffer from such killings. Their grief and trauma cannot be adequately expressed but only sensed.  It is, to say in one word, terrible.   The right to life, which ensures enjoyment of all other rights, is of crucial significance for every person, every group of people, every class and every nation and as a matter of fact, for all humanity.  Terrorism is a frontal assault on the most basic human rights namely, right to life and liberty, by faceless murderers whose sole aim is to kill and maim human beings, whether they are innocent young children, elderly men or women. This very right to life of the innocent people is the target of terrorism.

The World Conference in Vienna (1993) was a significant landmark in recognizing terrorism as a threat to human rights. It stated that:

The acts methods and practice of terrorism in all its forms and manifestations…are activities aimed at the destruction of human rights…The international community should take the necessary steps to enhance cooperation to prevent and combat terrorism.

            Different aspects of terrorism have been a concern of world community. Though there have been as many as 12 conventions and a declaration dealing with the subject but it was the killing of Israeli athletes at the Munich Olympics which led to the inscribing of international terrorism on the agenda of the United Nations General Assembly in 1972 at the request of the then Secretary General of United Nation and the problem of international terrorism was confronted both politically and legally rather than concentrating on any specific acts of terror. It is worth recalling that major part of the debate in the General Assembly concentrated on the causes of terrorism versus measures against terrorism.

Terrorism has been the subject of a huge debate over the years but as yet there is no universally acceptable definition of what is “terrorism”, against which we have to fight.  Indeed despite definitional difficulties, we can recognize terrorism in action since it is an assault on a civilized society. 

While an acceptable definition of terrorism still eludes the international community, the Supreme Court of India, as far back as in 1994, dwelt at length on it and drew a distinction between a ‘merely criminal act’ and a ‘terrorist act’.  In its Judgment in Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602], the Supreme Court of India said:

“.... It may be possible to describe it (Terrorism) as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole.  There may be death, injury,  or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of any ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or “terrorise” people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquility of the society and create a sense of fear and insecurity.” 

There is indeed a clear and emphatic relationship between national security and the security and integrity of the individuals who comprise the state. Between them, there is a symbiosis and no antagonism. The nation has no meaning without its people.  The worth of a nation is the worth of the individuals constituting the nation.  This is the emphasis laid in the Constitution of India, which holds out the promise to secure both simultaneously. Just as there can be no peace without justice, there cannot be any freedom without human rights.

International terrorism is a modern form of warfare against liberal democracies and needs to be dealt with as such.  The goal of these terrorists is to destroy the very fabric of democracy and it would be wrong for any democratic state to consider international terrorism to be “someone else’s” problem. The liberal democracies must, therefore, acknowledge that international terrorism is a collective problem. They must unite to condemn and combat it.   When one free nation is under attack, the rest must realise that democracy itself is under attack.   The oft repeated cry, “One country’s terrorist is another nation’s freedom fighter” is but one manifestation of the widespread confusion about the morality of terroristic forms of violence and even goes to encourage terrorism because it clothes the terrorist with a cloake of respectability – totally undeserved.  

 

Let us be clear that there can be no alibis or justification for terrorism under the spurious slogans of “fight for freedom” or “struggle for liberation”.  As Senator Jackson has aptly stated:

 

The idea that one person’s ‘terrorist’ is another’s ‘freedom fighter’ cannot be sanctioned.  Freedom fighters or revolutionaries don’t blow up buses containing non-combatants; as terrorist murderers do.  Freedom fighters don’t set out to capture and slaughter school children; terrorist murderers do… It is a disgrace that democracies would allow the treasured word ‘freedom’ to be associated with acts of terrorists”.

      

Terrorism has today emerged as a serious threat to the humanity.  It poses a serious challenge to the international community.  It is a strange paradox that while on the one hand, higher and better international human rights and humanitarian standards have evolved over the past five or six decades, on the other hand conflicts and newer forms of terrorism, which threaten human rights of people the world over, are on the rise and becoming more and more dangerous.  One also finds resort to the use of more and more deadlier and lethal weapons, deliberate targeting of civilians, forced starvation of civilians and resort to rape and other sexual violations besides taking hostages etc.   Scientific   and technological developments as well as the global network of communications are being viciously exploited by terrorists.   What is a matter of serious concern is the existence of trans-national networks of terrorist organizations, which have a nexus with arms and drug traffickers and crime syndicates. Today’s terrorists have modern technology to help them, permitting rapid international communications, travel and the transfer of monies.  They have links with others of like mind across international borders. What makes it even more dangerous are recent media reports that they may well have access to weapons of mass destruction including biological weapons.

 I must, however, acknowledge that though nothing justifies terrorism, far too many people live in conditions where it can breed. It is common knowledge that systemic human rights violations for long periods of time are often the root cause of conflicts and terrorism.  When there is tyranny and wide spread neglect of human rights and people are denied hope of better future, it becomes a fertile ground for breeding terrorism. The existence of social, economic and political disparities in a large measure contribute to the eruption of conflicts within the State and beyond. The importance of promoting Economic, Social and Cultural Rights to contain such conflicts must, therefore, be realized and appreciated. The protection and promotion of Economic, Social and Cultural Rights must go hand in hand with protection of Political Rights for giving human rights a true meaning. The neglect of Economic, Social and Cultural Rights gives rise to conflicts and emerging forms of terrorism which are threatening the democratic societies worldwide.  It cannot be denied that disillusionment with a society where there is exploitation and massive inequalities and whose systems fail to provide any hope for justice are fertile breeding grounds for terrorism, which more often than not thrives in environments where human rights and more particularly Economic, Social and Cultural Rights are denied by the State and political rights are violated with impunity both by the State and non-State actors. Systemic denial of Economic, Social and Cultural Rights, like right to food, health, education etc. are causatic factors of conflict and terrorism. Any worthwhile strategy to resolve conflicts and terrorism will have to ensure enjoyment of the full range of Economic, Social and Cultural Rights.

