CHENNAI : The National Confederation of Human Rights Organizations (NCHRO) hosted a Two-day Human Rights Workshop for Activists. NCHRO chairperson Prof. A. Marx inaugurated the workshop held at Madras Reporters Guild, Chepauk , Chennai on 30 and 31 July 2016.
About 60 people, including Human Rights Activists, Volunteers and Lawyers participated in the workshop. Ibrahim Badusha, Vice-President, NCHRO – Tamilnadu Chapter was the overall in-charge of the workshop.
Adv. Shajahan, General Secretary, NCHRO – Tamilnadu Chapter opened the workshop by welcoming everyone and thanked them for their attendance.
The topics covered in the workshop were:-
1) Human Rights Situation in India and Need of Human Rights Activism by Adv. Bhavani Ba. Mohan, State President, NCHRO, Tamilnadu Chapter.
2) UDHR and International Human Rights Conventions by Reny Ayline, National Secretary, NCHRO (Translation by Tanveer).
3) FIR to Trial: Procedures and Documentation in Regular Penal and Draconian laws by Adv. Bhavani Ba. Mohan, State President, NCHRO, Tamilnadu Chapter.
4) Documenting Human Rights Violations and the illegal Practices of the Police against Citizens by Mrs. Krishnaveni, Rights Activist, Chennai.
5) Fact Finding Modalities by Prof. A. Marx, Chairperson, NCHRO.
6) Defending Women’s Rights and Domestic Violation Act by Adv. Rajni, PUHR, Madurai.
7) Media and Human Rights by Mr. Peer Mohamed, Senior Journalist, Chennai.
8) Effective use of RTI by Adv. A. Mohamed Yusuf, Madurai.
9) Human Rights Laws in India and National & International Human Rights Organizations - How to Approach them by Adv. Karunanithi, Human Rights Activist, Madurai.
10) How to be a Firm and Steadfast Defender of Human Rights by Adv. K.P. Mohamed Sheriff, Vice-Chairperson, NCHRO (Translation by Adv. Alaudeen ).
11) Assignments to the Participants - Adv. A. Mohamed Yusuf.
12) Conclusion- M. Mohamed Shaik Ansari State General Secretary, Popular Front of India, Tamilnadu.
Inaugural Address, Prof. A. Marx, Chairperson, NCHRO:-
Prof.Marx while delivering the inaugural address at the 2-day workshop organized by National Confederation of Human Rights Organizations (NCHRO) said, “Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death. They apply regardless of where you are from, what you believe or how you choose to live your life. These basic rights are based on values like dignity, fairness, equality, respect and independence. But human rights are not just abstract concepts – they are defined and protected by law". Generally, states are assumed to have primary responsibility for guaranteeing their citizens' human rights, but, at the same time, states are often the worst violators of human rights.
We need to ask ourselves what type of country we want to be: one that puts powerful vested interests above individual human dignity, or one that flies the flag proudly for compassion and rule of law. When all the dimensions of a human rights approach—vision, framework, method, and strategy—come together in one focused effort, they produce an immensely powerful effect. Civil society movements need to be further galvanised to drive home the idea that our country needs a human rights culture. The development of such a culture goes beyond the work and mandate of laws, rules, regulations, work of government departments, functioning of institutions, and the work of the judiciary.
For human rights to become part of the civil culture, awareness needs to be inculcated within the social and political psyche. Teaching human rights is vital to building a society where respect for human dignity, equal treatment and tolerance are paramount. After all, we all live in the same world. We all have an impact on each other. We must not think only of ourselves.
Human rights education should aim to forge social transformation and promote a worldview based upon respect for the rights and freedoms of humanity. Thus, the need for empowering the people cannot be better achieved than by developing varied components of human rights education. What needs to be examined is how such education can be promoted and to what extent it can actually facilitate the development of a human rights culture. This work shop aims to create such a sustained development that can result in the promotion of a culture of human rights. Prof. Marx added.
1) Human Rights Situation in India and Need of Human Rights Activism by Adv. Bhavani Ba. Mohan, State President, NCHRO, Tamilnadu Chapter
The Founding Fathers of the Indian Constitution had a vision of the Indian society, which they wanted to realize through the Constitution. That vision was primarily reflected in the Preamble, the chapters on Fundamental Rights and Directive Principles of State Policy. It is the duty of the State to guarantee what is said in the Constitution. According to Justice J.S. Verma, the former chairman of the NHRC, It is often the State which is violator of Human Rights in maximum cases in the country. But the maximum responsibility to protect and safeguard the rights of its citizens also lies with the State.
Waiting is almost Torture - Prolonged Pre-trial Detention: - Prisoners face long delays in trials and appeals. During this time, the prisoners suffer from extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain fate. As of January, over 282,000 prisoners – 68% of the total prison population – were pre-trial detainees. Weaker sections of the society continued to be disproportionately represented. A 2014 Supreme Court order directing district judges to release pre-trial detainees who had been held for over half of the term they would have served if convicted was poorly implemented. Many poor defendants across the country languish in pretrial detention in large part because they cannot afford to post rising bail costs. The impact on poor defendants is particularly harsh. The solitary confinement and harsh conditions imposed on prisoners were degrading and oppressive and that the Supreme Court had acknowledged that the circumstances of being on death row amount to “near torture” for the convict. Adv. Bhavani Ba. Mohan gone through the below topics too:-
· Persecution and Harassment, Environment of Fear.
· Extrajudicial executions and Forced disappearances.
· Mob Justice.
· Children’s rights & Violence against Women.
· Backlog of cases, Frivolous cases, Abuse of Judicial process and Corruption.
· Corporate accountability.
· Death Penalty.
· Freedom of association & Freedom of expression.
· Draconian Laws.
2) UDHR and International Human Rights Conventions by Reny Ayline National Secretary, NCHRO,( Translation by Tanveer)
The Universal Declaration of Human Rights – UDHR :- Internationally, states that have signed the Universal Declaration of Human Rights and the United Nations’ International Pact Regarding Civil and Political Rights would expect that international law enshrines the protection of personal information, either as a fundamental right or as an intrinsic part of the protection of human dignity and freedom. The Universal Declaration of Human Rights is generally agreed to be the foundation of international human rights law. Adopted in 1948, the UDHR has inspired a rich body of legally binding international human rights treaties. It continues to be an inspiration whether in addressing injustices, in times of conflicts, in societies suffering repression, and in our efforts towards achieving universal enjoyment of human rights. Human rights belong to everyone, everywhere, regardless of nationality, sexuality, gender, race, religion or age.
Foundation for Our Common Future:- Over the years, the commitment has been translated into law, whether in the forms of treaties, customary international law, general principles, regional agreements and domestic law, through which human rights are expressed and guaranteed. Indeed, the UDHR has inspired more than 80 International human rights treaties and declarations, a great number of regional human rights conventions, domestic human rights bills, and constitutional provisions, which together constitute a comprehensive legally binding system for the promotion and protection of human rights.
Building on the achievements of the UDHR, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights entered into force in 1976. The two Covenants have developed most of the rights already enshrined in the UDHR, making them effectively binding on States that have ratified them. They set forth everyday rights such as the right to life, equality before the law, freedom of expression, the rights to work, social security and education. Together with the UDHR, the Covenants comprise the International Bill of Human Rights.
Over time, international human rights treaties have become more focused and specialized regarding both the issue addressed and the social groups identified as requiring protection. The body of international human rights law continues to grow, evolve, and further elaborate the fundamental rights and freedoms contained in the International Bill of Human Rights, addressing concerns such as racial discrimination, torture, enforced disappearances, disabilities, and the rights of women, children, migrants, minorities, and indigenous peoples.
How Does International Law Protect Human Rights?
International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights.
Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. The domestic legal system, therefore, provides the principal legal protection of human rights guaranteed under international law. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual and group complaints are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.
The 30 articles of the Declaration were adopted in 1948 by the United Nations General Assembly, and over time these have been integrated into national laws and international treaties. The core values of the UDHR - human dignity, fairness, equality, non-discrimination - apply to everyone, everywhere:-
Article 1 Right to Equality
Article 2 Freedom from Discrimination
Article 3 Right to Life, Liberty, Personal Security
Article 4 Freedom from Slavery
Article 5 Freedom from Torture and Degrading Treatment
Article 6 Right to Recognition as a Person before the Law
Article 7 Right to Equality before the Law
Article 8 Right to Remedy by Competent Tribunal
Article 9 Freedom from Arbitrary Arrest and Exile
Article 10 Right to Fair Public Hearing
Article 11 Right to be Considered Innocent until Proven Guilty
Article 12 Freedom from Interference with Privacy, Family, Home and Correspondence
Article 13 Right to Free Movement in and out of the Country
Article 14 Right to Asylum in other Countries from Persecution
Article 15 Right to a Nationality and the Freedom to Change It
Article 16 Right to Marriage and Family
Article 17 Right to Own Property
Article 18 Freedom of Belief and Religion
Article 19 Freedom of Opinion and Information
Article 20 Right of Peaceful Assembly and Association
Article 21 Right to Participate in Government and in Free Elections
Article 22 Right to Social Security
Article 23 Right to Desirable Work and to Join Trade Unions
Article 24 Right to Rest and Leisure
Article 25 Right to Adequate Living Standard
Article 26 Right to Education
Article 27 Right to Participate in the Cultural Life of Community
Article 28 Right to a Social Order that Articulates this Document
Article 29 Community Duties Essential to Free and Full Development
Article 30 Freedom from State or Personal Interference in the above Rights
3) FIR to Trial: Procedures and Documentation in Regular Penal and Draconian laws: - Adv. Bhavani Ba. Mohan, State President, NCHRO, Tamilnadu Chapter
Indian Penal laws are primarily governed by 3 Acts:-
· The Code of Criminal Procedure, 1973 (Cr.P.C.).
