Case BriefsForeign Courts

Supreme Court of Canada: The instant matter revolved around a challenge to the constitutionality of Section 33.1 of the Criminal Code which dealt with the unavailability of self-induced intoxication as a defence for criminal acts like assault etc. The bench of the Court comprising of Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ., in an unanimous decision, held that, Sec. 33.1 violates S. 7 of the Canadian Charter of Rights and Freedoms by allowing a conviction without proof of mens rea or proof of voluntariness. It was observed that, “Section 33.1(1) of the Criminal Code eliminates the defence of self-induced intoxication akin to automatism applied to violent offences… Section 33.1 does not create a new predicate act offence of self-induced extreme intoxication or a new criminal negligence offence. The accused faces the full stigma of conviction and the full brunt of punishment for the general intent offence.”

Facts of the Case: The appellant [hereinafter ‘B’], at a house party, had consumed ‘magic mushrooms’ which is a hallucinogen. The consumption of the drug led to ‘B’ losing his grip over reality. As per ‘B’, he was not simply drunk or high: while capable of physical movement, he was in a psychotic state and had no willed control over his actions.

He broke into the nearby house of a stranger and attacked the occupant, causing permanent injuries. He further broke into another residence and the occupants called the police. Consequently, ‘B’ was charged with break and enter and aggravated assault, and mischief to property.

Contentions: The appellant contended that he is not guilty of the offences by reason of automatism. The appellant’s contentions were corroborated by the expert witnesses who confirmed that ‘B’ had no voluntary control over his conduct at the time.

The respondent (the Crown) invoked S. 33.1 of the Criminal Code preventing ‘B’ from relying on self-induced intoxication akin to automatism as a defence to the charge of aggravated assault. The respondents stated that the Canadian Parliament added S. 33.1 in response this Court’s ruling in Henri Daviault v. Her Majesty the Queen, 1994 SCC OnLine Can SC 83, wherein the majority had confirmed a common law rule that intoxication is not a defence to crimes of general intent.

The respondents, however, prayed to the Court to interpret S. 33.1 as validly imposing liability for violent crimes based on a standard of criminal negligence

Observations: Perusing the facts and contentions of the case, Justice Kasirer (who delivered the unanimous decision) observed that the impugned provision does not establish a proper measure of criminal fault by reason of intoxication; instead, it imposes liability for the violent offence if an accused interferes with the bodily integrity of another “while” in a state of self-induced intoxication rendering them incapable of consciously controlling their behaviour.

Given the gravity of the issue, the Court some salient observations –

  • It was held that the provision is violative Canadian Charter of Rights and Freedoms because an accused person under the impugned provision is not being held to account for their conduct undertaken as free agents, instead, the accused is called to answer for the general intent crime that they cannot voluntarily or wilfully commit. “To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions. On its face, not only does the text of S. 33.1 fail to provide a constitutionally compliant fault for the underlying offence set out in its third paragraph, it creates what amounts to a crime of absolute liability.”
  • The Court observed that the impugned provision also transgresses the right to be presumed innocent until proven guilty guaranteed by S. 11(d) of the Charter. To convict the accused, the Crown must prove all the essential elements of an offence beyond reasonable doubt.
  • The Court noted that the rights of victims of intoxicated violence, in particular the rights of women and children, should be considered at the justification stage under S. 1 of the Charter rather than informing the analysis of a possible breach of the accused’s rights under S. 7. “Balancing competing Charter rights under the breach analysis should occur where the rights of the accused and another party conflict and are directly implicated by state action. The equality, dignity and security interests of vulnerable groups informed the overarching public policy goals of Parliament but they are best considered under S. 1”.

Along with the aforementioned observations, the Court pointed out that the Parliament has before itself a strong record that highlights the strong correlation between alcohol and drug use and violent offences, in particular against women. The issues regarding ensuring the equality, dignity, and security rights of all victims of intoxicated violence must be looked upon thoroughly by the Parliament, therefore it is all the more necessary that the Crown must show on a balance of probabilities that the limits of Ss. 7 and 11(d) of the Charter brought by S. 33.1 are reasonable and demonstrably justified under S. 1 of the Charter. “Given the patent risk that S. 33.1 may result in the conviction of an accused person who had no reason to believe that their voluntary intoxication would lead to a violent consequence, S. 33.1 fails at the proportionality step and thus cannot be saved under S. 1”.

[R. v. Brown, 2022 SCC 18, decided on 13.05.2022]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Stating that, the intention of a person can be gathered from the words spoken or written or other expressions, Sanjay Dhar, J., expressed that,

Expression of outrage at the negligence and inhuman attitude of the security forces, police and establishment would come within the ambit of freedom of expression of an individual which includes freedom to criticize the Government of the day which is permissible under law but the same may not be the position if an individual questions the fact of a State being a part of the Country by using the expression ‘occupation of military or the people being slaves etc.

The petitioner had challenged an FIR for the offence under Section 13 ULA(P) Act.

In the petition, it was stated that, the petitioner was an advocate practising for last about 10 years. In 2018, six civilians were killed and more than 60 injured men, women and children in a blast.

Further, it was averred that the petitioner being a resident of the village in which the tragedy had happened, made certain comments regarding the incident on Facebook. According to the petitioner, the theme of the said posts was that there had been negligence which led to the killing of the above-said civilians and that the District Police, Kulgam, and the local administration were principally responsible for the same.

Petitioner submitted that, there was nothing illegal in the posts which were uploaded by him on his Facebook, but an impugned FIR was registered branding the petitioner as an anti-national element.

Analysis, Law and Decision


High Court on perusal of Section 13 of ULA(P) Act stated that a person can be punished for unlawful activities, if he takes part in or commits, advocates, abets, advises or incites the commission of unlawful activity. Even if a person assists any unlawful activity of any association declared as unlawful, he can be subjected to punishment under the aforesaid provision.

The Bench noted that some portions of the first post highlighted that the petitioner advocates that the people of Kashmir are slaves, and it is under occupation which is like cancer. The other post indicated that the petitioner was advocating that this part of the country was under the occupation of the Indian Military.

In Court’s opinion, the freedom of speech and expression guaranteed under the Constitution cannot be stretched to such a limit as to allow a person to question the status of a part of the country or its people.

It is one thing to criticize the Government for its negligence and express outrage on the violation of human rights of the people but it is quite another to advocate that the people of a particular part of the Country are slaves of the Government of India or that they are under occupation of armed forces of the Country.

The Bench expressed that, the petitioner was advocating and supporting the claim that Jammu and Kashmir were not a part of India and that it was occupied by the Indian military with the people having been reduced to the status of slaves. Thus, he was questioning the sovereignty and territorial integrity of the Country.

“…petitioner by uploading these posts has cross the Lakshman Rekha which demarcates the freedom of expression guaranteed under Article 19 of the Constitution of India from the reasonable restrictions imposed on such freedom on the ground of sovereignty and integrity of India.”

Hence, the petitioner’s act, prima facie fell within the definition of ‘unlawful activity’ as contained in Section 2(o) of the ULA(P) Act punishable under Section 13 of the Act.

Lastly, the Court held that quashing the proceedings at present would amount to stifling a genuine prosecution, which is not permissible in view of the Supreme Court decision in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021 SCC Online SC 315. Therefore, the petition was dismissed. [Muzamil Butt v. State of J&K, 2022 SCC OnLine J&K 272, decided on 22-4-2022]


Advocates before the Court:

For the Petitioner: M.A. Qayoom, Advocate

For the Respondent: Asifa Padroo, AAG

Hot Off The PressNews

The National Human Rights Commission, India has taken suo motu cognizance of a media report that the police personnel of Mehrauli Police Station subjected a woman to extreme torture by stripping her and brutally beating with a belt in Lalitpur District of Uttar Pradesh. Reportedly, she was working as a domestic help at the residence of a police officer on the allegations of a theft in the house.

The Commission has issued notices to the Chief Secretary and the Director-General of Police, Uttar Pradesh calling for a detailed report in the matter within four weeks including action against the responsible police officer and any relief granted the victim by the authorities.

The Commission has observed that the contents of the media reports if true raise a serious issue of violation of human rights to the victim. The Police Officer and his family have not only misused their position but also subjected the victim to physical torture and cruelty.

According to the media report, the wife of the police officer locked the victim at her home in the evening of 2nd May, 2022. Her husband, a police official, came along with a lady Inspector and started interrogating her about a theft in the house. Besides beating her brutally, they also subjected her to water cannon and electric shocks to force her accept the allegations.

Later, sensing that the matter may snowball into a controversy, she was called to the Mehrauli police station where the police personnel tried to project the matter as a dispute with her husband and also initiated action against him for disturbing the peace.


National Human Rights Commission

[Press Release dt. 7-5-2022]

Case Briefs

The National Human Rights Commission, India has taken suo motu cognizance of a media report that four sanitation workers have died after inhaling toxic gases while cleaning a sewage tank in Budha Khera village in Hisar district of Haryana.

The Commission has issued notice to the Chief Secretary of Haryana, calling for a detailed report on the matter within six weeks. The report is expected to include the action taken against the responsible officers and relief granted to the families of the victims.

The Commission has observed that the incident indicates that despite the avoidable and unwarranted deaths in sewers; and sheer indignity of the work, hazardous cleaning of septic tank without safety equipment continues.

The Commission has been emphasizing upon use of machines for cleaning septic tanks, sewage plants etc. and to ensure proper safety equipments for the workers but such painful incidents are taking place frequently.

Due to negligence and apathy by the authorities concerned, precious human lives have again been lost. Their human rights have been grossly violated.

The Commission has noticed that in this case, the victims are in the age of 25 to 28. Deaths of such young men in these kind of tragic incidents could be averted had proper precaution been taken by the responsible authorities. Such incidents are indeed indicative of reckless attitude of the civic authorities violating human rights of the poor and innocent workers.

Issuing the notices, the Commission has observed that a large number of workers have died within a short span of time while undertaking the sewage/ septic tank cleaning work. It has been taking cognizance of such matters for quite some time now and trying its best to sensitize the authorities to take all precautions during the time of cleaning of the sewage tanks so that precious human lives are not lost.

Further, the Commission observed that in spite of specific judgments given by the Supreme Court and guidelines issued from time to time by different government agencies, the sewage cleaning workers are still being exposed to extreme danger and subjected to indignity by the public authorities.


National Human Rights Commission

[Press Release dt. 23-4-2022]

Case Briefs

The National Human Rights Commission, India has taken a suo-motu cognizance of a media report of the incident where a dalit man was allegedly forced to rub his nose in his own spit in front of a village Sarpanch and locals in Kendrapada district of Odisha.

The Commission has issued notice to the Odisha Chief Secretary calling for a report within six weeks including status of investigation of the case, which has been reportedly registered by the police, as well as the status of statutory relief paid to the victims.

Examining the contents of the news report, the Commission has observed that the issues raised are of a very serious nature and the right to dignity of the victims have been grossly violated.

As per the media report, the incident occurred when the Sarpanch of Tikhiri village in Bhubaneswar visited the victim’s house seeking donations for a temple. The man reportedly said that he had already donated an amount, which made the Sarpanch angry. He further allegedly abused him and his wife in front of locals. An FIR has been reportedly registered under various sections of the IPC and under relevant provisions of the Protection of the Scheduled Castes & the Scheduled Tribes Act, 1989.


National Human Rights Commission

[Press Release dt. 22-4-2022]

Case BriefsSupreme Court

Supreme Court: The 3-Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat and P.S. Narasimha, JJ., issued notice to Madhya Pradesh government on being appraised that there is a policy of incentivising public prosecutors for obtaining capital punishments in matters prosecuted by them.

Noticeably, a petition was filed before the Court alleging that the State is granting incentives to public prosecutors on the basis of death sentence awarded in matters prosecuted by them. Assessing the gravity of allegation the Court on 29-03-2022 had issued direction to the Registry to register a Suo Motu case and change the cause title immediately.

Siddhartha Dave, Senior Advocate and K. Parameshwar, Advocate was appointed as Amicus Curiae to assist the Court in the Matter. Additionally, the Court had also heard K.K. Venugopal, Attorney General for India, Siddharth Agarwal, Advocate, representing Project-39A, Gaurav Agrawal, Advocate for NALSA and Rukhmini Bobde, Advocate representing State of Madhya Pradesh.

Accepting the Attorney General’s proposal to place on record relevant material pertaining to other jurisdictions to assist the Court in deciding the matter, the Bench has granted liberty to all the counsels engaged in the instant matter to place on record any material that would render assistance to the Court.

Considering that the matter required consideration at an early date, the Bench issued additional directions to the counsels that the needful be done within 10 days.

The State was directed to place on record the concerned Policy along with submissions in support of said Policy. The matter is listed on 10-05-2022 for further hearing.

[Irfan v. State of M. P., Writ Petition (Cri) No. 142 of 2022, order dated 22-04-2022]


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Delhi High Court: Expressing that, RTI Act is a tool that facilitates the employees and officers in airing their grievances systematically, the Division Bench of Manmohan and Sudhir Kumar Jain, JJ., remarked that,

“…both service and RTI laws ‘act like a safety valve in the society’.”

Respondent 2 was working as a Superintendent in Administration with Enforcement Directorate. She had filed an application under the Right to Information Act, 2005 seeking the following information:

(1)copies of all the seniority list in respect of LDCs for the period of 1991 till date;

(2)copies of the proposal for promotion of LDCs placed before the DPC together with copies of the Minutes of the Meetings and copies of the promotion orders issued on the recommendations of the DPC from time to time.

Analysis, Law and Decision

The appellant is an intelligence and security organization specified in second schedule of the RTI Act and is exempt from the purview of the RTI Act except when the information pertains to allegation of corruption and human rights violation.

Instant matter involved interpretation of Section 24 of the RTI Act.

It was stated that the Division Bench of this Court in Esab India Ltd. v. Special Director of Enforcement, 2011 SCC OnLine Del 1212, upheld the Constitutional validity of Section 24 of the RTI Act.

Further, the Court expressed that the appellant being an intelligence and security organization was exempt from the purview of the RTI Act except when the information pertained to allegations of corruption and human rights violation.

The expression ‘human rights’ cannot be given a narrow or pedantic meaning. Human rights are both progressive and transformative.

Whether the information sought by the respondent falls within the expression human rights?

Bench opined that,

Human rights have been used for a variety of purposes, from resisting torture and arbitrary incarceration to determining the end of hunger and of medical neglect.

In the present matter, non-supply of the information/documents is a human rights violation as in the absence of the same respondent 2 would not be able to agitate her right to promotion.

High Court expressed that, if employees of an establishment cannot agitate their grievances before judicial forums, these organizations/establishments may become autocratic.

Information pertaining to proposals for promotion of third parties cannot be provided to the respondent in view of Section 11 of the RTI Act.

Hence the High Court held that the information pertaining to proposals for the promotion of third parties cannot be provided to the respondent in view of Section 8(1)(j) and 11 of the RTI Act.

