Human Rights vis-à-vis the Criminal Justice System
Justice S. B. Sinha, Judge, Supreme Court of India
The protection of human rights through the criminal justice delivery system is an indispensable feature of any system governed by the rule of law. the protection of human rights have been acknowledged to varying extents across time, but since the Second World War, the universality of human rights has been recognised by the United Nations as inherent in the very nature of human beings – a reflection of their common humanity.
Criminal law has always been a great source for the enlargement of human rights. In other words, many of our existing fundamental and inalienable rights, if studied carefully, would have their origins in situations and cases relating to criminal jurisprudence. Basic human rights, such as the presumption of innocence, the right to silence of the accused and the burden of proof of the prosecution are also the pillars on which a just criminal justice system stands. To this end, Lord Steyn states that,
“[t]he basic premise is that in a democratic society government exists in order to protect and promote the interests of the people. To achieve this goal, the actions of government and its agencies must be constrained by law and citizens must be given enforceable and effective legal rights against the state. In the context of human rights this is the core meaning of the rule of law. In countries where this premise is accepted, human rights law has scope for developing. In countries where this premise is not accepted, human rights law must struggle on infertile ground.”
Although the importance of these human rights is universally accepted, implementation levels vary from jurisdiction to jurisdiction. In India, in spite of vast expansions across the spectrum of human rights, implementation has not been that satisfactory. Recently, the International Commission of Jurists, Geneva had warned that in India these very human rights stand threatened. In addition, global human rights abuse watchers argue that if such fundamental principles of fair trial are disregarded by the various agencies of the state, India clearly would be guilty of clearly violating it’s international human rights obligations to which it is bound by international treaty and customary law.
It must, however, be borne in mind that ensuring human rights within the framework of the criminal justice delivery system cannot be narrowly construed to mean merely the protection of the rights of the under-trials, or detainees, or convicts. In fact it can very rightly be contended that the most essential of all human rights in a criminal justice delivery system, is the right of access to courts of law. Emphasizing this crucial importance, Article 10 of the Universal Declaration of Human Rights (UDHR) provides that:
“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, n the determination of his rights and obligations and of any criminal charge against him.”
In the portions that follow, these human rights and there place in the criminal justice system and constitutional jurisprudence are explored alongside the judicial craft that led to their expansion. Concepts that have emerged and their proposed solutions are also delved into.
VIABLE ACCESS TO JUSTICE:
The importance of the right of access to justice for those interacting with the criminal justice system as complainants, suspects, status offenders or prisoners cannot be over-emphasised. As already stated, it is perhaps the most essential of all human rights in the criminal justice system.
Access to justice also implicitly indicates an effective access. It is not sufficient to physically have courts in all remote corners of the country. The special situation of the vast majority of Indians also has to be borne in mind. It is no secret that this vast majority are illiterate and uneducated and even the elite are rarely well versed with even their basic rights. Therefore, the law, processes, procedures and practices that govern the functioning of the system are largely incomprehensible to the layperson and, thus, legal assistance becomes imperative at each stage. Further, the imperativeness of “access” is compounded by recent studies that show that for the economically and socially disadvantaged person, the denial of access to justice, which is a non-derogable right, could result in multiple violations of human rights including the deprivation of the means of survival and have the effect of delegitimising the legal system in relation to such person.
A second facet of the right of access is that such access must be to an “independent and impartial court of law.” Our country has strived greatly in this direction and thereby, courts such as that of Nazi Germany, communist countries of East Europe, or of Stalin’s Russia and apartheid-era South Africa are the very antithesis of the court system we have sought to build in our Nation. Even in the future, it will be vital to bear in mind the Basic Principles on the Independence of the Judiciary endorsed by the United Nations General Assembly on 29 November 1985, and, what Lord Steyn terms the principle of “equality of arms of the parties”. The latter principle requires that the courts of law in a fair and just legal system provide the prosecution and defence equal rights before the court, and in such manner as which provide the accused reasonable opportunity to place his or her case before the court of law.