 

One other factor leading to violations of human rights is the ever-growing fundamentalism in all its forms and manifestations and use of terrorist activities for imposing their “so called religious or ideological will”.  While all faithful believe in harmony and brotherhood in religion, it is the misguided fanatics who do not value human life and in the name of religion resort to all types of attacks on human rights.  These include forcible imposition of self-righteous social code and undermining of freedom of expression and belief.  Fundamentalism is sometimes used to exploit innocent citizens in the name of religion to secure “political” advantage over the rivals, unmindful of the harm their actions may cause to the nation by such exploitation.  They contribute to a climate of religious bigotry, which leads to discrimination, harassment and attacks on all those who do not follow their dictates which may be right or wrong, on believers of other faiths. In doing so, they violate human rights of fellow citizens without any justification whatsoever.  Terrorism grows and thrives on ‘hatred policy’ – be that of rival political groups or fundamentalists or enemy agents.  Society’s response to such type of terrorism has to be clear and effective.  Indifference of the society to such acts encourages fundamentalists — Loud and positive condemnation of their activities by the society, on the other hand is bound to discourage them. A violent group whatever its politics, has no right to kill, and no claim to such a right must ever be allowed.  Today the vast majority of fatalities through terrorism are caused by attacks on unarmed civilians who are going around about their peaceful and lawful business. What more fundamental attack on human rights can there be than to deprive the innocent of the right to life?  Does murder cease to be murder just because the killer believes human life is expendable in pursuit of some particular species of fanaticism?

Having said all this, the next question and a vexed one, is: How do or should democratic States which adhere to the Rule of Law and respect basic human rights deal with this menace? 

          Undoubtedly, the spectre of terrorism has acquired a sinister dimension. The terrorist threats that we are facing are now on an unprecedented global scale. War against terrorism has, therefore, to be firm and relentless.  But it must be remembered that the fundamental rationale of anti-terrorism measures has to be to protect human rights and democracy.  Counter terrorism measures should, therefore, not undermine democratic values, violate human rights and subvert the Rule of Law.  Consequently, the battle against terrorism must be carried out in keeping with international human rights obligations and the basic tenets of the Rule of Law.  No doubt “the war on terrorism” has to be relentlessly fought but that should be done without going over-board and in effect declaring war on the civil liberties of the people. The protection and promotion of human rights under the Rule of Law is essential in prevention of terrorism. If human rights are violated in the process of combating terrorism, it will be self defeating.  No democratic society can be permitted to chill civil liberties of the citizens while taking measures against the terrorists. 

 

In the fight against terrorism, sensitization level of human rights cannot be allowed to be sacrificed.  A critical task of striking a fair balance by way of security concerns and human rights is to be performed and need of proportionality must not be ignored. Counter terrorism measures should, therefore, not undermine democratic values or subvert the rule of law.   It is imperative that the essential safeguards of due process and fair trial should not be jettisoned.  

 

Our experience shows that the rubric of counter-terrorism has often been misused to justify acts in support of political agendas, such as the consolidation of political power, elimination of political opponents, inhibition of legitimate dissent.  Labeling adversaries as terrorists is a notorious technique to de-legitimize political opponents. It is during anxious times that care has to be taken that state does not take recourse to bend the Rule of Law to accommodate popular sentiment for harsh measures against suspected criminals.  An independent judiciary and the existence of an effective human rights institution are indispensable imperatives for protection of fundamental human rights in all situations involving counter-terrorism measures. It provides vital safeguards to prevent abuse of counter- terrorism measures.  Counter- terrorism or anti-terrorism measures must, therefore, always conform to international human rights obligations.  It must stand as a caution that in times of distress, the shield of necessity and national security must not be used to protect governmental actions from close scrutiny and accountability where the same affect enjoyment of human rights. 

 

It has been noticed that to check terrorism, the State sometimes adopts counter-terrorism measures, which may also be violative of human rights of those engaged in such activity.   Terrorists often employ human rights as an instrument of psychological warfare. Therefore, State Terrorism is no answer to combat terrorism.  It may on the other hand provide legitimacy to terrorism for the citizen would not know who violates whose human rights. An excessive and unplanned response by the security forces to provocation by terrorists constitutes violation of human rights. It is bad for the society, the State and the Rule of Law. The need to foster a climate of discipline and adherence to democratic values cannot but be emphasized.  We need only recall the caution administered by the Supreme Court of India in DK Basu vs. State of West Bengal, [JT 1997(1) SC 1].  It said:

 

State terrorism is no answer to combat terrorism.  State terrorism would only provide legitimacy to terrorism:   that would be bad for the State,  the community and above all for the rule of law.  The State must, therefore, ensure that the various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves

 

Let us be very clear that while the State has a right and an obligation to protect itself and its people against terrorist acts, proper observance of human rights is not a hindrance to the promotion of peace and security.  Rather, it is an essential element in any worthwhile strategy to preserve peace and security and to defeat terrorism.  The purpose of anti-terrorism measures has to be to protect democracy, rule of law and human rights, which are fundamental values of our society and the core values of the Constitution. 

 

It is also wrong to be selective about violation of human rights and the perpetrators of terrorism.  Such selective approach leads to double standards, which make the motives of the protagonists of human rights suspect.  It also indirectly lends support to terrorists and terrorism.  All nations must, therefore, co-operate to relentlessly and without any compromise fight terrorism.   Concerted steps at a global level will have to be taken to tackle terrorism and safeguard human rights. The fight against terrorism requires close co-operation of all countries both at law enforcement and judicial levels in order to put an end to illegal trafficking which feeds terrorist networks. To clip the wings of terrorism, the international communities must target the roots of frustration as well as the feeling of injustice.  But let me emphasise that in doing so, the approach should be humane, rational and secular.  It must be consistent with democratic principles.  Any kind of partisan and sectarian approach would be counter-productive. We need to strike a balance between the liberty of an individual and the requirements of security of state and sovereignty and integrity of the nation while keeping an open mind to fight terrorism. A limited approach may help eliminate some present terrorists but not the causes or the phenomenon of terrorism, which produces terrorists; and that too at the cost of violation of human rights of many innocents.  A proper balance between the need and the remedy requires respect for the principles of necessity and proportionality.

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ADDRESS OF DR. JUSTICE A.S. ANAND (FORMER CHIEF JUSTICE OF INDIA) CHAIRPERSON NHRC  AT CAPACITY BUILDING WORKSHOP ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ON: 7th February 2005  DELIVERED AT: NATIONAL JUDICIAL ACADEMCY, KARNATAKA

         Justice N.K. Sodhi, Chief Justice, Hon’ble Judges of the High Court of Karnataka and Mr.S. Ramanathan, Chairman, IIPA, Karnataka Regional Branch, distinguished guests and participants in the Workshop.

          I welcome you all to this workshop.  I am extremely happy to be in your midst this morning at the inaugural session of the Workshop on Economic, Social and Cultural Rights being organized by the National Human Rights Commission, in collaboration with Indian Institute of Public Administration and Karnataka Judicial Academy. The objective of this workshop is to sensitize the participants to the importance of the International Covenant on Economic, Social and Cultural Rights – ICESCR and their application to domestic laws and public policy.

