HUMAN RIGHTS STUDY MATERIAL

Human Rights constitute a concept that has been constantly evolving throughout human
history. They were intricately tied to the laws, customs and religions throughout the ages. To
understand the meaning of human rights we have to examine the diverse implications of the
term ‘rights’. It could either be a positive right or a moral right, though the two need not be
mutually exclusive. Rights, to which we are entitled to because they have been conferred
upon us by the laws of the country, and can be taken away from us only by the revocation of
the relevant legislation, are called positive rights. Positive rights are facts and are what people
actually have.

Moral rights, even if they are not guaranteed by the legislation of the country, are principled
rights which appeal to the ethical and emotional feelings of every human being. Though
moral rights are not enforceable they have an ethical compulsion to which human beings
would normally be responsive. They cannot be revoked; they are inalienable rights that we
acquire by the very fact that we are human beings. Therefore, human rights fall under the
category of ‘moral rights’ due to the very fact that they cannot be taken way or revoked by
any power or authority. They belong to a person simply because he/she is a human being.
‘Human Rights’ is a fairly new name for what were formerly called natural rights and the
rights of man. It was Eleanor Roosevelt, who in the 1940s promoted the use of the expression
human rights when she found that the term rights of men did not always include the rights of
women.

Natural Law and Natural Rights

Human rights can be seen as progeny of the natural law theory. Its origins can be traced back
to the Stoic philosophers and of course to the Judaic and Christian sources of European
culture. Citizens of several Greek city-states enjoyed such rights as isogoria or equal freedom
of speech and isonomia or equality before the law. Stoic philosophers reformulated them as
universal rights, which men were entitled to enjoy under all forms of government and at all
times. They maintained that the source of this law was not civil law but a higher law which
reason and nature together revealed to men.

The modern school of natural law emerged in the medieval times with the writings of the
early Christian philosophers. For instance, St. Thomas Aquinas maintained that natural law
was that part of God’s perfect law which could be divined through the employment of
rationality. At that time the basis of natural law was theistic and belief in the deity was
mandatory.

The next phase in the development of natural law was to sever it from its theistic origin and
to make it a product of enlightened secular rational thought. This task was undertaken by
Hugo Grotius (1583-1645) who argued that it was possible to visualise the existence of
natural law, which was the basis of all positive or written law. He stated that all rules were
ascertainable by the application of ‘right reason’ and did not depend on the deity for their
validity.

Thomas Hobbes (1588-1679) was among the first to produce a genuine account something
called ‘natural rights’. His work Leviathan transposed the idea of natural rights into
individualist terms. John Locke (1632-1704) developed the idea further when he argued that
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men have a natural right to life, liberty and property. He observed that no government can
deprive individuals of these rights since they enjoyed them even before the creation of the
political society. Jean-Jacques Rousseau (1712-1778) harped on the intrinsic qualities of
natural rights. He was of the opinion that rights derived from natural law dwelt within the
people as a collective and could be identified by reference to the General Will.

Due to the revolutionary climate of the 18th century the stress was on natural rights as a
philosophy of protest and on the individual in the abstract. Rights were presumed to be
intrinsic to individuals who were regarded in the abstract to be good, reasonable and
essentially peaceful. They were kept in bondage, ignorance and suffering by wicked
sovereigns and aristocrats. It was felt that revolutions could correct social evils and lead to
the restoration of the era where people would live happily ever after.

From 18th century onwards natural rights developed three clear-cut directions – civil, political
and social. Civil rights assured civil liberties, property, the right to justice and right to
conclude valid contracts. Political right essentially meant the right to vote. Social rights are
economic in their dimensions, relating to a minimum of economic welfare and to acquire
those basic material needs, recognized by society as necessary for civilized living.

One of the major criticisms directed at the natural rights theory was that it was not
scientifically verifiable. When the individualism of the 17th and 18th centuries came to be seen
as abstract and unhistorical, many Europeans believed that social reality was to be found in
cultural groups such as nations. Some put forth the idea that rights belonged not to
individuals but to communities or nations. Gradually a new school of natural rights arose to
oppose governmental activities and to assert property rights.

Natural rights theory has the merit of providing the basis for a system of law that is allegedly
superior to the law of the state and to which appeal may be made if it appears that the latter is
unjust, arbitrary or oppressive. The outrageous excesses before and during the Second World
War revived the natural rights movement and the subsequent drafting of the major
international human rights instruments.

Classification of Human Rights

Human rights have traditionally been divided into different categories. The traditional
classification is as follows:

• The first generation refers to civil and political rights;

• The second generation comprises economic, social and cultural rights; and,
• The third generation refers to newer rights like collective rights.

1. First Generation Rights

Civil Rights

Civil rights are primarily designed to protect the individual against state interference, and are
immediately applicable. They include the protection of life and security (i.e. the right to life,
prohibition of torture and inhuman treatment or punishment, etc.); the prohibition of
discrimination on any ground (such as race, sex, language, religion, political or other opinion,

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national or social origin, property, birth or other status); the protection of liberty (i.e.,
prohibition of arbitrary arrest and detention); and a set of freedoms (such as freedom of
movement, of marriage, of religion, of peaceful assembly, of association, etc.). Civil rights
can therefore be seen as the protections and privileges (rights and freedoms) that protect
individuals from the state, thus ensuring their personal liberty.

Though distinct, civil rights and political rights are closely linked; the protection and
fulfillment of one depends to a large extent on the fulfillment and protection of the other.
Moreover, the distinction between civil and political rights is not always so obvious or clear;
sometimes the two overlap.

All human rights are indivisible, interdependent and interrelated: the fulfillment and
protection of civil and political rights depend on, and are required for, other categories of
human rights.

In international human rights law, civil rights are essentially protected by the International
Covenant on Civil and Political Rights (ICCPR), which was drafted in 1966 and entered into
force in 1976. Adherence to the Covenant is monitored by the Human Rights Committee.
Over time, additional protocols and instruments were created which also aim to protect civil
rights.

All States Parties to the Covenant are required to submit regular reports to the Committee on
how they are implementing civil and political rights. Such information is provided by self-
reporting and, thus, can be limited. The reports provided are examined by the Committee
which is composed of independent experts appointed by the United Nations. The Committee
then addresses its concerns and recommendations in the form of "concluding observations."
In the First Optional Protocol to the Covenant, the Committee was given jurisdiction to
examine individual complaints; this is not yet the case with the Committee established to
monitor economic, social and cultural rights

Political Rights
Political rights, along with civil rights, are primarily designed to protect the individual against
state interference, and are immediately applicable. Political rights can be seen as covering the
right to political participation, that is, citizens’ right to seek to influence and participate in the
public affairs of the society to which they belong. Political participation can take many forms,
the most notable of which is included in the right to vote. However, it also covers the right to
join a political party; the right to stand as a candidate in an election; the right to participate in
a demonstration; and freedom of association. Though political and civil rights are distinct, the
difference between the two is not always obvious or clear; indeed, they sometimes overlap.
The freedom to express one’s opinion, and the freedom of association, for example, are
clearly linked to the right to political participation, and thus are political rights, but they are
often also seen as civil rights.

The right to political participation merits special attention, as it is restricted, to a large though
not absolute extent, to citizens. Whereas the other rights recognised by the UN Charter, the
Universal Declaration of Human Rights, and the International Covenant on Civil and Political
Rights inhere in human beings on the basis of their status as human beings, the right to
political participation is, in part, limited to people endowed with the status of citizen. Such a

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status is linked to the context of a political community and, most significantly, a government.
The right to political participation therefore presupposes the existence of a government.

Though distinct, civil rights and political rights are closely linked; their protection and
fulfillment depends to a large extent on that of the other. All human rights are indivisible,
interdependent and interrelated, such that the fulfillment and protection of civil and political
rights depends on, and influences, other categories of human rights.

In international human rights law, political rights are protected by the International Covenant
on Civil and Political Rights (ICCPR). The ICCPR, drafted in 1966, entered into force in
1976, and is monitored by the Human Rights Committee. Over time, additional protocols and
instruments have been created that also aim to contribute to the protection of political rights.

All States Parties to the Covenant are required to submit regular reports to the Committee on
how they are realising and protecting political and civil rights. Such information is provided
through self-reporting and thus might be limited. The reports provided are examined by the
Committee, which then disseminates its concerns and recommendations in the form of
“concluding observations.” In the framework of the First Optional Protocol to the Covenant,
the Committee was given jurisdiction to examine individual complaints; however, this is not
yet the case of the Committee set up to monitor economic, social and cultural rights.

2. Second Generation Rights

Economic rights include the right to work, the right to the free choice of employment and to
just and favourable conditions of work; the right to form and join trade unions: the right to
strike; the right to social security; and the right to own property.

Contrary to civil and political rights, which are immediately applicable and essentially based
on the prohibition of States from doing something (i.e., resort to torture, take actions that
curtail freedom of speech, freedom of religion, or the right to vote, etc.), economic rights tend
to be considered as requiring States to take action, usually in the form of specific legislation,
policies or programmes, so those rights can be realised. The realisation of those rights is seen
as progressive: “full economic, social, and cultural rights can be achieved only gradually.
Resources and time may be required”, though international legislation clearly states that full
rights should be reached over time, and that States have a legal obligation to take immediate
and continued action to do so. Moreover, any action, whether legal or political, taken to
diminish existing protections and levels of realisation of these rights should be prohibited.

All human rights are indivisible, interdependent and interrelated, and the fulfillment and
protection of one right affects that of others. This is true among all rights and among or
within specific categories of rights. For instance, economic rights are closely linked to social
and cultural rights. The right to work, for example, is connected to that of ensuring minimum
standards of living, etc. Just as the distinction between civil and political rights is sometimes
blurred, the difference between economic, social, and cultural rights is not always obvious.
For example, the right to education has been considered by different experts as an economic,
social or cultural right.

In international human rights law, the realisation of economic rights is provided for in
Chapter IX of the UN Charter and in the Universal Declaration of Human Rights, the
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International Covenant on Economic, Social and Cultural Rights (CESCR), the International
Labour Organisation, and various regional documents.

The CESCR is monitored by the Committee on Economic, Social and Cultural Rights, which
is composed of independent experts appointed by the United Nations. The Committee is
responsible for monitoring the implementation of the Covenant by its States Parties. They are
required to submit regular reports on how they are implementing these rights. Such
information is provided through self-reporting and thus may be limited. The reports provided
are examined by the Committee, which then elaborates “concluding observations” in which it
addresses its potential concerns and recommendations. To date, the Committee is not enabled
to consider individual complaints against States Parties, though a draft Optional Protocol,
under consideration, could provide the Committee with the jurisdiction to do so.

Social rights are primarily aimed at ensuring individuals a specified standard of living,
without discrimination. Social rights include the right to social security; the right of families,
of mothers before and after childbirth, and of children to special assistance and protection;
the right to an adequate standard of living, including the right to adequate food, clothing and
housing; and the right to health.

Contrary to civil and political rights, which are immediately applicable and essentially based
on the prohibition of States to do something, such as resort to torture, take actions that curtail
freedom of speech, freedom of religion, or the right to vote, social rights tend to be
considered as requiring States to take active and specific measures, such as legislation,
policies or programmes, in order for those rights to be realised. Social rights are regarded as
progressive: “full economic, social, and cultural rights can be achieved only gradually.
Resources and time may be required”, though it is also clearly stated that full rights should be
reached over time, and that States have the legal obligation to take immediate and continued
action to do so. In addition, any action, whether legal or political taken to diminish existing
protections and levels of realisation of these rights should be prohibited.

