Realistic Approach to Human Rights with Special Reference to Rights of Accused v. Victim - An Analysis

Rights that are inherent in our basic human nature, without which we cannot sustain as human beings are “Human Rights”. During the two World Wars, atrocities committed on Political and Ethnic minorities shocked the conscience of entire world and made the international community resort to ushering in a world order, promoting observance of Human Rights and respect for it as well as fundamental freedoms. The acts of the league of Nations in the area of Human Rights was transformed into a resolution for international co-operation in promoting and fostering Human Rights as well as basic freedom in form of universal declaration of Human Rights in 1948. It contains Ist, generation Rights like Civil and Political Rights and second generation Rights such as Economic, Social and Cultural Rights of citizens. The draft of Indian Constitution began just after adoption of universal declaration of Human Rights. Its drafting concluded in 1950. Thus, the Indian Constitution framers being influenced by the declaration included almost all important provisions of Human Rights in Indian Constitution in the fundamental Rights Chapter. As they were convinced that both as ideas and as parts of legal orders, Human Rights are indispensable in the struggle against injustice and sufferings of the masses. In due course of time, the concept of “Human Rights” has got enriched by encompassing many other Rights in it. Today, Rights of Women, Children and Right for clean environment etc. have also been included and are considered to be Human Rights.  The Vienna declaration adopted on June 25, 1993 by the World Conference on Human Rights has declared “Human Rights and Fundamental Freedom are the birth Right of all human beings “and now these Rights are recognised as the limits to the exercise of power by the State over individuals. To provide legal force to all Human Rights declarations the Indian Parliament has passed the Human Rights Protection Act in 1993 and constituted Human Right Commission to protect the Rights of Citizens. In India these Human Rights reflected in the Constitution i.e. in the Supreme Law of the land are now uniformly available and applicable to all citizens including accused persons and to victims as well. While every citizen of the Country is conferred with “Human Rights”, its corresponding duties, for realisation of the same, are cast either on other individuals or on the State. Hence to harmonise and balance the opposing interests, of individuals and groups i.e. of Society and of the law enforcing Agency, which is entrusted to maintain peace and order in Society, is the realistic approach to Human Rights.  Concept of Rights and Correlated Duties It is evident on record (i.e. in Veda, Upanishad, Sruti etc.) that the concept of equal Rights of Men and Women, impartial treatment of human beings in Society and humanitarian consideration of accused etc. were age old concepts in India which are prevailing since “Vedic Age”. The developments on Human Rights starting from Magna Carta — 1215 AD to Universal declaration of Human Rights 1948 have further enriched the concept. “Today in India Human Rights like Fundamental Rights are “Paramount”, Sacrosanct, eternal and transcendental in nature and ought to be treated as inalienable and inviolable for preserving the dignity of the people. In India Courts are regarded as custodians of Human Rights and common man always looks upon the trial Court as his protector1.  While discussing “Rights”, it should not be forgotten that every Right has a corresponding duty. Because Right means “the standard of permitted action within a certain sphere”2 and these Rights are always correlated to duties in such a way that one cannot be conceived of without the other. A Right is always against someone upon whom the correlative duty is imposed. In contemporary society everybody is conscious of his own Right but not about his duties and responsbility towards country and society. Hence, to make people conscious about their duties through 42nd. Constitutional Amendment a new Chapter in Article 51 “A” was inserted in the Indian Constitution as Fundamental Duties, which though not justiciable in Courts still imposes duties on citizens for mandatory observance.  Human Rights of Accused v. Victim In our criminal justice system the legal ethics is very clear, “let thousand of criminals be let out, but a single innocent should not be punished”. Following this principle the judiciary requires all cases to be proved beyond reasonable doubt. In our system while “onus of proof” lies on prosecution to prove the accused guilty, the benefit of doubt” is always given to the accused. Starting from first step of arrest till end of trial in every stage the accused is conferred with several Rights by the Supreme Law of the land i.e. Constitution, the Criminal Procedure Code and also according to verdicts of the higher and Apex judiciary of the Country. Before the trying Court, till his guilt is proved, the accused is also considered to be innocent and even as an undertrial prisoner any violation of his rights is considered as Human Rights violation. To protect human right of the accused, the Apex Court in D. K. Basu v. State of West Bengal has held that transparency of action and accountability are perhaps the two possible safeguards which Courts must insist upon. In this judgment more concrete and specific guidelines concerning arrest have been laid down by the S.C.3.  