Protection of Human Rights Act, 1993 The Progress and Implementation, A Critical Analysis of Executive and Judicial Success in India

PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND
IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND

JUDICIAL SUCCESS IN INDIA
BY SYED KAMRAN RAZVI

PROTECTION OF HUMAN RIGHTS ACT,1993 THE
PROGRESS AND IMPLEMENTATION, A CRITICAL
ANALYSIS OF EXECUTIVE AND JUDICIAL SUCCESS
IN INDIA
BY Syed Kamran RAzvi
Synopsis:
The paper discusses the issues of “Justice at
the door-step”. The notion of Justice and Equity has seen further
evolution under the International covenant on Human Rights. The
exposition under Protection of Human Rights Act, 1993,(India)i is
a manifestation of such obligation and collectivism1. It provides the
structure for implementation of Human Rights. The subject of
analysis is the success in establishment of Commissions , Courts
and rules aimed at preserving the Human life and liberty and the
need for amendments. The background contained in Part III of the
Indian constitution close to ‘Bill of Rights’. It includes right (Article
32)to move Supreme Court of India to prevent infringement of
fundamental rights2. However pursuant to the Social Democracy,
community-specific legislation in India like Prevention of
Atrocities (SC and ST) Act, 1989 (previously Protection of Civil
1
Following Vienna Declaration in 1993 the post of Human Rights Commissioner was created at
UN, (vide resolution 48/141). First High Commissioner Mr.Jose Ayala Lasso assumed office on 5th
April,1994.
2
Direct remedies under Article 32 and 226 of the Constitution of India Act 1 of 1950 are subjected
to the Reasonable restrictions on the exercise of the Fundamental Rights as evolved by Case Law.
This Writ peroragative emanate from section 7, of the Administrative of Justice (Miscellaneous
Provisions) Act, 1938. As the Federal Court and the Supreme Court were established under the
Charter by the British Colonial regime. Though Writ jurisdiction was not available to the colonial
subject.
1/39 This paper was presented at NSALSA Law conference, Feb,2004, at Seattle
University School of Law, WA, USA.

Rights Act,1955) have also been enacted prior to Protection of
Human Rights Act,1993. Thus in terms of sociological implication
of Law it is impressed, in these set of legislation. These Rights-
specific legislation have acted if in support or is case of over-
lapping jurisdiction is also examined. Lastly, whether the Human
Rights Commission and Courts have made progress in past one
decade of existence. The challenge of Civil liberties in pursuing
dynamic civil society.
Key Words :
Act , NHRC, Justice, Constitution, Courts, fundamental
Rights, Ouster clause, Police, ‘Police powers’, communal
compensation.
Notion of Human Rights and Justice :
Every segment of the society has a different definition of
Justice. Human Rights is a growing definition adding impression
to the universal application and implementation of the Laws
conforming to the Human Rights. Indian example is a case in point.
Inspired by International covenant of Human Rights or Universal
Declaration of Human Rights, 1966 an enactment was passed with
a topical terminology. A Central Act called Protection of Human

3
Rights Act, 1993 was passed and notified Act 10 of 1994. The Act
envisages two Functionary bodies namely the National Human
Rights Commission and State Commissionsii and permanent
remedial edifice, establishment of Human Rights Courts. These
courts are to work in aid of these commissions.
Prior to the passing of this statute an Act, calling for
National Commissions Act,1990 was passed. This statute brings
into existence the commissions for the segment of the society
discriminated and to study the welfare measures and propose the
same to the government through their annual and Special reports.
The Chairman of the these commissions are also ex-officio
members of National Human Rights Commission.iii The Chairman
of NHRC is ex-Chief Justice of India and holds office till one attains
the age of 70 years. It has the powers of Civil Court for proceedings
and execution of orders/decrees and powers to punish for
contempt.
NHRC has in case of Gujarat riots in March, 2002
launched a Court campaign which has resulted in hauling up
making both accountable i.e. State government and also High
Court of Gujarat.iv
3
It was assented by the President of India and published in Gazette of India Extraordinary, Part
III, Sec.1, dated 10th Januray,1994. This was to confirm the ordinance promulgated by the
President on 28th September,1993.

Such Court campaigns have been described by an American
Author ;
“Americans have gone a lot of further(some would say too
far(a bevy of Platonic Guardians’) Supreme Court Court described)
in judging judges. This is mostly because of the Bill of Rights and
the importance which the Supreme Court has in the US
constitution. But there is no doubting that the judging of judges is a
multi-million dollar and is widely regarded in the USA as essential
to judging Judges.
How is this an industry? The Bill of Rights leads Americans
to favour single-issue pressure groups which mount Court-
campaigns-most famously in the case of the 1954 decisions to end
racial segregation in the schools-to achieve political aims.”4
In a Petition in public interest on the same subject filed
before the Supreme Court of India it has been represented that the
trials of such violations of civil rights should be done by the
Human Rights Courts.v In Indian context the access to the Courts
has two hurdles , financial and physical. India still is a rural
society if no more an Agrarian economy in terms of Urban and
Rural ratio. The indicator being GDP. Primary sector is still a major
contributor. Services is only now catching up with the
Manufacturing sector.
4
Judging Judges ,Simon Lee, Faber and Faber Ltd.,1988 reprint,P.186

Although the Legal Services Authorities Act, is almost a
decade old, State legal-Aid boards are often plagued with financial
crunch. There is another related issue that is of the Financial
independence of the Judiciary. It is equally important for the
Human Rights issues and law. While the Higher Judiciary income
is not taxable. Those at the District Court, there salary is taxable
barring a few states. Also even the higher Courts do not have the
financial independence so far. There is debate on the same and
each successive Chief Justice of India has been garnering efforts on
the same.
The other is the physical hurdle, in a developing economy
infrastructure is often poor. Thus to seek Direct remedy, a litigant
has to travel few miles and perhaps few days. Thus timely
intervention may not be obtained.
These issues become more obvious when one considers the
rights and plights of the tribals, special geographic regions and
those living in Hilly areas. Incidentally, India has an insurgency
prone regions situated in remote regions of the land. This part is
dealt in a separate section here.
The Human Rights Act addresses these two issues.
Legal structure and Procedure under the Act:

