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RG/2.00/1J

The House re-assembled at two of the clock,

MR. DEPUTY CHAIRMAN in the Chair.

-----

 

THE PROTECTION OF HUMAN RIGHTS

(AMENDMENT) BILL, 2005 - Contd.

MR. DEPUTY CHAIRMAN: Now, further consideration of the Protection of Human Rights (Amendment) Bill, 2005. Shri Virendra Bhatia. Not here. Shrimati Brinda Karat. Not here. Shri S. Anbalagan. Not here. Shri Ramdeo Bhandari...

SHRI RAVULA CHANDRA SEKAR REDDY: Sir, if he is not ready, I shall speak now.

MR. DEPUTY CHAIRMAN: Yes. Shri Ravula Chandra Sekar Reddy.

SHRI RAVULA CHANDRA SEKAR REDDY (ANDHRA PRADESH): Sir, thank you for giving me this opportunity to speak on the Human Rights (Amendment) Bill. A number of amendments in this Bill are physically intended to change the system of nominating the Chairperson of the National Human Rights Commission as well as the Chairperson of the State Human Rights Commission. Earlier we used to have retired Chief Justice of the Supreme Court and retired Chief Justice at the State level being nominated for the chairmanship. Now the Government would like to include the Judges who are in service. Sir, I would like to request the Government to strengthen the organisation rather than changing the system in appointments. We must strengthen it; we must give them some powers. More importantly, we want to know how many recommendations have so far been sent to the Government of India and to the concerned State Governments, how many of them have been accepted and have been implemented, and, how the Government is acting upon the recommendations of the Human Rights Commission. Sir, from my own party, we had gone to the National Human Rights Commission on a number of occasions, like, in situations when the people in villages were killed and the local administration failed to contain the lawlessness in the villages. We have been forced to knock at the doors of the National Human Rights Commission, time and again, when the Governments, both at the State level and at the Central level, have miserably failed on a number of occasions in protecting the life and property of individuals. Basically, when political clashes took place in Andhra Pradesh, we have approached the Human Rights Commission. I would like to know from the Government as to what action has been taken on those representations.

As far as this Bill is concerned, the hon. Minister explained its aims and objects. The only new thing is that the Human Rights Commission will now have the power to inspect the areas without prior notice. That is a welcome amendment. One should have that power to enter any premises without notice. Otherwise, it will become a ceremonial feature, and people come to know about the visit and set the things in a proper manner.

Sir, the other aspect is regarding interim relief, interim compensation, that can be awarded by the respective Commissions.

(Continued by 1K)

TDB/1K/2.05

SHRI RAVULA CHANDRA SEKAR REDDY (CONTD.): And, who has to pay it? It is also again by virtue of clause 18 which says, "it may recommend to the concerned Government or the authority'. Again, it is a recommendation. The Government need not comply with it. They can as well sleep over the matter; they can as well refuse to do it. They need not comply with the recommendations. I would like to request the hon. Minister to see that it is made mandatory; otherwise, the very purpose of awarding some interim compensation will not at all reach affected persons.

Sir, my next point is this. They would like to bring in the Chairpersons of the Scheduled Castes Commission and the Scheduled Tribes Commission within the purview of this Commission. They want to make the Chairpersons of the Scheduled Castes Commission and the Scheduled Tribes Commission as ex-officio members of the Human Rights Commission. I don't know why they have left out the Chairpersons of the Minority Commission and the National Commission for Women. I would like to request the hon. Minister to enlighten us as to the intention of making the Chairpersons of the Scheduled Castes Commission and the Scheduled Tribes Commission as the ex-officio members of this Commission. What is the reason for not making the Chairpersons of the Minority Commission and the National Commission for Women as ex-officio members of this Commission? So, these two things have to be clarified.

Sir, as I have earlier stated, the reports of the Human Rights Commissions should be made public; it should be made available to every person. The Commission sends some reports to the State Government, and if these reports are not made known to the people, if these reports are not published, then what purpose it is serving. If it is published, if the findings and the recommendations of the Human Rights Commission, both at the national level and at the State level, are made known to the people and the action taken by the respective Governments, then, the people will come to the conclusion as to the helplessness or taking a partisan attitude of the respective Governments. If it is made known to the people, then, we can have some say over the Governments. The people will judge the performance of those respective Governments. So, this is one aspect.

