The Contributory Role of the State

What is good about it. Where a judicial direction has been enacted, it has become permanent, generally applicable and administratively supported, which no direction can be.

The evaluation. Legislation has followed judicial direction more often than it has preceded it, and the intervals are long: sixteen years between Vishaka v. State of Rajasthan, AIR 1997 SC 3011, and the Act of 2013; twenty seven years between D.K. Basu v. State of West Bengal, AIR 1997 SC 610, and the enactment of some of its requirements in 2023. And one of the most important pieces of legislative protection ever passed, the recasting of article 22 by the 44th Amendment, was never brought into force, which is a legislative act of omission by the executive that has to be counted here.

Executive

What it has done. Every arrest, every detention order, every registration of a complaint, every investigation and every prison is an executive act, and so is every scheme under the Unorganised Workers Act and every legal services authority.

The evaluation, from the evidence in this book. The record is mixed and the evidence is specific. The National Human Rights Commission had to urge two State Governments to place cases before the Review Committees the Supreme Court had directed, and a panel it appointed was stayed. Directions of a High Court on the commissioning of women officers were not implemented until the Supreme Court said non intervention would be a travesty of justice. Caste based provisions survived in State prison manuals until 2024.

The structural point. Executive contribution is where the entire system is weakest, and it is weakest because it is the capacity in which the State is also the violator. A police force cannot be relied on to investigate custodial death, which is why section 196 of the Bharatiya Nagarik Suraksha Sanhita 2023 requires a magisterial inquiry.

Institutional

What it has done. The State has created, by Constitution or by statute, the National Human Rights Commission and State Commissions and Human Rights Courts; the National Commissions for Scheduled Castes, Scheduled Tribes and Backward Classes; the National Commission for Minorities; the National Commission for Women; the legal services authorities at four levels; the Internal and Local Committees under the Act of 2013; the Special Courts under the atrocities and children's Acts; and the Advisory Boards under the detention laws.

What is good about it. These bodies produce a record. The figures in [TADA in Practice, and the NHRC's Comments] exist because a Commission had a Special Rapporteur and published a report; without that the practice would be an allegation.

The evaluation. Almost every one of these bodies is recommendatory. The sanction is the laying of a report before a legislature with a memorandum on the action taken. That is a real sanction only where somebody reads the memorandum, and the Commission's own opinion of 2000 was rejected within two years.

Financial

What it has done. Funding is the capacity least discussed in examination answers and the most decisive. Legal aid, prosecutors, courts, prisons, police training and the schemes under the social security Act are all budgetary questions.

The evaluation. The most authoritative statement in this book on the subject is the Commission's, that if there are many acquittals it is not for lack of any laws but for lack of proper utilisation of these laws, lack of proper investigation and prosecution, and lack of adequate number of courts. That is an allocation problem. And the corresponding judicial statement is in D.K. Basu, that the need is to develop scientific methods of investigation and to train investigators properly.

The structural point. No court can order a budget, and no commission can appropriate one. Financial contribution is the one capacity in which the State cannot be substituted for, which is why it is the binding constraint on everything else.

The assessment

Four propositions that an answer can defend.

The legislative contribution is the most durable and the slowest. Where the State has legislated, the protection has lasted; where it has not, a judicial direction has held the ground and has been less effective.

The executive contribution is the weakest and the most consequential. Rights are violated and vindicated in the same executive machinery, and the design answer, which is to give the inquiry to somebody else, is the one the Constitution and the Sanhitas repeatedly adopt.

The institutional contribution is real but recommendatory. It produces evidence and it does not produce compliance.

And the financial contribution is the binding constraint. Every failure described in this module reduces on examination to investigators, prosecutors, courts and legal aid, and none of those can be supplied by anyone else.

The conclusion to state. The State's contribution to human rights cannot be measured by the number of statutes it has passed, because the statutes are the cheapest thing it produces. It should be measured by whether the machinery those statutes create is staffed, funded and answerable, which is the question the Commission asked in 2000 and the question this book returns to in [National Security and Human Rights: An Assessment].

A worked example

A State is asked what more it should do about custodial violence, and replies that it has enacted the Sanhita of 2023, constituted a State Human Rights Commission and issued a circular on the D.K. Basu requirements.

Legislative contribution? Real: sections 35, 38, 47, 56, 58 and 196 are substantial.

Institutional contribution? Real but recommendatory, and section 19 of the Protection of Human Rights Act 1993 limits what a Commission may do in respect of the armed forces.

Executive contribution? Untested by the answer. The question is whether magisterial inquiries under section 196 are in fact held, and how many.

Financial contribution? Untouched. The circular costs nothing; training investigators, staffing the magistracy and funding legal aid are what the answer omits.

What should be asked next? How many section 196 inquiries were held last year, how many prosecutions were sanctioned, how many legal aid lawyers are available per district, and what the vacancy position in the subordinate judiciary is. Those are the measures of contribution.

What it does NOT mean

The State is not merely a violator. It is the only body that can deliver a right, and every remedy in this book runs against it.

Legislation is not contribution by itself. It is a necessary condition and a cheap one.

A commission is not an enforcement agency. Its function is inquiry and recommendation, with laying before a legislature as the sanction.

And no amount of judicial activism substitutes for funding. A court can direct a State to act; it cannot appropriate money.

Quick revision

• Art 12 defines the State; art 36 applies that definition to Part IV; art 37 makes it the duty of the State to apply the directive principles in making laws.
• The double role: duty bearer and principal violator.
• Four capacities: legislative, executive, institutional and financial.
• Legislative: the statutes and amendments of this module, durable but slow, and the article 22 recasting of 1978 never brought into force.
• Executive: the weakest, because the violator and the enforcer are the same, which is why s.196 of the BNSS gives the inquiry into custodial death to a Magistrate.
• Institutional: the commissions, courts, committees, Boards and legal services authorities, which produce evidence but are recommendatory.
• Financial: the binding constraint, and the point the Commission made in 2000 about investigation, prosecution and the number of courts.

Test yourself

1. Why is the State's position different from that of every other actor in this subject? Because it is at once the duty bearer, against whom Part III operates and on whom article 37 places the duty to apply the directive principles, and the principal violator, since detention, custodial violence, the Emergency and the discriminatory prison rules were all its own acts.

2. Name the four capacities in which its contribution should be assessed. Legislative, in enacting the statutes; executive, in administering them; institutional, in creating and staffing commissions, committees and courts; and financial, in funding what the rights require.

3. Give an example of a legislative contribution that was never made effective. The recasting of article 22 by the Constitution (Forty-fourth Amendment) Act 1978, reducing the period of detention without an Advisory Board's opinion and altering the Board's composition, which was to come into force on a notified date and was never notified.

4. Why is the executive capacity the weakest? Because rights are violated and vindicated within the same machinery, so that the agency accused is the agency that would investigate, which is why section 196 of the Bharatiya Nagarik Suraksha Sanhita 2023 requires a magisterial inquiry into a death, disappearance or rape in custody.

5. What is the correct measure of the State's contribution? Not the number of statutes, which are the cheapest thing it produces, but whether the machinery those statutes create is staffed, funded and answerable, measured by such things as the number of magisterial inquiries actually held, the sanctions granted, the legal aid lawyers available and the vacancies in the courts.