Tuesday, August 5, 2008

Article 11 ICCPR & India


This project derives its main source from the landmark judgment of Krishna Iyer J. in Jolly George Varghese and Anr. v The Bank of Cochin. This judgment involves a profound issue of constitutional and international law and offers a challenge to the nascent champions of human rights in India whose politicized pre-occupation has forsaken the civil debtor whose personal liberty is imperiled by the judicial process itself.
           From the perspective of international law the question posed is whether it is right to enforce a contractual liability by imprisoning a debtor in the teeth of Article 11 of the International Covenant on Civil and Political Rights. The Article reads:
No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.
          An apercu of Article 21 of the Constitution of India, 1950 throws sufficient light on  the question whether it is fair procedure to deprive a person of his personal liberty merely because he has not discharged his contractual liability in the face of the constitutional protection of life and liberty as expounded and expanded by a chain of rulings of the Supreme Court beginning with Maneka Gandhi v. Union of India MANU/SC/0133/1978 Article 21 reads:
“Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law.”
             Under international law, human rights standards that are both treaty based and part of customary international law, and that are applicable in times of both peace and war establish standards for the propriety of detention. These standards, recognized in nearly all major human rights instruments, include the prohibition of “arbitrary” arrest or detention.[1] Thus, this project throws light upon the fact that how carefully the draftsmen of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights had taken into account all the possible circumstances where the rights of an individual might be affected and has at its best tried to protect them by imposing a negative obligation on the State and its instrumentalities.

The International Covenant on Civil and Political Rights is a United Nations treaty based on the Universal Declaration of Human Rights, created in 1966 and entered into force on 23 March 1976. Because the Universal Declaration of Human Rights contained both first-generation civil and political rights and second-generation economic, social, and cultural rights, it could not garner the international consensus necessary to become a binding treaty. To solve this problem, two binding Covenants were created instead of one: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights
The International Covenant on Civil and Political Rights (ICCPR) mandates: “No one shall be subject to arbitrary arrest or detention.”[2] Additionally, the human right to freedom from arbitrary arrest or detention is part of a more general right to liberty and security of person. As noted in the ICCPR, a concomitant human right prohibits deprivation of liberty “except on such grounds and in accordance with such procedures as are established by law.”[3] Thus, detention of terrorist suspects and others must not be “arbitrary,” there must be legal grounds for such detention, and detention must be in accordance with procedures established by law. Freedom from “arbitrary” detention is a relative right, however. Whether or not detention of an alleged terrorist or direct supporter of terrorism is “arbitrary” has to be considered in context and with reference to various interests at stake, such as the detainee’s rights to liberty and security, the rights of others to liberty and security,[4] and the interests of the government in maintaining law and democratic order. [5]Under human rights law, therefore, detention will not be deemed “arbitrary” if it is reasonably needed under the circumstances.

The International Covenant on Civil and Political Rights in its Article 11 (quoted above) bans imprisonment merely for not discharging a decree debt. Unless there be some other vice or mens ret apart from failure to foot the decree, international law frowns on holding the debtor's person in civil prison, as hostage by the court. India is now a signatory to this Covenant and Article 51(c) of the Constitution obligates the State to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”. Even so, until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter. A.H. Robertson [6]rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law. This position has been spelt out correctly in our native law in the decision of Kerala High Court in Xavier v. Cenara Bank Ltd. [7] on the crucial point. In that case, a judgment-debtor was sought to be detained under Order 21, Rule 37 C.P.C, although he was seventy and had spent away on his illness the means he once had to pay off the decree. The observations there made are apposite and may bear excerption:
“The last argument which consumed most of the time of the long arguments of learned Counsel for the appellant is that the International Covenants on Civil and Political Rights are part of the law of the land and have to be respected by the Municipal Courts. Article 11, which I have extracted earlier, grants immunity from imprisonment to indigent but honest judgment-debtors.”
The march of civilization has been a story of progressive subordination of property rights to personal freedom; and a by-product of this subordination finds noble expression in the declaration that "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation." Viewed in this progressive perspective we may examine whether there is any conflict between Section 51 of C.P.C and Article 11 of the International Covenant on Civil and Political Right. As already indicated, this latter provision only interdicts imprisonment if that is sought solely on the ground of inability to fulfil the obligation. Section 51, however, also declares that if the debtor has no means to pay he cannot be arrested and detained. If he has and still refuses or neglects to honour his obligation or if he commits acts of bad faith, he incurs the liability to imprisonment under Section 51 of the Code, but this does not violate the mandate of Article 11. However, if he once had the means but now has not or if he has money now on which there are other pressing claims, it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment. The remedy for breaches of International Law in general is not to be found in the law courts of the State because International Law per se or ‘proprio vigore’ has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken. I agree that the Declaration of Human Rights merely sets a common standard of achievement for all peoples and all nations but cannot create a binding set of rules. Member States may seek, through appropriate agencies, to initiate action when these basic rights are violated; but individual citizens cannot complain about their breach in the municipal courts even if the country concerned has adopted the covenants and ratified the operational protocol. The individual cannot come to Court but may complain to the Human Rights Committee, which, in turn, will set in motion other procedures. In short, the basic human rights enshrined in the International Covenants above referred to, may at best inform judicial institutions and inspire legislative action within member-States; but apart from such deep reverence, remedial action at the instance of an aggrieved individual is beyond the area of judicial authority.