JUDICIAL CREATIVITY IN PROMOTING A RIGHTS BASED APPROACH:
The Supreme Court of India displayed remarkable craftsmanship to promote and protect human rights. Through, what Justice Krishna Iyer termed “judiatrics”, theApex Court has succeeded in incorporating some of the Directive Principles of State Policy into Part III of the Constitution – a judicial creativity commended even by the highest courts of other jurisdictions. For instance, Justice Albert Sachs of the South African Constitutional Court once had occasion to comment that, “the Supreme Court of India smuggled the rights from Part IV to Part III of the Constitution.”
Legal justice requires that offenders of law should be brought to book and punished. Within this constitutionally accepted practice of protecting the society from misguided human beings, at the stage of investigation as suspects; at the stage of trial as under-trials; and at the stage of punishment through incarceration, certain rights such as the right to liberty are confiscated from prisoners. This does not mean, however, that all rights can be just confiscated from prisoners. They still have certain basic inherent rights as human beings, which cannot be confiscated by jail officials. The Supreme Court, in a wave of PILs in the late 1970’s and early 1980’s were emphatic that the basic rights of human beings should be protected even when they are behind bars. Even the perpetrator of the most grievous crime against society does not deserve to be shackled, beaten and tortured. That is not the aim of the justice delivery system. We do not have a system of retributive justice, where one can extract a tooth to pay for an eye. We have instead a system of reformative justice and this requires the holistic reformation of the mind of the criminal to steer him away from committing further crimes.
They were shocked by the prevalent conditions in jails across the country wherein even in model jails like the Tihar Jail there were such flagrant violations of Human Rights and gross subjections to indignity. Apart from being given property food and clothing, they were tortured and beaten and kept chained up. The Supreme Court sought to bring an end to these systems which were a dark blot on the Indian justice delivery endeavour. In fact, on a visit to a jail these days, the differences are noticeable and prisoners indeed owe the protection of their rights in detention to the strong line taken by the Supreme Court in this regard.
The judiciary has also worked extremely hard in order to prevent the denial of the right of speedy trial to under-trial prisoners. The Supreme Court of India in a catena of decisions has recognized this. The Andhra Pradesh High Court has noticed all these judgments and in Mir Mohammed Ali v. Government of Andhra Pradesh has given number of directions for release of under-trial prisoners who have been languishing in prison without proper trial for a long time.
In all societies there is a need to sensitise civilised world to the reality that the accused and prisoners have rights, which are almost equal to the rights of those people in the society and in our country, it has been the judiciary who has truly been the torch bearer in this regard.
As a result, today, not only do those enveloped by the criminal justice system have the right to interview for prisoners (recognised in Prabha Dutt v Union of India), the right to a fair trial (recognised in Police Commissioner, Delhi vRegistrar, Delhi High Court), the right against handcuffing (recognised in Prem Shankar Shukla v Delhi Administration), and the right against torture and custodial violence as a human right (recognised in D.K. Basu v State of West Bengal); they also have the human right of being presumed innocent (recognised in Narendra Singh v State of M.P), the right against being compelled to be a witness against oneself (in D.K. Basu quoting Miranda v Arizona, and have the right of access in the broadest possible terms, including access with free legal aid (recognised in State of Maharashtra v M.P.Vashi) and in the most expedited manner possible (see, Abdul Rehman Antulay v R.S. Nayak and Ors.).
Much ink has been spilled in expounding on the contours of the rights mentioned above. As regards implementation, many, both nationally and internationally, have opined the need for such a “rights-based approach”. For instance, the International Commission of Jurists remarked that, "[c]onsidering the widely documented human rights abuses committed every day in India, a reform of the criminal justice system must follow a rights-based approach and be built on an independent and incorrupt judiciary, with authority to review all actions of law enforcement officials and the prosecution.” [emphasis supplied]
In addition to a rights based approach, it is also necessary that judges mould decisions to the specific facts and circumstances of case. for instance, recently, in Phillipines, a young boy who was paralytic has been charged with rape of a girl. His lawyer even failed to obtain an order of bail although it was contended that the boy is required to take help from others for going to toilet and even cannot lift a spoon. It had strongly been contended that such a case should not go for trial at all. Similarly, an appellate court of France acquitted several persons including some foreigners who were charged with commission of pedophilia. They were convicted by a magisterial court only on the basis of evidence of a child witness, but before the appellate court, the prosecution case failed like a pack of cards. The acquitted accused persons including two couples had to remain behind bar for three years. The case gave rise to troubling questions about the willingness of social services and psychiatric experts to accept uncorroborated allegations made by young children, and about the power given to lone examining magistrates under the French judicial system. The Judicial Minister had to apologize to the accused and their families on television. Keeping in view the human right perspective, it should be the duty of the judicial officers to scrutinize such cases more strictly so that innocent persons are not met to suffer.
