Manoj Sinha Human Rights

Date and Time: 13 March 2021 15:47:00 IST
Job Number: 138820194
Documents (7)
1. CHAPTER 1 INTRODUCTION
Client/Matter: -None-
2. CHAPTER 2 Non-Derogable Human Rights
3. CHAPTER 3 Implementation of Non-Derogable Rights
4. CHAPTER 4 Implementation Mechanism for Non-Derogable Rights at The National Level: The Indian System
5. CHAPTER 5 Jurisprudence of Non-Derogable Human Rights at the International Level
6. CHAPTER 6 Jurisprudence of the Indian Judiciary and National Human Rights Institutions
7. CHAPTER 7 Conclusion
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CHAPTER 1 INTRODUCTION
Manoj Sinha: Implementation of Basic Human Rights
Manoj Kumar Sinha
Manoj Sinha: Implementation of Basic Human Rights > Manoj Sinha: Implementation of Basic
Human Rights
I. INTRODUCTION
It is a very ancient notion that there is a law which is different from the law of earthly rulersdifferent from, and also
higher and more compelling than, the edicts of Courts or Princes.
One of the earliest and most eloquent expressions of this thought is given by Sophocles, in his play Antigone.
Creon, King of Thebes, has decreed that Polynices, a traitor who has been killed in the field, shall be left unburied,
his body exposed to vultures and dogs. Antigone, the sister of Polynices, rebels against this ruling because, she
claims, every man has a right to burial. "And what right has the King", she demands, "to keep me from my own
brother?" Antigone buries the corpse, is discovered, arrested and taken to Creon:
"Do you know the law?" the King asks her.
"Yes" she replies.
"Then why did you break it?"
Antigone answers that the edict she has disobeyed is not sanctioned by conscience; it may be the law of the State,
but it is contrary to the law of justice:
Nor did I dream that thou, a mortal man,
couldst by a breathannul and override
The immutable, unwritten laws of heaven:
They were not born today nor yesterday;
They die not, and none knoweth whence they sprang.
Creon replies that Polynices was a traitor and that no ruler can let traitors go unpunished. A State must have laws
and uphold them. The ruler must be obeyed in all things, just and unjust, alike, or the result will be anarchy. "And
what evil", asks Creon "is worse than anarchy?" 1
One of the principal questions is what is meant by Human Rights. The question is not trivial, specially in the
international sphere, where diverse cultures are involved, where positivist underpinnings are shaky, and where
implementation mechanisms are fragile.
The traditional norm governing the concept of human rights is the respect for human personality and its absolute
worth, regardless of colour, race, sex or religion. These rights are essential for the adequate development of the
human personality and for human happiness. Without getting involved in the definitional controversies, therefore,
human rights may be said to be those fundamental rights to which every man or woman inhabiting any part of the
world should be deemed entitled, merely by virtue of having been born a human being. 2
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II. DEVELOPMENT OF HUMAN RIGHTS IN INDIA

It is generally claimed by Western scholars that the system of international law is a product of European civilisation.
In reality the roots of international law can be traced far back to ancient India, 3 as in most ancient civilisations. The
object of this part of the study is to establish the fact that the ancient Indian had definite knowledge of Human
Rights law.
Respect for the dignity of an individual and striving for peace and harmony in society, has been an abiding factor in
Indian culture. Indian culture has been the product of assimilation of diverse cultures and religions that came into
contact with the enormous Indian sub-continent over time. 4 The spirit of unity and universality in our tradition
extends to the whole world. It is said in the Rig Veda : "There is one race; of human beings" and the validity of
different traditions, religions, indeed of paths to Truth, has always been respected. Our guiding principle has been "
Sarva Dharma Samanan ". 5
An ancient text runs thus: "I seek no kingdom, nor heaven nor rebirth, but I wish that all living beings be spared of
the manifold pains and distresses". 6
According to Nagendra Singh, "The individual in ancient India existed as a citizen of the State and in that capacity
he had both rights and obligations".
These rights and duties have largely been expressed in terms of duties (Dharma) duties to oneself, to ones family,
to other fellowmen, to the society and the world at large. 7
The Buddhist doctrine of non-violence in deed and thought, according to Nagendra Singh, "is a humanitarian
doctrine par excellence , dating back to the third century B.C". 8 Both Buddhism and Jainism emphasised on the
principles of equality, non-violence and denial of materialistic pleasures.
In ancient times, the first and foremost duty of the King was to protect his people. Protection consists of meeting
internal threats as well as external aggression upon mans liberty. 9 Gautama prescribes that the special
responsibility of the King is to protect all beings, to award just punishment and also to protect the several varnas
and asramas according to the rule of sastra and to bring them round to the path of their proper duties when they
swerve from it. 10 Vasistha, too, states that the wise say that protection is a life long Sutra in which the king has to
give up fear and softness of heart. 11
In ancient India, there were elaborate provisions for social services such as education, public health, medical
attendance, insurance against unemployment, old age, widowhood, orphanage and elimination of poverty. It was
believed that it was necessary for the King representing the State and its resources to encourage learning, to care
for the blind, the decrepit, the old and the widowed and to give employment to those who were unemployed. 12
An extremely high ideal was placed before the King by Kautilya in the Arthasastra; he proclaims the magnificent
"ideal in the happiness of the subjects lies the happiness of the King, in their welfare lies his welfare; the good of
the King does not consist in what is pleasing to himself, but what is pleasing to the subjects constitutes his good". 13
The King is also called upon to support helpless and aged people, the blind, the cripple, lunatic, widows, orphans,
those suffering from diseases and calamities, and pregnant women by giving them medicines, lodging, food and
clothing according to their requirements. 14
The great tradition of India, which enjoins peace, friendship, equality, respect for human life and dignity provided
inspiration for our freedom struggle. It is this tradition, which brought into the fold of our Independence movement,
people from all walks of life, and of all persuasions, from towns, cities, and villages. Our Independence movement
represented a struggle for securing the fundamental human rights for the people of India.
Thus, it is clear from the above discussion that the development of human rights is not a recent phenomenon. The
development of human rights in India has its roots in ancient times. The contribution of ancient India in this field is
very significant and widely recognised by several Indian scholars.
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III. DEVELOPMENT OF HUMAN RIGHTS IN INTERNATIONAL LAW

The concept of human rights of justice and of human dignity as such date back to antiquity, but the
institutionalisation of human rights in national and international constitutional documents are developments which
have penetrated into the international system at the end of the eighteenth century. During this period, fundamental
rights were for the first time listed in catalogues similar to those available in our constitutions today. The first legal
act of this kind to gain justifiable renown was the Virginia Bill of Rights of 1776, a proclamation of rights with which
the American settlers countered the British Crowns claim to power. In Europe, the French Declaration of the Rights
of Man and of the Citizen of 1789 and other documents, which appeared subsequently, made a distinction between,
on the one hand, the rights of man and, on the other, rights of the citizen. By this account, the rights of man are
natural and inalienable rights, while the rights of the citizen are positive rights. For this reason human rights are
fundamental rights because they existed before the State, whereas the rights of the citizen are subordinate to and
depend upon them. The British Magna Carta had great impact upon the American Declaration of Independence and
Constitution, and both served as models for the new French Constitution and Declaration of Rights created by the
National Assembly at the start of the French Revolution. The Magna Carta began the great tradition of human rights
in UK. King John of England attached his Great Seal on 15 June, 1215, to a document drawn up by a group of the
countrys leading noblemen, who were unhappy that their rights were being ignored by the monarch.
The Magna Carta universally acknowledged as the first proclamation that the subjects of the crown had legal rights
and that the law could bind the monarch then indistinguishable from the State. The Magna Carta became the first
document to set out the right of habeas corpus and establish a tradition of civil rights in Britain that still exists today.
The Magna Carta led directly to the first Bill of Rights in history, which Britain passed in 1689, and which codified
the civil and political rights of all men, not just the lords and barons. It granted freedom from taxation by royal
prerogative, freedom to petition the monarch, freedom to elect members of Parliament without interference,
freedom of speech and of Parliamentary privilege, freedom from cruel and unusual punishments and freedom from
"fine and forfeiture" without trial. 15
In the development of the idea of the fundamental rights of man, the notion of the law of nature played the
paramount and principal part. With the Stoics in Greek and Roman history, alongwith Cicero and subsequently with
the Christian Fathers, it was natural law, as lying behind and above all positive law, which was the transcending
authority delimiting the earthly power of the State in relation to the individual.
The emergence of Plato in political thinking is of particular significance for his clear distinction between ideas on
the one hand, and culture and tradition on the other. On this basis, a foundation was laid for the conception of
universal and eternally valid norms and values. The Stoics developed a theory of natural law, according to which
man-made laws are simply imperfect aspects of an eternal and immutable law applicable to the whole cosmos.
These theories were further developed by Christian philosophers, in particular St. Thomas Aquinas, who put great
stress on natural law, which conferred certain immutable rights upon individuals; they viewed it, however, as part of
the law of God. The modern secular theories of natural law, particularly as enunciated by Grotius and Pufendorf,
detached natural law from religion, laying the groundwork for the secular, rationalist version of modern natural law.
Natural law theory ultimately led to natural rights theorythe theory most closely associated with modern human
rights. The chief exponent of this theory was John Locke. 16 The author of the Two Treaties of Government proved
philosophically that the individual possesses basic human rights inherent to his personality, independent of whether
these rights are recognised or not by the ruler. Intrinsic to the human personality the individuals human rights are
primordial and not a favour given or granted to him by the ruler or society. Those rights cannot be denied to the
individual or legally taken from him by the ruler or society, since any denial or deprivation of the individual of his
human rights by the ruler constitutes a double violation. On the one hand it constitutes the violation of the rights of
the individual and, on the other, it constitutes the violation by the ruler of his duty of the protection of the individual.
17
Locke asserted that an individuals basic human rights are inalienable, which means that, on the one hand they
cannot legitimately be taken away by the ruler or society and, on the other, they cannot be alienated, surrendered
or transferred by their possessor to the State, because these rights are inalienable.
To end certain hazards and inconveniences of the state of nature, men and women entered into a contract by
which they mutually agreed to form a community and set up a body politic. However, in setting up that political
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authority they retained the natural rights of life, liberty and property which were their own. The government was
obliged to protect the natural rights of its subjects and if it neglected this obligation it would forfeit its legitimacy and
office. This principle is extremely important for the protection of human rights, as history has tragically proved
especially in the twentieth century, that the so-called interests of the State served as a pretext for rulers such as
Hitler and Stalin to eliminate millions of presumed enemies of their systems. Under the guise of the theory of the
superiority of State interests over basic human rights, millions of innocent victims were illegally exterminated. These
horrible crimes prove how right Locke was when he expounded the principle that human rights of individuals prevail
over the interests of State or society.
The critical problem facing the natural rights doctrine now is how to determine the norms that are to be part of the
natural law and therefore inalienable. 18 Critics point out that most of the norm setting of natural rights theories
contain a priori elements deduced by the norm setter. In short, the principal problem with natural law is that rights
considered to be natural differ from one theorist to another, depending upon his conception of nature. Because of
this and other difficulties, natural rights theory became unpopular with legal scholars. 19
IV. POSITIVISM
Another approach deserving mention here is legal-positivism. In this view, a person is simply what the law says he
is. This philosophy came to dominate the legal theory during most of the nineteenth century and commanded
considerable allegiance in the twentieth. 20 Under positivist theory, the source of human rights is to be found only in
the enactments of a system of law with sanctions attached to it. The need to distinguish with maximum clarity the
law as it ought to be in theme, which haunted the positivist philosophers, and they condemned natural law thinkers
because they had blurred this vital distinction. 21 Positivist thinkers such as Bentham and Austin were often in the
vanguard of those who sought to bring about reform in the law.
Jeremy Bentham rejected the idea of a law of nature. According to him, nature was a very vague term and,
therefore, natural law and natural rights were meaningless. Rights are not natural but are created by law whose
worth depends on its utility. Bentham thus replaced natural rights by utility. Bentham believed in freedom and
equality but he would not base them on natural law. Jeremy Bentham has been oft-quoted in his colourful attack:
Right is a child of law, from real laws come real rights, but from imaginary law, from "laws of nature", come
imaginary rights...Natural rights is simple nonsense: natural and imprescriptible rights, rhetoric nonsensenonsense
upon stilts.
John Austin, too, considered natural law to be vague and meaningless. According to Austin, political or civil liberty
constitutes the freedom of action left or granted by a sovereign to its subjects. A sovereign can narrow or widen the
scope of the liberties of its subjects and in this, it has no restrictions except those based on customs, habits and
traditions of people. The principle of utility itself helps the State in deciding the limits of civil liberty.
However, Hegels idea of freedom was based on the old Greek notion of an individual finding his true personality
and his freedom in the State. This represents a reaction against the notion of freedom born of natural rights which
characterised the revolutionary era. Man had no inalienable rights and his freedom was a gift of the State. The
State not only allows but enlarges the freedom of the society. Salmond defines a right as an interest recognised and
protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is wrong.
H.L.A. Hart has done much to refine positivist philosophy and to free it from some of its mistakes. Hart finds the
authority for the rules of law in the background of legal standards against which the government acts, standards
that have been recognised and accepted by the community for that government. This legitimises the decisions of
the government and gives them the warp and woof of obligation that the naked commands of classical positivism
lacked. Harts argument is that by withholding legal recognition from iniquitous rules, we may grossly oversimplify
the variety of moral issues to which they give rise.
"There is not only moral question of obedience: Am I to do this evil thing? There is also Socrates question of
submission: Am I to submit to punishment for disobedience or make my escape?"
Hart argues that a concept of law, which allows the invalidity of law to be distinguished from its immorality, enables
us to identify more clearly the complexities and variety of the different problems.
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V. SOCIALIST THEORIES
Another important theory, Marxist theory, is an approach, which is also concerned with the nature of human beings.
Marx regarded "the law of nature" approach to human rights as "idealistic" and "ahistorical". He saw nothing
"natural" or "inalienable" about human rights. A society in which capitalists monopolised the means of production,
the notion of individual rights is regarded as a means of production, and as a bourgeoisie illusion. Concepts such as
law, justice, morality, democracy, and freedom, are considered historical categories whose content is determined by
the material conditions of the life of people and by their social circumstances. As the conditions of life change, so
the contents of notions and ideas may change.
Marxism sees a persons essence as the potential to use ones abilities to the fullest and to satisfy ones needs
through the satisfaction of societal needs. While high point of Marxism is to recognise the contextuality of human
rights in terms of the materialistic conditions of society, its weakness is to conceive of human rights chiefly in a
materialistic frame. This weakness is remedied perhaps by writers like Laski.
Laski attacked the unlimited authority of the sovereign. According to him "No sovereign has anywhere possessed
unlimited power; and the attempt to exert it has always resulted in the establishment of safeguards". Laski does not
agree with Austins view that law is the command of the sovereign. While law is the same for the legislator and the
citizen, the command is not binding on the giver.
Laski holds that rights "are those conditions of social life without which no man can seek in general to be himself at
his best". It is the duty of the State to provide right conditions to the individual for his growth. Rights are correlated
to functions and duties. The rights that an individual enjoys must correspond with his conditions in society.
VI. PROMOTION OF HUMAN RIGHTS PRIOR TO THE UNITED NATIONS