         Human rights are demands to protect our only common identity as human beings.  These rights which are non-negotiable and not alienable are first of all ethical principles.  They are ethical norms for the treatment of individuals. There are certain minimal rights which have come to be recognized as basic conditions of civilized living for full development of a human being.  These are broadly classified into civil and political rights on the one hand and economic, social and cultural rights on the other.  The distinction between the two set of rights was put to rest by the Vienna Declaration and Programme of Action which affirms that ‘All human rights are universal, indivisible, interdependent and interrelated’.  The classification of these rights is thus more dialectical than real.  While the former are more in the nature of injunction against the authority of the State from encroaching upon the inalienable freedoms of an individual, the latter are demands on the State to provide positive conditions to capacitate the individual to exercise the former.  The object of both the sets of rights is, to make an individual an effective participant in the affairs of the society.  Unless both sets of rights are available, neither full development of the human personality can be achieved nor true democracy can be said to exist.

In a broader sense, human rights are directly protected rights as well as indirectly protected rights.  The directly protected rights are rights like the right to life or right to freedom of thought.  To protect them means to put them under the guarantee of law.  But indirectly protected rights – such as the right to food, the right to education or right to health care can only be protected through public institutions and through economic and social rights.  This is where the role of the senior officials of the State assumes importance and significance.

 When WE THE PEOPLE OF INDIA resolved to give to ourselves the Constitution, we aimed at securing for all its citizens – Justice, social, economic and political; Equality of status and opportunity besides Liberty of thought, expression, belief, faith and worship and Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The Indian Constitution, evolved after careful thought, is a dynamic living document, which carries the spirit of persuasion, of accommodation and of tolerance. It excludes the mention of certain basic economic and social rights, such as the right to food, right to shelter, right to work and right to medical care, from the chapter on fundamental rights contained in Part-III of the Constitution. Those rights have been made a part of directive principles of state policy in Part-IV of the Constitution. The civil and political rights having been incorporated as Fundamental Rights are both justiciable and enforceable.  However, the economic, social and cultural rights which are enshrined as the Directive Principles of the State Policy though not enforceable or justiciable, are made fundamental in the governance of the State.  It is, therefore, the duty of the executive, the legislature and also of the judiciary to implement them.  The senior officers of the government must not only be cautious of these rights but take steps to implement them.  Justiciability is, essentially speaking, the basis of division between the two set of rights. Whereas fundamental rights are justiciable, directive principles are not. Nonetheless, the Founding Fathers gave a mandate in Article 37, that the directive principles, though not enforceable by any court, are “fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”.

         The distinction, between the two sets of rights has thus to be viewed from the historical context of the time when the Constitution was framed. Perhaps, in the backdrop of the then social-economic conditions of the Indian society, after about two hundred years of colonial subjugation, the framers of the Constitution evolved two sets of rights.  In a way, the Fundamental Rights and the Directive Principles of State Policy are the product of human rights movement in the country. Roughly they represent, two streams in the evolution of human rights, which divide them between civil and political rights on the one hand and social, economic and cultural rights on the other.

          Perhaps, it was because of realizing practical difficulties in the enforcement of directive principles by the courts that the founding fathers settled for their judicial non-enforceability but made them “fundamental” in the governance of the country.  Thus, the directive principles cannot, in any way be considered less important than fundamental rights. The resolve of the Preamble is elaborately repeated in the directive principles which, among others, specifically require, the State to minimize the inequalities in income and to eliminate inequalities in status, facilities and opportunities. The directive principles require the state to take special care of education and economic interests particularly of the vulnerable sections of the society.

         The primacy between the fundamental rights and the directive principles, which are also described as the primary and the secondary rights respectively, has been a matter of considerable debate in the courts.  The law which has come to be developed in this country on the subject today, seeks to harmonise the Fundamental Rights with the Directive Principles and, thereby synthesise the civil and political rights and the economic, social and cultural rights.  The courts have been reading Fundamental Rights into the Directive Principles and expanding the civil and political rights to include in them the economic, social and cultural rights and construing the two set of rights harmoniously.  To that extent the higher courts, viz., the Supreme Court and the High Courts which are also vested with the power of judicial review, have risen to the occasion to respond to the hopes and aspirations of the common man. For example, the right to food; right to clean drinking water; the right to health care, etc., are today, treated as essential elements of right to life under Article 21 of the Constitution.   This trend is reflected in the opinion of the Supreme Court in Minerwa Mills Ltd. Vs. Union of India[1] where it was recognized that harmony between fundamental rights and directive principles of state policy was the basic feature of the Constitution.  As a matter of fact, the development of human rights jurisprudence in the country is basically based on the Supreme Court expanding the concept of “right to life and liberty” under Article 21 so as to make the enjoyment of social, economic and cultural rights a reality.

That apart, India being a signatory to Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and other international instruments, is legally as well as morally committed to both sets of basic human rights to all its citizens and enact laws accordingly.           

 The International Covenant on Economic, Social and Cultural Rights, to which India is a State party, specifically recognizes the “fundamental right of everyone to be free from hunger” and the right of everyone to “adequate food”. It also recognizes the “right of everyone to education” and asserts that “primary education shall be compulsory and available free to all”; it further recognizes the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.  The judgments of the Supreme Court of India have read all these rights into “right to live with dignity”.  The interdependence of both sets of rights is essential for full development of human personality and ushering in peace.  We are all well aware that wars produce hunger but we seem to be less alive to the fact that hunger can lead to war.  It is undoubtedly, true that while hunger rules, peace cannot prevail.  Morally it makes no difference whether a human being is killed in war or is condemned to death because of the lack of medical resources, or he dies of starvation. 

 For the National Human Rights Commission it has been important to link the issues of adequate food, education and health to that of human rights.  It has been the view of the Commission that, when linked together, more can be done to advance human well-being than when food, education and health, on the one hand, and civil and political  rights, on the other, are considered in isolation.  By setting these issues, additionally, in the context of combating the “unfreedoms” that thwart the promise of democracy, the Commissions has made fulfillment of these rights a further measure of the quality of governance both at the Centre and in the States.

             With every passing year, conviction has grown in the Commission that for right to live with human dignity, it is essential to focus in equal measures on economic, social and cultural rights and civil and political rights.  The indivisibility and interrelated nature of both these rights is a reality and there is a symbiosis between them. Those in the field must, therefore, ensure that the concern and anxiety which they show for political and social rights are also manifested in economic, social and cultural rights.

