The right to a public hearing

Justice H Suresh, Bombay High Court (retired), India

There are large scale violations of human rights in India; so also in other countries. Till recently, the courts were the only forum where one could seek remedial justice. However, delays have become a never ending problem in rendering justice to the victims. There are several reasons for the delays, among them inadequate judge-strength and lack of infrastructure in the courts, coupled with procedural hazards. Having realized this, we have now the National Human Rights Commission at the federal level, and state human rights commissions at the state level. However, the National Human Rights Commission and the state human rights commissions, though constituted under the provisions of the Protection of Human Rights Act, do not guarantee any effective remedy in any situation of human rights violations. Most of the members are retired judges of the Supreme Court or the high courts and the remaining members come from the home ministry or the police service. For them it is just a job, the entitlement being their retirement from government service. Their power again is only to make a report and it is for the government to act or not to act.

Governments in India have also the power to constitute commissions of inquiry whenever there are any significant violations of human rights and the public is agitated about such incidents. The government announces the appointment of such a commission under an act known as the Commissions of Inquiry Act. This becomes an official inquiry and one would think that the government concerned would act on whatever such a commission recommends. However, our experience is that the governments have throughout used these commissions as a shield to save themselves from public criticism. Whenever any matter of serious violations of human rights arises, governments promptly announce an inquiry by a sitting or retired judge. The immediate impact is to silence the press, the public and the people affected by the violations. It also stops any inquiry by the human rights commissions, because under the act, if any inquiry is announced by the government, the commission will not inquire into that incident. It also stops further inquiries by the police or other investigating agencies. Having achieved this objective of silencing all concerned, the government waits for the completion of the inquiry and the report. If the report is favourable to the government, it is accepted. If it is against the government it just refuses to accept it or to act on its recommendations. There are several official reports exposing the failure on the part of government agencies and officials, but rarely do we find any justice being done to the victims.

Fortunately, in India there are a large number of groups who have come forward to act as human rights defenders and who believe in people’s initiatives. Where democratic governance fails it is for the people to take the initiative. This becomes imperative where the violations of human rights are significant and have taken place mainly because the state is apathetic. Law is said to be a compromise of conflicting interests. If there is a conflict of interests in a society it is for the state to bring in a suitable law to resolve that conflict and assure peaceful existence and development. However, once the law is introduced, it is primarily an instrument of the government. If the state fails to enforce the law and protect human wellbeing, it does not mean that society has no role to play. It is in that sense that law is as much an instrument of the society as it is of the government.

In the high courts and in the Supreme Court, we have a large number of public interest litigation cases, which have become possible because of people’s initiatives. In fact the concept of public interest litigation is based on this theory of obligation on the part of the state and society. The doctrine of locus standi held the field for a long time, compelling the victims alone to come to court for redress, and none else on their behalf. This was during an era when private law dominated the legal scene. It was essentially a procedure to vindicate private rights, whether individual or proprietary. However, with the advent of welfare states with increased obligations on the state, it became necessary for the courts to liberalize this doctrine. When the state failed in its obligations towards the poor, weak and marginalized, the court could not allow such injustice to continue just because the persons affected were unable to come to the court. Thus the court gradually allowed any member of the public to seek a judicial remedy for a legal wrong caused “to a person or to a determinate class of persons, who¡K by reason of poverty, helplessness or disability, or socially or economically disadvantaged position, is unable to approach the court directly” (Justice P N Bhagvati in Judges’ Transfer Case AIR 1982 SC 144). Justice Bhagvati termed this “representative social action”, generally referred to as “social action litigation”. This has been extended even further to situations where injury to the public is far less tangible. If there is a public wrong there has to be a remedy. “If no one can maintain an action for redressal of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the state or public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it” (Judges’ Transfer Case).

