Human Rights in India: In context of its

violations

Name: Khuba Abbasi Submitted to: Dr. Noorjahan

Momin

Semester: 5th

Roll no.: 22

B.A. LL.B. (H)

Self-Finance
Introduction

Human beings are born equal in dignity and rights. Human rights are moral claims

which are inalienable and inherent in all individuals by virtue of their humanity alone

irrespective of caste, colour, creed, and birth of place,1 cultural difference or any other

consideration. These claims are articulated and formulated in what is today known as

human rights. Human rights are sometimes referred to as fundamental rights, basic

rights or natural rights. The most important question is what are human rights?

According to the United Nations, human rights are those rights which are inherent in

our nature and without which we cannot live as human beings (human rights and laws).

Human rights allow a human being to develop and make use of human qualities,

intelligence, and talent to satisfy our basic needs.

At the International Level India has always been a very strong follower of the idea of

human rights. India is a signatory to many of the international human rights

instruments. India has spoken up at various International forums in favour of human

rights and strongly criticized human rights violations in different parts of the world.

India is committed to the rights mentioned in the universal declaration of human rights

and is in fact a signatory to all the six core human rights documents. Yet, it is relevant

to note that when it comes to India’s own track record, the human rights scenario in the

country has not been above criticism. India has not ratified the convention against

torture, India is not a party to the Conventions on the Rights of Migrant Workers and

their families, on refugees and stateless persons, the ILO Convention on the abolition

of child labour, on the rights of indigenious and tribal people. India has a large and

varied population. There is a huge difference of language, caste, religion and culture of

1
The United Nations, Office of the High Commissioner of Human Rights, What are human rights?,
(last visited, October 22, 2019)
the people in India. There are different religious traditions and complex societal norms

govern the activities of people which in fact contribute to the denial of rights to the

people.

Definition of Human Rights

Human rights are those minimal rights which every individual must have against the

state or other authority, by virtue of his being a member of human family irrespective

of any consideration. They are commonly understood as inalienable, fundamental rights

"to which a person is inherently entitled simply because she or he is a human being”.2

The universal declaration of human rights in 1948, defines human rights as rights

derived from the inherent dignity of the human person. Human rights are guaranteed

by a written constitution are known as fundamental rights, because a written

constitution is the fundamental law of state (Human rights- nature and constituents).

Nature and Characteristics of Human Rights

1. Human rights are inalienable : Nature conferred human rights on an individual

right from his birth. These are the inherent in all individuals irrespective of their

caste, creed, religion, sex and nationality.

2. Human rights are necessary and essential : The moral, physical, social and

spiritual welfare of an individual is impossible in the absence of human rights.

They provide suitable conditions for material and upliftment of the people.

Human rights are both necessary as well as essential.

3. Human rights are connected with human dignity : To treat all human beings

with dignity whether he is a male or female, rich or poor is concerned with

2
Ibid.
 human dignity .e.g law of employment of manual scavengers and dry latrines

prohibition act 1993 which forbids the practice of carrying human excreta.

4. Human rights are universal : Human rights are not prescribed to any privileged

class of people. These laws are universal in nature without exception and

without consideration. The values such as dignity and equality which are the

basis of the right are inherent in nature.

5. Human rights are dynamic : Human rights are dynamic and generic. They go on

expanding with socio- economic, cultural and political developments within the

state.

Present Scenario in India

The awareness about rights came into the minds of Indians before the national

movement. But this gained momentum only after the emergency. Even the elite of the

society did not think about the rights because rights were given proper place in the

constitution and they were guaranteed by an independent judiciary. Only after the

emergency the need for upholding the rights arose. Along with this need, with the

efforts of so many institutions in India the awareness has been growing. With this

awareness, different sections of people are putting forth their demands to restore their

rights to fresh air and similar other rights. The Constitution of India provides for

Fundamental rights, which include freedom of religion. Clauses also provide for

Freedom of Speech, as well as separation of executive and judiciary and freedom of

movement within the country and abroad. According to the United States Library of