Efforts of the superior courts of the country to provide new contents to criminal justice have also resulted in paradigm shifts in prison reforms, treatment of undertrials, and rehabilitation of victims. As a measure of the advances achieved in the protection of human rights, one may also turn the pages of the landmark judgment in Rudul Sah v State of Bihar, where the Supreme Court ruled that the victims of unlawful or illegal arrest were entitled to compensation for violation of their fundamental rights under Part III of the Constitution. The judgment is similar in many respects to that delivered in R (Mullen) v Secretary of State for the Home Department, where a convict who was deported from Zimbabwe to the United Kingdom was granted compensation for illegal incarceration since it was found that his deportation was an abuse of process, and that the resulting conviction was a “miscarriage of justice”, violating Section 133 of the English Criminal Justice Actthat implemented Article 14(6) of the International Covenant on Civil and Political Rights (ICCPR).
It may therefore be safely said that great strides have been made on both sides of the prison walls – that is, in open society, as well as in prisons where the fear of torture lets the ‘principle of silence’ be the rule. Far-reaching rulings handed down by the superior courts of the country have ensured that no one’s human rights are taken away by way of incarceration, or that a prisoner becomes a non-entity in captivity. This has been possible because our national courts have commendably discharged their responsibilities in accordance with the famous Bangalore Principles (1988) which invite national constitutional courts to interpret their constitutional texts in a way that is generally harmonious with the basic principles of international law, including as that law states human rights and fundamental freedoms. Justice Kirby of the Australian High Court, drawing from the opinion of Justice Kennedy of the United States Supreme Court in Lawrence, termed it as the acceptance of jurisprudence from a “wider civilization”.
SUGGESTED INNOVATIONS FOR BETTER IMPLEMENTATION:
In order that implementation might be improved the adoption of several innovations has been suggested from time to time. For instance, the Justice Malimath Committee on Criminal Justice Reforms, a component of any discourse on human rights vis-à-vis the criminal justice system, had suggested certain radical, yet progressive, reforms in the system, including the need for a Victim Support Service Coordinator to work closely with the police and courts to ensure delivery of justice during the pendency of the case. It also spoke of economic crimes and organised crimes. The presumption of the Committee’s suggested reforms was that aninquisitorial system was more conducive to delivering justice in criminal cases than the present adversarial system. Critiques however argue that the suggested reforms of the Committee concentrate more on strengthening the hands of the administrative machinery than on the “rights-based approach” mentioned earlier.
The time is ripe to develop a sentencing policy in recognition of the fact that sentencing is an important and universally recognized aspect of human rights. After all, the question that must inevitably be answered is: why should a person, even if he is lawfully convicted, spend more time in prison than is absolutely necessary? In this respect, the case of DPP v Mollison, from Jamaica immediately leaps to mind. In that decision, the Privy Council ruled that a convict who had been detained, and was liable to be so incarcerated ‘during Her Majesty pleasure or that of the Governor General of Jamaica exercising her authority’, was entitled to relief as such incarceration would tantamount to a violation of the principle of separation of powers. It was held that only a court, and not the executive, was authorized to determine how long the period of detention should be. Some other watershed decisions are those of Reyes v R, R v Hughes, and Fox v R, in which it has been held that a mandatory death penalty for murder would be unconstitutional as violative of the right to protection against inhuman and degrading treatment, if the court did not have the opportunity to exercise its discretion as to whether the extreme penalty was required to be awarded.