           Since the directive principles have been mandated to be “fundamental” in the governance of the country, it is obligatory on the States and its officials to not only protect and promote social, economic and cultural rights but also to ensure that their protection is a reality and not merely a pious hope or an illusion.  This will be a guarantee to the society for “hope” of a “better tomorrow”.

           Dr. B.R. Ambedkar – the architect of India’s Constitution – lamented in the Constituent Assembly.  He said that India was:

          “going to enter into a life of contradiction.  In politics we will be recognizing the principle of one man, one vote, one value.  In our social and economic life, we shall, by reason of our social and economic structure, continue to defy the principle of one man, one vote, and one value.  How long shall we continue to live this life of contradiction? “

          Let us strive to remove the “contradictions” referred to by Baba Sahib Ambedkar.  Let us rise to the occasion and ratify the treaties we have been delaying for so long so as, to give a practical shape to our resolve to protect and preserve human rights – let us give a new direction.  Let us civilise and discipline public power for the betterment of the society.   While seeking our rights, let us not over-look our duties and obligations as citizens.  Let us assist the society to achieve equilibrium and not imbalance.  Let us provide means for equality  and not disparity; for development and not stagnation; for harmony and not discord; for solace and not misery; for abundance and not poverty; for love and not hatred and when we do so, we have hope and not despair.

          This workshop will, I hope, help in identifying issues, programmes and policies that are human rights friendly and re-orient attitudes and priorities across the entire range and spectrum of governmental endeavour. 

          The senior officers participating in the Workshop will, I hope, carry a firm message back home, to see that these rights are widely disseminated down the line. 

It now gives me great pleasure to inaugurate this Workshop and wish you all the best of luck.

Thank you.

******

 

[1] 1980 (3) SCC 625

 

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Speech of Hon’ ble Chairperson, NHRC, Dr. Justice A.S. Anand at the Valedictory Session of the National Public Hearing on the Right to Health Care at New Delhi on 17 December 2004

         Health Secretary, Mr. P. Hota, senior officials of Jan Swasthya Abhiyan, Members of the Commission, Members of the NHRC’s Core Group on Health, senior officials from the Health Departments of all States and Union Territories, representatives of ngos and other distinguished invitees.

         Over the past two days, a number of presentations were made on different facets of right to health care, which were followed by in-depth discussion. The Right to health, and more specifically the Right to health care has been specified in the International Covenant on Economic, Social and Cultural Rights to which India is a signatory, and is inferred by interpreting the Fundamental Constitutional Right to Life (Art. 21) in the light of various Supreme Court and High court judgments. However, as of today the right to health is not explicitly secured by any specific legislation, and the exact content of this right has also not been clearly delineated in the Indian context. On the other hand, the recent series of regional public hearings organized by the Commission have in fact shown that citizen’s right to health care is being violated on a significant scale. Hence there is a need to make the Right to health care, which is one of the most basic of human rights, explicit, justiceable, operational and specific in the Indian context.

          We should keep in mind the extremely basic nature of the Right to Health care, its direct relation with the fundamental Right to Life, and the recommendation by the UN Committee on Economic, Social and Cultural Rights General Comment 14 for “incorporation in the domestic legal order of international instruments recognizing the right to health” (section 60). In this context, it is imperative that processes are initiated to enshrine the Right to Health Care as a Fundamental Right in the Indian constitution. This would ensure that health rights are treated as paramount in various situations, that this right is prioritized and ensured in all conditions, and becomes a topmost priority in planning and resource allocation by the Indian State.

          Further, in this context, it may be kept in mind that the General Comment 14 has stated the “desirability of States to adopt a framework law to operationalise their right to health national strategy”(section 56). Keeping this in mind, to operationalise the right to health care, a legislation such as a National Public Health Services Act or National Health Act needs to be drafted and enacted, which would recognize and delineate the Health rights of citizens, duties of the Public health system and public health obligations of private health care providers. Such Acts exist in many other countries which have recognized the Right to health. This Act would specify the broad legal and organizational mechanisms required to operationalise the right to health care. Given the fact that Health is a state subject, this National Act could be accompanied by State Public Health Services Acts or Rules to operationalise health rights in each state of India.

          A major violation of the obligation to fulfil the Right to health has been noted by General Comment 14 as “insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health” (section 52). To remedy and prevent such violation, Union and State governments must rapidly and effectively raise public financial allocations for health care, from the miserably low level today of 0.9% of the GDP to 2-3% of the GDP, and further to 5% of the GDP as specified by the WHO. Adequate allocation and proper utilization of financial resources is absolutely essential for the Right to Health to be realized in any meaningful way.

Further, there is a need for adequate remedial mechanisms to address violations of health rights, as noted by General Comment 14 “Any person or group victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels. All victims of such violations should be entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition (section 59). Given the complex and rather technical character of health rights violations, Health ombudsmen or Swasthya Lokayuktas may be appointed, or other appropriate redressal mechanisms may be made functional as soon as possible.

 Further, given the need to continuously monitor the implementation of this right, Health Services Monitoring and Consultative Committees should be formed at National and State levels to periodically review the implementation of health rights related to actions by the Union Government. Their mandate would also include deliberations on the underlying structural and policy issues, responsible for health rights violations. At least half of the members of this Committee should be drawn from National level health sector civil society platforms.

Today, there are serious problems ailing the health sector. The five public hearings on the Right to Health Care conducted by the Commission have disclosed the nature of these problems and also indicated what corrective actions must be taken. Major improvements in the Public Health System have been put forth as the main concern in all the regions. These include increase in the health budgets at the Central and State level, easier accessibility to health facilities and essential drugs, adequate infrastructure for healthcare and the implementation of schemes at the grass-root level. Health is to be strongly promoted as a fundamental right of all citizens and hence should be accounted for and monitored diligently. Along with the strengthening of the Public health system, major emphasis has also been laid on the need for proper measures to monitor and ensure the facilitation of these services. There has been a call for social monitoring and an effective redressal mechanism.

 These and other corrective actions have been described in detail in the National Action Plan, which is before you. The Plan posits itself as a broad framework within which the Right to Health may be sustained. It extends itself to the promotion of health in both the private and the public sphere. It proposes mechanisms for monitoring of health rights at the District, State and the National levels, and to promote healthcare in a holistic manner. Several public health sector reform measures have been recommended here which include the decentralization of health services, the adoption of a Essential Drugs Policy, the preparation of a State drug Formulary, the reversal of coercive population control measures, the decentralization of health services, recognizing the health needs of vulnerable sections of the population etc. All these accord significant recognition to the Right to health care of each individual. Its main objectives are the operationalization of the Right to health care. Besides explicit recognition of the right to health care, it also stresses the need for a functional redressal mechanism.

