Human Rights Courts in India: Between Promise and Practice

Introduction

Human rights are rights inherent in every human being and have come to occupy a central place within all modern legal systems, shaping both international and national law. However, the effective protection of these rights depends not only on their recognition but also on the availability of accessible remedies. As a response to this concern the United Nations, in the early 60’s, promoted the idea of ‘National Human Rights Institutions’ to be set within the legal contours of each Nation State.  

Consequently, this institutional approach was strengthened with the adoption of the Paris Principles in 1991 at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights. These principles laid down the basic guidelines for the creation of independent and effective national bodies tasked with the promotion, prevention and protection of human rights within the country. India being a participant in the 1991 conference, in the spirit of global cooperation and good faith and to align its human rights framework with these principles, enacted the Protection of Human Rights Act, 1993 (‘the Act’), its first comprehensive human rights legislation.

The Act marked a significant step in institutionalising the protection and promotion of human rights in the country by laying down a structured framework for the establishment of independent statutory bodies such as the National Human Rights Commission (‘NHRC’) and the State Human Rights Commissions (‘SHRC’). Notably, in addition to the two institutions, the Act under Section 30, further empowers the respective State Governments to designate their district session courts as Human Rights Courts (‘HR Courts’), a feature largely unique to the Indian legal system. While the commissions are equipped to raise awareness, investigate violations, and recommend corrective measures to the government, the courts at the tertiary level have the sole purpose of conducting trial for the ‘offences arising out of human rights violations’. This legal framework aspires to decentralise the protection network, by making justice a tangible reality for the marginalised, who may not be aware or be economically equipped to seek redressal before the commissions or the High Courts.

Unfortunately, the lackadaisical attitude shown by the majority of the Indian states in timely designation of these courts, along with the inherent defects within the Act governing the operation of these special courts has almost left this remedy redundant.

Drawing upon findings within the original research paper, the present article concisely discusses the functional paralysis of HR Courts, caused by legislative ambiguities, and highlights the urgent need for structural amendments to the Act.

In doing so, the paper begins by examining the law’s failure to define ‘offences arising out of human rights violations’ and the observations made by the Hon’ble Madras High Court in Tamil Nadu Pazhankudi Makkal Sangam v Government of Tamil Nadu, resolving the said ambiguity. It then highlights the real-world impact of this legislative gap through an empirical analysis of the Gujarat HR Courts, exposing an abysmal caseload. Furthermore, as advocates serve as a crucial link for a layman to the HR Courts, the author conducted a survey of 100 practicing advocates to evaluate their working knowledge of the provisions of the Act surrounding HR Courts exposing severe awareness crisis regarding the very existence of the HR Courts. Ultimately, the article concludes by outlining critical structural reforms to ensure these Courts can fulfil their intended purpose.

Human Rights Courts and the Ambiguities in Design and Implementation

To begin with the foremost problem with the functioning of the HR Courts has been the untimely designation of these court by the state governments. For instance, it was only in the year 2020—almost 27 years after the Act came into force—that the NCT of Delhi designated the HR Courts. A similar story is reflected in various other states. The 2015 Supreme Court order in the case of DK Basu v State of West Bengal, is one of the key orders which addressed the necessity of designating the courts as HR Courts, and urged the State Governments to fulfil the promise made by the legislation. A similar observation was made by the Hon’ble Supreme Court in Punjab Human Rights Commission v Jatt Ram, wherein it observed that, ‘despite this Hon’ble Court’s explicit orders to constitute courts pertaining to Human Rights, no such step has been taken even though in doing so no additional infrastructure or additional recruitment or staff will be required in setting up these designated courts’.

The problem is not limited to the courts’ non-designation, it goes even further. Even if the states do designate these courts, certain intrinsic legislative deficiencies continue to cripple the operational efficacy of the HR courts. For instance, Section 30—the authoritative provision on the establishment of HR Courts refers to the designation of the Session Courts as HR Courts with the function of providing ‘speedy trial of offences arising out of violation of human rights’. However, the use of the esoteric phrase ‘offences arising out of violation of human rights’ gives rise to ambiguities in interpreting the provision. It is important to remember that the phrase would not equate to any HR violation, since not all HR violations would be considered offences. For instance, inhuman conditions in prisons may violate prisoners human right, yet the prison officials are not committing a specific offence. Similarly, a person who is denied a government benefit due to arbitrary administrative action, is violative of an individual’s right to not be discriminated, however does not attract any penal action. 