· The Indian Penal Code, 1960 (IPC).
· The Indian Evidence Act, 1872.
The procedure for a criminal trial, is primarily, except as otherwise provided, governed by The Code of Criminal Procedure, 1973 (Cr.P.C.). The Indian Penal Code (IPC) is the primary penal law, which is applicable to all offences, except as may be provided under any other law.
The Indian Evidence Act is a detailed treaty on the law of "evidence", which can be tendered in trial, manner of production of the evidence in trial, and the evidentiary value, which can be attached to such evidence. Evidence Act also deals with the judicial presumptions, expert and scientific evidence. There are certain other laws, which have been enacted to deal with criminality in special circumstances.
It is also important to note that our country follows the adversarial system, where generally the onus of proof is on the State (Prosecution) to prove the case against the accused, and until and unless the allegation against the accused are proved beyond reasonable doubt, the accused is presumed to be innocent. In certain exceptional cases, which may relate to terrorism, etc., the onus of proof has been put on the accused person, who claims to be not guilty.
Bailable Offence, means an offence, which has been categorized as bailable, and in case of such offence, bail can be claimed, subject to fulfillment of certain conditions, as a matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police authorized to give bail to the accused at the time of arrest or detention.
Non-Bailable Offence means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a Non-Bailable offence is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that "Bail, not Jail" should be the governing and guiding principle.
Anticipatory Bail, under Section 438 of the Cr.P.C., means that a person who apprehends arrest on a wrong accusation of committing a Non-bailable offence, can apply before a competent court for a direction to police to immediately release such a person on bail in the event of arrest. However, the grant of anticipatory bail is discretionary and depends on the nature and gravity of accusations, the antecedents of the applicant and the possibility of the applicant fleeing from justice.
Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an offence/case in which a Police Office can arrest without a warrant. Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence/case in which a Police Officer has no authority to arrest without a warrant.
On complaint /reporting /knowledge of the commission of a cognizable offence, any police officer, even without the orders of a Magistrate, can investigate the cognizable case. [Section 156 (1) of the Cr.P.C.]. In case of failure or inaction of a police officer to investigate a cognizable offence, a criminal complaint can be filed before a Magistrate under Section 190 of Cr.P.C., for taking cognizance of such offence, and on such complaint, the Magistrate himself can take cognizance of the case and do the enquiry, or in the alternative under Section 156 (3) of the Cr.P.C., order Police to register an F.I.R and investigate the offence.
In case of non-cognizable offence, Police is not obliged to investigate, and the judicial process can be started by filing a criminal complaint before the competent court, under Section 190 of the Cr.P.C.
Stages of Criminal Trial:-
(i) Registration of F.I.R :- Lodged under section 154 of the code which provides for the manner in which such information is to be recorded. Statement of the informant as recorded under section 154 is said to be the First Information Report. Its main object is to set the criminal law in motion. FIR means the information, by whomsoever given, to the officer in charge of a police station in relation to the commission of a cognizable offence and which is first in point of time and on the strength of which the investigation into that offence is commenced.
ii) Commencement of investigation:- It includes all the efforts of a police officer for collection of evidence: Proceeding to the spot; ascertaining facts and circumstances; discovery and arrest of the suspected offender; collection of evidence relating to the commission of offence, which may consist of the examination of various persons including the accused and taking of their statements in writing and the search of places or seizure of things considered necessary for their investigation and to be produced at the trial; formation of opinion as to whether on the basis of the material collected there is a case to place the accused before a magistrate for trial and if so, taking the necessary steps for the charge-sheet. Investigation ends in a police report to the magistrate. It leads an investigating officer to reach a conclusion whether a charge-sheet has to be filed or a closure report has to be filed.
iii) Framing of charges:- If a person is not discharged, trial begins by framing a charge (nothing but a specific accusation against the accused) and reading and explaining it to him (so that he knows what he is to force).
iv) Conviction on plea of guilty:- After framing of charges the judge proceeds to take the ‘plea of guilt’ which is an opportunity to the accused to acknowledge that he pleads guilty and does not wish to contest the case. Here the judge responsibility is onerous:-
a. to ensure that the plea of guilt is free and voluntary.
b. He has to ensure that if there had been no plead of guilt- was the prosecution version if unrebutted- would have led to conviction.
If both the requirements are met-then judge can record and accept plea of guilt and convict the accused after listening to him on sentence.
v) Recording of the prosecution Evidence:- Examination of prosecution witness by the police prosecutor, marking of exhibits and cross examination by defense counsel.
vi) Statement of the Accused:- Section 313 of the Criminal procedure empowers the court to ask for explanation from the accused if any. The basic idea is to give an opportunity of being heard to an accused and explain the facts and circumstances appearing in the evidence against him. Under this section, an accused shall not be administered an oath and the accused may refuse to answer the questions so asked. The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him.
vii) Evidence of Defense: In cases of accused not being acquitted by the court, the defense is given an opportunity to present any defense evidence in support of the accused. The defense can also produce its witnesses and the said witnesses are cross- examined by the prosecution. However, in our country the defense does not provide defense evidence as the criminal justice system puts burden of proof on the prosecution to prove that a person is guilty of an offence beyond the reasonable doubt.
ix) Final arguments on both the sides: once the public prosecutor and the defense counsel present their arguments, the court generally reserve its judgment.
x)Judgment: Judgment is the final reasoned decision of the court as to the guilt or innocence of the accused. After application of judicial mind, the judge delivers a final judgement holding an accused guilty of an offence or acquitting him of the particular offence. If a person is acquitted, the prosecution is given time to file an appeal and if a person is convicted of a particular offence, then date is fixed for arguments on sentence. Once a person is convicted of an offence, both the sides present their arguments on what punishment should be awarded to an accused. This is done in cases which are punished with death or life imprisonment. After the arguments on sentence, the court finally decides what should be the punishment for the accused. While punishing a person, the courts consider various theories of punishment like deterrent theory of punishment and reformative theory of punishment. Court considers the age, background and history of an accused and the judgement is pronounced accordingly.
Functions, Duties and Powers of various Machineries:
a) Police:- The police force is an instrument for the prevention and detection of crime. The administration of police in a district is done by DSP(District Superintendent of Police) under the direction and control of District Magistrate. Every police officer appointed to the police force other than the Inspector-General of Police and the District superintendent of police receives a certificate in the prescribed form by the virtue of which he is vested with the powers, functions and privileges of a police officer which shall be cease to be effective and shall be returned forthwith when the police officer ceases to be a police officer. The CrPC confers specific powers such as power to make arrest, search and investigate on the members of the police force who are enrolled as police officers. Wider powers have been given to police officers who are in charge of a police station. As per section 36 of CrPC which reads as “ the police officers superior in charge of a police station may exercise the powers of such officials.
b) Prosecutor: If the crime is of cognizable in nature, the state participates in a criminal trial as a party against the accused. Public Prosecutor or Assistant Public Prosecutor is the state counsel for such trials. Its main duty is to conduct Prosecutions on behalf of the state. The public Prosecutor cannot appear on behalf of accused. According to the prevailing practice, in respect of cases initiated on police reports, the prosecution is conducted by the Assistant Public Prosecutor and in cases initiated on a private complaint; the prosecution is either conducted by the complainant himself or by his duly authorized counsel.
c) Defence Counsel: According to section 303, any person accused of an offence before a criminal court has a right to be defended by a pleader of his choice. Such pleaders are not in regular employment of the state and a paid remuneration by the accused person. Since, a qualified legal practitioner on behalf of the accused is essential for ensuring a fair trial, section 304 provides that if the accused does not have means to hire a pleader; the court shall assign a pleader for him at state’s expense. At present there are several schemes through which an indigent accused can get free legal aid such as Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board and Supreme Court Senior Advocates Free Legal Aid society. The legal Services Authorities Act, 1987 also provides free legal aid for the needy.
d) Prison authorities and Correctional Services Personnel: The court presumes the existence of Prisons and the Prison authorities. It empowers Magistrates and judges under certain circumstances to order detention of under trial prisoners in jail during the pendency of the proceedings. It also empowers the courts to impose sentences of imprisonment on convicted persons and to send them to prison authorities. However, the code does not make specific provisions for creation, working and control of such machinery. These matters are dealt with in separate acts such as The Prisons Act 1894, The Prisoners Act 1900 and The Probation of Offenders Act 1958.
The rationale of criminal procedure:
a) Importance of fair Trial: One of the primary goals of criminal law is to protect society by punishing the offenders. However, justice and fair play require that no one be punished without a fair trial. A person might be under a thick cloud of suspicion of guilt, he might have been caught red-handed, and yet he is not to be punished unless and until he is tried and adjudged to be guilty by a competent court. In the administration of justice it is of prime importance that justice should not only be done but must also appear to have been done. Further, it is one of the most important principle of criminal law that everyone is presumed to be innocent unless his guilt is proved beyond reasonable doubt in a trial before an impartial and competent court. Therefore it becomes absolutely necessary that every person accused of crime is brought before the court for trial and that all the evidence appearing against him is made available to the court for deciding as to his guilt or innocence.
b) Constitutional perspectives: Articles 20 and 22 of the constitution of India provide for certain safeguards to the persons accused of offences. Article 20 secures the protection of the accused persons, in respect of conviction for offences, from Ex post facto laws, double jeopardy and prohibition against self-incrimination. Similarly, Article 21 of the constitution of India ensures the protection of life and liberty which reads as “no person shall be deprived of his life or personal liberty except according to the procedure established by law. This right may be affected in cases of preventive detention under preventive detention laws. As such, Constitutional protection against arrest and detention is ensured under article 22(1) to (7) of the constitution of India.
