Op EdsOP. ED.

“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment[1].”

The tussle between the proponents of death penalty and those against it is unrelenting. While the advocates in favour of capital punishment justify their stand on the basis of the deterrent and retributive principles of criminal jurisprudence, and those against it, term death penalty as “barbaric” and a rudiment of uncivilised thought process. Significantly, the Law Commission of India in its 262nd Report[2], inter alia, concluded, “death penalty does not serve the penological goal of deterrence any more than life imprisonment” and accordingly, recommended for the abolition of death penalty for all crimes, “other than terrorism related offences and waging war”. However, despite such recommendation(s), capital punishment continues to remain under the statute books as one of the forms of sanctions, which may be inflicted upon the convicts of serious offences. In fact, even the Supreme Court[3] has consistently upheld the constitutional validity of death penalty by noting, “so far the death penalty remains in the Penal Code the courts cannot be held to commit any illegality in awarding death penalty in appropriate cases”. Nevertheless, court’s power to grant capital punishment is not unrestrained, rather, is required to abide by the strict parameters of law and judicial precedents. Further, the Supreme Court[4] has unswervingly professed,

  1. … A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Pertinently, these restrains, parameters, guidelines, etc., are not only applicable at the stage of actual grant of sanction, rather, restrictions extend until the capital punishment is finally executed.

The provisions under Chapter XXVIII[5] of the Code of Criminal Procedure, 1973 (CrPC/ Code) are illustrations of such statutory guidelines/principles, demanding mandatory compliance, prior to the execution of death sentence(s), awarded by Sessions Court. The Supreme Court in Union of India v. V. Sriharan[6], while dealing with the provisions under the said chapter and terming the same as a separate Code, observed, 84. … Sections 366 to 371 are placed for the relevant consideration to be mandatorily made when a death penalty is imposed by the trial court. Under Section 366, whenever a Sessions Court passes a sentence of death, the proceedings should be mandatorily submitted to the High Court,

100. … the confirmation of the capital punishment of death penalty, the whole procedure has been mandatorily prescribed to ensure that such punishment gets the consideration by a Division Bench consisting of two Judges of the High Court for its approval. Significantly, as per the provisions of Section 366(1) of CrPC[7], “When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.” Clearly, the said provision, unequivocally declares that the sentence of death, passed by Session Court, is automatically suspended on a reference made to the High Court, until the same is confirmed by the High Court. However, as per Section 366(2) of the Code, the Session Court/court passing the sentence of death is obligated to commit such a convict to jail custody under a warrant, until the final determination by High Court.

Significantly, the said provision was inserted under the Code[8], pursuant to the recommendations made by the Law Commission in its 41st Report[9]. Appositely, the Supreme Court in Sunil Batra v. Delhi Admn.[10], inter alia, while dealing with the provisions under Section 366 CrPC, observed,

  1. The purpose behind enacting Sub-section (2) Section 366 is to make available the prisoner when the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sentence as and when that situation arises. Similarly, the Supreme Court in Triveniben v. State of Gujarat[11], reiterated, 21. … prisoner who is sentenced to death and is kept in jail custody under a warrant under Section 366(2) is neither serving rigorous imprisonment nor simple imprisonment. In substance he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence.

Pertinently, as per the provisions of Section 369 of the Code[12], the death reference(s) made by the Court of Session to the High Court are placed before, decided and signed by at least two of Judges of the said High Court, “when such court consists of two or more Judges”. However, in the case of a conflict/difference of opinion between the Judges constituting such a Bench at High Court, as per the provisions of Section 370 CrPC[13], the said case/conflict has to be decided in the manner as provided under Section 392 of the Code[14]. Significantly, the Supreme Court in Joseph Peter v. State of Goa, Daman and Diu[15], duly acknowledged,

5. … the insistence of the Code on two Judges hearing the matter of such gravity as a death sentence involves is because of the law’s grave concern that human life shall not be judicially deprived unless at least two minds at almost the highest level are applied.

However, in the instant case, considering that only one Judicial Commissioner (out of sanctioned strength of two) was functional, the court, held,

5. Even so, exceptional situations may arise where two Judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened. We cannot fault the judgment on this ground either. In fact, while deciding so, the Supreme Court unambiguously noted that the provision[16], “obviously applies only to situations where the court, at the time of the confirmation of the death sentence, consists of two or more Judges”.

Significantly, the proceeding before the High Court in a death reference is not merely a mechanical exercise. On the contrary, it is trite law[17] that in a reference for confirmation of death sentence, High Court is required to examine the entire evidence for itself, independent of the Sessions Court’s findings/views. In this regard, the Supreme Court in Jumman v. State of Punjab[18], while considering the scope of High Court’s duty and power under such scenarios, held,

10. … it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law abovementioned it is for the High Court to come to an independent conclusion of its own.

Similarly, in Subbaiah Ambalam v. State of T.N.[19], the Supreme Court, while reiterating that for confirming death sentence, “the High Court has to consider the evidence afresh and to arrive at its independent finding with regard to the guilt of the accused”, remanded the matter to the High Court, lamenting under the observation,

“we are distressed to find that to the judgment appealed against this statuary requirement has not been complied with and a case involving death sentence has been disposed of in a casual manner”.

Subsequently, in State of Maharashtra v. Sahebrao[20], the High Court of Bombay, reiterating the settled principle(s) of “doctrine of ‘rarest, of rare case’ ” and “sufficient cause”, professed with extreme vehemence,

15. … All the sides of this aspect of confirming the death penalty have to be scrutinised with great care and caution. The “mitigating circumstances”, always play dominant role in confirming the death sentence. The mitigating circumstance has to be gathered and or collected and to be weighed from the facts and circumstances of the case. The confirmation of death sentences therefore cannot be based only on the precedents and or aggravating facts and circumstances of any other case. The essential and relevant mitigating circumstances of the particular case always play a role of negative elements against the positive theory of death punishment.

Appositely, Section 367 CrPC[21] enables/empowers the High Court(s) to make an inquiry into or take evidence, itself or direct such an enquiry to be made or additional evidence taken by a Court of Session(s), where it, “thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person”. Further, noticeably, though, none of the provisions under the instant Chapter confer a right on a convict to be heard before the High Court in the said proceedings,

7. Even so[22], the accused is afforded an opportunity of being heard. He is elaborately heard, both on fact as well as on law. He is also even entitled to show that the decision arrived at by the Sessions Court is not sustainable on facts and law and that he is entitled to be acquitted, considering the sacrosanct principle of audi alteram partem[23].

In fact, in this regard, the Supreme Court in Masalti v. State of U.P.[24], held,

8. Proceedings brought before the High Court for confirmation of a death sentence give a right to the condemned prisoner to be heard on the merits and to require the High Court to consider the matter for itself without being influenced by the conclusions recorded by the Court of Session.

Further, moving a step ahead, the High Court of Bombay[25], dispelled the argument the term “inquiry”, as contemplated under Section 367 CrPC would not “take-in”/encompass an examination of the accused under Section 313 CrPC[26], by noting,

22. Putting such a limitation on the powers of the High Court under Section 367 may in proper cases deprive the accused persons of an opportunity to offer explanation in respect of the incriminating circumstances which have been brought in the evidence and exposing him to the risk of a conviction even if he were to have a proper and plausible explanation to offer in respect of that circumstance and put him in the peril of sufferring a conviction for fault of his.

Section 368 of the Code[27], further, contemplates that in any case submitted/referred by Sessions Court under Section 366 thereof, the High Court may either confirm the sentence or pass any other sentence warranted by law or may annul the conviction and convict the accused of any offence of which Sessions Court might have convicted him or order a new trial on the same or amended charges or may acquit the accused. Clearly, the powers conferred on the High Court(s) under the said Chapter are quite wide in nature, for the provisions enumerated therein not only entitle the High Court to direct further enquiry or to take additional evidence, in fact, the High Court, may, in appropriate case, even acquit the accused person. Significantly, as per the Supreme Court[28], the power of High Court, under Section 368(c) CrPC to acquit an accused person, “can be exercised by the High Court even without there being any substantive appeal on the part of the accused challenging his conviction” and that proceeding envisaged therein “is a proceeding in continuation of the trial”. It is to be, however, appreciated that as per the proviso appended to Section 368 CrPC, the power of the High Court to confirm a death sentence may be exercised only, “after the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of”. Appositely, the Supreme Court in Bhupendra Singh v. State of Punjab[29], while dealing with the scope of exercise of power of High Court under a corresponding/pari materia[30] provision, in the event of simultaneous filing of appeal by a convict and death reference by the Sessions Court, observed,

4. … if an appeal is filed by a condemned prisoner, that appeal has to be disposed of before any order is made in the reference confirming the sentence of death. In disposing of such an appeal, however, it is necessary that the High Court should keep in view its duty under Section 375 of the Code[31] of Criminal Procedure and consequently, the court must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed.

Mr Justice Krishan Iyer once remarked[32],

1. A death sentence, with all its dreadful scenario of swinging desperately out of the last breath of mortal life, is an excruciating hour for the Judges called upon to lend signature to this macabre stroke of the executioner’s rope. Even so, Judges must enforce the laws, whatever they be, and decide according to the best of their lights.…

Undoubtedly, task of a Judge in sanctioning a convict is quite unpleasant and even more so when it entails, depriving an individual of his life. However, there are abundant judicial and statutory parameters, which ensure that the powers conferred on Judges are not abused or misused. Simultaneously, the provisions under Chapter XXVIII of CrPC also dictate several guiding principles for the case(s) where a convict of death sentence awaits determination of his fate by High Court. Further, whenever there is any ambiguity or uncertainty regarding the appropriateness and application of law, courts have consciously and voluntarily stepped in to lay down doctrines and codes, which ensure fairness and justice. In fact, the courts have consistently professed in favour of the pertinence of the principles of natural justice in the cases even where the statutory provisions are silent and do not exclude such application, expressly or by necessary implication. Understandably, the principles of natural justice are deep-rooted and pervade even the gaping recesses of gloomy and tedious proceedings such as that of death reference(s) before High Court(s). Such principles, including a right of being hear of a convict; passing of a reasoned and independent finding/ decision by High Court, etc., are, therefore, intrinsic and inextricably intertwined with the proceedings before High Court(s) in death reference, to ensure fairness, both, explicit and implicit in such proceedings. As a famous saying goes, “Justice should not only be done but should manifestly and undoubtedly be seem to be done.” The same holds true even for proceedings before High Court while determining/deciding death reference(s).


