THIS ARTICLE WAS WRITTEN BY REETI TRIPATHY, A STUDENT OF UNIVERSITY LAW COLLEGE, UTKAL UNIVERSITY.
Democracy & Rule of Law: Vehicles for Human Rights Protection
(With Special Reference to accused or under trial or convicted persons in police custody)
Democracy is intricately associated with pre-eminent, indivisible, inter-dependent, inviolable and inalienable entitlements of privileges that entail to basic human rights and fundamental freedoms. It aims at securing an egalitarian social order and a welfare state governed by the Rule of Law. The democratic ideal stands for the right to self-determination and right to live with human dignity. Democracy is that creed which emphasises on Rule of Law, which further corresponds to safeguard the fundamental human rights and also lays focus upon the administration of crimes or prevention of human rights abuses. Human rights can have full play in a democratic system consisting of prompt legislature, jubilant executive and vigilant judiciary.
Human rights awareness and consciousness grow on the bedrock of democratic system accompanied by the principles of the Rule of Law, justice, equity and good conscience. The best gift any democratic society can offer its citizens is the democratic rule of law. A democratic rule of law is a system of mutually agreed rules and regulations that must be based on reason, just principles, ethical standards, democratic values and ideology. In fact, Democracy is the most congenial for Human Rights and Fundamental Freedoms.
The fundamental principle of democracy is reflected in the United Nations Charter, 1945 in the expression “We, the People” of the Preamble to the Charter. The idealism of democratic nation State has been cumulatively enshrined and established in the formal institutions of a government of the Sovereign. The Universal Declaration of Human Rights, 1948, under Article 21(3) projected the concept of democracy by stating that “the will of the people shall be the basis of the authority of government”. The intricate relationship between democracy and rule of law is embedded in the legal documentation of the United Nations Organisation (U.N.O.). The Global Commission on Democracy, Elections and Security, elections with integrity—based on political equality, dignity, transparency, efficiency, proficiency and accountability—are crucial for human rights and democratic principles, as they give life to rights and positive entitlements as well as the negative reinforcements enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women and other international human rights convention, regional arrangements and trans-national covenants.
The relationship between democracy and human rights is intricate, symbiotic and mutually constitutive. The human rights-based approach to democracy grounded in the rule of law is considered increasingly and graphically inductive and the most consistent safeguard against human rights abuses.
The machineries of the State potentially strive to promote and protect human rights, fundamental freedoms, the rule of law and complete and easy access to justice by helping to strengthen the impartiality and effectiveness of the national human rights machinery and judicial systems. Democracy and the Rule of Law combine to impart effective human rights jurisprudence and efficient redressal mechanisms for flagrant violations of human rights.
Democracy, for every cosmopolitan topography and psychography, remains a universal human aspiration and a welfare-powerful force of political mobilization for positive change. Democratic reforms and the restoration of human rights protection are seen as parts of the same vision of change. The Rule of Law along with Democracy abridges the gap between policies, programmes, planning prodigy and practices. Human rights, the rule of law and democracy are interlinked and mutually reinforcing; they belong to the universal and indivisible core values and principles of the International Community.
The essential elements of democracy were re-affirmed in 2012 by the Human Rights Council in its Resolution No. 19/36 on “Human rights, democracy and the rule of law” (United Nations, 2012). There is wide agreement that democracy and human rights are intimately linked and that both are mutually supportive and mutually dependent.
Henceforth, democracy is considered to be one of the universal and indivisible core values and principles of the United Nations, other regional undertakings and municipal arrangements. It is based on the freely expressed will of people and closely linked to the rule of law and exercise of human rights and fundamental freedoms. Democracy, and democratic governance, in particular, means that people’s human rights and fundamental freedoms are respected, promoted, and fulfilled, allowing them to live with human dignity.
Democracy provides the natural environment for the protection and effective realization of human rights. A functional democracy that accommodates diversity, promotes equality and protects individual freedoms is increasingly becoming the best bet against the authoritarian rule and the abuse of human rights that inevitably results from the consequences of totalitarian governance. In turn, the greatest protection of human rights emanates from a sustainable democratic framework grounded in the rule of law.
A “thick” definition delineates positively the rule of law as incorporating such elements as a strong constitution, an effective electoral system, a commitment to gender equality, protection from curtailment of liberty, laws for the protection of minorities and other vulnerable groups and a strong civil society. The rule of law, defended by an independent judiciary, plays a crucial function by ensuring that human rights and civil liberties are in safe custody and that the equality and dignity of all citizens are not at risk.
The whole criminal jurisprudence must be built-up on balancing pillars. The trial must be fair and objective. This is the first pillar. Second, if one is found guilty, the punishment must co-relate to the gravity of the crime committed. The proposition of restitutive law or reformative law or corrective justice inherent in modern society by Emile Durkheim and Aristotle aims at reforms in legal framework for the welfare of human society and the provision for corrective justice.
Concentration of powers; in particular, de-democratisation of the society jeopardizes the liberty of the citizens. The flagrant human rights violations reflect serious democratic deficit even in the largest democracy of the world. The brutal inhuman treatment to the prisoners in prisons and detention centres by the police and the jail officials gore the death of human rights in a democracy even. The recent trends of state lawlessness, police atrocities, human trafficking, custodial violence, environmental effluence, medical negligence, frivolous frauds, breach of contract, outraging the modesty of women and other inhuman acts cast a callous shadow at the democratic pillars of any nation-state. But the remedy to these grave human rights violations is the absolute enforcement of democratic principles and ideals grounded in the Rule of Law.