EDITORIALS & ARTICLES
Historic Supreme Court order on human liberty and the role of Courts
Recently, the Supreme Court of India has released a judgement titled ‘Human Liberty and the role of courts’ which emphasised that human liberty is a precious constitutional value.
Why protection of Human Liberty is important?
- Human liberty is a precious constitutional value: The section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the CrPC or prevent abuse of the process of any Court or otherwise to secure the ends of justice.
- Ensuring fair investigation of crime: It protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law.
- Human beings are entitled to certain basic and natural rights: The human rights are conceptualized to be certain rights that are inherent or occur naturally to individuals as human beings.
Role of courts in protection of human rights
- Protection of citizens from harassment of criminal law: The writ of liberty runs through the fabric of the Constitution because it was important for courts across the spectrum to ensure that criminal law does not become a weapon for the selective harassment of citizens.
- The courts should be alive to both ends of the spectrum i.e. the need to ensure the proper enforcement of criminal law on the one hand and the need of ensuring that the law does not become a ruse for targeted harassment.
- Judiciary being first line of defence: The courts remained the first line of defence against the deprivation of the liberty of citizens as the remedy of bail is the solemn expression of the humaneness of the justice system.
- Courts must be alive to the situation as it prevails on the ground: The common citizens without the means or resources to move the High Courts or Supreme Court languish as undertrials.
- The remedy of bail is the solemn expression of the humaneness of the justice system.
- Subordinate Courts have a pivotal role in enforcement of human rights: The subordinate judiciary is the first access point to the common person, in the hierarchy of judicial setup.
- It is also the first point as far as judiciary is concerned, where it can be tested, whether the natural or human rights of people are being addressed and preserved.
Concerns in performance of judiciary in protection of Human Rights
- Violation of Rule of Law by Judiciary: The rule of law in a society breaks down when the courts appear to be telling the citizenry, “show me the man and I’ll show you the law”.
- The rule of law in a society breaks down if the Supreme Court says, one day, that “a single day deprived of liberty is a day too many”, while every other court rejects bail applications of people jailed for years and months without trial.
- The rule of law breaks down when the Court declaims that “liberty is not for the few”, but by its conduct, extends liberty only to a few, while the unfortunate many count the weeks and months in jail cells.
- Judiciary’s callous attitude towards human liberty: The judiciary’s undeniably callous attitude towards human liberty is deeply destructive of the rule of law.
- Judges shy away from their role as protectors of human rights: The generally accepted perspective is that subordinate courts have no role to play in protection of fundamental rights or human rights.
- The judges of subordinate Courts feel constrained about visualizing their constitutional status, and many a times they fail to develop the vision that they have a duty to fulfill towards the Constitution.
- Presence of myriad powers to the police: The Code of Criminal Procedure, 1973 confers wide powers on the police to arrest, with or without warrant, interrogate and search, seize property, record statements of witnesses or the accused etc.
How Court Of Law Can Act To Protect Human Rights?
- Protection in Criminal Proceedings: In presence of myriad powers to the police, it becomes imperative that a mechanism for safeguarding the human rights, recognized by the Constitution or the Code, need to be functional at the grassroots level.
- The Courts need to satisfy themselves that the legal mandate of the provisions relating to arrest are being followed in spirit and word by the police.
- Protection through Remand Procedure: Article 21 of the Constitution of India confers the fundamental right to personal liberty, which can be curtailed only by a procedure established by law.
- The procedure established by law shall ensure that the basic human rights of the concerned person are not violated.
- Protection through Bail Proceedings: Section 436A recognizes the right of every under-trial to be released on bond, with or without sureties, for certain offences, if he has remained under detention for a half of the maximum period for which the accused could be sentenced.
- Protection through Discharge Proceedings: While conducting the proceedings of framing charge against an accused person, the Court should endeavour to take into account the material presented by way of charge sheet and the other documents on which the prosecution will rely upon in the trial.
- Protection through Exercise of Judicial Discretion during Sentencing: All cases of conviction have to be appropriately addressed with sentencing of the convict as per the requirements of the statute.
- The legal rights of the accused/convict are nothing but human rights recognized by law and need to be properly addressed by the judges.
- Protection through Legal Aid: The Parliament of India has passed the Legal Services Authority Act, 1987 to give effect to the provisions of Art. 39-A of the Constitution to provide free legal aid to the poor and the needy.
Road ahead
- The liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of law.
- The right to life, liberty, equality and dignity are the bedrocks of fundamental human rights that need to be fiercely guarded by the Court, whether it is the Hon’ble Supreme Court, the Hon’ble High Courts or the Subordinate Courts functioning at the grass-root level.
- The scope of a Court to protect human rights is not confined merely to case of accused person and also not confined to a court exercising criminal jurisdiction, but to every Court of law.
- The courts must endeavour to ensure protection of rights of every person appearing before it, be it an accused person, a witness, a complainant, a plaintiff, a defendant or whatever form of litigant.
- The Court need to stop being a mute spectator of bullying or harassment of a witnessand must put its foot down to protect the rights of the witness.
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