| @ | January 11,2019

SOMETIMES, indeed, you could put your finger on a definite lie. It was not true, for example, as was claimed in the Party history books, that the Party had invented aeroplanes. He remembered aeroplanes since his earliest childhood. But you could prove nothing. There was never any evidence.” 

~ 1984, George Orwell

On November 12, 2018, the Supreme Court of India while rejecting the petition of some police personnel of Manipur Police against proceedings of the apex court for CBI investigation into extrajudicial executions in Manipur, referred to its judgment in Extra-Judicial Execution Victim Families Association v. Union of India (2016) 14 SCC 536. The reference was made to its observation in the latter about “Right to know the truth” as:

“The right to know the truth has gained increasing importance over the years…..With the emergence of the practice of enforced disappearances in the 1970s, the concept of the right to the truth became the object of increasing attention from international and regional human rights bodies and special procedures mandate-holders”. 

 

The right to the truth relates to the obligation of the State to provide information to victims or to their families or even society as a whole about the circumstances surrounding serious violations of human rights. The domestication of this right in India is a positive sign of dilution of state control and consolidation of constitutionalism. The article attempts to highlight the genesis of this right in International Law, how it finds an implicit space in our Constitution and implications of having the right in documentation of human rights violations and to counter the culture of impunity.

 

The Right to Truth in international law

 

The International Human Rights Law has played the most significant role in the conceptualisation and codification of the ‘Right to Truth’. For a very long time, the Right to Truth has not been specific and autonomous human right in ICCPR or any other international human rights treaty.

The evolution of Truth as a right and remedy can be traced back to the post-military and authoritarian regimes perpetrating the sheer scale of enforced disappearances in Guatemala, Argentina, Chile, Uruguay, Brazil, Haiti, Honduras, Nicaragua and Peru. The international human rights regime shifted from the criminal justice system to victim-centered remedy of right to know and determine the truth about the gross violation of human rights.

International Human Rights Law has played the most significant role in the conceptualisation and codification of the ‘Right to Truth’. Evolution of Truth as a right and remedy can be traced back to the post-military and authoritarian regimes perpetrating the sheer scale of enforced disappearances in Guatemala, Argentina, Chile, Uruguay, Brazil, Haiti, Honduras, Nicaragua and Peru

The legal genesis of this right is in Article 32 of Additional Protocol I to the Geneva Convention which refers to “right to know the fate of their relatives of deceased or missing person”. But its application was only limited to the armed conflict or non-international armed conflict. The slow expansion was further crystallised in the form of international soft law in the Updated Set Of Principles For The Protection And Promotion Of Human Rights Through Action To Combat Impunity. The Principle Two of the document recognises the inalienable right to truth about past perpetration of heinous and systematic violation of human rights. Subsequently, the Human Rights Committee resolution (2005/66) also links the scope of right to truth to create essential legal framework to identify the State agents involved in the perpetration of heinous human rights abuses.

The 2006 International Convention for the Protection of All Persons from Enforced Disappearance was the first international instrument that acknowledges the broad legal scope of right to truth regarding the circumstances including the progress and results of the investigation.

However, the broader scope and possibilities of Right to truth extends not only as essential component of universally accepted “right to effective remedy”, but also to create legal framework and institutions for individuals to obligate the State to conduct prompt, adequate and effective investigation. There also lies dimension of the collective right of the society to know about the past context of widespread and systematic perpetration of grave human rights abuses.

 

The Constitution of India and the Right to Truth

 

The right to truth has not been explicitly recognized in national constitutions except few countries like Peru, Venezuela, Mauritius and Slovenia. Despite not being explicitly mentioned in the Indian Constitution, it can be read from other fundamental rights.

The right to truth can be linked to the principle of transparency and good governance adopted by the Indian government. Inter-American Commission of Human Rights has concluded that the right to know the truth is essential for the workings of democratic systems. In the same line, the Constitutional Tribunal of Peru has concluded that the right to truth is a concrete expression of the constitutional principles of human dignity, rule of law and a democratic form of government.

The right to truth highlights the spirit of Constitutionalism and Rule of Law embedded in our Constitution.

In I.R. Coelho (Dead) By L.R.s v. State of Tamil Nadu and Ors. (2007) 2 SCC 1, it was emphasised that the principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. The Preamble’s introductory words “We the People” highlights the underpinning philosophy of people delegating their sovereignty. Thus, the Constitution derives its power from the people of India and the governments are meant to serve the same by any legal means which includes the Right to Truth.

The idea of Justice in the Constitution is not limited to statutorily defined justice but encompasses independent principles of natural justice as well. As Justice Khanna in his powerful dissent in the infamous case of ADM Jabalpur v. Shiv Kant Shukla AIR 1976 SC 1207 held,

“The principles of natural justice which are so implied must always hang, if one may so put it, on pegs of statutory provisions or necessarily follows from them. Statutory provisions creating certain types of functions may become unreasonable, and, therefore, void unless rules of natural justice were impliedly annexed to them.”