The next point is this. I request the Government to see that the required infrastructure is provided to the organisation. They have neither men nor the required infrastructure to go-ahead with their visits and to prepare their reports. They are neither given the required infrastructure nor the required powers so as to enforce the law. So, this is the most important aspect. Without giving the required infrastructure, without giving the required teeth to implement the legislation, the very purpose of constituting the Human Rights Commissions, making enactments and amendments will all remain only on paper, and in practice, it will not be helpful to the people. The affected persons who are knocking at the doors of the Human Rights Commissions are going there under compelling and inevitable circumstances only. If it is not done, it is going to be another regular police station-like a thing. So, I request the Government to see that the required infrastructure is given and the required money is provided to the Commission. I also request the Government to see that the reports of the Commissions are made public. The hon. Minister has to explain as to why they want to go in for in-service people. Earlier, we used to have the retired Chief Justice as the Chairperson of the National Human Rights Commission. Now, you are going in for in-service judges. Similar is the case with the State Human Rights Commissions. Please explain the logic behind this. With these comments, I conclude, Sir. (Ends)

SHRIMATI BRINDA KARAT (WEST BENGAL): Thank you, Sir. I would like to apologise, Sir, that I was not present when you had called my name. I was participating in a protest demonstration of women who are fighting for their human rights. It is very much linked to what we are discussing today in the House. So, I hope, you will condone my absence for that time.

Sir, I believe, that when we are talking about the Human Rights Commission, although we limit ourselves to the framework of the amendments which the Government has moved, I think, this just provides to the House and the Government also an opportunity to review the experience of the last 13 years since the Commission was formed, and what is there in the law wherein we can further strengthen the functioning of the Human Rights Commission. Because, I think, there is a unanimity across the House that in the last 13 years, the National Human Rights Commission has proved to be an institution which has, within the framework of its mandate, provided a very great service to the people of this country, and, in particular, Sir, to the poor people of this country. (Contd. by kgg/1l)

kgg/1l/2.10

SHRIMATI BRINDA KARAT (contd.): Sir, working with the women's organisation, I have a responsibility. We are in very close touch with the Human Rights Commission and a very important point they have added to the whole language and definition of human rights in this country unlike many Western countries which limit the understanding just to the aspect of individual liberty, which certainly is an important pillar of human rights. Our Human Rights Commission has gone beyond that and has also looked at the social inequalities because there is a stronger reality and a premise, I think, of the human rights that you cannot have individual liberties, if your society is based on social inequalities because an unequal citizen cannot access any individual liberty. I think, one of the very important contributions of the National Human Rights Commission has been that they have been able to broaden the understanding of what constitutes human rights and we have, I think, added to the entire struggle, all over the world, of citizens for human rights to say that unless you also talk about economic and social inequalities, you cannot divorce the aspect of human rights from that very basic premise. In this, Sir, a very important contribution of the National Human Rights Commission has been the commitment to protect their autonomy.

I believe, in our country, we have seen many Commissions and Commissions are functioning to the best of their ability, but one of the handicaps and disadvantages of such commissions are that in the public perception, since they are appointees of the particular Government in power, rather than come through a broad-based selection process, which constitute a sort of a wider selection committee, on many of the aspects...(Interruptions) So, the point I was making, Sir, is that the aspect of autonomy of the Commission which, I think, is very, very important because we have seen that it is precisely through the instrumentality of the nominations in a non-partisan manner that Commissions have a very important mandate in protecting and advancing the rights of any specific section of people; it is their mandate to protect; somehow, it can get eroded through this process of political nominations and to that extent, Sir, I think, the way the Commission is selected is very important. In 1993, when the Parliament adopted it, I think, it was a very, very important point that the law-makers included it at that time--to provide for a broad-based selection committee which includes the representatives of the Government, the Prime Minister himself, the Leader of the Opposition and the Speaker, the Opposition Leader in the Rajya Sabha and, of course, the Home Minister. Therefore, we can always expect that this Commission will consist of persons who are mandated to protect the autonomy of the Commission and they have done so. I think, we can be proud of it. Therefore, I was very happy when I read the amendments that the Government have moved in this direction. There was an amendment which could have been interpreted that the selection process can go on even in the absence of a member of the selection committee. I am also very happy to see the second lot of amendments that our Home Minister has moved in this House. A very important amendment. He has very specifically mentioned the phrase, "in the absence of"; and I welcome that because if there had been any interpretation, it could have led to a situation where one could have tried to push a particular selection process through, and you have stopped it. It is a good amendment that you have moved. I am happy about it.

However, Sir, along with the selection process, another crucial thing, autonomy of the Commission, has been protected by the Government. The second very important thing is the status of the Commission. Sir, we have seen our Women's Commission and I would like to take this opportunity to put it before the House. Look at the discrimination against the Women's Commission. It has the lowest status today of all the Commissions. (Contd. by 1m/kls)