4) Documenting Human Rights Violations and the illegal Practices of the Police against Citizens :- Mrs. Krishnaveni Rights Activist, Chennai
In the subject titled Documenting Human Rights Violations and the illegal Practices of the Police against Citizens: Choosing the Right Approach, participants discussed the range of methods that can be used to thoroughly document human rights violations, and utilize them to motivate a response.
What is documentation?
Documentation is a process of strategic and systematic gathering of quantitative or qualitative data. This process consists of several activities, namely: determining what information is needed and establishing means for acquiring it; recording the discovered information and storing such in appropriate containers (called documents) or collecting already-existing documents containing the needed information; organising the documents to make them more accessible; and actually providing the documents to users who need the information. Before starting data collection, it is important to have a concrete end goal for the data, as that will largely influence the type and scope of data collected, and determine the parameters of the collection process.
Documentation builds a strong platform for advocacy for it provides evidence that can oppose what governments or newspapers are reporting. Here is a plan on how to use documentation for human rights advocacy. An important lesson learned is to review the impact of the documents on particular human rights efforts and store data safely.
Compiling Different Documents:- Advocacy efforts benefit by compiling various data and creating a bigger picture of human rights violations. Developing a useful metadata system for the human rights community could have tremendous impact for the human rights community for it would allow drawing connections between different data sets and discover greater patterns of abuse.
What data can be collected?
· Monitoring indicators – particularly helpful for discrimination
· Ongoing oppression
· Legal investigations & researching government data
· Archives of repressive regimes
· Scanning and documenting media
· HR interventions
· Anthropological research
· Ecological studies
· Real time Data.
Qualitative or quantitative research?
A big challenge in the field of documentation is whether to rely on quantitative or qualitative data. Both are important, quantitative data draw the big picture for us and qualitative data supply the emotive, social, and political aspects of a person's experience. A related question – How structured should documentation be? - poses a challenge to field research. Narrowly defined questionnaires will likely omit a large portion of the person's experience, whereas powerful individual testimonies are difficult to summarize into big reports that ought to quantify impact.
Documenting civil and political & economic, social, and cultural rights :- Some of the traditional approaches (such as documenting violations) have been used primarily in the case of civil and political rights. However, the human rights community is strengthening its focus on the documentation of economic, social and cultural rights. Three broad categories of approaches to ESC were mentioned in the dialogue:
· State violations resulting from government actions, policies, and legislation.
· Violations related to patterns of discrimination.
· Violations related to the state’s failure to fulfill minimum core obligations of enumerated rights.
When released, some data can be harmful to the very individuals it aims to protect. Accuracy – it is important to be aware of our biases as those who collect documents, “record the story not your interpretation of the story. ”activist vs. scientists – NGO documentation is sometimes not trusted by scientists. Cooperation between experts and activists is key to solid documentation. security - Recognizing the need of organizations to combine their data to create greater impact, it is all the more important to ensure a secure transfer and storage of data that does not put people (both those documented and documenting) at risk
Further this lecture guided attendees to go through the below resources too:-
· Protection manual for HR defenders - tactics to reduce the risks that those who document HR violations face.
· Information cycles in HR organizations
· Presentation on "Digital Democracy" - engaging technology at the local level to produce an international response
· Planning a large scale documentation project - "Who did What to Whom?" is a detailed resource describing the different aspects of a human rights campaign achieved through documentation.
5) Fact-Finding Modalities, Prof. A. Marx, Chairperson, NCHRO:-
Fact Findings missions are considered as critical for enhancing human rights protection and in combating impunity through inquiry and reporting. Human rights "investigation" will cover in-depth examination of specific allegations, and should be thorough, complete, independent, and impartial. It involves gathering of detailed information to determine whether human rights violations have occurred, to identify perpetrators, and to establish a basis for further investigations. It compares with other, lighter modalities, such as fact-finding, monitoring, assessment, or mapping. Gross violations of human rights are still a tragic feature of life in many parts of the world and parties responsible for them go to great lengths to hide them from detection and to avoid scrutiny. When scrutiny does occur, governments frequently attack fact-finding reports to avoid further processes and the need to accept responsibility for the violations perpetrated. For this and for many other reasons, it is crucial that careful attention is paid to the substantive and methodological integrity of fact-finding reports. Despite, or perhaps because of these developments, controversies over fact-finding reports are very common. Human rights organizations do not seek to describe general social conditions; rather, the main objective of human rights reporting is to document patterns of human rights violations and expose the perpetrators, institutions and policies that facilitate abuse.
Challenges we face organizing and conducting fact finding missions are below:-
Protection of sources, witness and victims:- The protection of witnesses, victims, and other persons cooperating with missions is a matter of continuing concern. Protection is the responsibility of all, from bodies mandating fact finding, to governments whose actions are under investigation, to the team members.
Access and cooperation:- Effectiveness is also dependent to a degree on the consent of the relevant State authorities. Fundamentally, consent will enable the mission to have access to persons, locations and documentation necessary to carry out its investigation. A challenge faced by several fact finding and assessment missions has been the unwillingness of governments, non-state actors or authorities that are the subject of investigation to cooperate. Lack of cooperation may vary from refusing to speak with and provide information and relevant documents to these bodies, to barring them from entering the area where the incidents under investigation took place, to intimidating possible witnesses and sources of information to prevent them from cooperating with the investigators. To overcome these challenges missions can use neighboring areas to meet with persons who may have first- hand information on the events under investigation, inviting witnesses and victims to testify outside their area, relying more heavily on official statements and material in the public domain, as well as on informal contacts with individuals able to relay official positions. Lack of cooperation from authorities has not prevented investigations and fact finding from taking place and reaching conclusions.
Cooperation with judicial entities: Missions invariably operate in a broader context with other judicial entities. This may require them to determine the nature of their relationship with the other entity. Especially where missions have conducted their investigations in parallel with other judicial or investigative processes, it has been important to ensure they do not hamper those other processes but, where possible, assist them. While preserving confidentiality of sources, information can be shared with other investigative entities. The work of these mechanisms is crucial for enhancing human rights protection in multiple ways. They can provide an historical record of serious violations of human rights and international humanitarian law, and influence positive change in law and practice. Critically, they assist in ensuring accountability for serious violations, which is fundamental in order to deter future violations, promote compliance with the law, and provide avenues of justice and redress for victims. Many of them have delved into the root causes of the violence and violations, triggering transitional justice mechanisms that address rights to the truth, justice, remedies and reparations, and guarantees of non-recurrence, and thus have informed more sustainable peace building and reconciliation efforts, and assisted in the political settlement of conflicts.
Prof. Marx guided through many fact finding missions and narrated real time incidents where he is part with.
6) Defending Women’s Rights and Domestic Violation Act - Adv. Rajni PUHR, Madurai
The Constitution of India guarantees substantive equality to women. Equality includes not just declaration of rights, but also facilitates access to justice to realize these rights. Women are entitled to enjoy the same human rights and fundamental freedoms as other individuals. Despite many successes in empowering women, numerous issues still exist in all areas of life, ranging from the cultural, political to the economic. For example, women often work more than men, yet are paid less; gender discrimination affects girls and women throughout their lifetime; and women and girls are often are the ones that suffer the most poverty.
On a global scale, women cultivate more than half of all the food that is grown. Yet women often get little recognition for that. In fact, many go unpaid. When women work outside the household, they earn, on average, far less than men. They are also more likely to work in more precarious forms of employment with low earnings, little financial security and few or no social benefits. Women—particularly those in poor countries—will be affected differently than men. They are among the most vulnerable to climate change, partly because in many countries they make up the larger share of the agricultural work force and partly because they tend to have access to fewer income-earning opportunities.
International human rights treaties require State parties to take proactive steps to ensure that women’s human rights are respected by law and to eliminate discrimination, inequalities, and practices that negatively affect women’s rights. As a particularly vulnerable group, women have special status and protection within the United Nations and regional human rights systems. International human rights treaties prohibit discrimination on the basis of gender and also require States to ensure the protection and realization of women’s rights in all areas – from property ownership and freedom from violence, to equal access to education and participation in government.
KEY WOMEN’S RIGHTS ISSUES
Despite States’ obligations under international law, women around the world continue to experience violations and abuses of their human rights. Some of the most harmful and prevalent abuses occur in the following areas: violence against women, reproductive health, Participation in society and government, marriage and family, labor and employment, and property rights. In addition, the international community has recognized the particular challenges faced by women who are human rights defenders.
Domestic violence may be emotional, psychological, physical, or sexual. Although this kind of abuse involves relationships between individuals and generally takes place in the private sphere, States still have a positive obligation to provide legal mechanisms to protect women from domestic violence, including the investigation and prosecution of those responsible. Human rights bodies have held that States have positive obligations to investigate and prosecute domestic violence.
Women Human Rights Defenders
Protection and promotion of all political and civil rights is especially important to the work of women human rights defenders. Acknowledging this special relationship, the United Nations General Assembly’s Social, Humanitarian and Cultural Committee has called upon States to protect women human rights defenders from abuses and guard against impunity for offenders.
WOMEN’S RIGHTS & OTHER AREAS OF INTERNATIONAL LAW
In addition to the protection offered by international and regional human rights conventions, specialized treaties from other areas of international law also address gender discrimination and women’s rights.