This brings to the discussion on the legal structure and the
procedure it provides for ensuring the remedial process.
Section 30, Chapter VI of the Act:
“Human Rights Courts – For the purpose of providing
speedy trial of offences arising out of violation of human rights, the
State Government may, with the concurrence of the Chief Justice of
High Court by notification, specify for each district a Court of
Session to be a Human Rights Court to try the said offences:
Provided that nothing in this section shall apply if –
(a) a Court of session is already specified as a Special Court;
or
(b) a Special Court is already constituted.
For such offences under any other Law for the time being in
force.
Section 31. Special Public Prosecutor.- For every Human Rights
Courts, the State Government shall, by notification, specify a
Public Prosecutor or appoint an advocate who has been in
practice as an advocate for not less than seven years , as a
Special Public Prosecutor for the purpose of conducting
cases in that court.
These two sections have been dealt and interpreted
by High Court of Andhra Pradesh saying in its operative
part;

The Human Rights Court, being a Court of Session 5(refer to
chart in Schedule B) for trial of offences violative of Human
Rights, does not have the power to take cognizance of any
offence as a Court of original jurisdiction unless the case is
committed to it by a Magistrate. A Magistrate of the First
Class or a Magistrate of the second class, as the case may be,
when empowered can take cognizance of an offence upon
receiving a complaint of facts, upon a police report or upon
information received from any person other than police
officer or upon his knowledge. Court of session , however,
cannot do so and accordingly Human Rights Courts also
cannot take cognizance of the offence as the Court of the
first instance.6
There are two other sections of the Act relevant to the
aspect of Judicial process.
Chapter VIII (Miscellaneous)
Section 36.Matters not subject to jurisdiction of the Commission.-
(1) The Commission7 shall not inquire into any mater
which is pending before a State Commission or any other
Commission duly constituted under any law for the time
being in force.
5
Two tier of Criminal Courts in India, under Criminal Procedure Code,1973, Court of Session and
Magistracy. Court of Session sits in appeal from magistrates court and tries heinous offences and
death sentence. It shares some powers in Bail with High Court(Constitutional Court).
6
A.Goverdhan Reddy v. Superintendent of Police,Allahabad,1998 Cr.L.J.561 at p.562(AP)
7
National Human Rights Commission

(2) The Commission or the State Commission shall not
inquire into any matter after the expiry of one year
form the date on which the act constituting violation
of Human rights is alleged to have been committed.”
This clause of special Bar created anamoly (Ousting and
Overriding Clause) and suspicion. The Supreme court of India
clarified :
“The power and jurisdiction of the Apex Court under Art.32 of the
Constitution cannot be curtailed by any statutory limitation,
including those contained in Sec.36(2). If the Apex Court can
exercise that power unaffected by the prohibition contained in
Sec.36(2), there is no reason why the commission, at the request of
the Apex Court, cannot investigate or look into the violations of
human rights even though the period of limitation indicated in
Sec.36(2) might have expired . In such a situation, the commission
will not be affected by the bar contained in Sec.36(2) and it will be
well within rights to investigate the matter referred to it.8
However the issue of suspicion remains. This emanates
from the Executive intent to skirt away or simply avoid any
accountability or action on the violations of Human Rights.
There are two set of examples to emphasize such gross abuse of
sovereign privilege.
8
Paramjit Kaur v. State of Punjab,AIR 1999 SC 340: (1999)2 SCC 131.(Also see endnote iii)

Role of ‘any other commissions’ on communal riots:
Under the Commission of Inquiry Act No.60 of 1952, any State or
Central government can appoint a Commission of Inquiry. This is a
Colonial legacy, although enacted after India became republic in
1950.
On Communal Riots there have been at least ten
Commission of Inquiries since 1960. Each has recommended set of
reforms in police and “police powers” of the State. How to be
sensitive to the minorities. None of the recommendations have
been implemented till date. No Law has been enacted ,specifically
to deal with the (Anti-Minority) administrative vice. The
illustrations from two important commissions are provided here :
Para No.106.57 : Communal discrimination by officers and men:
“ In the ultimate analysis the implementation of any measure must
depend upon human agencies, namely the offices and men on the
spot. No measures, however good on paper, can succeed unless
those charged with the responsibility of carrying them out acts
with integrity and without communal bias. In the course of this
Inquiry, we have seen that even some of the senior officers were
not free of the taint of communalism. When, therefore, any instance
comes to light of any police officer, policeman or Government

servant having communal discrimination in favour of a
community, the person guilty should be severely dealt with.”9
B.N.Srikrishna, J. Commission report on Mumbai riots of 1992-93
“Even after it became apparent that the leaders of the Shiv Sena
were active in stoking the fire of communal riots, the police
dragged their feet on the facile and exaggerated assumption that if
such leaders were arrested the communal situation would further
flare up , or to put it in the words of then Chief Minister, Sudhakar
Rao Naik, “Bombay would burn”; not that Bombay did not even
burn otherwise.”
The same Commission has bitterly criticized government.
Note the consistency in observation about role of Police (Anti
Minority Bias)by these two important and most vocal
Commissions:
“The working of the Special Investigation squad is a study in
communal discrimination. The officers of the squad systematically
set about implicating as many Muslims and exculpating as many
Hindus as possible irrespective of whether they were innocent or
guilty. Cases of many Hindus belonging to the Shiv Sena, Rashtrya
9
D.P.Madon,J. Commission of 1970 on the Bhiwandi, Jalgaon and Mahad: Sabrang
publications,Mumbai,p.320