Thus, no statutory backup for the Right to Truth doesn’t paralysis it and rather becomes an essential part of the principles of natural justice which includes free and fair investigation.

The right to truth is nothing but procedural obligation of the government to protect the right to life. By providing information, the victim or the families of such victim are empowered to substantiate their remedies. Unless there is no information, the principle of fair trial and legal assistance remains ineffective

 

In the landmark judgment of Maneka Gandhi v. Union of India (1978) 2 S.C.R. 621, the court interpreted Article 21 (Right to Life) was not limited to substantive right but includes procedural aspect as well. The right to truth is nothing but procedural obligation of the government to protect the right to life. By providing information, the victim or the families of such victim are empowered to substantiate their remedies. Unless there is no information, the principle of fair trial and legal assistance remains ineffective. No proper remedy for human rights violations can be made available in such a case. Free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat, AIR 2006 SC 1367 stated that the right to free and fair trial extends to the victims, their family members and relatives, and society at large.

The right to truth and freedom of expression, which includes the right to seek and impart information, are linked. The formal recognition of a legal Right to Information in India occurred more than two decades before legislation was finally enacted in 2005. The Supreme Court of India in State of U.P. v Raj Narain (1975 AIR 865) ruled that the Right to Information is implicit in the right to freedom of speech and expression explicitly guaranteed in Article 19.

In Shatrughan Chauhan v. Union of India (2014) 3 SCC 1, the court gave new turn to the jurisprudence of death penalty and held that Article 21 contemplates informing the family of death row convict of day and time of such execution.

Most importantly, the state owes general duty to protect, respect and guarantee human rights. The only act on human rights in India, the Protection of Human Rights, 1993 defines human rights as “the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution…” This being so, the protection of the Right to truth is mere extension of fundamental rights protection guaranteed by the Constitution.

 

Legal implication of the Right to Truth on the culture of impunity

 

The Extra Judicial Execution Victims Families Association (EEVFAM) v. Union of India is an indeed landmark judgment as the principle of ‘right to truth’ were incorporated into India’s legal jurisprudence for the first time in order to combat deep culture of impunity especially the armed forces and paramilitary forces and bring accountability by disclosing the facts and circumstances of the grave human rights in the conflict affected areas.

The legal impacts of incorporating the principle of right to truth are two pronged:

Firstly, the express recognition of this right would enable the victims to legally compel the State to conduct a ‘prompt, adequate, complete and effective’ investigation into the complaints of human rights abuses and thereby obligates the State to disclose the truth and circumstances of human rights violation by the State agents to the victims and public as whole. The deep culture of de-jure and de-facto impunity in Kashmir prevents any form of investigation into the complaints of human rights abuses including enforced disappearance, sexual violence, extra-judicial execution, torture etc. The Association of Parents of Enforced Disappearance claims more than 8000 people has been subjected to enforced or involuntary disappearances in Kashmir perpetrated by the armed forces. However, there has not been single prosecution or any Indian Government acknowledgment of enforced disappearances perpetrated by the armed forces and thus, leaving the families of the victim in the state of absolute uncertainty regarding the whereabouts or fate of the victim.

The legal impacts of incorporating the principle of right to truth are, it would enable the victims to legally compel the State to conduct a ‘prompt, adequate, complete and effective’ investigation into the complaints of human rights abuses and also, the right to truth will strengthen the diminishing legal significance of the right to access justice enshrined in Article 21 of the Constitution

 

Secondly, the right to truth will strengthen the diminishing legal significance of the right to access justice enshrined in Article 21 of the Constitution. Despite plethora of the apex court judgments recognising the right to access justice, it has been largely non-applicable for families of victim demanding a prompt, effective and adequate investigation into grave human rights abuses. The right to truth when taken in the broader context of right to access justice, the court can direct the State to not only undertake investigation but mandates to take necessary action of prosecution and disciplinary proceedings.

More importantly, the normative enforcement of the right to truth will enable investigation into past abuses perpetrated by armed forces, police and other state machinery and serves a fundamental public interest by allowing nation to learn from its history.

 

The way forward

 

The Right to truth adopted in EEVFAM judgment may not be the epitome of justice or perfect tool to combat the impunity. The judgment itself does not explain or provides a comprehensive outline of the right in domestic legal sphere. Further, the apex court failed considerably to crystallize or conceptualize the right as means to secure remedy against the systematic perpetration of human rights abuses.  Nevertheless, the right to truth is a powerful legal tool with a huge potential in fighting against deep culture of impunity enjoyed by the armed forces, police and other state machinery despite committing grave human rights abuses.

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