International Humanitarian Law: - The Geneva Conventions provide special protections for women who are civilians and members of the armed forces, and generally obligate States to treat such women “without any adverse distinction founded on sex. Other provisions require that women prisoners of war be given separate accommodations and conveniences. The fourth Geneva Convention also requires the protection of women from “rape, enforced prostitution, or any form of indecent assault. Additional Protocol I to the Geneva Conventions re-iterates this protection in Article 76, which places particular importance on the treatment of pregnant women and mothers of dependent infants. Additional Protocol II to the Geneva Conventions also prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.”In a similar vein, in 1974 the UN General Assembly adopted a declaration calling on all States to fulfill their obligations under the Geneva Conventions and to take appropriate measures to protect women and children during times of conflict.
International Criminal Law: - Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other forms of sexual violence qualify as crimes against humanity under Article 7 of Rome Statute of the International Criminal Court and as war crimes under Article 8 of the Rome Statute. As a result, individuals who commit these offenses as part of a widespread or large-scale practice may be investigated and prosecuted by the International Criminal Court subject to its jurisdictional limits.
International Labor & Employment Law :- Various International Labour Organization (ILO) conventions recognize the right of working women to equal treatment. Elimination of gender discrimination is specifically addressed in the areas of remuneration (ILO Convention No. 100), employment and occupation (ILO Convention No. 111), workers with families (ILO Convention No. 156), and standards of social security (ILO Convention No. 102). Additionally, the ILO has elaborated standards to help ensure that women receive adequate maternity leave with financial benefits and medical care (ILO Convention No. 183).
CEDAW :- The United Nations (UN) Convention on the Elimination of Discrimination against Women (CEDAW) is the most comprehensive treaty on the rights of women. It condemns any form of discrimination against women and reaffirms the importance of guaranteeing equal political, economic, social, cultural and civil rights to women and men. CEDAW provides that there should be equal political, economic, social, cultural and civil rights for women regardless of their marital status and requires States to enact national legislation banning discrimination (articles 1, 2 and 3). It permits States to take temporary special measures to accelerate the achievement of equality in practice between men and women (Article 4), and to take actions to modify social and cultural patterns that perpetuate discrimination (Article 5). States parties agree that contracts and other private instruments that restrict the legal capacity of women “shall be deemed null and void” (Article 15). The Convention also addresses the need for equal access to education (Article 10).
Two United Nations Human Rights Council’s “special procedures” specifically monitor women’s human rights worldwide. In 1994, the United Nations Commission on Human Rights (predecessor to the UN Human Rights Council) established a Special Rapporteur on Violence against Women to report on the causes and consequences of violence against women. In 2010, the UN Human Rights Council established an expert Working Group on the issue of discrimination against women in law and in practice, which is charged with studying and promoting dialogue and policy reform to eliminate laws that discriminate against women. Other UN human rights treaty bodies and special procedures may also monitor States’ progress in respecting and guaranteeing women’s rights to the extent that such issues fall within their mandates.
Furthermore, the courts and commissions of the regional human rights systems are each empowered to monitor conditions in Member States and to decide complaints concerning alleged violations of women’s human rights within the framework of the treaties each body interprets. Several intergovernmental bodies work with national governments and civil society to implement policies and practices that protect and advance women’s rights. The UN Economic and Social Council (ECOSOC) established the Commission on the Status of Women, a policymaking body composed of forty-five UN Member States. Each year, the Commission produces agreed conclusions on priority themes, which include concrete recommendations to be implemented by governments, intergovernmental bodies and all other relevant stakeholders. The Commission, through its Communication Procedure, also accepts complaints concerning alleged human rights violations, which it considers and uses to help “identify emerging trends and patterns of injustice.”
Two other UN bodies also work toward the achievement of gender equality: UN Women and the United Nations Population Fund. UN Women, the UN Entity for Gender Equality and the Empowerment of Women, was established in 2010 by the UN General Assembly to consolidate and strengthen the efforts of various UN agencies working to support inter-governmental bodies and UN Member States in creating and implementing policies to advance gender equality and women’s empowerment. The United Nations Population Fund (UNFPA) works to promote women’s rights and equality through its partnerships with governments, other agencies, and civil society. The UNFPA’s diverse efforts include support of national legislation, aid for victims of domestic abuse, and the protection of women’s rights during conflict.
Domestic Violation Act
In 2005, the government of India passed new legislation on domestic violence called the Protection of Women from Domestic Violence Act 2005. It is a civil law aimed at providing relief to millions of women including wives, mothers, daughters and sisters affected by violence in their homes. In this particular Act, unlike its predecessor 498A, the victim can directly file the case with the protection officer in charge of a particular district, who will in turn move it to the magistrate court, without the aid of an advocate. The service of an advocate is needed only during the later trials.
Through the Domestic Violence Act, affected women are entitled to:
Protection: The magistrate can pass orders to stop the offender from aiding or committing violence within and outside the home, communicating with the woman, taking away her assets, and/or intimidating her family and those assisting her against the violence.
Residence: The woman cannot be evicted from the shared household.
Monetary relief and maintenance: The woman is entitled to maintenance, including loss of earnings, medical expenses, and damage to property.
Compensation: She can claim damages for mental and physical injuries.
Custody: The court can grant her temporary custody of children. Interim order/ex parte order. The court can pass an interim order to prevent violence before the final order. In the absence of the other party to the dispute, an Ex Parte order can be passed.
Legal service: Women have the right to free legal services under the Legal Services Authorities Act, 1987.
What is the PWDV Act of 2005?
The Protection of Women from Domestic Violence Act 2005 includes actual or threatened abuse against women in their homes, including those of a physical, sexual, verbal, emotional or economic nature. This legislation is critical considering that more than two-thirds of married women between the ages of 15 and 49 have experienced some form of sexual or domestic violence, including being beaten, raped, or forced to provide sex.* Punishment for such acts includes a jail sentence of up to one year and a 20,000 rupee fine. The new law also provides a share of the husband’s earnings and property to the victim, including medical costs.
The woman or somebody on her behalf can file a Direct Information Report (DIR) with :
The Protection Officer (PO) who is appointed by the government. The PO registers the DIR, presents it before the Magistrate and ensures that the orders passed by the court are enforced.
A Service Provider – a voluntary organization registered with the state government, Service Providers assist in filing the DIR with the PO, provide her with legal aid, medical care, counseling or any other support.
The Police can file a criminal complaint under Section 498A of the IPC. On request the police will record a DIR under the Domestic Violence Act at the same time and forward the same to the magistrate.
The Magistrate – A woman can directly approach the Magistrate’s court to file a DIR under the Domestic Violence Act. If the woman already has a pending case, then she can fill in an application under the Domestic Violence Act and file it as an “Interim Application” in the pending proceedings.
What if the abuser continues to commit violence or violates the orders passed by the court?
Violation or not complying with the order of the court is a criminal offence under the Domestic Violence Act 2005. In such cases, the woman can complain to the magistrate or the police or the appointed Protection Officer. The abuser can be arrested following such a complaint, and necessary action would be taken against him.
7) Media and Human Rights by Mr. Peer Mohamed Journalist, Chennai
The role of media in safeguarding and upholding human rights is well defined, but there have been a lot of debates over the changing media scenario in the recent times and its consequences on the human rights coverage.
Since media are the eyes and ears of any democratic society, their existence becomes detrimental to the sustenance of all democratic societies. Unless a society knows what is happening to it and its members, the question of protecting or promoting rights does not emerge. Hence, it is in fulfilling this function that media justifies its existence. However, one cannot forget that for much of the press, the rights of the Dalits, Women, Minorities, Poor, and Workers in the unorganized sector increasingly remained outside the purview of human rights. Further, only the human rights violations by the state against the middle class became violations of human rights for media.
Without generalizing, one can note that media feel they are as accurate in covering human rights stories as they are in covering most other kinds of stories. The human rights organisations often agree that accuracy is not the problem. The problems begin to occur rather with the matter of consistency. Both sides (media and human rights) agree that coverage is not consistent.
As per American intellectual Noam Chomsky, the major media tend to be what is called liberal. Of course, liberal here implies highly supportive of state power, state violence and state crimes. Their major commitment is to the centres of power—state and private. “The task of intellectuals and the media is to ensure the public is quiet, obedient. That’s the liberal viewpoint. Unacceptable ideas could be suppressed voluntarily, without the use of force. He says the reasons are that the press is owned by wealthy men who have every reason not to want certain ideas to be expressed. In the more modern period, generally, the media are either big corporations or parts of mega corporations or closely linked to the government.
The huge public relations industry, for example, has its goal to control attitudes and beliefs. The 2014 general election was a landmark not just because NDA got majority in the Lok Sabha or that anti-incumbency reduced the Congress to its lowest tally ever. It was a landmark for the media as well: would it remain a cheerleader for the new dispensation in power as it had been during the election or would it point out flaws where it saw them?
Clearer than before was the corporate-political nexus to control the media. It is important to come out of the visionary discourse of media and critically look at its role and function in our present socio-political context. Participants proposed awareness-raising and training of media professionals on ethical codes, professionalism, as well as on human rights and the need to respect diversity.
NGOs should have person(s) tasked with dealing with the media and public relations work, who would be prepared to answer questions by non-state actors and the media. It could also be relevant to train civil society organisations and human rights defenders on how to deal with the media.