Utasav mandal(an extension of the local branch of the Jana Sangh
were wrongly classified as ‘A’ category and investigations closed
and no proper investigation was undertaken into several
complaints of murders of Muslims and arson of their property. No
investigation was conducted into the composition and activities of
Hindu communal and allegedly communal organizations
operating in Bhiwandi but only in respect of Muslim Communal
and allegedly communal organizations. Deputy superintendent of
police S.P.Saraf held private conferences and discussions with
several leaders of Hindu organizations including many who were
implicated by Muslims in offences of arson and murder.”10
B.N.Srikrishna, J. Commission report on Mumbai riots of 1992-93
“ The response of police to appeals from desperate victims,
particularly Muslims, was cynical and utterly different. On
occasions, the response was that they were unable to leave the
appointed post; on others , the attitude was that one Muslim killed
was one Muslim less….Police officers and men, particularly at the
junior level, appeared to have an in-built bias against the Muslims
which was evident in their treatment of the suspected Muslims and
Muslim victims of riots. The treatment given was harsh and brutal
10
D.P.Madon,J. Commission of 1970 on the cBhiwandi, Jalgaon and Mahad: Sabrang
publications,Mumbai,Page vii

and, on occasions, with their adopting the role of passive on-
lookers on occasions, and ,finally, their lack of enthusiasm in
registering offences against Hindus even when the accused was
clearly identified and post-haste classifying the cases in ‘A’ (True
but not detected)summary.”
Report of the Ranganath Mishra J., Commission report on the
1984 anti-Sikh riots in Delhi:
“ The riots occurred broadly on account of the total passivity,
callousness and indifference of the police in the matter of
controlling the situation and protecting the people of Sikh
community….Several instances have come to be narrated where
police personnel were found marching behind or mingled in the
crowd. Since they did not make any attempt to stop the mob from
indulging in criminal acts as inference has been drawn that they
were part of the mob and had the common intention and
purpose…The Commission was shocked to find that there were
incidents where the police wanted clear and definite allegations
against the anti-social elements in different localities to e dropped
out while recording FIRs(First Information Report)”

11
Further response of government vide mention of Action Taken
Report would amplify the magnitude of sovereign immunity and
general insensitivity :
Para No.32 :
“The Commission has observed that the police were biased against
the Muslims. The Government cannot accept these conclusions of
the Commission. The Commission has itself accepted the
explanation given by the Commissioner of Police and has further
written that(Para.1.4, Chapter II, Volume-1), “the aggressive and
violent mobs in the initial stages (emphasis mine) comprised
Muslims and therefore, Muslim casualties were higher”. The
Commission itself dismisses the theory(Para1.5, Chapter II,
Volume I) that disproportionately large number of deaths indicate
that police had targeted and liquidated Muslims because of bias.
The Muslims too a greater part in the riots and violence by the
mob. Therefore, larger number of Muslim deaths took place. The
Commission itself says that “ the explanation of the Commissioner
of Police that the aggressive and violent mobs in the initial stages
comprised Muslims and , therefore , Muslim casualties were higher
does not appear to be as far-fetched as it has been made out by
Muslims(Para.1.4, ChapterII, Volume I).”
Para No.50:
11
To B.N.Srikrishna, J. Commission report on Mumbai riots of 1992-93: Jan.1993-Feb.1998

“ Earlier, too, a number of serious and violent communal riots had
taken place in Maharashtra. We have not still forgotten the 1967
riots of Malegaon, 1970 riots which engulfed Bhiwandi, Jalgaon
and Mahad and 1984 communal riots of Mumbai. Against this
background it was ‘expected’(commas mine) that the Commission
would come out with suitable directions on the violent and
unprecedented riots and serial bomb blasts of 1992-93.It is
regretfully noted that the Commission did not fulfil this
expectation.(emphasis mine).”
“….But the Government is of the view that some of the conclusions
are one-sided, biased and arrived at with a view to indict a
particular person or community. Therefore the Government rightly
fears that after 5 years, the wounds , instead of getting healed, will
be reopened again and may start festering. The Government,
therefore , reiterates that on account of the reasons given above, it
cannot agree with the conclusions of the Commission recorded in
Chapters I to IV of Volume I of the Report.”
This Memorandum of Action to be taken by Government was
issued by the State government which was headed by the political
alliance of Shiv-Sena-Bhartiya Janata Party(1995-1999). The Shiv-
Sena activists were severely indicted by the Commission. Thus the
government response and bias is not out of context.

The Commission was presided by a sitting High Court
Judge,Mr.B.N.Srikrishna,J. The then chief Minister of Maharashtra
is now Speaker of the Indian Parliament.
In view of the above, the ouster clause in the Act is only to
avoid accountability in the political system.
Some of the State governments have been so far-fetched that
they booked a few NGO activists working on HIV-AIDS in hilly
areas under Preventive Detention Law called National Security Act
No.65 of 1980. Their fault, teaching sex education and organizing
people, against the wishes of local politicians.
Turning to the remedy to such political malaise is creating special
teams which is provided under Section 37 of the Act.
Section 37: Constitution of Special Investigation Teams.-
“Notwithstanding anything contained in any other law for the time
being in force, where the government considers it necessary so to
do, it may constitute one or more special investigations teams,
consisting of such police officers as it thinks necessary for the
purpose of investigation and prosecution of offences arising out of
violations of Human rights.”

