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One of the objects of the
Protection of Human Rights Act, 1993 as stated in the preamble of
the Act, is the establishment of human rights courts at district
level. The creation of Human Rights Courts at the district level
has a great potential to protect and realize human rights at the
grassroots.
The Protection of Human Rights
Act, 1993 provides for establishment Human Rights Courts for the
purpose of providing speedy trial of offences arising out of
violation of human rights. It provides that the state Government
may, with the concurrence of the Chief Justice of the High Court,
by notification, specify for each district a Court of Sessions to
be a Human Rights Court to try the said offences. The object of
establishment of such Courts at district level is to ensure speedy
disposal of cases relating to offences arising out of violation of
human rights.
The Act refers to the offences
arising out of violations of human rights. But it does not define
or explain the meaning of "offences arising out of violations of
human rights". It is vague. The Act dose not give any clear
indication or clarification as to what type of offences actually
are to be tried by the Human Rights Courts. No efforts are made by
the Central Government in this direction. Unless the offence is
not defined the courts cannot take cognizance of the offences and
try them. Till then the Human Rights Courts will remain only for
namesake.
Even if "offences arising out
of violations of human rights" are defined and clarified or
classified, another problem arises in the working of the Human
Rights courts in India. The problem is who can take cognizance of
the offences. What the Act says is in each district, one Sessions
Court has to be specified for trying "offences arising out of
human rights violation". It is silent about taking of cognizance
of the offence. The Prevention of Corruption Act, 1988 is another
law, which provides for appointment of a Sessions Judge in each
district as Special Judge to try the offence under the said Act.
Provision has been made in section 5 of the Prevention of
Corruption Act, 1988 empowering the Special Judge to take
cognizance of the offences under the said Act. In the Protection
of Human Rights Act, 1993 it is not so.
Sessions Court of the district
concerned is considered as the Human Rights Court. Under the
Criminal Procedure Code, 1973 a Sessions Judge cannot take
cognizance of the offence. He can only try the cases committed to
him by the magistrate under Section 193 of the Cr.P.C.
Similar problem had arisen in
working of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 in the beginning. The Special Judges used
to take cognizance of the offences. In Potluri Purna Chandra
Prabhakara Rao V. State of A.P., 2002(1) Criminal Court cases 150,
Ujjagar singh & others V. State of Haryana & another, 2003(1)
Criminal Court Cases 406 and some other cases it was held that the
Special Court (Court of Session) does not get jurisdiction to try
the offence under the Act without committal by the Magistrate. The
Supreme Court also held same view in Moly & another V. State of
Kerala, 2004(2) Criminal Court Cases 514. Consequently the trial
of all the cases under the Prevention of Atrocities Act were
stopped and all the cases were sent to the Courts of
jurisdictional Magistrates. Thereafter the respective Magistrates
took cognizance of the cases and committed them to the Special
Courts. The Special Courts started trying the cases after they
were committed to them. The Act was later amended giving the
Special Courts the power to take cognizance of the offences under
Act.
The situation in respect of the Human Rights courts under the
Protection of Human Rights Act, 1993 is not different.
Apart from the above, the Special Courts will face yet another
question whether provisions of Section 197 of Cr.P.C. are
applicable for taking cognizance of the offences under the
Protection of Human Rights Act, 1993. In most of the cases of
violation of human rights it is the police and other public
officers who will be accused. The offence relate to commission or
omission of the public servants in discharge of their duties.
Definitely the accused facing the trial under the Act raise the
objection. There are plethora of precedents in favour of
dispensing with the applicability of Section 197 of Cr.P.C. on the
ground that such acts (like the ones which result in violation of
human rights) do not come within the purview of the duties of
public servants. But there is scope for speculation as long as
there is no specific provision in the Act dispensing with the
applicability of Section 197 of Cr.P.C.
The object of establishment of such Courts at district level is to
ensure speedy disposal of cases relating to offences arising out
of violation of human rights. Unless the lawmakers take note of
the above anomalies and remove them by proper amendments the aim
for which provisions are made for establishment of special courts
will not be achieved.
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Human
Rights Courts in India
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The
author can be reached at:
n-chandrashekharayya@legalserviceindia.com /