It is essential to promote ethical journalism and to have discussions on this issue.It was assessed that the public is not very literate in terms of information received from the media and that it is worth reflecting upon how to promote a critical view by the public with regard to what the media is conveying. We also note with concern the increasing number of individuals whose confession has been aired on state media prior to any indictment or judicial process. These actions run contrary to the fair trial guarantees enshrined in law and counter to rights and freedoms set out in the constitution
Media as promoter of human rights violations:-
Although it sounds paradoxical, it is true that contemporary media driven by numbers is increasingly becoming a cause for violations of human rights. Media is not only a witness but also a promoter of violence. Communally insensitive reporting in the name of truth has not only claimed a number of innocent human lives, but also created and perpetuated numerous stereotypes.
If one has a look at the instances of protest against violations of human rights in India, they have largely been against the violations of human rights by the state. Media needs to develop a critique of existing frameworks human rights, and develop a plural and more nuanced discourse of human rights in the public domain.
Media needs to communicate with the governments, NGOs, human rights activists and the public the critical discourse of human rights and the violations. May be a paradigm shift is required to look at media communication as community interaction rather than mass communication. Such a shift would then justify the sacred role that media has been called upon to play. If the media does not take up the role of enabling protection of human rights of the citizens, then it would become an accomplice to the violation of human rights. However, since media cannot be completely trusted, we need to strengthen advocacy groups, citizen groups and media watch groups .Due to various historical reasons our imagination of media has largely been dominated by print media. With print media increasingly losing its foothold in forming public opinion, there is a pressing need to look at recent developments in new media, especially the cyberspace, and mobile phone convergence and the consequent possibilities, to engage with discourses of human rights through these media. Media is increasingly getting concentrated in the hands of a few. While such a concentration will reduce media spaces for plural voices, they also make such voices look non-significant. With Media creates opinion of public at large, and we are experiencing and learning the difficulties of men and the community through the media.
Media’s role in shaping the polity and cultural aspects of life like influencing our consumption pattern and lifestyle was becoming larger. Free media was critical to the functioning of democracy. For human rights to become part of the civil culture in India, awareness needs to be increased. Citizens need to know about their rights and freedoms. It supports and nurtures a wider range of ideas than any time- or space-bound entity can. Yes, there is hatred, anger and rubbish floating about. Yes, the due diligence and rigour of good journalism can never be underestimated. But the digital space embraces that as well. It is important to look beyond the headlines and polemic produced by journalists to ascertain the facts.
Participants discussed the role of the media which has been instigating and engaging in hostile campaigns against human rights defenders. Participants tackled the difficult issue of balancing the principles of freedom of expression and the need to safeguard against hate speech. Diversity in the media is an important vector of ensuring freedom of expression. However, participants assessed that there were many signs of monopoly in this sphere .There has been a certain degree of self-censorship within the media, as they tend to follow the mainstream view within their political entity or community. This has had a negative influence on the protection of rights of internally displaced persons, refugees and minority communities. Participants assessed that human rights issues and campaigns were not sufficiently or adequately covered in the media.
Attacks and pressure on human rights defenders can sometimes come from the media and journalists. Cases of harassment campaigns, intended to undermine the image and credibility of human rights defenders - and even human rights activism in general.
Freedom of information and individual liberty had a tremendous impact on the people, which allowed them to have their perceptions and examine situations from their own point of view.
8) How to use RTI effectively by Adv. A. Mohamed Yusuff, Madurai
The Right to Information (RTI) Act, 2005, is crucial as it mandates timely response to a citizen’s request for government information, The Act aims at promoting transparency and accountability in the working of every public authority. The Act prescribes a simple procedure to obtain information. Though some public authorities have their own formats, there is no compulsion to stick to the prescribed format.
RTI stands for Right to Information. Right to Information is a part of fundamental rights under Article 19(1) of the Constitution. The Central Act was passed by the Indian Parliament on 12 May 2005 and received Presidential assent on 15 June 2005. It came into force on 12 October 2005. Article 19 (1) says that every citizen has freedom of speech and expression. India is a democracy. People are the masters. Therefore, the masters have a right to know how the governments, meant to serve them, are functioning. Further, every citizen pays taxes. Even a beggar on the street pays tax (in the form of sales tax, excise duty etc.) when he buys a piece of soap from the market. The citizens therefore, have a right to know how their money was being spent.
The best way of using the RTI act is the following:-
· To address deficiency/delay in service delivery.
· To expose abuse of power/authority, arbitrary decision making etc.
· To seek information that can use for advocacy and other purposes.
The applicant needs to come up with answers for what he is going to do with the information sought and what is the ultimate objective behind seeking this information. Whatever be the kind of information, there has to be a predefined purpose for the information sought. The applicant can use this authentic information in furthering a cause and as evidence in courts of law etc. One could lodge a complaint with the State/Central Vigilance commission with all the information got. One could also approach the ACB/CBI or even Lokayuktha/Lokpal. The complainant can later follow up with these agencies as to what happened to these complaints and the status of the investigation. The applicant has to ask the right questions to get the right data/information. Make sure you read your application multiple times to check if you are asking the right questions. Again, it might help consulting a subject matter expert before filing an application.
Filing RTI, Steps:-
Step 1: Identify the department you want information from. Some subjects fall under the purview of State governments or local authority such as the municipal administration/panchayat, while others are handled by the Central government.
Step 2: On a sheet of white paper, write out the application by hand, or type it, in English, Hindi or the official language of the area. You can also ask the public information officer to put it in writing.
Step 3: Address the application to the State/Central Public Information Officer. Write the name of the office from which you seek information, and the complete, correct address. Clearly mention ‘Seeking information under the RTI Act, 2005’ in your subject line.
Step 4: State your request in the form of specific, detailed questions, and mention the period/year your request falls into. Ask for documents or extracts of documents, if required. To obtain documents, the applicant has to make a payment of Rs. 2 per page.
Step 5: Pay Rs. 10 to file the plea. This can be done in the form of postal order, money order, bank draft or a court fee stamp. The stamp should be affixed to the application. Applicants below the poverty line (BPL) need not make the payment but have to attach a copy of the BPL certificate along with the application.
Step 6: Provide your full name and address, contact details, email address and sign the application clearly. Put in the date and the name of your town.
Step 7: Take a photocopy of the application and keep one with you for future reference. Send your application by post or hand it in personally to the department concerned. Don’t forget to get an acknowledgement.
Step 8: The law mandates that information be provided in 30 days. If this does not happen, you can file an appeal. The first appeal should be addressed to ‘The Appellate Authority’ with the name of the department and the address. The appellate authority is mandated to revert in 30 days from the date of receipt of the appeal. If the Appellate authority fails to reply, further appeals lay with the Information Commission, the Chief Information Commissioner, State/Central Information Commission
RTI in Detail:-
The RTI Act extends to the whole of India except the State of Jammu and Kashmir. All bodies, which are constituted under the Constitution or under any law or under any Government notification or all bodies, including NGOs, which are owned, controlled or substantially financed by the Government are covered. All private bodies, which are owned, controlled or substantially financed by the Government, are directly covered. Others are indirectly covered. That is, if a government department can access information from any private body under any other Act, the same can be accessed by the citizen under the RTI Act through that government department.
A PIO can refuse information on 11 subjects that are listed in section 8 of the RTI Act. These include information received in confidence from foreign governments, information prejudicial to security, strategic, scientific or economic interests of the country, breach of privilege of legislatures, etc. There is a list of 18 agencies given in second schedule of the Act to which RTI Act does not apply. However, they also have to give information if it relates to matters pertaining to allegations of corruption or human rights violations. Under Section 10 of the RTI Act, access may be provided to that part of the record which does not contain information which is exempt from disclosure under this Act.
File notings are an integral part of the government file and are subject to disclosure under the Act. This has been clarified by the Central Information Commission in one of its orders on 31st Jan 2006. The full Act in Hindi and English is available on the website of Department of Personnel and Training www.persmin.nic.in and on the RTI website http://righttoinformation.gov.in/rtiact.htm.
One or more existing officers in every Government Department have been designated as Public Information Officers (PIO). These PIOs act like nodal officers. You have to file your applications with them. They are responsible for collecting information sought by you from various wings of that Department and providing that information to you. In addition, several officers have been appointed as Assistant Public Information Officers (APIOs). Their job is only to accept applications from the public and forward it to the right PIO.
Where do I submit application?
You can do that with the PIO or with APIO. In the case of all Central Government Departments, 629 post offices have been designated as APIOs. This means that you can go to any of these post offices and submit your fee and application at the RTI counter in these post offices. They will issue you a receipt and acknowledgement and it is the responsibility of that post office to deliver it to the right PIO. The list of these post offices is given at http://www.indiapost.gov.in/rtimanual16a.html
There is an application fee for filing RTI. For Central Government Departments, it is Rs 10. However, different states have prescribed different fee. For getting information, you have to pay Rs 2 per page of information provided for Central Government Departments. It is different for different states. Similarly, there is a fee for inspection of documents. There is no fee for first hour of inspection, but after that, you have to pay Rs. 5 for every subsequent hour or fraction thereof. This is according to Central Rules. For each state, see respective state rules. You can deposit fee in cash or through a DD or bankers cheque or postal order drawn in favor of that public authority. In some states, you can buy court fee stamps and affix it on your application. This would be treated as if you have deposited the fee. You can then deposit your application either by post or by hand.
What should I do if the PIO or the concerned Department does not accept my application?
You can send it by post. You should also make a formal complaint to the respective Information Commission under section 18. The Information Commissioner has the power to impose a penalty of Rs 25,000/- on the concerned officer who refused to accept your application.