Although here also the discretion lies with the government.
NHRC though has issued instructions to the Police throughout
India to report any deaths in police shoot-outs within 24 hours of
the incident. However this is constrained in real terms by the
physical verification of the versions that of the Police and citizens
(victims or otherwise)
POLICE As Instrument of Law and Human Rights:
In a series of Judgements the Supreme Court of India has indicted
Police and policing in a Civil Society in innumerable cases. The
Law under Article 141 of Constitution of India has been laid down
on search, seizure and arrest. Indian Judiciary particularly Court of
record has been receptive to the Judgements passed by various
Constitutional Courts including US, ICJ, and House of lords. The
rights of the accused have been detailed in 1997 judgement
considering whole gamut of criminal Law and jurisprudence
available round the Civil societies across the globe including PACE
Act of 1984(UK). This was reiterated in an observation :
“In cases involving violation of human rights, the courts
must for ever remain alive to the international instruments and
conventions and apply the same to a given case when there is no
inconsistency between the international norms and the domestic
law occupying the field. In the instant case, the High Court appears

to have totally ignored the intent and content of the International
Conventions and Norms while dealing with the case.”12
In an unprecedented Judgement, a Precedent has been laid
down, whereby the High Courts in the States have been
empowered to supervise the implementation of the orders.
Thus balancing the “opposite interests” rule of Adam’s case
68 NE 636, or as Justice Cardozo observed in People v. Defore13
“that the question is whether the protection of individual would
not be gained at a disproportionate loss of protection of society. On
one side is the social need that crime shall be repressed. On the
other, the social need that the law shall not be flouted by the
insolence of office. There are dangers in any choice.”
A very similar interpretation and view was expressed by Supreme
Court of India :
“To strike the balance between the needs of the enforcement on the
one hand and the protection of the citizen from oppression and
injustice at the one end of the law enforcement machinery on the
other is a permanent problem of statecraft”14
The guidelines issued in the 1997 being as below::
12
Apparel Export Promotion Council v. A.K.Chopra, AIR 1999 SC 625
13
(1926)242 NY 13. (cited in “Interpretation and Enforcement of Fundamental Rights”,
D.J.De,Eastern law House(India),2000edn,p.692
14
Nandini Satpathy v. P.L.Dani; AIR 1978 SC1025; (1978)4 SCC 424.

15
“…The following guidelines to be followed in all cases of
arrest or detention till legal provisions are made in that behalf as
preventive measures:
(1) The police personnel carrying out the arrest and handling
the interrogation of the arrestee should bear accurate, visible
and clear identification and name tags with the
designations,. The particulars of such persons who handle
the interrogation of the arrestee must be recorded in the
register.
(2) The police officer arresting a person must prepare a memo of
arrest at the time of arrest and such memo shall be attested
by at least one witness. Who may be either a member of
family of the arrestee or a respectable person of the locality
from where the arrest has been made. It must be counter-
signed by the arrestee and shall contain the time and date of
arrest.
(3) A person who has been arrested or detained and is being
held in custody in a police station or interrogation centre or
other lock up, shall be entitled to have one friend or relative
or other person known to him or having interest in the
welfare being informed, as soon as practicable, that he has been
arrested and is being detained at a particular place, unless
15
D.K.Basu v.State of West Bengal AIR 1997 SC610 (1997)1 SCC 416.

the attesting witness of the memo of arrest is himself such a
friend or a relative of the arrestee.
(4) The time, place of arrest and venie of custody of an arresteee
must be notified bny the police whgere the next friend or
relative of the arrestee lives outside the district or twon
through the Legal Aid Organization in the District and the
police station of the area concerned telegraphically within a
period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this rights to
have someone informed of his arrest or detention as soon as he
is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose
the name of the next friend of the person who has been informed of
the arrest and the names and particulars of the police official in
whose custody the arrestee is.
(7) The arrestee should, where he requests, be examined at the
time of his arrest and major or minor injuries, if any, present on
his/her body , must be recorded at that time. The inspection
memo must be signed both by the arrestee and the police officer
effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a
trained doctor every 48 hours during his detention in custody

by a doctor on the panel of approved doctors appointed by
the Director of Health Services etc.
(9) Copies of the documents including the memo of arrest
should be sent to the illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during
interrogation, though not through out the interrogation.
(11) A police central room should be provided at all Districts and
State Headquarters, where the information regarding the
arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12
hours of effecting the arrest and the particulars of the
persons arrested shall be displayed in a conspicuous notice
Board.”
It further reads as “…Any failure to comply with the said
requirements shall apart from rendering the concerned official
liable to departmental action,vi also render him liable to be
punished for contempt of court and the proceedings for the
contempt of court may be instituted in any High Court of the
country, having territorial jurisdiction over the matter.”
The Court directed that the aforesaid directions of the court
should be given widest circulation in the Radio and Television and
other newspapers to create awareness about the right of the
arrestee to bring down the custodial crimes.

Although these are now displayed on the notice boards at
all police stations. The compliance and reporting of violations of
the same is sadly lacking. Thus there is need for the monitoring
mechanism. In States where the Human Rights Courts have been
notified. Such monitoring is done by them. However there are just
two states out of 30 States and two Union Territories and two
autonomous regions who have notified such courts. There is a
move at the annual Chief Ministers conference to take up this issue.
In UK , in compliance with the ECHR convention, Human
Rights Act,1998 was passed. The act exposes the Policemen to Civil
Tort. The position is no different in India.16vii
“For the first time, the law gave the constable effective
protection under the umbrella of the police organization by making
the chief constable liable. However the Human Rights Act 1998
may reverse this effect, especially if constables are held to be
‘public authorities’ in their own right. This possibility has clearly
been in the minds of police officers in the UK. Many have insured
against the public liability claims to cover this eventuality.”17
Indian Police Act and Prison Authorities ::
16
Uphaars case,
17
Policing : An introduction to concepts and practice; Alan Wright,
Lawman(India)PLtd.2002Ed.Reprint 2003 P.31.