Human rights are indivisible, interdependent and interrelated, and thus the fulfillment and
protection of one right affects that of others. This is true when all human rights are
considered, as well as for specific categories of rights.

For instance, social rights are closely linked to economic and cultural rights in so far as the
promotion of a minimum standard of living is strongly related to the right to work, the
protection of property, and the right to education. Just as the distinction between civil and
political rights is sometimes blurred, the difference between economic, social, and cultural
rights is not always obvious. For instance, different experts regard the right to education as a
social, economic or cultural right.

In international human rights law, social rights are protected by the International Covenant on
Economic, Social and Cultural Rights (CESCR). The CESCR, drafted in 1966, entered into
force in 1976 and is monitored by the Committee on Economic, Social and Cultural Rights,
which is composed of independent experts appointed by the United Nations.

The Committee on Economic, Social and Cultural Rights is responsible for monitoring the
implementation of the Covenant by its States Parties, which are required to submit regular
reports on how they are implementing these rights. Such information is provided through
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self-reporting and thus might be limited. The reports provided are examined by the
Committee, which then issues “concluding observations” in which it addresses its concerns
and recommendations. To date, the Committee is not enabled to consider individual
complaints against State Parties, though a draft Optional Protocol, under consideration, could
provide the Committee with the jurisdiction to do so.

Cultural Rights: There is no simple definition of the right to culture, though the right to
express and enjoy one’s culture does exist. International legislation recognises, as cultural
rights, the right to take part in cultural life; the right to enjoy the benefits of scientific
progress and its applications; the right to benefit from the protection of the moral and
material interests resulting from any scientific, literary or artistic production of which he/she
is the author; etc.

Contrary to civil and political rights, which are immediately applicable and essentially based
on the prohibition of States to do something (i.e., resort to torture, take actions that curtail
freedom of speech, freedom of religion, or the right to vote, etc.), cultural rights tend to be
considered as requiring States to take active and specific measures, such as legislation,
policies or programmes, so that those rights can be realised. Their realisation is seen as
progressive: “full economic, social, and cultural rights can be achieved only gradually.
Resources and time may be required”, though it is also clearly stated that full rights should be
reached over time, and that States have a legal obligation to take immediate and continued
action to do so. Moreover, any action, whether legal or political, taken to diminish existing
protections and levels of realisation of these rights should be prohibited.

All human rights are indivisible, interdependent and interrelated: the fulfillment of one right
affects that of others. This is true in general as well as specifically, that is among all rights,
and among or within categories of rights. Cultural rights are closely linked to social and
economic rights, and the difference among all three is not always obvious. For instance, the
right to education has been considered by different experts as a social, economic or cultural
right.

In international human rights law, cultural rights are essentially protected by the International
Covenant on Economic, Social and Cultural Rights (CESCR). This Covenant is monitored by
the Committee on Economic, Social and Cultural Rights, which is composed of independent
experts appointed by the United Nations. The Committee is responsible for monitoring the
implementation of the Covenant by its States Parties. These States are required to submit
regular reports on how they are implementing these rights. It should be stressed here that such
information is provided through self-reporting and thus can be limited. The reports provided
are examined by the Committee, which then elaborates “concluding observations” in which it
addresses its concerns and recommendations. To date, the Committee is not enabled to
consider individual complaints against States Parties, though a draft Optional Protocol, under
consideration, could provide the Committee with the jurisdiction to do so.

3. Third-generation human rights

Third-generation human rights are those rights that go beyond the mere civil and social, as
expressed in many progressive documents of international law, including the 1972 Stockholm
Declaration of the United Nations Conference on the Human Environment, the 1992 Rio
Declaration on Environment and Development, and other pieces of generally aspirational
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"soft law." Because of the principle of sovereignty and the preponderance of would-be
offender nations, these rights have been hard to enact in legally binding documents.

The term "third-generation human rights" remains largely unofficial, and thus houses an
extremely broad spectrum of rights, including:

• Group and collective rights

• Right to self-determination
• Right to economic and social development
• Right to a healthy environment
• Right to natural resources
• Right to communicate and communication rights
• Right to participation in cultural heritage
• Rights to intergenerational equity and sustainability

Group rights are the rights held by a group rather than by its members severally, or rights
held only by individuals within the specified group; contrast with individual rights. Group
rights are not straightforwardly human rights because they are group-differentiated rather
than universal to all people just by virtue of being human. Group rights have historically been
used both to infringe upon and to facilitate individual rights, and the concept remains
controversial.

The term group rights may also be used to describe peoples' rights, a legal concept best
known in the context of indigenous rights as established in the Declaration on the Rights of
Indigenous Peoples.

Much of the controversy surrounding group rights stems from the fact that some
commentators perceive a fundamental conflict between group rights as a social norm or legal
concept, and the concept of egalitarianism or equality before the law. The principle of
equality is enshrined in the Universal Declaration of Human Rights which states in Article 1:

"All human beings are born free and equal in dignity and rights." and Article 2 states:
"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status".

This means that the relationship between group rights and human rights is both complex and
controversial.

Evolution of the Human Rights Discourse

A. Early Developments

a) The Magna Carta

Rebellious barons required that King John of England approve the Magna Carta (Latin for
“the Great Charter”) in 1215. Many consider the document to be the foundation of English
constitutional government and individual liberties. By the end of the Middle Ages the charter
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had become binding legal precedent in the English law courts and a check on royal authority
as it was reaffirmed, with modifications, by successive monarchs.

The Magna Carta is viewed as the first public act of an emerging nation-state and a
revolutionary declaration of not only the privileges of powerful lords, but also the judicial,
political, and commercial rights of Englishmen of every rank. Moreover it is seen as a
subsequent barrier to absolutism in England, through recognition of a collective national will
and the concept of the rule of law, and the forerunner to parliamentary supremacy and future
democratic achievements, including the Constitution of the United States. Others view it as
chiefly an affirmation of existing feudal obligations forced on an administratively able, yet
unlucky king by self-interested barons.

The roots of the Magna Carta are traceable to the reign of John’s father, the energetic and
imaginative Henry II, the first ruler of the Plantagenet dynasty and “the father of the common
law.” As a part of his successful centralization of power following years of civil war and
chaos, Henry II forged a national legal system through uniformity of legal rules and roving
royal courts at the expense of manorial tribunals applying haphazard local customs and
dominated by individual lords. Ironically this concentration of power by regularization of the
law would be the impetus for constraining Henry’s less just son. Although deprived of their
judicial power, the baronage came to appreciate predictable legal standards, impartial courts,
and objective regulation of feudal obligations, especially after John abused them.

These abuses included unprecedented taxation, exorbitant feudal fines, misuse of royal
authority over warships and marriages, illegal confiscation of baronial lands, and arbitrary
judicial rulings. Discontent with John’s rule, limited to the lords, the lower aristocracy and
many townspeople objected to his oppression, taxation, and disregard of custom. Therefore
barons sought to preserve the law as a way to curb John and prevent the consolidation of a
tyrannical order. Thus what was once a method of Henry II to extend royal authority became
the means of limiting it.

The Magna Carta can be seen as a conservative reaction to Henry’s misrule. John is not
totally to blame for the debacle of 1215, for he came to the throne in 1199 without the
popularity of his charismatic brother and predecessor, the crusading Richard I the
Lionhearted and was encumbered with an empty treasury, rampant inflation, and the moniker
“John Lackland” because of the absence of a bequest of territory from his father. Hindered by
a reputation for untrustworthiness, rumours that he had usurped the throne by murdering his
nephew, and his excommunication in 1209 over disputes with the church, John saw his loss
of his possessions of Normandy and Anjou, the heart of the Angevin empire, to the French
King Philip II Augustus become disastrous. With these military defeats of 1203–04, a
humiliated John turned to strengthening his control of England and raising funds to finance a
new French campaign. When this campaign failed miserably and he was forced to pay tribute
to the French king, John returned to England discredited, broke, and determined to squeeze
all the funds he could from his English domain.

Unlike earlier disputes between English kings and their barons, discontent involved neither
rival claimants to the Crown nor jealous factions of the royal family. This proved beneficial
to the barons, for instead of fighting for a personage or power, they claimed to be defending
the entire realm and its traditions. At a conference with the king in January 1215 at London,
the barons demanded that John reaffirm his coronation oath and institute reforms. But John,
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who had asked the pope to side with him and was preparing for battle, demanded that the
barons make a new oath of allegiance. Instead the barons mobilized for war and renounced
their fealty to the king at Northampton on May 5. Under the leadership of Robert FitzWalter,
the rebels were welcomed into London by the populace on June 10 as John fled to his
stronghold of Windsor Castle. After much negotiation, and the departure of disgruntled
northern lords, John consented to terms on June 15 in the meadow of Runnymede near
Windsor and his seal was affixed to the document.

On June 19 the barons reaffirmed their loyalty. The Magna Carta, first known as the “Articles
of the Barons,” contained 63 articles restricting royal power, clarifying feudal
responsibilities, and guaranteeing certain rights, including those of the church. More
particularly it provided redress of grievances concerning land, asserted the authority of the
Great Council to block abusive taxation, required that the courts stay fair and open, asserted
commercial rights beneficial to middle-class merchants, and required the restraint of royal
officials. It even protected widows from being compelled to marry.

It was remarkably visionary in that it recognized the judicial due process rights of all
Englishmen, not just the aristocracy. Enforcement was provided through a council of 25
barons with the legal authority to make war on the king if necessary.

In keeping with his reputation John never intended to abide by the document and was only
buying time. He soon prepared for renewed resistance and won a pronouncement from the
pope declaring the Magna Carta void because he agreed to it under duress. But there was no
turning back. Although it failed as a peace treaty, the Magna Carta swiftly commanded a
reverence and majesty of its own and became an indelible part of the English constitution.
John died in 1216, while once again fleeing his barons.

b) The American Bill of Rights

The American Revolution (1775-1783), was the result of conflict between 13 British colonies
in North America and their parent country, Great Britain. It was made up of two related
events: the American War of Independence (1775-1783) and the formation of the American
government as laid out by the Constitution of the United States in 1787. First, the war
achieved independence from Great Britain by the colonies. Second, the newly created United
States of America established a republican form of government, in which power resided with
the people.

In the summer of 1787, delegates from the 13 states convened in Philadelphia and drafted a
remarkable blueprint for self-government - the Constitution of the United States. The first
draft set up a system of checks and balances that included a strong executive branch, a
representative legislature and a federal judiciary.

The Constitution was remarkable, but deeply flawed. For one thing, it did not include a
specific declaration - or bill - of individual rights. It specified what the government could do
but did not say what it could not do. For another, it did not apply to everyone. The "consent
of the governed" meant propertied white men only. The American Bill of Rights, inspired by
Jefferson and drafted by James Madison, was adopted, and in 1791 the Constitution's first ten
amendments became the law of the land.

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A Summary of the Bill of Rights

The most important rights protected by the U.S. Bill of Rights are contained in the 1st
Amendment. It provides that Congress shall make no law respecting an establishment of
religion or prohibiting its free exercise, or abridging freedom of speech or press or the right to
assemble and petition for redress of grievances. These rights are the core rights protected by
the system of ordered liberty established by the Bill of Rights. Under the 1st Amendment, the
domain of "liberty," withdrawn from federal encroachment, was enlarged to include liberty of
mind beliefs.