Congress, although human rights problems do exist in India, the country is generally

not regarded as a human rights concern, unlike other countries in South Asia. On the

other hand, women are also demanding for their rights to have a peaceful life. Women
are demanding that women rights should be treated on par with human rights. All the

countries unanimously agreed to declare that women rights are human rights. Now,

International Community is coming up with reproductive rights for women. But in India

it is very strange that women don’t have any right in this regard. Rapid industrialization

creates a disaster in the peaceful living of human beings and as a result people are

raising their heads against pollution. But the capitalist companies in the name of

development & progress try to overlook the basic rights. Truly this is the effect of

globalization and mindless industrialization, at the cost of agriculture. Some developed

Nations Propagate that 'development' is also a right. But people will realize that

development is also a right only when then are literate and aware of that. If that primary

right of education is not enjoyed by the people they don't have any cognizance of

developmental rights. When they oppose development at the cost of losing this natural

habitat government will cruelly handle the situation with help of police. In such

contexts judiciary and human rights commission will become more vigilant and try to

uphold the right given by the constitution. Media is also playing the vital role in creating

awareness in the public and society about human rights. Many times because of media

coverage only rights of the people are protected.

Women’s Rights

Numerous cases of rape across the country once again exposed the failures of the

criminal justice system. Nearly six years after the government amended laws and put

in place new guidelines and policies aimed at justice for survivors of rape and sexual

violence, girls and women continue to face barriers to reporting such crimes. Victim-

blaming is rampant, and lack of witness and victim protection laws make girls and

women from marginalized communities even more vulnerable to harassment and

threats.

In the case : S.P. Gupta v. Union of India,3 the Supreme Court has held that any public

spirited individual can move the court in case where the victim requires to seek judicial

redress. The judiciary has granted relief to prisoners, women, bonded labourers and

workers and has passed verdicts for protection of environment, among others. The

development of human rights promotion and protection has also been evolved by the

judicial verdict that has facilitated the public interest.

A recent incident in 2018 of rape in Muzaffarpur also known as the Muzaffarpur

Shelter Home Rape case refers to a shelter home that ran under a non-governmental

organization called "Sewa Sankalp Evam Vikas Samiti" at Muzaffarpur, Bihar, where

cases of sexual abuse, rape and torture were reported. In a medical examination, sexual

abuse of 34 out of 42 inmates living at the shelter was confirmed. The National Human

Rights Commission has observed that the contents of the incident if proven true amount

to Human Rights violation of the survivor and issued notices to the Bihar government

and the police chief of the state to submit a detailed report of the incident(s).

In the case : Indian Young Lawyers Association v. State of Kerala4, the Supreme Court

lifted the ban on entry of women of menstruating age—between 10 and 50—to a temple

in southern India, on grounds of nondiscrimination, equality, and women’s right to

practice religion. This prompted protests from devotees, including women, who tried

to stop girls and young women from entering the temple.

3
AIR 1982 SC 149.
4
2018 SCC OnLine SC 1690.
In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation

under Article 32 of the Constitution. The petition challenged the constitutionality of the

offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.

Later in 2018, in the case Joseph Shine v. Union of India5, a five-judge bench of the

Supreme Court struck down Section 497 of the Indian Penal Code (IPC), and

decriminalised adultery in India.

Situation in Assam

In July 2019, the government in Assam published a draft of the National Register of

Citizens, aimed at identifying Indian citizens and legitimate residents following

repeated protests and violence over irregular migration from Bangladesh. The potential

exclusion of over four million people, many of them Muslims, from the register raised

concerns over arbitrary detention and possible statelessness. The Foreigners tribunal of

Assam declared citizens as ‘irregular foreigners’ over clerical errors such as minor

differences in spellings of names or age in electoral rolls, or slight contradictions

between answers given in cross examination and what is written in the documents. The

Assam government in August released the final version of the National Register of

Citizens (NRC). The final NRC list has left out over 19 lakh people in Assam who now

face the danger of being declared illegal migrants if they don’t contest their exclusion.

Amnesty International, expressed deep concern after the final list of NRC was

published in Assam.