“ In light of the evidence, we should abandon any attempt to
understand policing as a range of functions of the police. Instead
we should develop an account which recognizes the diversity of
meanings which now characterise the terms ‘police and ‘policing’.18
The Indian Police is governed by the India Police Act, 1860,
a colonial piece of legislation. It is the basic structure for all the
State Police Acts. The police is further divided on the basis of status
in service, whereby preserving the higher posts for those at the pay
rolls of the Central Government.
There is severe neglect of the local police. It is them who are
responsible for investigation and prosecution under the Criminal
Procedural Code of 1973.
Like other Commissions , the National Police Commission
recommendations has been gathering dust for past two decades.
Thus the translation of words into action lacks on this count
keeping the aims and object of the Act in abeyance.
In case of Prisoners Act, the Prison has its own recruitment
rules and staff, under the various Jail rules and manuals as
applicable in the State. The Jails are subject to the monthly
inspections by the District Judges wherever the District Jails are
located.
18
ibid

However there have been instances where Courts of record
while deliberating on the issue of death in Jail riot, did not award
compensation. Thus there are conservative elements in Judiciary
also.
While in another example within a week of passage of the
guidelines mention in 1997 judgement. I moved an application
before the Magistrate court for enforcement of such provisions by
calling for release of young persons, one of them as young as 13
years from the illegal detention of the Police acting on the
instruction of the local minister.
This is typical example quite common, where the local
politicians use police for they are the masters in absence of the
independent Police commissions and regulatory mechanisms. A
consequence is that a large number of violations are unreported.
An important observation by a very senior and prominent
retired police officer is pertinent (on Gujarat riots 2002)19:
“On the night of the barbaric killing of 59 Kar Sevaks in Godhra,
instead of going after the culprits and taking precautions to
prevent revenge killings of innocent Muslims, the government
joined the call for the bandh20. The Chief Minister, I learnt called a
meeting of officials that night and told tem that they need not be
19
“Lost Middle Ground A community loses hope in Gujarat” by Julio Ribiero, Time of India
(English Daily) 24/04/2002
20
protest call : closures of markets, etc by a body.

too enthusiastic about preventive measures because he said that
the bandh would pass off peacefully. Then, one of his ministers sat
in the city police commissioner’s control room and another
Minister in the DGPs State control room each with a band of
supporters to put subtle pressure on the police.(emphasis mine)
Much has been written about the failure of the police. There is no
doubt that it failed.”
“…My inquiries showed that the BJP government of
Narendra Modi, with a VHP activist named Govardhanbhai
Zadapiya as minister of state for home, has systematically
emasculated the leadership by placing pliable officers and men of
its choice in every possible position at the cutting edge.”
“…Gujarat is easily the worst (or best) case study of a police
force becoming politicised by the misuse of the powers of
appointments and transfers. The phenomenon has been commonly
noticed in every state since the eighties.”
He warns not without basis ;
“…Unless corrective measures are quickly taken, people are
going to experience a worse breakdown of the law and order
machinery leading to a threat to the security of life and property.”
A further federal principle that law and order being
essentially State subject. The Central government has to take the
necessary permission to send the para-miltary forces or Defence

forces to assist the State forces when it comes to the breakdown of
law and order.
There is no provision even to investigate the embezzlement
of Central Funds through State machinery until specific request is
made. Although now there is redressal through ombudsman. The
courts of record have on occasions acted as Inquisitorial and
retained prospective jurisdiction in the interest of justice when the
issue of corruption at the highest level arose.
Complimenting Statutes :
In past one decade a number of Statutes have been passed by
Indian parliament which compliment the aims and objectives of
this Act.
Although many have been passed without any debate,
hence there is little public awareness. Although Parliamentary
proceedings are now open to Television and radio, yet only
Question hour and Budget are telecast as live programs.
The statutes on increasing the accountability and availability
of information, government documents to the public are Freedom
of Information Act, 2002(Central Statute) and similar State Laws.
This has amended some Civil Service(Conduct) rules and manual
of office procedure. Many states have passed their own bills on the

21
same subject. Like Delhi and Goa. The two small states are more
open. The Media and NGOs have been the main beneficiary of this
opening. Though even these States official websites have little to
offer.
Under these statutes the dilution of Official Secrets Act,1923
and the Defence and Internal Security of India Act,1971 has been
done with genuine legislative intent. Further the Public Records
Act,1993 now prescribes the saving of the declassified documents
in the Archives of India.
The Courts have liberally exercised the Judicial review to
place the check on the Executive and even legislature but the
separation of powers doctrine under Article 50 and 105 of the
Constitution has stopped them short of striking down many
colonial legislation, and like legislation, as inconsistent with the
Fundamental Rights or simply being unconstitutional. The
preventive powers exercised by the Executive authorities under
various procedural and substantive statutes have been prescribed
some Judicial safeguards. Many of the provisions of Government
of India Act, 1935 22

have been duly incorporated in the
constitution.
On many occasion the Supreme Court of India simply
refused to give opinion on reference by the Government, as part of
21
The Delhi Right to Information Act,2001.
22
Indian Independence Act,1947 and Partition Act,1947; with the Adaptation of Laws Act,1950 .

Constitutional politics. Notable being the return of Presidential
reference23 on deciding the Mosque/temple controversy in the year
1995-1996. This matter is now pending in various Courts, for past
50 years.
Detention and Terrorism Laws and the Act :
In quest for the maintenance of Law and Order and security of
state, and the change in tact of militancy sans political ideology.
What is also described as terrorism. Couple with the growing clout
of Organized crime, so sophisticated that NYSE once warned about
the same.
Yet the quest in civil society and libertarian view of Rights
of the accused and the wronged face a challenge. The balance of
competing interests and safeguards are often negated when the
modern societies and nations are faced with an imminent threat. A
situation which brings them very near to suspension of Civil
liberties. Judicial review is often marginal in affecting outcome
(moderating) of such Executive action which are based on stringent
Laws.
In historical perspective an interesting Joint-opinion of the
Attorney and Solicitor-General, Sir John Campbell and Sir
M.M.Rolfe as to the power of the Governor of Canada to proclaim
23
Article 143: Powers of President to Consult Supreme Court , on subjects mentioned in Article
131.