Advocate, Delhi High Court

[1] J.R.R. Tolkien.

[2] The Death Penalty, August 2015

[3]Vinay Sharma v. State (NCT of Delhi), (2018) 8 SCC 186

[4] Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[5] Sections 366 till 371 of the Code of Criminal Procedure, 1973 dealing with submission of death sentences for confirmation

[6] (2016) 7 SCC 1

[7] Section 366(1) of CrPC 

[8] Initially inserted under the corresponding provision, being, S. 374 of the Code of Criminal Procedure, 1898.

[9] September, 1969 (Vol. I)- Law Commission Report on the Code of Criminal Procedure, 1898. The Law Commission, accordingly, recommended, “It is noticed that when the accused is sentenced by the Court of Session to imprisonment for life, S. 383 expressly provides for the issue of a suitable warrant and the forwarding of the accused with the warrant to the jail in which he is to be confined. It is desirable that a similar provision should be made in S. 374 so that there may be specific statutory authority for holding the accused in prison after the Court of Session has passed sentence of death and until it is executed in due course.”

[10] (1978) 4 SCC 494

[11] (1989) 1 SCC 678

[12] Section 369 of CrPC 

[13] Section 370 of CrPC

[14] Section 392 of CrPC 

[15] (1977) 3 SCC 280 

[16] In the present case, the provision under consideration was S. 377 of the Code of Criminal Procedure, 1898, being pari materia/corresponding provision to S. 370 under the Code of Criminal Procedure, 1973.

[17]Refer to Balak Ram v. State of U.P., (1975) 3 SCC 219

[18]  AIR 1957 SC 469

[19] (1977) 4 SCC 603 

[20] 2004 SCC OnLine Bom 1186 : 2005 Cri LJ 2788

[21] Section 367 of CrPC

[22] Refer to Haidarkhan Lalkhan Pathan v. State of Gujarat, 1990 SCC OnLine Guj 16 : 1991 Cri LJ 1266

[23] One of the principles of natural justice and a Latin phrase meaning, “listen to the other side”, or “let the other side be heard as well”.

[24] (1964) 8 SCR 133 

[25]Kaliram v. State of Maharashtra, 1989 SCC OnLine Bom 56: 1989 Cri LJ 1625

[26] Section 313 of CrPC 

[27] Section 368 of CrPC

[28] Atma Ram v. State of Rajasthan, (2019) 20 SCC 481

[29] AIR 1968 SC 1438 : (1968) 3 SCR 404 

[30] S. 376 of the Code of Criminal Procedure, 1898 corresponds with S. 368 of the Code of Criminal Procedure, 1973.

[31] Section 375 of CrPC 

[32] Refer to Joseph Peter v. State of Goa, Daman and Diu, (1977) 3 SCC 280

Case BriefsHigh Courts

Calcutta High Court: The Full Bench of Rajesh Bindal, C.J. (A), I. P. Mukerji, Harish Tandon, Soumen Sen, Subrata Talukdar, JJ., took upon a series of petitions which were filed in the matter pertaining to post-poll violence in the State of West Bengal.

On the last date of hearing, the Court had requested the Advocate General to apprise the Court about any designated e-mail id to enable the aggrieved persons to lodge their complaints online. It was on the allegation of the petitioners that they were not permitted to lodge complaints in the police station and in some cases they were unable to do so as that they had to run away from their places of residence. This information could not be furnished and more time has been sought to furnish the same.

The Court in the meantime directed that if any person has suffered on account of post-poll violence, he shall be at liberty to file complaint along with the supporting documents to the National Human Rights Commission, West Bengal Human Rights Commission, National Commission for Women and National Commission for Scheduled Castes and Scheduled Tribes. The same can be either by way of hard copy or online. The aforesaid commissions in turn will forward those complaints to the Director General of Police, West Bengal immediately.

[Anindya Sundar Das v. Union of India, 2021 SCC OnLine Cal 1637, decided on 18-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Op EdsOP. ED.

The evolution of artificial intelligence (AI) over the years has led to the realisation of the dreams of robot-human interaction. This idea of a robot-human interaction on a whole new level has been a topic of science fiction novels and series right from the early 1950s. The most noted work during this time was Issac Asimov’s literary fiction – I, Robot[1]. The book is famous for introducing the three important laws of robotics that:

(i) A robot may not injure a human being or, through inaction, allow a human being to come to harm.

(ii) A robot must obey the orders given it by human beings except where such orders would conflict with the First Law.

(iii) A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.

Though the idea may have seemed to be farfetched at the time, with the rapid development of technology in recent years, we already have fully working autonomous machines. With debates sparking globally regarding the legal and ethical issues of autonomous weapon systems[2] (“AWS” hereafter), reconsideration of the importance and viability of the aforementioned three laws of robotics becomes pertinent. This article tries to analyse the existing conundrum surrounding the AWS and its usage while simultaneously trying to envision a robust regulating framework governing their functioning and usage.

Autonomous weapon systems: The UN Convention on conventional weapons

The AWS has already been declared a success[3] and it is only a matter of years before we see their active deployment and usage in the battlefields across the globe. However, the concerns regarding their potential usage in armed conflicts have raised many questions not just from experts[4] and scholars[5], but also from common civil bodies[6] and other related organisations. Owing to the rising concerns, a discussion on AWS was held at the 5th Review Conference of the Member States of the United Nations (“UN” hereafter) Convention on Certain Conventional Weapons (CCW). Post the Convention, an expert body was established with the aim to deliberate upon the legal issues surrounding the potential use of AWS. These issues included the question of morality and ethicality as well as compatibility of the use of AWS with international humanitarian law (“IHL” hereafter) and international human rights law (“IHRL” hereafter)[7]. While some believe that a complete ban on AWS usage is the only answer, which is easily deducible from the rise in popularity of the “Stop Killer Robots” movement, however, it is a rational understanding that the AWS in a mere technological advancement and cannot be just “abandoned”. The best way to deal with the potential ill impacts of AWS could be to bring its deployment and usage strictly under international regulations.

Human rights and AWS: Understanding the legal implications

Though the legal debate surrounds the AWS is primarily focus on international humanitarian law[8], it is the need of the hour to steer the discussion towards understanding the human rights angle of the issue. The active assault that AWS could unleash on victims can be seen as the usage of force by humans through AWS. It is a steeled principle that human rights law applies to the use of force at all times. Further, it is complementary to IHL during armed conflict, and where there is no armed conflict it applies to the exclusion of IHL. Thus, even though the IHL implications indeed needs to be deliberated upon, the human rights angle needs to be the pivotal point under consideration. However, to understand this we need to distinguish between three paradigms and the application of human rights law in each of them.

1. Armed conflict

Right to life and the right to dignity are two of the most important human rights that are to be considered in this context. While we have already discussed above that human rights complement the IHL, however, at times of armed conflict, IHL being “more specialised” comes into application.[9] But, even though IHL comes into effect, both sides still maintain their human rights and hence, there is change but merely on the contextual level. This means that during such times we can interpret the provisions of IHL with reference to human rights.

2. Non-armed conflict

There can arise situations where the conflict in question does not qualify the definition of an armed conflict because of the fact that it fails to fall in an area that is an established battlefield, e.g., anti-insurgency, anti-terrorism activities. During these situations, the application of IHL is not possible and hence the issues need to pass the subjectivity test of human rights alone. For example, the usage of drones and other similar activities may fall in the same context as AWS if used for anti-terrorist operations and should therefore be governed by IHRL and not IHL as a potential armed conflict is absent.[10]

3. Domestic law enforcement

While as of now the AWS has no prospects of being used domestically, but then the possibility of a toned-down model with less lethal weapons being used for domestic law enforcement cannot be ruled out altogether. This would include the deployment of AWS for not merely guarding of prisons but to the even wider spheres of daily law enforcement. As such usage of AWS would constitute a use of “force”, it can be easily brought under the ambit of IHRL.

Thus, we can see that three major paradigms exist and what is common with the usage of AWS in all of these is the fact that AWS and its usage would fall under the ambit of IHRL. It is this hypothesis that will help us understand how AWS has a huge impact on human rights and why the demands of international regulations are being made.

AWS and the weapon laws:  Martens clause and the implications

The international human rights are extremely stringent when it comes to the use of force and firearms, however, it in no way poses any restrictions or limitations on what kind of weapons can be manufactured. This is where we can find the answers in IHL which has a separate and special branch of weapon laws that clearly specify as to which weapons are permissible to be used in armed conflicts and which are not. Article 36 of Additional Protocol I to the Geneva Convention[11] makes it mandatory for the State parties to subject new weapons to a review;

to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

It is important to note that the words “or by any other rule of international law” can easily seem to be indicative of the fact that to pass the scrutiny under Article 36[12] review, the weapon in question has to even abide by the international human rights law which prominently includes the right to life, dignity, etc.

The Martens Clause has formed a part of the laws of armed conflict since its first appearance in the Preamble to the 1899 Hague Convention (II)[13] with respect to the laws and customs of war on land and states that:

in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience.

The words are clearly indicative of the fact that special emphasis has been supplied to “principles of humanity” and “the public conscience”. At a point in history where people have finally started to understand the importance of human rights, it is only more fitting to have the reasoning that weapons above a certain level of autonomy would be a disgrace to “principles of humanity” and “the public conscience” as probably the two parameters will transform to mere factual matrix of data for the AWS. Further, the clause also states among other things that the absence of an explicit prohibition in no way means that usage of such weapons are permitted.