I would now turn to certain emerging concepts in the field of human rights vis-à-vis the criminal justice system. This would help provide an insight into the broad spectrum of contemporary issues concerning human rights in the criminal justice system that are often ignored in conventional discourses on the subject.
(i) Measures for the Prevention of Terrorism:
Perhaps the most heated debates concerning the protection of human rights in the criminal justice delivery system have occurred with respect to terrorism that poses a clear and present danger to the sovereignty and integrity of our Nation. The now-repealed Prevention of Terrorism Act 2002 had created much controversy when it sought to incorporate “special measures” into the ordinary criminal justice system. For instance, POTA allowed for extended police custody, intrusive police investigation, admission of police confessions in trial, and summary procedures in special courts. Such deliberations on the balance required between the protection of human rights on the one hand, and the interests of national security on the other, are however, not specific to India alone. The rise of fundamentalism and international terrorist organizations has made countries around the world gravitate in favour of more stringent measures for the safety of their people. Needless to say, in many a case – and Guantanamo Bay is only one example – the necessities of national security have resulted in large-scale violations of human rights.
In very recent judgments of the House of Lords and the United States Supreme Court one can quite easily discern the role that courts and the administration must play in efforts to curb international terrorist activities. A and Ors. v Secretary of State for the Home Department, was a case in which certain foreign (non-UK) nationals had been detained for an indefinite period under the English Anti-terrorism, Crime and Security Act 2001 following the September 11 attacks on theUnited States. While acknowledging that the legislature and the executive reserved the right as per the principle of proportionality to determine what measures would secure the safety of the citizens, the House also indicated that the measures adopted for protecting the security and sovereignty of a country must not be permitted to transgress the human rights of detainees. Thus, in the opinion of the House, while suspected terrorists could be detained indefinitely proportionate to the need for such detention in the interests of national security, the human rights of such detainees could not be violated in as much as they could not be discriminated against for detention merely on the basis of their nationality or race or colour of skin. In Abbasi and Anr. v Secretary of State for Foreign and Commenwealth Affairs, the Court of Appeal (Queen’s Bench) the Court expressed its anxiety at the state of the British detainees held at Guantanamo Bay by the United States on charges of waging war against that country and its allies.
In the American cases of Rasul et al. v Bush, President of the United States, et. al., Hamdi et al. v Rumsfeld, Secretary of Defense et. al., and Rumsfeld v Padilla as well the Court has stressed on the absolute need for protecting the human rights of the suspected terrorists and other such “enemy combatants”, including by providing them a right to counsel.
This “balancing of interests” between the rights of the detainees and the interests of national security is an essential characteristic of a fair trial. In our criminal justice system, it would not be wholly untrue to opine that the interests of victims are in many instances marginalized for want of rules that require the court to give equal merit to them. For instance, the rule that the guilt of the accused must be proved beyond all reasonable doubt does render it improbable in many cases of terrorist activities to give corresponding weight to the interests of the victims, and the society at large. In fact, in State of M.P. v Shyamsunder Trivedi, the Supreme Court while referring to the recommendation of the 113th Report of the Law Commission to insert Section 114-B in the Indian Evidence Act observed (albeit, in the context of the burden of proof on the police officer in cases of custodial violence, but still a relevant observation):
“The exaggerated adherence to and insistence upon the establishment of proof beyond reasonable doubt, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case … often results in miscarriage of justice and makes the justice delivery system a suspect.”
Then, in Shivaji v State of Maharashtra, the Apex Court opined,
“…our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish the marginal innocents. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community demand a special emphasis in the contemporary context of escalating crime and escape.”
In a recent article in the Journal of the National Human Rights Commission of India, Fali Nariman writes of the practice under Scottish criminal law where the concept of a fair trial is not solely a question for the accused – “fairness to the public is also a legitimate consideration” (Lord Wheatley in Miln v Cullen). Similarly, the right of the accused to remain silent – protected by Article 20 (3) of the Constitution – is also considered favourable to the accused terrorist. It is therefore advocated that in cases of terrorist activities, it would not be a violation of the human rights of the accused if he or she were compelled by law to assist the State in investigation of such heinous crimes.