Martial Law. On correctness of the Law Officers of the Crown in
Lower Canada, Temple, January 16,1838 :
“My LORD,…. On the subject of the power vested in the Governor
of that province to proclaim martial law…”
“…has the power of proclaiming, in any district in which large
bodies of the inhabitants are in open rebellion, that the executive
Government will proceed to enforce martial law. We must,
however, add that in our opinion such proclamation confers no
power on the governor which he would not have possessed
without it. The object of it can only be to give notice to the
inhabitants of the course which the Government is obliges to adopt
for the purpose of restoring tranquility…”
“…It is hardly necessary for us to add that, in our view of the case,
martial law can never be enforced for the ordinary purposes of civil
or even criminal justice, except, in the latter so that; so far as the
necessity arising from actual resistance compels its adoption.”24
Indian insurgency prone areas are two one in the upper
North(Kashmir valley) and the North-East(China border). These
two areas have seen the largest number of Habeas Corpus
Petitions. The State High Courts have been at odds with the
executive. Most of the cases of compensation of failure to produce
corpus have been from these States only. There are some Naxalite
24
Cases in Constitutional Law: Ed.by D.L.Keir,F.H.Lawson,D.J.Bentley, ELBS,OUP,1979,P.231.

(militant under-ground movement) prone areas. At one point of
time, both Central and State government became so circumspect
when it even refused the diplomats from Western countries to see
the Human Rights situation in Kashmir Valley. North-East India
still remains beyond the reach of even Indian Nationals (in some
parts where the permit has to be taken). This security paranoid, is a
political hype.
Indian government experimented twice with tough
legislation which made onerous on the accused to rebut the
presumption of his omission(innocence).
Earlier it was TADA25 and now POTA26 there are few things
common in the Acts. However, these acts were not notified in all
states.
The strong limitation is compensating the miscarriage of
justice. Also the Pre-Trial detention which can spread for years.
Very often Courts of record/Appellate Courts and even Trial
Courts while acquitting the accused, have little sympathy for the
accused.
The only possible safeguard then can be making the officials
responsible with reasonable immunity ‘acts done in good faith’.
25
Terrorist and Disruptive Activities (Prevention) Act of 1987.
26
Prevention of Terrorism Act,2002

“….domestic legislation on terrorism in the U.K. as founded
upon international laws. Most notable mention is of the North
Ireland (Emergency) provisions Act of 1991, where the Secretary of
States implicit responsibility on the issue of violation of the
individuals rights of internment may be interpreted on account
powers relating to detention. Thus any excess can put the executive
in deep trouble on individual and allied rights. Another institution
being the independent assessor for military-excess complaints in
North Ireland. These inherent safeguards worked successfully.”27
The Indian Anti-Terrorist Laws are inspired by similar set of
US Laws and jurisprudence of extending extra-territorial
jurisdictions also.
An attempt at the South Asian regional level was made by
enacting the sub-Regional commitment . An enactment has been
lying in the statute books, called ‘The SAARC28 Convention
(Suppression of Terrorism) Act, 1993.
However this piece of legislation stands lame and without
sanction as the regional states lack cooperation.
Thus there is an overall need to have the ‘State’ come to
terms of with modern political reality in order to live up to the
27
Book Review: “International law Documents relating to Terrorism, Ed.by Omer Yousef Elaghab
Cavendish,” published in THE HINDU, April 7,1996 by myself.
28
South Asian Association for Regional Cooperation.

Rights which the man has inherited by virtue of birth as Human
and because they have been prescribed.
Indian Constitutional Courts have on such Preventive Laws
stuck to the approach where Judicial Review is interpretation of
section and the Enactment. Thereby resisting the otherwise liberal
approach they have as “continuing colloquy” with political
institutions and society at large.
Judicial activism in Indian context has by and large meant
protecting political pluralism and Separation of Powers . The
secular fabric has been respected as to prevent religious appeal
from making Electoral and other gains which create an imbalance
in the basic structure of the Constitution. Though incumbent
Central government has constituted the committee to review
constitution. There has been no discussion in parliament or in
general.
Conclusion :
Supreme Court has awarded compensation on violation of
life and personal liberty, under international covenant Article 9(5)
of the International Covenant on Civil and Political Rights 1966, for
death in hospital due to negligence, for loss of life in Communal
riots, compensation on violation of right to health , workmen
health and Medical care, loss of motherhood, all considered to be

the integral right to compensation as loss of life and personal
liberty.
However an examination of Compensation awarded in case
of Rape29 and guidelines in domestic violence30 and Sexual
harassment cases have very little effect in terms of enforcement of
the same. Like the framing of Criminal Injuries Compensation
Board for Rape victims, Guidelines for government by National
Commission of Women on victims of Domestic Violence till the
suitable legislation is in place or the application of CEDAW and in
matter of Sexual harassment committees at work places.
Further more there is very low conviction rate of those
accused of communal riot . More recently those glorifying Sati31
have been acquitted for lack of clinching evidence. This failure to
deliver justice is an example of lack of people’s commitment. The
law was enacted by the British way back in 1860. It was passed
afresh in the year 1987 with suitable changes and amendments.
The Act, has singular limitation of trying only the criminal
violation, by the Human Right Courts and not the whole gamut of
Life and personal liberty as interpreted by the Constitutional
29
Delhi Domestic Woring Women’s Forum v Union of India (1995)1 SCC 14.
30
South Asian Research and Development Initiative V. Union of India and ors.(unreported) High
Court of Delhi,CW765/01 by me.
31
Burning live of widow on the funeral pyre of husband, a temple is dedicated in Rajasthan to a
young widow called Roopmati. There is annual fair commemorating at Deorala.