Lastly, the Court directed the appellant to provide copies of all the seniority list in respect of LDCs for the period of 1991 till date as well as copies of the proposal for promotion of respondent (LDC) placed before the DPC together with copies of the Minutes of the Meetings and copy of the promotion/rejection order issued on the recommendations of DPC from time to time.

In view of the above present appeal was disposed of. [Union of India v. CIC, 2022 SCC OnLine Del 824, decided on 22-3-2022]


Advocates before the Court:

For the appellant:

Mr Amit Mahajan, CGSC

Mr Dhruv Pande, Advocate.

For the Respondents:

Mr Shiv Kumar, Advocate for R-2 with respondent 2 in person.

Case BriefsInternational Courts

OHCHR (WGAD): While addressing the issue of alleged arbitrary detention of Ms. Marie-Emmanuelle Verhoeven in Tihar Jail, New Delhi, from the period of February 2015 till July 2016 and her claim for compensation [IPA No 15 of 2018], which is currently pending in the Delhi High Court having been filed by Ms. Verhoeven as a Civil Suit on 24 July 2018 against the Union of India,  the Vice-Chair of the WGAD, Miriam Estrada-Castillo observed that,

Without prejudging the accuracy of these allegations, we express concern that the detention of Ms. Verhoeven, if confirmed, may have been arbitrary, in violation of Article 9 of the Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights”

 

Pertinent Facts: Marie-Emmanuelle Verhoeven is a French citizen who spent a part of her life in Chile from 1985 to 1995. During her stay in Chile, Verhoeven was a member of the Latin American Economic and Social Committee and later joined the United Nations Economic Commission for Latin America and the Caribbean [UNECLAC] or CEPAL [Spain] in Chile. She also participated in Special Human Rights Missions.

Ms. Verhoeven had been visiting India for spiritual reasons in the past. On 16th  February 2015, she entered India from Nepal based on a valid visa issued by the Embassy of India in France. She was arrested in Uttar Pradesh on 16th  February 2015 because of an Interpol Red Corner Notice dated 27th January 2014 at the request of the Chilean Government and was brought to Delhi on February 21, 2015. This Red Corner Notice dated 27th January 2014 formed the subject matter of a previous Extradition Request made by Chile to Germany. By its Judgment of 6 June 2014, the Hanseatic Higher Regional Court at Hamburg, Germany  had declared the Extradition Request of Chile as illegal and set Ms. Verhoeven  free.

 

Legal Trajectory: By an order dated February 24, 2015, the Additional Chief Metropolitan Magistrate, [ACMM] Patiala House District Court, New Delhi,  directed the provisional arrest of Ms. Verhoeven under Section 34B of the Extradition Act, 1962. She was remanded to judicial custody from time to time and was detained at Tihar Jail, New Delhi from February 2015 till July 2016. At the time of her provisional  arrest on 24 February 2015, there was no extradition treaty between India and Chile.

The matter reached Delhi High Court in March 2015. A Gazette of India Notification No. 267, Part II, dated 29th April 2015 and the Order dated 28th April 2015, were issued by the Government  of India  recording the Extradition Treaty between the Republic of India and the Republic of Chile. Ms Verhoeven challenged the constitutional validity of this Notification and contended before the Delhi High Court inter alia that this Extradition Treaty [emerging from this Notification] could not be applied retroactively to her while she was still in detention, as this was based on a Treaty between Great Britain and Chile of 1897. She also argued that there was no record of such a treaty in the official archives  either in India or in Chile.

 

On 21st September 2015,  the Division Bench of G. Rohini, CJ., and Jayant Nath, J., in Verhoeven, Marie-Emmanuelle v. Union of India and another, 2015 SCC OnLine Del 12166, held that Ms. Verhoeven’s detention was illegal. However, she was not released from the prison on 21 September 2015. The Delhi High Court upheld the constitutional validity of the Extradition Treaty between India and Chile.

 

Ms. Verhoeven was re-arrested by the ACMM, Patiala House District Court, New Delhi on September 22, 2015 on the basis of the Note Verbale dated 21 September 2015 of the Chilean Embassy in New Delhi

 

On 29th September 2015, a Habeas Corpus Writ Petition was filed by Ms. Verhoeven in the Supreme Court of India challenging her illegal detention. On 13th October 2015, Ms Verhoeven also challenged [by way of a Special Leave Petition in the Supreme Court of India], the dismissal by the Delhi High Court of her challenge to the Extradition Treaty which had been resuscitated by the Indian Government from 1897 on the basis of the Extradition Treaty between Great Britain  and Chile, [when India was under the British Empire], and was retroactively made applicable to her by the Indian Government  while she was already in detention.

 

In December 2015, during the illegal detention of Ms Verhoeven on the basis of the Note Verbale dated 21 September 2015 of the Chilean Embassy in New Delhi, the Indian Government filed a second extradition proceeding against Ms Verhoeven, based on the India/Chile Treaty.

 

On 28th April 2016, the Division Bench of the Supreme Court of India  comprising  Madan B. Lokur and N.V. Ramana, JJ., in Verhoeven, Marie-Emmanuelle  v. Union of India, (2016) 6 SCC 456 , held that a binding extradition treaty between India and Chile existed and upheld Ms.Verhoeven’s arrest and detention on the basis  of the  Note Verbale of the Chilean Embassy in New Delhi, dated  September 21, 2015.  Her Habeas Corpus Writ Petition was dismissed by the Supreme Court of India by this Judgment.

On 2nd July 2016, Ms Verhoeven was released on bail by the ACMM, Patiala House District Court, New Delhi

On July 26, 2017, the ACMM, Patiala House District Court, New Delhi, discharged Ms. Verhoeven, based on the Indian Government’s request to withdraw the Extradition Case  and she returned to her homeland in France on 27th July 2017.

 

Contentions raised by Ms. Verhoeven:   Ms. Ramni Taneja, Advocate, representing the aggrieved individual, contended before the WGAD, OHCHR, that the detention of Ms. Verhoeven was illegal and arbitrary in nature. She further raised questions on the disputed existence of an extradition treaty between India and Chile and submitted that the extradition treaty was retroactively applied to the case of her client, which is impermissible in law. She further asserted that Ms. Verhoeven’s re-arrest on September 22, 2015 was based on a Note Verbale dated 21st September 2015 issued by the Embassy of Chile in New Delhi and was therefore without legal foundation.

The contentions also drew attention to the poor condition in the prison cells where Ms. Verhoeven was kept and the lack of medical attention, consular rights etc.

Finally, it was argued that the concerned authorities in India should have abided by Interpol’s request on May 30, 2015 that, it erased all files concerning Ms Verhoeven, which meant that she would have been released immediately. It was thus contended by Counsel that Ms. Verhoeven’s detention was without legal basis.

 

Observations of the Working Group: While deliberating upon the matter, the WGAD made it clear that their observations are being made “without prejudging the accuracy of the allegations made by Ms. Verhoeven”. The Working Group-

  • Expressed its concern over the detention of 17 months stating that, “If confirmed, may have been arbitrary, in violation of Article 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights. The prohibition of arbitrary deprivation of liberty is part of treaty law, customary international law. It constitutes a jus cogens norm and is fully applicable in all situations”.

 

Expressed its concern “at the allegations of poor conditions of detention which Ms. Verhoeven was subjected to, of denial of requested medical attention, of denial of consular rights, and abusive restrictions of family contact, which further contravene several important rights to medical care, to consular assistance and to contacts with family, as codified in the Standards Minimum Rules for the Treatment of prisoners, revised in 2015 as the “Mandela Rules”.

 

With the aforesaid observations, which were issued to the Permanent Mission of India at Geneva by the WGAD on 21st December 2021, clarifications were sought by the WGAD  from the Government of India  in the form of an Urgent Appeal regarding the allegations raised by Ms. Verhoeven.

 

On 16th February 2022, the Government of India submitted its response to the Urgent Appeal of the WGAD, OHCHR. On the website of the OHCHR the following is stated therein:

The Government’s reply is not made public due to its confidential nature.”

[Read the Order HERE ]

 

[Mandate of WGAD, Ref.: AL IND 22/2021, issued on 21-12-2021]


Sucheta Sarkar, Editorial Assistant has put this report together.

Op EdsOP. ED.

When a person disappears, everything becomes impregnated with that person’s presence. Every single object as well as every space becomes a reminder of absence, as if absence were more important than presence.[1]

Sometime in the recent past, in the democratic republic of Y, Mr X lived with his family comprising of his parents, wife and school age children. Mr X, exulted, not only in his honesty and devotion towards his family and work, rather, took pride over his fidelity and adoration for his motherland. Ergo, embodying an archetype of an ideal citizen, Mr X endeavoured to strictly abide by the rules, regulations and laws of his nation. Simultaneously, enthralled and immersed neck-deep under the weight of responsibilities, Mr X had no time to channel his attention towards any controversial ideologies. In fact, Mr X bestowed pre-eminence to his accountabilities over wafting provocative tenets and refrained from being associated with any such dogmas, leave aside to be designated as a draughtsman of an upheaval. However, on one unfortunate occasion, Mr X was unwillingly elbowed into expressing his opinion on an exceedingly sensitive socio-political issue on a public platform. Ominously, on that particular occasion, Mr X despite his preliminary inhibitions, verbalised his views not only on the issue at hand, rather, indicated the ostensibly prudent course of action, which should have been espoused by the top leaders of Y to deliver a resolution to citizens’ concerns. Unsurprisingly, this interview amassed wide publicity on print and social media platforms, both, for its radical perspective and compelling reprimand of the government’s policies by a layman. Indubitably, though Mr X’s interview quickly plunged him into limelight, however, this simple “mistake” of expressing admonishment towards the authority in power proved to be quite detrimental for him as well as his family. Worryingly, since the day immediately succeeding a formal publication of his interview, Mr X neither returned to his home from work nor was any information pertaining to his whereabouts, obtainable. Increasingly, agonising was the fact that despite the tenacious pleadings and implorations by Mr X’s family members, no assistance in this regard was forthcoming, either from the State/Government or the country’s judicial machinery. Manifestly, with the passage of time Mr X could incontrovertibly be presumed dead as per the laws of Y, notwithstanding the waning hope of his return in the hearts of a few of his family members. Yet, as time lapsed, even these last shreds of sanguinity dwindled and eventually, obliterated. Concurrently, condition of Mr X’s ménage worsened with the demise of his parents, who could no longer bear with the anxiety and pain resultant due to their son’s unexpected disappearance. Therewithal, a grieving wife’s despair ruined the life of their kids, divesting them of any prospects of happiness and advancement in life. Ironically, even as on date, Mr X’s family is oblivious of the reasons leading to his sudden vaporisation, though, firmly hold on to his memories.

The narrative of Mr X’s disappearance and the consequent gloomy fate of his family members is neither a fable extracted out of some fictitious manual nor is it a recital of prevarication. On the contrary, to a million of families around the world, this chronicle is, regrettably, quite relatable and in fact, a part of their everyday’s reality and struggle. Verily, these incidents of sudden and unanticipated disappearances, conventionally christened under the international law as “enforced disappearance(s)” or “forced disappearance(s)”, are not some localised or exceptional occurrences, rather, ubiquitous and quite rampant across the globe. Nonetheless, it is quite paradoxical that these events, which patently tantamount to gross violation of countless human rights, remain brazenly unacknowledged and unashamedly disavowed by a majority of the word, even as on date. Simultaneously, pursuant to dearth of explicit laws and unambiguous guidelines to tackle the instances of enforced disappearance(s), not only are the rights of victims audaciously desecrated, rather, barely any respite is extended to their ailing family members. Consequently, the fate of victims’ kinsmen is not dissimilar to that of Mr X’s. Needless to state that pursuant to such incessant occurrences, despondently, while on one hand, overnight adverse consequences may ensue to the victims and their relatives, on the other hand, their unbridled endurance and propagation may indiscernibly lead to the ruination of fabrics of society and hollowing of the foundation of human rights.

Markedly, the term, “enforced disappearance” is defined under Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance[2] (ICPPED) as:

 the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”

Similarly, Article II of the Inter-American Convention on Forced Disappearance of Persons[3] (IACFDP) enunciates forced disappearance as the act of,

 “depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the State or by persons or groups of persons acting with the authorisation, support, or acquiescence of the State, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees”.

Comparable definition of enforced disappearance is enshrined under Article 7(2)(i)[4] of the Rome Statute of the International Criminal Court[5] (Rome Statute). In fact, as per Article 7(1)(i) of the Rome Statute, when enforced disappearance is perpetrated as part of a widespread and/or systemic attack against any civilian population, with knowledge of such attack, it is termed to amounts as “crime against humanity”.

Meaningfully, when these interpretations and definitions are examined in conjunction, it may be effortlessly deduced that at the core of numerous manifestations of enforced disappearance is a forceful and clandestine removal and/or illegal detention of personages either by or at the behest of the State or government authorities, though, feigning ignorance and unawareness of such incidents, however, designed to deprive these individuals of their rights to life, liberty, protection of law, etc. Further, though, on a superfluous exploration, incidents of enforced disappearance may seem to be motivated, primarily, by punitive and vindictive impulsions, however, on a deeper exploration of the impelling reasons thereof, it is patently observed that these events are commonly devised as means to eliminate dissent, perpetuate an element of fear into public, warrant conformance of laws and government policies, stifle possibility of a coup, etc.

Remarkably, the UN Human Rights Council[6] (UNHRC), while enumerating certain impetuses of these events, inter alia, noted,

“[e]nforced disappearance is used by Government and pro-government forces as a strategy of war, to stifle dissent and to spread terror within society. It is committed as part of a widespread attack against a civilian population, with knowledge of the attack, and constitutes a crime against humanity”.

Similarly, as per the United Nations (UN) Office of the High Commissioner for Human Rights[7] (OHCHR), “[e]nforced disappearance has frequently been used as a strategy to spread terror within the society. The feeling of insecurity generated by this practice is not limited to the close relatives of the disappeared, but also affects their communities and society as a whole.”

However, irrespective of the reasons, which motivate occurrence of such episodes, it is quite appreciable that the sheer conception and employment of enforced disappearance vests on a barefaced negation of rights of individuals and therefore, essentially, runs antagonistic to the concepts of democracy, civil liberties, etc. Nonetheless, despite a universal consciousness of severe adverse consequences resultant due to enforced disappearance(s), this leviathan is permitted to sprint unfastened and unfettered across the globe, leading to profound and tenacious human rights concerns.