Right to life and dignity: Analysing the impact

Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR)[14] states that “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”. While the IHL has certain parameters such as “collateral damage” or “combatant’s privilege” to justify the use of force, such concepts are totally alien to the IHR. In place of these, the IHR has other parameters such as “necessity” and “proportionality”. While the formers indicate that usage of force shall be the last resort, the latter points to the maximum force that can be used to achieve a specific legitimate purpose. Further, the basic Principle 9 deals specifically with firearms clearly states that “use of firearms may only be made when strictly unavoidable in order to protect life”.

The doctrine of self-preservation which allows for use of lethal force by policemen in situations of grave danger is not applicable in the case of AWS as it fails to qualify as a human and hence, a danger to it poses no danger to “human life”. The very fact that the kill list is prepared by a machine is highly incongruous with the IHR laws which clearly point towards the premise – “the final decision to use lethal force must be reasonable and taken by a human”.

Article 1 of the Universal Declaration of Human Rights[15] (UDHR) provides that:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Though the ICCPR[16] does not entail the right to dignity as a spate right, it is a constitutive part of a number of the rights contained in that Treaty. The last point deliberated in the preceding paragraph clearly points that death by data matrix means people are treated as interchangeable entities, like inanimate entities and not as a human who has an inherent dignity. Critical decisions such as the ones made to deploy force especially deadly force needs to be only taken after due consideration by a “human being” who has rationally analysed the situation and concluded that there is no other alternative in the specific case and hence holds the responsibility for the outcome of his final decision. Thus, there exists no speck of doubt that the right to life as well as the right to dignity are vehemently violated in the use of AWS.[17]

AWS and human rights: The future

After the above deliberations, we are compelled to hold congruence with the views of Dr Akbar Nasir Khan[18]. He has very often advocated the view that sustainability is a key component that needs to be used as a yardstick to objectify the effectiveness of a policy. As far as the AWS and other related systems are considered, they have been on the receiving end of endless criticism primarily due to human rights violations. The UDHR has become part of customary international law and hence is applicable during both, the war and peace times. Also, the right to life and dignity has become part of jus cogens over time. These considerations and developments keep on posing a huge question when it comes to legitimising such AWS mechanisms. It is to be understood that technology will keep on developing and will keep on encroaching the boundaries of human control. However, it will be up to us to decide in favour of whether to retain human control over life and death decisions or relinquishing it. However, what needs to be understood is that once lost such human control will be impossible to be regained. The international community needs to understand this peril of AWS and come together, after understanding the potentials and drawbacks, to deliberate peacefully and tactfully on the future of AWS for any decision made will have a huge impact on human life in the years to come.


Student, Bachelor of Law at Integral University, India;  Research Analyst for Centre for New Economics Studies, O.P. Jindal Global University, India, e-mail: rameezrazaofficial@gmail.com.

†† BA LLB at National University of Study and Research in Law (NUSRL), Ranchi, and the Coordinator of Think India, Ranchi, e-mail: raj.nusrl@gmail.com.

[1] Isaac Asimov, I, Robot (Bantam Books 2004).

[2] Lethal Autonomous Weapons Systems, Future of Life (4-3-2021, 09:09 P.M.) <https://futureoflife.org/lethal-autonomous-weapons-systems/?cn-reloaded=1>.

[3] Alcides Eduardo dos Reis Peron and Rafael de Brito Dias, “No Boots on the Ground”: Reflections on the US Drone Campaign through Virtuous War and STS Theories, 40(1) Contexto Internacional, (2018) 53-71.

[4] Ibid.

[5] Akbar Nasir Khan, The US Policy of Targeted Killings by Drones in Pakistan, 12(1) IPRI Journal (2011) 21- 40.

[6] Human Rights Watch, Q&A: US Targeted Killings and International Law (7-3-2021, 06:16 P.M.) <http://www.hrw.org/news/2011/12/19/q-us-targeted-killings-and-international>.

[7] K.J. Heller, One Hell of a Killing Machine, Signature Strikes and International Law, 11 JICJ (2013)  91.

[8] Ibid.

[9] Christopher Drew, Drones are Weapons of Choice in Fighting Qaeda, The New York Times, 11-3-2021, 10:43 P.M.) <http://www.nytimes.com/2009/03/17/business/17uav.html>.

[10] Peter Bergen and Katherine Tiedemann, The Year of the Drone: An Analysis of US Drone Strikes in Pakistan, 2004- 2010, Pak Tea House (12-3-2021, 09:33 A.M.)  <http://pakteahouse.wordpress.com/2010/03/02/the-year-of-the-drone-bypeterbergen-and-katherine-tiedemann/>.

[11] Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12-1-1949 (Fourth Geneva Convention), 75 UNTS 287 (1949).

[12] Ibid.

[13] International Committee of the Red Cross, Hague Convention (II) with Respect to the Laws and Customs of War on Land, 29-7-1899.

[14] UN General Assembly, International Covenant on Civil and Political Rights, United Nations, Treaty Series, Vol. 999, p. 171.

[15] UN General Assembly, Universal Declaration of Human Rights, 10-12-1948,  General Assembly Resolution 217 A (III) http://www.scconline.com/DocumentLink/BNEbfDpI.

[16] Supra note 14.

[17] US Drone War Delivers Results, But at What Price?, Dawn (Print) – Islamabad, (10-1-2010) https://www.dawn.com/news/911327/us-drone-war-delivers-results-but-at-what-price

[18] Supra note 5.

ObituariesOP. ED.

Former Attorney General and an outstanding lawyer, Soli J. Sorabjee succumbed to COVID-19 on April 30, 2021 at the age of 91.

Born on March 9, 1930, Sorabjee commenced his legal practice in 1953 in Bombay High Court. He was then designated as a Supreme Court Senior Advocate in 1971. He became the attorney general of India first from 1989-90 and then from 1998-2004.

A renowned human rights lawyer, Sorabjee was appointed by the UN as a Special Rapporteur for Nigeria, in 1997, to report on the human rights situation in that country. Following this, he become a member and later Chairman of the UN-Sub Commission on the Promotion and Protection of Human Rights, from 1998 to 2004. He was also a member of the United Nations Sub-commission on Prevention of Discrimination and Protection of Minorities. He has also served as member of the Permanent Court of Arbitration at The Hague from 2000 to 2006.[1] In the 1984 anti-Sikh riots cases, Sorabjee worked with Citizen’s Justice Committee and took up cases pro bono for the victims.[2]

Soli Sorabjee was also a champion of freedom of speech and expression and was awarded with Padma Vibhushan, the second highest civilian award in India, in 2002 for his contribution in protection of freedom of speech and human rights.[3]

Did you know? Soli Sorabjee had a deep interest in jazz and was president of the Delhi Jazz Association for many years.[4] He was also one of the founders of the Jazz Yatra concert series.[5]

A prolific writer, Sorabjee has a number of publications under his name.

Here are the notable excerpts from some of his articles:

“Judicial activism must not be confused with judicial showmanship or judicial adventurism. Judicial activism does not warrant a trigger happy approach of striking down laws which are unpalatable to the personal predilections of judges. Judicial activism does not warrant venturing into fields where the judiciary does not have the requisite expertise.

What is the solution? Alas the real problem is that justice is not dispensed by slot machines but by human beings. Perfection is not the attribute of common humanity and judges are after all human beings. They are not celestial bodies endowed with the gift of infallibility. Therefore judicial aberrations do occur occasionally. But that is no reason for wholesale condemnation of active exercise of judicial power.”[6]

Read more at (2008) 3 SCC J-24


“It must be remembered that the rule of law is not a one-way traffic. It places restraints both on the Government and individuals. If the underlying principles of the rule of law are to become a reality in governance as also in our lives no doubt laws are necessary but they alone are not sufficient. In addition fostering of the rule of law culture is imperative. The only true foundation on which the rule of law can rest is its willing acceptance by the people until it becomes part of their own way of life. Therefore we should strive to instil the rule of law temperament, the rule of law culture at home, in schools and colleges. We should strive for the universalisation of its basic principles. Our effort should be to constantly aim at the expansion of the rule of law to make it a dynamic concept which not merely places constraints on exercise of official power but facilitates and empowers progressive measures in the area of socio-economic rights of the people. That indeed is the moral imperative for the civilised world.”[7]

Read more at (2014) 6 SCC J-27


“The decision in Bommai marks the high water mark of judicial review. It is a very salutary development and will go a long way in minimising Centre’s frequent onslaught on the States who as rightly pointed out “are neither satellites nor agents of the Centre” and “have as important a role to play in the political, social, educational and cultural life of the people as the Union”. However, there is genuine concern about misuse by the Centre of Article 356 on the pretext that the State Government is acting in defiance of the essential features of the Constitution. The real safeguard will be full judicial review extending to an inquiry into the truth and correctness of the basic facts relied upon in support of the action under Article 356 as indicated by Justices Sawant and Kuldip Singh. If in certain cases that entails evaluating the sufficiency of the material, so be it. The line between the existence of material and its relevance is not a rigid one and is susceptible of flexible fluctuation depending on the facts of a particular case.”[8]

Read more at (1994) 3 SCC J-1


“In countries like India where fundamental rights are violated every day, whether in flouting of labour laws, illegal detentions, discriminatory actions, and other violations, one may wonder what response may be given to a cynic’s taunt about the futility of fundamental rights. The answer is that guaranteed fundamental rights empower citizens and groups fighting for justice to approach the court. It also provides opportunities for vindicating the Rule of Law. It also establishes norms and standards which can be used to educate people to know, demand and enforce their basic rights. It has a salutary effect on administration which is made aware that it has to conform to the discipline of fundamental rights. Above all, a Bill of Rights, Part III enumerating Fundamental Rights, is a constant reminder that the powers of the State are not unlimited and that human personality is priceless.”[9]