The 2nd and 3rd amendments reflect the colonists' hostility toward standing armies; they
guarantee the people's right to bear arms and limit the quartering of soldiers in private homes.

The 4th Amendment is aimed at the abuses the colonists had suffered from writs of assistance
and general warrants; it secures the people against unreasonable searches and seizures and
requires warrants to be specific and issued only upon probable cause.

The 5th Amendment requires grand jury indictments in major criminal prosecutions and
prohibits trying a person twice on the same charge or requiring that person to testify against
himself or herself; it forbids taking of private property for public use without just
compensation and forbids deprivation of life, liberty, and property without due process of
law. The due process concept was a major step forward; since then, due process has served as
the principal constitutional tool for the protection of rights not defined in the Bill of Rights.

The 6th Amendment protects criminal defendants; it guarantees the accused a speedy public
trial by jury and the rights to be informed of the accusation, to be confronted with the
witnesses against the accused, to use compulsory process to secure witnesses, and to have the
assistance of counsel.

The 7th Amendment guarantees jury trials in civil cases; the 8th prohibits excessive bail or
fines or cruel and unusual punishments; the 9th provides that the enumeration of rights in the
Constitution does not deny others retained by the people; and the 10th states the doctrine of
reserved powers--that all powers not delegated to the United States are reserved to the states
or the people.

c) Declaration of the Rights of Man and Citizen

It is a fundamental document of French constitutional history, drafted by Emmanuel Sieyès.

The declaration was adopted in 1789 by the National Assembly, a law-making body that was
formed at the start of the French Revolution (1789–99) and late re-embodied in the French
constitution of 1791 as a preamble. Its framers were much influenced by the American
Declaration of Independence and by the philosophes. It was based on the motto of the French
Revolution—"liberty, equality, and fraternity"). The French declaration listed the “inalienable
rights” of the individual (a list of duties was, after some debate, omitted by its framers)., The
basic principle of the Declaration was that all “men are born and remain free and equal in
rights” (Article 1), which were specified as the rights of liberty, private property, the
inviolability of the person, and resistance to oppression (Article 2). All citizens were equal
before the law and were to have the right to participate in legislation directly or indirectly
(Article 6); no one was to be arrested without a judicial order (Article 7). Freedom of religion
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(Article 10) and freedom of speech (Article 11) were safeguarded within the bounds of public
“order” and “law.” The document reflects the interests of the elites who wrote it: property
was given the status of an inviolable right, which could be taken by the state only if an
indemnity were given (Article 17); offices and position were opened to all citizens (Article
6). Many of its provisions were aimed at specific abuses of the ancien régime. The
declaration had immense effect on liberal thought in the 19th cent.

B. International Treaties and Conventions

a) International Bill of Rights

i. Universal Declaration of Human Rights (UDHR)

Although the world had made great progress in defining human rights, it was the events of
the late 1930’s and early 1940’s that threatened humanity’s most firmly held convictions. By
the end of World War II, six million Jews – of whom more than a million were children not
yet in their teens -- were killed in Nazi concentration camps, gas chambers and extermination
centers. In the middle of the 20th century, at the hands of a technologically advanced,
cultured nation-state, the idea of human rights was simply extinguished.

The results of the Nazi attempt to annihilate all the Jews of Europe and to enslave and destroy
millions of others as well -- Poles, gypsies, Soviet prisoners of war, homosexuals, the
mentally and physically handicapped and political opponents -- had shocked leaders and
citizens throughout all cultures and societies of the post-war world. Winston Churchill called
the Nazi atrocities a "crime without a name." In the early 1940’s, a Polish lawyer named
Raphael Lemkin coined the word "genocide."

The Holocaust altered forever the way in which people considered human rights. Prior to
World War II the prevalent attitude had been that the protection of human rights was
primarily a domestic concern, that is, a concern of sovereign governments. After World war
II it was felt that human rights be made a universal concern, that is, a concern of all human
beings. The world united to defeat fascism and to secure human rights for everyone and
everywhere. A need was felt to codify human rights.

Following the Second World War the United Nations was formed and it was charged with the
duty of what Winston Churchill called the “enthronement” of the rights of man.
It was thus within the context of World War II and in the presence of the people of different
nations that the United Nations Charter was written. And, it was at this 1945 "Conference on
International Organization", that the governments of the world legally committed themselves
to promote and encourage respect for the inalienable human rights that belong to every man,
woman and child. While many advocates had wanted to see a specific "bill of rights"
included in the UN Charter, overall, human rights advocates were pleased with the initial
commitments made, for they confirmed the United Nations’ intent to preserve human rights
both in principle and in practice.

The UN Charter gave human rights a new international legal status. The preamble to the
Charter reaffirmed the faith of the people of the United Nations in fundamental human rights,
in the dignity and worth of the human person and in the equal rights of man and woman. It
mentioned human rights five times, first in the Preamble, which identifies human rights as
11
one of the four founding purposes of the United Nations. The Charter’s first article declares
that UN member states must work to "achieve international cooperation . . . in promoting and
encouraging respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language or religion." Article 55 states the UN will promote
"universal respect for, and observance of, human rights and fundamental freedoms," and
Article 56 states that members "pledge themselves to take joint and separate action" to
achieve that respect. The UN Charter also takes the first important steps toward implementing
genuine protection of human rights. However the Charter was not a binding Instrument. It
merely stated the ideal to be realized and implementation remained beyond its ambit.
Subsequently, ‘The Universal Declaration of Human Rights’ was adopted as an enduring
international commitment to human rights. It was adopted and proclaimed by General
Assembly Resolution 217 A (III) of 10 December 1948.

This Declaration of the General Assembly was the first enumeration of universal human
rights ever agreed to by nation states. It declares that everyone has equal and inalienable
human rights, arising from the inherent dignity of all humanity, and lists a broad range of
civil, political, economic, social and cultural rights. Although the Declaration was a statement
of principle and hope, and was not meant to be legally binding, many of the rights in the
Declaration have become customary international law because they have been so widely
recognized as law. It is, in its own words, ‘a common standard of achievement for all peoples
and all nations…’, so that ‘keeping this Declaration constantly in mind, (all) shall strive by
teaching and education to promote respect for these rights and freedoms…’ Further, the
UDHR has served as a starting point for all the human rights conventions that have since
been agreed to as binding instruments. The UDHR, ICCPR and ICESCR are together known
as the International Bill of Rights.

The Universal Declaration of Human Rights is a profoundly important document for people
all over the world because it is founded on three key principles.

• Human rights are inalienable: no one can ever take them away from you.

• Human rights are also indivisible: you cannot be entitled to some of them and denied
others.

• Finally, human rights are interdependent: they are all part of a larger framework and
work together so you can enjoy a safe, free, and productive life.

Yet the Universal Declaration of Human Rights itself is not a document that is legally
binding. Countries that have signed the Universal Declaration of Human Rights cannot be
held legally responsible if they break their promise to protect and preserve human rights and
freedoms. The Declaration is a standard for countries to follow. It expresses the basic
principles and ideals that the world holds for human rights.

Universal Declaration of Human Rights (UDHR) is the first part of the International Bill of
Human Rights, it sets out the fundamental human rights of every human beings.
The content of the UDHR could be divided Article 14: Everyone has the right to seek and
into: to enjoy in other countries asylum from
persecution. This right may not be invoked in
Preamble, Articles 1 & 2: Opening articles the case of prosecutions genuinely arising
12
(Equality & Non-discrimination), Articles 3 – from non-political crimes or from acts
21: Civil and Political Rights, Articles 22 – contrary to the purposes and principles of the
27: Economic, Social and Cultural Rights, United Nations.
Article 28 Solidarity Rights, and Article 29 &
30: Closing Articles (Duties and Limitations) Article15: Everyone has the right to a
nationality. No one shall be arbitrarily
Article 1: All human beings are born free and deprived of his nationality nor denied the
equal in dignity and rights. They are right to change his nationality.
endowed with reason and conscience and
should act towards one another in a spirit of Article 19: Everyone has the right to freedom
brotherhood. of opinion and expression; this right includes
freedom to hold opinions without
Article 2: Everyone is entitled to all the rights interference and to seek, receive and impart
and freedoms set forth in this Declaration, information and ideas through any media and
without distinction of any kind, such as race, regardless of frontiers.
colour, sex, language, religion, political or Article 21: Everyone has the right to take part
other opinion, national or social origin, in the government of his country, directly or
property, birth or other status. through freely chosen representatives.
Furthermore, no distinction shall be made on Everyone has the right to equal access to
the basis of the political, jurisdictional or public service in his country. The will of the
international status of the country or territory people shall be the basis of the authority of
to which a person belongs, whether it be government; this will shall be expressed in
independent, trust, non-self-governing or periodic and genuine elections which shall be
under any other limitation of sovereignty. by universal and equal suffrage and shall be
held by secret vote or by equivalent free
Article 3: Everyone has the right to life, voting procedures.
liberty and security of person.
Article 29: Everyone has duties to the
Article 5: No one shall be subjected to torture community in which alone the free and full
or to cruel, inhuman or degrading treatment development of his personality is possible. In
or punishment. the exercise of his rights and freedoms,
everyone shall be subject only to such
Article 7: All are equal before the law and are limitations as are determined by law solely
entitled without any discrimination to equal for the purpose of securing due recognition
protection of the law. All are entitled to equal and respect for the rights and freedoms of
protection against any discrimination in others and of meeting the just requirements
violation of this Declaration and against any of morality, public order and the general
incitement to such discrimination. welfare in a democratic society.
Article 13: Everyone has the right to freedom
of movement and residence within the
borders of each State. Everyone has the right These rights and freedoms may in no case be
to leave any country, including his own, and exercised contrary to the purposes and
to return to his country. principles of the United Nations.

ii. ICCPR

13
The International Covenant on Civil and Political Rights (ICCPR)

• This Covenant was adopted by the United Nations General Assembly on 16

December 1966 and entered into force on 23 March 1976. By the end of 2001, the
Covenant had been ratified by 147 states.

• The Covenant elaborates further the civil and political rights and freedoms listed in
the Universal Declaration of Human Rights.

• Under Article 1 of the Covenant, the states commit themselves to promote the right to
self-determination and to respect that right. It also recognises the rights of peoples to
freely own, trade and dispose of their natural wealth and resources.

Among the rights of individuals guaranteed by the Covenant are:

Article 2: The right to legal recourse when Article 18: The freedom of thought,
their rights have been violated, even if the conscience and religion.
violator was acting in an official capacity.
Article 19: The freedom of opinion and
Article 3: The right to equality between men expression.
and women in the enjoyment of their civil
and political rights. Article 20: Prohibition of propaganda
advocating war or national, racial or religious
Article 6: The right to life and survival. hatred.
Article 7: The freedom from inhuman or Article 21: The right to peaceful assembly.
degrading treatment or punishment.
Article 22: The right to freedom of
Article 8: The freedom from slavery and association.
servitude.
Article 23: The right to marry and found a
Article 9: The right to liberty and security of family
the person and freedom from arbitrary arrest
or detention. Article 24: The rights for children (status as
minors, nationality, registration and name).
Article 11: The freedom from prison due to
debt. Article 25: The right to participate in the
conduct of public affairs, to vote and to be
Article 12: The right to liberty and freedom elected and access to public service.
of movement
Article 26: The right to equality before the
Article 14: The right to equality before the law and equal protection
law; the right to be presumed innocent until
proven guilty and to have a fair and public Article 27: The right, for members of
hearing by an impartial tribunal. religious, ethnic or linguistic minorities, to
enjoy their culture, practice their religion and
Article 16: The right to be recognised as a use their language.
person before the law.
The Covenant is legally binding; the Human
Article 17: The right privacy and its Rights Committee established under Article

14
protection by the law. 28, monitors its implementation.

