The Delhi Department of Law, Justice and Legislative Affairs issued a notification on November 24 stating that in pursuance of section 30 of Protection of Human Rights Act (PHRA), it has designated the court of Additional Sessions Judge-02 in each District as Human Rights Court.
Section 30 of PHRA states as follows:
30. Human Rights Courts —For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences: Provided that nothing in this section shall apply if—
(a) a Court of Session is already specified as a special court; or
(b) a special court is already constituted, for such offences under any other law for the time being in force.
Setting up of human rights courts in all districts was considered in the closing landmark judgment of DK Basu vs. State of West Bengal in 2015. The Supreme Court had stated, “There is, in our opinion, no reason why the State Governments should not seriously consider the question of specifying human rights Court to try offences arising out of violation of human rights. There is nothing on record to suggest that the Governments have at all made any attempt in this direction or taken steps to consult the Chief Justices of the respective High Courts. The least which the State Governments can and ought to do is to take up the matter with the Chief Justices of High Courts of their respective States and examine the feasibility of specifying Human Rights Court in each district within the contemplation of Section 30 of the Act. Beyond that we do not propose to say anything at this stage.”
Clearly, 5 years ago, the apex court did not pass any stringent orders towards implementation of this important provision of the PHRA, one that could change the face of human rights jurisprudence in India. There are however certain loopholes that the law has failed to address thus causing confusion over the jurisdiction and scope of human rights courts. This has been discussed in a few judgments of high courts.
In Rasiklal M. Gangani vs Government Of Goa (2004) 106 BOMLR 626 the Bombay High Court considered the question whether a human rights court which is essentially a Sessions Court designated as such a court, has original jurisdiction since the law is silent on this part. Having original jurisdiction includes taking suo moto cognizance of cases, in this case, of human rights violations. The court held that provisions of the Code of Criminal Procedure would apply in this case and Human Rights Court can only take cognizance of the complaints which are committed to it for trial by the Magistrate as per Section 209 of the Code of Criminal Procedure.
There was also an inference by the trial court that human rights courts cannot be approached directly by the affected party, who have to first approach the Human Rights Commission. The court in this case held that the Commission and the Court are two different fora created by the law.
“The role of the Human Rights Commission is more recommendatory in nature while the role of the Court under the Human Rights Act is to try the offenders and punish them according to law. The jurisdiction and function of the Human Rights Court and the Human Rights Commission being entirely different, there was no basis for the Special Judge to arrive at the conclusion that unless and until a complaint has been inquired into by the Commission, the prosecution cannot be launched.”
However, a completely contrasting view was taken by Gujarat High Court in Registrar of Junagadh Agricultural University vs. State of Gujarat (CR.MA/7874/2012; decided on July 6, 2017).
9…. Thus, upon conjoint reading of this provision, it is evidently clear that Human Rights Commission has got jurisdiction to entertain and investigate the complaints made to it in respect of violation of Human Rights and after making such inquiry, as contemplated under Sections 13 and 14 of the Act, the Commission has authority of law to initiate proceedings for prosecution, or such other stable action as it deems fit and proper. Thus, under Section 30 of the Act, the State Government has been empowered to constitute the Human Rights Court to try offences in respect of violation of Human Rights. No such direct complaint is maintainable before the Court, and therefore, the present complaint for regularization in service made by the respondent no.2 herein on the ground that there is a violation of her right to equality is not maintainable, and therefore, the learned Sessions Court / Human Rights Court so also the Court of learned Chief Judicial Magistrate has no jurisdiction to entertain and try the complaint”
An article in the Law Times Journal states that human rights courts have been established by Andhra Pradesh, Tamil Nadu, Sikkim, Uttar Pradesh and Assam. Madras and Guwahati; and now Delhi may as well be added to this short list.
The few human rights courts that are functioning are unclear about their jurisdiction and scope making matters worse for human rights jurisprudence in India. What is needed is for the legislature to amend the law to define clearly the scope of the human rights courts and for high courts to strictly ensure the implementation of the same so that human rights violations can be tried at these special courts for faster consideration and disposal thus reducing the burden of a clogged criminal justice system.
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