KLS/1m-2.15

SHRIMATI BRINDA KARAT (CONTD): Therefore, it is about time that the status of the Chairman of the Women's Commission and the members of the Women's Commission should be at the same level as of other commissions because otherwise if you are calling a civil servant and you have the rights of a civil court and you are calling a Secretary or even a Minister of Government and you have the lower status in that, then how are you going to have any authority? So, in that, Sir, our Human Rights Commission has a very clearly defined status and that status is precisely because it is the Chief Justice, a person who has served as the Chief Justice of India who has to be the Chairperson of the Commission. Now we have had the experience of last 13 years. We have seen in different times different Governments may try and erode the mandate of Human Rights Commission. But they have stayed firm under strongest of the pressure. They have stayed firm. I know, Sir, in 2002 there were several cases, which went before the Human Rights Commission. There were many and it is a specific case of a specific State in which there was so much pressure on the Human Rights Commission not to act. But they protected their mandate and they were autonomous about it. Why? -- Because of the status of the Chief Justice? ...(Interruptions)... In the case of Women's Commission there was a problem about that. But I am happy to say for the Human Rights Commission. I am not going to any particular State or so because I do not want to get into that. Therefore, I feel that this amendment which has been moved by the Government to permit any person who as a judge of the Supreme Court, who has been there for three years, to be the Chairperson, it is not going to help the status of the Commission, it is not going to help in taking forward the mandate of the Commission. Therefore, I have already spoken to the hon. Home Minister about this and I would plead to him that when we do not have any negative experience about it, I would really request you, Sir, to think about it again. I can understand if there are any extraordinary...

THE MINISTER OF HOME AFFAIRS (SHRI SHIVRAJ V. PATIL): We are accepting that amendment.

SHRIMATI BRINDA KARAT: Thank you very much, Sir. I am very happy and I am very, very grateful to you that you accept that because I know that there is a question of choice when it came before the Standing Committee -- our hon. Member, Sushmaji, is the Chairperson of it -- I know that very important arguments had been put by the Government - the question of availability of choice etc. But I feel, Sir, that when the circumstances were not such it was not required. I am very grateful to the Home Minister that he has made this intervention and he assures us that he is going to accept the amendment. Along with that, Sir, the second point I want to raise in this is that the National Human Rights Commission status is something that I am on and this point relates directly to it. I understand the concern of the Government to broad base the accessibility of the National Human Rights Commission to the poorest citizen of this country. Somebody who is there who can only access a local court, who cannot come to Delhi to the National Human Rights Commission, you have a concern which you have expressed in that amendment that any court can direct and let them bring it to the National Human Rights Commission. I know your intention. Your intention is to broad base the accessibility of citizens to the Commission. But, Sir, there is another angle here because when we are talking about the status of the Commission, then we have to protect the status. If it is going to happen any munsif court or any magistrate's court is going to say, 'tomorrow you have to go and that the National Human Rights Commission is directed by this court Commission to look at this case' I feel it is not going to help either the accessibility or the status of the Commission. Therefore, I have moved an amendment to say, yes, it is necessary to have a contact between the courts and the Human Rights Commission , Therefore, the basic premise of the Government I accept, I agree with. My amendment is that as far as States are concerned, let it be the High Court there and as far as the national level is concerned, let the Supreme Court make a reference. The Supreme Court makes a reference and, therefore, the Human Rights Commission, accepts it, that is fine. Otherwise if you look at it we are making the Commission subservient to a much lower court with a much lower status. So, I request the hon. Minister also to think about this aspect and accept this recommendation.

SHRI SHIVRAJ V. PATIL: If an individual can go to the Human Rights Commission, why should we stop a magistrate on behalf of an individual forwarding the application to the Human Rights Commission?

(Contd by 1N)

-KLS-SSS/2.20/1N

SHRIMATI BRINDA KARAT: You see, Sir, that is an important point. My point here is, that individual has already gone to the court and it is up to that court to look at that case. What is there as a mandate of the court to look at a particular case of Human Rights? Why should that lower court refer it to the National Human Rights Commission? There also, the question of Centre-State relations, so many aspects are there. If there is a case of Human Rights violation, let the Munsif court or the Magistrate Court refer it to the State Human Rights Commission if they want to bring another institution into it. In that case, Sir, the court has every right and every responsibility to opine on the particular case which is there before it. But, if the courts are going to escape their responsibility and put all the Human Rights cases sent to the State Human Rights Commission, then, I am afraid, you will have to have, not only State Human Rights Commission, but District Human Rights Commission, Block Level Human Rights Commission also. It is not going to work, Sir. Therefore, my point is, there is a State Human Rights Commission. The individual can approach the Human Rights Commission but please maintain and protect the status of the National Human Rights Commission. The other point that I would like to make here, Sir, is regarding the size of the Commission as far as the States are concerned. Now, there is an amendment moved, I have read the logic behind it. It has been said that because of the financial burden on many of the States and specifically on the North-Eastern States to have a separate State Human Rights Commission, they want to reduce the number from five to three. That is fine. But if it is mentioned in the Act itself that State Human Rights Commissions will consist of three members instead of five members, then, Sir, I don't think it is going to help because there are many large States. I have seen, Sir, my friend, Mr. Vayalar Ravi is here, he knows about it. In Kerala when the State Women's Commission had five Members, the UDF also thought the same thing to save some of the money. Hon. Member, Mr. Antony is here. He was the Chief Minister, at that time. So, they said, "we will reduce the number of members from five to three". But the number of cases that the Commission has, it is virtually impossible to deal with so many cases with such a small infrastructure. So, now, with discussions.

