Human Rihgts and judiciary

Introduction

 Human rights are "basic rights and freedoms that all people are entitled to regardless of nationality, sex, age, national or ethnic origin, race, religion, language, or other status. “Human rights are conceived as universal and egalitarian, with all people having equal rights by virtue of being human. These rights may exist as natural rights or as legal rights, in both national and international law. The doctrine of human rights in international practice, within international law, global and regional institutions, in the policies of states and the activities of non-governmental organisations has been a cornerstone of public policy around the world. It has been said that: "if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights." Despite this, the strong claims made by the doctrine of human rights continue to provoke considerable scepticism, debates about the content, nature and justifications of human rights continue to this day.

                                          Human rights and judiciary share a strong relationship, as both are interdependent and one’s existence is not possible without support and cooperation of the other. There were various challenges which judiciary had faced in recent times. Terrorism, fundamentalism, fascism and growth of capitalism are some imminent threats the judiciary have been facing recently. Relationship between human rights and development needs careful consideration. Countries which are more developed accord more importance to protecting human rights.

The Role of Judiciary in Protection of Human Rights:

           The little drops of humanism which jointly makes humanity a cherished desire of mankind has seemingly dried up when the perpetrators of the crime had burnt alive helpless woman and innocent children. Was their fault that they were born in the houses of persons belonging to a particular community? If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of people' rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviours of citizens' rights". The court laid down the following guidelines till legislative measures are taken: the Police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations.

           The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. The arrestee should, if he so requests, if any present on his/her body must be recorded at that time. The "inspection memo" must be signed by both the arrestee and the police officer affecting the arrest and its copy provided to the arrestee. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by doctor on the panel of approved doctors appointed by the director, health services of the concerned state/UT.

Judicial review

Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority (such as the terms of a written constitution). Judicial review is an example of the separation of powers in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state. Judicial review is adopted in the Constitution of India from the Constitution of the United States of America. In the Indian constitution, Judicial Review is dealt with under Article 13. Judicial Review refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 states that

1. All pre-constitutional laws, after the coming into force of constitution, if in conflict with it in all or some of its provisions then the provisions of constitution will prevail and the provisions of that pre-constitutional law which conflicts the provisions of the constitution will not be in force until an amendment of the constitution relating to the same matter. In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Doctrine of Eclipse.

2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void-ab-initio.

In such situations, the Supreme Court or High Court interprets the laws as if they are in conformity with the Constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 124, 131, 219, 228 and 246 provide a constitutional basis to the Judicial review in India.

Human Rights and Judicial Review

The purpose of the Human Rights Act 1998 ("the Act") is to improve public access to the rights and freedoms guaranteed under the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms.

Any person who believes that any right he has under the Convention has been contravened will be able to bring a case before a court in the United Kingdom, instead of before the European Court of Human Rights (based in Strasbourg).

In addition, the Human Rights Act 1998 imposes a duty on the Government to ensure that both primary and subordinate legislation (i.e., Acts of Parliament and statutory instruments made under such Acts) is compatible with the Convention and requires public authorities to act in a manner which is compatible with the Convention.

S.6 of the Act makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.

The term "act" includes a failure to act, but does not include a failure to introduce a proposal for legislation or to make any primary legislation or remedial order. In addition, s.6 does not apply to an act if, as a result of a provision of any Act of Parliament, the authority could not have acted differently or if the authority was simply giving effect to provisions of a statutory instrument which could not have been interpreted or given effect to in any other way.

Home Office guidance defines the term "public authority" to include:-

(a) Government departments and local authorities, health authorities and trusts;

(b) The armed forces and the police;

(c) Courts and tribunals;

(d)any person or organisation which carries out some function of a public nature, but only in relation to those public functions.

In other words, all of the above, as well as prisons and prison staff must comply with the Act and failure to do so is unlawful.

A person who claims that a public authority has contravened s.6 and who is a victim of that contravention may bring proceedings against that authority in an appropriate court or tribunal, or may rely on the Convention right concerned in any legal proceedings (including an appeal against the decision of a court or tribunal)

Any such proceedings must be brought within one year of the date on which the act complained of took place, or within such longer period as the court or tribunal considers fair having regard to all the circumstances.

Where a court finds that any act of a public authority is, or would be, a contravention of s.6, it may grant such relief or remedy, or make such order, as it considers just and appropriate.

Damages may be awarded by a court which has power to award damages (or to order the payment of compensation) in civil proceedings, but no award of damages is to be made unless, taking account of all the circumstances of the case, the court is satisfied that an award is necessary to give just satisfaction to the person in whose favour it is made (s.8).

Proceedings under s.7 in respect of a judicial act may only be brought (s.9)-
(a)by exercising a right of appeal

(b)on an application for judicial review;

(c)in such other form as may be prescribed.

In Scotland, where proceedings cannot be brought under (a) or (b) then, for the purposes of (c), the Court of Session is prescribed as the appropriate forum for proceedings (Human Rights Act 1998 (Jurisdiction) (Scotland) Rules 2000, r.4).

The Home Office Guidance: A New Era of Rights and Responsibilities-Core Guidance for Public Authorities explains the 1998 Act and gives examples of its effect on public authorities

Limitation on the power of review:

                      The expansion of the horizon of judicial review is seen both with reverence and suspicion; reverence in as much as the judicial review is a creative element of interpretation, which serves as an omnipresent and potentially omnipotent check on the legislative and executive branches of government. But at the same time there is a danger that they may trespass into the powers given to the legislature and the executive.