A recently discussed issue is that of protecting the interests of ‘whistleblowers’ through the criminal justice system. The legal protection available under Indian law fails adequately to protect whistleblowers against retaliatory action by employers, and as a result employees who have access to information that would be in public interest to disclose, often remain silent. The case for allowing public sector employees to participate in debate is at its clearest when the issue is seen as an aspect of freedom of expression. The argument is strongest when applied to the speech of those who work in the public sector, whose jobs involve the carrying out of government policy. However, unlike the United Kingdom where the debate as to whistleblowers’ rights is confined to issues relating to the justness of the whistleblowers’ dismissal from service, in India, after the infamous Satyendra Dubey murder case (currently the subject-matter of a PIL: Rakesh Uttamchandra Upadhyay v Union of India and Ors.), the issue has taken a more sinister angle. The situation becomes graver when we consider that despite assurances in the Supreme Court, the Government has done precious little to legislate on the matter. The criminal justice system must, accordingly, be so modified as to guarantee the whistleblowers their freedom of expression along with safety and security of their being.
(iii) Right to Privacy:
In District Registrar and Collector, Hyderabad Vs. Canara Bank and Another[(2005) 1 SCC 496] the draconian power given to the authority by A.P. Amendment of Stamp Act to go on a rampage searching house after house used for custody of document and a possibility of wild exercise of said power; was struck down. The Supreme Court noticed the development of law in India beginning from M.P. Sharma Vs. Satish Chandra[1954 SCR 1077] to Sharda Vs. Dharmpal, (2003) 4 SCC 493. It disapproved the right from person to property – Fine Financial Rights upon considering Miller (425 US 435) stating:
“Once we have accepted in Gobind and in later cases that the right to privacy deals with “persons and not places”, the documents or copies of documents of the customer which are in a bank, must continue to remain confidential vis-à-vis the person, even if they are no longer at the customer’s house and have been voluntarily sent to a bank. If that be the correct view of the law, we cannot accept the line of Miller in which the Court proceeded on the basis that the right to privacy is referable to the right of “property” theory.”
Innumerable cases demonstrate the significance of this right in the criminal justice system, in that this right is the ultimate guarantee of the human dignity of any person subjected to investigation or punishment under the system. In Valasinas v Lithuania, a prisoner was ordered to be strip naked and be subjected to examination by a team of prison officers, which included a woman officer. Such searches were found to be violative of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, by the European Court of Human Rights. In Fliss v R, the Supreme Court of Canada held that secret recordings of confessions made by the accused by undercover police officers was illegal; the court could only admit such evidence as was made by the witness by refreshing his memory of that conversation.
(iv) Cyber Crimes:
Attendant to the issue of privacy is the growing menace of cyber-crimes committed through the medium of computers, or against information on computers. In most countries around the world, however, existing laws are likely to be unenforceable against such crimes. Consequently, undeterred by the prospect of arrest or prosecution, cyber criminals around the world lurk on the Internet as an omnipresent menace to the financial health of businesses, to the trust of their customers, and as an emerging threat to nations’ security. Outdated laws and regulations, and weak enforcement mechanisms for protecting networked information, create an inhospitable environment in which to conduct e-business within a country and across national boundaries. In this context, it is important to consider the perpetration of cyber crimes in four categories: data-related crimes, including interception, modification, and theft; network-related crimes, including interference and sabotage; crimes of access, including hacking and virus distribution; and associated computer-related crimes, including aiding and abetting cyber criminals, computer fraud, and computer forgery. India has sought to infuse confidence in the general public that the existing laws are sufficient to cover “computer-related crimes”, including those of aiding and abetting cyber crimes, and computer-related fraud and forgery. Amendments to the Indian Penal Code and the Information Technology Act have helped extend the rule of law into cyberspace.