The detailed rights available to accused under the Constitution, Cr. P. C. and in judicial activism are furnished in Charts with relevant reference of Provisions and Cases in Chart Nos. I, II and III :  CHART-I Rights and Relevant Constitutional Provisions 1. Right against conviction or enhanced punishment under an Ex-post-facto Law — Art. 20(1) 2. Right of protection against double Jeopardy — Art. 20(2) 3. Right against self-incrimination — Art. 20(3) 4 Right of privacy — Art. 20(3) and Art. 21. 5 Right to be informed of ground of arrest and Right to bail — Art. 22(i) and (ii) 6 Right against unlawful arrest — Art. 22(i) and (ii). 7 Right to consult and be defended by a lawyer of his own choice — Art. 22(i) and (ii) 8 Right to production before a Magistrate within 24 hours — Art. 22(i) and (ii). 9 Right to a fair pre-trial detention — Art. 21 10 Right to life and liberty — Art. 21. CHART-II Rights and Cr. P. C. Provisions 1. Right to be informed of the ground of arrest and right to bail — Ss. 50, 55 and 75, Cr. P. C. 2. Right not to be subjected to unnecessary restraint — S. 49, Cr. P. C. 3. Right against arbitrary or illegal detention in custody — Ss. 56, 57, 50 and 76, Cr. P. C. 4. Right to be released on bail if arrested — Ss. 436, 437, 50(2) and 167, Cr. P.C. 5. Right to be produced before Magistrate within 24 hours of arrest — S. 57, Cr. P. C. 6. Right to a fair and speedy trial — S. 309, Cr. P. C. 7. Arrest without warrants is not possible in non-cog. offence — Ss. 42, 151 and 155, Cr. P. C. (But in Cases to prevent Commission of Cog. Offences or to ascertain correct name and address it is possible). 8. Right of the accused person to be examined by a Regd. Medical Practitioner to disprove the commission of an offence by him — S. 54, Cr. P. C. (Reference 53, Cr. P. C.). 9. Right to legal aid at the expense of the State in certain Cases — Sec. 304, Cr. P. C. 10. Right to obtain a receipt when properties are seized — Sec. 100(6) and (7), Cr. P. C. CHART-III Expansion of Personal Liberty right of accused through Judicial Activities : 1. Right of personal liberty also includes Rights attached to the person— *4. 2. Personal liberty also includes Right to live with human dignity and not mere animal existence— *5. 3. The accused has a Right to privacy and any encroachment upon it without support of law is violative of Article 21 likewise, he also has a Right not to be compelled to be a witness against himself— *6. 4. Right to an appeal against conviction held to be a Right flowing from Art. 21— *7. 5. Practice of indiscriminate hand cuffing held to be violative of Art. 21— *8. 6. Right to claim compensation for contravention of Human Rights and Fundamental Rights held flowing from Art. 21— *9. 7. Right to free legal aid for poor or for indigent accused persons who are in capable of engaging lawyer— *10. 8. Hand cuffing and parading of prisoner is held to be violative of Art. 21— *11. 9. Detenu’s Right to consult with legal advisor and to meet his family members and firends is held to be within his rights in Arts. 14 and 21— *12. 10. Right to speedy trial held flowing from Art. 21— *13. 11. The injured even if an accused has a right to be treated by the Doctor immediately without waiting for Police formalities and instant Medical aid is held to be the right flowing from Art. 21— *14. 12. Use of third degree method by Police is held to be violative of Art. 21— *15. 13. Any form of torture or cruel inhuman or degrading treatment of accused by Police held to be violative of Art. 21— *16. 14. Police atrocities-illegal arrest and torture by Police held to be violative of Art. 21— *17. Towards the Rights of the victim in our justice system, the State is his protector and represents the victim in the trial Court. Even the victim has no legal Right to defend his own case. There is only one Section in the Cr. P. C. (Sec. 357) which speaks about compensation to victim and being victim of Human Rights violation, he also has a Right for compensation— *18: But there are neither any other Rights nor any Remedy provided to the victim in law.  In considering protection of the Society and the Right of victim, the Apex Court has held that punishment to accused must also respond to the Society’s cry for justice against the criminal and therefore while considering the punishment to be given to the accused, the Court should be alive not only to the Rights of accused to be awarded just and fair punishment but also to the Rights of victims of the crime to have the assailant appropriately punished— *19.  