Read more at (2014) 7 NUJS L Rev 1


Some landmark cases that Sorabjee had appeared in:

T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481

Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739

S.R. Bommai v. Union of India, (1994) 3 SCC 1

I.R. Coelho v. State of T.N., (2007) 2 SCC 1

P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537

State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534

Maneka Gandhi v. Union of India, (1978) 1 SCC 248

S.P. Gupta v. Union of India, 1981 Supp SCC 87

Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717

♦Did you know? Soli Sorabjee assisted the legal giant Nani Palkhivala in  Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

Recalling the time when he worked as Palkhivala’s junior, Sorabjee wrote

“I vividly remember the early morning conferences the two of us had those days in his room at Oberoi Hotel. Both of us were in our pyjamas. At one such conference, I nervously suggested the argument about inherent limitations on the amending power based on certain articles which I had read in the US law journals. He grasped the point, but was not quite convinced. A few hours later in the Supreme Court, he expounded the doctrine brilliantly. The labour and efforts which were put in the case were tremendous. The range of our research was far and wide.”[10]


Soli Sorabjee’s image Coutesy: Brandeis University, https://www.brandeis.edu/south-asian/sorabjee/bio.html 

[1]Biography of Soli Sorabjee, Brandeis University, https://www.brandeis.edu/south-asian/sorabjee/bio.html

[2] Utkarsh Anand, Soli Sorabjee: An exceptional lawyer and a Jazz aficionado, April 30, 2021, https://www.hindustantimes.com/india-news/jurist-soli-sorabjee-succumbs-to-covid19-101619756987135.html

[3][3] Award of Padma Bhushan to Sri K.K. Venugopal and Padmavibhusan to Sri Soli Sorabjee, (2002) 1 LW (JS) 59, http://www.scconline.com/DocumentLink/9V532btr

[4]Coomi Kapoor, Soli Sorabjee(1930-2021): A remarkable life in law, champion of civil liberties and press freedom, April 30, 2021, https://indianexpress.com/article/india/soli-sorabjee-a-remarkable-life-in-law-champion-of-civil-liberties-and-press-freedom-7296894/

[5]A. Vaidyanathan, Soli Sorabjee, Former Attorney General, Dies Of COVID-1, April 30, 2021, https://www.ndtv.com/india-news/soli-sorabjee-former-attorney-general-dies-of-covid-19-he-was-91-2424976

[6] Soli J. Sorabjee, Judicial Activism — Boon or Bane?, (2008) 3 SCC J-24

[7] Soli J. Sorabjee, The Rule of Law: A Moral Imperative for the Civilised World, Lecture delivered at NLSIU, Bangalore on 5-4-2014, (2014) 6 SCC J-27

[8] Soli J. Sorabjee, Decision of the Supreme Court in S.R. Bommai v. Union Of India: A Critique, (1994) 3 SCC J-1

[9] Expansion and Protection of Fundamental Rights By Judicial Interpretation and Intervention, Lecture delivered by Shri Soli Sorabjee, Senior Advocate, Supreme Court and former Attorney General for India, at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata on February 7, 2015, (2014) 7 NUJS L Rev 1

[10] Soli J. Sorabjee, Palkhivala and the Constitution of India, (2003) 4 SCC J-33

Hot Off The PressNews

The persistence of the National Human Rights Commission, India in a case of food poisoning of 15 children in a government school in Maliguda, Odisha, resulted in the payment of Rs. 8 lakh. Out of which Rs. 50,000 each has been paid to the 14 students who fell sick and Rs. 1 lakh to the mother of boy who succumbed to his illness.

For negligence, 2 teachers were put under suspension and departmental proceedings initiated against them. The complaint was received about the incident on 20th January 2018.

Notice by NHRC 

Earlier, in response to the notices of the Commission, the reports from the State Govt. revealed that an ex-gratia of Rs.2 Lakhs was already sanctioned by the Collector for the payment to the NoK of the victim. Punitive action was initiated against the 2 teachers for negligence.

Show Cause Notice

Subsequently, the Commission issued a show-cause notice to the Chief Secretary, Govt. of Odisha why a sum of Rs.1 Lakh be not recommended to be paid u/s 18 of the Protection of Human Rights Act to the Next of kin of the deceased student in addition to the ex-gratia of Rs.2 Lakhs already sanctioned by the Collector.

Compensation

Pursuant to the directions of the Commission, the Govt. of Odisha submitted the compliance report along with proof of payment, wherein it has been stated that Rs. 1 lakh has been paid to the mother of the deceased boy and Rs. 50,000/- each to other 14 students.


National Human Rights Commission

[Dt. 09-04-2021]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has directed that Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.

The issue at hand

On 8.08.2017, the Ministry of Home Affairs, Government of India issued a letter to the Chief Secretaries of all the State Governments/UT Administrations, advising them to sensitize all the law enforcement and intelligence agencies for taking prompt steps and initiating deportation processes.

Petitioners are Rohingya Refugees who had fled Mayanmar in December 2011 when ethnic violence broke out. While their main writ petition seeks direction to the Central Government to provide basic human amenities to the members of the Rohingya Community, who have taken refuge in India in various refugee camps in New Delhi, Haryana, Allahabad, Jammu and various other places, they had sought interim relief of

(i) the release of the detained Rohingya refugees; and

(ii) a direction to the Union of India not to deport the Rohingya refugees who have been detained in the sub¬jail in Jammu.

As per newspaper reports appearing in the first/second week of March, 2 2021, about 150-170 Rohingya refugees detained in a subjail in Jammu face deportation back to Myanmar. Various reports showed that there are more than about 6500 Rohingyas in Jammu and that they have been illegally detained and jailed in a sub¬jail now converted into a holding centre.

The impending deportation was challenged on the grounds

(i) that the principle of non-refoulement is part of the right guaranteed under Article 21 of the Constitution;

(ii) that the rights guaranteed under Articles 14 and 21 are available even to non-citizens; and

(iii) that though India is not a signatory to the United Nations Convention on the Status of Refugees 1951, it is a party to the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights, 1966 and the Convention on the Rights of the Child 1992 and that therefore non-refoulement is a binding obligation.

(iv) that India is a signatory to the Protection of All Persons against Enforced Disappearances, Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment.

The Union of India, however, refuted the claims and contentions on the following grounds:

(i) that a similar application challenging the deportation of Rohingyas from the State of Assam was dismissed by this Court on 4.10.2018;

(ii) that persons for whose protection against deportation, the present application has been filed, are foreigners within the meaning of Section 2(a) of the Foreigners Act, 1946;

(iii) that India is not a signatory either to the United Nations Convention on the Status of Refugees 1951 or to the Protocol of the year 1967;

(iv) that the principle of non¬ refoulement is applicable only to “contracting States”;

(v) that since India has open/porous land borders with many countries, there is a continuous threat of influx of illegal immigrants;

(vi) that such influx has posed serious national security ramifications;

(vii)  that there is organized and well¬orchestrated influx of illegal   immigrants   through   various   agents   and   touts   for   monetary considerations;

(viii)  that Section 3 of the Foreigners Act empowers the Central Government to issue orders for prohibiting, regulating or restricting the entries of foreigners into India or their departure therefrom;

(ix)  that though the rights guaranteed under Articles 14 and 21 may be available to 4 non-citizens, the fundamental right to reside and settle in this country guaranteed under Article 19(1)(e) is available only to the citizens;

(x) that the right of the Government to expel a foreigner is unlimited and absolute; and

(xi)  that intelligence agencies have raised serious concerns about the threat to the internal security of the country.

Analysis by the Court

“It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).”

While India is not a signatory to the Refugee Convention and hence, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention, there is, however, no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.

The Court took note of the serious allegations made by the Union of India relating to (i) the threat to internal security of the country; and (ii) the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders. It also considered the fact that an application filed for similar relief, in respect of those detained in Assam has already been dismissed by the Court. Therefore, the interim relief prayed for was refused.

The Court, however, made clear that the Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is   followed.

[Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296, order dated, 08.04.2021]


Appearances before the Court by:

For Petitioners: Senior Advocate Colin Gonsalves and Advocate Prashant Bhushan

For Union of India: Solicitor General Tushar Mehta

For Jammu and Kashmir: Senior Advocate Harish Salve

For Intervenors: Senior Advocates Vikas Singh and Mahesh Jethmalani

Case BriefsInternational Courts

European Court of Human Rights (ECHR): In an interesting case regarding child trafficking the Fourth Section of ECHR had came up with a landmark ruling. The Bench, while acknowledging the right to protection of victims of trafficking ruled that,

“It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future.”

 Facts and Findings

The instant case relates to two minor applicants, both of whom were convicted for criminal offences connected to their work as gardeners in cannabis factories. The Trial had been initiated against both the applicants and both of them, due to incompetent legal aid had pleaded guilty. The Crown Prosecution Service (CPS) persuaded to prosecute them even after being made aware by the United Kingdom Border Agency that there were reasonable grounds for believing that the first applicant had been trafficked. Similarly, the second applicant as well was recognised as victim of trafficking by the designated Competent Authority. The CPS while concluding that there was no credible evidence that the applicants had been trafficked, sentenced the first applicant to twenty months detention in a young offenders’ institution and eighteen-month detention and training order to the second applicant.

Similarly, the Court of Appeal opined that Article 26 of the Anti-Trafficking Convention was directed at sentencing decisions as opposed to prosecutorial decisions and could not, therefore, be interpreted as creating immunity for victims of trafficking who had become involved in criminal activities the court dismissed their appeal against conviction. However, the Appellate Court had reduced the sentence of the first applicant as a twelve-month custodial sentence and considering the young age of the second applicant his punishment was reduced as well to a four-month detention and training order. Being aggrieved by the conviction order the applicants reached the Supreme Court which had refused their applications.