One many say that if there is any limitation on judicial review other than constitutional and procedural that is a product of judicial self-restraint. As justice Dwivedi empathically observed, "Structural socio-political value choices involve a complex and complicated political process. This court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the court’s structural value choices will be largely subjective. Our personal predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of rule of law."

The above observations also reveal another assumption to support an attitude of self-restraint, viz., the element subjectiveness in judicial decision on issues having socio-political significance. When one looks at the decisions of the Supreme Court on certain questions of fundamental issues of constitutional law one can see that there is a sharp division among the judges of the apex court on such basic questions of power of the Parliament to amend the Constitution, federal relations, powers of the President etc. This aptly demonstrates the observation of the judge. This would mean that though there has been expansion of powers of judicial review one cannot also say that this cannot be overturned.

Judicial self-restrain in relation to legislative power manifests itself in the form the there is a presumption of constitutionality when the validity of the statute is challenged. In the words of Fazl Ali, "…the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles"

In applying the presumption of constitutionality the Courts sometimes apply an interpretational device called ‘reading down’. The essence of the device is that "if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction. “But all this depends on the outlook and values of the judge.

When it come judicial review of administrative action though the presumption of validity is not so strong in the case of administrative action as in the case of statutes. Still, when the legislature expressly leaves a matter to the discretion of an administrative authority the courts have adopted an attitude of restraint. They have said we cannot the question the legality of the exercise of discretionary power unless and until it is an abuse of discretionary power (which includes mala fide exercise of power, exercising the power for an improper motive, decision based on irrelevant considerations or in disregard of relevant consideration, and in some cases unreasonable exercise of power) and non-exercise of discretion ( which come when power is exercised without proper delegation and when it is acted under dictation).

The relevant considerations which should make the judicial choice in favour of activism or restraint are the policy and scheme of the statute, the object of conferring discretionary powers, the nature and scope of the discretion, and finally, the nature of the right and interests affected by the decision. Any impulsive move to activism without a serious consideration of these factors may only be viewed as undesirable. Judicial activism, being an exception, not the general rule, in relation to the control of discretionary power, needs strong reasons to justify it. In the absence of such strong support of reasons the interventionist strategy may provoke the other branches of Government may retaliate and impose further limitations on the scope of judicial review

HUMAN RIGHTS AND CRIMINAL JUSTICE SYSTEM

                                        This is an arena where perhaps the violation of Human Rights takes place the most. Non-registration of cases, illegal arrest and detention, custodial cruelty, abusive treatment in jail and stagnant nature of trial are the highlights of violation of Human Rights in the Criminal Justice System. The Indian Judiciary has been engaged in a never-ending struggle so as to uphold these rights. The judiciary’s efforts can be viewed through its decisions.

Judicial Activism

   Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers. Of all the institutions established by the Constitution the higher judiciary seems to have acquitted itself in the last 60 years as the best in a relative sense. The most respected public institution in India is the Supreme Court, respected by the elite and the illiterate alike. If the Court has come increasingly effective in its role as the final arbiter of justice, it is because of the confidence the common man has placed in it. The Court has no army at its command. It does not hold any purse strings. Its strength lies largely in the command it has over the hearts and minds of the public and the manner in which it can influence and mould public opinion. As the distinguished French author Alexis de Toquevulle describes the power wielded by judges is the power of public opinion. Like many catchwords, judicial activism has acquired so many different meanings as to obscure more than it reveals. But at the same time it can not be discarded as an intellectual void for the vagueness of the definition of the word for at the heart it speaks about the survival of law. Abandonment of this word not being a viable option, clarification needed as to what judicial activism is. Judicial activism is different from the judicial review or other process of jurisdiction in the sense that under the gamut of judicial review the judiciary can extend its influence to the spheres of executive and the legislative. Judicial activism simply means a pro-active judiciary which does no limit itself to the interpretation of law only but also sees if the law affects people adversely.

Human rights and judicial activism

One of the most remarkable achievements in the twentieth-centuries constitutional development is the assertion of human rights. On one hand, we have seen the codification and constitutionalization of human rights. On the other, constitutional or high courts of many countries have begun to implement human rights by way of judicial review. Consequently, an intertwined relationship between courts and human rights is established. It remains to be examined, however, for what reasons courts, instead of other political institutions, are linked to the assertion of human rights and what are the institutional backgrounds and normative foundations for such a relationship.

                           More importantly, the intertwined relationship between courts and human rights has been even more expressed in the context of third-wave transitional democracies. Similarly organized and situated, the Constitutional Courts of Taiwan and Hungary have shown strong tendencies in judicial activism and human rights protections. Both courts have been taken roles in highly contested transitional politics. Which court, however, is more likely to be progressive or constrained? Are human rights decisions rendered both courts involved with similar or different natures? Perhaps even more importantly, after more than a decade of democratic transition, has human rights decisions of these progressive courts rendered justice or instead, has injustice been entrenched by way of these court decisions? To properly address these issues, this paper will undertake a comparative analysis of judicial performances with regard to human rights decisions rendered by both the Taiwanese and Hungarian Constitutional Courts.

Conclusion and Suggestions:

         The Indian Judiciary has acted in the protection and promotion of Human Rights contained in the Constitution and the Civil and Political Rights Covenants and Economic, Social and Cultural Rights Covenants and Universal Declaration of Human Rights of the United Nations. The punch of law requires more propensity and effect. The working of judicial system particularly, the criminal justice system has collapsed. It is marred by delays and dying under its own weight due to mounting pendency of cases. The whole judicial system requires to be reformed. The successive cries of the persons who matter in the affairs of judiciary for remedial measurers have fallen on deaf ears.