15
 iii. ICESCR

International Covenant on Economic, Social and Cultural Rights (ICESCR)

Cultural Rights (1966), together with the Universal Declaration of Human Rights (1948) and
the International Covenant on Civil and Political Rights (1966), make up the International
Bill of Human Rights. In accordance with the Universal Declaration, the Covenants recognize
that “... the ideal of free human beings enjoying civil and political freedom and freedom from
fear and want can be achieved only if conditions are created whereby everyone may enjoy his
civil and political rights, as well as his economic, social and cultural rights.”

Article 1: All peoples have the right of self- Article 9: Everyone has the right to social
determination, including the right to security, including social insurance.
determine their political status and freely
pursue their economic, social and cultural Article 10: Protection and assistance should
development. be accorded to the family. Marriage must be
entered into with the free consent of both
Article 2: Each State Party undertakes to take spouses. Special protection should be
steps to the maximum of its available provided to mothers. Special measures
resources to achieve progressively the full should be taken on behalf of children,
realization of the rights in this treaty. without discrimination. Children and youth
Everyone is entitled to the same rights should be protected from economic
without discrimination of any kind. exploitation. Their employment in dangerous
or harmful work should be prohibited. There
Article 3: The States undertake to ensure the should be age limits below which child
equal right of men and women to the labour should be prohibited.
enjoyment of all rights in this treaty.
Article 11: Everyone has the right to an
Article 4: Limitations may be placed on these adequate standard of living for himself and
rights only if compatible with the nature of his family, including adequate food, clothing
these rights and solely for the purpose of and housing. Everyone has the right to be
promoting the general welfare in a free from hunger.
democratic society.
Article 12: Everyone has the right to the
Article 5: No person, group or government enjoyment of the highest attainable standard
has the right to destroy any of these rights. of physical and mental health.
Article 6: Everyone has the right to work, Article 13: Everyone has the right to
including the right to gain one's living at education. Primary education should be
work that is freely chosen and accepted. compulsory and free to all.
Article 7: Everyone has the right to just Article 14: Those States where compulsory,
conditions of work; fair wages ensuring a free primary education is not available to all
decent living for himself and his family; should work out a plan to provide such
equal pay for equal work; safe and healthy education.
working conditions; equal opportunity for
everyone to be promoted; rest and leisure. Article 15: Everyone has the right to take part
in cultural life; enjoy the benefits of scientific
Article 8: Everyone has the right to form and progress.
join trade unions, the right to strike.

16
 b) Other Covenants and Treaties

i) Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW)

The Convention on the Elimination of all Forms of Discrimination against Women (the
CEDAW Convention) is a human rights treaty for women. The UN General Assembly
adopted the CEDAW Convention on 19th December 1979. CEDAW is one of the most
highly ratified international human rights conventions, having the support of 180 States
parties. This is one of the many benefits of the CEDAW Convention; it can stand as a treaty
that has achieved a global consensus and thus reflects the normative standards applicable to
women's human rights.

Since its establishment, the Commission on the Status of Women (CSW) has sought to define
and elaborate the general guarantees of non-discrimination in these instruments from a gender
perspective. Originally established in 1946 as a sub-commission of the Commission on
Human Rights, but quickly granted the status of full commission as a result of the pressure
exerted by women's activists. Between 1949 and 1959, the Commission elaborated the
Convention on the Political Rights of Women, the Convention on the Nationality of Married
Women, the Convention on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriages, and the Recommendation on Consent to Marriage, Minimum Age
for Marriage and Registration of Marriages. Each of these treaties protected and promoted the
rights of women in areas in which the Commission considered such rights to be particularly
vulnerable. But it was believed that, except in those areas, women's rights were best protected
and promoted by the general human rights treaties.

Although these instruments reflected the growing sophistication of the UN system with
regard to the protection and promotion of women's human rights, the approach they reflected
was fragmentary, as they failed to deal with discrimination against women in a
comprehensive way. In addition, there was concern that the general human rights regime was
not, in fact, working as well as it might to protect and promote the rights of women. In 1974,
at its twenty-fifth session and in the light of the report of this working group, the Commission
decided, in principle, to prepare a single, comprehensive and internationally binding
instrument to eliminate discrimination against women.

Treaty Summary

Article 1: defines discrimination against
women as any “distinction, exclusion or
restriction made on the basis of sex which
has the effect or purpose of impairing or
nullifying the recognition, enjoyment or
exercise by women, irrespective of marital
status, on the basis of equality between men
and women, of human rights or fundamental
freedoms in the political, economic, social,
cultural, civil, or any other field;
Article 2: mandates States Parties
Article 10: obligates States Parties to end
discrimination in education, including in
professional and vocational training, access
to curricula and other means of receiving an
equal education; as well as to eliminate
stereotyped concepts of the roles of men and
women;
Article 11: mandates the end of
discrimination in the field of employment,
including the right to work, to employment
to opportunities, to equal remuneration, to free

17
condemn discrimination in all its forms and choice of profession and employment, to
to ensure a legal framework, including all social security, and to protection of health,
laws, policies and practices that provide including maternal health, and also in regard
protection against discrimination and embody to discrimination on the grounds of marriage
the principle of equality; Article 3: requires or maternity;
that States Parties take action in all fields -
Article 12: requires steps to eliminate
civil, political, economic, social, and cultural
– to guarantee women’s human rights. discrimination from the field of heath care,
including access to services such as family
Article 5: declares the need to take planning;
appropriate measures to modify cultural
patterns of conduct as well as the need for Article 13: requires that women be ensured
family education to recognize the social the same rights as men in all areas of social
function of motherhood and the common and economic life, such as family benefits,
responsibility for raising children; mortgages, bank loans, and participation in
recreational activities and sports.
Article 6: obligates States Parties to take
measures to suppress traffic in women and CEDAW Committee
the exploitation of prostitution of women. The CEDAW Committee is the UN body that
monitors the implementation of the CEDAW
Article 7: mandates the States Parties to end Convention. It comprises 23 experts who
discrimination against women in political and represent the range of fields of competence
public life, and to ensure women’s equal covered by the CEDAW Convention, as well
rights to vote, be eligible for election, as equitable geographical distribution and
participate in the formulation of policy, hold principle legal systems. States parties submit
office, and participate in associations and initial and periodic reports for the CEDAW
non-governmental organizations in these Committee to review. These reports should
spheres. indicate the legal, administrative and
Article 9 mandates that women will have programmatic measures they have adopted to
equal rights with men to acquire, change, or give effect to the provisions of the CEDAW
retain their nationality and that of their Convention. This review takes place in
children. sessions normally conducted twice a year,
once in January and the other in June.

ii) Convention on the Rights of the Child (CRC)

The Convention on the Rights of the Child is the first legally binding international instrument
to incorporate the full range of human rights—civil, cultural, economic, political and social
rights. In 1989, world leaders decided that children needed a special convention just for them
because people under 18 years old often need special care and protection that adults do not.
The leaders also wanted to make sure that the world recognized that children have human
rights too.

The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out
the basic human rights that children everywhere have: the right to survival; to develop to the
fullest; to protection from harmful influences, abuse and exploitation; and to participate fully
in family, cultural and social life. The four core principles of the Convention are non-
discrimination; devotion to the best interests of the child; the right to life, survival and
development; and respect for the views of the child. Every right spelled out in the Convention

18
is inherent to the human dignity and harmonious development of every child. The Convention
protects children's rights by setting standards in health care; education; and legal, civil and
social services.

Important Articles from CRC

The Convention on the Rights of the Child Article 19: Governments should ensure that
has 54 articles in all. Articles 43-54 are about children are properly cared for, and protect
how adults and governments should work them from violence, abuse and neglect by
together to make sure all children get all their their parents, or anyone else who looks after
rights. them.
Article 1: Everyone under 18 years of age has Article 20: Children who cannot be looked
all the rights in this Convention. after by their own family must be looked
after properly, by people who respect their
Article 2: The Convention applies to religion, culture and language.
everyone whatever their race, religion,
abilities, whatever they think or say, Article 21: When children are adopted the
whatever type of family they come from. first concern must be what is best for them.
Article 5: Governments should respect the Article 22: Children who come into a country
rights and responsibilities of families to as refugees should have the same rights as
direct and guide their children so that, as they children born in that country.
grow, they learn to use their rights properly.
Article 23: Children who have any kind of
Article 6: All children have the right to life. disability should have special care and
Governments should ensure that children support, so that they can lead full and
survive and develop healthily. independent lives.
Article 7: All children have the right to a Article 24: Children have the right to good
legally registered name, and nationality. Also quality health care, to clean water, nutritious
the right to know and, as far as possible, to be food, and a clean environment, so that they
cared for, by their parents. will stay healthy. Rich countries should help
poorer countries achieve this.
Article 8: Governments should respect
children's right to a name, a nationality and Article 28: Children have a right to an
family ties. education. Discipline in schools should
respect children’s human dignity. Primary
Article 9: Children should not be separated education should be free. Wealthy countries
from their parents unless it is for their own should help poorer countries achieve this.
good.
Article 31: All children have a right to relax
Article 10: Families who live in different and play, and to join in a wide range of
countries should be allowed to move between activities.
those countries so that parents and children
can stay in contact, or get back together as a Article 32: The Government should protect
family. children from work that is dangerous, or that
might harm their health or their education.
Article 11: Governments should take steps to
stop children being taken out of their own Article 33: The Government should provide
country illegally. ways of protecting children from dangerous

19
Article 12: Children have the right to say drugs.
what they think should happen, when adults
are making decisions that affect them, and to Article 34: The Government should protect
have their opinions taken into account. children from sexual abuse.

Article 13: Children have the right to get and Article 35: The Government should make
to share information, as long as the sure that children are not abducted or sold.
information is not damaging to them or to
Article 37: Children who break the law
others.
should not be treated cruelly. They should
Article 14: Children have the right to think not be put in prison with adults and should be
and believe what they want, and to practice able to keep in contact with their families.
their religion, as long as they are not stopping
Article 38: Governments should not allow
other people from enjoying their rights. children under 15 to join the army. Children
Article 15: Children have the right to meet in war zones should receive special
together and to join groups and organisations, protection.
as long as this does not stop other people
Article 39: Children who have been
from enjoying their rights.
neglected or abused should receive special
Article 16: Children have a right to privacy. help to restore their self-respect.

Article 17: Children have the right to reliable Article 40: Children who are accused of
information from the mass media. breaking the law should receive legal help.
Prison sentences for children should only be
used for the most serious offences.

iii) The Convention on the Rights of Persons with Disabilities (CRPD)

The Convention on the Rights of Persons with Disabilities and its Optional Protocol was
adopted on 13 December 2006 at the United Nations Headquarters in New York, and was
opened for signature on 30 March 2007. There were 82 signatories to the Convention, 44
signatories to the Optional Protocol, and 1 ratification of the Convention. This is the highest
number of signatories in history to a UN Convention on its opening day. It is the first
comprehensive human rights treaty of the 21st century and is the first human rights
convention to be open for signature by regional integration organizations. The Convention
entered into force on 3May 2008.

