New Delhi: Six weeks after the Delhi government designated one court in each district as a “Human Rights Court”, there is little information available about their functioning and even lawyers who frequently take up cases pertaining to human rights violations are unaware about their status.
The government notified the courts in a notification issued on November 24, 2020. The Department of Law, Justice and Legislative Affairs said it was using powers conferred by Section 30 of the Protection of Human Rights Act, 1993, to designate the court of additional sessions judge-02 in each district as a “Human Rights Court”.
The order, issued in the name of the Lieutenant Governor, was signed by the principal secretary (law, justice and legislative affairs), Sanjay Kumar Aggarwal.
Delhi government yet to spell out details
Advocates, who regularly take up cases of human rights violations, have welcomed the setting up of these courts. Senior advocate Vrinda Grover said, “It is an important development that they are there – a lot would, however, now depend on what kind of cases would now be accepted as human rights violations and how those cases are then determined and adjudicated by these courts.”
She said lawyers will need to have a first-hand experience of the way the courts will function to speak about them. She said, “In terms of access to justice, particularly to matters relating to human rights violations, it is definitely a step forward.”
However, with the government not publicising the courts or spelling out details on how they would function, many advocates are still in the dark about them, especially since many are only holding virtual hearings due to the COVID-19 situation.
Another senior advocate, who takes up a lot of human rights cases, said she was not aware of these courts and did not know what they were about.
How would cases be designated to new designated courts?
It is still unclear how the newly designated courts would function, and who can approach them.
The issue is who will take cognizance of the offences, term them human rights violations and commit them to these ‘Human Rights Courts’. Under the Criminal Procedure Code, a sessions judge cannot take cognizance of the offence on his or her own and can only try the cases committed to him by the magistrate under Section 193 of the CrPC.
The Supreme Court had in 2019 stressed on the need to establish such courts in every district. Pulling up the states for not setting up designated human rights courts despite clear provisions in the Protection of Human Rights Act, 1993, a bench of Justices S.A. Bobde and Deepak Gupta had stated:
“It is also clear that the setting up of these designated Courts, does not involve any additional infrastructure or additional recruitment of Judges or the staff. We see no reason why afore-mentioned judgment of this Court has not been complied with.”
The court observed this in the case of Punjab State Human Rights Commission vs Jatt Ram.
Section 30 of the Act reads:
“For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences.”
The counsel for the National Human Rights Commission submitted that barring a few states, there was no compliance of these orders.
SC asked states in January 2019 to take ‘appropriate actions’
In its January 2019 order, the Supreme Court had further clarified:
“There is, in our opinion, no reason why the State Governments should not seriously consider the question of specifying Human Rights Court to try offences arising out of violation of human rights. There is nothing on record to suggest that the Governments have at all made any attempt in this direction or taken steps to consult the Chief Justices of the High Courts of their respective States and examine the feasibility of specifying Human Rights Court in each district within the contemplation of Section 30 of the Act. Beyond that we do not propose to say anything at this stage.”
It added that, “the State Governments shall take appropriate action in terms of Section 30 of the Protection of Human Rights Act, 1993, in regard to setting up/specifying the Human Rights Courts.” It also issued notice, returnable within eight weeks, to the chief secretaries of all the states to “show cause why appropriate directions should not be issued in this regard”.
A file photo of the Supreme Court of India. Photo: PTI
Law student moved SC, urged directions on setting up courts, appointment of SPPs
Thereafter, a law student, Bhavika Phore, who by her submission was “interested in seeing human rights protected in India” and statutory redressal made available to all, filed a writ petition in the apex court under Article 32 of the constitution to direct the Centre and others to “fulfil their statutory obligations” under the Protection of Human Rights Act.
In the petition, she submitted that “one of the main objectives and legislative intent of the Act is with regard to setting up/specifying special Human Right Courts in each district for the better protection of Human Rights and also to appoint a Special Public Prosecutor for the same.”
Further, the petition stated that “Section 30 of the Act envisages that the State Government with the concurrence of Chief Justice of High Court by notification specify for each district a Court of Session as a Court of Human Rights for speedy trial of offences qua violation of Human Rights” and “Section 31 of the Act provides that the State Government shall specify and appoint Special Public Prosecutor for the purpose of conducting cases in that Court.”
It was also stated that “to uphold and protect the basic and fundamental rights of an individual”, the state was obliged to “provide affordable, effective and speedy trial of offences related to violation of human rights which can only be achieved by setting up special courts in each district as provided under the Act.”
‘Designated HR courts not set up even after 25 years of Act’
The plea said “even after passing of more than a quarter of a century, the respondents failed to establish the special Human Rights Courts in each district to conduct speedy trial of offences arising out of violation and abuse of human rights and also appoint a Special Public Prosecutor for the purpose of conducting trial in those courts.”
The petition also cited the India Human Rights Report 2018 to state that it provided a “deep reality into the sad state of affairs in India” and “throws light on various human rights violations such as police brutality, torture and excess, custodial and encounters deaths, horrible conditions in prison and detention centres, arbitrary arrests and unlawful detention, and denial of fair public trial.”
Stating that it was the “primary responsibility on the State to ensure that needs of citizens are met and their basic human rights are protected”, the petition had urged the apex court to issue a “writ, order or direction in the nature of mandamus to the respondent States to specify and set up Human Rights Courts for each district” and to appoint SPPs to conduct speedy trial of offences “within a specified time limit, preferably within three months.”
The petition had also sought directions to registrars of all high courts to enable the establishment of the human rights courts in all the 725 districts in 29 states and seven Union Territories in a time-bound manner and to the Centre to provide sufficient and adequate funds for setting these up.
SC sought response from States, fined seven for not replying
Hearing the plea, a bench of then Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Aniruddha Bose issued notice to all 29 states to file their replies in eight weeks. Thereafter, the apex court also fined seven states – Telangana, Rajasthan, Uttarakhand, Uttar Pradesh, Odisha, Meghalaya and Mizoram – for failing to file responses.
While Delhi has taken the first step, legal experts are of the opinion that the major challenge will be which cases would be committed to them since in most cases of human rights violations it is the police and other public officers who are the accused.