Assessment

The Bench noted that the first applicant was discovered by police at a cannabis factory during the execution of a drug warrant, thus, the authorities should have been alert to the possibility that he – and any other young persons discovered there – could be a victim of trafficking. The CPS failed to consider that the relevant nexus had not been established between the trafficking and the criminal offence; rather, it repeatedly found that there was no clear evidence that the first applicant had been trafficked. The Court remarked,

“The 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.”

Even though the first applicant was subsequently recognised by the Competent Authority as a victim of trafficking, the CPS, disagreed with that assessment without providing adequate reasons for its decision and the Court of Appeal, relying on the same inadequate reasons, twice found that the decision to prosecute him was justified.

Similarly, the competent authority had subsequently affirmed the possibility of the second applicant being a victim of trafficking at the time of his arrest. Observing that both the applicants were minor at the time of trafficking, the Bench stated,

“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.”

 The State had a positive obligation to take operational measures to protect such victims; however, instead the criminal proceedings were allowed to proceed against them in the instant case.

Can Right to Fair Trial be Waived by Pleading Guilty?

On the plea of State that victims right to a fair trial was waived by pleading guilty, the Court was of the view that the victims had been deprived of a fair trial because the police had failed to undertake an investigation capable of providing them with exculpatory evidence, even though there was a credible suspicion that they had been trafficked; and the CPS’s assessment of the case was fundamentally flawed because it ignored the indicators of trafficking which were present.

It is true that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will the entitlement to the guarantees of a fair trial. However, such a waiver must be established in an unequivocal manner and it must not run counter to any important public interest.

Furthermore, given that trafficking threatens the human dignity and fundamental freedoms of its victims and is not compatible with a democratic society and the values expounded in the Convention, in the absence of any assessment regarding veracity of trafficking any waiver of rights by the applicants would run counter to the important public interest in combating trafficking and protecting its victims.

Whether the Trial was Prejudiced?

The Court opined that in respect of both applicants the reasons given by the CPS for disagreeing with the Competent Authority were wholly inadequate. Also, though the applicants invoked Article 4 of Anti Trafficking Convention the Court of Appeal did not consider their cases through the prism of the State’s positive obligations under that Article. The Bench expressed,

“Such an approach would in effect penalise victims of trafficking for not initially identifying themselves as such and allow the authorities to rely on their own failure to fulfil their duty under Article 4 of the Convention to take operational measures to protect them.”

Under Article 4 of the Convention, it was the State which was under a positive obligation to both to protect victims of trafficking and to investigate situations of potential trafficking and that positive obligation was triggered by the existence of circumstances giving rise to a credible suspicion that an individual has been trafficked and the State had blatantly failed to meet that obligation.

 The victims cannot be required to self-identify or be penalised for failing to do so.

Consequently, it had been held that there had been a violation of Articles 4 and 6 of the Anti-Trafficking 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. Hence, both the victims were granted the sum of EUR 25,000 each in respect of non-pecuniary damage. Additionally, the cost of EUR 20,000 was also imposed on the state that was to be paid to the applicants.[V.C.L. and A.N. v. United Kingdom, Applications nos. 77587 of 12, decided on 16-02-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Hot Off The PressNews

NHRC, India issued a notice on 24-02-2021 to the Union Ministry of Defence, through its Secretary, to show cause why Rs 5 Lakh should not be recommended to be paid as a relief to the next of the kin of an innocent citizen Thingtu Ngemu, who died in the uninformed and indiscriminate firing by the Army unit of 21 Para Special Forces, PSF, during an operation against Naxalites in Nantok circle, Dist. Changlang, Arunachal Pradesh in the interning period of 14-15 June, 2017.

The Commission has communicated that the case needs to be treated as special because the Judicial Enquiry Magistrate has held that the PSF personnel are responsible for the death of an innocent citizen. The Commission has also emphasized that if the Defence Ministry pays the relief amount to the victim’s family on the basis of its show cause notice in such cases, it will send positive signals amongst the locals and the credibility of the Armed Forces shall also improve. The response is expected within four weeks.

The Commission had registered the case on 29th June, 2017, on the basis of intimation from the Supdt. of Police, Changland, Arunachal Pradesh regarding the death of Thingtu Ngemu during an action by the security forces against naxalites in Nantok circle District Changlang.

Subsequently, the Commission through its Investigation Division found that the Judicial Magistrate, First Class, Distt. Changlang, had conducted the enquiry in the matter. It is recorded, in his report that the PSF personnel neither cooperated nor submitted any statements regarding the operation despite official letters & request of the Enquiry Magistrate.

After considering the relevant evidences, the Judicial enquiry officer found that the Army Unit of 21 Para Special Forces (PSF) of Jorhat had laid ambush within the reachable range of civilian/villagers, without any knowledge of local civil police or villagers, which was undesirable and dangerous for the inhabitants. Further, the PSF personnel detained a local innocent villager Tuwang Ngemu till late night without any reason, while he was returning from his own garden. He should have been allowed to go home after ascertaining his identity.

As a result, the other villagers and family members came towards the forest in search of Tuwang Ngemu. The PSF should have used night vision glasses/equipment to see through the dark night hours and should have identified innocent empty-handed villagers. They should have also heard the shouts of the villagers, who were searching their man, who was already detained by the PSF. Instead they resorted to blind firing without any provocation, which led to the killing of an innocent villager under the pretext of “mistaken identity”.

The enquiry Magistrate has also reported that the PSF continued firing indiscriminately from one side till 3 am of the next morning of 15/6/2017 without any retaliation or any cross-firing from anywhere. Such a blunder and irresponsible action is unjustified.

Holding the PSF personnel responsible for the death of Thingtu Ngemu, the enquiry magistrate noted that the victim was an innocent and had no connection with any outfit. The deceased is survived by his old ailing parents, wife & two small children. He was the primary bread earner & now the family has no source of livelihood.

Based on the analysis and inputs of the facts by its Investigation Division, the Commission, under Section 19 of PHR Act, has issued the show cause notice why the victim’s family should not be paid the monetary relief.


NHRC

[Press Release dt. 26-02-2021]

Op EdsOP. ED.

Human rights is increasingly occupying an important position with respect to a good corporate life, performance indicator and social responsibility. In the last decade, there has been an increased focus on the ramifications of the actions of business entities on individuals, communities and the environment.

However, despite the increasing discourse on the impact of business on human rights, effective attempts to check human rights violations in the supply chains and activities of corporations have remained limited. There continues to exist a gap between the policies being framed on business and human rights and its effective practical implementation. The cause for the same can be attributed to the lack of the political will, in some States, to strictly regulate human rights violations by business entities.

This lack of political backing to a binding business and human rights framework, particularly in developing countries, is largely a result of the economic considerations of the States, and their inclination to incentivise foreign investments in their territory by providing lenient investor obligations, labour markets and regulatory frameworks.

Let us analyse some recent developments on business and human rights, with particular reference to the Indian scenario.

Developments in Law

As against the traditional understanding that business and human rights are unconnected aspects of law and practice, in recent times, international community has growingly become aware of the impact of the actions of business entities on enjoyment of human rights. In 2011, the United Nations Guiding Principles of Business and Human Rights (UNGPs) acknowledged the duty and responsibility of States and corporations, to respect and protect human rights.[1] The principles articulated by the UNGPs stand as its three pillars: (i) State duty to protect; (ii) corporate responsibility to respect; and (iii) access to remedy.

The UN Working Group on Business and Human Rights had urged all States to develop a national action plan on business and human rights, such that they can effectively implement the UNGPs in their territories. For the same, the Working Group developed a “guidance note,” which stipulated four criteria for developing the national action plans: (i) the plan must based upon the UNGPs; (ii) it must reflect the State’s actual and potential business related human rights abuses; (iii) it must be inclusive and transparent; and (iv) it must be regularly reviewed and updated. Several States have already formulated their national action plans to implement the UNGPs in their respective States.

While India announced in 2018 that it will be formulating a National Action Plan on Business and Human Rights, the same is still to be finalised and released. The Ministry of Corporate Affairs, which is steering the process of formulating the National Action Plan, was undertaking consultations and accepting comments from stakeholders till March 2020, and the document must be in its final stage now.[2]

The National Action Plan will be expected to target several issues that are prevalent in India, such as dispossession and rehabilitation of communities, child labour, bonded labour, health and safety of workers, favourable working conditions, social protections, among others. Importantly, the most problematic issue with respect to regulating activities of businesses in India is that around 90 per cent of the labour works in the informal sector.[3] Employers of informal labourers are often aloof of voluntary commitments to corporate social responsibility.

Therefore, for the policies to be effectively put into practice, they must be devised in a manner to bring the informal labourers under the ambit of its protection. Unless the same is done, the policies framed by the State will effectively only be protecting 10 per cent of the workforce in India. It is also very important for the National Action Plan to emphasise on the need to ensure access to remedies to all the victims of business-related human rights violations.

Incidentally, in 2019, the Ministry of Corporate Affairs had revised the National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business, 2011 (NVGs) and formulated the National Guidelines on Responsible Business Conduct (Ngrbc). The revision of the guidelines was made with the intention to urge businesses to actualise the UNGPs in letter and spirit.[4] However, all these guidelines only provide for voluntary commitments, and unless the same is replaced with mandatory compliance requirements, it will continue to serve mere lip service, without bringing about any effective change. An effective business and human rights framework will require accountability and enforceability of the principles enshrined in the UNGPs.

The United Nations Human Rights Council (Unhrc), in another move to regulate business and human rights, has also been attempting to devise a legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.[5] State parties to the instrument will be required to regulate effectively the activities of all business enterprises domiciled within their territory or jurisdiction, including those of a transnational character. This would include ensuring that business, in its territory, undertake human rights due diligence, respect all internationally recognised human rights and prevent and mitigate human rights abuses throughout their operations.

