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VOL. 28, NO. 19, Jan 16, 2009 (Magh 03 2065 B.S.)
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Redefining the right to life
Dr. Trilochan Upreti
The “right to life” is, of course, the basic right of any individual, and also the cardinal basis of individual's freedom, liberty and pursuit of happiness. In view of this fact, the constitution of each and every country of the globe have enshrined to protect this right under the rubrics of fundamental rights. Accordingly, Article 11 of the Interim Constitution, 2063 of Nepal provides this right to freedom, which also encompasses the other rights under this title. Supreme Courts and High Courts, depending upon the constitutional arrangement of each country, have on several occassions issued extra-ordinary orders designed to safeguard this right, also providing compensation from culprits to victims in the event of violations.
The first case of such judicial deliberation was made by British Judge Lord Denning in 1970: "A man's liberty is regarded highly by the law of England that it is not to be hindered or prevented except on the surest grounds." This verdict has played far reaching implications in the area of right to life, making executive or its organs accountable for its action and omission and binding them to comply with the provision of constitution of the land. This pronouncement was then followed by several similar pronouncements by many Supreme Courts across the globe.
The requirement of the society varies in tune with the time and so is the pronouncement of courts. That is to say, what falls under the right to life has been widening and broadening since then. The right to life has, thus, become major rights under the international human rights standards, jurisprudence and the verdicts of regional and international human rights courts, criminal tribunals and also international human rights instruments. This has been well set up in legislative enactments and working manuals of the security agencies around the globe. However, even the above arrangement has not adequately provided the protection of the individual's right to life and in developing countries in particular and conflict affected countries in general, the right to life has been severely violated in one way or another. The legal regime as well as the judicial institution has terribly failed to protect the rights of citizens and making responsible the perpetrator for such crime is almost impossible.
Even in India before 1980 the judiciary was seen unable to maintain the sanctity of the right to life guaranteed to all citizens and foreigners under Article 21 of Indian Constitution. For instance, in A. K. Gopalan case in 1950, the Indian Supreme Court had taken a very conservative view to rule that the right to life extended to only as much as allowed by Parliament. The court in Menaka Gandhi case ruled that the expression "life" did not mean mere animal existence but with dignity. This was, for the first time, deviation of the conservative interpretation making sure that the meaning is more than to just live in but to create an opportunity to live in dignified manner is also meaning of right to life. The same Supreme Courts in its recent decision in the case of Deepak Bajaj of Mumbai under the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, said that the right to life encompassed a person's reputation as well. That is to say, a person's reputation is an inseparable part of his fundamental rights to life and liberty and hence, the police and other authorities with the power to detain should be sure of this fact against an individual before taking him into preventative detention and lodging him in prison. The court further said, "If a person is sent to jail, then even if he is subsequently released, his reputation may be irreparably tarnished."
Linking of a person's right to life and liberty with his or reputation is cautioning the police and authorities to be extremely careful in detaining a person on suspicion. It is because, every individual has his or her own reputation which could be curtailed if he or she is arrested without legal reasons or causes. It has become common for the police and administrative authorities to buy time for investigation by sending suspects to the prison, which has also caused overcrowding in prisons. The ruling could be seen as an acknowledgement of the disconnect between judicial doctrine of the presumption of innocence and the opprobrium that gets heaped upon an individual when he is jailed.
The court gave a whole new expansive meaning to "right to life" in the Menaka Gandhi case and the notion of the verdict reiterated in its subsequent decisions expanding the right to life and liberty. According to a constitutional expert in India K. K Venugopal aptly summarized this in one of his articles: A whole new catena of rights was read into Article 21; which embodies the right to life and liberty. These in various decisions, have been held to include the right to legal aid, right to go abroad, right to reputation, right to shelter, right to privacy, right against sexual harassment of women, right to education and right to clean and healthy environment. For the court to be able to widening the definition of the right to life supported by multiple factors, awareness, education, training and socio-economic acceleration of the whole India.
Exploring our judicial activism in regard to the protection and promotion of human rights and fundamental freedom of our citizens, Nepalese Supreme Court on numerous occasions, has contributed significantly. Particularly, the political activists, leaders and civil society members have enjoyed their freedom and liberty by various milestone judgments of our judiciary. However, not in all occasions our judiciary has received appreciation in such deliberations caused by different reasons, some of them are not delivering such fundamental cases on time, influenced by the then regime, lack of resources and also inability functioning properly on the time of dire need. The historical verdict in case of disappeared citizens is particularly reasoned to be appreciated by national and international spheres.
The citizens of the globe, irrepective of their locale and development status, are to enjoy the protection and promotion of same fundamental rights and liberty without any hassles. To that end, we have to do a lot in our context. From resources gap to qualified professional judges, their courage and determinations, hard work in study and research and improvement in policy, laws and institutional set up are vividly required to be enhanced and reformed. Likewise, the cooperation from the legal, and civil society, human rights community, political parties, government and by the judiciary themselves also highly desirable. What is more, the violent conflict over a decade has caused tremendous loss of lives, the fate of high number of disappeared people still unknown, merciless killings after abduction, gross violations of human rights by both side of the conflicts has immensely contributed the widespread culture of impunity across the spectrum of Nepali society.