Police, the Victim of Criticism and a Realistic Approach to Human Rights The duties of Police are most intimately connected with the honour, life, property of people and to safeguard the unity and integrity of the Nation. Police Organisation is a key stone in the structure of Government and has successfully proved to be one of the strongest pillars to save the democratic system. But still they never get public sympathy and are rather always criticised as Human Right violators. This is because of the animosity and general apathy of public towards Police, which is continuing since British era. People, consider Police to be representative of Govt. and an obstacle for realisation of their claims. As a result they always divert their anger and dissatisfaction on Police and try to maintain a distance from them. The “Police” of independent India being guided by the same law and rules continuing since British-Raj is also failing to act as per expectations of the public. Though, Police personnel perform their thankless duties like a true friend in need, at times of grave danger to life and property of public and even at the cost of their families, stake their lives for Society, their sacrifices are generally neither publicised in media properly nor even praised in Society by the public. It is unfortunate that at times the news papers also single out the Police Department as target of their criticism with exaggerated and third degree intellectual abuse in the newspaper columns. Amidst criticism by all the members of Society, the Police personnel are unable to encounter it from steel frame work of discipline and therefore they are demoralised and, think themselves as the second Class Citizens of the Country and outside the purview of Human Right consideration— *20.  It is true that with the aim of detection of crimes to earn good name or to satisfy superiors with higher detection percentage, few Police Officers indulge in illegal activities of torture and even commit custodial death. The illegal activities of these few officers are now affecting the image of this noble profession and for illegal acts of handful officers the entire department is criticised with charges of Human Right violation. It is also important to note that the Officers and personnel indulging themselves in these criminal activities are neither praised nor left unprosecuted by the Police department. It is evident on record that for Human Right violations, many Police Officers have been prosecuted in the Court of law. To upkeep the interest of peace loving citizens of Society and “to maintain internal peace, the law enforcing Agency while acting in “good faith”, at times exceeds its limit and violates Human Rights. But it is also true that Police is criticised on both counts i.e. if the Police action is strong, there is criticism of excess use of power and in case of slow action, there is criticism of inaction or failure of the Agency to control the crime. In this context the Apex Court referring to expanding role of the Human Rights and also taking notice of the crime rate which is increasing day by day has held that “A realistic approach of law of arrest should be in balancing individual Rights, Liberty and previleges on the one hand and individual duties, obligation and responsibility on the other”. So, also Right, Liberty privileges of the single individual and those of individuals collectively. Hon’ble Justice “Cardoza” in People v. Defore has held that “the queston is whether protection of the individual would not be glared at disproportionate loss of protection for society, on one side is the social need that crime shall be repressed, on the other the social need that law shall not be flouted by the insolence of Office. There is danger in any choice— *21. Hence while considering Human Rights, it is necessary to strike a balance between the opposing interests of the individual and of the Society.  Conclusion In the contemporary Society the concept of Human Rights has been widened from time to time in different dimensions. Today everybody is “vigilant” about his own rights and we find news items on Human Right violations almost everyday. It is undoubtedly true that development of Rights of peace loving citizens and observance of the same by the State and its Agencies are good signs but at the same time only development of Rights of accused persons terrorists etc. are imbalancing and bringing a disparity in between Rights of accused, victim and of the law-enforcing Agency. Further, the Human Right over-activism and unnecessary criticism of law enforcing Agency also has its bad effect and at times it demoralises the Agency and they fail to tackle terrorism with iron hands.  