Significantly, one of the earliest manifestations of surreptitious detention and enforced disappearance of personages may be traced back to the proclamation of the “night and fog decree” (Nacht und Nebel Erlass) under the Nazi regime. As per this dictate[8], persons in the Nazi-occupied territories and allegedly “endangering German security” were clandestinely transported to Germany, leaving behind neither a trail of their transportation and vanishing nor an intimation regarding their whereabouts to their family members. Intelligibly, the objective behind the proclamation of this decree and its extensive deployment may reasonably be presumed to be directed towards systemic elimination of voices of dissent against the oppressive regime, propagation of fear, etc. In this regard, the International Military Tribunal (Nuremberg) in its judgment of 1-10-1946[9], whilst, inter alia, recounting the genesis of said directive, observed:

On 7-12-1941, Hitler issued the directive since known as the ‘Nacht und Nebel Erlass’ (night and fog decree), under which persons who committed offences against the Reich or the German forces in occupied territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to the Sipo and SD for trial or punishment in Germany. This decree was signed by the defendant Keitel. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases when they died awaiting trial, the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person.

Pertinently, as per some historical accounts and authors of international law[10], even prior to the issuance of the night and fog decree by Hitler, “[a]n incipient form of these practices (enforced disappearance) was, however, already well known in the former Soviet Union, with its Gulag system of forced-labour camps, first established under Vladimir Lenin during the early Bolshevik years”. Notwithstanding the absence of clarity regarding the exact time and location of the origin of enforced disappearance, this sinister institution quickly metastasized across the globe, silently proliferating right under the noses of even the top democracies of the world. In fact, like an uncontained contagion or undetected spores of fungi, this evil reached even the most impenetrable recesses of the globe, transmogrifying into one of the most potent, yet covert devices in the hands of such authorities/State(s).

Significantly, in the year 2000, the (then) President of the Latin American Federation of Associations for Relatives of Detained-Disappeared Persons (FEDEFAM), while acknowledging[11], “far from being eradicated, enforced disappearances are continuing and have spread to a number of continents; they are motivated by various forms of discrimination, a fact which dramatically increases the number of victims and geographical regions affected”, expressed an urgent need for the conception and execution of a convention on enforced disappearance. However, despite several entreaties of like kind and an altogether dismal ground reality, flagrant disavowal by several States, eminent leaders, governments and authorities of the world of the factum of perseverance and rapid proliferation of incidents of enforced disappearance has imparted an unwarranted stimulus for the intensification of this iniquity in huge proportions.

Conspicuously, the United Nations General Assembly on 20-12-2006 while, inter alia, appreciating the extreme seriousness of incidents of enforced disappearance; emphasising on the right(s) of any victim to know the truth about the circumstances of enforced disappearance and the fate of the disappeared person; acknowledging the right of victims to justice along with reparation and further resolving to prevent the commission of such events, adopted ICPPED vide its Resolution bearing A/RES/61/177. Significantly[12], ICPPED came into force on 23-12-2010 and as on date; ninety-eight States have signed and sixty-four States ratified the terms thereof.

Pertinently, Article 1 of ICPPED out rightly declares that no one shall be subjected to enforced disappearance and that, “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance”. Articles 4 and 7 of the ICPPED, further, oblige the contracting States thereof to take necessary measures to ensure that enforced disappearance is designated as an offence under their corresponding domestic criminal law(s) and that the said offence is punishable by appropriate penalties, taking into account its extreme seriousness, respectively.

Strikingly, Article 8 of the said Convention impels the State parties, which apply statute of limitations in respect of enforced disappearance, to take all necessary measures to ensure that the term of limitation for such criminal proceedings,

“(a) is of long duration and is proportionate to the extreme seriousness of this offence; and

(b) commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature”.

Simultaneously, in order to ensure that the perpetrators of enforced disappearance(s) do not evade from their consequent penal ramifications, Article 13 of ICPPED, inter alia, not only excludes the said offence from being regarded as a political offence, excusable from extradition, rather, mandates the contracting States to adopt measures to ensure that enforced disappearance is treated as an extraditable offence and offer utmost cooperation amongst themselves to bring the perpetrators of this crime to justice. Additionally, Article 16 of ICPPED encompasses the principle of non-refoulement, obliging the State parties, not to, “expel, return (refouler), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance”.

Concomitantly, Article 26 of the ICPPED further envisions establishment of a Committee on Enforced Disappearances (Committee), “to carry out the functions provided for under this Convention” and Article 42 of the said Convention, provides for arbitral mechanism to resolve, “[a]ny dispute between two or more States parties concerning the interpretation or application of this Convention which cannot be settled through negotiation or by the procedures expressly provided for in this Convention”.

Pertinently, one of the most significant attributes of ICPPED is the expansive definition of the term, “victim” as the, “disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance” along with a right of such individuals to seek reparation and prompt, fair and adequate compensation, in the manner as envisaged under Article 24 thereof. Notably, such an expansive definition of victim(s) under ICPPED is a laudable endeavour and seems to coincide with several earlier declarations and acknowledgements to the effect that the person aggrieved by such brutalities are not only those directly subjected to such inflictions, rather, also their family members. Illustratively, in this regard, the Council of Europe: Parliamentary Assembly in one of its Reports[13], inter alia, endorsed,

“[o]ften, the disappeared persons are killed immediately, but their spouses, children or parents continue to live for many years in a situation of extreme anguish and stress, torn between hope and despair. They must therefore also to be considered as victims of the crime of enforced disappearance”.

Needless to mention, several international organisations have, concurrently and persistently accentuated on a need of prompt notification of the family members of the direct victims of enforced disappearance, torture, etc., regarding the truth behind such instances and whereabouts of such persons. In fact, in this regard the United Nations Commission on Human Rights (UNCHR) in one of the Reports[14], accentuated,

“[i]n cases of gross human rights violations – such as torture, extrajudicial executions and enforced disappearance –serious violations of humanitarian law and other crimes under international law, victims and their relatives are entitled to the truth. The right to the truth also has a societal dimension: society has the right to know the truth about past events concerning the perpetration of heinous crimes, as well as the circumstances and the reasons for which aberrant crimes came to be committed, so that such events do not reoccur in the future”.

Similarly, the Human Rights Council[15], while, inter alia, appreciating, “Family members’ victimisation becomes even greater when men, who mainly suffer the fate of enforced disappearances, were the head of household. Here, enforced disappearance of men results in entire families becoming victims of enforced disappearances. As the family structure is disrupted, women are negatively affected economically, socially and psychologically. The emotional upheaval is thus exacerbated by material deprivation, made more acute by the costs incurred should they decide to undertake a search for their loved ones. Furthermore, they do not know when—if ever—their loved one is going to return, which makes it difficult for them to adapt to the new situation. In some cases, national legislation may make it impossible to draw a pension or receive other means of support in the absence of a death certificate. Therefore, economic and social marginalisation is frequently the result of an enforced disappearance”, recommended adoption of reparation programmes directed towards a wide/comprehensive category of victims, including individuals affected, both directly and indirectly due to such incidents.

Evidently, appreciating the travails of kinsmen of individuals directed subjected to enforced disappearance, the significance of articulation of an expansive definition of victim under ICPPED cannot be overemphasised. Notwithstanding the various laudable attempts made by virtue of adoption of ICPPED and the fact that the Convention represents a significant progress in international law[16], “in particular by defining the non-derogable right not to be subjected to an enforced disappearance”, perceptibility, its provisions are often critiqued[17], inter alia, on the ground that, “in restricting international criminalisation to enforced disappearances perpetrated or supported by State agents, the Convention enshrines an existing gap by allowing non-State agents to evade international criminal responsibility for acts of enforced disappearance that do not amount to torture or a crime against humanity”. However, despite such opprobrium, fact remains that ICPPED charts out momentous principles and rules, aimed to truncate and eventually annihilate the malevolence of enforced disappearance. Accordingly, it would not be overemphasis to state that the provisions under ICPPED represent a crucial stride towards the acknowledgement of the adverse consequences of enforced disappearance and prescribe certain laudable steps towards its mitigation.

Pertinently, preceding the advent of ICPPED, member States of the Organisation of American States[18] (OAS), while, inter alia, certifying that the systemic practice of forced disappearance of persons constitutes a crime against humanity and hoping to, “prevent, punish, and eliminate the forced disappearance of persons in the hemisphere and make a decisive contribution to the protection of human rights and the rule of law”, adopted the Inter-American Convention on the Forced Disappearance of Persons(IACFDP) in the year 1994. Significantly, the commitment of the State parties to IACFDP is manifest under Article I thereof, wherein such participants, inter alia, approved,

“not to practice, permit or tolerate the forced disappearance of persons, even in States of emergency or suspension of individual guarantees; to punish within their territories, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories; to cooperate with one another in helping to prevent, punish and eliminate the forced disappearance of persons and to take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention”.

Provisions relating to contracting States’ obligations relating to the categorisation of incidents of forced disappearance of persons as offence and adoption of measures to establish State’s jurisdiction over such offence(s) have been incorporated under Articles III and IV of IACFDP. Further, Articles VII of IACFDP, subject to the proviso/exception[19] envisaged therein, excludes the criminal prosecution for forced disappearance persons from the purview of statutes of limitations. Article VIII of the said Convention, additionally provides that in the events of such prosecutions the “defence of due obedience to superior orders or instructions that stipulate, authorise, or encourage forced disappearance shall not be admitted”. Similarly, as per Article X of IACFDP, exceptional circumstances such as, “a state of war, the threat of war, internal political instability, or any other public emergency” have been precluded to be invoked as a justification of forced disappearance of persons. Notably, Articles IX and XI of IACFDP enunciate the provisions pertaining to the trial of persons accused to be responsible for the commission of offence of forced disappearance of persons and prompt reproduction of detained individuals before competent judicial, in accordance with the applicable domestic laws of contracting States, respectively. Further, strikingly, Article XII of IACFDP obligate the State parties thereof to, “give each other mutual assistance in the search for, identification, location, and return of minors who have been removed to another State or detained therein as a consequence of the forced disappearance of their parents or guardians”.

Meritoriously, provisions under the IACFDP have untiringly been proved to be a beacon of hope for countless victims of forced disappearance and frequently deployed by institutions/organisations such as the Inter-American Court of Human Rights (IACtHR) to deliver respite to the travails of such individuals. Markedly, one of the instances wherein the provisions of the IACFDP, besides that under the Inter-American Commission on Human Rights (IACHR), etc., were invoked by the IACtHR pertained to incident of enforced disappearance of one María Claudia García Iruretagoyena de Gelman since late 1976[20], subsequent to her detention in Buenos Aires, during the advanced stages of her pregnancy. Notably, it was revealed that subsequently to her detention, María Claudia García was transported to Uruguay where she remained captive at the headquarters of Defense Information Services (SID) for a considerable duration and was eventually shifted to the Military Hospital, where her daughter, María Macarena Gelman García, was born. Despondently, notwithstanding the birth of María Macarena Gelman García, the condition of María Claudia García and her child did not ameliorate. On the contrary, in this regard, it was observed by the IACtHR, “there are two versions regarding María Claudia García’s fate: the first, that she was transferred to a clandestine military base where she was killed and her remains buried, and the second, that after her daughter was abducted from her, she was turned over to the Argentine security forces of “Automotives Orletti.” Said forces came to Montevideo, took her back to Argentina by a boat departing from the Carmelo port, and killed her in the neighbouring country.”

Pertinently, in this particular instance, while considering the extreme audaciousness in which María Claudia García’s rights were invalidated and nullified by the State and its machineries, the IACtHR was pleased to hold the said authorities not only liable for gross violation of her right to humane treatment, personal integrity, right to protection of family, right of fair trail, etc., rather, issued several reparative measures, inter alia, pertaining to the administration/carrying out of effective investigation by State in order to ascertain the facts and to, “determine the corresponding criminal, civil, and administrative responsibilities and apply the consequential sanctions provided by law”; acceleration of search and immediate location of María Claudia García, or of her bodily remains, “and, where appropriate, deliver them to her next of kin, after genetic parentage testing”; payment of compensation in the form of pecuniary and non-pecuniary damage by State and the reimbursement of costs and expenses in a prescribed manner; etc. Strikingly, while dealing with the facts of the present case, the IACtHR further explicitly avowed that enforced disappearance of persons, “constitutes a multiple violation of several rights protected by the American Convention, thereby placing the victim in a state of complete defenselessness, implying other related violations, particularly serious when said harm forms part of a systematic pattern or practice which is applied or tolerated by the State.” Simultaneously, it was acknowledged that the practice of enforced disappearance of persons constitutes, “an inexcusable abandonment of the essential principles on which the Inter-American System of Human Rights is founded and whose prohibition has reached the character of jus cogens”.

Similarly, in another instance[21], the IACtHR, while terming forced disappearance of persons as a continuing crime, constituting a complex form of human rights violation, declared,

“[f]orced disappearance signifies a flagrant rejection of the values inherent in human dignity and the most basic principles on which the inter-American system and the American Convention itself are based. It is equally evident that this crime implies a series of violations of different rights embodied in the Convention and that, in order to declare the violation of these rights, the Court does not require the defendant State to have ratified the relevant Inter-American Convention, nor does it require this in order to classify all these violations as forced disappearance”.

Notably, similar sentiments were earlier expressed under the 1992 UN Declaration on the Protection of All Persons from Enforced Disappearance[22] (1992 UN Declaration), while terming the act of enforced disappearance as an offence to human dignity and condemning it as a, “denial of the proposes of the Charter of the United Nations and as a grave and flagrant violation of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights”. Simultaneously, Article 1(2) of the 1992 UN Declaration proclaimed,

“act of enforced disappearance places the persons subjected thereto outside the protection of law and inflicts severe suffering on them and their families. It constitutes a violation of the rule of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life”.

Unfortunately, despite unremitting pleadings regarding an imminent need to contain the nativity, propagation and perpetuation of enforced disappearance and the consequent emergence of several concordats such as the ICPPED, Inter-American Convention, etc., to tackle this evil, the situation has not improved, markedly till date. As a matter of fact, there are several countries and individuals across the globe, suffering under the pernicious ravages of enforced disappearance.

Notably, in one such research conducted by Amnesty International[23] into the episodes of enforced disappearance committed by the Government in Syria from March 2011 to August 2015 it was, inter alia, divulged,

 “Since 2011 the Syrian Government has carried out an orchestrated campaign of enforced disappearances. At the beginning of the crisis it arrested and forcibly disappeared large numbers of peaceful opponents of the Government…. As the conflict evolved, so too did the Government’s strategy. It forcibly disappeared those it considered to be disloyal, such as defectors as well as government employees or soldiers who were believed to be considering defection. The Government also began forcibly disappearing family members of individuals wanted by the security forces, usually in an effort to dissuade these wanted individuals from continuing their political activism or military activities.”

 Similarly, as per another despairing recollection[24],

“[a]pproximately one million Syrians are estimated to have been arbitrarily arrested and unlawfully detained since 2011, by Government forces and affiliated militias in official and makeshift detention centers throughout the Syrian Arab Republic. In 2017 only, according to the Syrian Network for Human Rights, 6517 persons were arrested… 85,000 people have been subjected to enforced disappearance by the Syrian Government since 2011…vast majority of detainees are being held without due process and are not allowed access to legal representation or to their families. They endure various forms of brutal torture and subsist in severely inhumane conditions. Many have died in detention, while others have been summarily executed….”