Universal jurisdiction
Internationally, people’s initiatives have resulted in the establishment of people’s tribunals mainly for addressing concerns relating to serious human rights violations by states which would not provide any relief to the victims. One such permanent people’s tribunal was established in Italy in 1970, consisting of private citizens of high moral standing. It had no constitutional or statutory authority, but it carried out its work initially on its own, and later on the basis of a framework formulated in what is known as the 1976 Algiers Declaration. This tribunal investigated allegations against Turkey of the genocide of the Armenian people in 1915, the Soviet military role in Afghanistan, the Indonesian use of force in East Timor, and the atrocities committed by the Marcos government in the Philippines. In each case the tribunal heard witnesses, examined various reports and documents, and gave its judgement on the basis of the evidence produced before it. The judgement together with the evidence was published in the form of reports. In each case the concerned government was invited to have its say on the evidence gathered by the tribunal.

Reference should be made at this point to the concept of “universal jurisdiction”, which is being formulated by the international community. The basic approach is that states should ensure that their national courts can exercise universal and other forms of extraterritorial jurisdiction over grave human rights violations and abuses and breaches of international humanitarian law. Among the human rights violations and abuses over which national courts may exercise universal jurisdiction under international law, are genocide, crimes against humanity, war crimes, other deliberate and arbitrary killings and hostage taking, whether these crimes were committed by state or non state actors, such as members of armed political groups, as well as extrajudicial executions, disappearances and torture. If any particular state fails to fulfil this responsibility, other states can request the suspects’ extradition under universal jurisdiction. Courts in Austria, Denmark, Germany, the Netherlands, Sweden, and Switzerland have exercised universal jurisdiction over grave crimes under international law committed in the former Yugoslavia. Courts in Belgium, France, and Switzerland have opened criminal investigations or begun prosecutions related to genocide, crimes against humanity, or war crimes committed during 1994 in Rwanda. Italy and Switzerland have opened criminal investigations of torture, extrajudicial executions and enforced disappearances in Argentina in the 1970s and1980s. Spain, France, Belgium and Switzerland sought extradition of Augusto Pinochet, former head of state in Chile from the United Kingdom on this ground.

Thus what is important is not the constitutional or statutory structure of any institution within any national jurisdiction. In the event the state fails, the community’s conscience should be invoked. That is the meaning of any people’s court, nationally or internationally. That is the meaning of a public hearing: “jan-sunvai”. It should be considered as civil society’s response to a grave violation of human rights that has not been redressed by the state and its agencies.

People’s tribunals in India and abroad
One of the first public hearings within India was conducted by the Indian People’s Human Rights Tribunal (IPHRT) set up by the Indian People’s Human Rights Commission in the case of the firing at Arwal, Bihar during 1987 in which 23 people were massacred. That was conducted by Justice Potti, retired Chief Justice of the Gujarat High Court, and Justice T U Mehta, retired Chief Justice of the Himachal Pradesh High Court.

The next was in respect to the burning of 646 huts belonging to tribal people in Vishakapatnam district by the Andhra Pradesh government during 1988, conducted by Justice Chandrashekhar Menon and Justice Jyotirmoy Nag, retired from the Kerala High Court and Calcutta High Court respectively.

Since then several inquiries have been conducted by the IPHRT, the most important being “The People’s Verdict” on the Bombay riots in December 1992 and January 1993. While releasing that report, Justice V R Krishna Iyer, president of IPHRT, said:

“The right to know is a citizen’s right. The freedom of information is fundamental to all fundamental rights. A people’s tribunal gathering information, collecting relevant materials on an event of public importance, sorting them out judiciously, marshalling the evidence and conveying the whole testimony so gathered, in the shape of a report, is the discharge of public duty of the highest order. No one can, under the laws of India, stop the right to give or receive information, except where it is mischievously intended to skew the course of judicial justice.”