The NHRC first recognised this ambiguity, in its 1996–1997 annual report, wherein it categorically recommended to the government to define the said offences and  provide clarity over the procedure to be followed by the courts. The NHRC continued to do so in its consecutive reports till the year 2007 and then again in 2019–20 report. In spite of this, the Central Government and almost all the States, with Karnataka being an exception, have failed to formulate procedural rules for the special HR Courts. Even so, the Karnataka State Human Rights Courts Rules, 2006, fail to legally define the specific offences triable by the courts. 

Judicial Interpretation on the Jurisdiction of Human Rights Courts

Judicial interpretation surrounding the ambiguity of jurisdiction of the HR Courts was first brought to notice was in the year 1997, when a complaint was filed before the HR Court in the Erode district of Tamil Nadu. The petition alleged that the Special Task Force, tasked to apprehend the notorious sandalwood smuggler, was illegally detaining and torturing the indigenous tribal population of Erode. However, as the complaint failed to clearly list the offences, the presiding judge returned the complaint.

Consequently, an intervention by the NGO People’s Union for Civil Liberties led the Madras High Court to initiate a suo motu petition, Tamil Nadu Pazhankudi Makkal Sangam v Government of Tamil Nadu, addressing complex legal issues regarding the functioning of the HR Courts. The Madras High Court resolved the core ambiguity by combing the statutory definitions of the terms ‘offence’, as defined under Section 2 (n) of the CrPC/Section 2(q) of the BNSS, 2023 and the term ‘human right’ as defined under Section 2(1)(d), of the Act. Therefore, an ‘offence arising out of a human rights violation’ was judicially interpreted as any legally punishable act or omission that breaches these core constitutional rights. Crucially, however, the HC drastically narrowed the scope of the HR Courts by ruling that only violations committed by ‘instrumentalities of the state’ attract this specialised jurisdiction. The court declared that abuses committed by private individuals do not qualify as violation under the Act and must be adjudicated through ordinary criminal courts.

Building on this interpretation, a practical approach emerges wherein identifiable categories of violations, such as custodial deaths, custodial abuse, unlawful detention, medical negligence, by state actors can be systematically mapped onto the corresponding penal offences under the BNS, 2023. For instance, acts of police brutality can directly be prosecuted under offences related to assault, murder, or rape.

Translating Judicial Guidance into Practice: The Gujarat Experience

Subsequently, to determine whether the absence of enlisting specific offences triable by the HR Courts posed a hinderance to the functioning of the HR Courts, the author followed a two pronged methodology for the empirical study of HR Courts in Gujarat, combining secondary data analysis of case records using data sourced from the E-Courts website and a primary empirical survey of advocates practicing in the Session Courts of Gujarat.

The study of the HR Courts in the state of Gujarat was undertaken to assess whether the guidance offered by the Madras HC effectively addressed the jurisdictional and procedural concerns in practice. The author, through an RTI application filed to Gujarat High Court, noted that although the Gujarat Government, through a 2002 notification designated the sessions courts across all 32 districts as HR courts, the data over the 20 year span period from 2002-2022 procured from the E-Districts website, reflected an alarming lack of utilisation, with the negligible case filings of only 110 complaints.

(Source: Author’s Secondary Analysis using the Data from the E-District Courts Website)

The data further reflected an absence of meaningful adjudication outcome with only one acquittal and zero convictions.

(Source: Author’s Secondary Analysis using the Data from the E-District Courts Website)

This points towards an astonishing state of institutional paralysis. Notably, a majority of the claims were dismissed at the preliminary stage primarily due to two structural deficiencies. The first being the failure of the petitions to state the specific penal offence that arose out of the human rights abuse. The data depicted that about 89% of the complaints before the HR Courts failed to mention the offence in their petition, rendering the complaints legally untenable.  The second impediment stemmed from the fact that the Act simply lays down the skeletal framework governing the HR Courts, namely Section 30, designating the HR Courts and Section 31, which directs the State Government to appointment a Special Public Prosecutor for conducting the trial before the HR Courts, thus offering no procedural clarity surrounding the courts. As a result, the HR Courts, originally being a Court of Session are constrained to follow the committal proceeding under the BNSS, 2023.

The SC in Gangula Ashok And Anr v State Of Andhra Pradesh, while looking at a similar bottleneck posed by the Scheduled Castes and Scheduled Tribes, Act 1989 ruled that a special court being a Court of Session is restricted from taking direct cognisance of the complaints in the absence of any express provision allowing for it. The legislation however, circumvented this hurdle by expressly granting the special courts original jurisdiction under the respective legislation.