Another development is the Hague Rules on Business and Human Rights Arbitration, which was also formulated recently with the objective of imparting a set of rules for arbitration in relation to business and human rights disputes.[6] The intention of the Hague rules is to subscribe to the application of the third pillar of the UNGPs which secures the access to remedy. It will be interesting how States and corporations respond to these developments in the coming years.

Position in Bilateral Investment Treaty Framework

The lack of political will on part of the States to regulate human rights compliances of corporations can be understood from the fact that traditionally investment treaties have failed to impose any obligation upon the investors, with respect to environment protection, labour and human rights. Moreover, while some recent treaties do have provisions relating to investor compliances/obligations, they merely call for a bona fide commitment to corporate social responsibility standards, without providing any enforceability of the compliances. The Indian Model Bilateral Investment Treaty (BIT), 2015 can be a good example for the same. Article 12 of the Model BIT reads as:

“Investors and their enterprises operating within its territory of each party shall endeavour to voluntarily incorporate internationally recognised standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the parties. These principles may address issues such as labour, the environment, human rights, community relations and anti-corruption.”

Therefore, as evident, the Indian Model BIT only calls for a voluntary endeavour to respect human rights, and does not stipulate a binding obligation to that regard. To put the same in context, a comparison can be drawn to the more efficient investor obligations that can be found in the Southern African Development Community (SADC) Model BIT, 2012. The SADC Model BIT stipulates, in concrete terms, that the investors and/or investments are mandatorily required to respect the international environmental, labour and human rights obligations binding on the host State.

As it is becoming increasingly evident that transnational businesses can have a major impact on environment and human rights in the host State, States should negotiate treaties that are more balanced between the States and investors, and provide for investor compliances as jurisdictional prerequisites in investment treaties.

Impact of Covid-19 Pandemic

The pandemic, as we know, has caused major economic disruptions and destabilised the global economy. At its peak, extended travel limitations and broken supply chains had led to significant drop in the prospects of several business entities and corporations. Compromised supply chains and economic losses, as a chain reaction, caused several corporations resort to harsh measures to keep themselves afloat, such as discriminate laying off of workers, altering of working cultures and cutting on due diligence cost.[7]

The UN Working Group on Business and Human Rights, in its statement on the ramifications of the pandemic, had acknowledged that the actions of corporations are, directly or indirectly, affecting the rights of their employees, contract workers and individuals involved in their supply chains.[8] The pandemic brought to light the issues pertaining to the right to health, equality, livelihood, safety and favourable conditions to work of the workers.[9] While States undertook several relief measures,[10] and urged corporations to continue to provide safety and recourses on a non-discriminatory basis, the lack of adequate protection against violations of labour and human rights was manifest.

As States embark on economic recovery, it is imperative that they strike an equilibrium between safeguarding health, reducing economic and social disruption, and respecting human rights. As a response to the pandemic, efforts must be taken to impose stricter guidelines on human rights impact assessments, grievance mechanisms, and other due diligence obligations of corporations, such that the three pillars of the UNGP can be effectively reinforced. Particularly, the temptations to resort to lenient labour regulations and investor compliances, to aid, economic recovery and incentives investments must be resisted. For instance, the ordinances passed to suspend certain labour laws for a period of next three years, in several Indian States, was heavily criticised by human rights activists as being a clear departure from India’s commitment to the UNGP.[11] Developing countries are particularly susceptible to such a trend, and if not checked, it might limit progress on business and human rights regulations.

Conclusion

It is the duty of businesses to conduct human rights due diligence within their supply chains and operations. To ensure that the business effectively perform their duties, the States must provide adequate regulations and check mechanisms. Therefore, both States and corporations must cooperate and ensure a healthy corporate environment in the country, which is respectful of the internationally accepted human rights and UNGPs. In conclusion, it can be said that the increasing discourse on business and human rights is a positive sign, only time will tell if the same is effectively put in practice.


Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in. Abhishar Vidyarthi, Student Researcher and can be contacted at avividyarthi@gmail.com.

[1]United Nations Guiding Principles on Business and Human Rights, 2011, <https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf>.

[2] National Action Plan, <https://www.mca.gov.in/Ministry/pdf/NationalPlanBusinessHumanRight
_13022019.pdf
>.

[3]Employment in Informal Sector and Conditions of Informal Employment, 2013, <https:// labour.gov.in/ sites/default/files/Report%20vol%204%20final.pdf>.

[4]National Guidelines on Responsible Business Conduct, 2019, <https://www.mca.gov.in/ Ministry/pdf/NationalGuildeline_15032019.pdf>.

[5]Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, 2020, <https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/OEIGWG_Chair-Rapporteur_second_revised_draft_LBI_on_TNCs_and_OBEs_with_respect_to_Human_Rights.pdf>.

[6] Hague Rules on Business and Human Rights Arbitration, 2019, <https://www.cilc.nl/project/the-hague-rules-on-business-and-human-rights-arbitration/>.

[7] Howard Levitt, Some employers may be using pandemic as excuse to fire employees protected by human rights codes, Financial Post (21-4-2020), <https://financialpost.com/executive/careers/some-employers-may-be-using-pandemic-as-excuse-to-fire-employees-protected-by-human-rights-codes>.

[8] Statement by the UN Working Group on Business and Human Rights, <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25837&LangID=E>.

[9]      Respecting Human Rights in the time of the Covid-19 Pandemic, 16-4-2020, <https://www.ihrb.org/focus-areas/covid-19/report-respecting-human-rights-in-the-time-of-covid19>.

[10] Measures, such as stimulus packages, tax reliefs, wage subsidies, etc., were undertaken in order to safeguard businesses, and thereby, restrict the hardships from trickling down to the workers. One of the best examples of the same can be seen in the form of Canada Emergency Wage Subsidy, wherein, to protect the Canadian workforce, the eligible businesses were provided up to 75 per cent of employer salaries; Jamie Golombek, Wage subsidy programs for employers: Canada’s Covid-19 response plan, <https://www.cibc.com/content/dam/personal_banking/advice_centre/tax-savings/covid-wage-subsidy-en.pdf/>. Similarly, corporations were urged to continue to provide access to accurate informations, paid sick/preventive leaves, payments to hourly waged staff, emergency supplies on a non-discriminative basis, etc.

[11]Ashima Obhan and Bambi Bhalla, Suspension of Labour Laws Amidst Covid-19, <https://www.mondaq.com/india/employment-and-workforce-wellbeing/935398/suspension-of-labour-laws-amidst-covid-19>.

Hot Off The PressNews

The National Human Rights Commission, India has taken suo-motu cognizance of a media report that after 5 years in jail in Agra district of Uttar Pradesh for the crime they didn’t commit, a couple can’t find their two kids, who had been reportedly sent to some orphanage in their absence.

Considering it as a serious issue of human rights violation, the Commission has issued notices to the Chief Secretary and DGP, Uttar Pradesh calling for a detailed report in the matter within four weeks.

The reports should include the enquiry/action taken, if any, against the police officers and the public servants who were responsible to ensure social security to the innocent children of the victim couple.

Issuing the notices, the Commission has observed that the gross negligence committed by a public servant has devastated the entire family. The State authorities including the police and the social welfare authorities of the district Agra have acted in a reckless manner, showing no respect towards the basic human rights.

According to the media reports, carried on the 23-01-2021, the couple was arrested by the police in the year 2015, when a boy aged five years was found murdered and they were named in the case. The Additional District and Sessions Court, while releasing the couple had mentioned in the order that it is unfortunate that innocent people have spent five years behind the bars and the main accused is still free. The Court has reportedly directed the Senior Superintendent of Police to take action against the investigating officer for his negligence. The Court has also recommended re-investigation of the case on the basis of the available evidences, to arrest the actual perpetrator.

It is specifically mentioned in the news report that the then Sub-Inspector, who was working with the investigating officer, had admitted in the Court that he did not even try to find out as to against whom the FIR was registered.

As mentioned in the news report, the victim Narendra Singh, who was earlier working as a teacher, has been asking as to what was the fault of their children, son aged 5 years and daughter aged 3 years. The wife of Narendra Singh, who was also lodged in the jail with her husband, has reportedly written a letter to the Senior Superintendent of Police, Agra to search for their missing children. The couple never met their children after their arrest, and their bail application was rejected by the District Judge in the year 2015. It is also mentioned in the news report that the victim couple could not go further to approach the High Court due to their inability to afford the expenses.


National Human Rights Commission

[Press Release dt. 28-01-2021]

Hot Off The PressNews

The National Human Rights Commission, India has taken suo motu cognizance of media reports that ten infants were killed in a fire that swept through the Sick Newborn Care Unit (SNCU) at Bhandara District General Hospital in Maharashtra on 09.01.2021. The fire reportedly broke out at around 1.30 am and the hospital administration could rescue only seven out of the seventeen children kept in the ward. A relief of Rs 5 lakhs has been announced by the state government from the Chief Minister’s Fund to each bereaved family and a state wide fire audit has also been announced. A case of accident has been reportedly registered and further investigation is being conducted.

The Commission has issued notices to the Chief Secretary and DGP, Government of Maharashtra calling for a detailed report in the matter within four weeks.

The Director-General of Police is also expected to inform the Commission about the outcome of the investigation being conducted by the police authorities. The report must contain the fire audit reports of various hospitals in the state as well as what measures have been taken or contemplated to be taken by the state against the erring or negligent officers/officials so that they cannot go with impurity.

Issuing the notices, the Commission has observed that the victim babies were in the custody of a state-run hospital where they lost life. Hence, the state cannot escape its responsibility. This is a serious issue of violation of human rights for which the accountability of the negligent officers/officials is required to be fixed, with retrospective effect. The monetary relief alone is not sufficient to compensate. Further, it is imperative to ensure that the support systems in various hospitals in the state must provide adequate care and attention to the patients for protection of their human rights.