In September, the Supreme Court upheld the constitutionality of the biometric

identification project, Aadhaar, saying the government could make it a requirement for

5
2018 SCC OnLine SC 1676.
accessing government benefits and filing income tax, but restricted it for other

purposes. Rights groups raised concerns that Aadhaar registration requirements had

prevented poor and marginalized people from getting essential services that are

constitutionally guaranteed, including food and health care.

Arrested Persons

In the case : Khatri v. State of Bihar,6 is a pathetic and most tragic death case. The

Supreme Court was intimated by some of the undertrial prisoners through the

Superintendent of the Bhagalpur District Jail that they were treated brutally and were

subjected to police atrocities, so much so that some had been blinded cruelly. Earlier,

their complaints were invariably ignored by the authority, even by the District and the

Session Judges, and the Chief Judicial Magistrate. Their helpless cry was in vain before

the Home Department. But Mrs. K. Hingorani, a social action lawyer made a PIL before

the Supreme Court. The Hon’ble Court was shocked by the non-action of the concerned

authorities because of which the undertrials were deprived of their eye-sight and thus

were deprived of their right to life. The court issued directions to the State to arrange

for human treatment of the blinded prisoners and also for compensation and

rehabilitation. An act of torture is not only an offence to human dignity but is also a

violation of the principles of Charter of United Nations, 1945. It also violates the human

rights and fundamental freedom of individuals and persons embodied in the Universal

Declaration of Human Rights, 1948.

In the case : Bandhua Mukti Morcha v. Union of India,7 a public spirited organization

filed a suit for the release of bonded labourers working in stone quarries. Here, the

6
1981 SCR (2) 408.
7
1984 SCR (2) 67.
Court allowed locus-standi to an anti-bonded labourer social organisation which

petitioned against the inhuman and intolerable conditions of the labourers hailing from

different states. These bonded labourers lived under inhuman conditions, and faced

serious occupational risks and disease, even death. They were subjected to open

exploitation of the Cedars i.e. the middlemen in violation of the various provisions of

the constitution, social legislation and, most importantly, the Bonded Labour System

(Abolition) Act, 1976.

In the case : Nilabati Behra v. State of Orissa,8 the Supreme Court held that the real

threat to rule of law came from the growing lawlessness of the state functionaries,

particularly the police, and wherever there was contravention of Human Rights and

fundamental rights, there was an enforceable right to compensation. In this case Mr.

Suman Behra was taken into police custody on December 1, 1997 by the personnel of

Bishra Police Station in Bihar in connection with the investigation of a theft case. On

the very next day, the detenue was found dead near the Jaraikela Railway Station. The

mother of the victim, Nilabati claimed for compensation for her son died in police

custody and she also contended that it was a case of deprivation of life under Article 21

of the Constitution. The Supreme Court held that the State Government of Bihar was

liable to pay Rs. 1,50,000/- as compensation to the family of the victim. The Apex Court

observed that an enforcement of the right to compensation, as provided in Article 9(5)

of the International Covenant of Civil and Political Rights 1966, is not alien to the

concept of enforcement of fundamental right of the citizen.

Jammu and Kashmir

There were repeated allegations of violations by government forces in Jammu and

8
1993 SCR (2) 581.
Kashmir during security operations. In 2018, there was increased violence involving

militants that many attributed to political failures to ensure accountability for abuses.

Militants killed at least 32 policemen in 2018. In August, in retaliation for the arrest of

their relatives, militants in South Kashmir kidnapped 11 relatives of several policemen.

The militants released all relatives of police personnel after authorities released the

family members of the militants. In November, militant group Hizbul Mujahideen

killed a 17-year-old boy in Kashmir on suspicion that he was a police informer, and

released the video of the killing as a warning to others. Militants killed several other

people in 2018 on suspicions of being police informers. In June, unidentified gunmen

killed prominent journalist Shujaat Bukhari, editor of the Rising Kashmir, outside the

newspaper’s office in Srinagar.

Several thousand Kashmiris, including politicians and opposition activists, have been

held in preventive detention since August 5, 2019, when the Indian Parliament voted to

alter the autonomous constitutional status of Jammu and Kashmir state and split it into

two federally governed territories. The entire Jammu and Kashmir has been facing

communication blackout since that day. The authorities have reportedly detained nearly

4,000 people, including supporters of political parties, separatist leaders, lawyers,

journalists, and people who allegedly had records of participating in violent protests.