Further, even in one of the recent accounts[25] of the Human Rights Watch, it was, disconsolately, observed, “exact number of disappeared in Syria cannot be determined because the overwhelming majority of detention facilities are off limits to outsiders. Those detained by government security services or many of the non-State armed groups in Syria are usually held incommunicado”.

Gloomily, these incidents eventuated and prevailed regardless of the fact that the UN Security Council in its 2139thResolution[26] had not only expressed vehement condemnation against the episodes of kidnappings, abductions, forced disappearances, arbitrary detentions and tortures of civilians in Syrian prisons/detention facilities, rather, demanded an immediate end thereof along with the release of, “all arbitrarily detained persons starting with women and children, as well as sick, wounded and elderly people and including United Nations personnel and journalists”. Withal, increasingly agonising is the fact that even as on date, such brutalities are openly manifested in Syria without any fright or consternation, leading to glaring and shameless pulverisation of human rights, including, unequivocal privation of rights to life and liberty of countless individuals.

Another equally distressing exemplification of enforced disappearance may be discerned in the context of overnight and clandestine disappearance of inestimable persons in Myanmar, particularly, those belonging to the Rohingya tribe from the Rakhine State of the country. As a matter of fact, pursuant to several barbaric incidents such as mass genocides, ethnic cleansing, pogrom, etc., perpetuate and/or sheltered by the Government of the country, millions of families have been rendered disintegrated, several lives lost and countless souls dissipated into oblivion.

Notably, the International Federation for Human Rights in one of its publications[27], while evaluating the seriousness of the situation prevailing in the country, recounted, “Enforced disappearances occur throughout Burma. In the total absence of the rule of law, an independent judiciary and legal remedies, the State Peace and Development Council (SPDC) has the absolute power to commit such violations without any investigation or protection mechanisms. The relatives of victims of enforced disappearances have no effective remedies.”

Similarly, the United Nations General Assembly in its Sixty-fourth Session[28], whilst expressing grave concern regarding the insistent practice of arbitrary detentions, enforced disappearances, etc., in Myanmar, urged the country’s Government to, inter alia, “reveal the whereabouts of persons who are detained or have been subjected to enforced disappearance, and to desist from further politically motivated arrests”. Needless to mention, such pleadings were quickly and conveniently brushed aside by even the top bureaucrats of Myanmar, leading to worsening of situation of the tyrannised. In fact, the prevailing ghastly policies of the Burmese regime and interminable resentment towards Rohingya population have desolately, made it quite manageable for the propagandists to extricate and vaporise legions of such individuals, without a trace of their whereabouts or existence.

Morosely, episodes of extra-judicial killing, enforced disappearance, torture and death in police custody, etc., have also been uncovered to be a commonplace in Myanmar’s neighbouring country, Bangladesh. As a matter of fact, appreciating the exacting and extremely distressing state of affairs in Bangladesh, Human Rights Watch in one of its disseminations[29], observed, “there had been a sharp increase in enforced disappearances, with persons disappearing after last being seen in the custody of security agencies leading to concerns that security agencies have replaced one form of abuse with another. Bangladeshi authorities routinely refuse to confirm the detention or fate of those persons who disappear after being seen in their custody”.

Similarly, Amnesty International[30], while lamenting on the gravity of prevailing situation in Bangladesh, accentuated, “Investigations into enforced disappearances are rare in Bangladesh. The police usually refuse to register complaints, only doing so when the families have obtained a court directive ordering an investigation. Even then, police usually do little to investigate the incident.” Regrettably, the indefatigable manifestations of these incidents has become a source of grave distress, considering that there have been countless proclamations reprimanding such conduct and accentuating a need for country’s commitment towards international rules, norms and customary practices. At the same time, while on one hand, the Supreme Court of Bangladesh, High Court Division[31] in one of its decisions, sternly rebuked the incidents of unlawful detention, arrests, torture, cruel, inhumane and degrading treatment in custody, etc., on the other hand, there have been several voices[32], professing that despite Bangladesh’s non-signatory status to ICPPED, “it still has obligations under the ICCPR (International Covenant on Civil and Political Rights) and the CAT (Convention against Torture) to prevent cases of enforced disappearance”.

Withal, akin to Myanmar’s instance, these entreaties failed to arouse any sentiments of responsibility or obligation in the sleeping conscience of Bangladesh’s top brass, leading to the undeterred continuation of barbarity in the county. Further, ominously, in order to evade the despairing fate and misfortune looming in Myanmar and Bangladesh, several individuals were forced to take refuge in other neighbouring countries. However, as may be predicted, quandaries of such agonised migrants escalate tremendously on their exodus as these stateless individuals become an easy prey to the “marauder” of enforced disappearances and susceptible to innumerable defilements, such as trafficking, prostitution, assassination, etc. Markedly, on one such occasion, UNHRC, while scrutinising the instances of disappearance of Rohingyas and Bangladeshi migrants in Thailand and Malaysia, uncovered[33], “In 2015, several mass graves were discovered in the border areas between Thailand and Malaysia. It was reported that some of the victims had been forced by traffickers to embark on boats leaving from Myanmar and Bangladesh. Earlier reports were published to the effect that Myanmar State security forces were complicit in and profiting from the increasingly lucrative maritime human trafficking and smuggling of Rohingya.”  Evidently, in several instances of enforced disappearances it has been sadly observed that not only do the guardians and protectors of rights transmute into their ultimate transgressors, rather, shamelessly profit out of such heinous dealings.

Despairingly, incidents of enforced disappearance are also not novel to countries like Sri Lanka, Pakistan, India, etc. Conspicuously, as per Amnesty International[34], “Sri Lanka has one of the world’s highest number of disappearances, with between 60,000 and 100,000 people vanishing since the late 1980s.” Similarly, Human Rights Watch in the year 2008[35], inter alia, observed, “large-scale enforced disappearances are not a new phenomenon in Sri Lanka. In the past, thousands of people have ‘disappeared’ in the context of the two major civil conflicts that have wracked the country since independence: the insurgency led by the left-wing Sinhalese Janatha Vimukthi Peramuna (JVP) in 1987-1990, and the two-decade long armed conflict between the LTTE and the Government”. Significantly, though, Sri Lanka ratified ICPPED in May 2016 and subsequently, adopted a specific law[36] (Act No. 05 of 2018/Act) in the year 2018, to give effect to its obligations under the said Convention, however, the country is yet to observe noticeable evolution from its prevailing distressing state of affairs. This is despite the fact that under the said enactment, not only the definition of enforced disappearance, accorded a broad connotation rather, stringent penalties extending to, “imprisonment for a term not exceeding twenty years, and also be liable to pay a fine not exceeding one million rupees and shall further be liable to pay compensation not less than five hundred thousand rupees to a victim”, prescribed for such offence. Strikingly, under the Act, penalties are also prescribed for wrongful confinement, abduction, kidnapping or deprivation of persons’ liberty, etc.; failure of superiors to exercise control over subordinates under their effective authority or to adopt measures, etc., to curb occurrences of such offences; aiding, abetting, attempting and conspiring to commit any of the offences provided under the Act, etc. Notwithstanding the same, these provisions have endured to remain mere words on paper, without proving to be of significant deterrence to their perpetrators.

Similarly[37] despite the Supreme Court of Pakistan, recurrently expressing strong opinions, “including calling for the establishment of a commission of inquiry to investigate cases of enforced disappearance, and (holding) that the principles enshrined in the ICPPED are applicable notwithstanding the fact that the Government has not ratified the treaty”, the ground realities are quite austere. Ominously in the year, 2016, while appreciating the grim situation prevalent in the country, Asian Human Rights Commission[38], raised an alarm by, inter alia, noting, “[a]lthough the Pakistan Supreme Court has declared enforced disappearances unconstitutional and a blatant violation of the fundamental right to life, yet the state and intelligence agencies continue the practice unabated. The trend is increasing each year and shows no signs of stopping soon…. Many activists have disappeared or been killed since the start of the military operation Zarb-e-Azb in Pakistan.” Strikingly, in the year 2021, the Minister of Human Rights of Pakistan introduced the Criminal Laws (Amendment) Bill, 2021 in the National Assembly of the country, primarily to criminalise incidents of enforced disappearance(s). Notably, by means of the said Amendment Sections 512 and 513 were proposed to be introduced under the Pakistan Penal Code, 1860[39], defining forcible or involuntary disappearances and prescribing punishment(s) for forcible or involuntary disappearances, respectively.

Ironically, both in the case of Sri Lanka and Pakistan, despite being equipped with rudimentary legal frameworks to deal with the problem of enforced disappearance, reluctance of the countries to establish and implement stringent statutory prescriptions to contain the said evil is quite difficult to comprehend and concede to.

Markedly, despite ample protections against unlawful arrest, detention, confinement, etc., under the Constitution of India[40] and several of the country’s statutes[41], there have been several situations where these provisions failed to prove to be of sufficient deterrence to curtail the blatant and unabated atrocious acts by the Indian Government, police, security forces, etc. As a matter of fact, the country, despite professing itself as a perfect exemplification of the democracy, ironically, has witnessed numerous instances of gruesome human rights violation, custodial deaths, violence, torture, enforced disappearances, etc., effectuated by said authority(ies) in power. Illustratively, according to one of the reports/publications[42] of the Association of Parents of Disappeared Persons (APDP), it was uncovered that in India, “enforced disappearances have taken place in the North-East States reeling under armed conflict, like Nagaland, Mizoram, Manipur, Assam. The Disappearances in the State of Punjab since 1985 to 1997 were documented by the different human right organisations, including the Committee for Coordination on Disappearances in Punjab…. The phenomenon of enforced disappearances emerged in Kashmir after 1989, after the outbreak of armed conflict….It is reported that more than 2000 people since 1989, after their arrests by the law enforcing agencies have disappeared. And the disappearances have taken place during the Governor as well as civilian rule imposed in State since 1989 by the Government of India”.

Comparably, the United States Department of State pronounced[43], “[t]here are credible reports that police throughout India often do not file required arrest reports, with the result that there are hundreds of unsolved disappearances in which relatives claim a person was taken into police custody and never heard from again. Police usually deny these claims, countering that there are no records of arrest….”

This problem is particularly acute in Punjab, where there was a sharp rise in reported disappearances as the police sought to eliminate militants and their supporters. Sikh human rights groups reported dozens of disappearances in which police claimed they never held a person, even when there were witnesses to the arrest”. Further, in one of the studies conducted by Amnesty International[44], it was inter alia, recorded, “[i]n January 1995 the human rights wing of the Shiromani Akali Dal party alleged that it had evidence showing that, during the period of militancy, Punjab Police had carried out secret cremations of hundreds of “unclaimed” bodies in the crematoria of Amritsar District. The party said that some of the bodies were those of people who had “disappeared” in police custody and had been extrajudicially executed.” Significantly, pursuant to said accusations, proceedings were filed before the Supreme Court of the country, inter alia, seeking a police investigation of the alleged incident/episode. Consequently, the Supreme Court entrusted the investigative task to the Central Bureau of Investigation/CBI, wherefore it was shockingly, revealed[45] that around 2097 bodies were illegally cremated by police and other State authorities, etc., at three cremation grounds in one of the (then) thirteen districts of the State, alone. Eventually, taking cognizance of the said CBI’s uncovering, the Supreme Court vide its order of December 1996[46], beseeched the Chairman of the National Human Rights Commission (NHRC), “to have the matter examined in accordance with law and determine all the issues which are raised before the Commission by the learned counsel for the parties”. Additionally, the Supreme Court directed NHRC to determine even the amount of compensation to be granted to the victims of such brutalities, clarifying that the amount of compensation determined/awarded by NHRC shall be binding and payable.

In another instance, the Supreme Court of India[47] while affirming that in addition to the protection provided under the Constitution, “the Protection of Human Rights Act, 1993[48], also provides for protection of all rights to every individual. It inhibits illegal detention, emphasised on the obligation of State to ensure prohibition of torture, cruel, inhuman and degrading treatment to any person, particularly at the hands of any State agency/police force. Accordingly, the Supreme Court firmly avowed that the State must “protect the victims of torture, ill-treatment as well as the human rights defender fighting for the interest of the victims, giving the issue serious consideration for the reason that victims of torture suffer enormous consequences psychologically”.

Exceptionally, in another instance, while dealing with the instances of unlawful detention and confinement, motivated by the authority(ies) in power, the Supreme Court stressed upon the significance of writ of habeas corpus as an effective remedy, accessible to the victims of such misdeeds. In fact in the instant case the Supreme Court openly declared[49] that the said writ (habeas corpus) is, “primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint”.

Similarly, in Ummu Sabeena v. State of Kerala[50], the Court remarked,

  1. … writ of habeas corpus is the oldest writ evolved by the common law of England to protect the individual liberty against its invasion in the hands of the executive or may be also at the instance of private persons.…
  2. … writ of habeas corpus makes it a writ of the highest constitutional importance being a remedy available to the lowliest citizen against the most powerful authority…. That is why it has been said that the writ of habeas corpus is the key that unlocks the door to freedom….

Undoubtedly, though, the provisions under the country’s Constitution as well as the persistent declarations from its Supreme Court should have plentiful to deal with the menace of enforced disappearance in India, however, the reality is far different. Appreciably in the year 2018, while appreciating that enforced disappearances are “human rights violations which not only cause an unlawful deprivation of liberty of the individual, but cause psychological, economic and social distress to the families of the ‘’disappeared’ individual who are unaware of the fate of the person” and that persistent, disconsolate, occurrence of such incidents of grave human rights violation in India[51], the Prevention of Enforced Disappearance Bill, 2018 (2018 Bill) was introduced in one of the houses/Lok Sabha of the Indian Parliament. Strikingly, Section 3 of the 2018 Bill, inter alia, provides,

Whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act which deprives any person of his liberty, including arrest, detention, or abduction, which is followed by a refusal to acknowledge such deprivation of liberty or concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law is said to effect an enforced disappearance.

Further, as per Section 4 of the said Bill, subjection of any person to enforced disappearance by any public servant or any person abetted by or with the consent or acquiescence of such public servant is stipulated to be punishable with, “imprisonment of either description for a term which shall not be less than three years but which may extend up to ten years and shall also be liable to fine”. Simultaneously, Section 5 of the 2018 Bill provides for punishment for disregarding information of an enforced disappearance(s) by any public servant, effectuated by any of his subordinates and a consequent failure to submit such matter(s) to the competent authority for investigation and prosecution. Intelligibly, the 2018 Bill incorporated several provisions to deal with the issue of enforced disappearance, head-on. However, the proposed statute aimed to, inter alia, fulfil the country’s commitment, “to the United Nations to the Universal Declaration of Human Rights and to a legal system that offers remedies for human rights violations by the State” failed to transmute into a binding enactment. Disconsolately, these despicable events continue undeterred across the country, blotting its image on an international platform on one hand, while precipitating an element of fear, uncertainty and anxiety amongst the general public.