The idea that the protection of human rights ought to be a matter of international responsibility was recognised and
accepted much before the two world wars. The first international texts related with human rights problems are found
at the beginning of nineteenth century. This problem was slavery. The institution of slavery was generally legal
under national law till the end of the nineteenth century. 22
The second development concerned with the rights of individuals relates to the protection of minorities. Under the
League of Nations, explicit obligations were laid down with a view to protecting the members of minorities.
However, these "minority clauses", which applied only to some specific countries or regions, were contained in the
peace treaties with Austria, Bulgaria, Hungary and Turkey, in special treaties concluded with Czechoslovakia,
Greece, Poland, Rumania and Yugoslavia, and in declarations which Albania, Estonia, Finland, Latvia and
Lithuania had to make as a condition for their admission to the League of Nations. Moreover, similar clauses were
included in two bilateral treaties, namely, between Germany and Poland regarding Upper Silesia and between
Germany and Lithuania regarding the Memel Territory.
Although the minority clauses only covered a handful of countries, they were of historical significance as
unprecedented limitations were placed on national sovereignty under international law.
(a) The Four Freedoms
The President of the United States, Franklin Roosevelt addressed the U.S. Congress on 6 January, 1941 about the
"State of the Union". He concluded the address with his famous peroration on the "Four Freedoms". 23 Roosevelt
surprised his collaborators by dictating an addition which he opened with the sentence: "In the future days, which
seek to make secure, we look forward to a world founded upon four essential freedoms", after which he set out the
freedom of speech and expression, the freedom of worship, the freedom from want, and the freedom from fear. 24
(b) The Human Rights Movement after the Second World War
It was not until after the catastrophic events of the Second World War that international human rights law began to
develop in a coherent and recognisable way. The atrocities perpetrated by the Nazis against their own people in
Germany and against those in its conquered territories created such revulsion that before the end of war, the Allied
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powers determined that the post-war settlement should include a commitment to the protection of human rights. 25
The Allied powers saw it as a necessary prerequisite to the creation of a just and stable international order under
the auspices of United Nations Organisation.
VII. PROMOTION OF HUMAN RIGHTS WITHIN THE UNITED NATIONS

One of the most significant features of the legal system of the United Nations is the inclusion of the promotion of
human rights as one of the basic purposes of this organisation. There are seven provisions under the United
Nations Charter, which deal with human rights, namely, Articles 1 , 13(1)(b) , 55 , 56 , 62 , 68 and 76(c) . These
provisions have not only served as the basis for the United Nations actions in the field of human rights, but also
constitutedtogether with the provisions of the Universal Declaration of Human Rights, 1948 26 the normative source
for the many human rights instruments at both the global and regional levels.
Therefore, it appears that the UN Charter presages the existence of the phenomenon known as human rights.
However, it contained no list of such rights, nor did it refer to a source for discovering exactly what the rights were.
But the United Nations efforts in the domain of human rights were reflected through various declarations which
exclusively dealt with human rights.
In this direction, the most important milestone was the adoption of the Universal Declaration of Human Rights
(UDHR) in 1948. The UDHR was adopted as a simple resolution of the General Assembly. Today, the status of the
UDHR after more than sixty-five years is that it has become part of customary international law. 27
It was recognised at the time of drafting of the UDHR that it would not create legally binding obligations. So it was
decided that the Commission on Human Rights 28 (CHR) should undertake the drafting of a legally binding human
rights instrument modelled on the UDHR. The outcome of this effort resulted in two separate human rights
instruments adopted, one dealing with Economic, Social and Cultural rights, and the other dealing with Civil and
Political rights (ICCPR). 29 Some other basic international instruments for safeguarding of human rights have also
been adopted, such as the International Convention on the Elimination of All Forms of Racial Discrimination. 30 The
United Nations has adopted more than a score of international conventions. 31 Some important international
instruments dealing with human rights have likewise been adopted by some of the UN specialised agencies like the
ILO and the UNESCO, 32 and there have been a considerable number of international instruments adopted by
regional international organisations. Thus, a large body of rules of international law governing the realm of human
rights, represents one of the most dynamic areas in the progressive development of international law.
Few rights available under human rights instruments, both at universal and regional levels, are absolute rights. It
means that there can be no derogation from them under any circumstances. The main emphasis of this thesis is on
non-derogable human rights.
VIII. THE THREE TREATIES: DRAFTING DEBATES

(a) The CP Covenant
The drafting debate of CP Covenant shows that it was too difficult to reach an agreement on which rights should be
made non-derogable. The Human Rights Commission (HR Commission) at its fifth session 33 received the views of
United States, France and United Kingdom on non-derogable rights. The present Article 4(2) of the CP Covenant
enumerates the provisions from which no derogation may be made. 34 The consensus of opinion was that certain
provisions could not be derogated from even in times of public emergency, but there was much discussion on what
those provisions should be. The USA proposed to incorporate a positive enumeration of the rights which can be
subjected to limitation. 35 France and UK proposed to enumerate those rights which cannot be suspended in any
case. The UK proposal contained only four non-derogable rights, namely, the right to life, freedom from torture and
ill-treatment, freedom from slavery, and the principle of non-retroactivity of penal laws. The French proposal was
much wider and it contained draft Articles 5 , 6 , 8 , 9 , 10 , 14 , 15 and 16 . The draft Articles proposed by France
are similar to Articles 6 , 7 , 8 , 9 , 11 , 12 , 13 , 14 , 15 , 16 and 18 of the Covenant.
The HR Commission at its sixth session 36 held a detailed discussion on which rights should be incorporated as
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non-derogable rights. The shorter list of non-derogable rights presented by the UK was not accepted. Finally,
Articles 6 , 7 , 8 , 11 , 15 , 16 and 18 were adopted, 37 whereas other articles included in the French proposal i.e. ,
Articles 5 (right of personal liberty and security), 12 (liberty of movement) and 14 (right to due process of law),
were withdrawn by the French delegation before voting.
The final acceptance on the list of non-derogable rights did not satisfy all the members of the Commission.
The delegates from Lebanon, Dr. Charles Malik reserved the right of his delegation to propose on the second
reading of the Covenant that other rights should be included as non-derogable rights. 38 He wanted especially
Article 26 (non-discrimination) as a non-derogable right. It was argued that "enemy aliens in time of war, cannot be
treated equally as the citizens of the State". Mrs. Eleanor Roosevelt argued that among all the guarantees against
arbitrary detention, only Article 9(5) , the writ of habeas corpus , should be made non-derogable. 39 The argument
given by Mrs. Roosevelt for non-inclusion of the whole of Article 9 was that no government would, in time of war,
be in a position to guarantee particular provisions referring to arrest, bail and compensation for prisoners-of-war or
enemy aliens. However, Mr. Lervy Beaulieu took a more radical approach and rejected the idea of inclusion of
Article 9 . The new position adopted by the French delegation, finally withdrew the proposal of Article 9 from the
list of non-derogable rights. 40 No alteration was made in the UN Third Committee in 1963 regarding the list of non-
derogable rights. 41 It is clear from the debate that there was a consensus on the need for providing within the
derogation clause a list of rights which cannot be suspended by the State even in a public emergency.
(b) The European Convention
The United Kingdom delegate had presented to the Committee of Experts in 1950 the same proposal as the one
presented to the UN Commission of Human Rights in the drafting of the Covenant. The UK proposal contained only
four non-derogable rights, namely, the right to life, freedom from torture and ill-treatment, freedom from slavery, and
the principle of non-retroactivity of penal laws. This list was accepted without modifications. 42
(c) The American Convention
The list of non-derogable rights given in the American Convention of Human Rights is the largest of the three
treaties under study. It contains eleven non-derogable rights. 43
It is important to know how the drafters of the Convention agreed upon the extensive list. The first draft of the
Convention was prepared by the Inter-American Council of Jurists in 1959, it contained the same list of four non-
derogable rights as in the European Convention. The American Convention presented to the San Jose Conference
its own Draft Convention on Human Rights in 1969. 44 The American Convention proposed to protect some rights
from suspension. They are as follows: the right to life; freedom from torture and ill-treatment; freedom from slavery;
principle of non-retroactivity of penal laws; the right to protection against arbitrary arrest; the right to due process of
law; the right of freedom of thought, conscience and religion; the right to recognition of juridical personality and the
right not to be deprived of liberty for debt. 45
Apart from this, there were two other drafts presented by Chile and Uruguay, which contained the same reduced
list of non-derogable rights as the European Convention, although the Uruguayan draft included the right to juridical
personality. There were two types of objections which were raised to the list proposed by the American Convention
Draft. 46
The first one was that there was a general objection by a few States who wanted to suppress the whole provision
due to the fact that it conflicted with their constitutional clauses. Mexico was especially interested in this and wanted
no restrictions in dealing with emergencies. The Mexican proposal to delete the whole provision on non-derogable
rights did not succeed because the provision on non-derogable rights was considered an "essential" one; therefore
Mexico included a formal reservation to this provision in the Final Act of the Conference. According to this
reservation, Mexico could suspend "any right that may be an obstacle in order to cope, rapidly and effectively with
an emergency situation." 47
The second type of objection was to the list proposed by the US delegation, it introduced an alternative text which
protected from derogation only the right to juridical personality, and the rights to life, freedom from torture, freedom
from ex-post facto laws, and freedom of religion. Due to the debate on these different lists of rights, a working group
was set up in the Conference to study the final list of non-derogable rights. 48 Unfortunately, there are no records of
the work of this group and therefore, it is not possible to know the reasons for the changes introduced in the final
list. 49 The changes in respect of the American Convention Draft were substantial: the important rights which protect
human beings from arbitrary arrest and the rights of due process disappeared, as did the right to freedom of thought
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and the prohibition of imprisonment for debt. On the other hand, new rights were included in the list: freedom from
slavery, the right of the family, the right to a nationality, and the important right of participation in government. 50 The
US delegation was not happy with the list and insisted on the inclusion of fundamental Articles 6 and 7 which
dealt with protection from arbitrary arrest and with the right to a fair trial. However, the US proposal was not
accepted. The US delegation again introduced a new amendment in order to include judicial guarantees as a non-
derogableright which is essential for the protection of such rights. 51 This US amendment was approved and
included in the final text of Article 27(2) of American Convention. Thus, as the American Convention has pointed
out, "the American Convention can be proud of being the first international human rights instrument to include
among the rights that may not be suspended essential judicial guarantees for the protection of non-derogable
rights". 52
IX. NON-DEROGABLE RIGHTS AT UNIVERSAL, REGIONAL AND NATIONAL

LEVELS
The non-derogable character of certain fundamental rights (irreducible core) is no longer a doctrinal trend; it finds
its place in treaties relating to international protection of human rights at universal, regional, and national levels. All
available instruments on international protection of human rights contain a derogation clause which permits States
parties to derogate from certain human rights during emergency or war. Article 4 53 of the CP Covenant permits
States parties to derogate from 18 articles in times of officially proclaimed emergencies. Similar provision are
available both under Article 15 , Paragraph (1) 54 of the European Convention on Human Rights and Fundamental
Freedom (hereinafter referred to as European Convention) and Article 27 , Paragraph (1) 55 of the American
Convention on Human Rights (hereinafter referred to as American Convention).
It has been observed that international protection of human rights is essential during crisis situations where States
suspend basic freedoms and frequently commit massive violation of human rights treaties. It is necessary, however,
for improved human rights to be matched by accommodations in favour of the reasonable needs of a State to
perform its public duties for the common good. 56 A variety of techniques are available for effecting such
accommodations, specifically these techniques include the possibility of the denunciation of a treaty. As noted
above, the European Convention and the American Convention attempt to constrain States from suspending
fundamental rights through the use of specific derogation articles.
X. PRINCIPLES RELATING TO DEROGATION