The tribunal adopted a simple procedure. It recorded the statements of the victims who came to depose. The social activists who had visited different areas and had collected materials placed them before the tribunal. There were many contemporaneous reports which were all taken on record. So also the media reports and audio and video tapes helped the tribunal in testing the veracity of the version given by the victims. In particular it observed:

“It is true that the witnesses have not been cross-examined. But our sittings were open to the public and all those interested were welcome. We would have been happy if the police had attended our sittings. But just because there has been no challenge to the evidence before us, it cannot be said that the evidence is not reliable. Most of the victims have suffered injuries and have lost everything; their livelihood, their belongings and their place of living. They have not been able to get justice, so far. In the case of some, their earlier statements in the form of complaints, [First Information Reports] and Panchanamas are all on record and they have tendered copies of those documents. Therefore there is no reason why evidence so received cannot be accepted.

“Moreover, the evidence came to be recorded in an atmosphere where there was no fear or favour. Ours is a friendly tribunal, where the victims would give vent to their feelings of the trauma they had undergone. In this sense, as compared to government-appointed enquiry commissions, a tribunal like ours has a better chance at arriving at the truth. In fact, many victims who were nervous about giving the names of their assailants to the partisan police had the confidence to disclose them to us.”

Most of these reports bring out poignantly and vividly the pain and the suffering the victims had to undergo, while the police and the state remained utterly indifferent. The significance of these reports is that the victims of human rights violations occupy the central place, for it is they who need support.

The “People’s Verdict” report was ready within six months, with the summary of evidence, findings of the tribunal and its various recommendations. The official inquiry commission (Justice Srikrishna Commission) took six years. But what was important was that the findings of the official commission and the findings of the IPHRT were one and the same. So also in the case of the IPHRT report on “Gunning down Dalits” in the police firing on Ramabai colony at Ghatkopar, Mumbai on 11 July 1997. The report was ready within a month of the incident, whereas the official commission (Justice Gundewar’s Commission) took 13 months and reached the same conclusions.

Two or three significant reports have since received recognition all over the world. One is the report on the Gujarat carnage in 2002 by the Concerned Citizens’ Tribunal, entitled “Crime against Humanity”. This report extensively sets out the depositions of several victims and has publicly stated that the chief minister and his associates are all liable for prosecution for committing acts of genocide and various crimes against humanity. Several countries in Europe took cognisance of this report (along with others) and are willing to exercise universal jurisdiction if Narendra Modi, Chief Minister of Gujarat steps into their territories. (Recently, he cancelled his visit to the UK; at the same time, his visa to the USA was cancelled.) Within the country, the Supreme Court took note of the efforts made by the Citizens for Justice and Peace (who constituted the Concerned Citizens’ Tribunal) and directed that the two major cases from the state be transferred to another state on the basis that there was no possibility of the victims getting justice or the accused being punished for the crime within the Gujarat (article 2, vol. 2, no. 1).

The experience of holding a public hearing is considered a useful tool to redress public grievances in respect to torture and other violations of human rights. In December 2003 a public hearing was organized in Colombo, Sri Lanka on the torture of children by the police. Here again, the state agencies, including the National Human Rights Commission, had failed to provide any assistance to the children (article 2, vol. 3, no. 1).

Yet another commendable effort was the report by the People’s Tribunal on Food Scarcity and Militarization in Burma, 1999, entitled Voice of the Hungry Nation (AHRC Publication). This was an international tribunal organized by certain voluntary groups and the evidence was recorded in Thailand. The most important witnesses related their personal experiences with hunger, violence, life and death in Burma. The report received recognition at Geneva by the UN Commission on Human Rights, which called upon the government of Burma to respond to its findings.

These public hearings cannot be equated with an investigation by NGOs or fact-finding groups. Ordinarily, before a public hearing takes place, the concerned groups and persons have to go round and collect materials and help the victims of violations to come forward and depose openly in front of the people who have gathered. As each one unfolds his or her experience, the tribunal also gets a chance to assess the intensity of those feelings and sense of helplessness which gives them no hope for justice from the state machinery: it is not so much a question of proof of what has been done to them, but to understand from them how justice has been denied to them. This becomes the basis for any report that the tribunal brings. It is our experience that such a report finds credence not only generally among concerned citizens, but even in courts of law.

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