Every state has a different mode of payment for application fee. Generally, you can deposit your application fee via:
1. In person by paying cash [remember to take your receipt]
2. By Post through:
• Demand Draft
• Indian Postal Order
• Money orders (only in some states)
• Affixing Court fee Stamp (only in some states)
• Banker’s cheque
• Some state governments have prescribed some head of account. You are required to deposit fee in that account. For that, you can either go to any branch of SBI and despoist cash in that account and attach deposit receipt with your RTI application. Or you can also send a postal order or a DD drawn in favour of that account alongwith your RTI application.
How can I apply for information?
Draft your application using the form below and submit it by post or in person to the Public Information Officer (PIO). [Remember to keep a copy of the application for your personal reference]. For Central Government Departments, we can file RTI online.
Is there an application form for seeking information?
For Central Government Departments, there is no specific form and you can use the one provided below. You should apply on a plain sheet of paper like an ordinary application. However, many states and some ministries and departments have prescribed formats. You should apply in these formats.
Please read rules of respective states to know. For all other situations, use the following basic format:
Form A section 6(1) and 7(1) of the RTI Act, 2005
1. Full Name of the Applicant
2. Full Address
3. Information requested (Details of the document/Inspection/Samples required if any)
4. Designation and Address of the Public Information Officer from whom the Information is required
Signature of the applicant
Can I submit my application only with the PIO?
No, in case the PIO is not available you can submit your application with the Assistant PIO or any other officer designated to accept the RTI applications.
Where can I locate the concerned PIO?
A list of PIOs/APIOs and Appellate Authorities for all Central and State departments/Ministries is available online at www.rti.gov.in
What if I cannot locate my PIO or APIO?
In case you have problems locating your PIO/APIO you can address your RTI application to the PIO C/o Head of Department and send it to the concerned public authority with the requisite application fee. The Head of Department will have to forward your application to the concerned PIO.
Do I have to personally go to deposit my application?
Depending on your state rules for mode of payment you can deposit your application for information from the concerned departments of your state government via post by attaching a DD, Money Order, Postal Order or affixing Court fee Stamp.For all Central government departments the Department of Posts has designated 629 postal offices at the national level. The designated officers in these post offices work as Assistant PIOs and collect the application to forward to the concerned PIO. A list is available on http://www.indiapost.gov.in/
Is there a time limit to receiving information?
Yes. If you file your application with the PIO, you must receive information within 30 days. In case you have filed your application with Assistant PIO then information has to be made available within 35 days. In case the matter to which the information pertains affects the life and liberty of an individual, information has to be made available in 48 hours.
Do I have to give reasons why I want a particular information?
Absolutely not! You are not required to give any reasons or additional information other than your contact details (i.e., Name, Address, and Phone No.). Sec 6(2) clearly says that no information other than contact details of the applicant shall be asked.
Can the PIO refuse to accept my RTI application?
No. The PIO cannot refuse to accept your application for information under any circumstances. Even if the information does not pertain to his/her department/jurisdiction, s/he has to accept it. If the application does not pertain to that PIO, he would have to transfer it to the right PIO within 5 days under sec 6(2).
Why is it that RTI works when no other law has worked?
This law is already working. This is because for the first time in the history of independent India, there is a law which casts a direct accountability on the officer for non-performance. If concerned officer does not provide information in time, a penalty of Rs 250 per day of delay can be imposed by the Information Commissioner. If the information provided is false, a penalty of a maximum of Rs 25,000/- can be imposed. A penalty can also be imposed for providing incomplete or for rejecting your application for malafide reasons. This fine is deducted from the officer’s personal salary.
Has any penalty been imposed so far?
Yes, some officers have been penalized by the Central as well as State Information Commissioners.
Does the Applicant get the amount fined to the PIO?
No. The amount fined is deposited in the government treasury. However, under sec 19, the applicant can seek compensation.
What should I do if I do not receive satisfactory information?
If you do not receive information or are dissatisfied with the information received, you can file an appeal with the first appellate authority under section 19 (1) of the right to Information Act.
Who is a First Appellate authority?
Every public authority must designate a First Appellate Authority. This officer designated is the officer senior in rank to your PIO.
Is there a form for the first appeal?
No, there is no form for filing a first appeal (but some state governments have prescribed a form).Draft your appeal application on a blank sheet of paper addressed to the First Appellate Authority. Remember to attach a copy of your original application and a copy of the reply in whatever form (if received) from the PIO.
Do I have to pay a fee for the first appeal?
No. You are not required to pay any fee for the first appeal. However, some state governments have prescribed a fee.
In how many days can I file my first appeal?
You can file your first appeal within 30 days of receipt of information or within 60 days of filing RTI application (if no information received).
What if I do not receive the information after the first appeal process?
If you do not receive information even after the first appeal then you can take the matter forward to the second appeal stage.
What is a second appeal?
A second appeal is the last option under the RTI Act to get the information requested. You can file second appeal with the Information Commission. For appeals against Central Government Departments, you have Central Information Commission (CIC). For every state Government, there is a State Information Commission.
Is there a form for the second appeal?
No there is no form for filing a second appeal (but some state governments have prescribed a form for second appeal too). Draft your appeal application on a normal sheet of paper addressed to the Central or State Information Commission. Carefully read the appeal rules before drafting your second appeal. Your second appeal application can be rejected if it does not comply with the appeal rules.
Do I have to pay a fee for the second appeal?
No. You are not required to pay any fee for the second appeal. However, some states have prescribed a fee for that.
In how many days can I file my second appeal?
You can file your second appeal within 90 days of disposal of first appeal or within 90 days of the date, by when first appeal was to be decided.
What should I do after getting information?
There cannot be one answer for that. It depends on why you asked for that information and what type of information is it. Often a lot of things start falling in place just by asking for information.
For instance, you would get your passport or a ration card just by your asking for the status of your application. In many cases, roads got repaired as soon as the money spent on its repairs in the last few repairs was asked. So, seeking information and questioning the government is an important step, which in itself is complete in many cases.
But suppose you expose some corruption or wrongdoing using RTI. Then, you can complain to vigilance agencies, CBI or even file an FIR. But it is seen that the Government does not take any action against the guilty even after repeated complaints. Though one can keep up the pressure on vigilance agencies by seeking to know the status of complaints under RTI, however, the wrongdoings can also be exposed through media. However, experience has not been very encouraging at getting guilty punished. But one thing is certain. Seeking information like this and exposing wrongdoings does improve the future. The officials get a clear message that the people of that area have become alert and any wrongdoings in future would not remain hidden as they were in the past. So, their risks of getting caught increase.
Sec 6(2) of RTI Act clearly says an applicant cannot be questioned why he/she were asking for any information. In any case, RTI flows from the fact that people pay taxes, This money belongs to them and therefore, they have a right to know how their money were being spent and how they were being governed. So, people have a right to know everything about every sphere of governance. They may or may not be directly related to the matter. So, even a person living in Delhi can ask for any information from say, Tamil Nadu.
RTI applications without any purpose will not help, because they are only going to fill our shelf space at home and do nothing. This habit of thinking through before filing the application will greatly enhance the utility of the information being sought, thus making the act itself more powerful. RTI has the power to alter power equations, address gaps in service delivery, expose the corrupt etc, but all this is possible when we learn to use it the right way.
9) Human Rights Laws in India and National & International Human Rights Organisations - How to Approach them by Adv.Karunanithi Human Rights Activist, Madurai
Historical Development of Human Rights
Human rights are the rights a person has simply because he or she is a human being. Human rights are held by all persons equally, universally, and forever. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Human right is a concept that has been constantly evolving throughout human history. They have been intricately tied to the laws, customs and religions throughout the ages.
However the efficacy of the mechanisms in place today has been questioned in the light of blatant human rights violations and disregard for basic human dignity in nearly all countries in one or more forms. In many cases, those who are to blame cannot be brought to book because of political considerations, power equations etc. When such violations are allowed to go unchecked, they often increase in frequency and intensity usually because perpetrators feel that they enjoy immunity from punishment.
Human rights laws in India
Following the lead given by the United Nations mandated Universal Declaration of Human Rights, 1948, various countries in the world have strived to make elaborate provisions for the enjoyment of the human rights by their people through the constitution and other statutory enactments. The body of human rights laws in the country could be conveniently categorized into two segments: constitutional and statutory laws. The constitutional laws pertaining to the human rights are spelt out in varying measures in the chapters and provisions dealing with the preamble to the constitution, the fundamental rights, and the directive principles of state policy. The statutory laws on human rights are provided for in the form of various enactments to ensure the social and economic justice to the marginalized sections of the society like women, children, disabled people, weaker sections of society etc. Important among such enactments include the Protection of Human Rights Act, 1993, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 etc. Apart from these, the corpus of human rights laws in India also consist of the numerous international covenants, conventions, treaties signed, ratified and acceded to by the government of India. Such international legal documents not only include the general documents like the Universal Declaration of Human Rights but also various target-specific legal frameworks aimed at protecting the human rights of the specified groups of people like women, children, disabled, minorities, refugees etc.
Human rights laws in the Constitution
The Constitution of India embodies the cherished ideals and aspirations of the founding fathers of modern India whose most concise articulation is found in the Preamble to the constitution. Indeed, each and every word of the preamble connotes one of the loftiest precepts which underline the nature and substance of the polity and its duties towards the people of the country. Hence, the first part of the Preamble viz., ‘we the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic’ enunciates the principal characteristics of the nature of the Indian polity. Similarly, the second part of it i.e., ‘to secure to all citizens: justice, social, economic and political; liberty of thoughts, expression, belief, faith and worship: equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and the integrity of the nation professes the basic ingredients which go to constitute the essence of the body of human rights of the Indian people. Combined together the two parts, the Preamble, in a sense, represents the soul of the Constitution and full and substantive retention of the ideals enunciated in it becomes the first condition for the Constitution of India to remain in force with the visions cherished by the national leaders of the country.