SHRI A. K. ANTONY: We have not only decided to reduce the number of members of the Women Commission, but also of all other Commissions. When we took over, the State was in a very difficult financial position. So we thought to reduce the number of members of all the Commissions from five to three. But there is no discrimination against women.

SHRIMATI BRINDA KARAT: Correct, Sir. So, we can reduce the strength of all Commissions and accessibility to Human Rights across the country for men, women and children! But, I am saying that we should avoid it for the simple reason that there are very large States where there may or may not be and most probably there are a very wide range of violation of human rights. So, please do not reduce it from five to three in a blanket way and please change it. Sir, I have two more points which the National Human Rights Commission had suggested. One point has already been raised by the hon. Member speaking before me. I think that is a very important point, Sir. That is in Section 11. There are two points. The first point that I want to take is slightly different. That in Section 11(1), the Commission had suggested that when you are appointing a DIG, any police person to work in the Commission, what they had requested, Sir, 'please consult the Commission, have some concurrence with the Commission.' I don't think, Sir, that is a very unreasonable demand because we know in our National Women's Commission, I don't want to mention any names, but we have seen, Sir, the appointment of A, B, C, how for months together the entire working of the Commission was sabotaged. It was sabotaged for various reasons. So, we already have an experience. When you have that experience, when you are giving the status to the Commission, then, what is wrong? Then, ultimately the decision can be of the Government. We don't mind that. But, at least add this word 'in consultation'. I am not saying mandatorily they will be the final word. No, but kindly add this, that in consultation with the Commission, the DIG rank person etc., will be included. Along with that, Sir, one more very important point, because we have the Right to Information Act, and I am very confident that this Government is not going to take any step which is going to weaken that Act, in any way, and one of the very important points is, Sir, that of transparency. (Contd. by NBR/1O)

-SSS/NBR-NB/1O/2.25.

SHRIMATI BRINDA KARAT (CONTD.): Therefore, the issue of publication of Reports. We have seen this in our own House; something is laid on the Table of the House. Nobody knows what it is. We don't know. So many Reports are laid. But, actually, we do not know what they are -- whether it is good or bad and whether the Government has taken action or not. It is our responsibility to look into them as Members of Parliament. We cannot blame the Government for it. But a Commission, Sir, which works so hard and produce Annual Report or any special Report, which is called upon to do according to its mandate, if the Government, for its own reasons, does not within the mandated stipulated time place that Report in Parliament, can we put a gag on the publication of that Report? Now, the NHRC raised that point. Then, the Ministry officials, who had come, said, 'no, no. Our accountability is to Parliament. You cannot have a mechanism which will come between accountability of Government to Parliament.' They are using us to gag another autonomous institution. I think that is unwarranted. Therefore, it is a small matter. I don't want to make a mountain out of a molehill on this. But, the point is, I would request the Government on this also to kindly think about this aspect and let the Reports of the NHRC be published.

And lastly, why women are not mandated to be a member of the Commission? Why only seven members? How many women members we have in all these years? I think, one. Therefore, I know that hon. Shivraj Patil is very, very sympathetic. He has done a lot of work. SHRI H. R. BHARDWAJ: We have very prominent members in this House.

SHRIMATI BRINDA KARAT: Yes, you have. But, it is not mandatory. It is up to the subjective decision of the Selection Committee. I want it mandatory. You do have ex-officio Chairperson of the Commission. But, fortunately, at least, the Chairperson of the National Women Commission is reserved for women. I thank Parliament for doing that, at least. But, Sir, I request, through you, the hon. Minister please mandate, at least, for one woman in the Commission, since we will be considering your amendments, I request the Minister to do it. Thank you. (Ends)

SHRI S. ANBALAGAN (TAMIL NADU): Sir, I thank you for giving me this opportunity to speak on the Protection of Human Rights (Amendment) Bill, 2005, on behalf of the AIADMK Party. This Bill seeks to amend the Protection of Human Rights Act, 1993, which established the NHRC of India. The Protection of Human Rights Act has long been in need of an amendment. It has been criticised by independent NGOs and the NHRC itself for the limitations it places on the NHRC's powers, independence and effectiveness.

The first attempt to revise the Act came after 13 years after the establishment of the NHRC. But, the amendment Bill fails to address the concerns expressed by civil society and by the NHRC itself during the past 13 years. In fact, apart from two half-hearted attempts to upgrade the monitoring powers of the NHRC, the amendment Bill actually contains regressive provisions that will further undermine the NHRC's independence and functioning.