There have been serious allegations of torture and beatings. Many detainees have not

been allowed to contact their families or lawyers. Prolonged detention without charge

violates India’s obligations under international human rights law. The International

Covenant on Civil and Political Rights, to which India is party, prohibits arbitrary arrest

and detention. Anyone detained should be promptly taken before a judge and provided

the reasons for their arrest and detention and any charges against them. They should
have prompt access to a lawyer and family members. Many Public Interest Litigations

have been filed regarding this issue but the judiciary has not taken any firm stand.

National Human Rights Commission

Establishment

The Government of India did realise the need to establish an independent body for

promotion and protection of human rights. The establishment of an autonomous

National Human Rights Commission by the Government of India reflects its

commitment for effective implementation of human rights provisions under national

and international instruments. The Commission is the first of its kind among the South

Asian countries9 and also few among the National Human Rights institutions, which

were established, in early 1990s. The Commission came into effect on 12 October 1993,

by virtue of the Protection of Human Rights Act 1993. Fourteen Indian States10 have

also set up their own human rights commissions to deal with violations from within

their states. The Act contains broad provisions related with its function and powers,

composition and other related aspects.11 Section 2 (d) of the Act defines human rights

as rights relating to life, equality and dignity of the individual guaranteed by

Constitution or embodied in the international covenants and enforceable by Courts in

India. The Indian Constitution provides certain rights for individuals in Part III of the

Constitution, which are known as the fundamental rights. Part IV sets out the Directive

Principles of State Policy. While the former guarantees certain rights to the individual,

9
The Human Rights Commission of Sri Lanka was established under the Human Rights Commission
of Sri Lanka Act, No. 21 (1996) and became operational in September 1997. The National Human
Rights Commission (NHRC) of Nepal is an independent and autonomous statutory body established in
the year 2000 under the Human Rights Commission Act 1997.
10
The fourteen States are: Assam, Chhattisgarh, Himachal Pradesh, Jammu & Kashmir, Kerala
Madhya Pradesh, Maharashtra, Manipur, Orissa, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh and
West Bengal. See http://www.nhrc.in, visited on 25 October 2019.
11
See, The Protection of Human Rights Act 1993 with Procedural Regulations.
the latter gives direction to the State to provide economic and social rights to its people

in specified manner. The word fundamental means that these rights are inherent in all

the human beings and basic and essential for the individual. However, the rights

guaranteed in the Constitution are required to be in conformity with the International

Covenant on Civil and Political Rights and International Covenant on Economic, Social

and Cultural Rights in view of the fact that India has become a party to these Covenants

by ratifying them. The justiciability of fundamental rights is itself guaranteed under the

Indian Constitution. The responsibility for the enforcement of the fundamental rights

lies with the Supreme Court by virtue of Article 32 and by Article 226 to the High

Courts.

Functions

The NHRC to perform the following functions:

i. Proactively or reactively inquire into violations of human rights or negligence

in the prevention of such violation by a public servant;

ii. by leave of the court, to intervene in court proceeding relating to human rights;

iii. to visit any jail or other institution under the control of the State Government,

where persons are detained or lodged for purposes of treatment, reformation or

protection, for the study of the living conditions of the inmates and make

recommendations;

iv. review the safeguards provided by or under the Constitution or any law for the

time being in force for the protection of human rights and recommend measures

for their effective implementation;

v. review the factors, including acts of terrorism that inhibit the enjoyment of

human rights and recommend appropriate remedial measures;

 vi. to study treaties and other international instruments on human rights and make

recommendations for their effective implementation;

vii. undertake and promote research in the field of human rights;

viii. engage in human rights education among various sections of society and

promote awareness of the safeguards available for the protection of these rights

through publications, the media, seminars and other available means;

ix. encourage the efforts of NGOs and institutions working in the field of human

rights,

x. such other function as it may consider it necessary for the protection of human

rights;

xi. requisitioning any public record or copy thereof from any court or office.