The weak penalties in most updated criminal statutes are nonetheless a matter of concern, since they provide limited deterrence for crimes that can have large-scale economic and social effects. Despite the amendments, the issue of human rights protection vis-à-vis cyber crimes has generated little debate. Privacy and freedom of expression – the fundamental human rights recognised in all major international and regional agreements and treaties such as the UDHR (Articles 12 and 19), the ICCPR (Articles 17 and 19), and the European Convention of Human Rights (Articles 8 and 10) – should be taken into account while developing policies against cyber-crimes. Any coordinated policy initiative at international levels for curbing trans-boundary cyber crimes must also consider offering the best protection for individual rights and liberties.
(v) Atrocities against Scheduled Castes and Scheduled Tribes:
Another oft ignored aspect of protecting human rights in the criminal justice system, is the crimes perpetrated against members of the Scheduled Castes, Schedule Tribes, and other oppressed classes by the socially higher strata – though, acceptably, misuse of Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 by the oppressed castes and tribes is also observed. Nonetheless, the criminal justice system must be receptive to the plight of those who may be the subject of indiscriminate use of State authority without regard to the due process of law. Numerous studies indicate that the police, prosecutors and courts principally prosecute lower-class criminality, apart from organized crimes, white-collar crimes, and consumer frauds. To prevent such discriminative targeting, it is necessary that the various organs of the State, like the organs of the human body, coordinate and cooperate in functioning. Regular meetings and continuous education of the police, prosecutors, courts, and other criminal justice agencies, on protection of human rights is therefore a sine qua non. In addition, we must continuously endeavour to incorporate and evolve newer methods of delivering justice as well as protecting human rights in the criminal justice system. Use of electronic video linkages for expedited production of under-trials, holding of regular sittings in jails by the Magistracy for disposal of cases involving petty offences, and concerted efforts for execution of warrants and production of witnesses, some other measures for ensuring that the human right to a fair and speedy trial of those stepping into the criminal justice system are protected.
BUILDING DUTIES TO BOLSTER RIGHTS:
It would also be profitable to realize that without a human rights friendly approach of the police and other prosecuting agencies, the courts cannot protect human rights; conversely, without strict protection of human rights by the courts, the police and the prosecuting agencies would be susceptible – rather encouraged – to violate human rights. The onus is thus ultimately on the courts to be seen in the eyes of the common man as the protector of human rights, for, as Justice Arthur Vanderbilt would say:
“If they [the common citizenry] have respect for the work of the Courts, their respect for law will survive the shortcomings of every other branch of Government; but if they lose their respect for the work of the Courts, their respect for law and order will vanish with it to the great detriment of society.”
The duty is cast on the courts to mould and shape the law to meet the rights and duties of the people. Dr. A. S. Anand, the former Chief Justice of India, had occasion to comment that “[t]he mere existence of a particular piece of beneficial legislation cannot solve the problems of the society at large unless the judges interpret and apply the law to ensure its benefits to the right quarters.” TheProtection of Human Rights Act 1993, the rights guaranteed under the Constitution, and the protections provided under the Criminal Procedure Code, the Indian Evidence Act, and the Indian Penal Code, need therefore be harmoniously construed to enable a just and ordered society, where the criminal justice system adheres to the mandate of the rule of law on which any high-quality democracy rests. To paraphrase Professor Guillermo O’Donnell: “[w]hat is needed … is a trulydemocratic rule of law that ensures political rights, civil liberties, and mechanisms of accountability which in turn … constrain potential abuses of state power … [and protect] the equality and dignity of all citizens…”
Besides, a duty is cast on us all to educate others and ourselves on our human rights. So much so, I should think that perhaps the time has come when the subject of human rights, like that of environmental protection, is included in the curriculum at the school level. Article 26(2) of the Universal Declaration of Human Rights mandates that ‘education shall be directed to the full development of the human personality to strengthen respect for human rights and fundamental freedoms.’ Knowledge of human rights is therefore the preeminent defence against their violation. Realising this, the United Nations General Assembly has enjoined that every individual and organ of society, should ‘strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, secure their universal and effective recognition and observance.’ This was the guiding light behind the United Nations Decade for Human Rights Education (1995-2004) that ended last year. I am therefore glad that institutions such as LASO and Amnesty International, and its programmes such as the present ‘symposium on protection of human rights’, seeks to carry forward the visions of the United Nations by generating awareness on human rights, especially amongst those who must dispense justice – the judicial officers of this State.