The Bill, among other things, has a provision to relax criteria for appointment of Chairpersons of the National and the State Human Rights Commissions to provide for more choice. At present, only retired Chief Justices of the S.C. are eligible to become NHRC Chairperson while only retired Chief Justices of HCs can become Chairperson of SHRC. The criterion is being relaxed to allow all retired judges of the SC with, at least, three-year experience to be considered for appointment as the Chairperson of the NHRC and also to allow all retired HC judges with a minimum five-year experience to be considered for appointment as SHRC Chairperson. (CONTD. BY USY "1P")

AKG-USY/1P/2.30

SHRI S. ANBALAGAN (Contd ): Sir, other salient features of the Bill are: enabling the NHRC to inquire into the cases of human rights violation referred to it by courts, in addition to the present system of making an inquiry suo motu on a petition by the victim or on behalf of the victim; enabling the NHRC to make surprise visits to jails, now possible only after intimating the State Government concerned; and enabling the NHRC to recommend an award of compensation or interim relief to victims during the process of inquiry. At present, the Commission can do so only after completion of the inquiry.

The Bill provides for increasing the penalty for publishing juveniles' names from Rs. 1,000 to Rs. 25,000, making it mandatory for States to constitute Juvenile Justice Boards and Child Welfare Committees and ensuring that juveniles are not detained with adults in jail.

The Bill also seeks to enable the NHRC chairperson delegate some of his powers and functions to the Secretary-General; enable the Commission to transfer cases to SHRCs if it feels the complaint falls within the latter's jurisdiction and reduce the number of SHRC members from five to three.

In addition, the Bill provides for appointment of common chairpersons/ members of an SHRC for two or more Sates, particularly for smaller States which may be unable to establish separate commissions for financial and other reasons.

The Amendment Bill could have been an opportunity to bring about substantive changes in the functioning of the NHRC. But unfortunately, there is no attempt in that direction. The Amendment Bill does little to address the fundamental weakness of the Protection of Human Rights Act. The omissions are glaring. There is no attempt to address the desperate need to have the NHRC independently inquire into human rights violations by the Armed Forces. Nor does the Amendment Bill seek to empower the Commission to initiate proceedings for prosecution and grant interim compensation, as it may consider necessary, restricting its role to making recommendations. The need to guarantee the NHRC's financial independence has not been considered necessary. So, I would request the hon. Minister to pay heed to the demands across the country and take care in implementing the provisions of this Bill. Thank you very much, Sir. (Ends)

. ִ ӛָ (ײָ) : ֮֮ߵ ֳ֯ן , ֮ ֙ ײֻ ִ֣Ԯ ׻֋ ֛ , ָߵ ׾֮֬ ׸ ׻ ׬ָ ܵ և Ӹ , , ־֮֬ ֵ ֮ ֮ , ו֮ ִ֬ ׻ ׬ָ ־֮֬ ֵ ָ ־֕ ֮־׬ָ ֵ ־ֿ ֛߅ ߔ ׮ֵ֤ ָ ָ߲ , ֕ , ׻֟ , ׯ֔ , ֋ , ָ ָ֓ Ù ָֿ߮ , Ù Ͽ֮ , ׻ , - ׻ þֵ ָ֓ Ͽ֮ ָ֓ , ӛ ׻ִ , ָ֓ , 廴 ֲ ׸ ָ ָ ׮ָֿ ֟ , ֮־׬ָ ֵ ֮ ָ ֟ (1 ָ ֿ:)

1Q/HMS-VP/2.35

0 ִ ӛָ (֟) : , 70 ָ ִֻ ֟ ִֻ ֮־׬ָ ֵ ִ ֟ , ָ ִֻ ֵ ִ ֟ ָ ׻ , ã֮ߵ Ͽ֮ ִ ִֻ ֟

, ֮־׬ָ ֵ ֮ ׻״֮֙ ֮֮ߵ ֤õ ӱÙָ ֟ ӱÙָ ӓ-ֻ֛ ׻֋ ֟ , Ù ־֮Դ ָ ׮ֳԸ ֛ ӿ֮ ֮ ֲ ׮ָ ׻֋ ֟ Ù ־֮Դ ָ״ֿ֮ ֛ ֲָ ֛ ߅ ֠ ֤־ ֵ ֟ ֲ ׮ָ כ֮ ֵ ׮ָ , ֕ ֵ ו֮ ֕ ֵ , ִ ׻֋ ׬ӿ ִֻ Ù ־֮Դ ָֿ߮ ֱֻ ָ Ù ־֮Դ ָ ֱֻ ָ , ײ֟ ֋Ӆ ׻֋ Ù ־֮Դ ״ֻ֟ ָ Ù ֮־׬ָ ֵ , ִ ִ , ָ ־֮֬