          Based on the experience gained in five regional public hearings, a National Action Plan to operationalize the right to health care has been proposed. A number of recommendations have been made in that Action Plan to the Union Health Ministry, Government of India and to Health Departments in all States. In addition, there are recommendations to NHRC, State Human Rights Commissions and to civil society organizations. The Commission interacted with Health Secretary, Govt. of India, Mr. P. Hota on a number of occasions earlier on. He has shown a mature understanding of issues involved and shown great commitment wherever important human rights issues came up. I am sure senior representatives of all States and Union Territories would also show a similar commitment and implement various steps outlined in the National Action Plan.

          Finally, the National Human Rights Commission will continue to monitor the progress in the implementation of the Right to Health Care, to ensure that effective and lasting improvements are achieved. As part of this process, a round of follow up consultations at Regional and National levels will be organized in future to review the progress made and to strengthen the process of monitoring the Right to Health Care.

          In the final analysis, the goal is to make the slogan, “Health for All” into a reality.  In this important Human Rights endeavour, all authorities, both in the Centre and in States, and the civil society have a crucial role to play.

 

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ADDRESS BY THE CHIEF GUEST MR. MORTEN KJAERUM CHAIRPERSON INTERNATIONAL COORDINATING COMMITTEE OF NATIONAL HUMAN RIGHTS INSTITUTIONS AND EXECUTIVE DIRECTOR DANISH INSTITUTE FOR HUMAN RIGHTS ON HUMAN RIGHTS DAY 10TH DECEMBER ,2004

 

Excellencies, ladies and gentlemen,

 

 

It is a great honour and privilege to speak here today in front of such a prominent audience, invited by the prestigious Indian National Human Rights Commission in the historic city of New Delhi.  

 

Today, the human rights day is being celebrated all over the world. Every year still more people are gathering to demonstrate their support for these fundamental principles governing democratic states. This illustrates the increasing support for democracy globally but maybe also an increasing awareness that we can never take human rights and democracy for granted. Like love, these principles have to be nurtured and won every day.

 

I did not hesitate to accept the invitation to speak here today, because I cannot sufficiently praise the work of the Indian National Human Rights Commission. Your tireless and persistent efforts both nationally and internationally, including the period while you headed the National Human Rights Institutions’ International Coordinating Committee, are admirable. Since my election for that post this spring, I have drawn much on your substantial work, and I continue to build on that foundation.

 

India is the largest democracy in the world, a hugely populous country. In view of the unique Indian history in general as well as in the field of human rights it is hardly surprising that the Indian National Human Rights Commission has achieved impressive results. The will for change – with peaceful means - is respected all over the world. Mahatma Gandhi and Dr. Ambedkar remain as radiant examples to many – state leaders as well as individuals.

 

These honourable persons took their principles a step further than the intellectual salons of their time. They headed peaceful struggles to implement them. In the words of Dr. Ambedkar:

 

“If all men are equal, then all men are of the same essence, and the common essence entitles them to the same fundamental rights and equal liberty….. in short justice is another name of liberty, equality and fraternity.”

 

In continuation, Dr. Ambedkar emphasizes that, “Rights are real only if they are accompanied by remedies. It is no use giving rights if the aggrieved person has no legal remedy to which he can resort when his rights are invaded.”

 

The Indian National Human Rights Commission sets an example to the rest of the world. Your achievements not only in the promotion and protection of civil and political rights but also in economic, social and cultural rights of the population in such a highly diversified society represent no small feat. I can think of no other country that displays the indivisibility and interdependence of the two categories of rights like India.

 

What you have contributed to and proven here in India is that to truly promote and support human rights you must integrate them in the judicial system. Human rights should be implemented from above, so to speak, as well as disseminated and strengthened from below – from the grass root level and tied together by National Human Rights Institutions such as the Indian National Human Rights Commission and the Danish Institute for Human Rights.

 

Our national mandate is to serve as watch dogs – to monitor developments in our own countries – and tirelessly work to see that our governments adhere to their duties according to the constitution as well as to international conventions and treaties.

 

We must point out, explain, exemplify and promote human rights in this ongoing process. They are universal, but human rights are not static – they adapt, as the world turns and changes and new challenges arise in the horizon. It is our duty to influence legislators and society in general and to hold on to the universal values of human rights: to make sure that they are not trodden down, overlooked or ignored.

 

At this point in history this is particularly important in an international – as well as a national – context. Terrorism as well as the war on international terrorism challenges the scope and application of human rights.

 

It has always been paramount that we promote and protect human rights. And even though this word cannot be conjugated I would argue that it is even more paramount now. Human rights are under pressure from many angles – increased surveillance, further restrictions on travel, and extraditions without any protection. The prohibition of torture is – in no uncertain terms - absolute, but never the less torture is still common in prisons and police stations in many parts of the world; and worse: there is a tendency to revive and legitimise torture in the name of peace, stability and national security. Let me remind you of the prisoners that remain incarcerated at the US base in Guantanamo or Abu Ghraib or in Afghanistan – places and situations where human rights are gravely in deficit. These are but a few examples.

 

War, terrorism and conflict constitute perpetual threats against the right of every individual in this world to live in peace and security. But weakening human rights and the protection of the individual is not the solution. On the contrary:

 

Please let me quote Mahatma Gandhi: However much I may sympathize with and admire worthy motives, I am an uncompromising opponent of violent methods even to serve the noblest of
causes.”
 

The late High Commissioner for Human Rights, Sergio Vieira de Mello expressed it the following way: "the best - the only - strategy to isolate and defeat terrorism is by respecting human rights, fostering social justice, enhancing democracy and upholding the primacy of the rule of law.” 

 

I could not agree more – and let me remind you that human rights standards as we know them today grew out of conflicts; they constitute the collective wisdom of mankind in time and space as how to best protect the dignity of every individual in war and peace. They are balanced to ensure the need for collective as well as individual safety and security. 

 

In the slipstream of the fight against terrorism and the evolving process of globalisation we have experienced – at least in my part of the world – growing nationalism and xenophobia. People feel threatened by developments they do not understand. Fear, angst and insecurity result in an unconstructive urge to roll up like an armadillo to keep out the rest of the world. The increasing tendencies of racism and xenophobia in turn create reactions among minority groups such as introversion and hostility towards the majority religions or ethnic groups. These developments were most recently illustrated with the shocking murder of the Dutch film maker, Theo van Gogh, in the Netherlands and the burning down of mosques as acts of retaliation.