In this respect the case of People’s Union for Civil Liberties v Union of Indiaand Anr., is of much significance. In that case, the Court was apprised of a matter concerning the filling up of vacancies in the National Human Rights Commission, wherein a retired Director of the Central Bureau of Investigation was accepted for that post. His appointment was subsequently challenged on the ground that a police officer does not fall in the category of members mentioned in Section 3(2)(d) of the Protection of Human Rights Act 1993 who are to have “knowledge and practical experience in matters relating to human rights,” and since the presence of a police officer as a member of the NHRC would render that forum a violator of the very concept that gave birth to protection of human rights. The Bench was divided on the decision: while Justice Sabharwal was of the opinion that police officers or members of security forces could not become members of the NHRC as that would be a violation of the famous Paris Principles, Justice Dharmadhikari was inclined to hold that Section 3(2)(d) of the Act on its plain meaning did not in any manner disqualify police officers from becoming members of the NHRC. The matter has now been referred to a larger Bench.
 See, Human Rights Law and Practice [Lord Lester and David Pannick eds., Butterworths, 1999], p 1.
 In: “The Centrality of the Right to Fair Trial as a Human Rights Norm”, Developing Human Rights Jurisprudence, Interights (Vol. 8, 2001).
 S. Muralidhar, law, poverty and legal aid – access to criminal justice [Butterworths, 2004].
 2000 (4) ALT 541 (DB)
 AIR 1982 SC 6
 AIR 1997 SC 95
 (1980) 3 SCC 526
 (1997) 1 SCC 416. Also see, N.C. Dhoundial v Union of India, (2004) 2 SCC 579.
 2004 (4) SCALE 543
 384 US 436 : 16 L Ed 2d 694 (1966)
 AIR 1996 SC 1
 (1992) 1 SCC 225
 See “France Child Sex Case Collapses”, 4th December 2005, World News Service
 (1983) 4 SCC 141
 (2003) 1 All ER 613
 (2003) 539 US 558
 Al Kateb Vs. Godwin, 78 ALJR 1056
 (2003) UK PC 6
 12 BHRC 219
 12 BHRC 243
 12 BHRC 261
  UKHL 56
  EWCA Civ.1598
 (2004) 72 USLW 4596
 (2004) 72 USLW 4607
 (2004) 72 USLW 4584
 See, for example, the Australian cases of Al-Kateb v Godwin,  HCA 37 : 78 ALJR 1056, andBehrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs,  HCA 36 : 78 ALJR 1099.
 (1995) 4 SCC 262
 AIR 1973 SC 2622. See also, the recent judgment in Munshi Singh Gautam (D) and Ors. v State of Madhya Pradesh, JT 2004 (10) SC 547, holding that ‘asking for proof beyond reasonable doubt would be ignoring ground realities’; and Inder Singh v State of Punjab and Ors., JT 1995 (9) SC 627.
 Fali S. Nariman, “Terrorism – a threat to Human Rights?”, Journal of The National Human Rights Commission, India, Vol. 3, 2004, p. 1.
 1967 JC 2C
 Lucy Vickers, “Whistleblowing in the public sector and the ECHR”,  Public Law 594.
 WP (C) No. 539 of 2003
 12 BHRC 266
 12 BHRC 366
 See, “Cyber Crime . . . and Punishment? Archaic Laws Threaten Global Information”,McConnell International LLC, December 2000.
 In: The Challenge of Law Reforms [Princeton University Press, 1955], pp. 4-5.
 Guillermo O’Donnell, “Why The Rule Of Law Matters”, 15 (4) Journal of Democracy (October 2004), p 32.
 2005 (1) SCALE 402
 The six criteria of National Human Rights Institutions under Paris Principles are: “(a) independence guaranteed by the statute or Constitution; (b) autonomy from Government; (c) pluralism in membership; (d) broad mandate based on human rights standards; (e) adequate power of State; (f) sufficient resources.”