An analysis of the derogation 57 clauses against the background of the general principles of international law
reveals that they are neither anomalous nor a reflection of any main current of customary law. They do reflect a
certain tentativeness about the individual as subject of international law and grave fears by governments about the
consequence of a binding commitment to the international protection of human rights. During an authoritarian
regime, political unrest supplies a welcome pretext for drastic sanctions aimed at the indefinite abrogation of
personal rights and freedoms. Especially vulnerable in such situations are political, religious, and racial minorities
against whom a hostile majority may opportunistically take repressive measures under the guise of dealing
vigorously with a national crisis. 58
It is equally a self-evident principle that the exercise of individual rights cannot be unlimited. In fact, the derogation
59 articles express this concept of reasonable limits, as a tension between individual freedom and the needs of the
community as a whole. A widespread perception clearly reflected that repudiation or suspension of human rights
treaties was inevitable during periods of emergency and that realism demanded the treaties to acknowledge and
provide for such emergencies. The right of derogation, is additional to the right given to State parties to invoke
various limitation clauses so as to restrict the application of certain articles.
The adoption of specific derogation articles in the above mentioned human rights instrument does not offend
general principles of international law. Even Article 57 60 of the Vienna Convention on the Law of Treaties, 1969
permits the suspension of conventional obligations, "in conformity with the provisions of the treaty" and the
derogation clauses supply the specific criteria necessary for the application of this rule.
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However, there is some striking resemblance between the derogation clauses and the customary law doctrine of
necessity, which excuses a breach of international law when (a) a necessity exists and threatens the preservation
of the State, and when (b) the danger is "so imminent and overwhelming that time and opportunity are lacking in
which to provide other and adequate means of defence". 61
Apart from these aspects of customary international law, the influences on the derogation articles also include
municipal laws concerning suspension of rights during wars, internal disturbances and natural disasters.
The municipal law regimes generally mention a number of limitations on the right of derogation. Those limitations
differ from regime to regime. They can be divided into two main categories as suggested by Professor Tyagi: 62 (a)
Procedural limitations, and (b) Substantial limitations.
(a) Procedural Limitations
Any State exercising the right of derogation must satisfy these criteria: 63 (a) that there should be a public
emergency which threatens the life of a nation, and (b) that emergency measures must be strictly required by the
exigencies of the situations. States derogating from certain provisions must also comply with various procedural
requirements, such as an official proclamation of the state of emergency, notification to the relevant institutions.
These are the procedural limitations mentioned under Article 4(3) 64 of the Covenant, Article 15(3) 65 of European
Covenant and 27(3) 66 of American Convention.
It is clear from these procedural provisions that in certain circumstances when ordinary measures are inadequate
to tackle a crisis, in such cases the right to employ exceptional measures arises. The wording used in all the three
instruments demands that the State concerned inform others of the measures it has taken and the reasons therefor.
It is clearly necessary that in times of national emergency the State should be able to impose restrictions on certain
individual rights whose exercise might make it impossible for the State to cope with a serious crisis. Nevertheless,
the proclamation of a State emergency should be accompanied by every possible guarantee, if Article 4 is not to
become an escape clause which nullifies all the safeguards prescribed in the draft Covenant.
(b) Substantive Limitations
It is clear from the above discussion that the right of derogation is very broad. But there are certain rights which
have been recognised as being of non-derogable character at both universal and regional levels. These non-
derogable rights which do not permit any kind of derogation are fundamental rights, the validity of these rights
cannot be called into question irrespective of the acceptance of a derogation clause. At the universal level, the CP
Covenant contains seven immutable core rights under Article 4(2) 67 which does not admit any derogation with
regard to the right to life; the right not to be subjected to torture or to cruel, inhuman or degrading treatment or
punishment; the right not to be held in slavery or servitude; the right not to be imprisoned on the ground of inability
to fulfil a contractual obligation; right against an ex post facto law; the right to recognition everywhere as a person
before the law and the right to freedom of thought conscience and religion. 68
Yet another universal instrument which contains non-derogable rights are the four Geneva Conventions of 1949 69
and Additional Protocols I & II of 1977. 70 These Conventions are applicable only during armed conflict. The
common Article 3 of the four Geneva Conventions, 1949 provides that in non-international armed conflicts all the
Parties involved should observe at least certain basic humanitarian principles. Article 3 71 is the sole provision in
the conventions dealing with internal armed conflicts, now supplemented by Protocol II of 1977. It sets out rules
which apply to "armed conflict not of an international character occurring in the territory of the High Contracting
Parties". In such cases "persons taking no part in the hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds or any other means...are in all
circumstances, to be treated humanely, without any distinction founded on race, colour, religion, or faith, sex, birth
or wealth, or any other similar criteria..." All provisions under Article 3 are "hard core" rights, it contains an
absolute prohibition of violations and not only states this prohibition explicitly in all the appropriate places, but goes
still further, since a large part of the Geneva Convention can be said in practice to be a detailed description of how
to carry out ones duty to treat the victim of war humanely.
Another non-derogable provision is available in Article 4 72 of Protocol II associated to the protection of victims of
non-international armed conflicts, updating the rules in the common Article 3 of the four Geneva Conventions.
On the regional plane, the European Convention does not permit derogation from Article 15(2) 73 in respect of the
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right to life; the right not to be subjected to torture or to inhuman or degrading treatment or punishment; the right not
to be held in slavery or servitude; and the right not to be held guilty in retroactive application of penalties. 74
A catalogue of eleven rights from which no derogation is permitted is mentioned under Article 27(2) of the
American Convention on Human Rights. The list of eleven immutable core rights is largest list of non-derogable
rights in comparison with CP Covenant and the European Convention; CP Covenant has identified only seven non-
derogable rights whereas the European Convention has identified four non-derogable rights. The non-derogable
rights under the American Convention are the right to juridical personality; the right to life; the right to humane
treatment; the freedom from slavery, freedom from ex-post facto laws; the freedom of conscience and religion; the
rights of the family; the right to a name; rights of the child; right to nationality; the right to participate in government;
or of the judicial guarantees essential for the protection of such rights. 75 The European Convention lists only four
non-derogable rightsthe right to life, freedom from torture, and the prohibitions of slavery and ex-post facto laws.
The CP Covenant proclaims seven non-derogable rights; the four enumerated by the European Convention, plus
the prohibition against imprisonment for breach of contractual obligation, the right to be recognised as a person
before the law, and freedom of thought, conscience and religion. By contrast, under the American Convention no
derogation is permitted from eleven specific rights, including the right to nationality and the right to participate in
government. The "judicial guarantees essential for the protection of these rights are also non-derogable under
Article 27(2) ". In spite of this "longer list" of non-derogable rights of the American Convention, it has been
observed that this:
however, permits derogation in emergencies which are much less serious than those envisaged by the other instruments,
and to that extent an expanded list of non-derogable rights is more justified. 76
However, the African Charter on Human and Peoples Rights (hereinafter referred to as African Charter), 77 at
regional level, contains no derogation clause. Instead of opting for a non-derogable provision, the African Charter
preferred to qualify certain rights as absolute rights. 78 Thus, their absolute character under the Charter is
tantamount to the non-derogable character of other human rights treaties.
XI. NON-DEROGABLE RIGHTS UNDER THE INDIAN CONSTITUTION

Fundamental rights are set forth seriatim in Part III of the Indian Constitution. Articles 12 to 35 of the
Constitution deals with the fundamental rights. 79 These rights are not absolute (except Articles 20 and 21 ) but
qualified in the sense that in defining their ambit, ample power is expressly conceded to the State to control them by
law. However, all these rights are justiciable and the Supreme Court (and the State High Courts) have been
equipped to grant protection to these rights in its writ jurisdiction. The justiciability of these rights is itself a
guaranteed right under Article 32(1) which provides, "The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this part is guaranteed". In the same Article, paragraph
(4) it is specified, "the right guaranteed by this Article shall not be suspended except as otherwise provided for by
this Constitution". 80
Under the Indian Constitution the power of suspension of fundamental rights was very wide before 1978. Article
359(1) empowered the President to pass an order to declare that, "the right to move any court for the enforcement
of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the
enforcement of the rights so mentioned shall remain suspended either for the entire period of emergency or for
such shorter period as might be specified in the order". But the situation has changed after the Forty-Fourth
Constitutional Amendment, which says:
When the Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court
for enforcement of such of the rights conferred by Part III (except Articles 20 and 21 )...shall remain suspended for the
period during which proclamation is in force. 81
The Constitutional rights under Article 20 prohibits ex post facto operation of criminal law and confers immunity
against double jeopardy and protection against self-incrimination. Article 21 provides that, "No person shall be
deprived of his life and personal liberty except according to procedure established by law". The rights embedded in
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Articles 20 and 21 are thus non-derogablerights. Even during a state of emergency, these rights cannot be
derogated. In case of any violation the victim has a right to approach the Court for redress. 82
The only difference between Articles 358 and 359 after the Forty-Fourth Amendment is that while the former is
confined to Article 19 , the latter extends to all fundamental rights except those in Articles 20 and 21 .
As soon as the proclamation of emergency ceases to operate, the effect of the suspension imposed vanishes
except in respect of things done or omitted to be done before the emergency law ceases to have effect.
XII. JUS COGENS

The international law recognises a limited number of peremptory norms having the character of supreme law which
cannot be modified by treaty or by ordinary customary law. The origins of jus cogens in international law are not
clear, but the concept is now accepted, and it is expressly referred to in the Vienna Convention on the Law of
Treaties. 83 The main impact of a jus cogens approach towards human rights and humanitarian conventions is that
the State may not derogate from certain rights during periods of national emergency.
It has been observed that human rights treaties have the character of jus cogens. 84 Most areas of human rights
concern, such as humanitarian law, apartheid, genocide, torture, and violations of the right to life are governed by
the norms of jus cogens. At an universal level, in its 1986 and 1987 reports, the Special Rapporteur of the United
Nations Commission on Human Rights on torture asserted that the prohibition of torture, as an erga omnes
obligation, could be considered "to belong to the rules of jus cogens ", the violation of which entailed "the
responsibility of the State towards the international community as a whole". The prohibition of torture, he also
reiterated, "could be considered to belong to the rules of jus cogens , since it is an international obligation of
essential importance for safeguarding the human being from which no derogation is possible". 85 Also at regional
level, on an Advisory Opinion rendered by the Inter-American Court of Human Rights, the Commission argued, that
human rights provisions constitute jus cogens . 86
The notion of the peremptory norms of international law is stated in Articles 53 and 54 of the Vienna Convention
of the Law of Treaties 1969. 87Article 53 provides as follows:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the
purposes of the present convention, a peremptory norm of general international law is a norm accepted and recognised by
the international community of states as a whole as a norm from which no derogation is permitted and can be modified only
by a subsequent norm of general international law having the same character.
Thus, according to this, a peremptory norm necessarily operates with regard to all States, and this on the basis of
the norm having been "accepted and recognised" as peremptory by "the international community of States as a
whole". Even lack of specific acceptance on the part of one or a few States is no obstacle to a norm from becoming
peremptory. Thus, in an Advisory Opinion in 1951, the International Court of Justice recognised the humanitarian
principles underlying the 1948 Convention on the Prevention and Punishment of the Crime of Genocide as "binding
on States, even without any conventional obligation". 88
It is clear by now that once an international norm becomes jus cogens , it is absolutely binding on all States,
whether they have persistently objected or not. 89
The former US Secretary of State Henry Kissinger told the Organisation of American States that "there are
standards below which no government can fall without offending fundamental values, such as genocide, officially
tolerated torture, mass imprisonment or murder, or the comprehensive denial of basic rights to racial, religious,
political or ethnic groups. Any government engaging in such practices must face adverse international judgements".
90
The Restatement of Foreign Relations Law of the United States list six prohibitions affecting human rights or jus
cogens. They are as follows: 91
(a) Genocide
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(b) Slavery or Slave trade

(c) Murder or causing disappearance of individuals
(d) Torture or other cruel, inhuman or degrading treatment or punishment
(e) Prolonged arbitrary detention, and
(f) Systematic racial discrimination.
In addition, the Restatement accepts that a rule of jus cogens will nullify a conflicting treaty 92 and that "the
principles of the United Nations Charter prohibiting the use of force have the character of jus cogens ".
Rights which have attained the nature of jus cogens , may not be derogated from, regardless of the state of
emergency or national disaster facing a sovereign government. It is essential to accord a higher degree of respect
and protection to the physical integrity of mankind. Beyond question, the right to life enjoys the pre-eminent position
within the hierarchy of law. Similarly the right to life is ergaomnes. To sum up according to Professor V.S. Mani, "a
large number of human rights, stemming from the right to life, are non-derogable".
(a) Jus cogens and the International Law Commission
The concept of jus cogens made its first appearance in the draft article prepared by Hersch Lauterpach in his first
report on the law of treaties. 93 He did not use the term in the draft article as jus cogens. Section III of the first draft
was entitled "Legality of the object of the Treaty" and contained in Article 15 which says:
A treaty, or any of its provisions, is void if its performance involves an act which is illegal under international law and if it is
declared so to be by the International Court of Justice.
While commenting on this article, Lauterpacht observed that all rules of international law were not covered by this
article as there were some rules which can be modified by agreement, Modus et Conventio Vincunt legum.
However, treaties which affected third states were unenforceable because of the maxim pacta tertii us nec prosunt
nec nocent. 94
Lauterpacht emphasised that "the test whether the object of the treaty is illegal and whether the treaty is void for
that reason is not inconsistency with customary international law pure and simple, but inconsistency with such
overriding principles of international law which may be regarded as constituting principles of public policy (ordre
international public)". 95
Sir Gerald Fitzmaurice, who succeeded Lauterpacht as the Rapporteur, in his commentary on Article 17 of his
draft which incorporated the concept of jus cogens , commented that, "it is...only as regards of rules of international
law having a kind of absolute and non-rejectable character that the question of the illegality or invalidity of a treaty
inconsistent with them can arise". 96
Article 13 of the Second Report of Sir Humphrey Waldock, which embodied the notion of jus cogens , is as
follows:
1. A treaty is contrary to international law and void if its object or its execution involves the infringement of a
general rule of principle of international law having the character of jus cogens.
2. In particular, a treaty is contrary to international law and void if its object or execution involves:
(a) the use or threat of force in contravention of the principles of the Charter of the United Nations;
(b) any act or omission characterised by international law as international crime; or
(c) any State or omission in the suppression or punishment of which every State is required by international
law to co-operate.
3. If a provision, the object or execution of which infringes a general rule or principle of international law
having the character of jus cogens , is not essentially connected with the principal object of the treaty and
is clearly severable from the remainder of the treaty, only that provision shall be void.
4. The provisions of this Article do not apply, however, to a general multilateral treaty which abrogates or
modifies a rule having the character of jus cogens . 97
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When the relevant draft articles were being discussed by the ILC, Waldock said that he used " jus cogens " for the
lack of a better term. 98 This statement of Waldock has provided an opportunity to members for alternative
terminology. Radha Binod Pal said the term jus cogens was not found in most text books on international law and
that this term was unfamiliar to lawyers trained in common law systems. He states that in fact he also came to be
acquainted with the term as a result of the ILCS discussions. 99 Bridges said that he always avoided the term jus
cogens and suggested an amendment to the text of the draft by the use of "a peremptory norm of general
international law", Hassan, Pal, Bartos and Tunkin favoured "international public order". As a compromise between
the text and the amendment of Briggs, the Drafting Committee accepted "a peremptory norm of general
international law" followed by " jus cogens " within brackets. 100
XIII. OBSERVATIONS ON A HIERARCHY OF NORMS

The quest for a hierarchy among international human rights continues unabated. 101 For a State to enjoy a right
implies that it has possession of legal standing to claim performance of corresponding obligation and, in case of
default, to bring the person or persons owing that obligation to abide by it. The International Court of Justice in the
Reparations case observed that, "Only the party to whom an international obligation is due can bring a claim in
respect of its breach". 102 Two decades later, the International Court of Justice gave direction to the idea of a
hierarchy in the Barcelona Traction 103 case in a famous dictum by suggesting that:
such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into
the body of general international law (Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide , Advisory Opinion, ICJ Reports 1951 , p. 23) others are conferred by international instruments
of universal or quasi-universal character.
"Basic rights of the human person" create obligations ergaomnes 104
When a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it
is bound to extend them the protection of the law and assume obligations concerning the treatment to be afforded
to them. These obligations, however, are neither absolute nor unqualified. In particular an essential distinction
should be drawn between the obligations of a State towards the international community as a whole, and those
arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concerns
of all States. In view of the rights involved all States can be held to have a legal interest in their protection; they are
obligations erga omnes.
This passage has been the subject of differing interpretations, but it seems by making such affirmations the Court
sought to draw a fundamental distinction with regard to international obligations and hence with regard to acts
committed in breach of those obligations. In the Courts view, there are in fact a number, albeit limited, of
international obligations which, by reason of their importance to the international community as a whole, are unlike
the others. It follows, the Court held, the responsibility flowing from those obligations is entailed not only with regard
to the State that has been the direct victim of the breach; it is also entailed with regard to all the other members of
the international community.
The position taken in the judgement on the Barcelona Traction case is perhaps still too isolated to permit the
conclusion that a definite new trend in international judicial decisions has emerged. But there is no doubt that this
position is an important factor in support of the theory which advocates two different regimes of international
responsibility, depending on the content of the obligations breached.
XIV. RELATION BETWEEN TREATIES AND CUSTOMARY LAW AND HUMAN