According to the media reports, prima facie, the fire perhaps originated from the Air Conditioner and the victim babies died due to suffocation caused by the smoke. Reportedly, a committee headed by the Health Director will probe the incident and submit its report within three days. Electrical Department officials are reportedly investigating into the exact cause of the fire as reported by quoting the Superintendent of Police of Bhandara district.


National Human Rights Commission

[Press Release dt. 11-01-2021]

Hot Off The PressNews

NHRC has taken suo motu cognizance on alleged rape of a 13-year-old girl in Umaria city of Madhya Pradesh and has directed issuance of notice to the Chief Secretary and the Director-General of Police, Madhya Pradesh calling for a detailed report in the matter.

As mentioned in the news report, the 13-year-old girl was abducted on 04.01.2021 from a market in Umaria city of Madhya Pradesh by a person known to her and later on she was taken to a secluded place and was subjected to rape by nine persons for two days. The girl was again abducted by one of the accused on 11.01.2021 and was taken to a desolate place where five people, including three accused in the previous incident and two unidentified truck drivers allegedly subjected her to rape for two days. The report also revealed that the victim was threatened with dire consequences due to which, she did not report the matter to the police. The mother of the girl has lodged a police complaint on January 14, following which seven of the accused have been arrested and the search of the remaining two is under way.

The gruesome incident puts a question mark towards law and order situation in the region. The perpetrators in this case, have committed the heinous crime twice, without having any fear of law violating human rights of the victim.

The Commission has opined that this is a case of violation of human rights of the victim and it is apparent that the law enforcing agencies who are expected to provide a safe environment to the citizen, have failed in exercising their lawful duty.

The Commission has called for a detailed report in the matter within 4 weeks. The report must include details regarding arrest of the remaining accused persons, counseling given to the victim as well as relief and rehabilitation provided or proposed to be provided to the victim by the State authorities.


Nationa Human Rights Commission

[Press Release dt. 18-01-2021]

Hot Off The PressNews

In a case of a death in judicial custody, the National Human Rights Commission, India has set aside the conclusion of an Additional Chief Metropolitan Magistrate of Ahmedabad that it was natural.

On the basis of the material on record, NHRC has held that the Under Trial Prisoner died due to the negligence and torture by the jail officials of Sabarmati Central Prison, Ahmedabad on 29-05-2017 and that the Judicial Enquiry Report is shady in nature and hence, cannot be relied upon.

Further, expressing serious concern over the order of the concerned judicial officer, the Commission has directed its registry to bring the matter to the notice of the Chief Justice of the Gujarat High Court for consideration of taking necessary action on the presence of such Judicial Officers.

The Commission has noted in its proceedings in the matter under case no Case No.487/6/1/2017-JCD that “it is very surprising & shocking to know that though 22 ante mortem injuries over the body of the deceased were clearly reflected in post mortem report, but still enquiry magistrate i.e. ACMM, Ahmedabad, Gujarat had stated that no injury was found to be present on the deceased. The Chief Justice of Gujarat High Court has to seriously consider the presence of such Judicial Officers in public domain.”

The NHRC has also issued a notice to the Chief Secretary, Govt. of Gujarat, to show cause why not an interim relief of Rs 3 Lakh should not be recommended to be paid to the Next of the Kin, NoK of the deceased Under Trial Prisoner, as his human rights were violated by the delinquent Jail officials, Director General of Police, Gujarat has been asked to submit a detailed report in the matter along with criminal case registered and progress in the matter. The response is expected within four weeks.

The Commission, as per its standing guidelines, had registered the case on the basis of an intimation from Supdt. Central Prison Ahmedabad Gujarat on 31.05.2017 regarding the death of UTP Ashok @ Lalit on 29.05.2017.

On the directions of the Commission, its Investigation Division informed that the victim under trial prisoner was in the custody of Sabarmati Central Prison, Ahmedabad since 27.05.2017. He was arrested in case no. 5261/15 u/s 66(1)(b), 65(a) Prohibition Act by PS Maghaninagar. Within two days on 29/5/2017, he fell ill and was sent to the Civil Hospital, Ahmedabad for treatment where he died on the same day at 16.38 hrs.

The postmortem was done by a panel of four doctors, which revealed 22 ante-mortem injuries from head to toe on the person of the deceased. The cause of death was kept preserved. Later, after viscera & HPE, the FCOD was given as death due to shock and hemorrhage as a result of injuries sustained over the body. However, in the magisterial enquiry the ACMM, Ahmedabad, Gujarat concluded that the health screening report, as well as inquest report, revealed that no injury was present on the person of the deceased. During the magisterial enquiry, the family members did not complain of anything and based on the statements of doctors & jail officials, so he concluded that there was no direct or indirect evidence that the deceased was physically or mentally tortured or ill-treated during custody and without any evidence.

The Commission noted that the Under Trial Prisoner was normal at the time of entry into the jail and died within two days of his entry into the jail. The strong scientific & biological forensic evidence cannot be undermined as far as the cause of death is concerned. This is also a fact that he was in jail for the past two days before his death in the hospital. Hence, there is no point in accepting that his death was natural. This is a clear case of unnatural death in the judicial custody of Sabarmati Central Jail & hence State is vicariously responsible for the same. Further, the Commission held that the statements of the family members of the victim after his death bear no relevance as the victim was in jail and the family members may not have met after the injuries, when he was alive.


National Human Rights Commission

[Press Release dt. 08-01-2021]

Case BriefsInternational Courts

African Court on Human and People’s Rights: While deliberating upon a request for Advisory Opinion filed by the Pan African Lawyers Union (hereinafter PALU) regarding compatibility of ‘Vagrancy Laws’ with the African Charter of Human and People’s Rights and other Human Rights instruments applicable in Africa, the Court unanimously observed that Vagrancy Laws, which contain offences criminalising the status of a person as being without a fixed home, employment or means of subsistence, as having no fixed abode nor means of subsistence, and trade or profession etc; laws that order the forcible removal of any person declared to be a vagrant; and laws that permit the arrest without a warrant of a person suspected of being a vagrant, are incompatible with Articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter. The Court declared that there is a “positive obligation” on the State Parties to review, repeal or amend their vagrancy laws and related laws to comply with the Charter, the Children’s Rights Charter and the Women’s Rights Protocol within reasonable time and that this obligation requires them to take all necessary measures, in the shortest possible time.

It was submitted by the PALU that a number of Member States of the African Union still have laws that criminalise the status of individuals as being poor, homeless or unemployed as opposed to specific culpable acts. PALU submitted before the Court that these laws are overly broad and confer too wide a discretion on law enforcement agencies to decide who to arrest which impacts disproportionately on vulnerable individuals in society.

The PALU put forth the following requests for an opinion from the Court-

  • Whether vagrancy laws and by-laws, (including but not limited to) that contain offences which criminalise the status of a person as being without a fixed home, employment or means of subsistence etc., violate Articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter on Human and Peoples’ Rights and Articles 2, 4(1) and 17 of the African Charter on the Rights and Welfare of the Child.
  • Whether vagrancy laws and by-laws that allow for the arrest of someone without warrant simply because the person has no ‘means of subsistence and cannot give a satisfactory account’ of him or herself, violate [Articles 2, 3, 5, 6, 7 of the African Charter on Human and Peoples’ Rights, Articles 3, 4(1), 17 of the African Charter on the Rights and Welfare of the Child and Article 24 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
  • Whether State Parties to the African Charter on Human and Peoples’ Rights have positive obligations to repeal or amend their vagrancy laws and/or by-laws to conform with the rights protected by the African Charter on Human and Peoples’ Rights, the African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and in the affirmative, determine what these obligations are.

The Court also took into account the observations made by the Member States of the African Union. The Member States informed the Court about several reforms that are in the queue to streamline the process of repealing or amending laws that are in non-conformity with the Charters, like- Ouagadougou Declaration and Plan of Action on Accelerating Prisons’ and Penal Reforms in Africa, which calls for the decriminalization of offences such as being a rogue and vagabond, loitering, prostitution and failure to pay debts and disobedience to parents.

Upon scrutinizing the issues and questions raised, the Court held that Article 1 of the African Charter, Article 1 of the Children’s Rights Charter and Article 1 of the Women’s Rights Protocol obligates all State Parties to, inter alia, either amend or repeal their vagrancy laws and by-laws to bring them in conformity with these instruments. This would be in line with the obligation to take all necessary measures including the adoption of legislative or other measures in order to give full effect to the Charter, the Children’s Rights Charter and the Women’s Rights Protocol. As to the nature of the obligation, the Court held that this obligation requires all State Parties to amend or repeal all their vagrancy laws, related by-laws and other laws and regulations so as to bring them in conformity with the provisions of the Charter, the Children’s Rights Charter and the Women’s Rights Protocol. Some of the important findings of the Court regarding the issue are as follows-

  • Vagrancy laws and by-laws containing offences in which a child has been declared a vagrant or rogue and vagabond and summarily orders such child’s forcible relocation to another area, are incompatible with Articles 3, 4(1) and 17 of the Children’s Rights Charter.
  • Vagrancy laws which allow for the arrest of any woman without a warrant simply because the woman has no “means of subsistence and cannot give a satisfactory account of herself” are incompatible with Article 24 of the Women’s Protocol.

[Request for Advisory Opinion on compatibility of ‘Vagrancy Laws’ with the African Charter of Human and People’s Rights and other Human Rights instruments applicable in Africa, No. 001/2018, decided on 04-12-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Hot Off The PressNews

The National Human Rights Commission, India has taken suo-motu cognizance of a media report that at least 23 people were killed and over 30 injured after the roof of a shelter at a crematorium collapsed on them in Murad Nagar Municipality, Ghaziabad, Uttar Pradesh on Sunday, 3-01-2021.

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. The report must contain review of all the crematoriums, burial grounds and other such buildings, which are used by the general public for community activities in the State and maintained by the local administrative authorities. The authorities concerned must ensure proper maintenance of such places to avoid any untoward incidents in future posing danger to human lives.