 

Human rights create space for life and living. They foster respect for one self and for others. Human rights are inclusive - a dynamic relationship of give-and-take between cultures and human beings finding their particular room and space in society. Human rights help to create a society where diversity and difference is respected and they help to remind us to include the weak and the vulnerable in state policies.

 

50 years ago, Karen Blixen - more widely known as Isak Dinesen - the great Danish story teller wrote: “A real sense of community implies dissimilarity, and true creative unity emerges where diverse forces or contrasts are brought together.”

 

The strength in the concept of diversity is that it includes everybody - both the majority and the minority. Diversity is both you and I, because it is not only women who are members of a sex, ethnic minorities who have ethnicity or the elderly who are ageing. We all hold and share these and many more features.

 

With the strength of diversity in mind: When the world talks of pre-emptive strikes, we must be ahead of them with pre-emptive conflict resolution. We have the tools in the international conventions and treaties as well as the local, regional and international mechanisms. As National Human Rights Institutions we must remind governments of their responsibilities and hold them to their promises in this respect. To paraphrase another prominent Danish author, Hans Christian Andersen: the protection of human rights should never become the story of “The Emperor’s New Clothes”. Human rights are real – they are not – and should never be reduced to – icing or a mere façade.

 

Human rights are indivisible and interrelated. And they are inclusive. This inclusiveness makes human rights an excellent tool; a compass by which to navigate in the new state of the world, where borders are torn down – like in the case of Europe – and new ones are constructed demarcating new entities. Not necessarily country specific, but regional and – not least – economic as well as across cultures and religions.

 

New challenges demand new responses. We, as National Human Rights Institutions and others with us have a duty to create new partnerships and engage new actors; across national borders as well as across interests be they commercial, political, ideological or religious.

 

These new actors are many, and there is an urgent need to have them operate within a framework. Governments have to realise that in the new interrelated world there are many problems that they cannot solve on their own. To us as National Human Rights Institutions this presents us with both a chance and a challenge to contribute to the creation of a new framework. We must ensure that our mandates are translated into action so that we - along with the corporate sector, labour organisations, religious groups, NGOs and other relevant interested parties - find new avenues to travel in order to help address the new challenges.

 

One such body already exists and has the organisation and clout to get all these new actors together and create new fora, and that is the United Nations (UN).  The UN can play a significant part in facilitating the much-needed dialogue across geographical, cultural and other borders. The dynamic interaction between the Office of the High Commissioner for Human Rights, the UN Commission on Human Rights and the International Coordination Committee of National Human Rights Institutions is one example of a framework tailor made to serve this purpose. The Global Compact is another forum or platform, which includes the corporate sector, NGOs and the UN. States are the key actors; however, states cannot solve many of the challenges mentioned without engaging other actors in constructive dialogue and this is where the UN already plays - but could play an even stronger - role to facilitate the process. 

 

This summer the Secretary General of the UN, Mr. Kofi Annan, issued a report on relations between the UN and civil society. This was highly encouraging. Civil society is increasingly serving as a trans-national bridge as well as a trans-organisational link. It picks up where governments leave off; civil society and none-state actors have become innovating, imaginative and participating agents serving to strengthen democracy and finding alternative ways of combating and diminishing some of the terrifying threats of our times such as terrorism and racism. If we really want to find solutions we have to explore new ways. In the words of Mahatma Gandhi: “To believe in something, and not to live it, is dishonest.”

 

Excellencies, ladies and gentlemen, the task that lies ahead of us is a tremendous one. I am not optimistic because everything is not likely to go well. However, I am not pessimistic because everything is not likely to go wrong. I remain hopeful because there are so many constructive participants in all parts of the world who take human rights seriously. As long as we keep insisting on human rights and actively participate in finding solutions, which sometimes appear like a far away dream, we may achieve the possible on our common road towards the impossible.

 I thank you for your attention.

 * Chairman of the International Coordination Committee for National Human Rights Institutions, member of the UN Committee for the Elimination of Racial Discrimination.

 

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        PRESEDENTIAL ADDRESS OF DR. JUSTICE A.S. ANAND   ON HUMAN RIGHTS DAY ON 10TH DECEMBER ,2004 DELIVERED AT FICCI GOLDEN JUBLIEE AUDITORIUM, NEW DELHI

          It is with great pleasure that I welcome you all to this function to observe the Human Rights Day.

On 26th June 1945, fifty nations, including India, signed the United Nation’s Charter creating the United Nations. This Charter refers to ‘human rights’ in as many as seven places.[1] The repeated reference to human rights in the United Nations’ Charter discloses the extraordinary concern exhibited by the members of the United Nations for preservation and promotion of human rights.

                      The Universal Declaration of Human Rights adopted by the General Assembly on 10th December, 1948, was followed by two Covenants – International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) in 1966. However, in spite of the Universal Declaration and the two Covenants, widespread violation of human rights continues to occur almost daily everywhere. There is, therefore, some sting but more than a grain of truth in the cynic’s taunt that the only thing universal about human rights is their universal violation.

           The Preamble to the 1966 Covenant on Civil and Political Rights speaks of ‘the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedom.’ The World Conference on Human Rights also emphasized this aspect in The Vienna Declaration and Programme of Action, 1993 when it said that ‘every state should provide an effective framework of remedies to redress human rights grievances or violations”.

 In pursuance of the aforesaid obligation, the Indian Parliament enacted the Protection of Human Rights Act, 1993 for ‘better protection of human rights’. This legislation is perhaps the strongest reaffirmation by the Parliament, since the framing of the Constitution of India’s deep commitment to human rights and its treaty obligations.

           Since the enactment of the Legislation, 11 years have gone by. Journey, however, has not been altogether smooth. There have been bumps and potholes on the way. In order to identify and overcome some of the structural deficiencies which impede the functioning of the NHRC, the Commission constituted a High Level Committee headed by a former Chief Justice of India, Justice Shri A.M. Ahmadi to examine the Act and suggest amendments to make it more functional. The Committee submitted its report on 18 October 1999. Based on the report of the Committee, the Commission forwarded comprehensive recommendations to the Union Government in March 2000 for effecting amendments in the Protection of Human rights Act, 1993 to strengthen the regime of protection of human rights in the country. The amendments have not as yet been brought about though more than four years have lapsed. The Commission is deeply concerned about it and urges the Government to carry out the amendments suggested by it in the Protection of Human Rights Act, 1993.