RIGHTS PROTECTION
The central question of the relation between treaties and customary law leaves its mark also in the field of human
rights protection. The International Court of Justice discussed this issue in North Sea Continental Shelf case, 105
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stating that an article as a norm-creating provision which has generated a rule which has passed into the general
corpus of international law, and is now accepted as such by the opinio juris , have become binding even for
countries which have never, and do not, become the parties to a given Convention. This possibility is nowadays
also admitted in a doctrine which concedes that a multilateral treaty may reflect the practice of States, induce non-
party States to conform to its provisions, and interact with the practice of States in the formation of new custom. 106
This position is also strengthened by Article 38 of the Vienna Convention on the Law of Treaties between States
and International Organisations or between International Organisations admit that nothing prohibits the application
of rules foreseen in a treaty which may extend to third States by force of international custom. 107 The more apt
instance is of the de Martens clause which provided since 1899 that aspects not covered by the Conventions, be
governed by "the laws of humanity and by the dictates of public conscience". Apparently, the Hague Conference
considered "laws of Humanity and dictates of public conscience" to be a jus cogens.
The interaction between custom and treaties can be traced to the beginning of twentieth century, to the second
Hague Peace Conference of 1907. 108 It is clear that this is not an entirely new phenomenon, and international case
law also supports this contention, for example, of decisions in which both treaties in force and general international
law were duly taken into account simultaneously. 109 The contention, with doctrinal support, was that some signed
but unratified Conventions may contribute significantly to the formation of customary international law. This point is
also emphasised in a judgement delivered in 1984 by the International Court of Justice in which it pondered, inter
alia , that codification conventions ought to be seen "against the background of customary international law and
interpreted in its light". 110
There are also express references to custom in human rights Conventions, Article 5(2) of both United Nations
Covenants provides,
There shall be no restriction upon or derogation from any of the fundamental human rights recognised or existing in any
State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present
Covenant does not recognise such rights or that it recognises them to a lesser extent.
At regional levels the African Charter on Human and Peoples Rights, under Chapter IV on "applicable principles"
lists, as "subsidiary measures to determine the principles of law", provides under Article 61 :
The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other
general or special international conventions, laying down rules expressly recognised by Member States of the Organisation
of African Unity, African practices consistent with international norms on human and peoples rights, customs generally
accepted as law, general principles of law recognised by African states as well as legal precedents and doctrine.
In the past, uncertainties which surrounded international custom, as well as general principles of law and equity did
not obstruct the Consultative Committee of Jurists which was appointed by the Council of League of Nations to
prepare the draft for the establishment of a Permanent Court of International Justice, which met at The Hague in
1920, from including those categories in the enumeration of the "sources" of international law of Article 38 of the
PCIJ, presently in ICJ statute. 111
It has been noticed, shortcomings in the form of decision-making in the absence of Conventional authorisation of
international organisations, in the field of human rights, have not hindered some from associating resolutions of
international organisations to the "sources" of contemporary international law, 112 the International Court of Justice
itself on several occasions, applied the internal law of some international organisations 113 and even sometimes
considered in details of some of the United Nations General Assembly resolutions, 114 despite the silence of Article
38 of the ICJ Statute on the issue, interaction between treaties and customary law extended so as to encompass
other manifestations of international law.
XV. CONCLUSION
From the foregoing discussion it is clear that human rights despite different classifications accorded to them,
variations in their formulation, and the multiplicity of co-existing mechanisms and procedures devised for their
protection at global or regional levels, disclose a fundamental conceptual unity, that they all inhere in the human
Page 15 of 20
person, in whom they also find their ultimate point of convergence. It is from this outlook that the issue of the co-
existence and co-ordination of those mechanisms and procedures of protection is to be properly approached. It is
accepted that certain basic rights have an imperative character as they are recognised as non-derogable rights. It is
also generally recognised that these non-derogable rights are essential components of the right to life, a
fundamental human right that it can be attributed the status of jus cogens. Hence the prohibition against their
derogation by a State under any circumstances.
Hence the importance of a study of the implementation of the non-derogable human rights.
1 Cf. Maurice Cranston, What are Human Rights? (London, 1973), p. 9.