The Convention marks a "paradigm shift" in attitudes and approaches to persons with
disabilities. It takes to a new height the movement from viewing persons with disabilities as
"objects" of charity, medical treatment and social protection towards viewing persons with
disabilities as "subjects" with rights, who are capable of claiming those rights and making
decisions for their lives based on their free, and informed consent as well as being active
members of society.

Summary

Article 3: The Convention is based on the Article 17: Protecting the integrity of the
principles of respect for dignity; non- person
discrimination; participation and inclusion;
20
respect for difference; equality of Article 18: Liberty of movement and
opportunity; accessibility; equality between nationality
men and women; and respect for children.
Article 19: Living independently and being
Article 4: General obligations: Countries included in the community
must take a range of measures, with the
active involvement of people with Article 20: Personal mobility
disabilities, to ensure and promote the full
Countries must take effective and appropriate
realization of all human rights and
measures to ensure personal mobility for
fundamental freedoms for all persons with
people with disabilities in the manner and
disabilities without discrimination of any
time of their choice, and at affordable cost.
kind.
Article 21: Freedom of expression and
Article 5: Equality and non-discrimination:
opinion, and access to information
Article 6: Women with disabilities: Women
Article 22: Respect for privacy
and girls with disabilities experience multiple
discrimination. Countries must take all Article 23: Respect for home and the family
appropriate measures to ensure that women
with disabilities are able to fully enjoy the Article 24: Education: People with
rights and freedoms set out in the disabilities have a right to education without
Convention. discrimination.

Article 7: Children with disabilities: Children Article 25: Health: People with disabilities
with disabilities have the same human rights have the right to the enjoyment of the highest
as all other children. attainable standard of health without
discrimination.
Article 8: Awareness-raising: Countries must
raise awareness of the rights, capabilities and Article 26: Habilitation and rehabilitation:
contributions of people with disabilities. Countries must take effective and appropriate
measures to enable people with disabilities to
Article 9: Accessibility: People with develop, attain and maintain maximum
disabilities have the right to access all aspects ability, independence and participation
of society on an equal basis with others through the provision of habilitation and
including the physical environment, rehabilitation services and programmes.
transportation, information and
communications, and other facilities and Article 27: Work and employment
services provided to the public.
Article 28: Adequate standard of living and
Article 10: Right to life: People with
disabilities have the right to life. Countries Article 29: Participation in political and
must take all necessary measures to ensure public life
that people with disabilities are able to Article 30: Participation in cultural life,
effectively enjoy this right on an equal basis recreation, leisure and sport
with others.
Article 31: Statistics and data collection:
Article 12: Equal recognition before the law: Countries must collect information about
People with disabilities have the right to people with disabilities, with the active
recognition as persons before the law. involvement of people with disabilities, so
Article 15: Freedom from torture or cruel, that they can better understand the barriers
inhuman or degrading treatment or they experience and make the Convention
21
punishment
Article 16: Freedom from exploitation,
violence and abuse: People with disabilities
have the right to be protected from all forms
of exploitation, violence and abuse, including
their gender based aspects, within and
outside the home.
rights real.
Articles 32- 50 explain how countries which
are bound by the Convention must give it full
effect. They also explain the responsibility of
countries to report to the United Nations
Committee on the Rights of Persons with
Disabilities on how they are putting the
Convention into effect.

C. Monitoring Mechanisms

a) The UN Commission on Human Rights

The UN charter set up an ‘Economic and Social Council’ consisting of 18 members of the
UN who are elected by the General Assembly. This council can make recommendations to
promote Human Rights. This council set up the United Nations High Commission on Human
Rights. Members are drawn from UN signatory nations and the commission has only an
advisory role.

The commission seeks to (i) set standards, (ii) promote human rights and in a limited way,
(iii) enforce the practice of freedom and human rights.

It does this mainly through the High Commissioner. The High Commissioner seeks to
promote and mainstream human rights through varied means: (i) by acting as a moral
authority and voice for victims. (ii) The High Commissioner seeks to bring together different
institutions and organizations working for human rights throughout the world and to
encourage them to combine with the UN system in advancing human rights. (iii) Offers the
highest quality research, expertise, advice and administrative services to the main UN human
rights bodies. (iv) disseminates information on human rights and promotes human rights
education worldwide.

Different groups can approach the Commission. (i) States can approach them against another
state (ii) Individuals and groups (like NGOs) can also approach the commission.

The Commission has set up (i) working groups and appointed (ii) special rapporteurs to study
and report on different human right violations.

Some of its main work so far: (i) set up the ‘committee for the rights of the child’ (CRC) and
appointed a special rapporteur to investigate child pornography and sale of children. (ii) has a
working group to report on cases of ‘arbitrary detention.’ (iii) Appointed a special rapporteur
to investigate the dumping of poisonous toxins. (iv) has both a working group (1982) and a
special rapporteur (2001) to report on the plight of indigenous peoples. The rapporteur has
investigated issues like the impact of development on the indigenous people; cultural rights
of these people (e.g the right to education). The rapporteur has pointed to the high dropout
rate and poor quality of education that is provided to the indigenous populations. ‘Urgent
appeals’ and ‘Letters of allegation’ can be sent to the special rapporteur which he will
investigate.

22
Critique:

• The commission is based on political appointees and hence has not been very
independent. In fact some countries on commission themselves have been violators of
human rights.

• It has only an advisory function and so cannot really enforce human rights.

• The commission has however served as a forum for discussion and allowed for
visibility of complaints as its procedures are public. This allows for NGOs and
individuals to highlight human rights violations in a public international forum. This
puts pressure on the defaulting country to clean up its act.

• The United Nations General Assembly established the Human Rights Council on 15
March 2006 by a vote which was opposed only by United States, Marshall Islands and
Palau (bound to the United States through Compacts of Free Association), and Israel.

The ICCPR provides for a Human Rights Committee (HRC) to promote human rights.

A. Composition of HRC.
It will be made up of 18 members who are citizens of the signatory states. These should be of
impeccable moral character and proven competence in the field of human rights.

B. Election of Members of HRC.

Signatory nations can recommend names of two of their own citizens. A panel will be drawn
up from all these names. The representatives of the signatory nations will then elect by secret
ballot 18 from this list to serve on the HRC. Not more than one member can be elected from
each nation and electors should make sure that there is a good geographical spread of the
members.

C. Term of Office.
The normal term of office will be four years. A member can be removed by the unanimous
vote of the other members of the HRC if they feel this is warranted. If a member is so
removed or dies in office the Secretary General of the UN shall ensure that another person is
elected in his place (as per B).

D. Salary and Staff should be provided by the UN.

E. Functions of HRC.
• To receive the annual Human Right reports of the member nations. To disseminate
information on Human Rights to all parties.
• Can receive complaints from one nation against another. The committee will then try
to arrive at an amicable solution. Has no legal authority to enforce its decisions.
• The HRC can also appoint a Conciliation Commission of five members to help states
arrive at a satisfactory resolution of an interstate problem.
• An individual of a signatory nation can also submit a communication (technically not
a complaint!) to the HRC against his own country only. This can be done only if all

23
 domestic avenues (e.g. local courts) have been first tried. HRC cannot entertain an
anonymous complaint. HRC will try to settle issue amicably with state government
concerned.

Most of the authority and usefulness of the HRC lies in its moral role. It has no teeth to
enforce anything!

b) The International Court of Justice (World Court)

The International court of Justice was set up in 1946 based on Article 92 of the UN Charter.
This succeeded the older Permanent Court of International Justice of the League of Nations.
It meets at the Hague.

Composition: It is composed of 15 members. 5 of whom retire every three years. Candidates

of high repute are nominated by member states and these are voted for at the General
Assembly and Security Council.

Role and powers of the International Court of Justice:

The Court has a dual role: (i) to settle in accordance with international law the legal disputes
submitted to it by States, and (ii) to give advisory opinions on legal questions referred to it by
duly authorized international organs and agencies (presently only UN organizations can ask for
advisory opinions).

Amongst the many legal disputes that it has dealt with some are: (i) Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) (ii) Maritime Delimitation between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras). (iii) Rights of Prisoners of war (India
v. Pakistan).

Since 1946 the Court has given 25 Advisory Opinions, concerning inter alia the legal
consequences of the construction of a wall in the occupied Palestinian territory, admission to
United Nations membership, reparation for injuries suffered in the service of the
United Nations, territorial status of South-West Africa (Namibia) and Western Sahara,
judgments rendered by international administrative tribunals, expenses of certain
United Nations operations, applicability of the United Nations Headquarters Agreement, the
status of human rights rapporteurs, and the legality of the threat or use of nuclear weapons.

Critique:
• Its jurisdiction has not always been accepted in a similar manner as territorial courts
have been.
• However its opinions create a moral atmosphere within which disputes do finally get
resolved.

24
THE INDIAN SCENE

1. The Fundamental Rights

General

14. Equality before law.—The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1)
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.

16. Equality of opportunity in matters of public employment.—(1) There shall be equality of

opportunity for all citizens in matters relating to employment or appointment to any office
under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.

17. Abolition of Untouchability.—“Untouchability’’ is abolished and its practice in any form is

forbidden. The enforcement of any disability arising out of “Untouchability’’ shall be an
offence punishable in accordance with law.

18. Abolition of titles.—(1) No title, not being a military or academic distinction, shall be
conferred by the State.

19. Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have
the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;

20. Protection in respect of conviction for offences.—(1) No person shall be convicted of any
offence except for violation of a law in force at the time of the commission of the Act charged
as an offence, nor be subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence.

21. Protection of life and personal liberty.—No person shall be deprived of his life or personal
liberty except according to procedure established by law.

22. Protection against arrest and detention in certain cases.—(1) No person who is arrested
shall be detained in custody without being informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of
his choice.

25
23. Prohibition of traffic in human beings and forced labour.—(1) Traffic in human beings and
begar and other similar forms of forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with law.

24. Prohibition of employment of children in factories, etc.—No child below the age of
fourteen years shall be employed to work in any factory or mine or engaged in any other
hazardous employment.

25. Freedom of conscience and free profession, practice and propagation of religion.—(1)
Subject to public order, morality and health and to the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the right freely to profess, practise and
propagate religion.

26. Freedom to manage religious affairs.

29. Protection of interests of minorities.

2. Directive Principles of State Policy

An important feature of the constitution is the Directive Principles of State Policy. Although the
Directive Principles are asserted to be "fundamental in the governance of the country," they are
not legally enforceable. Instead, they are guidelines for creating a social order characterized by
social, economic, and political justice, liberty, equality, and fraternity as enunciated in the
constitution's preamble.

1. Introduction

The Directive Principles are an amalgam of diverse subjects embracing the life of the nation
and include principles which are general statements of social policy, principles of
administrative policy, socio-economic rights and a statement of the international policy of the
country.

The sanction behind the Directives is, of course, political and not juridical. Though these
Directives are not cognizable by the court and, if the Government of the day fails to carry out
these objectives, no court can make the Government implement them, yet, these principles have
been declared to be “fundamental in the governance of the country”.

a. Welfare State: The Constitution envisages the establishment of a “Welfare State” at the
federal level as well as the State level. In a Welfare State, the primary duty of the
Government is to secure the welfare of the people.

b. Social Revolution: The Directive Principles of State Policy set forth the humanitarian
socialist precepts that were the aims of the Indian social revolution, i.e., to work for an
egalitarian society, where there is no concentration of wealth, where there is plenty,
where there is equal opportunity for all, to education, to work, to livelihood and where
there is social justice.

c. Emphasizes the ideals of Preamble: The Directive Principles emphasizes, in

amplification of the Preamble, the goal of the Indian polity is not laissez faire, but a
26
 Welfare State, where the State has a positive duty to ensure to its citizens social and
economic justice and dignity of the individual.