However, the lack of any similar language within the Act, has led the HR Courts to being barred from taking direct cognisance of the complaints made to it. An observation made by the Hon’ble Madras and Bombay High court in K Dhamodharan v RV Narbabi and Rasiklal M Gangani v Government of Goa through Chief Secretary respectively, succinctly summarise the aforementioned position around the HR Courts. The Act’s silence on this critical procedural mechanism along with the failure to enlist the offences triable by the HR courts, creates an insurmountable restriction, ensuring that complaints to HR courts are summarily dismissed.

Compounding the aforementioned issues is the widespread ignorance among the legal practitioners surrounding the availability of such a remedy.  Given that the advocates function as the vital bridge between the victims and the judicial machinery, their understanding of the statutory remedies is paramount to the successful implementation of the human rights law. To gauge practical challenges and understand how the phrase ‘offences arising out of violation of human rights’ is interpreted by legal professionals, the author conducted a survey among a randomly selected sample of 100 advocates practising in the District and Sessions courts of Gujarat. The target population was limited to practitioners in the select districts of Gujarat namely, Ahmedabad, Gandhinagar, Surat and Vadodara. The data collection tool employed by the author was a mixed-scale questionnaire that utilised both dichotomous and Likert scale questions. The data collected was thereafter examined using frequency analysis with the SPSS software. The finding of the study unveiled an alarming deficit in foundational knowledge around the HR Courts. While majority of the advocates were aware of the remedy offered by the NHRC and the SHRC only 45% of the surveyed advocates knew that a specialised HR Court even existed within their respective districts. Substantive knowledge of the Act was equally dismal. A staggering 49% of the surveyed advocates were completely unfamiliar with the statutory definition of ‘human rights’ as articulated under the Act. More critically, 49% were entirely unaware of the specific offences that are triable before the HR courts. Out of the 51 advocates who claimed some familiarity with the law, only two advocates were successfully able to correctly name the valid human rights offences, such as medical negligence, rape, and murder. In conclusion the author observes that the widespread ignorance among the advocates leads to poorly drafted, legally deficient complaints and acts as a massive hinderance to the functioning of the institution.

Conclusion and Recommendations for Reform

While the creation of district level HR Courts under the Act represented  a conceptually noble attempt to ensure robust, decentralised, and rapid criminal justice for victims of abuse, their functioning over the three decades of the law’s enactment, reveals their failure to achieve the mandate. Structural failures ranging from lack of procedural guidance and institutional clarity i.e. the absence of signboards indicating which court holds the HR Court designation, to their designation within the already heavily backlogged session courts, severely admonish the constitutional right to speedy trial. Accordingly, to salvage the institution from total irrelevance, the author proposes four critical legislative amendments to the Act.

Beginning with an amendment to Section 30, so as to clearly outline the exact powers and functioning of the HR courts. The Central Government must enact uniform procedural rules to govern these courts nationwide. Such rules must define how a complaint is filed, who is eligible to file it, i.e. the locus standi, and against whom can the complaint be brought. The rules must further detail the procedure the court must follow upon taking cognizance and nature of the trial to be followed by the court. Additionally, the author notes that despite the interpretation extended by the Madras High Court in 1997, the ambiguity surrounding the phrase ‘offences arising out of violation of human rights’ continues to persist. Consequently, the Act must be amended to explicitly define the phrase and crucially, the legislature must append a comprehensive schedule to the Act detailing the exact nature of the triable offences and corresponding punishments. Such clarity would not only address the prevailing jurisdictional ambiguity but also enable the HR Courts to fulfil their intended purpose. At the same time the potential of the HR Courts must not be overlooked in cases involving grave human rights abuses, such as custodial torture and death, which often do not neatly correspond to any specific penal offence. These courts could thus serve as a crucial forum for redressing such harms. Lastly, the Act must be reformed to extend original jurisdiction directly to the HR Courts, so as to bypass the cumbersome magisterial committal proceedings under the BNSS, 2023.

In conclusion the author opines that without these desperately needed statutory overhauls, the institution of HR courts will remain an empty promise, and India’s framework for prosecuting HR abuses will remain fundamentally crippled.

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This article has been authored by Dr Ruchita Kaundal, Assistant Professor of Law at Gujarat National Law University, Gandhinagar. It is part of RSRR's Excerpts from Experts Series and offers a condensed version of the arguments set out by the author in the paper published in the Indian Journal of Law and Justice, University of North Bengal (2023). She was assisted by Mannat Arya, Associate Editor at RSRR.