Conspicuously, it would not been an overemphasis to state that the incidents of enforced disappearance are not exclusive to the developing and underdeveloped nations of the world, rather, this problem is quite rampant and exists in equal vigour in the developed countries, such as Russia, Ireland, Spain, etc. In fact, there have been several instances where the jurisdiction of the European Court of Human Rights has been invoked to seek justice/reparation in the events of enforced disappearance, torture, etc. These proceedings, in turn, are primarily dealt with in accordance with the various provisions enshrined under the European Convention on Human Rights (ECHR). However, despite the existence of this machinery, it has been oft-times observed[52] that courts’ judgments under such cases, “remain poorly or only slowly implemented. Investigations are very seldom launched, thus prolonging impunity for serious human rights violations and perpetuating the violation of the victims’ rights to truth and justice”. Consequently, in the absence of effective mechanism for the execution of the said pronouncements, it has frequently been observed that these limited protective contraptions have proved to be grossly inadequate to ameliorate the plight of victims. Needless to state that under the circumstances, it becomes incumbent that not only gross human rights violations, perpetuated in the form of enforced disappearances are acknowledged and sanctioned, rather, it is ensured that the punitive measures adopted under such circumstances are given effect to. At the same time, it has become an impending need of the hour that the countries, avoiding ratification of international conventions and legislation of domestic laws to handles such barbarous instances appreciate their responsibility towards their citizens and world community and adopt effective measures in the said direction.

Notably, in this context, the UNHRC’s Commission of Inquiry[53], while analysing the existing grim situation and perseverance of systemic, widespread and gross human rights violations in the Democratic People’s Republic of Korea¸ inter alia, recommended[54] the country’s Government to, “[r]atify without delay the International Convention for the Protection of All Persons from Enforced Disappearance, the Convention on the Rights of Persons with Disabilities, the Rome Statute of the International Criminal Court and the fundamental conventions of the International Labour Organisation”. Understandably, said commendation was made, inter alia, in light of the findings of the Commission that the,

“keystone to the political system is the vast political and security apparatus that strategically uses surveillance, coercion, fear and punishment to preclude the expression of any dissent. Public executions and enforced disappearance to political prison camps serve as the ultimate means to terrorise the population into submission. The State’s violence has been externalised through State-sponsored abductions and enforced disappearances of people from other nations. These international enforced disappearances are unique in their intensity, scale and nature”.

However, unfortunately the country failed to appreciate its accountability and take appropriate steps in light of the Commission’s recommendations grimly leading to not even a fragmental change in the country’s dismal state of affairs.

Intelligibly, in majority instances of enforced disappearance the consequent events of torture, degrading and inhumanely treatment, death, etc., are, sadly, quite obvious to anticipate/expect. Pertinently, even in the cases where no physical torture or threat may ensure consequent upon such acts of illegal detention and enforced disappearance, clandestine removal and separation of victim from his or her family ipso facto amounts to a mental and psychological abuse/maltreatment, no less than infliction of actual bodily pain.

In fact, an appreciation of this verity seems to be the reason that Article 1 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[55] (UNCAT), comprehensively defines the term “torture” as,

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.

Significantly, Articles 4 and 5 of the said Convention oblige its contracting State parties to ensure that all acts of tortures including attempts, complicity, or participation therein are declared as offences under their respective criminal law(s), punishable by appropriate penalties depending on the gravity of the said offence and that appropriate measures are adopted to establish State’s jurisdiction in all such events of commission of offence of torture, respectively. Provisions pertaining to extradition, custody, mutual cooperation amongst States, etc., are encapsulated under Articles 6 to 12 of UNCAT, besides the rights of victims to seek redressal of their grievances against the acts of torture are provided under Article 14 thereof.

Strikingly, Article 17 of UNCAT provides for the establishment of a Committee against Torture (CAT/ Committee) to carry out various functions, stipulated under the UNCAT, inter alia,to conduct/get conducted an inquiry into the (alleged) incidents of torture in terms of the provisions under Article 20 thereof. At the same time, Article 30 of UNCAT, inter alia, provides, “[a]ny dispute between two or more States parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration”. Conspicuously, the UNCAT was adopted by the UN, inter alia,under a cognizance of the fact that the, “recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” and with a desire to make more effect, “the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world”.

Appositely, as per recent data[56] 171 (one hundred and seventy one) States are a party to the UNCAT and 21 (twenty one) States have yet not taken any action in furtherance of/towards the provisions contained thereunder. However, considering the indispensable nature of the provisions envisaged under the said Convention, reluctance of States to ratify and give effect to the provisions contained therein is quite difficult to comprehend and concede to. At the same time, considering that the provisions under UNCAT should have proved to be of sufficient deterrence towards the perpetuation of events of enforced disappearance, the tenacious recurrence of such savagery have made it incumbent that the provisions under the ICPPED, IACFDP, etc., are religiously adopted under the domestic laws of all countries and stringently enforced.

Pertinently, the UN General Assembly during the course of its Sixty-fifth Session, while adopting a resolution[57], expressed a deep concern regarding, “the increase in enforced or involuntary disappearances in various regions of the world, including arrest, detention and abduction, when these are part of or amount to enforced disappearances, and by the growing number of reports concerning harassment, ill-treatment and intimidation of witnesses of disappearances or relatives of persons who have disappeared”. At the same time, the General Assembly, while welcoming the fact that (till then) eighty-seven States had signed the ICPPED and twenty-one had ratified or acceded to it, urged the States that, “have not yet done so to consider signing and ratifying or acceding to the Convention as a matter of priority, as well as to consider the option provided for in Articles 31 and 32 of the Convention regarding the Committee on Enforced Disappearances”. Simultaneously, it was decided and declared August 30 as the International Day of the Victims of Enforced Disappearances, to be observed beginning in 2011. Subsequently, with a growing awareness of the evil of enforced disappearance and its consequent ramifications on families, societies, communities, countries and world at large, there have been ample implorations and resolutions across the world to exterminate this monstrosity and make world a better and a safer living place. However, despite such declarations, there is a long way ahead to the actualisation of this goal.

Notably, several countries of the world presently recognise life and liberty of every individual as inherent, basic and inalienable rights, which may be subjected to restraint and moderation only under certain exceptional circumstances. In fact, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) specifically provides, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Similarly, as per Article 2of the ECHR, “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Further, the provisions of same/similar nature are adopted under the Constitution(s)[58] of several State(s)/countries around the globe. Clearly, these provisions aim to contain the unbridled supremacy of States and authority in power by balancing the rights of individuals and the sovereign exercise of States. At the same time, there are innumerable precedents[59] which exemplify that the deprivation of individual’s liberty must be in accordance with the principles of fairness, equity, prudence, justice, etc. and that the same cannot be dictated by arbitrariness, unfairness, unreasonableness, etc. Consequently, seen in this context, the uninhibited operation of enforced disappearances as a weapon to curtail dissent, explicitly, runs contra to several inviolable human rights and basic tenets of democracy. Evidently, subjugation of voices of disagreement with the employment of this clandestine weapon indirectly hollows out the foundation of egalitarianism and ruins innumerable families of their happiness and hope and, therefore, cannot be permitted to exist in any of its manifestations.

As someone once recollected, “Torture is banned but in two-thirds of the world’s countries it is still being committed in secret. Too many governments still allow wrongful imprisonment, murder or ‘disappearance’ to be carried out by their officials with impunity.” Indubitably, the leviathan of enforced disappearance continues to plague the world with its deadly venom, divesting families of their members and their hope for happiness and survival. Further, despite the existence of numerous international conventions, treaties, obligations, precedents, etc., acknowledging and attempting to deal with the perpetuation of this evil, reluctance of majority States of the world to adopt these provisions under their domestic laws and provide and effective enforcement mechanism thereof, has proved to be a huge impediment towards the effectuation of any positive steps towards the amelioration of the bereaved. Considering that a large number of these States profess and pride themselves as democratic and welfare States, the sheer negation of incidents of enforced disappearance is quite ironical. No doubt, though, this clandestine device may subsist as a potent weapon in the hands of administrators/rulers of nations, however, considering the obligation which the states owe to themselves and their citizens and world community alike, no State can afford to prioritise their personal motives which become a source of concern for world community. Evidently, time is ripe for the States to acknowledge their responsibility and take effective steps so that this Goliath is annihilated, once and for all. It is only then that there will be no more inconsolable recollections, akin to Mr X’s.


*Advocate. Author can be reached at abhigoyal85@gmail.com.

[1] Doris Salcedo.

[2] UN General Assembly, International Convention for the Protection of All Persons from Enforced Disappearance, 20-12-2006, available at<https://www.refworld.org/docid/47fdfaeb0.html>(accessed on 22-9-2021).

[3] Organisation of American States (OAS), Inter-American Convention on Forced Disappearance of Persons, (9-6-1994).

[4]“‘Enforced disappearance of persons’ means the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.”

[5] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17-7-1998, ISBN No. 92-9227-227-6, available at<https://www.refworld.org/docid/3ae6b3a84.html>(accessed on 22-9-2021].

[6] UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, 16-8-2013, A/HRC/24/46, available at<https://www.refworld.org/docid/52302c5c4.html>(accessed on23-9-2021).

[7] UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 6 Rev. 3, Enforced or Involuntary Disappearances, July 2009, No. 6/Rev.3, available at<https://www.refworld.org/docid/5289da9c4.html>(accessed on23-9-2021).

[8]Refer to UN Commission on Human Rights, Report submitted by Mr Manfred Nowak, Independent Expert Charged with Examining the Existing International Criminal and Human Rights Framework for the Protection of Persons from Enforced or Involuntary Disappearances, pursuant to Para 11 of Commission Resolution 2001/46, 7-1-2002, E/CN.4/2002/71, available at<https://www.refworld.org/docid/3d6ce3c50.html>(accessed on 24-9-2021).

[9]Refer to International Military Tribunal (Nuremberg), Judgment of 1-10-1946, available at<https://www.legal-tools.org/doc/45f18e/pdf/>(accessed on24-9-2021).

[10]Refer to, UN Human Rights Council, Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, 19-2-2010, A/HRC/13/42, available at <https://www.refworld.org/docid/4d8720092.html>(accessed on24-9-2021).

[11]Refer to, UN Commission on Human Rights, Civil and Political Rights, Including the Questions of Disappearances and Summary Executions: Question of Enforced or Involuntary Disappearances/Note by the Secretariat, 21-12-2000, E/CN.4/2001/69, available at <https://www.refworld.org/docid/3b00f54fc.html>(accessed on25-9-2021).

[12]Refer to, United Nations Treaty Collection, International Convention for the Protection of All Persons from Enforced Disappearance; New York, 20-12-2006, available at <https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-16&chapter=4&clang=_en>(accessed on26-9-2021.

[13] Council of Europe: Parliamentary Assembly, Enforced Disappearances, 19-9-2005, Doc. 10679, available at <https://www.refworld.org/docid/43a97ee64.html>(accessed on 28-9-2021).

[14] UN Commission on Human Rights, Study on the Right to the Truth, Report of the Office of the United Nations High Commissioner for Human Rights, 8-2-2006, E/CN.4/2006/91, available at <https://www.refworld.org/docid/46822b6c2.html>(accessed on 29-9-2021).

[15] Refer to General Comment on Women Affected by Enforced Disappearances Adopted by the Working Group on Enforced or Involuntary Disappearances at its Ninety-Eighth Session (31-12-2012 – 9-11-2012), A/HRC/WGEID/98/2, available at <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G13/112/57/PDF/G1311257.pdf?OpenElement>(accessed on16-10-2021).

[16] Refer to UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 6 Rev. 3, Enforced or Involuntary Disappearances, July 2009, No. 6/Rev.3, available at <https://www.refworld.org/docid/5289da9c4.html>(accessed on 26-9-2021).

[17]Refer to, Kirsten Anderson, How Effective is the International Convention for the Protection of All Persons from Enforced Disappearance Likely to be in Holding Individuals Criminally Responsible for Acts of Enforced Disappearance?, available at <https://law.unimelb.edu.au/__data/assets/pdf_file/0004/1681213/Anderson.pdf>(accessed on 26-9-2021).

[18]The OAS came into being in 1948 with the signing in Bogotá, Colombia, of the Charter of the OAS, which entered into force in December 1951. The Organisation was established in order to achieve among its member state, as stipulated in Art. 1 of the Charter, “an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence.” Today, the OAS brings together all 35 independent states of the Americas and constitutes the main political, juridical, and social governmental forum in the Hemisphere. In addition, it has granted permanent observer status to 69 States, as well as to the European Union (EU)., available at <http://www.oas.org/en/about/who_we_are.asp>(accessed on 26-9-2021).

[19]“However, if there should be a norm of a fundamental character preventing application of the stipulation contained in the previous paragraph, the period of limitation shall be equal to that which applies to the gravest crime in the domestic laws of the corresponding State party.”

[20]Refer to Case Gelman v. Uruguay, Inter-American Court of Human Rights (IACtHR), 24-2-2011, available at <https://www.refworld.org/cases,IACRTHR,4f75c1182.html>(accessed on 28-9-2021.)

[21]Case of the Serrano-Cruz Sisters v. El Salvador, Serie C No. 118, Inter-American Court of Human Rights (IACtHR), 23-11-2004, available at<https://www.refworld.org/cases,IACRTHR,4f5a06d82.html>(accessed on 29-9-2021).

[22] UN General Assembly, Declaration on the Protection of All Persons from Enforced Disappearance: Resolution/Adopted by the General Assembly, 18-12-1992, A/RES/47/133, available at<https://www.refworld.org/docid/3b00f22030.html>(accessed  on 3-10-2021).

[23] Amnesty International, ”Between Prison and the Grave”– Enforced Disappearances in Syria,5-11-2015, MDE 24/2579/2015, available at<https://www.refworld.org/docid/563b1c3a4.html>(accessed on 3-10-2021).

[24] International Federation for Human Rights, Supporting the Future of Syria and the Region: FIDH and SCM Priorities for the Brussels II Conference (24-4-2018 to 25-4-2018), 23-4-2018, available at <https://www.refworld.org/docid/5bc83c7e4.html>(accessed on3-10-2021).

[25]Human Rights Watch, Syria: Talks Should Address “Disappeared”, 30-8-2017, available at <https://www.refworld.org/docid/59aeb7484.html>(accessed on 3-10-2021).

[26]Resolution adopted by the UN Security Council at its 7116th meeting, on 22-2-2014, available at <https://www.un.org/press/en/2014/sc11292.doc.htm>(accessed on 3-10-2021).

[27]International Federation for Human Rights, Burma/Myanmar – International Crimes Committed in Burma: The Urgent Need for a Commission of Inquiry, August 2009, n°527a, available at <https://www.refworld.org/docid/4a83c4490.html>(accessed on 3-10-2021).

[28] UN General Assembly, Situation of Human Rights in Myanmar : Resolution/Adopted by the General Assembly,26-3-2010, A/RES/64/238, available at<https://www.refworld.org/docid/4bfe30d32.html>(accessed on 3-10-2021).