The Commission has also noted, as reported in the media, that an FIR has been registered and some financial assistance has also been announced by the State government. It has asked the State Government, through its senior officers, about the present status of the investigation of the case as well as the health condition of the injured.

Issuing the notices the Commission has also observed that apparently, the contractor and department concerned have acted in a negligent manner leading to violation of the right to life of the victims. The incident is required to be investigated thoroughly so that the guilty could be adequately punished as per the provisions of the law.

According to the media reports, the rain shelter had been constructed recently by a private contractor engaged by the Muradnagar Municipality. The incident occurred when about 60 people were attending a cremation. Some labourers, who were working at a Rapid Metro site nearby and the local residents came forward to rescue the victims. The police personnel and members of NDRF team also reached the spot and rescued the victims. Twenty-three deaths were confirmed, while many injured were admitted in the hospitals.

As per news report, an FIR u/s 304/337/338/409 and 427 IPC was registered and three persons including the contractor and two civic officials were arrested. The State Government has, reportedly, announced financial assistance of Rs.2 lakhs each to the families of the deceased. Reportedly, some local residents alleged that poor quality material was used in the construction of the structure due to which it was collapsed.


NHRC

[Press Release dt. 05-01-2021]

Hot Off The PressNews

Justice H.L. Dattu completed his tenure as the seventh Chairperson of National Human Rights Commission, NHRC, India on 2-12-2020. He had joined the Commission on the 29-02-2016 after retiring as the Chief Justice of India on the 2-12-2015.

During his tenure, the Commission intervened in a number of cases of human rights violations, which brought succour to the victims of human rights violations. The Commission also brought down the number of cases, which were taking long to dispose of. Total 3,91,937 complaints of human rights violations were registered during his tenure; 4,20,913 cases, including some old and new cases, were disposed of. Rs 84,31,94,593/- were paid in 268 cases as monetary relief by the public authorities as per the recommendations of the Commission.

The Commission, in his leadership, retained its “A” Status of Accreditation with the Global Alliance of National Human Rights Institutions, GANHRI. The Asia Pacific Forum, APF in acknowledgement of the wide range of experience and expertise of the NHRC, India, has signed an AMU to share it with several NHRCs and like entities in the world. He also represented the NHRC as a member in the GANHRI Bureau and the Governance Committee of the APF.

The dialogue with the State Human Rights Commissions and other National Commissions gained strength for mutual cooperation on the matters of human rights. The State Governments responded to the NHRC’s requests by designating human rights courts at district levels.

The Commission expanded its outreach by linking its online complaints filing system with over 3 lakh Common Service Centres spread across the country. Justice Dattu also launched HRCNet portal to facilitate quick online communication between the NHRC and SHRCs to cut short the possibility of duplication of complaints and promote timely processing of complaints received online.

During his tenure, the Commission also launched its Twitter Handle in 2020, which is a short span, saw a number of followers. He also launched the NHRC’s much popular annual short film competition on human rights in 2015. He also promoted building awareness about human rights through street theater and launched the initiative as a mark of the Silver Jubilee celebrations of the NHRC in 2018. The first ever documentary on the journey of the Commission was also made during his tenure.

Justice Dattu paid a lot of attention to the media reports on the issues of human rights violations and took prompt action by taking suo-motu cognizance of such incidents. The number of open hearings and camp sittings of the Commission to hear on spot the complaints of rights violations of Scheduled Caste and Scheduled Tribe people and pending cases in various states were increased.

During Covid-19 lock down, in addition to taking suo-motu cognizance of media reports on the plight of people including the migrant labourers, the NHRC also intervened in the suo motu writ of the Supreme Court in the matter of migrant labourers. He constituted and expert group to come out with the NHRC Covid-19 Advisories. He also strengthened the mechanism of the Commission to hear the human rights violations of the Human Rights Defenders. During his tenure, the Core Group mechanism of the Commission gained further impetus along with the appointments of Special Monitors and Special Rapporteurs to act as the eyes and ears of the Commission.


National Human Rights Commission

[Press Release dt. 02-12-2020]

Hot Off The PressNews

The National Human Rights Commission issued notice to the Chief Secretary, Director General of Police and the Director-General of Prisons, Madhya Pradesh after taking suo motu cognizance about the allegations made by women on five cops for gang rape in lockup.

It is mentioned in the news report that a 20-year-old woman has levelled allegations that she was kept in lock-up for 10 days in the month of May this year and was subjected to rape by 5 police personnel including the Police Station Incharge and SDPO of Mangawan area of Rewa district of Madhya Pradesh. The woman, as mentioned in the news report, was an accused in a case of murder and presently she is lodged in judicial custody. The incident occurred in the month of May and it came to the knowledge of the District Judge after a period of five months. Even the prison warden did not have the courage to report the matter to the higher authorities.

It is further added that as alleged by the victim woman, she was subjected to rape between 09-05-2020 to 21-05-2020 while the police contradict, to be arrested on 21-05-2020. The female constable had protested at that time but she was rebuked by her seniors.

The Commission considered the vulnerable position of the victim. She was in police custody when she was allegedly subjected to utmost cruelty and sexual assault by the 5 police personnel. Even a protest made by a female police official went in vain. Very serious allegations have been levelled by the victim woman. Public servants from the law enforcement agencies, who are supposed to safeguard the citizens especially the women and the people from the vulnerable classes of the society have allegedly committed the heinous crime against a woman in their custody.

The Commission directs that the matter may be investigated by a senior police officer, not below the rank of the Deputy Inspector General of Police.


National Human Rights Commission

[Press Release dt. 19-10-2020]

COVID 19Hot Off The PressNews

The National Human Rights Commission (NHRC), viewing the unprecedented situation across the country and being deeply concerned about the rights of the vulnerable and marginalised sections of the society affected by the COVID-19 pandemic and the resultant lockdowns, constituted a ‘Committee of Experts on Impact of Covid-19 Pandemic on Human Rights and Future Response’.

The Committee, included representatives from the civil society organizations, independent domain experts, and the representatives from the concerned ministries/ departments, and was tasked to assess the impact of the pandemic on realization of the rights of the people, especially the marginalised / vulnerable sections of the population which have been disproportionately impacted.

After due consideration of the impact assessment and recommendations made by the Committee of Experts, the Commission has now issued the ‘Human Rights Advisory for Protection of the Rights of LGBTQI+ community in the context of COVID-19 pandemic’, available on https://nhrc.nic.in/sites/default/files/Advisory_for_the_Protection_of_the_Rights_of_LGBTQI%2B_Community_0.pdf

The Commission has also requested to concerned Union Ministry and all States/UTs for implementation of the recommendations contained in the advisory and compliance the action taken report to the Commission.


NHRC 

Press Release dt. 19-10-2020

COVID 19Hot Off The PressNews

National Human Rights Commission (NHRC), India viewing the unprecedented situation across the country and being deeply concerned about the rights of the vulnerable and marginalised sections of the society affected by the COVID-19 pandemic and the resultant lockdowns, constituted a ‘Committee of Experts on Impact of Covid-19 Pandemic on Human Rights and Future Response’.

The Committee included representatives from the civil society organizations, independent domain experts, and the representatives from the concerned Ministries/ Departments, and was tasked to assess the impact of the pandemic on realization of the rights of the people, especially the marginalised / vulnerable sections of the population which have been disproportionately impacted.

After due consideration of the impact assessment and recommendations made by the Committee of Experts, the Commission issued the advisories on following human rights issues:

1. Human Rights Advisory on Impact of COVID-19 Pandemic: Human Rights of the Prisoners & Police Personnel and Future Response.

2. Human Rights Advisory on Human Rights of Informal Workers during COVID-19.

3. Human Rights Advisory on Impact of COVID-19 Pandemic: Businesses & Human Rights and Future Response.

The Commission has also requested to concerned Ministries/States/UTs to implement the recommendations made in the advisories and compliance with the action taken report to the Commission.


National Human Rights Commission

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and P. Velmurugan, JJ., while addressing the present petition observed that, Court fails to ascertain how women consent to get married to life convicts.

The present petition was filed by the wife of the life convict who got married to him when he got married when he came out on parole. The petitioner sought leave for 30 days for her husband to make arrangements for the livelihood of her family members.

S.G. Vedha Priyadharshini, Counsel appeared for the Petitioner and R. Prathap Kumar, Additional Public Prosecutor appearing for the Respondents.

Probation Officer in its report recommended 30 days’ leave to the convict which was sought by the petitioner.

Taking into consideration the above-stated report along with earlier orders of the Court, the bench is inclined to grant 30 days’ leave to the convict.

Accordingly, the life convict was directed to be released on 01-10-202 without a police escort and the Convict was directed to surrender before the prison authorities on 30-10-2020.

However, the petition was kept pending as the Court had impleaded National Commission for Women and the State Commission for Women to device a mechanism by which it is ascertained as to whether women are getting married to life convicts on their own accord or by force or coercion.

Hence, the Court raised the query:

“Whether the women marrying the life convicts are examined by the State Commission for Women or National Commission for Women to ascertain as to whether the willingness of the marriage or sign for the acceptance of the marriage has been obtained from the women?”

Bench noted that in many cases, women get married to the life convicts and this Court fails to find out as to how the consent of the women has been obtained. The rights of women have to be safeguarded. Usually, no girl will come forward to marry a life convict.

Nowadays, it is seen that it is difficult for a normal man to get married as modern girls are putting so many conditions for marriage. When that is so, it is unbelievable or surprising to see that a woman on her own volition giving consent to marry a convicted person for a life without husband’s companionship, love and care, which will amount to a violation of human rights.

National Commission for Women filed the response and the State Commission for Women’s response is still awaited. [Saibunisha v. State, 2020 SCC OnLine Mad 2733, decided on 30-09-2020]