Human Rights Day: The need for Human Rights Courts in India

Bar & Bench December 10 2018
Vidhi, human rights courts

Asim Sarode

Human Rights violations are not uncommon in the contemporary world and the debate on human rights has emerged as a potential discourse of analysis and development. In this background, setting up Human Rights Courts will bring the judiciary into action to play a supportive and auxiliary role in transforming human rights into reality.

A PIL petition is pending in Bombay High Court seeking the following:

  • Setting up functional Human Rights Courts in every district of Maharashtra under the Protection of Human Rights Act, 1993.
  • The framing of Rules (along with Rules of Procedures) as per Section 41 of the Human Rights Protection Act, 1993 for effective implementation of the said law.
  • Appointing Special Public Prosecutors to handle human rights cases as per Section 31 of the Act.
  • To have a separate ‘Department of Human Rights Public Prosecutors’ for the smooth functioning of the Human Rights Courts.
  • Implementation of the definition of ‘Victim’ mentioned in Section 2(wa) of Cr.P.C.
  • Setting up of a ‘Human Rights Documentation Cell’.
  • Holding training programs on the subject of human rights at specific intervals for all the public prosecutors in the State.

It is mentioned in the Public Interest Litigation that the Special Human Rights Courts incorporated under the Special Courts Act need to be ‘functional’. The basic requirements mandated under various statutes with respect to the special courts are not followed when it comes to its implementation. Special procedures are also not adhered to many a time.

Strengthening judicial governance by formulating model progressive spaces will prove important, as a part of providing a Constitutional remedy for enforcement of human rights. Section 30 in Chapter VI of the Human Rights Protection Act, 1993 provides for setting up of Human Rights Court. But the jurisdiction of such court is restricted to "offences arising out of violation of human rights". And the problem is that "offences arising out of violation of human rights" has not been defined in the Act of 1993.

Nowhere in the country has any State has been able to set up Human Rights Courts and make them functional. Violations of human rights which constitute penal offences are already being tried and punished in the Criminal Courts. Only such violation which is not covered as offences in any criminal law, need to be taken cognizance of, inquired into and redressed by human rights court.

By virtue of Article 32 (3) of the Constitution, it is possible to confer the power of enforcement of human rights or fundamental rights on the District Court or Courts inferior to them. It would then be possible for these courts to function as Human Rights Courts for providing remedies with respect to violations of fundamental rights as well as rights contained in the Universal Declaration of Human Rights (UDHR) and the Covenants to which India is party and signatory.

There is a catena of such rights which were neither provided nor contemplated in the Constitution but have been included in Article 21 by the judgments rendered by Supreme Court of India. Right to Food, Right to Water, Right to Shelter, Livelihood, Education, Travel abroad, Legal aid, Speedy trial, Right to Privacy, Right against Solitary Confinement, Handcuffing, Right to Health and Medical Facilities, Right to Clean Environment, Right to Sleep etc are some such rights.

India is in need of vibrant and functional Human Rights Courts to protect Fundamental Rights. Lawyer friends across the country should assertively demand setting up these courts in their respective States and contribute towards a new system of justice.

Asim Sarode is a practicing Lawyer, a human right analyst, commenter, and columnist on socio-legal issues. He is an Ashoka Fellow for the Innovators of Public (Washington)