Providing some sort of detailed description and ordaining justiciability to the ideals enumerated in the Preamble, the chapter III of the Constitution contains the provisions regarding the fundamental rights of the people. Categorized into six distinct groups of rights, the right to equality (Articles 14-18), right to freedom (Articles 19-22), right against exploitation (Articles 23-24), right to freedom of religion (Articles 25-28), educational and cultural rights (Articles 29-30) and right to constitutional remedies (Article 32) probably cover the widest possible spectrum of the civil and political fundamental rights provided for in the constitution of any country. Acting as the bulwark against the infringement of individual rights by the individuals or the state, these fundamental rights happen to be the core of the body of constitutional human rights laws in the country.
In order to assign a seemingly balanced perspective to the body of human rights in India, the constitution makers made elaborate provisions for certain positive claims of the people on the resources and priorities of the state through the provision of the directive principles of state policy. This appears to be a plausible realization on the part of the fathers of the constitution as the essentially negative provisions in the form of the fundamental rights would not have served the purpose of securing a dignified and contended life for the people without adequate provisions for the social and economic rights for them. Moreover, in a country like India marked by social hierarchies and discrimination along with the economic inequalities and deprivation of a majority of people, the social and economic directives contained in Part IV of the Constitution may turn out to be the bedrock of the body of human rights in the country. Indeed, the value of the directive principles becomes fundamental in any conceptualization of the body of human rights laws in India owing to their utility in providing for the basic minimum needs of the people in terms of adequate means of livelihood (Article 39(a)), protection of the health and strength of the workers (Article 39(d)), free and compulsory education for the children (Article 45), enhancing the level of nutrition, the standard of living and improving the public health (Article 47) etc. It goes without saying that the common masses would be able have some measure of the realization of the fundamental rights only in case their basic livelihood requirements are fulfilled beforehand. Hence, in final analysis it stands out that the framework of human rights as given in the Constitution of India demonstrates the best possible amalgamation of both negative as well as the positive rights of the people whose holistic and integrated articulation appears in the Preamble to the Constitution.
Statutory human rights laws
Statutory laws refer to the laws enacted by the legislature. In India, despite the existence of the elaborate provisions in the Constitution to secure for the people the basic human rights, the need was felt by the government from time to time to enact certain laws to ensure not only the socio-economic justice but also to address the particular issues in the enjoyment of the human rights by the marginalized, weaker and vulnerable sections of the society. Such body of laws, called the statutory human rights laws, aims at making specific protective and promotive provisions for the human rights of, sometimes general but normally a particular group of people. Hence, the most important statutory law to endow the general masses with the basic human rights happens to be the Protection of the Human Rights Act, 1993 under which the provision for the constitution of a National Human Rights Commission has also been made. The other statutory laws are mainly particularistic in nature as their application is confined to the target group for which the law has been enacted.
Amongst the specific statutory human rights laws, one set of laws deal with the stipulation, protection and promotion of the human rights of particular groups of people while the other set of laws provide for the establishment of a particular statutory body to take care of issues arising in the protection and promotion of the human rights of the specific groups. The best example of the first set of laws is the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which seeks to define the human rights of the disabled persons in order to provide equal opportunities to them and ensure their full participation in the various activities of life. The second set of statutory laws consist of the numerous enactments like The National Commission for Minorities, 1986, The National Commission for Women Act, 1990, The National Commission for the Backward Classes Act, 1993 and The National Commission for the Safai Karmcharis Act, 1995 with the specific purpose of setting up national commission to ensure the enjoyment of human rights by these groups of people.
Human rights laws in international covenants
It is interesting to note that the initial pursuits for the evolution of the paradigm of human rights and its universalization in the world were made at the international level through the mechanism of the United Nations. Hence, most of the countries who owe their allegiance to the UN, more or less, also sign and ratify the international covenants and treaties originating under the auspices of the UN. In this regard, the track record of India has been found to be excellent as India has not only signed and ratified most, if not all, of the UN mandated covenants and treaties on human rights but also pioneered several such covenants and treaties as active participants in the formulation and drafting of these documents. The signing and ratification of the international covenants and treaties have made it incumbent upon the government of India to modify its laws and institutions in consonance with the requirements of the international documents for the protection and promotion of human rights at both domestic and international levels.
The landmark international document which India signed happens to be the Universal Declaration of Human Rights, 1948 which heralded the era of the universalization of the hitherto seemingly parochial notion of human rights. Afterwards, the country has become party to several conventions encompassing the ambit of a diverse set of subjects the important of which included: Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of others (1953), Convention on the Nationality of the Married Women (1957), Convention on the Prevention and Punishment on the Crime of Genocide (1959), Convention on the Political Rights of the Women (1961), The International Convention on Elimination of all Forms of Racial Discrimination (!968), The Convention on the Rights of the Child, Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1971), International Covenant on Suppression and Punishment of the Crime of Apartheid (1977), The International Covenant on Economic, Social and Cultural Rights (1979), The International Covenant on the Civil and Political Rights (1979), The Convention on the Elimination of all Forms of Discrimination Against Women (1981) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1997) etc.
The significance of the comprehensive framework of human rights laws in India, both domestic as well as international, lies in setting a standard benchmark for both the government and the common people to enjoy and respect the enjoyment of the fundamental human rights of other sections of society.
Enforcement of Human Rights Laws in India
The responsibility for the enforcement of the human rights laws in India lies on the shoulders of number of executive and judicial authorities, including the Supreme Court of India. Indeed, the whole gamut of the human rights laws need to be put into practice both by the individuals on the one hand and the governmental agencies on the other. However, the department which has been found to be violating the human rights of the people more often than not happens to the Police department in various states of the country. Hence, in the routine politico-administrative set up of the country, the judiciary has been assigned the task of hearing the complaints of the violation of the human rights and providing relief to the people through judicial pronouncements. Thus, while at the apex of the administrative structure an exclusive Human Rights Cell has been set up in the Union Ministry of Home Affairs in 1993 to coordinate and implement the policies and programmes on human rights, the Supreme Court stands at the apex of the judicial system of the country for protecting the human rights of the people from violations on the part of both the individuals as well as the state agencies.
The National Human Rights Commission
However, with the growing inability of the ordinary politico-administrative set up to protect and promote the cause of human rights along with the persuasions of the United Nations Covenants for the setting up of a national level body dedicated to the cause of protection and promotion of human rights, the government decided to set up the National Human Rights Commission to act as the nodal agency for the cause of human rights in the country. This Commission is designed to deal with the cases of the violations of human rights of the people irrespective of any discrimination in contrast to the role of the other statutory commissions like the National Commission for Women, National Minorities Commission etc. which are entrusted with the responsibility dealing with the cases of the people falling within the rubric of the catchments of the Commissions as such. Thus, the setting up of the NHRC in 1993 heralded a new era in the field of the human rights governance as by providing a focused attention to the cause of protection and promotion of human rights in the country the Commission would set a new benchmark in enjoyment of the human rights by the people.
Section 3. Constitution of a National Human Rights Commission
(1) The Central Government shall constitute a body to be known as the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.
(2) The Commission shall consist of:
(a) Chairperson who has been a Chief Justice of the Supreme Court;
(b) One Member who is or has been, a Judge of the Supreme Court;
(c) One Member who is, or has been, the Chief Justice of a High Court;
(d) Two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.
(3) The Chairperson of the National Commission for Minorities, [the National Commission for the Scheduled Castes, the National Commission for the Scheduled Tribes]and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of section 12.
(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission [except judicial functions and the power to make regulations under section 40 B], as may be delegated to him by the Commission or the Chairperson as the case may be.
(5) The headquarters of the Commission shall be at Delhi and the Commission may, with the previous approval of the Central Government, establish offices at other places in India.
Human Rights Commission :- Case Studies
1) Case Study - Baaluthai, Tamil Nadu Electricity Board Worker
Madurai, Dec 12 (PTI) Madras High Court today confirmed the order of Tamil Nadu Human Rights Commission directing a woman Sub Inspector to pay a compensation of Rs 15,000 to an employee of the Tamil Nadu Electricity Board for attacking her after illegally detaining her for four days. Justices V Ramasubramanian and N Kirubakaran said there was nothing to interfere with the order of the Human Rights Commission and directed the government to pay the compensation and deduct it from the salary of the Sub Inspector Shobana of Tallakulam Police Station. The Employee Baaluthai, working as meter reader, was arrested in connection with the theft of a baby at the Government Rajaji Hospital here on April 27, 2003. She was detained for four days at the police station and brutally attacked by Shobana. Following a complaint from Baaluthai, the Human Rights Commission directed the Government to pay Rs 15,0000 as compensation for illegally detaining and attacking her as per the guidelines of the Supreme Court.It also directed the government to deduct the compensation amount from Shobanas salary on June 3, 2006. Shobanas appeal against the Human Right Commissions direction was dismissed by the division bench.
Public Interest Litigation (PIL)
In Indian law, public interest litigation means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. The person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation. Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public-spirited individual.
Now, the court permits public interest litigation at the instance of public spirited citizens for the enforcement of constitutional by filing a petition:
1. in Supreme Court under Art.32 of the Constitution;
2. in High Court under Art.226 of the Constitution; and
3. in the Court of Magistrate under Sec.133, Cr. P.C.