[29] Human Rights Watch, Bangladesh: Alarming Rise in “Disappearances”, 27-4-2012, available at<https://www.refworld.org/docid/4fa106ca2.html>(accessed on 3-10-2021).

[30] Amnesty International, Bangladesh: Stop Enforced Disappearances, Torture and Restrictions on Freedom of Expression, 2-9-2014, ASA 13/006/2014, available at <https://www.refworld.org/docid/540d6baa4.html>(accessed on 5-10-2021).

[31]Bangladesh Legal Aid and Services Trust (BLAST) v. Bangladesh, Writ Petition No. 3806/1998, dated 7-4-2003; available at <https://www.blast.org.bd/content/judgement/55-DLR-363.pdf> (accessed on 5-10-2021).

[32] Refer to, International Federation for Human Rights, Bangladesh: Criminal Justice through the Prism of Capital Punishment and the Fight against Terrorism, 10-10-2010, available at <https://www.refworld.org/docid/4cb2ac7b2.html>(accessed on 5-10-2021).

[33]Refer to UN Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances on Enforced Disappearances in the Context of Migration, 28-7-2017, A/HRC/36/39/Add.2, available at <https://www.refworld.org/docid/59bfb3aa4.html> (accessed on 5-10-2021).

[34]Enforced Disappearances, available at<https://www.amnesty.org/en/what-we-do/enforced-disappearances/>(accessed on 5-10-2021).

[35]Refer to Human Rights Watch, Recurring Nightmare: State Responsibility for “Disappearances” and Abductions in Sri Lanka, 6-3-2008, Vol.20, No. 2(C), available at <https://www.refworld.org/docid/47d0fab62.html>(accessed on 6-10-2021).

[36]Refer to International Convention for the Protection of All Persons from Enforced Disappearance Act, No. 5 of 2018, available at<https://www.srilankalaw.lk/gazette/2018_pdf/05-2018_E.pdf>(accessed on 6-10-2021).

[37]Refer to International Commission of Jurists (ICJ), No More “Missing Persons”: The Criminalisation of Enforced Disappearance in South Asia, August 2017, available at <https://www.refworld.org/docid/5a212dba4.html>(accessed on 7-10-2021).

[38]Disappearances and Extrajudicial Killings of Sindhi Nationalists Continue, Urgent Appeal Case: AHRC-UAC-153-2016, 13-12-2016, available at<http://www.ahrchk.org/ruleoflawasia.net/news.php?id=AHRC-UAC-153-2016>(accessed on 5-10-2021).

[39]Refer to Bill Criminalising Enforced Disappearance Introduced in NA, The Express Tribune, 8-6-2021, available at https://tribune.com.pk/story/2304170/bill-criminalising-enforced-disappearance-introduced-in-na (accessed on 6-10-2021).

[40]Refer to,Constitution of India, Arts. 20, 21 and 22.

[41] Illustratively, Ch. V (Sections 41 till 60-A) of the Code of Criminal Procedure, 1973, available at <https://legislative.gov.in/sites/default/files/A1974-02.pdf> (accessed on 9-10-2021).

[42]Refer to Enforced Disappearances in Jammu and Kashmir, available at <https://www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/droi_080716_enforceddisapinjk/DROI_080716_EnforcedDisapinJKen.pdf>(accessed on 9-10-2021).

[43] United States Department of State, US Department of State Country Report on Human Rights Practices 1993 – India, 30-1-1994, available at<https://www.refworld.org/docid/3ae6aa7f0.html>(accessed on 9-10-2021).

[44] Amnesty International, India: Break the Cycle of Impunity and Torture in Punjab, 20-1-2003, ASA 20/002/2003, available at <https://www.refworld.org/docid/3f152a1f4.html> (accessed on 9-10-2021).

[45] Human Rights Watch, Protecting the Killers: A Policy of Impunity in Punjab, India, 18-10-2017, Vol. 19, No. 14(C), available at<https://www.refworld.org/docid/471856c82.html>(accessed on 9-10-2021).

[46]Paramjit Kaur v. State of Punjab, (1999) 2 SCC 141.

[47]Prithipal Singh v. State of Punjab, (2012) 1 SCC 10.

[48]Protection of Human Rights Act, 1993.

[49]Kanu Sanyal v. Distt. Magistrate, Darjeeling, (1973) 2 SCC 674.

[50](2011) 10 SCC 781, 786.

[51]“India’s history is marred with violations of human rights and enforced disappearances. A Human Rights Watch Report in 2007 noted the revelation of 6000 secret cremations by the police in just one of the erstwhile districts of Punjab. A report by Association of the Parents of Disappeared Persons indicated that more than 8000 people have gone missing under suspicious circumstances in Jammu and Kashmir between 1989 and 2008. As regularly reported, the incidents are not limited to disturbed areas but affect people of all ages and professions in the States of Andhra Pradesh, Gujarat, Maharashtra, Uttar Pradesh, Bihar, Rajasthan and Odisha. It is necessary to enable legislation that prevents future enforced disappearances, and protects the citizens from such crimes.”Refer to, Prevention of Enforced Disappearance Bill, 2018, available at http://164.100.47.4/billstexts/lsbilltexts/asintroduced/4151LS%20AS%20INTRO.pdf (accessed on 10-10-2021).

[52]Refer to Council of Europe: Commissioner for Human Rights, Missing Persons and Victims of Enforced Disappearance in Europe, March 2016, available at <https://www.refworld.org/docid/572233704.html > (accessed on 10-10-2021).

[53] UNHRC’s Commission of Inquiry was established pursuant to the 22nd Session of the United Nations Human Rights Council on 21-3-2013 to investigate the systematic, widespread and grave violations of human rights in the Democratic People’s Republic of Korea. Refer to A/HRC/RES/22/13, available at <https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/a_hrc_res_22_13.pdf>(accessed on 10-10-2021).

[54] UN Human Rights Council, Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, 7-2-2014, A/HRC/25/CRP.1, available at <https://www.refworld.org/docid/530314234.html>(accessed on 10-10-2021).

[55]UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10-12-1984, United Nations, Treaty Series, Vol. 1465, p. 85, available at <https://www.refworld.org/docid/3ae6b3a94.html>(accessed on 16-10-2016).

[56]Refer to United Nations Human Rights, Status of Ratification Interactive Dashboard, available at <https://indicators.ohchr.org/>(accessed on16-10-2021).

[57] Resolution adopted by the General Assembly on 21-12-2010, A/RES/65/209, available at <https://undocs.org/A/RES/65/209>(accessed on16-10-2021).

[58]Refer to Constitution of India, Art. 21 which provides, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[59]Refer to the decision of Indian Supreme Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

Case BriefsHigh Courts

Andhra Pradesh High Court: In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denies to issue direction to the State in favour of the petitioner. The Bench, however, remarked,

 

“The State is unconscious of the directions issued by NALSA and failed to provide a specific column meant for gender identity for transgender in the proforma of application in the Notification dated 01.11.2018 and did not provide any reservation to transgenders, as they are socially and educationally backward and not in a position to compete with ordinary men and women.”

 

Factual Matrix

In the instant case, one Matam Gangabhavani, a transgender approached the Court seeking to declare Notification vide Rc.No.216/R&T/Rect.1/2018 dated 01-11-2018 as illegal, arbitrary and violative of Articles 14, 15, 19 and 21 of the Constitution as it did not make any provision for reservation of appointment of transgender persons contrary to the decision of the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438. The petitioner also urged for a direction to the respondents-Police Recruitment Board to make appropriate provision for transgender persons and further direct the respondents to appoint the petitioner on the post of Stipendiary Cadet Trainee Sub-Inspector of Police on the vacant post, kept apart for the petitioner in terms of High Court order dated 13-02-2018.

 

The petitioner, a male by birth, underwent Sexual Reassignment Surgery in the year 2003. The case of the petitioner was that pursuant to the recruitment notification, the petitioner applied for the post of Stipendiary Cadet Trainee, however since there were only two categories provided for disclosure of gender namely, “Male” and “Female” the petitioner was forced to mention identity as female while registering for the examination.

 

Though, the petitioner appeared for the first round of recruitment process i.e Preliminary Written Test, could not obtain minimum required marks. Therefore, the petitioner claimed benefit of reservation by relying on the decision of NALSA v. Union of India (2014) 5 SCC 438 by contending that there is reservation for various categories of castes, yet no reservation is provided for transgenders category; despite the transgenders being the most disadvantaged class who cannot compete with male or female genders. Finally, it was contended that, when the petitioner was the sole transgender appeared for the examination, though identifying as female, the petitioner must be selected by providing reservation in the light of Transgender Persons (Protection of Rights) Act, 2019.

 

Case before Central Administrative Tribunal

The petitioner filed O.A.No.23 of 2019 before Andhra Pradesh Administrative Tribunal challenging the impugned Notification, however the same was dismissed on the following grounds:

“a) That the recruitment as per the notification is being proceeded with respect to men and women vacancies only;

b) The notification is not a general notification for applications from all gender and that the notification is gender specific;

c) When the notification for recruitment is gender specific, a transgender person is not entitled to compete for the said post along with men and women.

d) The reliefs claimed in O.A.No.23 of 2019 relate to decisions to be taken by the Government concerned in the Constitution of India as well as specific laws relating to recruitment and appointment to public post.”

 

Observations and Opinion

Observing that concept of “proportional equality” expects the States to take affirmative action in favour of disadvantaged sections of the society within the legal framework of liberal democracy, the Bench stated that the petitioner being a transgender was entitled for proportional equality as the State is expected to take affirmative action in favour of disadvantaged section of the society, and the transgenders are cursed by everyone; living in distressed condition and are being put to harassment in different ways, both physically, mentally and sexually by different persons. The Bench added,

“More so, their number is minimum in the State, but they are not being provided proportional equality in the employment and are totally neglected by the State without providing even a column in the application form for gender identity of transgender, thereby, it amounts to denial of an opportunity in employment treating them unequals with men and women.”

 

Therefore, the Bench held that such discrimination of transgender from men and women could be said to be arbitrariness, being opposed to reasonableness, and antithesis to law. Hence, the Bench stated, failure to provide sufficient opportunity in the employment by providing a specific column for identity of third gender in all employment notifications, treating them as equals with men and women and failure to provide employment to them, though they are eligible is nothing but arbitrariness in the State’s action.

“Though, transgender is a person recognized in the epics, the lawmakers, including the Constitutional framers did not take note of their existence and treatment of transgenders on par with others.”

 

Whether the Notification was Illegal and Arbitrary?

Since the impugned Notification was issued based on the subsisting rules of reservation in the State, strictly adhering to the subsisting rules, the Bench held that the notification could not be declared as illegal and arbitrary. Even to construe that the respondent violated the direction issued by the Supreme Court in NALSA v. Union of India (2014) 5 SCC 438, the direction was only to take steps for providing reservation to transgenders based on their social and educational backwardness, it was only a positive obligation on the State and in the absence of any steps taken by the State, failure of its instrumentalities to provide reservation to transgenders did not make the notification impugned in this writ petition invalid. At best, such failure may attract contempt being filed before the competent court.

Hence, the Bench held that there was no ground to declare the impugned notification as illegal or arbitrary.

 

Analysis and Findings

In NALSA v. Union of India (2014) 5 SCC 438., the Supreme Court had directed the Centre and State Governments to take steps to provide reservations to transgenders in employment and to take steps to treat the transgenders as Socially and Educationally backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Hence, the direction issued by the Supreme Court was only to the extent of taking steps to treat transgenders as socially and educationally backward classes of citizens, but not for creating reserving particular percentage of posts to transgenders.

 

Though a clarification was issued by the Principal Secretary to Government, Home (Legal.II) Department vide Memo.No.830231/Legal.II/A1/2020 dated 29-09-2020, for appointment of meritorious, eligible transgender person either against a woman vacancy or man vacancy, based on merit, since there are no reservations for transgenders, the Bench held that the aforementioned Memo would not extend any such benefit to the transgender persons in terms of the judgment in NALSA v. Union of India (2014) 5 SCC 438.

 

Differentiating the case of K. Pritika Yashini v. Tamil Nadu Uniformed Services Recruitment Board, 2015 SCC OnLine Mad 11830, wherein a minor relaxation was given to the transgender woman who had qualified in all the tests, the Bench stated that the same had no application to the case of the petitioner for the reason that the petitioner did not qualify herself even in the preliminary examination, having secured 28% in Paper-I and 21% in Paper-II. Opining that if, for any reason, the petitioner secured marks and got through the preliminary examination and if there is any variation in the physical tests, the principle laid down in the above judgments could be applied, the Bench stated,

“The intellectual levels of men, women and transgender may vary to a little extent. But the Rules did not permit appointment of transgender without securing minimum qualifying mark.”

 

Further, even the Transgender Persons (Protection of Rights) Act, 2019 and Transgender Persons (Protection of Rights) Rules, 2020 are silent regarding provision for reservation in public employment or any government establishments to transgender persons. Therefore, the Bench held that the Court could not issue any direction to provide reservation to the petitioner based on sex or social status, more so, when a direction was issued by the Supreme Court to extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

 

Verdict

Considering that the direction issued by the Supreme Court in NALSA v. Union of India (2014) 5 SCC 438 is suffice to provide reservation in cases of admission in educational institutions and for public appointments, the Bench refused to issue any direction to the State to provide reservations to transgender. However, the directions were made to the State to study the representation of transgenders for public employment, their number in the State, benefits extended to them without discriminating from men and women and provide necessary reservations if they are not represented adequately in the public employment.

Further, since the minimum marks were not fixed based on gender, but based on social status, more particularly, their backwardness and inadequacy of their representation in the public employment, the Bench denied to issue direction to the respondents for selection of the petitioner as Stipendiary Cadet Trainee Sub-Inspector. Consequently, the petition was dismissed. [Matam Gangabhavani v. State of Andhra Pradesh, 2022 SCC OnLine AP 200, decided on 21-01-2022]

Appearance by:

For the Petitioner: M Solomon Raju, Advocate

For the State: Additional Advocate General II


Kamini Sharma, Editorial Assistant has out this report together

Case BriefsForeign Courts

United Kingdom Supreme Court: Rejecting the demand for “X” marker passport (unspecified gender) for non-gendered people, the Bench of Lord Reed, President Lord Lloyd-Jones Lady Arden Lord Sales Lady Rose, JJ., stated,

“It is true that applicants, including those who identify as non-gendered, have to select either “male” or “female”, but the purpose of providing that information is not to inform HMPO as to the applicants’ feelings about their sexual identity…”

The question for adjudication was, whether article 8 of the European Convention on Human Rights either taken in isolation or read together with article 14, impose an obligation on a contracting state, when it issues passports, to respect the private lives of individuals who identify as non-gendered, by including a non-gendered (“X”) marker for the passport-holder’s gender, as an alternative to the markers for male and female?

