"The protection of the fundamental human rights is the concern of each sovereign state and is a matter which is essentially within the domestic jurisdiction of member states of the United Nations". This locus classicus on human rights was delivered by India's Permanent Mission at the United Nations in reply to charges of violations of human rights levelled by the International League for Human Rights. That was during the high noon of the dictatorship ... the "emergency", which Indira Gandhi had imposed on the nation on June 25, 1975 ...

No Indian government since 1975 has been bold enough to assert openly its immunity from international accountability. But, the mindset persists. For years India has doggedly rejected requests by three respected UN oversees on human rights for permission to visit India --the Special Rapporteur on Torture; the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions; and the Working Group on Enforced or Involuntary Disappearances. Their reports to the UN Human Rights Commission every year contain references to India which are all the more telling for the measured prose.

. India has refused to sign (several UN) Conventions or ratify (them) ... The Convention Against Torture signed ... in October 1997 ... awaits India's ratification ...

For over a decade Amnesty International and Human Rights Watch have not only been refused permission to visit Punjab and Kashmir; they have been accused of lack of integrity and independence as well ...

Our civil libertarians and the reports they produce are for the most part, long on rhetoric and short on researched documentation and rigorous analysis. Not a few let their preferences colour their judgement. It is a marked feature of Robertson's approach that while he lauds the work of the Nuremberg Tribunal and the Hague Tribunal, he is unremitting in his criticisms of the procedural flaws, structural defects and even prejudices which marred their performance.

Until but a few decades ago ... the states-wise as the "subject" of the law and individuals, its "objects". Now the individual is very much a "subject". He has rights; not least, against his own state. He is also bound by the law.  There is an established corpus of international human rights law of which international humanitarian law is a vital part. This work covers a wide range; ... history of international recognition of human rights; the conflict during the Cold War between realpolitik and human rights, the rights which have won recognition in times of peace as well as in war; progress in the struggle for international accountability; erosion of the doctrine of sovereign immunity for international crimes; the perils of grant of amnesty to wrongdoers; the Balkan Trials before the Hague Tribunal; the International Criminal Court set up under the Rome Statute in 1998, and the ... significance of the Pinochet case. There is a mass of information, documented and written in a lucid style, on each ... topic ...

The central thesis of this work is that only those human rights are worth the name which are enforceable against their violators. "A rule is one of law not because it has been laid down with clarity in a treaty or textbook, but because there is at least a slim prospect that someday, someone will be arrested for its breach". The author adds: "This is why it has been the great achievement of international law, at the close of the 20" century, to lift the veil of sovereign statehood far enough o make individuals responsible for the crimes against humanity committed by the states they formerly commanded, while at the same time developing a rule that those states have a continuing duty to prosecute and punish them, failing which another state or the international community may bring them to justice", an allusion to the Pinochet case and the Balkan Trials.

Advocates of cultural relativism in the Third World receive the same treatment as the hypocrites in the West; especially the US ...

"Human rights standards are becoming rules of international law because a campaigning mass movement is putting pressure on democratic governments to practise what they preach when they ratify treaties which embody these standards. National courts, too, are finding ways to hold governments to these same standards. The results can be surprising and unsettling for politicians and diplomats, emerging from a world in which sovereign promises need never be kept to a future where breaches can have inconvenient legal consequences ...

India comes in for particular notice, in an appropriate context. On July 17, 1998 in Rome, 120 nations voted to adopt a statute creating an International Criminal Court. Twenty-one nations abstained, only seven were opposed. These included the United States, China, Israel and India..

An extract from a publication of the U.N. Department of Public Information records this saga of Indo-U.S. collaboration in an ignoble venture. The Statute and the Final Act were put forward as a "package" for adoption. It was the product of prolonged delineations and judicious compromises. "India and the United States tried to amend the package" (read: "unravel it and secure its defeat").