          The Commission, in furtherance of its task of better protection and promotion of human rights, realized that failures in the sphere of human rights in economic, social and cultural areas are wide spread across the nation and these denials drive the citizens to the margins of human existence. The struggle for the promotion and protection of human rights inevitably requires the elimination of aberrations that, over the time, have wounded and fractured our society, leaving some more equal than others.  The Commission has been making efforts to minimize such aberrations and create an environment in which rights can be better promoted and protected. The decisions taken by the Commission in individual complaints, its programmes and projects, aim to build a culture of human rights in the country.

           In its effort to protect and promote human rights, the Commission works closely with NGOs.  They have a great role in spreading human rights awareness at the grass-root level.  The Commission views it as an important partnership with civil society institutions.  The Commission holds consultations with NGOs in various regions of the country on a regular basis.

 The Commission has expressly been mandated to promote Human Rights education and awareness under Protection of Human Rights Act, 1993.  The great role of Human Rights Education towards prevention of Human Rights violations is well recognised   Its importance is quite evident from the fact that today itself, the UN General Assembly, is devoting a plenary session on Human Rights Education to mark the end of the UN Decade for Human Rights Education (1995-2004) and the beginning of a World Programme for Human Rights (2005-open ended). 

 

In the area of Human Rights Education, the Commission has established a Chair on Human Rights at the National Institute of Human Rights (NIHR) in the National Law School of India University, Bangalore and created an endowment with a one-time contribution of a fund of Rs. 30 lakh in order to meet the expenses relating to the Chair. 

 

At the instance of the Commission, the University Grants Commission constituted a Standing Committee in 1997 within the inter disciplinary group to develop a scheme for the promotion of Human Rights Education. The Committee prepared the IXth Plan Approach Paper in 1998 with a view to provide conceptual framework for the benefit of Indian Universities and Colleges. Under the scheme, the U.G.C. provides financial assistance for introduction of degree, diploma and certificate courses in Human Rights Education.  Nearly 35 Universities / Institutes are presently offering Certificate, Diploma and Degree Courses on Human Rights Education.  Efforts are on to introduce Human Rights Education at the school levels also.

 

With a view to spreading an awareness of human rights issues among university students, the Commission itself conducts internship programmes during summer and winter vacations every year. During the internship the students are apprised of the working of the Commission. They are also made aware of the provisions of the Constitution and Various international instruments relevant to an understanding of human rights.  The Commission has also decided to bring out a series of booklets titled “Know Your Rights” in collaboration with the NALSAR University of Law, Hyderabad. The first set of booklets is being released today.2   These booklets are also being published in some of the regional languages.

 

The Commission encourages holding of debates and painting competitions among children on themes connected with human rights.  It also organizes training programmes to generate awareness among various stakeholders.

            In the evolution of human rights, the child is a relatively late entrant. The Convention on Rights of Child was signed only in 1989. The late action on child rights is a sad reflection of uncaring attitude about the rights of this weak segment of the society. It is ironic that in this age and time when humanity has made great strides in the technological, medical and scientific fields for adding to the comfort of living, we witness an almost total neglect of the rights of the child. 

 

Today, the child is victim of sexual abuse, torture, war, violence, poverty, bonded labour, deprivation and denial – often even without realizing that he or she is a victim of society’s apathy or its violence. Child labour in India is a historical fact and the exploitation of children for extracting labour is a grim reality.  Almost 150 million children in this country continue to languish in slavery. The weak and the poor of the world, often end up being mere footnotes of history.  A child is perhaps the weakest element in the global community dominated by the adult.  The Commission has been concerned with various aspects of child rights. It has taken steps to impress upon and sensitize the authorities about the need to eliminate child labour. It has pointed out the shortcomings of the existing legislation dealing with the subject and emphasized that what is required is a comprehensive legislation to address the entire issue of child labour from the perspective of prevention, prohibition, regulation and rehabilitation to achieve the final objective of elimination of child labour.

 

Health of the child and particularly malnutrition of children belonging to the disadvantaged segments of the society is another area of concern.  According to the National Family Health Survey 1998-99, 47 per cent of children under age of five years in India are malnourished. Undernutrition is much higher in rural areas than in urban areas, and is particularly high among children from disadvantaged socio-economic groups. Nearly three quarters [74 per cent] of children between the age of 6-35 months are anaemic. The prevalence of anaemia among children (age 6-35 months) varies from 44 per cent in Kerala and Nagaland to 80-84 per cent in Haryana, Rajasthan, Bihar, and Punjab. These are serious human rights issues, which require to be addressed without any delay.

 

The Commission is also deeply concerned about the rights of the girl child and her exploitation.  The Commission’s calendar for 2005 is devoted to this theme.  Notwithstanding Constitutional guarantees, international instruments and laws for her protection, girl child today remains the most vulnerable.  The recent trends in the juvenile sex ratio [0-6 years] brought out by Census 2001 results are a serious cause for concern3.    No law, custom, tradition, culture or religious consideration can be invoked to excuse discrimination against her.  Sex-selective abortions are totally unacceptable. Strict action needs to be taken against sex determination of the unborn.  Proper implementation of the existing legislation and ensuring punishment to the guilty is the need of the hour.  Mindset of the society also needs to change and creating awareness is the first step towards that goal.

 

One other related issue that has been engaging the attention of the Commission is the increase in Trafficking in women and children, which is a gross violation of their human rights and an affront to the supreme dignity of the females.  Besides, it is a serious crime. The existing systems in the spheres of prevention, protection and prosecution of offenders are not adequately geared towards tackling this complex problem in a holistic and rights-based manner.  The NHRC, UNIFEM and Institute of Social Sciences conducted an Action Research on Trafficking in women and children in 13 States/ UTs, which brought out many depressing but significant findings.  The Study has made a number of recommendations, among other things, on prevention of trafficking, protection of victims and survivors, prosecution of traffickers and other exploiters. Those recommendations are being examined by the Government. If implemented in right earnest and with sincerity, the recommendations would go a long way to deal with the issue effectively.

 

          The issue relating to the rights of the Dalits and prevention of Atrocities against Scheduled Castes has continued to engage the attention of the Commission. For better co-ordination, the Commission has set up a dalit cell.  It also commissioned a study by Shri K.B. Saxena, IAS (Retd.) on ‘Prevention of Atrocities against Scheduled Castes’.  Based on his Report, the Commission has made certain recommendations to the Prime Minister, 11 Union Ministers, Deputy Chairperson, Planning Commission and Chief Ministers of all the States and Union Territories for taking effective steps in that behalf.  The Commission, apart from dealing with individual complaints, is holding seminars and organizing sensitization camps and workshops to spread awareness amongst police personnel, other state functionaries, media persons and NGOs in this regard so that the human rights of this vulnerable section of the society are protected and promoted and at least not violated.