2 Hersch Lauterpacht, International Law and Human Rights (New York, 1950), pp. 73-91.
3 Mahendra P. Singh, "Human Rights in the Indian Tradition; An Alternative Model", NUJS Law Review , vol. 2 (2009),
pp. 145-182.
4 V.S. Mani, "Human Rights in India: An Overview" (unpublished, 1997), pp. 1-63.
5 Cf. Inaugural Speech delivered by the President of India, Shankar Dayal Sharma, on Human Rights Education (16
February, 1996), New Delhi.
6 Mani, n. 4, p. 7.
7 Ibid ., p. 8.
8 Ibid ., p. 10.
9 P.V. Kane, History of Dharmasastra (Poona, 1973), vol. 2, p. 56.
10 Ibid ., p. 56.
11 Ibid ., p. 56.
12 Ibid ., p. 59.
13 Ibid ., p. 59.
14 Ibid ., p. 59. King Asoka of the Maurya dynasty had constructed hospitals for men and animals, alms houses, rest
houses, watering places, shady trees on the highways and irrigation works, visited and supported the aged.
15 The Guardian, "The Human Rights Act: 800 Years in the Making" http://www.guardian.co.uk visited on 13 April, 2013.
16 Louis Henkin, The Rights of Man Today (London, 1979), pp. 1-18.
17 Francis William Coker, Reading in Political Philosophy (New York, 1942).; David Boucher, The Limits of Ethics in
International Relations: Natural Law, Natural Rights and Human Rights in Transition (Oxford, Oxford University Press,
2009); Charles Beitz S., The Idea of Human Rights (New York, Oxford University Press, 2009); Burton Hafner, M.
Emilie Making Human Rights a Reality (New York, Oxford University Press, 2013).
18 H.L.A. Hart, "Utilitarianism and Natural Rights", Tulane Law Review (Louisiana), vol. 53 (1979), pp. 661-83.
19 Louis Henkin, "Rights: American and Human", Columbia Law Review (New York), vol. 79 (1979), p. 405; Louis Henkin,
The Age of Rights (New York, Columbia University Press, 1990).
20 H.L.A. Hart, "Positivism and the Separation of Law and Morals", Harvard Law Review (Massachusetts), vol. 71 (1958),
pp. 543-630.
21 Lon L. Fuller, "Positivism and Fidelity to Law - A Reply to Professor Hart", Harvard Law Review , vol. 71 (1958), pp.
630-72.
22 It remained legal in United States until 1863, in Brazil till 1880. It was prohibited in the British colonies in 1807. The
institution of slavery was also abolished in France, and under the Treaty of Paris of 1814 the British and French
governments agreed to cooperate in the suppression of the traffic in slaves. This undertaking was generalized and
accompanied by a solemn condemnation of practice by Austria, France, Great Britain, Portugal, Prussia, Spain,
Sweden and Russia at the Congress of Vienna in 1815. Cf. A.H. Robertson, Human Rights in the World (Manchester,
1973), p. 15.
23 Cf. Jan Herman Burgers, "The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth
Century", Human Rights Quarterly , vol. 14 (1992), pp. 447-77, p. 468.
24 Ibid ., p. 468.
Page 16 of 20
25 Scott Davidson, Human Rights (London, 1992).; Nigel Rodley, "The Universal Declaration of Human Rights" Essex
Human Rights Review , vol. 5, n. 1 (2008), pp. 1-6.
26 The Universal Declaration of Human Rights was adopted by UN General Assembly in Resolution 217A (III) of 10
December, 1948. 48 states voted in favour and eight members abstained from voting. The abstaining states were:
Byelorussian SSR, Czechoslovakia, Poland, Saudi Arabia, Ukrainian SSR, USSR, Union of South Africa and
Yugoslavia.
27 Jay Winter and Antoine Prost, Rene Casin and Human Rights : From Great War to the Universal Declaration
(Cambridge, Cambridge University Press. 2013); Johannes Morsink, The Universal Declaration of Human Rights:
Origins, Drafting and Intent (Philadelphia, University of Pennsylvania Press, 2000); Mary Ann Glendon, Eleanor
Roosevelt and the Universal Declaration of Human Rights (New York, Random House, 2001).
28 The establishment of a Commission on Human Rights (CHR) was recommended in 1945 by the Preparatory
Commission of the United Nations in order to deal with human rights issues which could not be resolved during the
original drafting of the Charter. At its first session in 1946, Economic and Social Council established the CHR. CHR
now consists of 53 (93 until 1991) persons elected from the UN members who serve the CHR in their capacity as
governmental representatives.
29 The International Covenant on Economic, Social and Cultural Rights adopted under UN General Assembly Resolution
2200A (XXI) on 16 December, 1966, entered into force on 3 January, 1976. The International Covenant on Civil and
Political Rights, also adopted under UN General Assembly Resolution 2200 A (XXI) on 16 December, 1966, and an
Optional Protocol to the CP Covenant. Each Covenant was adopted unanimously. The Optional Protocol was accepted
by a vote of 66 to 2, with 38 abstentions. The United States, most Western and Latin American nations, and many Afro-
Asian nations voted in favour of the Optional Protocol. All the Communist nations abstained, in the company of a
diverse group of other nations including Spain, Ethiopia, Haiti, Japan, Liberia, Greece and India. Only Niger and Togo
voted against the Optional Protocol.
30 Adopted under UN General Assembly resolution 2106A (XX) on 21 December, 1965, it came into force on 4 January,
1969.
31 See Human Rights International Instruments: Signatories, Ratification (New York, 1982).
32 Henry, J. Steiner, and Philip Alston, International Human Rights Law in Context: Law, Politics and Morals (London:
Clarendon Press, 2008); Guglielmo Verdirame, The UN and Human Rights : Who Guards the Guardians? (Cambridge,
Cambridge University Press, 2013).
33 Commission on Human Rights, 5th Session (May 9-June 20, 1949), A/2929.
34 Article 4(2) says, "No derogation from articles 6 , 7 , 8 (Paragraphs 1 and 2), 11, 15, 16 and 18 may be made under
this provision".
35 E/CN. 4/SR.127, pp. 3-4 (USA).
36 Commission on Human Rights, 6th Session, 27 March-19 May, 1950, E/CN.4/SR. 136-201.
37 Article 4(2) was adopted by a roll-call vote by 11 votes to none with 3 abstentions. The countries which voted in favour
were as follows: Australia, Denmark, Egypt, France, Greece, India, Lebanon, Philippines, United Kingdom, USA and
Yugoslavia. Belgium, Chile and Uruguay abstained from voting, E/CN.4/SR.196, pp. 27-28.
38 E/CN. 4/SR. 195, p. 23.
39 Ibid ., para. 154.
40 E/CN. 4/SR. 196, paras 21 and 23.
41 GAOR, Session 18, Cttee. Third, Mtg. 1259, 1963, pp. 247-51.
42 Jaime Orra, Human Rights in States of Emergency in International Law (London, 1995), p. 91.
43 Ibid ., p. 91.
44 Ibid ., p. 92.
45 Ibid.
46 Ibid ., p. 92.
47 Ibid ., p. 93. Reservation of Mexico to Article 27(2) , statements included in the Final Act, San Jose Conference (1969).
Mexico did not confirm this reservation when it ratified the American Convention.
48 Ibid ., p. 93.
49 Ibid.
50 Ibid.
Page 17 of 20
51 Ibid ., p. 94.
52 Clara Burban Herrea, Provisional Measures in the Case law of Inter-American Court of Human Rights (Cambridge,
United Kingdom, 2010).
53 Article 4(1) provides, "In time of public emergency which threatens the life of the nation and the existence of which is
officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations
under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations under international law and do not involve discrimination
solely on the ground of race, colour, sex, language, religion or social origin".
54 Article 15(1) provides, "In time of war or other public emergency threatening the life of the nation any High Contracting
Party may take measures derogating from its obligations under this Convention to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent with other obligations under international
law".
55 Article 27(1) provides, "In time of war, public danger, or other emergency that threatens the independence or security
of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and
for the period of time strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law and do not involve discrimination on the ground of race,
colour, sex, language, or social origin."
56 Myres S. Mcdougal, "Human Rights and Public Order: Principles of Content and Procedure for Clarifying General
Community Policies", Virginia Journal of International Law , vol. 14 (1974), pp. 386-90.
57 Significantly neither the Universal Declaration of Human Rights nor the International Covenant on Economic, Social
and Cultural Rights which allows progressive realisation of its provisions, contains any derogation clause. See, Rosalyn
Higgins, "Derogations under Human Rights Treaties", British Yearbook of International Law , vol. 48 (1977-78), pp. 280-
320; Joan F. Hartman, "Derogations from Human Rights Treaties", Harvard International Law Journal , vol. 22 (1981),
pp. 1-52; Oscar M. Garibaldi, "General limitations on Human Rights: The Principle of Legality", Harvard International
Law Journal , vol. 17 (1976), pp. 503-57, Daniel ODONNELL, "States of Exception", International Commission of Jurists
(Geneva), vol. 21 (1978), pp. 52-60; Stephen P. Marks, "Principles and Norms of Human Rights Applicable in
Emergency Situations: Underdevelopment, Catastrophes and Armed Conflicts", in Vasak, ed., International Dimension
of Human Rights , vol. 1, 1984, pp. 177-200.; M Hafner- Burton Emilie, Laurence R. Helfer and Christopher J. Fariss,
"Emergency and Escape : Explaining Derogations from Human Rights Treaties:" International Organisations , vol. 65,
Fall 2011, pp. 673-707.
58 A few instances worthy of note here are the application of torture to supposed leftists in Greece and Chile, the unequal
use of detention and internment against Catholics in Northern Ireland, the wartime internment of native born citizens of
Japanese ancestry in the United States and the holocaust in Germany.
59 It will be seen that a variety of techniques are available for effecting such accommodations: these techniques include
the possibility of the denunciation of a treaty, reservations as to its terms, articles stating that individual rights can only
be exercised in conformity with the right of others, clauses in the text interpreting the scope of rights guaranteed,
"clawback" clauses and derogations clauses strictosensu. By a "clawback" clause is meant that one permits, in normal
circumstances, breach of an obligation for a specified number of public reasons. Derogations strict sensu are those
which allow suspension or breach of certain obligations in circumstances of war or public emergency, these are all
techniques of accommodation, providing for a wide variety of possibilities". Cf. Higgins, n. 57, pp. 281-82.
60 Article 57 of Vienna Convention of Treaties says, "The operation of a treaty in regard to all the parties or to a particular
may be suspended:
(a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the other contracting States."
61 Hartman, n. 57, p. 13; Comparing the doctrine of necessity to the derogation clauses raises another interesting point-
whether the right to derogate excuses a breach or if, by suspending treaty obligations, it prevents a breach from ever
occurring. The end result is the same, i.e ., no breach, and little depends on the issue other than the structure of
opinions by the European Commission and Court in derogation cases. Sir Gerald Firzmaurice in his separate opinion in
Judgement of the European Court of Human Rights, Ireland v. UK [1978] Eur. Cttee. of Human Rights ser. A. at 132-
33, objected to the Courts consideration of the Article 5 issues before reaching Article 15 , on the ground that this put
the derogating government in the "false position" of appearing to be a treaty violator. He saw Article 15 operating
"retrospectively" to prevent a breach rather than making the acts "excusable".
62 Yogesh K. Tyagi, "Human Dignity, National Security and International Responsibility: Search for a Symbiosis", in K.P.
Saksena, ed., Human Rights: Perspective and Challenges (New Delhi, 1994), pp. 45-78, p. 52.
63 The United Kingdom had submitted these two criteria to Drafting Committee. The Drafting Committee was appointed in
1947 by the Commission on Human Rights to prepare a draft declaration and Covenant on Human Rights.
64 Article 4(3) says, "Any State Party to the present Covenant availing itself of the right of derogation shall immediately
inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the
Page 18 of 20
United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further
communication shall be made, through the same intermediary, on the date on which it terminates such derogation".;
General Comment No.29, on Derogation, adopted on July 2001, available at
http://ccprcentre.org/doc/ICCPR/General%20 Comments/CCPR.C.21.Rev1.Add11_%28GC29%29_En.pdf visited on
12 July, 2013.
65 Article 15(3) says, "Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-
General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall
also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the
provisions of the Convention are again being fully executed".
66 Article 27(3) says, "Any State Party availing itself of the right of suspension shall immediately inform the other State
Parties, through the Secretary-General of the Organisation of American States, of the provisions the application of
which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such
suspension".
67 Article 4(2) says, "No derogation from articles 6 , 7 , 8 (Paragraphs (1) and (2), 11, 15, 16 and 18 may be made
under this provision).
68 Articles 6 , 7 , 8(1) and (2) , 11 , 15 , 16 and 18 respectively.
69 See, Jean S. Pictet, Geneva Convention Relative to The Protection of Civilian Persons in Time of War (Geneva, 1958).
70 Protocol Additional I to the Geneva Convention of 1977, came into force on 7 December 1978, U.N. Doc.
A/32/144/Annex I (1977), in vol. 16, (1977), p. 1391. Protocol Additional II to the Geneva Conventions of 1949 came
into force on 7 December 1978, U.N. Doc. A/32/144/Annex II(1977), vol. 16 (1977), p. 1442.
71 See for text, Pictet, n. 69.
72 See for text, International Legal Materials , vol. 16, no.6 (1977), p. 1444.
73 Article 15(2) provides, "No derogation from Article 2 , except in respect of death resulting from lawful acts of war, or
from Article 3 , 4 (paragraph 1) and 7 shall be made under this provision".
74 Articles 2 , 3 , 4(1) and 7 respectively.
75 Articles 3 , 4 , 5 , 6 , 9 , 12 , 17 , 18 , 19 , 20 and 23 respectively.
76 Thomas Buergenthal, "The Inter-American System for the Protection of Human Rights", in Theodore Meron, ed.,
Human Rights in International Law: Legal and Policy Issues (Oxford, 1984), p. 450.
77 African Charter on Human and Peoples Rights, adopted 27 June 1981, for text see, International Legal Materials , vol.
21, no. 1 (1982), pp. 58-68.
78 U.O. Umozurike, "The African Charter on Human and Peoples Rights", American Journal of International Law , vol. 77
(1983), p. 9. Article 4 which provides that, "Human being are inviolable. Every human being shall be entitled to respect
for his life and the integrity of his person. No one may arbitrarily be deprived of this right".
79 These rights are as follows: Right to Equality (Articles 14 to 18 ); Right to Freedom (Articles 19 to 22 ); Rights
Against Exploitation (Articles 23 and 24 ); Right to Freedom of Religion (Articles 25 to 28 ); Cultural and Educational
Rights (Articles 29 and 30 ); Right to Property (Article 31 ); Right to Constitutional Remedies (Article 32 ). Right to
Property was deleted as a fundamental right vide 44th Amendment, 1978 and made a legal right under Article 300A.
80 Durga Das Basu, Constitutional Law of India (New Delhi, 1976), ed. 6, p. 114.
81 The Constitution Forty-Fourth Amendment Act, 1978, Sec. 40, for the rights conferred by Part III (w.e.f. 20 June, 1979).
82 Even the Siracusa Principles on the Limitation and Derogation Provisions in the CP Covenant (1984), supports this,
"The ordinary Courts shall maintain their jurisdiction, even in a time of public emergency, to adjudicate any complaint
that a non-derogable right has been violated". Siracusa principle, International Commission of Jurists , no. 36 (1986),
pp. 47-56, p. 52.
83 For the text of "Vienna Convention on the Law of Treaties", see International Legal Materials (ILM), vol. 8 (1969), pp.
679-735.
84 Egon Schwelb, "Some International Aspects of Jus Cogens", American Journal of International Law , vol. 61 (1967),
pp. 946-975; Karen Parker and Lyn Beth, "Jus Cogens: Compelling the Law of Human Rights", Hastings International
and Comparative Law Review , vol. 12 (1989), pp. 412-63; V. Nageshwar Rao, "Jus Cogens and Vienna Convention on
the Law of Treaties", Indian Journal of International Law , vol. 14 (1974), pp. 362-85.
85 UN Commission on Human Rights, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (report
by the Special Rapporteur, P. Koojimans), UN Doc. E/CN. 4/1987/13 of 9 January, 1987, pp. 13-15.
86 Cf. A.A. Concado Trindade, "Co-existence and Co-ordination of Mechanisms of International Protection of Human
Rights (At Global and Regional levels)", Recueil des Cours , vol. 12, Part-II (1987), p. 87.
Page 19 of 20
87 For text of "Vienna Convention on the Law of Treaties", see International Legal Matereials , vol. 8 (1969), pp. 679-735.
88 Case of Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion of 28 May, 1951, ICJ Reports (1951), p. 23. "The origins of the Convention show that it was the intention of the
United Nations to condemn and punish a genocide as "a crime under international law" involving a denial of the right of
existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to
humanity, and which is contrary to moral law bad to the spirit and aims of the United Nations (Resolution 96(1) of the
General Assembly, December 11, 1946). The first consequence arising from this conception is that the principles
underlying the Convention are Principles which are recognised by civilised nations as binding on States, even without
any conventional obligation. A second consequence is the universal character both of the condemnation of genocide
and of the co-operation required "in order to liberate mankind from such an odious scourge" (Preamble to the
Convention). The Genocide Convention was therefore intended by the General Assembly and by the contracting parties
to be definitely universal in scope.
89 Nicaragua v. United States Case, ICJ Report , 1986, pp. 114-17.
If a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appealing to exceptions
or justifications contained with the rule itself...the significance of that attitude is to confirm rather than weaken the rule.
The Court found that the United States is bound by the jus cogens principles prohibiting the use of force though the United
States "objected" by claiming justifications.
90 Department of State Bulletin , no. 1932 (1976), vol. 1, p. 3.
91 Restatement (Third) of Foreign Relations Law 702 (1987).
Not all human rights norms are peremptory norms (jus cogens) but those in clauses (a) to (f) of this section are, and an
international agreement that violates them is void.
92 Ibid.
93 Yearbook of International Law Commission , vol. 2 (1950), p. 153.
94 Cf. Rao, n. 84, p. 370.
95 Yearbook , n. 93, p. 155.
96 Fitzmaurices Third Report, Yearbook of International Law Commission , vol. 2 (1958), p. 40.
97 Rao, n. 82, pp. 371-72; In this report Waldock pointed out that the Netherlands Government had suggested that it may
be a "plenasm" to State, in draft article 37 , "a preemptory (sic.) norm from which no derogation is permitted".
The term "peremptory norm" might, no doubt, suffice by itself to convey the notion of a rule of jus cogens character, if there
were an existing usage clearly giving that meaning to the term. But this is not the case. Moreover, all general rules of
international law have a certain peremptory character in the sense that they are obligatory for a State unless and until
they have been set aside by another lawfully created norm derogating from them. A general rule possess a jus cogens
character only when individual States are not permitted to derogate from the rule at all not even by agreement in their
mutual relations. In short a jus cogens rule is one which cannot be derogated from but may only be modified by the
creation of another rule which is also of a juscogens character. Accordingly, in formulating the article, the Commission
considered it essential to speak not merely of a "peremptory" norm but of one from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law having the same character, Cf.
Majorie M. Whiteman, "Jus Cogens in International Law, with a Projected List", Georgian Journal of International and
Comparative Law , vol. 7 (1977), pp. 618-19.
98 Yearbook of International Law Commission , vol. 1 (1963), p. 62, para. 25.
99 Ibid ., p. 69, para. 91.
100 Rao, n. 84, p. 373.
101 Prosper Weil, "Towards Relative Normativity in International Law", AJIL , vol. 77 (1983), pp. 413-42.
102 Reparation For Injuries Suffered In The Service Of The United Nations, ICJ Reports , 1949, p. 174.
103 Case Concerning Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) , ICJ Reports , 1970, p.
32.
104 Ibid ., p. 32.
105 North Sea Continental Shelf Cases, ICJ Reports (1969), p. 41.
106 M. Akehurst, "The Hierarchy of the Sources of International Law", British Yearbook of International Law , vol. 47 (1974-
75), pp. 273-85.
107 United Nations Conference on the Law of Treatiesofficial Records (Documents of the Conference), UN Doc. A/CON.
39/11/Ad. of 1971, pp. 50-51.
Page 20 of 20
108 "The general participation clause of Article 2 of the Hague Convention respecting the Laws of Customs of War on
Land of 18 October, 1907 providing that this Convention shall not apply "except between contracting powers, and then
only if all belligerents are Parties to the Convention" did not prevent the Convention from being applied as customary
international law to conflicts where the Convention had not been accepted by all the belligerents".
109 In the case of The United States Diplomatic and Consular Staff in Tehran (United States v. Iran) ,. ICJ Reports , 1980,
pp. 24, 40.
110 Gulf of Maine Case, ICJ Reports (1980), p. 291.
111 Marten Boz, "The Recognised Manifestations of International Lawa New Theory of Sources", German Yearbook of
International Law , vol. 20 (1977), pp. 33-39.
112 D.H.M. Johnson, "The Effect of Resolutions of the General Assembly of the United Nations", British Yearbook of
International Law , vol. 32 (1955-56), pp. 9-122. F.B. Sloan, "The Binding Force of a Recommendation of the General
Assembly of the United Nations", British Yearbook of International Law , vol. 25 (1948), pp. 1-33. S.A. Bleicher, "The
Legal Significance of Recitation of General Assembly Resolutions", American Journal of International Law , vol. 63
(1969), pp. 444-78; V.S. Mani, Basic Principles of International Law (New Delhi, 1993), Rahmatullah Khan, "The Legal
Status of the Resolutions of the UN General Assembly", Indian Journal of International Law , vol. 19 (1979), pp. 552-60;
O.Y. Asamoh, Legal Significance of the Declarations of the General Assembly of the United Nations (Hague, 1966);
Oscar Schachter, et.al., Toward Wider Acceptance of UN Treaties (New York, 1971).
113 Cf. Trindade, n. 86, p. 86.
114 Nicaragua v. United States, ICJ Reports (1986).
End of Document
CHAPTER 2 Non-Derogable Human Rights
Manoj Kumar Sinha
Human Rights

This chapter will mainly be confined to a content analysis of non-derogable rights. The first chapter dwelt on non-
derogable rights available both in universal as well as regional human rights instruments, chiefly from a conceptual
point of view. As noted already, the International Covenant on Civil and Political Rights (hereinafter referred to as
the CP Covenant) contains seven non-derogable rights, the European Convention only four and the American
Convention, the longest list of eleven.
The first part is intended to cover only common irreducible core rights embodied in international and regional
conventions. There are four non-derogable rights common to all these human rights instruments. They are:
(a) Right to life; 1

(b) Right not to be subjected to torture; 2
(c) Right not to be held in slavery or servitude; 3
(d) The right not to be held guilty in retroactive application of criminal law (ex-post facto laws). 4
This chapter is intended to cover these four common irreducible core rights, and the rest of the non-derogable
rights.
SECTION I: RIGHT TO LIFE

I. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
The right to life 5 under the CP Covenant is the first, and naturally the most important, non-derogable right placed
under Article 6 which reads:
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the
most serious crimes in accordance with the law in force at the time of the commission of the crime and not
contrary to the provisions of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement
rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall
authorise any State Party to the present Covenant to derogate in any way from any obligation assumed
under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty,
pardon or commutation of the sentence of death may be granted.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and
shall not be carried out on pregnant women.
6. Nothing in this Article shall be invoked to delay or to prevent the abolition of capital punishment by any
State Party to the present Covenant.
Page 2 of 29
The right to life is the only right in the CP Covenant which is expressly described to be "inherent" in every human
being. It is one of the rights under Article 4 , Paragraph 2 of the Covenant from which no derogation is permitted
even during the "time of public emergency which threatens the life of the nation".
The summary of the discussion in the United Nations which took place in the Commission on Human Rights and in
the Third Committee of the General Assembly states that, "there was general agreement regarding the importance
of safeguarding the right of everyone to life through the CP Covenant although various opinions were held as to
how the right should be formulated". 6 Numerous views were expressed during discussion of Article 6(1) . One view
was that the Covenant should enunciate the principle that no one should be deprived of life under any
circumstances. It was argued that in drafting an Article on the right to life, which was the most fundamental of all
rights, no mention should be made of circumstances under which the taking of life might seem to be condoned. 7
However, against this view, the delegates of USA and UK contended that the Covenant must be realistic: that
circumstances existed under which the taking of life was justified. 8
A second view was that it was desirable for the Covenant to define as precisely as possible the exact scope of the
right and the limitations in order to dispel uncertainty about the obligations of the contracting parties. For example, a
number of exceptions which would not violate Article 6(1) were proposed. They were as follows:
(a) execution of death sentence proposed in accordance with the law;