Overview of Part IV of the Constitution

Part IV contains nineteen articles, from arts. 36 to 51. They could be broadly divided under four
heads, namely, 1) Social Policy Directives, 2) Principles of Administrative Policy, 3) Socio-
Economic Rights, and 4) Principles of International Policy of the country.

• Social Policy Directives: The concept of “Social Justice” which the Constitution of
India engrafted consists of diverse principles essential for the orderly growth and
development of personality of every citizen.

• Promotion of Social Order: The object of every government under Art. 38 is to secure
and protect effectively a social order in which justice, social, economic and political-is
provided to the people in the national life. This Article, read with Art. 41, which calls
for right to work, education and public assistance for weaker sections, makes it a duty
of the State to grant pension to retired Government servants as well as their dependents.

• Better Industrial Relations: Art. 43A to better the industrial relations particularly
relating to workers.

• Right to free and compulsory education: Art. 21A was inserted by Constitution (Eighty-
sixth) Amendment Act, 2002 to bring free and compulsory education as part of
fundamental rights. InUnnikrishnan v. State of A. P., Supreme Court explicitly declared
that Art. 45 has to be implemented by the Government. In 2005, Right to Education Bill
was tabled in the parliament which was finally passed in 2009 as Right to Education
Act, 2009.

• Uniform Civil Code: Also provision [Art. 44] for Uniform Civil Code to harmonize
social relations is also enshrined within Part IV. In the famous cases Mohd. Ahmed
Khan v. Shah Bano Begum and Sarla Mudgal v. Union of India, Supreme Court
lamented the failure of Government to fulfill the obligation imposed by Art. 44.
However, in the case Lily Thomas v. Union of India, Supreme Court clarified that its
lamenting did not amount to issuing the directive to the government to pass a Uniform
Civil Code.

• Right to Health: The right to health and raising the levels of nutrition has its beginning
with Art. 47. During Constituent Assembly Debates, many members with Gandhian
vision wanted to bring prohibition throughout India and it was at their insistence this
article also places special emphasis on prohibition of liquor throughout India.

• Principles of Administrative Policy: To foster the involvement of individuals

throughout the nation in the processes of democratic government and to gather the
villagers’ participation Art. 40 calling for village panchayats was inserted. Art. 50 on
the other hand provides for complete separation of judiciary from executive,

27
 • Principles of International Policy: Art. 51 clearly directs the state to maintain
international peace and security, foster amicable solution of disputes and maintain just
and honorable relations between nations.

Overview of Articles of Part IV

1. Art. 36: Provides the definition of the word “state”.

2. Art. 37: Non-justiciability of any provision contained in this part of the Constitution.

3. Art. 38: Mandates the state to strive for the social welfare of the people.

4. Art. 39: Lists the principles to be followed by the state while carrying out its policy, notably,
to provide adequate means of livelihood to people, distribution of resources and prevention of
concentration of wealth in few hands.

5. Art. 39A: Secures equal justice and free legal aid for the people.

6. Art. 40: Provides for organization of Village Panchayats.

7. Art. 41: Provides work, education and public assistance to unemployed, sick and old age.

8. Art. 42: Provides for just and humane conditions of work and maternity relief.

9. Art. 43: Provides for decent standard of life for all workers.

10. Art. 43A: Directs to provide participation of workers in management of industries.

11. Art. 44: Mandates a Uniform Civil Code for whole of the country.

12. Art. 45: Provides for free and compulsory education.

13. Art. 46: Directs to work for benefit for backward communities.

14. Art. 47: Mandates to raise the level of nutrition.

15. Art. 48: Directs to improve animal husbandry and agriculture.

16. Art. 48A: Provides for improvement for environment.

17. Art. 49: Provides for care of monuments.

18. Art. 50: Separation of Judiciary and Executive.

19. Art. 51: Lays down principles of International policy.

5. Twenty Fifth Amendment

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Article 31C: Art. 31C was inserted by the Constitution (25th Amendment) Act, 1971, with the
object of getting over the difficulties placed in the way of giving effect to the Directive
Principles in Part IV, by judicial decisions. The first of the two parts of Art. 31C was similar to
Art. 31A to give protection of a law from challenge under Arts. 14, 19 to a give effect to the
Directive Principles in Art. 39(b)-(c).

Rationale of Article 31C: This article was inserted to make possible the nationalization or the
taking under public management and control, of all means of production, key industries, mines,
minerals, public supplies, utilities and services.

Unconstitutionality of second part: The second part, which has been declared unconstitutional
by the Supreme Court sought to oust the jurisdiction of the court to find out whether a law
sought to be protected under Art. 31C really gives effect to the principles in Art. 39(b)-(c).
6. Suggestion by “National Commission to Review the working of the Constitution”

National Commission setup for reviewing the Constitution suggesting improvement in working
of Constitutional mechanism stated that the State should derive appropriate mechanism for
realization of Directive Principles. In view of the Commission, there must be a body of high
status which first reviews the state of the level of implementation of the Directive Principles
and Economic, Social and Cultural Rights and in particular, 1) the right to work, 2) the right to
health, 3) the right to food, clothing and shelter, 4) right to education upto and beyond the 14th
year, 5) the right to culture.

Origin of Fundamental Duties Art. 51A lists out the Fundamental Duties for every citizen of
India. In the original Constitution of India of 1949, there was no provision relating to
Fundamental Duties. Single article Part IVA has been added by the Constitution (42nd
Amendment) Act 1976, in accordance with the recommendation of the Swaran Singh
Committee. It brings our Constitution in line with the Art.29(1) of the Universal Declaration of
Human Rights and the Constitutions of Japan, China, USSR.

Fundamental Duties Today: A good number of Fundamental Duties are enforceable today even
without their being specifically incorporated in the Constitution. In this category fall the items
to abide by the Constitution, respect to National Flag and National Anthem (through The
Emblems and Names (Prevention of Improper Use) Act, 1950), to defend the country and
render national service when called upon to do so and safeguard public property.

3. National Human Rights Commission

The National Human Rights Commission is an expression of India's concern for the
protection and promotion of human rights. It came into being in October,1993 as a
consequence of the ‘Protection of Human Rights Act, 1993.’ State Human Rights
Commissions The Protection of Human Rights Act, 1993 makes provisions for the
establishment of State Human Rights Commissions, 14 States have already set up such bodies
How are human rights defined in the Protection of Human Rights Act, 1993?
In terms of Section 2 of the Protection of Human Rights Act, 1993 (hereafter referred to as
'the Act'), "human rights" means the rights relating to life, liberty, equality and dignity of the
individual guaranteed under the Constitution or embodied in the International Covenants and
enforceable by courts in India. "International Covenants" means the International Covenant
on Civil and Political Rights and the International Covenant on Economic, Social and
29
Cultural Rights adopted by the General Assembly of the United Nations on the 16th
December, 1966.
What functions have been assigned to the Commission under the Act?
The Commission shall, perform all or any of the following functions, namely

• Inquire, on its own initiative or on a petition presented to it by a victim or any person

on his behalf, into complaint of-( i ) violation of human rights or abetment or (ii)
negligence in the prevention of such violation, by a public servant.
• Intervene in any proceeding involving any allegation of violation of human rights
pending before a court with the approval of such court.
• Visit, under intimation to the State Government, any jail or any other institution under
the control of the State Government, where persons are detained or lodged for
purposes of treatment, reformation or protection tostudy the living condition of the
inmates and make recommendations thereon.
• Review the safeguards 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
• Review the factors, including acts of terrorism that inhibit the enjoyment of human
rights and recommend appropriate remedial measures.
• Study treaties and other international instruments on human rights and make
recommendations for their effective implementation.
• Undertake and promote research in the field of human rights.
• Spread human rights literacy 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.
• Encourage the efforts of non - Governmental organizations and institutions working
in the field of human rights.
• Such other functions as it may consider necessary for the promotion of human rights.

What powers have been vested with the Commission relating to inquiries?

While inquiring into complaints under the Act, the Commission shall have all the powers of a
civil court trying a suit under the Code of Civil Procedure, 1908, and in particular the
following, namely;
a) Summoning and enforcing the attendance of witnesses and examining them on oath;
b) discovery and production of any document;
c) receiving evidence on affidavits;
d) requisitioning any public record or copy thereof from any court or office;
e) issuing commissions for the examination of witnesses or documents;
f) any other matter which may be prescribed.

Does the Commission have its own investigation team?

Yes, the Commission has its own investigating staff headed by a Director General of Police
for investigation into complaints of human rights violations. Under the Act, it is open to the
Commission to utilise the services of any officer or investigation agency of the Central
Government or any State Government. The Commission has associated, in a number of cases,
non - Governmental organizations in the investigation work.

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Is the Commission Autonomous?

Yes, the autonomy of the Commission derives, inter-alia, from the method of appointing its
Chairperson and Members, their fixity of tenure, and statutory guarantees thereto, the status
they have been accorded and the manner in which the staff responsible to the Commission -
including its investigative agency - will be appointed and conduct themselves. The financial
autonomy of the Commission is spelt out in Section 32 of the Act.
The Chairperson and Members of the Commission are appointed by the President on the basis
of recommendations of a Committee comprising the Prime Minister as the Chairperson, the
Speaker of Lok Sabha, the Home Minister, the leaders of the opposition in the Lok Sabha and
Rajya Sabha and the Deputy Chairman of the Rajya Sabha as Members.
How does the Commission inquire into complaints?

The Commission while inquiring into complaints of violations of human rights may call for
information or report from the Central Government or any State Government or any other
authority or organization subordinate thereto within such time as may be specified by it;
provided that if the information or report is not received within the time stipulated by the
Commission, it may proceed to inquire into the complaint on its own; on the other hand, if,
on receipt of information or report, the Commission is satisfied either that no further inquiry
is required or that the required action has been initiated or taken by the concerned
Government or authority, it may not proceed with the complaint and inform the complainant
accordingly.

What steps are open to the Commission after inquiry?

The Commission may take any of the following steps upon the completion of an inquiry:
1) Where the inquiry discloses the commission of violation of human right or negligence in
the prevention of violation of human rights by a public servant, it may recommend to the
concerned Government or authority theinitiation of proceedings for prosecution or such other
action as the Commission may deem fit against the concerned person or persons;
2) Approach the Supreme Court or the High Court concerned for such directions, orders or
writs as that Court may deem necessary;
3) Recommend to the concerned Government or authority for the grant of such immediate
interim relief to the victim or the members of his family as the Commission may consider
necessary.

What procedure is prescribed under the Act with respect to armed forces?

The Commission may on its own motion or on the basis of petitions made to it on allegations
of human rights violations by armed forces, seek a report from the Central Government. On
receipt of the report, it may either not proceed with the complaint or, as the case may be,
make its recommendations to the Government. According to the Act, the Central Government
shall inform the Commission of the action taken on the recommendations within three
months or such further time as the Commission may allow. It is further stipulated that the
Commission shall publish its report together with its recommendations made to the Central
Government and the action taken by that Government on such recommendations. A copy of
the report so published will also be given to the petitioner.
Can the complaint be in any language?