 Section 51 of the Code of Civil Procedure runs as:
 Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property;
(c) by arrest and detention in prison;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require.
 Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree-
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or
(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
Explanation - In the calculation of the means of the judgment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.
Consistent to this provision, it is necessary to read also Order 21 Rule 37 which states: 37. (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention is the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court op. a day to be specified in the notice and show cause why he should not be committed to the civil prison:
Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

In this regard, equally meaningful is the import of Article 21 of the Indian Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, r/w Articles. 14 and 19 obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi's case[8] as developed further in Sunil Batra v. Delhi Administration[9] lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, is no crime and to 'recover' debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation that is put on the Proviso to Section 51 of C.P.C and the lethal blow of Article 21 cannot strike down the provision, as now interpreted.
                 The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11 (of the Covenant) and Article 21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently.

The detention of debtors—such as persons who are unable to settle their debts—is unlawful under international human rights law.   Article 9 of the ICCPR provides that everyone has the right to liberty and security of person and “[n]o one shall be subjected to arbitrary arrest or detention.”  Detention is considered arbitrary if it is illegal or if manifestly disproportionate, unjust, discriminatory or unpredictable. [10]
More specifically, article 11 of the ICCPR states: “No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.” This provision prohibits the deprivation of personal liberty for failure to pay a debt either by a creditor or by the state. States have an obligation to enact laws and other measures to prevent the state and private creditors from limiting the personal liberty of their debtors who cannot fulfill their contracts.[11]
The ICCPR lays out the right to humane treatment in detention. Article 10 states that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. In its General Comment, the Human Rights Committee, the international body of experts that monitors compliance with the ICCPR, has made clear that this article applies to:
[A]ny one deprived of liberty under the laws and authority of the State who is held anywhere or on camps or correctional institutions or elsewhere. States parties should ensure that the principle stipulated therein is observed in all institutions and establishments within their jurisdiction where persons are being held.[12]


·        http://www.ohchr.org/english/law/ccpr.htm
·        http://www.manupatra.com
·        Steiner, J. & Alston, Philip ‘International Human Rights in Context: Law, Politics, Morals’ Oxford: Clarendon Press(1996)
·        Davenport, Christian ‘State Repression and Political Order’ Annual Review of Political Science(2006)

[1] Thus, human rights law applies during an armed conflict. See, e.g., Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 239 (July 8)

[2] ICCPR, supra note 6, Art. 9 (1)
[3] Similar provisions exist in other human rights instruments. See, e.g., African Charter, supra
note 6, Art. 6; American Convention, supra note 5, art. 7(2); European Convention, supra note 5,
Art. 5(1).
[4] The need to accommodate interests of others is also reflected indirectly in Article 5(1) of the ICCPR, which states that nothing in the covenant “may be interpreted as implying for any . . . group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation.” ICCPR, supra note 6, Art. 5(1). See also African Charter, supra note 6, art. 27; American Convention, Art. 32(2); European Convention, Art. 17.
[5] Although not addressing international law as such, dicta in U.S. cases recognize that governmental or national interests in security should also be weighed by the judiciary. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690, 696 (2001)
[6] Human Rights- in National and International Law": Pg -13
[7] 1969 K.L.T. 927 at 931, 933
[8] [1978] 1 S.C.R. 248
[9] MANU/SC/0184/1978: Also See Sita Ram and Ors. v. State of U.P. MANU/SC/0244/1979
[10] See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel, 1993), pp. 172-73.
[11] Nowak, U.N. Covenant on Civil and Political Rights, pp. 193-96.  This provision does not apply to criminal offenses related to debts such as fraud and failure to pay maintenance.

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