, օ ׾֮֫ ׬־֌ , ִ-ִָ ׬־֌ ֲ ߿֮ ׮ֵ׌ ֟ ׸ֵ֛ ߱ Ù כ ָ ׮ֵ׌ ֟ ߅ ־֮֬ ֵ ָ ߴ ߮ , ׮ֵ׌ , ֻ֟ ֤־ , "ָ " ׻֋ ֵ , Ϭ֮ ӡ , ֳ , ָ ָָ ӡ , ׾֯ , ֳ ֕ ֳ ׾֯ ֕ ֳ ֳ֯ן ֕ ãן - ܵ ӡ , ׾֮֬ ֳ , ӡ ׾֮֬ ֳ ׾֯ ןš ָ ֟ , ־ֻ ָ ֟ ֮ "ָ " ׻֋ ׸֟Ԯ ֵ , - ׸ֵ֛ ߱ Ù , ״ֻ ֟ ãן ָ ־֮֬ ֵ ִ֟ ־֮֬ ֟ ־֮֬

, 00/00 -ױֵ ָ ֮֮ ֟ ֵ֮׸ ߿֮ ָ ֟ , ׾ִ ߿֮ ָ ֟ , ֕ ֛ ߿֮ ָ -ױֵ ָ ֵ֮ ֋ ׻֋ ֳ ָ ִֻ ֟ ֳ ꌿ ִֻ ֟ և ֟ ִ ׻֋ ֕ ֛ ߿֮ , ָ -ױֵ ָ ֵ֮ ֋

, ߌי ־ פ ֮ , ָ ִ֟ ֱ֋ә (1 ָ/ߋ־ ָ ֿ:)

HMS/PSV-PK/1R/2.40

0 ִ ӛָ (֟) : ָ, ֵ ׻֋ , ָ ָ ֟֋ ו֮ ֵ ״ֻ֟ , ֟ ָ פ ֳ ָ߲ , ֕ פ ׻֋ , וֻ ־ã וֻ ֮־׬ָ ֵ ִ֬ ֵ ״ֻ ־֮֬ ־ã

, ïߛ ־Ù֮ ֟ , - ֟ Justice delayed is justice denied. Ù֮ ֻ ֲ ׸ ָָ ֟ , ָָ ָ ׸ ָև ָ ٻִֵ ֮ ־ֿ , ٻִֵ ֋

, ״ֻ ֯ ֵ : ֮ ׻֋ ֵ , ָ߲ , ׻֟ , ׯ֔ women ׻֋ ߿֮ executive powers , infrastructure ָ ־ָ ָ֜ ֛, ָ֜ , ֲ ֣, ײֻ ִ֣Ԯ ֮־֤ (ִ֯)

DR. ABHISHEK MANU SINGHVI (RAJASTHAN): Mr. Deputy Chairman, Sir, I rise in support of this Bill, and I wish to make some suggestions and comments. We should be very clear that we are discussing an important subject, an important Bill and an important Commission. There can be no two views about the vital importance of human rights, and we should be a happy nation that, on the whole, a nascent institution like the National Human Rights Commission, under a relatively new Act, has discharged its functions and role reasonably, and creditably. It has achieved international recognition and status within a relatively short time and most important is, its views and decisions have greater moral authority than mere legal efficacy. That it is done so is partly because of the objectivity, the impartiality and the great detail of research, which it has brought to bear upon its task. The life of any legislation must be periodically reviewed. It is a constantly evolving dynamic process and it is good that after these few years of the National Human Rights Commission we have brought in an amendment in the light of experiences gained, and in the light of the constantly evolving situations. The proposed legislation has several positive features and we all know about that; so, I will not take time on that, but just to mention and highlight, it is very useful and important, for example, to amend the definition of the international covenants, because in international law, no single instrument carries universal effect, no single instrument carries universal authority. A host of international instruments relating to human rights create a corpus of international jurisprudence which becomes both, practice and convention and is followed by all the nations. Now that this Act amends the definition to include that entire corpus of international law-generating instruments, in a sense, we are going to adopt and go not by minimalist standards, but increasing the standards to somewhere nearer maximum standards and that is very good. Secondly, the provision regarding surprise visits, surprise checks, surprise inspections is also very welcome, and, I think it was more by oversight than by design that the original one intended that there should be full notice. I happen to have been a counsel in the D.K. Basu custodial torture, custodia death case, and the crux of the guidelines which the Supreme Court laid down regarding custodial torture or custodial deaths was surprise visits at jail houses, at police stations to check such an abuse. So, I think that is again a very welcome and laudatory amendment proposed. Thirdly, the power of the National Human Rights Commission to transfer matters to State Commissions is also a beneficial, useful provision. After all, the National Human Rights Commission is only one. It is an apex institution at the national level and it de-clogs the systems if it has the authority and the power to decentralise adjudication to the various other State Commissions. (Contd. by PB/1S)

PB/1S/3.45

DR. ABHISHEK MANU SINGHVI (CONTD.): That again, I think, is something to be welcomed and applauded.

Sir, may I come to three specific issues where I want to make suggestions and partly agree and partly oppose those who have spoken before me?