"In each case, a 'no-action motion' - a procedural device for not considering these amendments – was adopted by an overwhelming majority". The motion "to stop the Indian amendment" was adopted by114 to 16, with 20 abstentions; the U.S. won by 113 to 17, with 25 abstentions. The entire package was adopted by 120 votes in favour; seven against and 21 abstentions ... We are a great power capable of flouting the world as only a great power can, for example the US.

The author notes: " ... India having led the opposition to the creation of a court at the preparatory sessions, now demanded an extension of the Court's judgement to punish the users of nuclear weapons. This was a hypocritical attempt to deflect criticism over its nuclear test the previous month, and the defeat of the proposal provided India with a pretext to condemn the whole enterprise as an exercise in 'European neo-colonialism'. These puerile posturings ... were irresponsible enough, but the gold medal for hypocrisy was won by Israel, a state founded by victims of the worst crime against humanity, in whose memory (and, perhaps, for whose future benefit) the movement to create the Court had been inspired. The Netanyahu government voted against it, as a petulant protest after the Conference agreed to make forced settlement of occupied territory a war crime" ...

Evidently, he is unaware of India's distinctive contribution to the repertoire of state crime "encounters", extra-judicial killings by the police and the para-military. "Of all .such crimes, the most evil and most poignant of modern examples is causing a "disappearance" -- a process by which a citizen who is suspected of harbouring subversive sentiments kidnapped, detained and tortured for some time before being finally killed, all within a secret police or military operation which is utterly unlawful but nonetheless agreed in outline by the government.

The crucial test is accountability to the law. Prosecution is not a "revenge" but a duty. Amnesty to the ("crimes against perpetrator of the unforgivable humanity") is a betrayal ...

However, the states which drew up the Rome Statute took care to tie it securely to the apron strings of the U.N. Security Council. Its jurisdiction extends to genocide, crimes against humanity, war crimes and the crime of aggression; the last is subject to an agreed definition of aggression. Its draftsmen diluted the Statue in order to secure the United States' adherence.,

The' struggle for global justice is unstoppable. Information technology will promote greater awareness of the wrongs committed with impunity". "At the close of the twentieth century, the dominant motive in world affairs is the quest - almost the thirst - for justice. Indian civil libertarians will be guilty of a grave moral betrayal if they allow misconceived notions of state sovereignty, dressed in the beguiling cloak of nationalism, to inhibit them from joining in that march for justice. It is certain to be one of the dominant trends of the millennium the world over. (Source: 'The Frontline, 21 July, 2000)

Soli Sorabjee On UK's Human Rights Act

The Human Rights Act, which comes into force on October 2, 2000, marks a sea change in traditional British thinking. It reflects the will to give civil and political rights special legal protection although not as strong as in countries where the courts can strike down legislation, which is inconsistent with fundamental rights.

The higher courts in the United Kingdom can only make a declaration of incompatibility of the legislation with the guaranteed rights. Thereupon a minister is expected to initiate remedial action by amending the legislation.

Section 6 of the Act provides that it is unlawful for a public authority to act in a way, which is incompatible with a Convention right. Public authority is defined to include "any person certain of whose functions are functions of a public nature". And to make matters better, or worse, it is provided that in relation to a particular act, a person is not a public authority if the nature of the act is private.

.... Hopefully, the courts in the UK will ensure effective protection of human rights. (Source: The Times of India, 1 October, 2000)

Supreme Court On Right of Prisoner to Life

State of Andhra Pradesh, Appellant v. Challa

Ramkrishna Reddy and Others, Respondents.

S. SAGHIR AHMAD AND D.P. WADHWA, JJ.

Constitution of India, Article 21 - Right to life - Prisoner, be a convict or undertrial or detenu -Continue to enjoy all fundamental rights including right to life.

Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even he State has the authority to violate that Right. A prisoner, be he a convict or under-trial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his Fundamental Rights including the Right to Life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retail the residue of constitutional rights.

Thus, the Fundamental Rights, which also include basic human rights, continue to be available to a prisoner and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which has been rejected several times by the Supreme Court. (Source: AIR 2000 Supreme Court 2083)