Background

The appellant, a campaigner for the legal and social recognition of a non-gendered category of individuals, identifies as non-gendered. According to the appellant, “X” passports (that is to say, passports in which an individual’s gender may be described not only as “M” or “F” but also as “X”) were a focal point of the campaign. The appellant argued that Her Majesty’s Passport Office’s  (“HMPO”) policy that an applicant for a passport must state on the application form whether their gender is male or female contravened the Convention rights of individuals who do not identify as either male or female.

Stand taken by Home Secretary

In 2014 HMPO completed an internal review of gender marking in passports and noted:

1.     The record of a person’s gender in their passport is used for a variety of purposes, i.e. to assist in verifying the identity of applicants for passports.

2.     Gender recorded on the passport appears to match the gender of the person using the passport. This is particularly valuable in the case of persons with names which may not be indicative of gender to a border officer who is unfamiliar with the traveller’s language or culture.

3.     It enables officials to deal appropriately with members of the public in passport-related matters, for example by addressing them in appropriate terms, and by arranging for physical checks at borders to be carried out by officers of the appropriate gender, without their having to ask embarrassing questions about the passport-holder’s gender.

4.     United Kingdom legislation, including discrimination and equality legislation, is based on the categorisation of all individuals as either male or female (and, if they are parents, as either mothers or fathers). There is no legislative provision for the recognition of individuals as non-gendered.

5.     Introducing an “X” gender marker in passports would also result in administrative costs of about £2m being incurred.

The present case

Demeaning and Distressing to Carry Passport not Disclosing Real Identity

The appellant maintained that it was demeaning and distressing to use a passport as an identification document, e.g. example when opening a bank account, when it does not reflect the appellant’s identification as a non-gendered person. It was also argued that applicants for passports who identify as non-gendered are forced to make a false declaration of their identity. There was also said to be a risk of difficulties or harassment when a person who identifies as non-gendered uses a passport at borders.

Opining that in the United Kingdom the need to establish one’s identity arises only occasionally; e.g., when accessing certain financial services, such as opening a bank account, the Bench stated that when the need to establish one’s identity arises, there is no obligation to use a passport for that purpose. The Bench stated that the gender recorded on the passport can also be used for purposes which are associated with the passport-holder’s appearance and physiology rather than their innermost thoughts.

Therefore, the Bench was of the view that the form is concerned with the applicants’ gender as a biographical detail which can be used to confirm their identity by checking it against the birth, adoption or gender recognition certificates provided and other official records. It is therefore the gender recognised for legal purposes.

Whether NHS’s action to provide free hysterectomy to the appellant on one hand and denying “X” marker passport on the other contradictory?

Referring to the European court’s decision in B v France and Goodwin v United Kin concerning transsexuals, where it was regarded as illogical for the state to provide gender reassignment surgery, on the one hand, but to decline to give legal recognition to the acquired gender, on the other hand, the appellant emphasised that the NHS had treated the appellant’s gender dysphoria by providing the appellant with a hysterectomy it was therefore incoherent for the Secretary of State then to decline to provide the appellant with an “X” passport.

Rejecting the arguments of the appellant the Bench pointed out two flaws to consider it ill-founded: First, the NHS did not recognise the applicant as being a non-gendered person: what it recognised was that the applicant was suffering from the medical condition of gender dysphoria, and it provided medical treatment to alleviate that condition. Secondly, the fact that the Government, through its funding of the NHS, bore the cost of the appellant’s medical treatment did not logically entail that it should in addition bear the far greater costs which would be involved in introducing “X” passports, or accept the other disadvantages.

ANALYSIS

International Practice

There are agreed to be six contracting states Denmark, Malta, Iceland, Netherlands, Austria and Germany) of the Council of Europe which, in some circumstances, allow passports to include markers other than male and female. Other 41 contracting states issue passports only with male or female markers. Other countries which permit passports to bear an indicator other than male or female are New Zealand, Australia, India, Nepal, Pakistan, in the case of transgender people and Canada.

Legislative Limitations

The Bench observed, there is no legislation in the United Kingdom which recognises a non-gendered category of individuals. On the contrary, legislation across the statute book assumes that all individuals can be categorised as belonging to one of two sexes or genders (terms which have been used interchangeably). Some rights differ according to whether a person is a man or a woman: for example, rights of succession, maternity rights, female genital mutilation etc.

Security Implications

Regarding the appellant’s contention that the International Civil Aviation Organisation (ICAO), a United Nations agency had issued international standards permitting to issue passports with “M”, “F” or “X” (denoting “unspecified”) in the section dealing with sex or gender, the Bench observed that introducing an “X” gender marker in passports would result in administrative costs of about £2m being incurred. The Bench remarked,

“The ICAO is not responsible for the security of this country, or any other: the Secretary of State is. The ICAO’s willingness to permit countries to use an “X” marker, if they choose to do so, does not imply that such a course of action is without security implications.”

Commenting on the findings of Court of Appeal with regard to absence of evidence relating to difficulty for National security, specifically considering the visitors in United Kingdom from countries which have permitted “X” markers for many years, the Bench stated, the absence of evidence is not evidence of absence as there was no evidence before the Court of Appeal which contradicted, or even questioned, the evidence of the officials with responsibility for security.

Positive Obligation under European Convention

Turning to consider the margin of appreciation with regard to positive obligation on the State under European Convention, the Bench stated the width of the margin of appreciation varies according to the circumstances which requires two factors to be determined: first, whether a particularly important facet of an individual’s existence or identity is at stake, and secondly, whether there is a consensus within the member states of the Council of Europe. Accordingly, the Bench opined that no particularly important facet of the appellant’s existence or identity was at stake, specifically because it was only the designation of the appellant’s gender in a passport which was in issue and that there is no consensus among the member states of the Council of Europe that passports should be available with an “X” marker, whether it is taken as signifying membership of a non-gendered category or of an unspecified gender.

Conclusion

In the above backdrop, the Bench concluded that the Convention imposes no such obligation to issue passports with “X” marker, at least at the present time. Accordingly, the appeal was dismissed. [R v. Secretary of State, [20222 WLR 133, decided on 15-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., dismissed a writ petition filed by the State seeking a writ for setting aside the show cause notice and orders passed by the National Human Rights Commission (NHRC) relating to the suicide of an under trial prisoner (UTP) Roshan Chettri in District Jail, Namchi, as being arbitrary and illegal.

NHRC had issued a show cause notice to the Chief Secretary of the petitioner in this relation further adding that the Investigation Division of NHRC after collecting/analyzing relevant reports/records has submitted that the deceased UTP was a covid-19 positive patient and was in quarantine along with another UTP. On 04.04.2020, at 11 a.m., the deceased made an attempt to commit suicide by hanging on the door of his cell with the help of cloth of the blanket provided to him but that act was noticed by his cell mate who caught hold his body and called out for help. Subsequently, jail authorities arrived and brought him down by cutting the blanket cloth. He was immediately shifted to hospital wherein he died during the treatment. The inquest and the Post Mortem Examination (PME) revealed no injury on the body of the deceased other than ligature marks, the cause of death was asphyxia due to hanging. The notice required the petitioner to show cause as to why monetary compensation of Rs.3,75,000/- should not be recommended under section 18(a)(i) of the Protection of Human Rights Act, 1993, to be paid to the next of kin of the deceased Roshan Chettri.

The petitioner responded to the show cause notice stating that no case of negligence on the part of jail administration was found during the judicial enquiry by the Judicial Magistrate, South Sikkim at Namchi. In the meanwhile, Dilip Chettri, father of the deceased filed a writ petition praying for a direction upon the state respondents to pay compensation to the tune of Rs.20,00,000/- as well as for an independent investigation of the incident of the alleged suicide by a retired judge or a government officer or any other person as deemed fit. The writ petition was taken up by the Single Bench of this court and was dismissed in limine.

The petitioner claimed to be aggrieved on counts :

  • that inspite of the dismissal of W.P.(C) No. 02 of 2021 (supra) by this court, the NHRC has passed the impugned orders which was barred by the principle of res judicata;
  • that the show cause notice and the impugned orders did not disclose the commission of violation of human rights by the police authorities or the negligence of the police authorities in prevention of violation of human rights;
  • that the NHRC could not have entertained the complaint under Regulation 9(xi) and 9(xii) of the National Human Rights Commission (Procedure) Regulations, 1994; and
  • that the NHRC did not consider the final inquiry report dated 20-5-2021 of the learned Judicial Magistrate and the final report of the Namchi Police Station.
  • It is further argued that merely because suicide took place during the day, it does not in any manner corroborate or substantiate that there was any negligence on the part of the police authorities.

The Court relied on the decision of the Supreme Court in Dario v. State of Uttar Pradesh, AIR 1961 SC 1457 and reiterated that if the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata and although, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the court took the view that there was no substance in the petition at all, but in the absence of the speaking order it would not be easy to decide what factors weighed in the mind of the court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata.

The Court further held that the State is vicariously liable to compensate the next of kin of the deceased UTP. It is not the case of the petitioner that the jail was not under its control when the incident happened in the manner described and admittedly inside the jail.

The petition was finally dismissed holding it as misconceived.[State of Sikkim v. NHRC, 2021 SCC OnLine Sikk 183, decided on 03-12-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Mr Hissey Gyaltsen, Assistant Government Advocate for the petitioner.

Case BriefsHigh Courts

Patna High Court: A. M. Badar, J., granted bail to the person arrested on the basis of forcefully extracted confession made during police custody. Expressing dismay over the audacity of the SHO to resort to third degree treatment to extract confession and mentioning the same in the FIR, the Bench reminded the officials concerned that the accused too have basic human rights and that should be protected at all cost.

The applicant had approached the Court for seeking bail in connection with offence punishable under Sections 30(a) as well as 41 of the Bihar Prohibition and Excise Act, 2016 as he was allegedly in passion of about 835 litres of illicit liquor. The applicant had fairly stated that he has one criminal antecedent. The applicant contended that there was no iota of evidence against the applicant except confessional statement of the co-accused made in the FIR to police.

The Bench noticed that the FIR itself reflected sorry State of affairs in handling human rights by Bihar Police as the SHO had claimed that in raid effected on the basis of secret information, he apprehended the main accused, one Rajan Singh from the spot of the incident and from his premises, 835 litres of illicit liquor came to be seized. The Bench expressed,

“What hurts this Court after perusal of the FIR is recital in the FIR made by Prashant Kumar, Station House Officer to the effect that after taking over custody of main accused Rajan Singh, he had subjected said Rajan Singh to third degree treatment and made strict interrogation from him by using force.”

Noticeably, recitals in the FIR suggested that the main accused was subjected to torture, not while apprehending him but after taking his custody. The Bench stated, this is a matter of serious concern which requires cognizance by none else than the Director General of Police, Bihar State in the light of observations of the Supreme Court in catena of Judgment.

Opining that lesser said would be better in the instant case, the Bench referred to the case of D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, wherein the Supreme Court had observed, “experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation” to remind the officials concerned of the human rights of the accused in custody of the Police.

Since the FIR suggested that after using full force, confession of main accused came to be extracted by the SHO, who had audacity to narrate the same in the FIR itself, the Bench rejected the confession as sections 24, 25 and 26 of the Evidence Act makes it clear that confession by an accused to police is of no consequence and it cannot even be looked out by the Court. Similarly, except the alleged confession, there was nothing to infer complicity of the applicant as nothing had been recovered from him. Expressing dismay over the inhuman and unlawful actions of the police, the Bench remarked,

“Giving third degree treatment to the apprehended accused and that too for extracting confession is the worst crime in a civilized society which can be committed by a Police officer and that is how the Judiciary is witnessing large number of custodial deaths caused by men in uniform.”

Considering the nature of the evidence against the applicant, the Bench opined that there was no other alternative but to release him on bail during pendency of the trial. Accordingly, the application was allowed and the applicant was directed to be released on bail on executing a bond of Rs. 15000. [Sanjay Singh v. State of Bihar, Criminal Miscellaneous No.54765 of 2021, decided on 26-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Appearance:

For the Petitioner/s: Mr.Gautam Kumar Yadav, Advocate

For the Opposite Party/s: Mr.Rana Randhir Singh, APP

Case BriefsSupreme Court

Supreme Court: After multiple objections were raised to the draft guidelines on ‘Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility’, the bench of Hemant Gupta and V. Ramasubramanian, JJ has asked the Director General of Civil Aviation (DGCA) to allow 30 days’ time to the petitioners to submit their objections/suggestions “even if the time limit for submission of the suggestions has come to an end.”

The Court specifically stressed on two aspects to be considered by the DGCA before bringing into force he draft guidelines that were brought to the public domain in the year 2021.

  1. Manually lifting differently abled persons without their consent: No differently abled person should be manually lifted without his consent as lifting of a person manually is inhumane. How, the differently abled person should be treated with dignity is left to the DGCA.
  2. Directing some differently abled persons to remove their prosthetic limbs/calipers as a part of the security check: In the draft guidelines circulated, it has been mentioned that scanning of prosthetic limbs/calipers though full body scanner but to what extent differently abled persons with prosthetic limbs/calipers are required to be checked for the purpose of security should be in a manner where, no such person is asked to remove prosthetic limbs/calipers to maintain human dignity while ensuring the requirement of security checks.

In 2016, the first petitioner Jeeja Ghosh, who was de-boarded from the plane of a private airline for being disabled, was awarded a sum of Rs. 10,00,000 as damages to be payable to the petitioner for the mental and physical suffering experienced by her and also unreasonable discrimination against her. The Court had said,

“Non-disabled people do not understand disabled ones.”

Read more: Jeeja Ghosh to receive Rs. 10,00,000 as damages from being de-boarded from an aircraft for being disabled

[Jeeja Ghosh v. Union of India, 2021 SCC OnLine SC 1178, order dated 01.12.2021]


Counsels:

For petitioners: Colin Gosalves, Sr. Adv.

For Respondent: Aishwarya Bhati, ASG

Hot Off The PressNews

The National Human Rights Commission,  India has taken suo motu cognizance of a media report that the eyes of six patients had to be removed due to botched up cataract surgeries at Shrikrishna Medical College & Hospital, SKMCH in Muzaffarpur, Bihar on 22nd November, 2021. The doctors may require removing the eyes of about a dozen more patients due to infections after the surgery. Reportedly, as per medical protocol, a doctor could conduct upto 12 surgeries, but in this case, the doctor conducted surgery on 65 patients.

The Commission has observed that the contents of the media report, if true, raise a serious issue of human rights violation. Conducting eye surgeries in such a reckless manner, violating norms of the medical protocols at a government hospital, is a serious matter of concern.

Accordingly, it has issued a notice to the Chief Secretary, Government of Bihar calling for a detailed report in the matter. The report is expected to inform about the exact number of patients, who have lost their eyes, status of the medical treatment being provided to them and the relief provided by the State Government, including action against the responsible officers/doctors. The response is expected within 4 weeks.

