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Since 1st March, 1999
 
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COURTING CONFUSION

Last year, the West Bengal government set up human rights courts in all 19 districts in the state to ensure speedy disposal of cases of human rights violation. However, now that the courts have been functioning for more than nine months, criticism is rife that they have not only failed to expedite human rights cases but have also been hamstrung by a range of problems.

The courts were set up in accordance with Section 30 of the Protection of Human Rights Act, 1993. And human rights activists and legal experts concede that this is a step in the right direction since the existing Human Rights Commission, which is mandated with the task of tackling human rights violations in the state, can only make recommendations to the government and has no power to pass a sentence and punish offenders.

As senior advocate and former mayor Bikash Ranjan Bhattacharya explains, “Whether to accept the commission’s recommendation or not is at the discretion of the government. But when courts are involved, the matter has to be addressed and a verdict given.”

Even so, there are worries that the setting up of human rights courts may have been an exercise in futility. First and foremost, no exclusive human rights courts have been set up. The same old district courts presided over by the same district judges are looking into cases of human rights violations. “Existing district judges have been vested with the power to try human rights violation cases,” says Justice Narayan Chandra Sil, former Calcutta High Court judge and member, West Bengal Human Rights Commission.

This defeats the purpose, insist experts. “District judges are already overburdened with administrative as well as judicial responsibilities. How can they do justice to the added responsibility,” asks human rights activist Sujato Bhadra.

Though specific figures are not available, sources at the West Bengal Registrar General’s office say that so far only a minuscule number of human rights cases have been registered at these courts. Naturally, the number of cases that have been disposed of is even less.

Activists like Bhadra want the government to walk the talk and set up separate human rights courts. “We have been demanding that separate courts should be set up to avoid delay in cases related to human rights violations. If existing district judges are to handle them, it will not be possible to expedite their disposal and the purpose of human rights courts will be lost,” says Bhadra.

The other problem with the so-called human rights courts is that there is no clarity on whether they are to give precedence to cases related to human rights violations. If so, the other cases pending before them are bound to get delayed. And that is not desirable either, point out members of the legal fraternity.

Others feel that the human rights courts are seriously hampered by the fact that unlike the Human Rights Commission, they do not have the power to take up matters suo moto, that is, on their own. So while the commission can decide to act on even an anonymous phone call or a postcard, a court can only take up an incident of human rights violation when due process has been followed and a case to the effect has been filed before it. In other words, many victims, who do not have the courage to seek legal help, will remain outside the ambit of these human rights courts.

Interestingly, in cases where the finding and judgment of a human rights court are in conflict with the finding of the Human Rights Commission, the court’s view will prevail since the commission only has the power to make recommendations.

Many believe that this is unfair, as the commission has been doing good work to stem the tide of human rights violations in the state. “Even though the commission’s orders are recommendary and not mandatory, almost all its recommendations are accepted and implemented by the government, thanks to pressure from the media and heightened public awareness,” says Justice Sil.

Adds S.N. Roy, member, West Bengal Human Rights Commission. “The Commission’s Action Taken Report is tabled in the Assembly, so the government is under some compulsion to act upon its recommendations. The commission even awards compensation — sometimes up to Rs 1 lakh.”

Moreover, many activists are of the view that the setting up of human rights courts serves little purpose until and unless the Protection of Human Rights Act is amended to include instances of violations not just by state agents but also by individuals. The act clearly states that the law relates to “(i)violation of human rights or abetment thereof or (ii) negligence in the prevention of such violation, by a public servant”.

Of course, the official view on human rights courts remains firmly positive. “The government has opened the window for speedy disposal of cases related to human rights violations in the state,” says Binod Kumar Srivastava, principal secretary, judicial department, government of West Bengal.

Yet no matter what the government says, the general consensus seems to be that human rights courts will achieve their objective only if they are tasked to deal with just human rights cases. As Bhadra asserts, “If the courts are not meant exclusively to tackle human rights violations, the purpose of setting up human rights courts will not be served.”

And thousands of victims will continue to wait for years to see justice done.