          The Commission has also been engaged in issues connected with the protection and promotion of the rights of the disabled.  Comprehensive recommendations have been made, among other issues, on evolving a State policy and plan of action on disability, barrier free environment and equal opportunity in matters of employment.  The Commission has been advocating and mobilizing support in favour of a comprehensive binding international convention on the theme of disability with shift of focus from mere welfare to rights of the disabled. In collaboration with Canadian Human Rights Commission and the Indira Gandhi National Open University, it has organized training programmes on disability related issues.

 

          The importance of good health requires hardly any emphasis.   A country’s growth and development critically hinges on the quality of its human resource, which in turn depends on efficacy of public health system. The Commission has consistently taken the view that the right to a life with human dignity, enshrined in the Constitution, must result in the strengthening of measures to ensure that all people and particularly those belonging to the economically disadvantaged sections of the society, have access to better and more comprehensive health care facilities.   For a country which hosts one-sixth or nearly 16% of the world’s population, India has the dubious distinction of hosting disproportionate per centage of persons afflicted with tuberculosis, blindness, leprosy, polio etc., with hardly any access to comprehensive health care facilities. The Core Group of Doctors, set up by the Commission, provides very useful inputs on different aspects of health care. The Commission, in collaboration with a NGO, Jan Swasthya Abhiyan, has conducted five regional public hearings on access to health care, one in each region of the country.  The National Public Hearing on Access to Healthcare is scheduled to be held in New Delhi shortly.

 

          HIV/AIDS is another major public health challenge.  According to some experts, our country today hosts the second largest number of persons affected or infected with HIV/AIDS.  Studies have shown that the disease is moving from high-risk groups to the general population, from urban to rural areas and that a significant percentage of women are affected by this disease.  The stigma and discrimination faced by these persons are important issues touching upon their human rights.  The Commission apart from creating awareness among citizens and redressing a number of individual complaints made systemic recommendations on human rights of persons affected by HIV/AIDS more particularly the children affected/infected by HIV/AIDS with regard to their right to education and access to medical care and hopes the authorities would take appropriate steps.

 

          I would like to refer to one other aspect which effects human rights of innocent people the world over and has been a cause of concern in this country for more than three decades. The spectre of terrorism continues to haunt us globally. Human rights recognize the essential worth of a human being and acknowledge the dignity inhering in all human beings, irrespective of their race, sex or economical level of living.  While this is a historical fact, it is also a reality that the cult of terrorism strikes at the very root of human rights of innocent people. Terrorism and human rights are natural enemies with no possibility of their co-existence.   No person who supports human rights can support terrorism, which results in a grave violation of human rights of innocent citizens.  There can be no alibis and justification for terrorism as nothing can ever justify terrorism. The menace of terrorism has to be curbed and the war against terrorism has to be fought relentlessly. However, the Commission is firmly of the view that whereas terrorism must be countered effectively and strongly, no democratic society can be permitted to chill civil liberties of the citizens while taking measures against the terrorists.  In the fight against terrorism, sensitization level of human rights cannot be allowed to be sacrificed.   A terrorist who violates human rights of innocent citizens must be punished but his human rights should not be infringed except in the manner permitted by law. A critical task of striking a fair balance by way of security concerns and human rights is to be performed and need of proportionality must not be ignored. While fighting war against terrorism relentlessly, the State cannot be permitted to go over board and in effect declare a war on the civil liberties of people because the rationale of anti-terrorism measures is aimed at protecting human rights and democracy.  Counter terrorism measures should, therefore, not undermine democratic values or subvert the rule of law.     It is during anxious times when care has to be taken to ensure that state does not take recourse to bend the rule of law.

 

          Despite the observations of the Supreme Court of India and various guidelines issued by it, the Commission notices with regret that custodial violence continues to occur in various States.  Incidents of fake encounters, illegal arrests, wrongful detentions besides custodial violence, which impinge upon human rights of citizens continue to occur.  No civilized society can condone it let alone permit it.  The Commission has frowned upon this practice repeatedly and takes this opportunity to remind the States what was said by the Supreme Court in D.K. Basu’s4 case:

“Custodial violence is a calculated assault on human dignity. And whenever human dignity is wounded, civilization takes a step backward. The flag of humanity on each such occasion must fly half-mast”.

         

The Commission has been endeavouring to ‘better’ protect human rights as mandated in the Protection of Human Rights Act, 1993.  On this day, let us rededicate ourselves to make human rights a fact of life and not an elusive tantalizing hope for all humanity. Let us translate the grand dreams into living realities with a rekindled vision of the architects of the Declaration. Let us resolve to make defence and protection of human rights an international secular religion – a religion which preaches, teaches and practices tolerance and mutual understanding. We owe this to the succeeding generations.

 

Before taking your leave, I wish to express my sincere gratitude to Mr. Morten Kjaerum for his very kindly sparing some time out of his busy schedule to be with us today. My special thanks are also due to Ms. Mette Hartlev for her gracious presence this morning. She has lent charm and dignity to this function. That both, Morten and Mette, belong to my own fraternity – the fraternity of law – is yet another reason which adds to my joy for having them with us here today.

 

Thank you.

 

[1] The Preamble to the Charter speaks of the determination of the people of the United Nations “to re-affirm faith in fundamental human rights in the dignity and worth of human person…” Clause (3) of Art. 1 sets out the purposes and principles of the United Nations; it speaks of Promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion” Clause 1(b) of Art. 13 which deals with the functions and powers of the United Nations, authorizes the General Assembly to initiate studies and make recommendations for the purpose of assisting in the realization of “human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”. Art. 55 in Chapter IX speaks of International economic and social cooperation and Clause (c) of this article says that the United Nations shall promote “(c) universal respect for all, and observance of, human rights and fundamental freedoms for all…” Article 62 which speaks of functions and powers of the Economic and Social Council (UNESCO) lays down that the Council may “make recommendations for the purpose of promoting respect for and observance of human rights and fundamental freedoms for all…” Article 68 which is procedural in nature says that the Council shall “set up commission in economic and social fields and for the promotion of human rights…” Lastly Art. 76, which provides for international trusteeship system declares that basic objects of the trusteeship system shall be inter alia “to encourage respect for human rights and for fundamental freedoms for all…”

(2)