The Centre for Law and Policy Research recently filed an intervening application on behalf of Swati Bidhan Baruah, lawyer and transgender activist, in a case titled Bhavika Pore v. Union of India. The Petitioner through this Petition is invoking the writ jurisdiction of the Hon’ble Supreme Court under Article 32 of the Constitution of India to direct the concerned authorities to fulfil their statutory obligations with regard to setting up/specifying special Human Right Courts in each district for the better protection of Human Rights and also to appoint a Special Public Prosecutor for the same, vis-à-vis section 30 and 31 of the Human Rights Act, 1993.
The Intervention Application prays for the designation of human rights courts and for the appointment of special human rights prosecutors. Swati, the intervener, is the founder of the All Assam Transgender Association, has been working tirelessly for the cause of transgender persons in Assam and the general North-East. Through this application, she hopes to make the rights prescribed in NALSA enforceable. While the Supreme Court has pronounced numerous progressive judgements including the recent Section 377 judgement and the Transgender judgement, both of which recognise the right to sexual orientation and gender identity, the actual enforcement of these rights remains weak. Consequently, instances of violation of the rights of LGBTQ+ persons persist.
To a large extent the persistence of these violations can be attributed to the lack of institutions responsible for the enforcement of these rights. In this regard, the central government has enacted various legislations such as the Human Rights Act, 1993 and the Gram Nyayalayas Act, 2008 which call for the establishment of specific courts designed to enforce these rights. Further, the Supreme Court has established a refined jurisprudence on ‘access to justice’ which propels the need to reinforce our institutions and make the promise of respecting the human rights of every person a reality.
Under Section 30 of the Human Rights Act, is a special Human Rights court which ought to be specified in every district of the country. Even though this provision has been in place since 1993, states haven’t specified any such court. A possible reason for the same is that the Section 30 makes does not make the specification of such courts mandatory. Rather, it merely enables the state government to specify such courts. However, if the rationale from the Supreme court’s decision in Dilip K. Basu v. State of West Bengal is applied, provisions such as Section 30 must be deemed to be mandatory considering the purpose for which they have been included in the legislation (i.e. the protection of human rights) has not been accomplished.
One can reasonably conclude that petitions like these and others, if successful, would help create a robust institutional framework which would go a long way in securing the cause of human rights for all.
The Petition is currently pending before the Supreme Court of India and notice has been issued to the Respondents.