(b) killing in self-defence or defence of another;
(c) death resulting from action lawfully taken to suppress insurrection, rebellion or riots;
(d) killing in attempt to effect lawful arrest or preventing the escape of a person in lawful custody;
(e) killing in the case of enforcement measures authorised by the UN Charter;
(f) killing in defence of persons, property or State in circumstances of grave civil commotion;
(g) killing for violation of honour.
It was also pointed out that this list of exceptions would necessarily be incomplete and might convey the
impression that greater importance was being given to the exceptions than to the right. 9 An Article drafted in such
terms would seem to authorise killing rather than safeguard the right to life.
A third view was that a general formulation which did not list exceptions was preferable. The Article should simply
but categorically affirm that "no one shall be arbitrarily deprived of his life" 10 and that "everyones right to life shall
be protected by law". It was explained that a clause providing that no one should be deprived of his life "arbitrarily"
would indicate that the right was not absolute and obviate the necessity of setting out the possible exceptions in
detail. 11 However, it should be observed that the use of the term "arbitrarily" was heavily criticised both in the
Commission for Human Rights and in the Third Committee of the General Assembly on the ground that it was
vague and open to many different interpretations.
In recent years, the question which has been frequently brought before both national tribunals and international
organs for the implementation of human rights, is that of compatibility of abortion and certain other means of birth
control with the right to life. The legality of abortion is a much debated question, turning as it does upon the
determination of when the life that is to be protected commences. An amendment was submitted, which led to the
discussion as to whether the right to life should be protected by law from the moment of conception. 12 Those
countries which supported the amendment maintained that it was only logical to guarantee the right to life from the
moment life began. The provision of paragraph 4 of the draft Article was aimed at the protection of the life of the
unborn child whose mother was sentenced to death; that protection should be extended to all unborn children. On
the other hand it was opposed by a number of countries, as according to them, to determine the moment of
conception, the proposed clause would involve the question of the rights and duties of the medical profession. It
was also argued that acceptance of this provision was inappropriate because legislation on the subject was based
on different principles in different countries. 13
The clause providing that from the moment of conception, the right to life shall be protected by law, was rejected. 14
But Article 6(5) aimed in part at the protection of the life of the unborn child whose mother is sentenced to death. It
seems from the debate that the intention of paragraph 6(5) which was inspired by humanitarian consideration for
the unborn child, was that the death sentence, if it concerned a pregnant woman, should not be carried out at all.
However, it was pointed out that the provision, in its present formulation might be interpreted as solely to the period
preceding child birth. 15
Page 3 of 29
The purpose of making the right to life non-derogable has been diluted by permitting death penalty. It seems that
abolition of death penalty is desired by the CP Covenant, in particular paragraph 6 of Article 6 . 16
The only protection provided by Article 6(2) , which states that the death penalty can only be carried out pursuant
to a final judgement rendered by a competent court. Article 6(1) prohibits the imposition of death sentence if the
measures taken by the State, during the time of emergency or in such other exceptional circumstances, is viewed
as "arbitrary". In an important report, Wako has argued that:
...the term "arbitrary" in Article 6(1) of the Covenant coupled with the provision in Article 6(2) that the sentence of
death may not be imposed "contrary to the provisions of this Covenant", can be interpreted to mean that procedural
safeguards of Article 14 cannot be derogated from even during public emergency in the hearing of a case where a
death penalty can be imposed. Article 6(2) has an effect of bringing the procedural guarantees within the
entrenched provisions as it relates to the death penalty. 17
Regarding the clause in paragraph 2 of Article 6 the question was raised by the Australian delegate 18 whether
reference should be made to the Genocide Convention. 19 It was argued on the one hand that since there was no
overlapping between the Convention and the Covenant, the Covenant could not operate so as to supersede, modify
or prejudice the Convention or any of its provisions and that consequently the reference to the Convention
appeared to be unnecessary. On the other hand, it was emphasised that a reference to the Convention was
necessary since the individuals right to life could not be safeguarded adequately if the group to which he belonged
was threatened with extinction. Besides the reference would serve as a further limitation on the imposition of death
penalty. One matter under Article 6 that has been subjected to close analysis is use of death penalty. 20 There are
six limitations on the imposition and implementation of the death sentence. These limitations are as follows:
(a) A sentence of death may only be imposed for serious crimes;

(b) It must be in accordance with the law in force at the time of commission of the crime;
(c) It must not be contrary to the other provisions of the Covenant or the Genocide Convention;
(d) It can only be carried out pursuant to a final judgement rendered by a competent court;
(e) It shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried out
on pregnant women;
(f) any person sentenced to death shall have the right to seek pardon or commutation of the sentence.
While it follows from Article 6(2) that State parties are not obliged to abolish the death penalty totally, they are
obliged to limit its use and, in particular to abolish it for offences other than the "most serious crimes".
For proper implementation of this non-derogable right, the responsibility falls on the national legislature to establish
the violation of the right to life as a crime and to take all necessary measures to check any such violations. For
example, genocide, the crimes committed against any ethnic, racial, or religious group or groups. 21
There is no doubt that abolition of capital punishment was a highly controversial question. So it was decided to
leave the problem to each State concerned to resolve. However, in order to avoid the impression that the CP
Covenant sanctioned capital punishment, State parties agreed to add a clause to the effect that nothing in the
Article should be invoked to delay or prevent the abolition of capital punishment by any State party to the Covenant.
II. EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS
The right to life is the first non-derogable human right under the European Convention. There are certain
permissible exceptions to it, which are embodied in the text of Article 2 of the Convention:
1. Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in
the execution of a sentence of a Court following his conviction of a crime for which this penalty is provided
by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the
use of force which is no more than absolutely necessary:
Page 4 of 29
(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
The first sentence of Article 2(1) states that "everyones right to life shall be protected by law". This provision
establishes a positive obligation for States to make adequate provision in their law for the protection of human life.
The taking of life must generally be illegal under a States law. The positive duty to protect the right to life "by law"
includes the duty to effectively implement the law.
The duty to enforce the law to protect the life also demands the fair investigation of all dubious deaths. To begin
the investigation of deaths, Article 2 can require the investigation of the disappearance of individuals, including
political "disappearances", in circumstances that may suggest death. The European Commission while dealing with,
McCann, Farrell and Savage v. UK, 22 held that the obligation to protect life includes a "procedural aspect" which
includes the minimum requirement of a mechanism whereby the circumstances of a deprivation of life by the agents
of a State may receive public and independent scrutiny. 23
A major question which Article 2(1) involves is whether the right to life of an unborn child be protected. In Paton v.
UK, 24 the European Commission ruled that the abortion of a ten-week-old foetus under the British law to protect the
physical or mental health of a pregnant woman was not a breach of Article 2 . According to it, Article 2 does not
recognise an absolute right to life of an unborn child. However, the Commission left unanswered the controversial
question whether Article 2 does not protect the unborn child 25 at all or whether the foetus has a right to life under
that provision subject to certain implied limitations. The Commissions position was further clarified in H. v. Norway .
26 This case involved a lawful abortion of a fourteen week old foetus on the statutory ground that the "pregnancy,
birth or care for the child may place the woman in a difficult situation of life". It was held not to be contrary to Article
2 . The key to the Commissions decision in this case was that national laws on abortion varies considerably within
the States parties to the Convention. In view of this it considered that in such a delicate area the contracting States
must have a certain discretion. It then held in this case that the defendant States law, as it was applied to the facts
of the case, did not exceed this "discretion".
(a) Limitation as to the Taking of Life
Article 2 is a provision from which derogation is not permitted in times of war or public emergency under Article 15
. 27 There are four exceptions permitted under Article 2 , and except for those permitted exceptions, Article 2
prohibits the actual taking of life.
Capital Punishment
The first exception concerns the death penalty, which is expressly allowed by Article 2(1) . However, the Sixth
Protocol to the Convention abolishes the death penalty during peacetime for the parties to it. But, Article 2 remains
the governing provision for those parties to the Convention which have not ratified the Sixth Protocol. 28
(b) Deaths Resulting from the use of Force for Permitted Purposes
Article 2(2) provides three other situations in which the taking of life by the State is valid. These situations are
when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;

Article 2(2)(a) and (b) permit taking of life only if the "absolutely necessary" test is satisfied. This test was found to
have been complied in Walfgram v. FRG 29 The use of force to effect an arrest under Article 2(2)(b) was an issue
mainly in the two Northern Irish cases of Farrell v. UK 30 and Kelly v. UK . 31 All these cases are dealt with in detail
in Chapter V.
Action Lawfully Taken for the Purpose of Quelling a Riot and Insurrection
The terms "riot" and "insurrection" in Article 2(2)(c) have an independent meaning under the European
Convention. In the Stewart case, the Commission observed that as in the case of other permitted exceptions, the
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strict interpretation of the "absolutely necessary" requirement adopted in the Stewart case is important in ensuring
caution on the part of law enforcement officers when dealing with large crowds at public meetings and
demonstrations that get out of control.
The exact meaning of the right to life in Article 2 of the Convention has been the subject of a number of cases
before the European Commission of Human Rights but has not so far been considered by the European Court of
Human Rights. The Commission has explored the meaning of the positive obligation upon the State in Article 2 to
protect life, although it has still to answer a number of questions as to the scope of this obligation.
III. AMERICAN CONVENTION ON HUMAN RIGHTS
Article 4 of the American Convention provides:
1. Every person has the right to have his life respected. This right shall be protected by law, in general, from
the moment of conception. No one shall be arbitrarily deprived of his life.
2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes
and pursuant to a final judgement rendered by a competent court in accordance with a law establishing
such punishment, enacted prior to the commission of the crime. The application of such punishment shall
not be extended to crimes to which it does not presently apply.
3. The death penalty shall not be re-established in States that have abolished it.
4. In no case shall capital punishment be inflicted for political offences or related crimes.
5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were
under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.
6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of
sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a
petition is pending decision by the competent authority.
This is the second non-derogable right 32 under the American Convention on Human Rights (hereinafter American
Convention), the first being the right to juridical personality. This right too has a few exceptions, like the CP
Covenant and the European Convention. Article 4(1) stipulates that life shall be respected from the moment of
conception. However, this Article presents potential difficulties in States that have legalised abortion in certain
circumstances. Inspite of this, it is evident that the right to life begins from the moment at which the ovum is
fertilised, creating a new being of the species with its own life, though definitely dependent on another for the time
being. A great majority of States view abortion as a crime because the right to be born is a particular manifestation
of the right to life. 33 There is a right to life and not of life.
Departing from the principle that life commences at the moment of conception, many State legislatures have
differed and have conferred rights upon the " nascitarus", that is, the person who is to be born. For example Article
93 of the Colombian Civil Code states:
The rights that would be conferred to the creature that is in the womb, if it had been born and had lived, will be suspended
until the birth takes place. And if that birth constitutes a principle of existence, the newborn will enjoy those rights as if it had
existed at the moment in which those rights were conferred. In the case of Article 90 , those rights will pass to other
persons as if the creature had never existed. 34
The message from the President of the United States to the Senate for its advice and consent to ratification of the
American Convention stated that:
...many of the provisions of Article 4 are not in accord with United States law and policy, or deal with matters in
which the law is unsettled. The Senate may wish to enter a reservation as follows: "United States adherence to
Article 4 is subject to the Constitution and other laws of the United States". 35
The second major issue deals with capital punishment. Article 4 establishes several restrictions on such penalty:
(a) The death penalty shall not be re-established in States that have abolished it;
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(b) If a State has provision for death penalty, it will in no case be imposed for political offences or related
common crimes;
(c) Capital punishment will not be used for crimes to which it is not presently applied;
(d) The death penalty must be imposed pursuant to a final judgement rendered by a competent court and in
accordance with a law establishing such punishment, enacted prior to the commission of the crime;
(e) It shall not be imposed upon persons under eighteen years of age or over seventy years of age;
(f) It shall not be carried out while a petition of amnesty, for which every condemned person has the right to
apply, is pending.
This Article provides that life shall be respected and protected, in general, from the moment of conception. No one
shall be arbitrarily deprived of his life. It restricts the death penalty only to the most serious crimes, prohibits the
application of the death penalty to crimes to which it does not presently apply and prohibits its re-establishment in
States that have abolished it. It prohibits capital punishment for political offences and related common crimes and
provides that it may not be imposed on persons under 18 or over 70 years of age at the time when a crime was
committed, or on pregnant women. Finally, the right to apply for pardon or commutation of a sentence of death is
guaranteed.
IV. AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHTS
Article 4 of the African Charter reads:
Human beings are inviolable. Every human being shall be entitled to respect of his life and the integrity of his
person. No one may be arbitrarily deprived of this right.
It is a well established fact that the right to life is a supreme right, which cannot be derogated even in times of
national emergencies. Under the African Charter not a single right is mentioned as a non-derogable right; reasons
for the omission of designation of non-derogable right has already been discussed in the previous chapter.
No society can dare overlook arbitrary deprivation of life. The right to life assumes a real and practical significance
when one considers that in contemporary Africa the right is violated with impunity. A subject of particular concern
regarding the right to life is extra-judicial and summary executions. 36 The African Commission has several times
been called upon to consider complaints alleging widespread extra-judicial executions in African States. 37
In Amnesty International v. Malawi, 38 a well known case, the African Commission found that the right to life had
been violated. In this case, Mr. and Mrs. Chirwas who were prominent opposition figures in Malawi were abducted
in Zambia by security forces. They were tried in Malawi courts and given death sentences which were later
commuted to life imprisonment. Amnesty International in October, 1992, submitted a complaint under Article 58 39
alleging widespread human rights violations in Malawi with specific facts on the Chirwas case. With respect to the
Chirwas case, Amnesty alleged violation of the right to fair trial, right to liberty and freedom from torture. The
Commission declared the complaint admissible and entrusted former Commissioner Mokama to visit Malawi to
discuss the general human rights situation, and the Chirwas case in particular, with Malawian officials.
In the light of the political situation in Malawi at the time, the government of Botswana thought it better for
Commissioner Mokama to obtain permission to visit Malawi through the government. The message which was sent
by the foreign ministry of Botswana to the Malawi government read:
The Chief Justice of Botswana who is also the Commissioner responsible for Malawi will like to visit Malawi to meet the
Minister for Justice and Attorney General and pay his respect to the Vice-President, Kamuza Banda. 40
The Malawi governments response was:
Sorry we are engaged in general election, we will let you know. 41
A reminder to Commissioner Mokamas request was sent after the general election. The response again was,
"Sorry we will let you know in due course". 42
Mr. Chirwas died in detention while the case was pending before the African Commission. The Commission
observed that Malawi had violated not only the provisions alleged to have been violated in the complaint regarding
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the Chirwas but also the right to life. 43 Malawi did not cooperate with the Commission in its attempt to investigate
the matter. The facts alleged in the complaint were therefore presumed to have been proven. It was held that Mr.
Chirwas died in circumstances in violation of his right to fair trial, right to liberty and freedom from torture.
The cases involving the right to life which the African Commission has considered have been so blatant and
unmistakably arbitrary that the Commission has failed to develop principles defining what precisely constitutes
breach of the right to life.
SECTION II: RIGHT AGAINST TORTURE