Courts in India. The other possibly being its availability for the
non-citizens. Although this is not implicit in the Act.
Supreme Court position has been guarded in extending the
‘Direct remedy’ under Article 32 and 226 for enforcement of
fundamental rights by the foreigners.
The illustration below are self-explanatory of the legal
position but liberal and conservative judge or those with defined
positions can alter the same every time a petition is filed.
32
Fundamental rights to foreigners---scope of : One Mr.
Louis De Raedt has been staying in India continuously since 1937
excepting on two occasions when he went to Belgium for a short
period in 1966 and 1973 and he continued to stay in India on a
Belgian Passport. The petitioner who was foreign national was
asked to leave the country by the 31st July 1987 and he challenged
the order of expulsion which was turned down by the Supreme
Court of India. It was held that the fundamental right to foreigner
under the Constitution is confined to Article 21 for the life and
liberty and does not include the right to reside and settle in India,
as mentioned in Art.19 (1) (e), which is only applicable to the
citizens of this country and the executive Government has
unrestricted right to expel a foreigner.
32
AIR 1991 SC 1887

33
Under Article 21, Right to life and liberty-available to non-
citizens-case of Chakmas34 in Arunachal:
Incidentally this was the first Court campaign by the NHRC in first
two years of its existence.
“The AAPSU, as student organization of the Arunachal Pradesh
issued ultimatum to the chakmas35 residing at Arunachal Pradesh
to quit the State within the date fixed by them. The National
Human Rights Commission too the matter to the Supreme Court in
a public interest litigation under Article 32 of the Constitution
seeing to enforce the rights under Article 21 of the Constitution.
The Supreme Court issued the direction to the State of Arunachal
Pradesh to ensure that the threat by the students organization is
repelled with force and the life and liberty of the Chakmas residing
at Arunachal Pradesh is protected. The Court observed that our
constitution confers certain rights on every human being and
certain other rights on the citizens. Every person is entitled to
equality before the Law and the equal protection of laws, So also,
no person can be deprived of his life and the personal liberty
except according to the procedure established by Law. The State is
bound to protect the life and liberty of every human being, be he a
citizen or otherwise and it cannot permit anybody or a group of
33
NHRC v.State of Arunachal Pradesh AIR 1996 SC1235
34
Tribals from upper Bangladesh.
35
ibid

persons, e.g. the AAPSU, to threaten the Chakmas to leave the
State, failing which they will be forced to do so and no State
Government worth the name can tolerate such threat by any group
or groups of such persons.
It will not be out of place and context to mention that many
of the illegal-migrants(workers) from Bangladesh have been
deported by Delhi Police under instructions from Union Home
Ministry, as they find the people. They are loaded in trucks and
then in trains to Calcutta. Many a times the Bangladesh
government refused to recognize them as its citizens. Leaving
another set of squatters in no-mans land. This has now stopped
temporarily as the international agencies intervened.
Thus the impatience and lack of deference on part of
Executive, for judicial pronouncements becomes obvious in
matters of policy in particular.
-----------------------
Syed Kamran Razvi

Flat No.7, 137B/12, Zakir Nagar,
New Delhi-110 025 (India)
Tel: 91-9810078799 ® 91-9312655151
E-mail :: zehnejadid@vsnl.com
Schedule A
List of Statutes Referred:
1. PROTECTION OF HUMAN RIGHTS ACT,1993

2. Prevention of Atrocities (SC and ST) Act, 1989
3. Universal Declaration of Human Rights, 1966
4. National Commissions Act,1990
5. Legal Services Authorities Act,1987, Rules in 1995.
6. Criminal Procedure Code,1973,
7. Commission of Inquiry Act No.60 of 1952,
8. National Security Act No.65 of 1980.
9. Article 32,136,141,226 of Constitution of India of 1950.
10. PACE Act of 1984.(UK)
11. ECHR convention, 1949, based on UN Declaration,1948
12. Human Rights Act,1998(UK)
13. India Police Act, 1860
14. Prisoners Act,1900.
15. Freedom of Information Act, 2002(Central Statute)
16. Civil Service(Conduct) rules and manual of office procedure.
17. Official Secrets Act,1923
18. Defence and Internal Security of India Act,1971
19. Public Records Act,1993
20. The Delhi Right to Information Act,2001
21. Government of India Act, 1935
22. Indian Independence Act,1947
23. Partition Act,1947
24. Adaptation of Laws Act,1950
25. Terrorist and Disruptive Activities (Prevention) Act of 1987.
26. Prevention of Terrorism Act,2002
27. North Ireland (Emergency) provisions Act of 1991,
28. The SAARC36 Convention (Suppression of Terrorism) Act, 1993.
29. International Covenant on Civil and Political Rights 1966,
30. Abolition of Sati Act,1850
31. Contempt of Courts Act,1971
36
South Asian Association for Regional Cooperation.
SCHEDULE B
SUPREME COURT OF INDIA

Sit in Division Benches( at least two Judges)
HIGH COURTS OF STATES SOME TRIBUNALS
(Appellate, Extraordinary, Ordinary Designated courts, Regulatory

original, Company Jurisdiction authorities/Commissions, etc.
exercisable in the territorial limits of
the State.)
1.Some times two or more States

has common High Court or Benches
in various parts of a State.
2.They sit in Single and Division

Benches
3.They are the inspecting judges on

District Judges
Criminal Courts Civil Courts
Session Judge Court (Offences District Judges Court

punishable by more than three (Appellate and original Trial of
years barring exception), Suits pecuniary jurisdiction, Family
Designated Courts. Courts, etc)
Metropolitan magistrates/Judicial
Magistrates/Executive Civil Judge Court/Small Causes
Magistrates/Revenue Magistrate Court
Courts(exercising preventive law
on reference from local police)