State Human Rights Commission

The Protection of Human Rights Act of 1993 provides for the creation of State Human

Rights Commission at the state level. A State Human Rights Commission can inquire

into violation of human rights related to subjects covered under state list and concurrent

list in the seventh schedule of the Indian constitution.

According to the protection of Human Rights Act, 1993; below are the functions of

State Human Rights Commission:

i. Inquire suo motu or on a petition presented to it, by a victim, or any person on

his be into complaint of violation of human rights or negligence in the

prevention of such violation by a public servant.

ii. Intervene in any proceeding involving any allegation of violation of human

rights before a Court with the approval of such Court.

 iii. Visit any jail or any other institution under the control of the State Government

where persons are detained to study the living conditions of the inmates and

make recommendations thereon.

iv. Review the safeguards provided by or under the constitution of any law for the

time being in force for the protection of human rights and recommend measures

for their effective implementation.

v. Review the factors, including acts of terrorism that inhibit the enjoyment of

human rights and recommend appropriate remedial measures.

vi. Undertake and promote research in the field of human rights.

vii. Spread human rights literacy among various sections

viii. of society and promote awareness of the safeguards available for the protection

of these rights.

ix. Encourage the efforts of Non-Governmental organizations and institutions

working in the field of human rights.

x. Undertake such other functions as it may consider necessary for the promotion

of human rights.

Role of Judiciary

Article 32(2) of the Constitution provides that the Supreme Court shall have the power

to issue directives or writs in the nature of habeas corpus, mandamus, prohibition, quo

warranto and certiorari for the enforcement of any of the fundamental rights. Article

226(1) of the Constitution confers similar power on the High Courts to issue directions

or orders or writs for the enforcement of any of the fundamental rights and for any other

purpose. The judiciary acts as the final interpreter, protector, guardian and guarantor of

the fundamental rights of every citizen. The Supreme Court has laid down the need for
just, fair, reasonable procedure and adequate safeguards against the encroachment by

the State on personal liberty of citizens, free legal aid to the poor and speedy trial in

several decided cases. The court stands between the individuals and the State. It protects

the human rights of the individual from any unjustified interference. For the existing

judicial process Public Interest Litigation is a new approach. The traditional rule of

locus standi has been liberalized by the Supreme Court while invoking Article 32 of

the Constitution. Writ of Habeas Corpus may be filed by a person other than the victim.

However, the petitioner shall not be a complete stranger. Even the court has relaxed the

traditional rule of locus standi which allowed exclusively the aggrieved person who had

suffered a specific injury. The Supreme Court has even taken cognizance of letters from

individuals complaining of the infraction of fundamental rights and has treated such

letters as writ petitions. The High Court also entertains public interest litigation under

Article 226 of the Constitution which can be regarded as a strategic arm of the legal aid

movement. Public Interest Litigation is intended to bring justice to the poor masses who

constitute the low visibility area of humanity. The State or public litigation machinery

should be as much interested in ensuring basic human rights, constitutional as well as

legal, to those who are in a socially and economically disadvantaged position, as the

petitioner who brings the public interest litigation before the court. Thus the legal aid

movement and public interest litigation seek to bring justice, feeling of humanity and

awareness to the poor and ignorant mass of India about their human rights.
Conclusion

For a good and prosperous India, the status of her inmates is very important. India is

becoming a super power in the field of technology, scientific discovery, but still

majority of the population are facing serious obstacles to acquire even their basic rights.

Various superstitious beliefs are still practicing in rural India which obstructs the

overall progress of society. So, proper steps must be taken from all corners to improve

the position of Human Rights.

References

Articles referred:

 Human Rights Watch: World Report (India), 2019

 Amnesty International, India: Detention of Kashmiri politician is ‘blatant abuse

of the law’, 17 September 2019.

 Human Rights Watch, India: Free Kashmiris Arbitrarily Detained, 16

September 2019.

Books referred:

 Dr H.O. Agarwal, International Law and Human Rights (Central Law

Publication, 21st edn., 2016).

 N.K. Jayakumar, International Law and Human Rights (Lexis Nexis, 1st edn.,

2011).