of the CP Covenant provides:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no
one shall be subjected without his free consent to medical or scientific experimentation.
The first sentence of Article 7 reproduces the text of Article 5 of the Universal Declaration of Human Rights,
which provides that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment".
Article 7 of the Covenant is non-derogable under all circumstances. The prohibition of torture and cruel, inhuman
or degrading treatment or punishment and medical or scientific experimentation without the free consent of the
person concerned is most strikingly revealed by the international communitys concern to defend and preserve the
physical and moral integrity of a human being. There can never be any derogation from it even in a public
emergency. 44
The responsibility lies with the Human Rights Committee under Article 40(4) 45 of the Covenant for implementation
of these rights. The Committee in 1982 46 adopted general comments on Article 7 of the Covenant, after
examining reports submitted by State parties. The Committee observed that even in situations of public emergency,
such as the one envisaged by Article 4(1) , this provision is non-derogable. The purpose of this Article is to protect
the integrity and dignity of the individual.
The Committee observed that Article 7 has a wide scope of application. But unfortunately it refrained from
defining or providing clear criteria for the application of Article 7 . The general comment stated that:
As appears from the terms of this Article, the scope of the protection required goes beyond torture as normally understood.
It may not be necessary to draw sharp distinctions between the various prohibited forms of treatment or punishment. These
distinctions depend on the kind, purpose and severity of the particular treatment. 47
The particular forms of punishments and practices which have attracted the attention of the Committee members
have been:
certain interrogation methods, the evidential use of illegally obtained information, virginity testing of immigrants, the
treatment of the so-called "blanket people" in Northern Ireland, stoning, flogging, whipping, 30-40 years rigorous
imprisonment, loss of nationality, and deprivation of civil and political rights for extended periods. 48
It appears from the terms of Article 7 , the scope of protection required goes far beyond torture as normally
understood. It is not necessary here to draw sharp distinctions between the various prohibited forms of treatment or
punishment. In fact, these distinctions depend on the kind, purpose and severity of a particular treatment. In the
view of the Committee, the prohibited act may extend to corporal punishment including excessive chastisement as
an educational or disciplinary measure. The Article clearly protects not only persons arrested or imprisoned, but
also pupils and patients in educational and medical institutions. Finally, it is also the duty of public authorities to
ensure protection by the law against such treatment even when committed by persons acting outside or without any
official authority. For all persons deprived of their liberty, the prohibition of treatment contrary to Article 7 is
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supplemented by the positive requirement of Article 10(1) of the Covenant that they shall be treated with humanity
and with respect for inherent dignity of the human person.
The prohibition on medical and scientific experimentation without the free consent of the person concerned has
been the subject of consistent, even if rather limited, consideration. 49 The Committee has found that the reports of
States parties have generally given little or no information specifically on this point. It has opined that at least in
countries where science and medicine are highly developed, and even for peoples and areas outside their borders,
if affected by their experiments, more attention should be given to the possible need and means to ensure the
observance of this provision. Special protection with regard to such experiments is necessary in the case of
persons not capable of giving their consent.
It was recognised during the drafting of Article 7 that medical and scientific experimentation was a very complex
subject raising many difficult issues. 50 The idea for drafting this provision came from atrocities committed in the
Nazi concentration camps during World War II. The issues discussed include the problem of the consent of the sick
or unconscious person, the need to outlaw criminal experimentation without hindering legitimate scientific or
medical practices, and the distinction between treatment and experimentation. 51 The fundamental issue to be noted
is the Committees approach to and interpretation of "free consent" and the distinction between treatment and
experimentation. So far, no real assistance on these issues has been gained from the Committees practice to date.
The problem in implementation of this provision is that it is not sufficient for the implementation of this Article to
prohibit such treatment or punishment or make it a crime. Although most States have penal provisions which are
applicable to cases of torture or similar practices but what is lacking in case of violation of a non-derogable right is
an effective investigating mechanism by competent authorities. Those found guilty must be held liable and the
alleged victims must themselves have effective remedies at their disposal including the right to obtain
compensation.
II. OTHER UNITED NATIONS INSTRUMENTS DEALING WITH TORTURE
The Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment was adopted by
the UN General Assembly on 10 December, 1984. 52 The Convention requires States parties to take effective
measures to prevent acts of torture in any territory under their jurisdiction. It says clearly that no circumstances,
such as war or public emergency, can be invoked to justify torture. 53
The Convention forbids States parties from expelling or extraditing a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected to torture. 54 The Convention further
requires them to ensure that all acts of torture, attempts to commit torture, complicity, or participation in torture, are
offences punishable under the criminal law of State parties. 55 The Convention also provides for prosecution or
extradition of persons alleged to have committed acts of torture. 56 It calls for education and information regarding
the prohibition against torture which is fully included in the training of law enforcement personnel. 57 It provides that
States parties shall ensure legal measures for protection and compensation for victims of torture. 58
The implementation of the Convention is monitored by a "Committee against Torture", consisting of 10 experts,
elected by the States parties to the Convention and serving in their personal capacity. 59 States parties to the
Convention are required to report regularly to the Committee on the measures they have taken to give effect to the
provisions of the Convention. 60 The Committee considers such reports, makes general comments on them, and
informs the other States parties and the General Assembly of its activity.
Article 20 of the Convention provides that if the Committee receives reliable information which appears to it to
contain well-founded indications that torture is being systematically practised in the territory of a State party, the
committee invites that State party to co-operate in the examination of the information and to this end to submit
observations with regard to the information concerned.
Under Article 21 , a State party to the Convention may at any time declare that it recognises the competence of
the committee against Torture to receive and consider communications of a State party claiming that another State
party is not fulfilling its obligations under the Convention. Article 22 enables a State party to the Convention to
accept the competence of the Committee to receive and consider communications from or on behalf of individuals
subject to its jurisdiction who claim to be victims of violation by a State party of the provisions of Convention.
III. EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS
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Article 3 of European Convention which deals with torture stipulates, "No one shall be subjected to torture or to
inhuman or degrading treatment or punishment".
This provision is absolute in the sense that no derogation may be made from it under Article 15(2) . 61
(a) Definition of the Terms "Torture", and "Degrading Treatment"
(i) Torture 62
The European Commission has defined the word "torture" in the Greek case, 63 "to describe inhuman treatment
which has a purpose such as the obtaining of information or confessions, or the infliction of punishment and it is
generally an aggravated form of inhuman treatment". By "inhuman treatment", the Commission understood "at least
such treatment as deliberately causes severe suffering, mental or physical, which in the particular situation, is
unjustifiable". 64 The Commission distinguished inhuman treatment from "a certain roughness of treatment of
detainees by both police and military authorities such roughness may take the form of slaps or blows of the hand on
the head or face". It added that "the point up to which prisoners and the public may accept physical violence as
being neither cruel nor excessive varies between different societies and even between different sections of them".
65 This distinction was substantially confirmed by both the commission and the Court in the Ireland case.
(ii) Degrading Treatment
The Commission considered degrading treatment, in the Greek case, 66 as follows: "to be a treatment or
punishment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to
act against his will or conscience".
This definition was followed and extended by the Commission later in the East African Asians case where it said
that degrading treatment was a conduct of a certain level of severity which lowers the victim in rank, position,
reputation or character whether in his own eyes or in the eyes of other people. 67 These definitions have been
explained by the Court in the Tyrer case, 68 in which the Court observed that the first element of serious humiliation
was whether the conduct was "degrading". 69 Secondly, some qualifications are essential to the proposition that
degrading treatment covers conduct which lowers, etc., the victim in his own eyes. In Campbell and Cosans, the
Court observed:
first that a threat directed to an exceptionally insensitive person may have no significant effect on him but nevertheless be
incontrovertibly degrading; and conversely, an exceptionally sensitive person might be deeply affected by a threat that
could be described as degrading only by a distortion of the ordinary and unusual meaning of the word. 70
According to Sir Gerald Fitzmaurice, "degrading treatment" was: "intended to denote something seriously
humiliating, lowering as to human dignity, or disparaging, like having ones head shaved, being tarred and
feathered, smeared with filth, pelted with muck, paraded naked in front of strangers, forced to eat excreta, deface
the portrait of ones sovereign or head of State or dress up in a way calculated to provoke ridicule or contempt". 71
(iii) General Issues
As seen above, in case of torture and inhuman treatment or punishment, the suffering caused must have reached
a sufficient level of severity; in the case of "degrading" treatment or punishment, the key element is humiliation but
the threshold point is the same: the humiliation involved must attain a particular level of severity. All the
circumstances of the case must be examined in assessing whether a conduct is sufficiently serious to fall foul of
Article 3 . As the Court stated in both Ireland and Tyrer judgements, "the assessment is, in the nature of things,
relative". 72 For example, no breach of Article 3 was found in one case where the applicant, a prisoner, was put in
a strait jacket and subjected to solitary confinement. 73 but such actions might well infringe Article 3 if inflicted on a
prisoner whose health is poor. 74
(iv) Prohibition Absolute
The Convention prohibits in absolute terms inhuman and degrading treatment or punishment, irrespective of the
victims conduct. Unlike most of the substantive clauses of the Convention and of Protocols 1 and 4, Article 3
makes no provision for exceptions.
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IV. AMERICAN CONVENTION ON HUMAN RIGHTS
The Right to Humane Treatment
Article 5 of the Convention provides:
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhumane, or degrading punishment or treatment. All
persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
3. Punishment shall not be extended to any person other than the criminal.
4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and
shall be subject to separate treatment appropriate to their status as unconvicted persons.
5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialised
tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.
6. Punishments consisting of deprivation of liberty shall have as essential aim the reform and social re-
adaptation of the prisoners.
This Article coincides with the precepts of Articles 7 and 10 of the CP Covenant. Article 7 of the CP Covenant
not only rejects torture, and cruel and inhuman treatment, but adds a provision that "[i]n particular, no one shall be
subjected without his free consent to medical or scientific experimentation". Unfortunately this is not included in the
American Convention.
The right to humane treatment is a result of the recognition of human dignity. Article 5(1) of American Convention
provides that every person has the right to have his physical, mental and moral integrity respected. It prohibits
torture or other cruel punishment or treatment. 75 Punishment of any person other than the criminal is forbidden. 76
Paragraph 4 of Article 5 provides generally for segregation of accused from convicted persons. There is a
separate paragraph which provides that minors while subject to criminal proceedings shall be separated from adults
and brought before specialised tribunals. The trials for minors should be held as speedily as possible. 77 Lastly,
paragraph 6 provides that punishment shall have as an essential aim the reform and social readaption of prisoners.
Physical and moral torture is applied in many countries, and numerous systems are available to end the moral and
physical resistance of prisoners. People are heaped in jails, and undertrials and convicted persons are not
separated. Further, no systems are provided for the social readaptation of minors and criminals, as the Inter-
American Commission on Human Rights has proved in its "in loco " missions to some countries. 78 For the perfect
harmonisation of different domestic legal systems with the Convention, policies must be adopted to improve
conditions in jails and to provide adequate systems for the rehabilitation of minors.
It is necessary to define torture as a crime in penal laws; the State must investigate cases of torture and punish
those responsible for it.
In regard to Article 5 , the rapporteur 79 stated that the subject of respect for the physical integrity of man, to which this
Article refers, was a matter of intense debate; a good part of it was devoted to the duality of the human being, i.e., to his
physical and psychological aspects. The majority of delegation was in favour, from the beginning, of recognising both
categories in the human being, and thus it was established in the paragraph 2. Several delegations perfected the text with
observation of great technical value. Finally, the Article was approved concerning the structure of original text. 80
The humanisation of penal law was first recognised by Caesar Beccaria in 1774. According to Beccaria, it is better
to prevent crime than to have to punish it; the object of punishment is to prevent new crimes and to make people
avoid following the criminals. Atrocious punishment should be proscribed. Torture is absurd, barbaric, and unjust;
and the death penalty is useless and unnecessary. The right to punish is a self-defence right of the individual
transmitted to the State by the social contract from which it arises. 81
V. THE INTERNATIONAL LEGAL STANDARDS
The evolving international definition of torture reflects increasing recognition of the inseparability of the physical
and mental elements of torture as well as the sufficiency of psychological abuse, standing alone. 82 The United
Nations Convention Against Torture defines torture as including mental as well as physical suffering. 83 The United
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Nations Human Rights Committee, ruling in several cases under the Optional Protocol to the CP Covenant, has
identified threats of death or grave physical harm as psychological torture. 84
The distinction has further eroded in international practice: The Human Rights Committees comment on Article 7
of the CP Covenant stated that it was not "necessary to draw up a list of prohibited acts or to establish sharp
distinctions between the different kinds of punishment or treatment; the distinction depends on the nature, purpose
and severity of the treatment applied". 85 Within the scope of prohibited ill-treatment, the Human Rights Committee
included corporal punishment as an educative or disciplinary measure and, in some circumstances solitary
confinement, especially where the person is kept incommunicado . 86 The former Special Rapporteur on torture
appointed by the United Nations Commission on Human Rights has sought to blur the distinction between torture
and ill-treatment and between mind and body. 87 The characterisation of rapewhich is one of the most effective tools
in the torturers arsenalhas only recently begun to be treated as a form of violence, a serious human rights violation
and increasingly as a form of torture. 88 The statement of the Special Rapporteur on Torture, that rape in detention
can be a form of torture was ground breaking. 89 Similarly, Amnesty International has identified rape in detention as
a "common method of torture". 90 More recently, the revelation of the mass rape of women as a tool of "ethnic
cleansing" in the wars in Yugoslavia, together with the existence of a global womens human rights movement has
advanced the reconceptualization of rape as a crime of violence, a "grave breach" under the Geneva Conventions
and, if committed on a mass scale, as a crime against humanity. 91
The international and regional instruments on torture identify an expanding list of torture that make violence
impermissible. The current list includes the use of torture for otherwise legitimate purposes such as the obtaining of
information or punishment, as well as for clearly illegitimate purposes such as intimidation, personal punishment,
the obliteration of the victims personality or discrimination. 92
SECTION III: PROHIBITION OF SLAVERY AND SERVITUDE