31
They may be in Hindi, English or in any language included in the Eighth Schedule of the
Constitution. The complaints are expected to be self contained. No fee is charged on
complaints. The Commission may ask for further information and affidavits to be filed in
support of allegations whenever considered necessary. The Commission may in its discretion,
accept telegraphic complaints and complaints conveyed through FAX or by e-mail.
Complaints can also be made on the mobile telephone number of the Commission.

What kinds of complaints are not entertained by the Commission?

Ordinarily, complaints of the following nature are not entertained by the Commission:
a) In regard to events which happened more than one year before the making of the
complaints;
b) With regard to matters which are sub-judice;
c) Which are vague, anonymous or pseudonymous;
d) Which are of frivolous nature;
e) Which pertain to service matters.

What is the responsibility of the authority/State/Central Governments to which reports /

recommendations have been send by the Commission?

The authority/State Government/Central Government has to indicate its comments/action

taken on the report/recommendations of the Commission within a period of one month in
respect of general complaints and within three months in respect of complaints relating to
armed forces.

What are the kinds of issues on which complaints have been received ?

Since its inception, the Commission has handled a variety of types of complaints. In the latest
period, the major types of complaints have been:
1) In respect of police administration: Failure in taking action, Unlawful detention, False
implication, Custodial violence, illegal arrest, Other police excesses, Custodial deaths,
Encounter deaths, Harassment of prisoners; jail conditions.
2) Atrocities on SCs and STs
3) Bonded labour, child labour
4) Child marriage
5) Communal violence
6) Dowry death or its attempt; dowry demand
7) Abduction, rape and murder
8) Sexual harassment and indignity to women, exploitation of women
9) Numerous other complaints which cannot be categorized, have also been taken up .

What has been focus of the Commission’s Working ?

Inquiring into complaints is one of the major activities of the Commission. In several
instances individual complaints have led the Commission to the generic issues involved in
violation of rights, and enabled it to move the concerned authorities for systemic
improvements.

32
However, the Commission also actively seeks out issues in human rights which are of
significance, either suo motu, or when brought to its notice by the civil society, the media,
concerned citizens, or expert advisers. Its focus is to strengthen the extension of human rights
to all sections of society, in particular, the vulnerable groups.

The Commission's purview covers the entire range of civil and political, as well as economic,
social and cultural rights. Areas facing terrorism and insurgency, custodial death, rape and
torture, reform of the police, prisons, and other institutions such as juvenile homes, mental
hospitals and shelters for women have been given special attention. The Commission has
urged the provision of primary health facilities to ensure maternal and child welfare essential
to a life with dignity, basic needs such as potable drinking water, food and nutrition, and
highlighted fundamental questions of equity and justice to the less privileged, namely the
Scheduled Castes and Scheduled Tribes and the prevention of atrocities perpetrated against
them. Rights of the disabled, access to public services, displacement of populations and
especially of tribals by mega projects, food scarcity and allegation of death by starvation,
rights of the child, rights of women subjected to violence, sexual harassment and
discrimination, and rights of minorities, have been the focus of the Commission's action on
numerous occasions.

What are its major initiatives?

Review of statutes, including Terrorist & Disruptive Activities Act, and (draft) Prevention of
Terrorism Bill, 2000
Guidelines to check misuse of the power of arrest by the police
Setting up of Human Rights Cells in the State/City Police Headquarters
Steps to check custodial deaths, rape and torture
Accession to the Convention against Torture, Additional Protocols to the Geneva
Conventions.
Discussion on adoption of a Refugee Law for the country
Systemic reforms of police, prisons and other centers of detention
Elimination of bonded labour and child labour Issues concerning Right to Food
Prevention of maternal anaemia and congenital mental disabilities In the child
Human Rights of persons affected by HIV/AIDS
People displaced by mega projects
People affected by major disasters such as the super-cyclone in Orissa and the earthquake in
Gujarat.
Monitoring the functioning of the Mental hospitals at Ranchi, Agra and Gwalior, and the
Agra Protection Home, under a Supreme Court remit.
Action Research on Trafficking
Promotion and protection of the rights of the disabled.
Rights of Denotified and nomadic tribes
Elimination of manual scavenging
Human rights training for the armed forces and police, public authorities, civil society, and
students
Research through well-known academic institutions and NGOs on various issues relating to
human rights
Consultation with NGOs and experts/specialists on Human Rights Issues
Source: Courtesy NHRC website.[www.nhrc.nic.in]
What is the composition of the Commission?
33
Composition of Human Rights Commission (Clauses 2 – 5 of Sec. 3):
1. Chairperson ( present or ex-chief Justice of the SC, Shri S. Rajendra Babu )
2. 2 Members – (present or an ex-judge of the SC + present or ex-Chief Justice of a HC)
3. Two members having knowledge related to Human Rights
4. Ex-officio members: Chairpersons of the National Commission for Minorities (Mohd.
Hamid Ansari); the National Commission for the Scheduled Castes and Scheduled Tribes;
and The National Commission for Women (Dr.Girija Vyas).
5. Secretary-General [Govt. must provide the Secretary-General and other necessary staff
(Sec. 11)].

Notable examples of its intervention:

A) Conducted inquiries and moved courts: Gujarat
It intervened decisively in Gujarat in matters relating to the post-Godhra riots wherein wilful
state negligence has led to many perpetrators of heinous crimes getting away scot-free. The
NHRC commissioner himself led the fact finding team. Criticised the Gujarat govt.
Suggested proper treatment of Muslims in relief camps. Also successfully moved supreme
court for transfer of Best Bakery Case.
B) Nandigram Feb. 8, 2008.:
Confirmed role of CPI (M) activists and state's complicity (e.g. withdrawal of Police at
Tehkhali on night of Nov. 6, 2007. Highlights the role played by Bhoomi Uchhed Pratirodh
Committee (BUPC) - an organisation to channelise the protest against the proposed land
acquisition. Suggested non-partisan police action, proper compensation, and just procedures.
C) Orissa: Ongoing inquiry into the attack on Christians. So far no decisive action.

Critique:
1. Has ensured public awareness and action in quite a few cases (e.g. Gujarat Best Bakery
Case).
2. Appointments are by the govt. and can be political.
3. Has not always been proactive.
4. Does not have sufficient powers of its own to ensure compliance.

4. Repressive Laws Related to Human Rights

Freedom is of prime importance in a democracy. Yet the framers of the Indian Constitution
included provisions for preventive detention and steps to be taken in tackling emergencies
caused by war, external aggression and internal disturbance. Unfortunately, successive
governments in India have misused these provisions. The result was the enactment of
several repressive laws. Now we shall deal with the more important repressive measures
that curbed civil liberties of people during the last fifty eight years.

PREVENTIVE DETENTION ACT, 1950

Preventive detention: The preventive detention takes place on the apprehension that a person
is going to do something wrong.

The Preventive Detention Act, 1950: In times of peace, preventive detention is unknown in
countries like England and America. However, in India, this repressive measure has been in
existence since the early days of the British rule. The Preventive Detention Act, 1950 was
continuation of the pre-independence Acts such as the Provincial Maintenance of Public

34
Order Acts. The framers of Indian Constitution merely made it possible for such legislation
to be continued.

The Preventive Detention Act was a temporary legislation. Originally, it was passed for one
year only. However, the term of the Act was extended several times. Finally, the Act expired
at the end of 1969.

Main features of preventive detention act: the main features of the preventive detention act
are:
1. Preventive detention is permissible for a period of less than two months.
2. The period of preventive detention can be extended with the approval of the
Advisory Board.
3. Before exercising the power of preventive detention, the detaining authority
should satisfy itself that the detainee is likely to endanger the maintenance of public order.

The aftermath of Preventive Detention Act: Some States, e.g. Jammu and Kashmir and
Madhya Pradesh, have enacted State laws, authorizing preventive detention. The
provisions of these laws are similar to those of the Preventive Detention Act of 1950. The
only difference between the preventive enactment by the Union and the States is this. The
Union Government (Central Government) has exclusive power to enact such a law when
it is required for reasons connected with Defence, Foreign Affairs or the Security of India. A
State has the power to pass a law for preventive detention on grounds of the security of the
State, maintenance of public order, or the maintenance of supplies and services essential to
the community.

2. MISA AND COFEPOSA

MISA: the preventive detention act was amended and replaced by MISA (Maintenance of
Internal Security Act). The MISA came into force in 1971.

During the Emergency (25th June 1975 to 20th March 1977), MISA was used ruthlessly. The
number of detenus in 1975-76 soared up to 1, 75,000. Further, the Emergency provisions
took away the right of judicial review. |

Finally, in April 1978, the MISA was repealed by the Parliament. But in 1980 two
Statutes permitting preventive detention were framed. These are Prevention of
Blackmarketing and Essential Supplies Act and the National Security Act. In addition, the
COFEPOSA also permits preventive detention.

COFEPOSA: The COFEPOSA (Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act), 1974 was enacted as an accompaniment to MISA. In
general, while the MISA aimed at subversive activities, COFEPOSA aimed at anti-
social activities such as smuggling, racketing in foreign exchange, etc.

After Emergency was lifted, the Janata party government repealed the MISA, but allowed
the COFEPOSA to continue. The reasoning behind the different treatments to the two
measures was this. The former related to political detention; the latter aimed at social
offences.

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3. ARMED FORCES SPECIAL POWERS ACT

The Armed Forces Special Powers Act (AFSPA) of 1958 is one of the most repressive
legislations in 58 years of India's parliamentary history. Under this Act, all security forces
are given unrestricted powers to carry out their operations, once an area is declared
disturbed. Even a Non-Commissioned Officer has the right to shoot to kill on mere suspicion
that "public order" is likely to be disturbed.

The AFSPA was first applied to the Northern States of Assam and Manipur. In 1972, it was
amended to extend to all the "seven sisters"—as the seven States in the north-eastern region
of India are known. These are Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh,
Mizoram and Nagaland. Today it applies to Jammu and Kashmir too.

The Government of India has attempted to justify the Act on the ground that it is required to
stop the North-Eastern States from seceding from the Indian Union.

On 22nd May 1958, the Armed Forces (Assam-Manipur) Special Powers Ordinance was
issued. Later on, this Ordinance became an Act with retrospective effect from the date of the
Ordinance. Strangely, for such an important Act, the discussion lasted for merely three hours
in the Lok Sabha and for four hours in the Rajya Sabha.

Main provisions of the Act : Section 2 of the Act sets out to define the terms "armed forces",
and "disturbed area".
Section 3 (Power to declare disturbed area) : This Section defines "disturbed area". On
the basis of the Supreme Court's decision, the term "disturbed area" now means an area that
is in such a disturbed or dangerous condition that the use of the armed forces in aid of the
civil power is necessary.

Section 4 (Special powers of the Armed Forces) : This Section grants special powers
to all officers of the military forces stationed in a disturbed area. Only a jawan does not
have such powers.
The Section allows the armed forces personnel to shoot to kill, destroy property, arrest
anyone without a warrant, and enter or search premises without a warrant.

Section 5 (Handing over arrested persons to the police) : This Section states that, after
the military has arrested someone under AFSPA, they must hand that person over to the
nearest police station with the "least possible delay". However, the expression "least
possible delay" has not been defined.

Section 6 (Protection to persons acting under the Act) : No legal proceedings can be
brought against any member of the armed forces acting under the AFSPA, without the
permission of the Central Government. Thus, there is no remedy to the victims of abuses
by the armed forces. However, the order of the Central Government refusing or granting
sanction under Section 6 is subject to judicial review.