According to the media report, carried on 1st December, 2021, in most of the cases, the cornea of the patients is badly damaged and there are chances that the infection could reach their brains. The condition of six patients is very serious. The hospital authorities tried to hush up the matter and did not inform about it to the district administration or the State health department till an enquiry was conducted. The authorities have, reportedly, stopped activities in the Muzaffarpur Eye Hospital and a team of the doctors, headed by ACMO is conducting investigation in the matter.


National Human Rights commission

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J. disposed off the petition and remarked “there is & shall be no cause of action against the foster parents in civil or criminal law concerning the alleged kidnapping of the child.”

The facts of the case involve rival claims for the custody of a toddler between a genetic mother and a foster mother; this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “Adwik”.

Counsel for the foster mother submitted that she having fostered the child all these months abundant with love, affection & care and the genetic mother already has two children whereas the foster mother has none and hence a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to the foster mother. It was further submitted that in matters of custody, interest of the child is paramount and therefore the claims founded on genealogy has no merit.

Counsel for the genetic mother submitted that between a genetic mother and a foster one, the claim of the latter should be given preference as well as the agony which the genetic parents of the child have undergone since a year or so also highlights the difficulties of a lactating mother from whom the suckling infant is kept away; thus he seeks dismissal of the opposite claim.

International Convention on the Rights of the Child, 1989; Article 3 (1) of this Convention provides:

“…in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . . .”

Similarly, Article 7(1) of the Convention says:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents”. Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.”

Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.

Article 25 (2) of the Universal Declaration of Human Rights provides:

“Motherhood and childhood are entitled to special care and assistance…”

Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family, society and the State. In October 1979 a Joint WHO/UNICEF Meeting on Infant & Young Child Feeding adopted the following statement: “Breastfeeding is an integral part of the reproductive process, the natural and ideal way of feeding the infant and unique biological and emotional basis for child development. … It is therefore a responsibility of society to promote breastfeeding and to protect pregnant and lactating mothers to many influences that would disrupt it”.

Further, Section 3(ix) of the Juvenile Justice (Care and Protection of Children) Act 2015 which enacts inter alia the above principle of paramount interest of the child reads as under:

“All decisions regarding the child shall be based on the primary consideration, that they are in the best interest of the child and to help the child to develop full potential.”

Section 2(9) of the said Act defines the term ‘the best interest of the child’ to mean – “…The basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.”

The Court thus observed that breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.

On an analogy being drawn between Yashoda Maa and Devaki Maa the Court observed that unsubstantiated episodes from some history or mythology do not much guide the decision making process; ordinarily, scriptures cannot be cited as precedents or as instruments having force of law, notwithstanding the light they throw when the path we tread is shrouded in darkness; in matters like this, scriptural texts are not treated as edicts of law, unless they are legislated expressly or by necessary implication or otherwise recognized.

The Court on the argument of the foster mother  that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with his client remarked that its ludicrous and children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle of distributive justice which intends to bridge the gap between “haves and have nots” is not invocable, at least in this case

The Court remarked that having being convinced of the legitimacy and priority of the claim of the foster mother it was held that the foster mother “gracefully delivered the custody of the child to its genetic parents; the genetic mother too, with equal grace, states that the foster mother may see the child whenever her heart so desires; such kind gestures coming from two women hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all.”[Husna Bano v. State of Karnataka, WP No. 16729 of 2021, decided on 24-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner: Mr. Sirajuddin Ahmed

For respondents: Mr. Vinod Kumar and Mr. S. Subramanya

Hot Off The PressNews

The National Human Rights Commission, India has received several complaints regarding the ongoing farmer’s protest. There are allegations of adverse impact on the industrial units, seriously effecting more than 9000 micro, medium, and large companies.

Allegedly, transportation is also adversely impacted, causing the commuters, patients, physically challenged people and senior citizens to suffer due to the heavy congestion on roads.

There are also reports that people have to travel long distances to reach their destinations due to the ongoing farmers’ agitation and barricades have been put on the borders. Accordingly, the Commission issued notices to the Chief Secretary, Government of U.P., Chief Secretary, Government of Haryana, Chief Secretary, Government of Rajasthan, Chief Secretary, Government of NCT of Delhi, Director Generals of Police, U.P., Haryana, Rajasthan and Commissioner of Police, Delhi calling upon them to submit their respective Action Taken Reports.

There is an allegation that there is breach of the corona protocols by the agitating farmers at the protest site. There is further allegation that the inhabitants are not being allowed to move out of their houses due to the blockade of the passage.

Since the agitation involves the issue of human rights whereas the right to agitate in a peaceful manner is also to be respected. The Commission needs to take care of various human rights issues.

Hence, the Commission besides issuing notice to various States has taken the following actions:

1. The Institute of Economic Growth (IEG) is requested to examine the adverse impact of the farmers’ agitation on industrial and commercial activities/production and disruption of transport services on commercial and normal consumers including inconvenience and additional expenditure, etc. and to submit a comprehensive report in the matter by 10th October, 2021;

2. The National Disaster Management Authority, Ministry of Home Affairs and Ministry of Health, Government of India, have been asked to submit reports with respect to the adverse impact of farmers agitation on various aspects and observance of COVID Protocols at the protests sites;

3. In the case of alleged gang rape of human rights activist at the protest site, no report was received from the DM, Jhajjar regarding the payment of compensation to the NOK of the deceased. A fresh reminder was issued to the DM, Jhajjar, to file the report by 10th October, 2021;

4. Delhi School of Social Work, University of Delhi is requested to depute teams to conduct a survey and submit the report assessing the disruption of livelihood, lives of people, impact on the aged and infirm persons due to protracted agitation by farmers;


National Human Rights Commission

Foreign LegislationLegislation Updates

Protocol no. 15 to the European Convention on Human Rights has come into force on August 1, 2021. The development of Protocol no. 15 was led by the UK. It is an international legal agreement which makes a series of changes to the Convention.

 

Key takeaways from the Protocol are:

  • The Protocol No. 15 aim to address inefficiencies in the European Court of Human Rights (ECtHR). The Protocol will contribute in helping the Court manage the high number of applications, which it receives from people claiming their rights under the Convention have been violated by a State Party.
  • The Protocol No. 15 acknowledges that each individual party is responsible for protecting human rights under the European Convention on Human Rights. It will also improve the efficiency of the ECtHR by shortening the time limit from six to four months for applications and ensuring that all applications have been properly considered by domestic courts.
  • The Protocol will modify rules regarding the appointment and retirement of judges of the Court, to enable them to serve for a full nine-year term and provide continuity. Currently, the upper age limit for ECtHR judges is the age of 70, with a requirement that candidates for the post of judge be less than 65 years of age at the date by which the list of candidates has been requested by the Parliamentary Assembly of the Council of Europe.


*Tanvi Singh, Editorial Assistant has reported this brief.

Case Briefs

Justice Shri A.K. Mishra, Chairperson of, National Human Rights Commission, India today said that leaving widows to fend for themselves has to be discouraged by making it punishable under law to stop this practice. Expressing serious concerns over the living conditions of the widows in Mathura-Vrindavan and Varanasi, he said that the property rights of widows need to be restored to redress their plight and make a way for their dignified living.

Justice Mishra was chairing a meeting on the human rights issues of widows residing in shelter homes in Mathura-Vrindavan and Varanasi. He said that Government functionaries have to be made accountable for the non-implementation of the welfare schemes, if basic amenities are not provided to the destitute widows resulting in violation of their human rights including the right to food, shelter, dignity and property. He said that the ground reality of various shelter homes for the widows need to be assessed at the earliest.

Justice Mishra said that formulating schemes for the welfare of destitute widows is not just sufficient enough unless their proper implementation is ensured. He said that the focus should be on their skill development to make them self-reliant for their livelihood.

Some of the other important suggestions that emerged during the discussions were as follows:-

– Conduct a study to assess the number of widows living in Mathura-Vrindavan and Varanasi;

– Increase their monthly pension to ensure that they may have adequate resources to meet their basic requirements;

– Expand the scope of various welfare schemes, including Aayushman Bharat to extend the benefits to the destitute widows.


National Human Rights Commission

[Press Release dt. 20-07-2021]

Case BriefsInternational Courts

European Court of Human Rights (ECHR): Chamber composed of Yonko Grozev, President, Tim Eicke, Faris Vehabović, Iulia Antoanella Motoc, Armen Harutyunyan, Pere Pastor Vilanova, Jolien Schukking, judges, and Andrea Tamietti, Section Registrar, first time had the occasion to address a case concerning the prosecution of a victim, or potential victim of trafficking.

Crux of the application was that the said applications concerned the prosecution of the (then) minor applicants who were recognised as trafficking victims for criminal offences connected to their work as gardeners in cannabis factories were

Applicant’s principal complaint is that by prosecuting them for criminal offences connected to their work in the cannabis factories the State failed in its duty to protect them as victims of trafficking.

Applicants relied upon Article 26 of the Anti-Trafficking Convention which required the Contracting States to provide for the possibility of not imposing penalties on victims of trafficking for their involvement in unlawful activities to the extent that they have been compelled to act as they did

Questions to be considered by the Court:

  • Whether, on the facts of the cases at hand, the respondent State complied with its positive obligations under Article 4 of the Convention?

Clear evidence appeared to indicate that the cultivation of cannabis plants was an activity commonly carried out by child trafficking victims. Court stated that the police and subsequently the CPS should have been aware of the existence of circumstances giving rise to a credible suspicion that the minors were trafficked.

Hence, a positive obligation to take operational measures to protect the applicants as potential victims of trafficking arose after the minors were discovered.

  • Whether State fulfilled its duty under Article 4 of the Convention to take operational measures to protect minors?

Bench stated that it is well-established that both national and transnational trafficking in human beings, irrespective of whether it is connected with organized crime, falls within the scope of Article 4 of the Convention.

Court made it clear that where an employer abuses his power or takes advantage of the vulnerability of his workers in order to exploit them, they do not offer themselves work voluntarily.

“…prior consent of the victim is not sufficient to exclude the characterisation of work as forced labour.” [Chowdhury v. Greece, No. 21884/15, § 96, 30 March 2017]

Obligation as per Article 4

Article 4 entails a specific positive obligation on the Member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour (Siliadin v. France, no. 73316/01, §§ 89 and 112, ECHR 2005-VII). In order to comply with this obligation, Member States are required to put in place a legislative and administrative framework to prevent and punish trafficking and to protect victims (see Rantsev, cited above, § 285).

Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking.

Court has considered it relevant that the Anti-Trafficking Convention calls on the Member States to adopt a range of measures to prevent trafficking and to protect the rights of victims. The preventive measures include measures to strengthen coordination at the national level between the various anti-trafficking bodies and to discourage the demand for all forms of exploitation of persons. Protection measures include facilitating the identification of victims by qualified persons and assisting victims in their physical, psychological and social recovery.

Summary of positive obligations under Article 4

(1) the duty to put in place a legislative and administrative framework to prohibit and punish trafficking;

(2) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and

(3) a procedural obligation to investigate situations of potential trafficking.

“…prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked.”

In Court’s opinion, the duty to take operational measures under Article 4 of the Convention has two principal aims:

  • to protect the victim of trafficking from further harm; and
  • to facilitate his or her recovery.

In order for the prosecution of a victim or potential victim of trafficking to demonstrate respect for the freedoms guaranteed by Article 4, his or her early identification is of paramount importance.

Court acknowledged the fact that as children are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include both reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge, and effective deterrence against such serious breaches of personal integrity.

Since, first applicant was discovered by police at a cannabis factory during the execution of a drug warrant, the authorities should have been alert to the possibility that he – and any other young persons discovered there – could be a victim of trafficking. Nevertheless, despite there not being any apparent doubt that he was a minor, neither the police nor the CPS referred him to one of the United Kingdom’s Competent Authorities for an assessment. Instead, he was charged with being concerned in the production of a controlled drug.

Second applicant claimed that the door was locked from the outside and he believed the factory was guarded; that he was not paid for his work; and that he might be killed if he stopped working.

In Court’s view the State did not fulfil its duty under Article 4 of the Convention to take operational measures to protect the first and second applicant either initially, as a potential victim of trafficking and subsequently, as a person recognised by the Competent Authority to be the victim of trafficking.

Applicant’s also complained that they were denied a fair trial within the meaning of Article 6 of the Convention.

To assess Whether there has been a violation of Article 6 § 1 of the Convention, the Court must answer the following questions:

first of all, did the failure to assess whether the applicants were the victims of trafficking before they were charged and convicted of drugs-related offences raise any issue under Article 6 § 1 of the Convention;

secondly, did the applicants waive their rights under that Article by pleading guilty; and finally, were the proceedings as a whole fair?

Court expressed that although victims of trafficking are not immune from prosecution, an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so.

State cannot, therefore, rely on any failings by a legal representative or indeed by the failure of a defendant – especially a minor defendant – to tell the police or his legal representative that he was a victim of trafficking.

CPS 2009 guidance itself states, child victims of trafficking are a particularly vulnerable group who may not be aware that they have been trafficked, or who may be too afraid to disclose this information to the authorities Consequently, they cannot be required to self-identify or be penalised for failing to do so.

Did the applicants waive their rights under Article 6 of the Convention?

The applicants’ guilty pleas were undoubtedly “unequivocal” and as they were legally represented they were almost certainly made aware that there would be no examination of the merits of their cases if they pleaded guilty. However, in the absence of any assessment of whether they were trafficked and, if so, whether that fact could have any impact on their criminal liability, those pleas were not made “in full awareness of the facts”.

Court did not consider that the applicants waived their rights under Article 6 § 1 of the Convention.

Whether the fairness of the proceedings as a whole was prejudiced?

In respect of both applicants, the reasons given by the CPS for disagreeing with the Competent Authority were wholly inadequate. Insofar as any reasons were given, they were not consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention.

Court did not consider that the appeal proceedings cured the defects in the proceedings which led to the applicant’s charging and eventual conviction.

Hence it was concluded that the proceedings as a whole could not be considered “fair”.

Conclusion

Court referred to its finding that there has been a violation of Articles 4 and 6 of the Convention on account of the failure of the respondent State to fulfil its positive obligations under Article 4 to take operational measures to protect the victims of trafficking.

The Court had no doubt that the applicants suffered distress on account of the criminal proceedings and faced certain obstacles on account of their criminal records. However, it must also bear in mind that the aforementioned violations were essentially procedural in nature and as such the Court has not had to consider the merits of the decisions to prosecute the applicants.

Therefore each of the applicants was granted a sum of EUR 25,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.[V.C.L & A.N. v. The United Kingdom, Applications Nos. 77587 of 12 and 74603 of 12, decided on 5-07-2021]


The first applicant, who had been granted legal aid, was represented by Ms Philippa Southwell of Birds Solicitors, a law firm based in London.

The second applicant was represented by the AIRE Centre, a legal charity based in London, and by Professor P. Chandran, a Barrister based in London at 1 Pump Court Chambers.

The Government were represented by their Agent, Mr J. Gaughan of the Foreign and Commonwealth Office.