The freedom of individual is necessary for the survival of the Society as it is for the egoistic purposes of the individual. But at the same time it must also match with social security i.e. the peace and good order of community in which he lives. So while considering about Human Right of the citizen, we are to strike a balance between individual Rights to personal freedom and investigational Right of the Police Officer, who works to provide security in Society for good social order for the benefit of public at large. It is felt to be the high time to enact a new law for strict observance of Fundamental Duties and either correlated duties by the citizens, and defaulters should be prosecuted in the Court of law.  In view of the rising trend of terrorist activities in the country, the Apex Court in larger interest of the Society has strengthened the hands of the law enforcing Agency by validating long detention of terrorists in custody even without trial. While deciding the Fagu Shaw’s Case— *22, the Court has held that though detention without trial is a serious matter, yet it could not be helped as “Drastic Diseases call for drastic Remedies”. In eventualities of social crisis by terrorist acts and in necessities of time, even the excessive action of the law enforcing Agency is tolerated and these actions of the Agency also have support from the legal Maxims which say “quod necessities cogit defendit” i.e. which is necessary compels it to be justified and Quod-Kast necessarium EST Lictium” i.e. what is necessary is lawful. Hence, as per the requirements of the time to control the situation even the unlawful acts are treated as lawful and in this context the legal Maxim says “necessities fact Lictium Quod Atlas, non EST Lictium” i.e. necessary or urgency makes that lawful which otherwise is unlawful.  In the present increasing crime scenario, terrorist activities pose a threat to the Unity and Sovereignty of the Country, Terrorists are killing innocent citizens indiscriminately and are encroaching upon the precious Rights of the Citizens. At this juncture, a question has arisen, whether these terrorists are entitled to get Human Rights like other accused persons? In our jurisprudence we consider accused persons to be innocent till their guilt is proved. But in case of terrorists, they are treated as terrorist criminals according to Acts like “TADA” and “POTA” etc. and “Onus of proof lies on them to prove themselves innocent”. Hence similar consideration of general accused persons of other crimes and a terrorist is not justified.  In Overton v. Bannister, (1844) 3 Hare 503, the equitable doctrine was propounded which says “He who seeks equity should come with clean hands”. On the same footing it can be interpreted that “terrorist who seeks of Human Rights should also come with clean hands”. An amendment is now felt essential in Human Right Protection Act of 1993 or in concerned Act’s dealing with terrorists, in which provision should be made that the “Human Rights” of persons involved in terrorist acts be kept suspended till they prove themselves innocent, and in case proved innocent, they may be entitled for compensation as per law. And in changed social climate, when terrorist activities are on the rise it would be a realistic approach to Human Rights. _____________________________________________________________________________________________________________________________

1. AIR 1981 SC 674 : 1981 Cri LJ 337.
2. Oxford Small Dictionary.
3. 1997 Cri LJ 743 : AIR 1997 SC 610.
4. In Maneka Gandhi v. Union of India, AIR 1978 SC 579 .
5. Francis Coralie v. Administrator Union Territory of India, AIR 1981 SC 746 : 1981 Cri LJ 306.
6. In Kharak Singh v. State of U.P., AIR 1963 SC 1295 : 1963 (2) Cri LJ 329 and Nandini Satapathy v. P.L. Dani, AIR 1978 SC 1025 : 1978 Cri LJ 968.
7. In M.H. Hosket v. State of Maharashtra, AIR 1978 SC 1548 : 1978 Cri LJ 1678.
8. AIR 1995 SC 31.
9. In Smt. Nalabati Behera v. Union of India, AIR 1993 SC 1960 : 1993 Cri LJ 2899.
10. In Khetri (ii) v. State of Bihar, 1981 Cri LJ 470 at p. 473 : AIR 1981 SC 928 at pp. 631-32, AIR 1986 SC 991 : 1986 Cri LJ 1084.
11. State of Maharashtra v. Ravikanta S. Patil, 1991 AIR SCW 871.
12. AIR 1981 SC 746 : 1981 Cri LJ 306.
13. (1993) 6 OCR-66 in Ghanashyam Mohanty v. State of Orissa and Kadra Pahadiya v. State of Bihar, AIR 1982 SC 1167.
14. In Paramanda Katara’s Case, AIR 1989 SC 2039.
15. AIR 1981 SC 625 : 1981 Cri LJ 17, Kishore Singh’s Case.
16. 1997 Cri LJ 743 : AIR 1997 SC 610.
17. AIR 1995 SC 117 (Crl Writ) Arvinder Singh Bagga v. State of U.P.
18. Under Article 9(5) of international conviction on civil and Political Rights, 1966 and also in Nilabati Behera’s Case, AIR 1993 SC 1960 : 1993 Cri LJ 2899.
19. AIR 1997 SC 18 : 1997 Cri LJ 51, Surjaram v. Rajasthan.
20. Author’s Article published in Criminal Law Journal in Nov., 1996 at p. 53 and in Crime’s, Jan., 1996 at p. 259.
21. AIR 1994 SC 1349 : 1994 Cri LJ 1981.
22. AIR Cri LJ 486 : AIR 1974 SC 613.

Author Name: Dr. Prabhat Chandra Tripathy