4. ASSESSMENT OF THE ARMED FORCES SPECIAL POWERS ACT

The Armed Forces Special Powers Act goes against the legal standards under both Indian
and International laws.
36
 A. Indian law and the AFSPA : The Delhi High Court and the Guwahati High Court have
held that the AFSPA is constitutional. The Supreme Court too upheld the validity of the
Act in the landmark Naga People's Movement of Human Rights case.

Let us examine the Act in the light of Fundamental Rights and the provisions of the Indian
Criminal Procedure Code.

1. Violation of Art. 21 : Section 4(a) of the AFSPA grants the armed forces personnel the
power to shoot to kill. This violates the constitutional right to life.

2. Protection under Article 22 : AFSPA is not a preventive, detention law. Therefore,

the safeguards of Sections (1) and (2) of Article 22 must be guaranteed to people arrested
under the AFSPA. However, this is not the case. Under the AFSPA, the use of the
expression "least possible delay" has allowed the security forces to hold people for days,
and even months, at a time.

Under Section 4(c) of the AFSPA, a person can be arrested on a mere suspicion that he is
going to commit an offence. The armed forces are not bound to communicate the grounds
for the arrest. Also, there is no Advisory Board for reviewing arrests made under AFSPA.
Since the arrest is without a warrant, it violates the preventive detection sections of Article
22.

5. NATIONAL SECURITY ACT

Vesting the power of preventive detention in the executive makes the same authority both
the prosecutor and the judge. So, it is bound to lead to arbitrary decisions. The only
justification for preventive detention is the need for national security.

National Security Act, 1980: Like the Preventive Detention Act of 1950 and the MISA, the
National Security Act permits preventive detention. The National Security Act, 1980 extends
to the whole of India except the State of Jammu and Kashmir. The main provisions of the
National Security Act, 1980 are as follows:

1. Section 3: Both the Central and the State Governments can issue detention orders.
Detention orders can be issued for the security of India or for the security of a State. Section
3(1) deals with the former, and Section 3(2) with the latter.

As per Section 3(3), period of detention shall not exceed three months. However, detention
can be extended, but each extension shall not be for more than three months at a time.

No detention order shall remain in force for more than twelve days unless it has been
approved by the State Government in the mean time (Section 3(4)). Further the State
government shall report the fact of detention to the Central government within seven days
(Section 3(5)).

The grounds of detention shall not be vague. In A.K. Ray case,7 the Supreme Court observed
that expressions like "defence of India", "security of India" and "relations with foreign
powers" were not definite. However, the court did not hold Section 3 of the National
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Security Act as unconstitutional.

The grounds of detention must be conveyed to the detenu as soon as possible, and ordinarily
not later those 5 days. Under exceptional circumstances, this time limit can be extended to
15 days. Further, this Section has to be interpreted literally. No relaxation is permissible.

Section 4: The detention order may be executed at any place in India.

Section 5 : The two provisions of this Section are :

a) Detention has to be in such place and under such conditions, as the appropriate
government may specify.
b) The detainee can be removed from one place of detention to another place of
detention whether within the same State or in another State.

Amendments to the National Security Act: In 1984, the NSA was amended once again in
1987. In its application to the State of Punjab and the Union Territory of Chandigarh, the
following changes have been made:

i) A person may be detained without obtaining the opinion of the Advisory Board for
a period upto six months.
ii) The maximum period of detention was raised to two years.

6. TERRORIST AND DISRUPTIVE ACTIVITIES ACT

The Terrorist and Disruptive Activities (Prevention) Act, commonly known as TADA, was
enacted on 20th May 1985. The TADA was enacted to cope with rising violence in Punjab in
the wake of the assassination of Indira Gandhi.

The TADA was meant to be a temporary provision, with a life of two years. But it was
extended again and again. Finally, it was allowed to lapse after ten years on 23rd May 1995.

The preamble of the Act stated, "Special provisions are made for the prevention of and for
coping with terrorist and disruptive activities and the matter connected therewith and
incidental thereto".

The activity which is sought to be punished under Section 3 is of such nature as cannot be
tackled under the ordinary penal law by the law-enforcement agencies.

Scope of TADA: The precise nature of terrorist activities cannot be determined. Each case
has to be judged on its merits. This was the position of the Supreme Court in the case of
Kartar Singh. The court held that 'it is neither desirable nor possible to catalogue the
activities which would bring the case of an accused under the relevant sections of TADA.
Each case has to be decided on its own and no rule of thumb can be applied".

However the Supreme Court has held that the courts should not allow misapplication of law.
For instance, the deadly provisions of TADA should not be applied in cases of gang rivalry
and other crimes which can be dealt with under the ordinary law. This position comes out
clearly in the case of Dilawar Hussain vs. State of Gujarat. In this case, the Supreme Court
said that using a law like TADA to handle communal riots is invalid and inapplicable.
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TADA and preventive detention : TADA is not an Act for preventive detention. It
is a substantive criminal law. It defines certain new offences that arise from terrorist and
disruptive and seditious activities, and lays down procedures for regular trial and punishment
for such offences. In the TADA Act, 1987, the scope of the term "abetment" has been
enlarged to cover the rendering of financial and other assistance to the terrorists.

We shall now consider the main provisions of the TADA.

1. Section 5 - Possession of unauthorized arms: Section 5 of the TADA makes possession of

certain unauthorized arms in specified areas an offence punishable with imprisonment. The
vice of this Section is that it is too wide. It covers both authorized and legitimate possession
and possession of arms and ammunition for terrorist activities.
2. Detention under TADA: Under the ordinary law, a detenu may be held in police custody
for a maximum period of 15 days before being transferred to judicial custody. Under TADA,
the period of police custody is 60 days.
3. Section 15 - Confession as admissible evidence: Section 15 of the TADA completely
overrides the Indian Evidence Act. This Section says that a confession made by a person
before a police officer not below the rank of a Superintendent of Police is admissible in
evidence in a trial under TADA.
4. Filing charge-sheet: The charge-sheet has to be filed within 180 days. Further, the
designated Court has to consider whether, on the basis of the evidence available, the
provisions of TADA are prime- fade attracted.
5. Anticipatory bail: The TADA has curtailed the provisions of anticipatory bail contained in
Section 438 of the Criminal Procedure Code.
6. "In-camera" trial: Because of terror and intimidation caused by the terrorists, it becomes
very difficult to record evidence by normal procedure. So, TADA provided for in-
camera trial. That is, the proceedings are hidden from public view.

7. CRITICISMS AGAINST TADA

India has a fairly clean record of democratic traditions. Yet the legislative history of our
country has had blemishes. One such "black spot" was the enactment of TADA.

TADA has been criticized on several grounds. Firstly, the Act violates the basic principles of
criminal law. These are: (1) It presumes that the accused is guilty. It casts the proof of
innocence on the accused. This is well illustrated by Sanjay Dutt case. (2) It violates the
principle of criminal law that a confession before a police officer is inadmissible in evidence.
(3) Due to the provision for in-camera trial, the accused does not know the names of the
prosecution witnesses. Secondly, mere possession of specified weapons in a notified area
becomes punishable with a jail term of not less than 5 years. This is too harsh a provision.
Thirdly, by detaining a person in police custody for sixty days, it enhances the possibility of
third degree methods by the police. Fourthly, several TADA detenus have been released; but
none of them has been paid compensation for wrongful confinement. Fifthly, the measure
was widely misused. Civil rights activists point out that a total of 77,571 people were
detained under TADA. Of these, about 72,000 were eventually let off because of lack of
evidence. Lastly, barely 1 percent of the cases under TADA resulted in conviction.

To conclude, no Indian legislation has earned as much notoriety as TADA. The National
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Human Rights Commission (NHRC) was so moved that it stated that TADA "is incompatible
with our cultural traditions, legal history and treaty obligations".

Due to wide criticism of the TADA, this legislation was not renewed. It was allowed to lapse
on 23rd May 1995.

8. PREVENTION OF TERRORISM ACT, 2002

The country remained free from the clutches of repressive laws for more than six years. But
the moment the government got an opportunity to introduce anti-terrorist legislation, it
wasted no time. On the protext of the spread of terrorist acts the world over, a milder version
of TADA was introduced. This is POTA (Prevention of Terrorism Act), 2002.

Background to the enactment of POTA : On 24th October 2001, the POTO (Prevention of
Terrorism Ordinance) was promulgated by the President of India. This Ordinance was re-
promulgated on 31st December 2001. Finally, the anti-terrorism Bill was passed on 26th
March 2002. Thus, POTA (Prevention of Terrorism Act), 2002 came on our Statute books.

The POTA Bill was passed by a joint sitting of both Houses of the Parliament—the Lok
Sabha and the Rajya Sabha. The joint sitting became necessary, because the Bill was passed
by the Lok Sabha on 18th March 2002, but it was rejected by the Rajya Sabha on 21st March
2002.

In the constitutional history of India, this is only the third time that a joint sitting of the two
Houses of Parliament had to be held. The earlier two occasions were in 1961 and 1978.

Main features of the POTA: The main features of the POTA are as follows:

1. Definition of terrorism: As defined under POTA, “terrorism" includes the following:

a) Acts committed with any lethal weapon;
b) Support for a terrorist organization;
c) Addressing a gathering of terrorism sympathisers; and
d) Assisting in arranging a meeting where support is expressed for a terrorist
organization or its activities.

2. Accused: A person can be detained under POTA if he is deemed to be a member of

a terrorist organization.

3. Period of detention: Suspects can be detained for three months without charges
being brought against them. Detention for three more months is allowed with the
permission of a special judge.

4. Attachment of property: Properties of terrorist organizations and their sympathisers

shall be seized.

5. Confession as evidence: The confession by an accused before a police officer

can be used against him. But certain safeguards against "forced confession" have been
provided.
6. Interception of communication : The interception of oral communication, by
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tapping telephone, etc., is permitted, and is admissible as evidence.

7. Obtaining samples: A police officer can ask the court to order samples of
handwriting, fingerprints, footprints, blood, saliva, semen and hair of a suspect. Refusal to
give samples will be considered against the accused in trial.
8. Special courts: Special courts are set up to try offences under POTA.

9. Bail: The accused can be denied bail for a period of a year.

Safeguards : The POTA has provided certain safeguards. The main ones are:
1. Investigation of an accused can be done by an officer of the rank of Deputy
Superintendent of Police or higher.
2. Confessions made to the police must be recorded within 48 hours before a
magistrate, who will send the accused for a medical examination if there is a
complaint of torture.
3. A legal representative of the accused can be present for part, but not all, of the
interrogation.
4. Police officers can be prosecuted for abusing their authority, and compensation can
be paid to victims.

Arrests under POTA: Strangely, Jharkhand, and not Jammu and Kashmir, saw the largest
number of arrests under POTA. About 250 people have been jailed under this law in this
eastern State. The reason for wide use of POTA in Jharkhand is the need to curb the Naxalite
menace.
Repeal of POTA: As the Parliament was not in session, on 1 7th September 2004, the Union
Cabinet approved the Ordinance to repeal POTA. However, some State governments have
POTA-like law. Let us illustrate. Maharashtra has MCOCA (Maharashtra Control of
Organized Crime Act). Uttar Pradesh proposes to do so. The Mayawati government has sent
UPCOOC Bill, 2008 to the governor; and the Uttar Pradesh governor is likely to forward this
Bill to the President.

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