Merits of PIL:
1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive legal remedy because there is only a nominal fixed court fee involved in this.
2. Further, through the so-called PIL, the litigants can focus attention on and achieve results pertaining to larger public issues, especially in the fields of human rights, consumer welfare and environment.
1) In 1979, Supreme Court advocate Kapila Hingorani drew the Court’s attention to a series of articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails.
2) In 1980, two professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ petition in the Supreme Court. The exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the Supreme Court by a letter. The slave-like condition of bonded labourers in quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed.
Over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers, interlinking rivers etc.
Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use. Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged. But it has now been diluted to interfere with the power of the government to take decisions on a range of policy matters.
Human Rights Council: An intergovernmental body with membership encompassing forty-seven states, the Human Rights Council has the task of promoting and protecting human rights internationally. Its mechanisms to forward these ends include a Universal Periodic Review which assesses situations in all 192 UN Member States, an Advisory Committee which provides expertise on human rights issues, and a Complaints Procedure for individuals and organizations to bring human rights violations to the attention of the Council.
United Nations Educational, Scientific and Cultural Organization (UNESCO): UNESCO’s goal is to build peace in the minds of men. Its work in the field of human rights aims to strengthen awareness and acts as a catalyst for regional, national and international action in human rights. www.unesco.org
Office of the United Nations High Commissioner for Refugees: This office directs and coordinates international action to protect refugees and resolve refugee problems worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. It strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another state, with the option to return home voluntarily, integrate locally or to resettle in a third country. www.unhcr.org
Office of Democratic Institutions and Human Rights of the Organization for Security and Co-Operation in Europe (OSCE):
The Office for Democratic Institutions and Human Rights of the OSCE, comprised of fifty-six participating states from Europe, Central Asia and North America, is engaged in human rights activities focusing on freedom of movement and religion and preventing torture and trafficking in persons.
International Committee of the Red Cross Website: www.icrc.org Focus area: The official mission statement says that: “The International Committee of the Red Cross (ICRC) is an impartial, neutral, and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and internal violence and to provide them with assistance.” It also directs and coordinates international relief and works to promote and strengthen humanitarian law and universal humanitarian principles.
International Federation for Human Rights Website: www.fidh.org Focus area: Protect human rights defenders, ensure effective human rights, and justice for all, globalisation with due respect for human rights.
Norwegian Refugee Council Website: www.nrc.no Focus area: The Norwegian Refugee Council (NRC, Norwegian: Flyktninghjelpen) is a humanitarian, non-governmental organisation which promotes and protects the rights of people affected by displacement. This includes refugees and internally displaced persons who are forced to flee their homes as a result of conflict, human rights violations and acute violence, as well as climate change and natural disasters.
Refugees International Website: www.refugeesinternational.org/ Focus area: Advocating for lifesaving assistance and protection for displaced people and promotes solutions to displacement crises. Media attention,advocating,research through missions to locations of displacement
Amnesty International Website: www.amnesty.org Focus area: The objective of the organisation is “to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated
Global Rights Website: www.globalrights.org Focus area: Promote and protect the rights of marginalized populations through capacity building.
Protection International Website: http://www.protectioninternational.org Focus area: Protection International (PI) is an international non-profit organisation dedicated to the protection of human rights defenders (HRDs). Its stated mission is to enhance the security and the protection of “threatened civil society actors with non-violent means, especially those who fight for their legitimate rights and for the rights of others as they are guaranteed by the international humanitarian law and the human rights conventions”
10) How to be a Firm and Steadfast Defender of Human Rights Adv. K.P. Mohamed Sheriff, Vice-Chairperson, NCHRO (Translation by Adv. Alaudeen)
A Human Rights Defender (HRD) was formalised as a concept at the international level by the 1998 UN Declaration on Human Rights Defenders, which guarantees every individual’s right to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels. In practice HRDs extend from individuals such as lawyers and social workers, to organisations that work on issues relating to human rights and even to instruments of the state. In fact the chief Human Rights Defenders in society, at least in theory, are the police, prison service and judiciary, as they are mandated by the Constitution to protect and promote human rights however they are often involved in abuses.
Who is a defender?
“Human rights defender” is a term used to describe people who, individually or with others, act to promote or protect human rights. To be a human rights defender, a person can act to address any human right (or rights) on behalf of individuals or groups. Human rights defenders seek the promotion and protection of civil and political rights as well as the promotion, protection and realization of economic, social and cultural rights. Human rights defenders address any human rights concerns, which can be as varied as, for example, summary executions, torture, arbitrary arrest and detention, discrimination, employment issues, forced evictions, access to health care, and toxic waste and its impact on the environment. The key message for governments is that HRDs are legitimate actors, working in the interests of the state to promote and protect fundamental freedoms that all citizens should be entitled to. The state should recognise this and create an enabling environment for their work, which includes protection where required and facilitation where it is mandated to.
Persecution and Harassment:- Use of legal actions against human rights defenders, including criminal or administrative investigations or actions that are pursued to harass and discredit them increases. The legal apparatus is being used to harm or suppress those who pursue, among other things, the work of documenting human rights situations, providing judicial defense for the criminally accused, representing victims before the courts, and accompanying communities in high-risk situations. In July, the CBI registered a case against human rights activists Teesta Setalvad and Javed Anand for allegedly violating provisions of the FCRA. Persecution and harassment of activists through successive judicial proceedings that month later are dismissed due to the failure to find the persons tried liable. Notwithstanding such dismissals, new investigations -- mostly in cases with different evidence but similar accusations -- are opened, and, as a result, new detentions or judicial restrictions are ordered. Kanhaiya Kumar and other Jawaharlal University Students, Students and Professors arrested in Hyderabad Central University are example. Increasing restrictions imposed by States through legal means to curtail freedom of association and the growing use by States of the legal system to harass human rights defenders and to hinder their work are widespread.
Arbitrary administrative and financial controls imposed on the organizations: - New legislation, policies, or practices that restrict or limit the work of organizations through abusive administrative and fiscal measures are increasing. Recently the government took a series of actions against Greenpeace India, including preventing one of its campaigners from travelling to the UK in January, ordering the organization’s bank accounts to be frozen in April and cancelling its FCRA registration in September. High Courts ruled that some of these steps were illegal. The Ministry of Home Affairs cancelled the FCRA registration of thousands of NGOs for violating provisions of the law. In April, the Ministry ordered that it would have to approve foreign funds from certain identified donor organizations.
Resolutions:- Several Bar Association all over India, whether High Court Bar Associations or District Court Bar Associations have passed resolutions that they will not defend a particular person or persons in a particular criminal case. Sometimes there are clashes between policemen and lawyers, and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in court. Similarly, sometimes the Bar Association passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case.
In 2008, Adv.Noor Mohammad went to Dhar district in 2008 to represent a few alleged prisoners. "The bar association there had passed a resolution saying they would neither allow any lawyer from their bar to represent these suspects nor let anybody come from outside." He was at the entrance of the court, Mohammad says, when a group of Sangh Parivar activists started beating him. "He somehow ran inside the court and told the magistrate about the attack. He did not say anything. By then, lawyers inside the courtroom started kicking and pushing him. The magistrate did ask them to stop. But they didn't and the magistrate sahib didn't take any action." It's not just the system that has turned their back on them, even the legal defence of a suspect is seen as a betrayal of the nation — with lawyers facing hostility and attacks on the streets, in police stations and inside courtrooms. Three months later, Mohammad says, he went to Dhar again to pursue the bail application of his clients because the prosecution had not filed government sanction within the stipulated time. "The prosecution submitted the sanction as soon as they saw me and our bail plea was rejected. As I was leaving, a large group of Sangh activists beat me up. They hit me on my head and I fell unconscious... At the hospital, the police offered to take me home to Ujjain under their protection.
As per Supreme Court :- "Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics. Article 22(1) of the Constitution which says "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for which arrest has been made nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice"."It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him. Hence, it said any attempt by the bar associations to pass resolutions asking lawyers not to appear for certain accused was illegal and unconstitutional. "
Shahid Azmi, the criminal lawyer was shot dead in his chamber and his life has been made into a well-acclaimed film Shahid, who was known for defending those wrongly accused in cases, had developed an incredible reputation of delivering acquittals. After spending five years in jail, he was convicted under the TADA Act but acquitted by the Supreme Court. After pursuing law, Azmi began taking up cases and was very passionate about justice, and used the law courts to seek redress of injustice of any kind.
Who killed Shahid Azmi? While clear clues are still absent, some in the legal fraternity and inner circle believe he was bumped off. Pegging his argument on the ‘motive’ behind the crime, senior Supreme Court lawyer Prashant Bhushan alleged that the only people who could have had a motive in getting rid of Azmi were the police. “Shahid is the only lawyer who had the maximum cases showing that the police were fabricating evidence,” as per Bhushan.
For his family, however, there seems to be no sign of justice. His death sent a shock wave among the legal circles of Mumbai, while rocking the hopes of those languishing in jail with unproven terror charges.
Vote of Thanks
Adv. Abdul Khader, Madurai proposed a vote of thanks.
Activists seemed to resonate with the information and methodologies presented, offering comments to the presenters during and after the two day workshop. Assignments were given for the participants. This workshop provided the first step for many of the activists to move beyond their limitations and begin actively involving in rights issues. As next steps, the NCHRO will follow up and continue to work with the activists to ensure that knowledge gaps and concerns will be addressed; field activities, assignment fulfillment etc will be evaluated.