END NOTES
i
National Human Rights Commission for India was established in the year 1994 with the subordinate legislation on
(procedure) Regulations in place under the Protection of Human Rights Act,1993.
ii
Indian Constitution is federal in nature and through a list 1,II,III attached as Seventh Schedule to Article 246 which
mentions the State amendments to the Central Legislation in matters pertaining to Criminal Law and some other
categories of legislation. This is apart from the powers of the States to enact their own State-specific criminal laws.
Many of such laws have been alleged to put to misuse. Also the State governments are less inclined to notify such
central Acts which adds to accountability. Human Rights in social context in poorer states is considered to be liability.
There is added dimension that of very competitive, aggressive and sometimes violent electoral politics.
iii
The Supreme Court of India under Article 32 of Constitution of India also adjudicates on Fundamental rights. Thus in
deciding a petition it clarified whereby Supreme Court says that matters so entrusted to the National Human Rights
Commission, can be dealt by NHRC in the course and manner as it deems fit. “Therefore, the jurisdiction exercised by
the National Human Rights Commission in these matters is of a special nature and not covered by enactment or law, and
thus acts sui generis.” (Paramjit Kaur v.State of Punjab, A.I.R.1999SC340: (1999)2 SCC131.
iv
During the Gujarat Riots,March,2002, the State was ruled by Rightist government i.e.Bhartiya Janata Party, also the
heading the coalition government at the Centre. Even the High Court Judge had to leave his official residence and live
with his relatives in a Muslim dominated area. The Best Bakery case Special Leave Petition has been admitted as the
victim alleged intimidation by local BJP MLA. The lower court has acquitted the accused Right wing activists who
murdered and burned few persons alive, during the riots.
v
Jamia Lawyers Alumni and Ors.v. Union of India and Ors. CW….. of 2004. It is to be listed towards the end of the
month of Feb,2004 for hearing. The Petition calls for framing of the uniform compensation fromula as one prescribed in
Motor Vehicles Act,1988 or any other formula. As it was witnessed that the State has discriminated in awarding
compensation to Hindus and Muslims on loss of life in riots. The Act is deficient to that extent. Under Article 141 the
Supreme Court of India has ample powers to enact Law till it is replaced by suitable amendments or special Law. Also
please refer to the Schedule A to the paper for Laws dealing with Police powers of the State and accountability.
vi
Limitation of approach in terms of “Miscarriage of Justice” being that there is little to hold him guilty and the Courts
have passed Judgements where the Departmental Enquiries are not subjected to judicial scrutiny at all. There is an
antique act called the Public Servants (Inquiries) Act, 1850. Government is the final word in the Act. Although the same
has been unfettered by creation of Administrative Tribunals. In many cases related to corruption the Supreme Court and
various High Courts has delivered judgements which clearly take away the immunity clause (sanction for prosecution)
of Public servants. Also has widened the group of people in position to be covered under the definition of Public
servants including the legislators, Corporators, under the Prevention of Corruption Act,1988. In one of cases Brij
Mohan V.State & Ors.(unreported) , the Delhi High Court completely relied on the DE exonerating a Constable , against
whom they have asked registration of FIR in their Judgement. The allegations were of physical assault and false case on
four young men by two constables. The allegations were well supported by Photographs and the vigilance report of the
Police Headquarters. There were three different Enquiries done by different sections of Delhi Police. Two in favour of
the victims one was managed after the orders have been passed. Such is the finality of Departmental enquiry.
vii
where Delhi High Court has asked Delhi Police to pay 10% of the total damages to be paid by various civic
authorities Biggest damage awarded in Article 226. It was case of negligence where fire in cinema house killed some
hundred people.

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PROTECTION OF HUMAN RIGHTS ACT,1993 THE PROGRESS AND

IMPLEMENTATION, A CRITICAL ANALYSIS OF EXECUTIVE AND

BY SYED KAMRAN RAZVI

The paper discusses the issues of “Justice at

evolution under the International covenant on Human Rights. The

exposition under Protection of Human Rights Act, 1993,(India)i is

a manifestation of such obligation and collectivism1. It provides the

structure for implementation of Human Rights. The subject of

analysis is the success in establishment of Commissions , Courts

need for amendments. The background contained in Part III of the

Indian constitution close to ‘Bill of Rights’. It includes right (Article

32)to move Supreme Court of India to prevent infringement of

fundamental rights2. However pursuant to the Social Democracy,

community-specific legislation in India like Prevention of

Atrocities (SC and ST) Act, 1989 (previously Protection of Civil

BY SYED KAMRAN RAZVI

Human Rights Act,1993. Thus in terms of sociological implication

of Law it is impressed, in these set of legislation. These Rights-

specific legislation have acted if in support or is case of over-

lapping jurisdiction is also examined. Lastly, whether the Human

Rights Commission and Courts have made progress in past one

decade of existence. The challenge of Civil liberties in pursuing

dynamic civil society.

Act , NHRC, Justice, Constitution, Courts, fundamental

Rights, Ouster clause, Police, ‘Police powers’, communal

Notion of Human Rights and Justice :

Every segment of the society has a different definition of

Justice. Human Rights is a growing definition adding impression

to the universal application and implementation of the Laws

conforming to the Human Rights. Indian example is a case in point.

Inspired by International covenant of Human Rights or Universal

Declaration of Human Rights, 1966 an enactment was passed with

a topical terminology. A Central Act called Protection of Human

BY SYED KAMRAN RAZVI

envisages two Functionary bodies namely the National Human

Rights Commission and State Commissionsii and permanent

remedial edifice, establishment of Human Rights Courts. These

courts are to work in aid of these commissions.

Prior to the passing of this statute an Act, calling for

National Commissions Act,1990 was passed. This statute brings

into existence the commissions for the segment of the society

discriminated and to study the welfare measures and propose the

same to the government through their annual and Special reports.

The Chairman of the these commissions are also ex-officio

members of National Human Rights Commission.iii The Chairman

and execution of orders/decrees and powers to punish for

NHRC has in case of Gujarat riots in March, 2002

launched a Court campaign which has resulted in hauling up

making both accountable i.e. State government and also High

BY SYED KAMRAN RAZVI

“Americans have gone a lot of further(some would say too

far(a bevy of Platonic Guardians’) Supreme Court Court described)

in judging judges. This is mostly because of the Bill of Rights and

the importance which the Supreme Court has in the US

constitution. But there is no doubting that the judging of judges is a

multi-million dollar and is widely regarded in the USA as essential

How is this an industry? The Bill of Rights leads Americans

to favour single-issue pressure groups which mount Court-

campaigns-most famously in the case of the 1954 decisions to end

racial segregation in the schools-to achieve political aims.”4

In a Petition in public interest on the same subject filed

trials of such violations of civil rights should be done by the

Human Rights Courts.v In Indian context the access to the Courts