The first issue is -- and on this issue I broadly agree with the speakers before me -- that, perhaps, the power for any adjudication body or Magistrate or Munsiff to refer to the NHRC may not serve the purpose it is intended to. There are different kinds of courts all over the country, and to permit a reference by anyone at any time in any court to the NHRC may, perhaps, impliedly, without quite intending it to be so, dilute the status and authority of the NHRC. It may also open the floodgates for a huge number, which will become unmanageable by the NHRC. I, therefore, have a simple suggestion for the hon. Minister to consider which will, in fact, achieve the purpose which this Bill seeks to implement and yet not open the floodgates. The human right issues arise in public law, and public law is administered in our country by courts which are known as 'writ jurisdiction courts'. Under article 226 of the Constitution, certain courts exercise power of an extraordinary nature to issue writs. Now, since that deals with human rights and public law issues, it might be best to make a small amendment and to provide that the reference to the National Human Rights Commission can be made by all courts which exercise writ jurisdiction power. Additionally, of course, the Supreme Court can always refer to the NHRC, which it has already been doing. So, this twin power of allowing referrals by courts, at the High Court level exercising writ jurisdiction plus the Supreme Court, will suffice to achieve the purpose which the Minister seeks to achieve without opening the floodgates. Moreover, if it is intended that even lower courts should be able to refer to the NHRC matters arising, then, perhaps, another simple additional amendment can be made saying that 'the lower courts may refer such matters to the High Court of that State, to the Bench exercising writ jurisdiction, which may then, in its wisdom, decide whether the matter deserves to be referred to the NHRC. There will be this additional filter, which I submit, will do both -- not open the floodgates to the NHRC; it will provide a filter as well. And, since the public law and human rights issues have to be administered in this country by courts exercising writ jurisdiction, it will channel such references through the appropriate forum, namely, the High Courts exercising writ jurisdiction. So, this is the area where I broadly agree with the preceding speakers, but with the amendments and suggestions which I have made, which, I believe, will also achieve the purpose which the Minister seeks to achieve.

The second area -- before I come to the contentious area of retired Chief Justice or Judge -- which, I think, needs to be thought out, is a little technical. But I must address that. The interim relief could be given by the NHRC earlier also, and it is being continued by the amendment. There is no change, which is good. However, earlier, the compensation could not be specifically given. Now, we have provided that compensation can be awarded. It seems to be a good thing. But let me raise a few questions which, I think, can be easily met by amendments to make it efficacious. We must not forget that the NHRC, as it today stands before and after the amendment, has only recommendatory powers; it has no enforcement powers. Secondly, the compensation can normally be awarded after full adjudication by a decree. The 'compensation' means, you have adjudged, adjudicated, found one party guilty or innocent and then awarded money. Now, both these things, the NHRC does not do and cannot do under the present Act. It does not do a full adjudication. It cannot pass a full decree, and whatever order it ultimately passes is not enforceable. If that be so, to merely provide that compensation may be granted may create two problems of a serious nature, which may not have been foreseen.

(Contd. by 1t/SKC)

1t/2.50/skc

DR. ABHISHEK MANU SINGHVI (CONTD.): Today, because the NHRC cannot give compensation, the person is, at least, entitled to go to the normal civil court and seek compensation. In that civil court, he would get a decree, which he can enforce. Now, if he goes to the NHRC and gets an order of compensation, which he cannot enforce, he will be both without a remedy in the NHRC and also not be able to go to a civil court, because you cannot have dual remedy or double damages on the same course of action. So, I think, the solution will have to be, providing for the case where the NHRC gives compensation, at least, in that limited category; provide that its orders will be enforceable. That will complete the circuit and complete the picture. Or, alternatively, don't provide merely for compensation without enforcement, leave it to the ordinary civil forum where he can seek compensation. Otherwise, it will be a hybrid, half of nothing or half of either side.

Sir, may I now come to the last, but the most contentious point, where I totally disagree with that which has come from the Opposition Benches and from other speakers prior to me. It is suggested that the amendment to permit judges, other than the retired Chief Justice of India, to hold the post of Chairperson, is prejudice, undesirable and erroneous amendment. With utmost respect, I totally disagree. Let me approach the problem a little differently.

Let us not forget, Sir, that in this country, we have several statutes, a very large number of Acts -- and I can recite any number of them, from the Excise Act, to Tribunals, to Income-Tax Tribunals and hundreds of tribunals. The important point is, hundreds of tribunals in this country are manned, the norm is, only by retired Judges, either of the Supreme Court or the High Court. It is very interesting to remember that the maximum revenue in this country perhaps comes from the Excise Tribunals because excise generates the maximum; nowadays, a close competitor is Telecom. In the excise field, even a Chief Justice of a High Court is not required to head the tribunal; a Judge of the High Court is sufficient. Let us not forget that the norm for 90 to 95 per cent tribunals in this country is, a retired judge, frequently, only a retired judge of the Supreme Court, or frequently, only a Chief Justice of the High Court, or a retired Judge of the High Court, heads it. Therefore, the provision that it should be only a retired Chief Justice of India is, by itself, an exception. What is now being done is to bring the exception, by amendment, back to a norm.

