2000 | india-seminar.com
THE National Commission for the Review of the Working of the Constitution was created by the present NDA government amidst protest by the opposition and a sizable section of lawpersons, fearing that it was set up to effectuate the political agenda of the NDA on issues, among others, relating to the presidential form of government, (in)eligibility of persons of foreign origin for holding public office, secularism and so on. Justice M.N. Venkatchalliah, former Chief Justice of India, and the commission’s chairperson, put paid to some of these fears by publicly stating that the commission will not seek to tamper with the basic structure of the Constitution which includes, but is not limited to, secularism, parliamentary form of government, separation of powers and so on.
The commission has, unfortunately, not been able to reach out to the public and stir a genuine debate on issues that it has taken up for consideration. This has, perhaps, been occasioned on account of a later-day loss of interest by the government in the commission as also by the realisation that, after all, the commission is only an advisory body in nature and its recommendations will be as binding on the government as those of many other such commissions set up for recommending law reforms, or even the recommendations of the statutorily-backed Law Commission of India whose reports are more ignored than implemented. It is also felt that whatever the commission may ultimately recommend will be subjected to the rigours of parliamentary scrutiny and will have to cross the two-third majority threshold before it is incorporated in the Constitution.
Despite all this, the commission has been able to generate a substantial amount of literature in the form of consultation papers and committee reports on various issues which, admittedly, have been troubling the constitutional fraternity over the past few years and decades. The commission’s consultation papers, for example, on enlargement of fundamental rights, fundamental duties, role of governors, Article 356, inter-state commerce, among others, have constructively contributed to the debate in these areas especially when there has been an articulation of divergent opinions by courts, constitutional lawyers and the political class.
In this context, the three memorials submitted by the South Asia Human Rights Documentation Centre (SAHRDC) to the commission on abolition of the death penalty, preventive detention and the elimination of sovereign immunity have contributed substantially to assist the commission in addressing these issues within the broad framework of the issue of enlargement of fundamental rights. The memorials have painstakingly analysed the Indian and international legal position on these issues and, upon an analysis thereof, recommended consequent constitutional amendments.
If there is one issue that has agitated the constitutional fraternity in India right from the inception of the Constitution, it is the issue of preventive detention and the consequent impairment of individual liberty. The issue monstrously rose to its pinnacle during the Emergency when, except for the haunting dissent of Justice H.R. Khanna, the Supreme Court notoriously held that fundamental rights could be suspended during an emergency, leaving the citizen with no remedy to approach superior courts in exercise of their fundamental rights jurisdiction.
Although post-Emergency court decisions have increasingly sought to humanise the preventive detention laws, the existence of an express provision for it in the Constitution in the form of Article 22 has prevented them from going beyond mere tinkering with its procedural and substantial aspects. SAHRDC has, therefore, quite appropriately, sought for an abrogation of these provisions from the Constitution and recommended that it be left to the Parliament to enact laws for preventive detention only in extreme cases which would, thereafter, be subject to test on the touchstone of the constitutional mandate of personal liberty. SAHRDC, in the alternative, recommends that if these provision are not abrogated from the Constitution, sufficient additional safeguards need be included in the Constitution to protect the rights of the detainees, including the right of periodic and continuous judicial review of detention order as also a right to know the grounds of arrest, right to legal counsel and cross-examination and, most importantly, for a right to compensation for unlawful arrest and detention.
The second memorial deals with the colonial legacy of sovereign immunity which, despite five decades of our republican existence, we still choose to retain. Under the current legal regime, government personnel have the privilege of sovereign/official immunity protecting them from criminal prosecution or civil suits – even if they commit serious human rights abuses. These immunity laws are holdovers from the colonial rule wherein the King was supposed to do no wrong and he could not be sued by his subjects in his own courts.
While the Supreme Court’s ingenious interpretation has somehow narrowed the scope of this immunity, there are existing legislations that require the express sanction of the government before any court can even take cognizance of complaints against its officials for having violated human rights ‘while acting or purporting to act in the discharge of their duties.’ The Law Commission of India (LCI), the National Human Rights Commission (NHRC) and even the National Police Commission (NPC) have variously recommended that a law be enacted to narrowly restrict the application of this doctrine in such a way that the liability of the state became the rule and the sovereign immunity an exception.
In fact, in 1997, the NHRC expressly called for a need to obviate the necessity of governmental sanction for the prosecution of police officers where a prima facie case of the custodial offence was established after an inquiry conducted by a sessions judge. SAHRDC has also sought an express constitutionally entrenched provision for the award of compensation in cases of human rights violations.
Over the years, there has been growing international consensus in favour of abolition of death penalty leading to the adoption in 1989 of the Second Optional Protocol to the International Covenant on Civil and Political Rights. In terms thereof, the statutes of the international criminal tribunals to try war criminals from Rwanda and former Yugoslavia have deviated from those of their precursor Nuremberg and Tokyo tribunals and have deliberately excluded the death penalty as a form of punishment. Statistics indicate that more than 114 states have become abolitionists and the number is growing.
In India, we have sought to develop the ‘rarest of the rare’ doctrine for imposition of death penalty so as to take into account issues like the manner of commission of crime, motive, anti-social or socially abhorrent nature of the crime, magnitude of the crime and the personality of the victim. According to SAHRDC, this doctrine, paradoxically, has let the death penalty survive as a form of punishment over the years. It, however, does not comply with the prevailing international human rights standards in that it is exceptionally difficult, if not impossible, to create or operate a system with flexible standards for judges to determine the rarest of the rare case without having the sentencing process result in uneven or arbitrary treatment to the accused. Logically, therefore, SAHRDC has canvassed for the abolition of death penalty in totality.
With the recent experience of the adoption of the new South African constitution and the overwhelming involvement of the general public in its formulation, one would expect the commission to have also attempted to replicate the same. However, that having not been the case, contributions like the three memorials under review would go a long way in assisting it in formulating recommendations with a more comparative and holistic perspective imbued with inputs of the state-of-the-art developments in international law and other civilized constitutional polities.
Anees Ahmed
Source: http://www.india-seminar.com/2002/512/512%20books.htm