There is another very important facet, which my friend from the Opposition has forgotten. In the Supreme Court, every judge is equal. The Chief Justice of India is only the first amongst equals. The junior-most judge of the Supreme Court, in terms of seniority, exercises exactly the same powers as the senior-most judge of the Supreme Court. Are we, Sir, in this debate, forgetting that we trust matters of the greatest moment relevant to this nation to any judge of the Supreme Court? We trust matters of national security, matters of immense public revenue, matters of immense political importance, matters of momentous importance to individual parties, all of them, to a judge of the Supreme Court. The only extra power which a Chief Justice has is that he has the power of allocating work, of fixing the roster, as to which judge will discharge which subject matter of duty. The Supreme Court, for example, sits in roughly ten to twelve Benches. Each Bench is completely independent. The case which they are hearing is entirely in their control. The underlying premise of my friend's argument is as if there is a hierarchical difference between the Chief Justice of India and other Judges of the Supreme Court so far as powers, competence, talent or authority are concerned. This is the fundamental fallacy of the entire argument. My friend is in the habit of not being available after finishing his speech as far as reply is concerned. It also happened the other day. But that is for him, his conscience to decide; it is not for me to comment.

Therefore, Mr. Deputy Chairman, Sir, in a sense, I am sure, without intending it to be so, my friend from the Opposition is really making an insinuation or allegation against normal judges of the Supreme Court who are not Chief Justices, which, as you know, can be only one. Therefore, I think, this constant harping on the fact that a judge of the Supreme Court is, in any manner, exercising truncated power, circumscribed power, limited power, or in any manner, less qualified than the Chief Justice of India, is itself a fundamental fallacy, which arises from my friend's arguments. (Contd. by 1u/hk)

HK/1u/2.55

DR. ABHISHEK MANU SINGHVI (CONTD.): Ultimately, Sir, we must not forget that it is the individual who matters, not his designation. A Judge of the Supreme Court can be outstanding; a Chief Justice of India may be average. It all depends on the kind of person you appoint. Vice versa is also to be true. Therefore, it all depends on how well the Selection Committee, which is already in place and to which no one is objecting, will choose the candidate. Therefore, let us not put so much emphasis; let us not make insinuations of candidate of choice as far as a mere change from CJI to Judge is concerned. After all, we are talking of the very high status of the Supreme Court Judge. Let us, Sir, also not forget a practical difficulty. At any point of time, the pool of persons you can select from is, in fact, extremely limited if you limit it to the Chief Justice of India retired category. This is a fact of life. It is not good enough to say that there are always enough. In fact, what happens is that the person retires at 65; there is a person already in place, he may retire after two years. After two years, the available pool may be only two or three. Now, in place, or as opposed, or by contrast to a pool of only two or three, if you have a pool of 20-25 persons of the status of the Supreme Court Judge, no less I think there is absolutely no cause for apprehension or complaint and there should be no doubt. This is really an unfortunate innuendo or suggestion created as if there is some kind of a diminution of standards while forgetting that very high tribunals -- and I gave the example of Telecom Tribunal, which is very high revenue order and only a Judge of the Supreme Court is to head it -- the Excise Tribunal, not even a Chief Justice of the High Court is to head it, only a Judge will suffice. Therefore, Sir, may I suggest, in conclusion, that this Bill, which is undoubtedly a very significant and important Bill, deserves to be considered constructively and passed with two suggestions which I have made as far as the reference to the NHRC is concerned and as far as the compensation issue is concerned? I submit, Sir, for the kind consideration of this august House that no change is required as far as the pool of potential candidates is concerned and that that amendment is very salutary, indeed is desirable. Sir, I, therefore, move this Bill for consideration along with the suggestions which I have made. Thank you. (Ends)

KUMARI NIRMALA DESHPANDE (NOMINATED): Sir, I shall be very brief. I would like to share an experience of Jammu & Kashmir how human rights violations take place and how they can be prevented. Wherever we used to go, we were flooded with complaints from local people about human rights violations, of course, mainly from the Armed Forces. But in one area I was surprised not a single complaint came. Then I tried to find out the reason. Then I was told that some Colonel has been posted, who is very reasonable. So, I wanted to meet him and I found that he had given instructions to all those who were working in his area that treat the local people as friends, help them, but treat the militants very severely. So, make a distinction between the two. Then he also tried some kind of interface and all that. But the result was that there was not a single human rights violation in that area. If both the Police Force and the Armed Forces can be sensitised, if they can be given some such suggestions -- that officer did it on his own -- the results will be really wonderful. So, if the whole Police Force and the Armed Force can be sensitised to be humane. Treat the criminals, militants and terrorists in whatever way you think proper, but the local people, the ordinary people, should be treated as dignified citizens, as friends and if this thing can be done, we will have very few human rights violations. (Contd. by 1w/YSR)

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