The minimum indispensable requirements for a dignified human existence 93 are the rights to life, liberty and
equality. Slavery and servitude, too, are absolutely prohibited, everywhere and at all times, by all the human rights
instruments. 94Article 8 of the Covenant provides:
1. No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited.
2. No one shall be held in servitude.
This Article, too, is a non-derogable right under the CP Covenant. Both paragraphs (1) and (2) of Article 8 are
identified as non-derogable rights. Paragraph (3) of Article 8 provide certain exceptions. 95
It may be noted that Article 4 of the Universal Declaration of Human Rights provides that "no one shall be held in
slavery or servitude", while paragraph 1 of Article 8 of the draft Covenant on Civil and Political Rights deals only
with slavery. The wording of this paragraph makes it clear that the intention of the drafters was to make this
provision absolute. The provision not only prohibits slavery but also slavery and the slave trade in all its forms. In
drafting the Covenant, the point was made and accepted that "slavery" and "servitude" were two different concepts
and should be dealt with in two separate paragraphs. 96
While discussing Paragraph 8 (2) it was pointed out that slavery, which implied the destruction of juridical
personality, was a relatively limited and technical notion, whereas servitude was a more generic idea covering all
possible forms of mans domination of man. 97 Slavery was the best known and the worst form of bondage which
existed in modern society, it tended to reduce the dignity of man.
Paragraphs (1) and (2) of Article 8 are absolute, unqualified, and in no circumstances permits derogation to
States parties to the CP Covenant. The question was raised whether the term "forced or compulsory labour" in sub-
paragraph (a) of paragraph 3 of Article 8 should be defined. Reference was made to Article 2 of the International
Labour Convention concerning Force or Compulsory Labour of 28 June, 1930. 98 Paragraph 1 of that Article defined
the term "forced or compulsory labour" as meaning "all work or service which is exacted from any person under the
menace of any penalty and for which the said person has not offered himself voluntarily". 99
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Paragraph 3(b) provides an exception which says that forced or compulsory labour could be imposed upon a
person pursuant to a competent court sentence. The words "in pursuance of a sentence to such punishment by a
competent court" were intended to indicate that the performance of hard labour could be required only if explicitly
stated in the sentence of the court. 100
Article 8(3)(c) enumerates, in four sub-paragraphs, the kinds of work or service not deemed included within the
term "forced or compulsory labour". Article 8(3)(c)(i) 101 was intended to cover ordinary prison work which persons
under detention pursuant to a court order might be required to do. This would include the routine work performed in
the course of detention and work done to promote the delinquents rehabilitation. The clause specifically excluded
performance of "hard labour" as the term was used in sub-paragraph 8(b). The phrase "normally required of a
person who is under detention" was intended to bring out the fact that the clause was intended to refer to work
ordinarily done by prisoners and not to hard labour. 102 There was some question also regarding the meaning of the
term "definition". It was explained that the term concerned all forms of compulsory residence in institutions in
consequence of a court order. 103
In sub-paragraph (ii), 104 the clause relating to conscientious objectors was intended to indicate that any national
service required of them by law would not fall within the scope of forced or compulsory labour. Article 8(3)(c)(iii)
provides, "any service exacted in cases of emergency or calamity threatening the life or well-being of the
Community". This provision was adopted unanimously. 105
Lastly, paragraph 3 (iv) of Article 8 , stipulates, "any work or service which forms part of normal civic obligations".
There was considerable discussion while drafting this provision on whether "minor communal services" should be
included in the provisions of sub-paragraph (iv) or not. 106 However, the International Labour Convention on Forced
or Compulsory Labour included provisions concerning ("normal civic obligations" and "minor communal services").
107 The provision concerning "minor communal services" was meant to apply to non-self-governing territories, while
that relating to "normal civic obligations" applied to sovereign States. 108
However, it was contended that the distinction was unacceptable and should not be perpetuated in the CP
Covenant. It was argued by the drafting Committee that the term "normal civic obligations" was a much broader
term and certainly includes the former.
Although exceptions mentioned under paragraph (3) of Article 8 are not non-derogable rights under the CP
Covenant, only paragraph (1) and (2) of Article 8 are recognised as non-derogable rights.
FREEDOMS
Article 4 of the European Convention provides:
1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term "forced or compulsory labour" shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of
Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character of, in case of conscientious objectors in countries where they are
recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the
community;
(d) any work or service which forms part of normal civic obligations.
Article 4(1) is a non-derogable human right under the European Convention. This Article prohibits slavery or
servitude, or forced or compulsory labour. The term "slavery", "servitude" and "forced or compulsory labour" have
not been defined in this Article. Article 4 says that no one "shall be held in slavery or servitude". Its importance is
underlined by the fact that it cannot be derogated from in times of war or public emergency."
Article 4(2) of European Convention prohibits "forced or compulsory labour", but with certain qualifications under
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Article 4(3) sub-paragraph (a) to (d). Article 4 imposes not only a negative obligation upon States not to require
forced labour of individuals; it also obligates States not to permit individuals lawfully to subject other individuals to
such labours. Article 4(3) (a) to (d) list a number of situations where work or service may be imposed, in that case
they are not to be considered as "forced or compulsory labour" for the purposes of the Convention.
If work is imposed on a person in the course of legal detention according to Article 5 109 of the European
Convention, this is not to be considered as forced or compulsory labour. Article 5 enumerates in paragraph (1) (a)
to (f) the cases when deprivation of liberty is permitted under Article 4(3) to impose a duty to work. Under this
provision the same applies for persons who have been conditionally released from such detention.
Article 4(3)(b) distinguishes compulsory military service from the concept of forced or compulsory labour. If the
laws of a country recognise conscientious objectors, the same applies to substitute service exacted as an
alternative to military service. The European Convention imposes no obligation on States to recognise
conscientious objectors by providing any alternative. However, where such a system exists, this compulsory work of
civilian character shall not be considered to be forced or compulsory labour under Article 4 .
The limitation under Article 4(3)(c) is that any service exacted in case of an emergency or calamity threatening
the life or well-being of the Community shall not be regarded as forced or compulsory labour within the meaning of
this Convention. This provision is intended to cover an emergency situation which requires services from individuals
or groups of individuals beyond what is otherwise compatible with the provisions of Article 4 .
The provision in Article 4(3) (d) concerns "work or service which forms part of normal civic obligations". The
imposition of such services thus does not come under the concept of forced or compulsory labour. In fact what is
meant here is presumably the obligation of citizens to undertake joint efforts in the common interest on a local level.
Article 6 of the American Convention on Freedom from Slavery says as follows:
1. No one shall be subject to slavery or to involuntary servitude, which are prohibited in all their forms, as are
the slave trade and traffic in women.
2. No one shall be required to perform forced or compulsory labour. This provision shall not be interpreted to
mean that, in those countries in which the penalty established for certain crimes is deprivation of liberty at
forced labour, the carrying out of such a sentence imposed by a competent court is prohibited. Forced
labour shall not adversely affect the dignity or the physical or intellectual capacity of the prisoner.
3. For the purposes of this Article the following do not constitute forced or compulsory labour:
(a) Work or service normally required of a person imprisoned in execution of a sentence or formal decision
passed by the competent judicial authority. Such work or service shall be carried out under the supervision
and control of public authorities, and any persons performing such work or service shall not be placed at
the disposal of any private party, company, or juridical person;
(b) Military service and, in which countries in which conscientious objectors are recognised, national service
that the law may provide for in lieu of military service;
(c) Service exacted in time of danger or calamity that threatens the existence or the well-being of the
community; or
(d) Work or service that forms part of normal civic obligations.
Basically, this Article corresponds to Article 4 of the Draft Convention on Human Rights prepared by the Inter-
American Council of Jurists. Its principle appears also in Article 7 of the Chilean draft 110 and Article 8 of the
Convention on Civil and Political Rights. 111
This is the third non-derogable right under the American Convention. Article 6 of the American Convention
prohibits persons being subject to slavery, involuntary servitude, 112 the slave trade or traffic in women. It is the only
Convention which categorically prohibits traffic in women. The other two Conventions 113 do not explicitly refer to
prohibition in traffic of women.
The wording of Article 6(2) is almost the same as the other two Conventions discussed above. This provision
prohibits forced labour except as a penalty for crime and provides that such labour shall not adversely affect the
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dignity or physical or intellectual capacity of the prisoner, and may only be carried out under the supervision of
public authorities.
Paragraph 3 of Article 6 provides certain situations which do not constitute forced or compulsory labour. If work is
imposed on a person in the course of legal detention or decisions passed by the competent judicial authority, under
the provisions of Article 6(3)(a) , this cannot be considered as forced or compulsory labour. Such work or service
shall be carried out only under the supervision and control of public authorities. It is said clearly that any person
performing such work cannot be placed at the disposal of any private party, company, or juridical person.
Sub-paragraphs (b), (c) and (d) of paragraph 3 of Article 6 deals with military service, national service for
conscientious objectors, emergency service in times of calamity, and service that forms part of normal civic
obligations which are defined as not constituting forced labour.
SECTION IV: FREEDOM FROM RETROACTIVE CRIMINAL OFFENCES AND

PUNISHMENT
Article 15 of the CP Covenant provides:
1. No one shall be held guilt of any criminal offence on account of any act or omission which did not constitute
a criminal offence, under national or international law, at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the time when the criminal offence was
committed. If, subsequent to the commission of the offence, provision is made by law "for the imposition of
a lighter penalty, the offender shall benefit thereby.
2. Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which,
at the time when it was committed, was criminal according to the general principles of law recognised by
the community of nations.
Article 15 of the CP Covenant, permits no derogation. It can be argued on the basis of this Article that the general
principles of law recognised by all modern legal system prohibits both ex-post facto offences and penalties. The
reference in paragraph 1 to international law is intended to ensure that no one shall escape punishment for a
criminal offence under international law by pleading that his act was legal under his own national law. It was
observed by a French delegate that, conversely, the reference to international law constituted an additional
guarantee of security to the individual, as it protected from possible arbitrary action even by an international
organisation. 114 Although much remained to be done with regard to the formulation and codification of international
penal law, its existence could not, however, be denied, and customary international law, as well as numerous
international conventions, condemned certain acts as crimes against humanity or against the peace and security of
mankind. 115
Under this provision, individuals should be protected not only against being held criminally responsible for an act or
omission not punishable as an offence at the time when it was committed but also against the possibility of being
brought to trial for such act or omission. The third sentence of Article 15 , paragraph 1 also allows a person to
enjoy the benefit of such lighter penalties as might be imposed after the commission of the offence with which he
was charged; 116 the laws imposing new and lighter penalties were often the concrete expression of some change in
the attitude of the community towards the offence in the question.
It was argued that paragraph 2 of Article 15 was superfluous. Basically, it was intended as a confirmation of the
principles applied by the war crimes tribunals after the Second World War. 117 It was intended as a guarantee that
no alleged war criminal in the future would be able to argue that there were no positive principles of international
law or of national law qualifying his acts as crime. It merely reiterated what was already contained in the expression
"international law" in paragraph 1, since that the term included the generally recognised principles of law mentioned
at the end of paragraph 2. 118
The provision of paragraph 2 would confirm and strengthen those principles, and ensure that if in the future crimes
should be perpetrated similar to those punished at Nuremberg, they would be punished in accordance with the
same principles. 119
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Article 15 incorporates the principle of legality, by which in the context of criminal law, a person should only be
convicted and punished on a basis of law nullum crimen sine lege and nulla poena sine lege, that is, there can be
neither crime nor punishment unless there is a law that so declares. These maxims demand that:
Laws be known and expressly promulgated, that their meaning be clearly defined, the statutes be general both in
statement and intent and not be used as a way of harming particular individuals...that at least the more severe offences be
strictly construed, and that penal laws should not be retroactive to the disadvantage of those to whom they apply. 120
FREEDOMS
Article 7 of the European Convention on Freedom from retroactive criminal offences and punishment provides as
follows:
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was
committed.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general principles of law recognised by civilised
nations.
This is the last enumerated non-derogable human right under the European Convention. The principle that there
can be no punishable crime in the absence of a law, which clearly provides for it at the time of its commission, is the
core of the concept of the rule of law and became known in the history of criminal law through its Latin maxim:
nullum crimen sine lege (no crime without law). Article 7 of the European Convention embodies this principle.
Article 7(1) not only prohibits retroactive application of the criminal law to the detriment of accused except as
provided in Article 7(2) but also confirms in a more general way, the principle of the statutory nature of offences
and punishment (" nullum crimen, nulla poena sine lege " ) ; and prohibits, in particular, extension of the application
of criminal law in malam partem by analogy.
Article 7(1) of the Convention prohibits the retroactive application of criminal laws. No one shall be held guilty of a
criminal offence if his act was lawful at the time when it was committed, but even if it was already unlawful, it is also
prohibited to impose a heavier penalty than the one applicable at that time. Article 7(1) applies to any "penalty" or
sentence imposed following conviction for a criminal offence. Other factors that may be taken into account are the
nature and purpose of the measure in question; its characterisation under national law; the procedures involved in
the making and implementation of the measure and its severity with regard to the retroactive application of
"penalties"; Article 7 extends both to the retroactive application of "penalties", and new laws establishing
"penalties" and by analogy with the Commissions jurisprudence concerning ex-post facto criminal offences, to their
application to the detriment of the convicted person in a way that is not reasonably foreseeable.
Paragraph (1) of Article 7 is an exception clause to the effect that Article 7 shall not prejudice the trial and
punishment of any person for any act or omission which at the time when it was committed, was criminal according
to the general principles of law recognised by civilised nations. This exception is meant to make it possible to apply
retroactive provisions not only to severe war crimes, but also to treason.
Conclusion
The rule nullum crimen sine lege certa is nowadays recognised in all democratic countries as a fundamental
principle for the protection of the personal freedom of individuals. The legal certainty aimed at by the principle
requires that the legislature must formulate the norms of criminal law clearly and unambiguously.
In countries where a common criminal law system is in force, the application of the principle under consideration
presents more problems than in other systems where the power of judicial initiative is more limited by statute. Rules
of common law may provide a sufficient legal basis for a criminal conviction.

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Article 9 of the American Convention on Freedom from ex-post facto laws provides:
No one shall be convicted of any act or omission that did not constitute a criminal offence, under the applicable law, at the
time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time of the criminal
offence was committed. If subsequent to the commission of the offence the law provides for the imposition of a lighter
punishment, the guilty person shall benefit therefrom.
This Article is based upon Article 7 of the Inter-American Council of Jurists draft and recognises the well-known
principles, nullum crimen sine lege and nulla poena sine lege . It is the general accepted rule that the penal law is
non-retroactive; only when it is favourable to the offender can it be retroactive. It is universally accepted that every
person is presumed innocent so long as his guilt is not proven by a competent court in accordance with the
requirements of a trial. Many legislatures also accept the principle in dubium pro re, that is, any doubt will benefit
the offender.
This Article prohibits ex-post facto laws. It also provides that if penalties imposed by law are reduced after a crime
is committed, the new law will inure to the benefit of the guilty person.
IV. CONCLUSION
The above-mentioned four non-derogable rights are embedded in most universal and regional conventions, in
similar, if not identical, terms except for a few minor dissimilarities; the major difference is regarding the right to life:
save the American Convention, no other Convention has mentioned at what point the right to life begins. The
American Convention takes special care to provide that the right to life begins at the moment of conception of
human life and that it is an obligation of all State Parties to protect the life of every unborn child.
There is a great urgency on the part of the African Charter of Human Rights to recognise these rights to be non-
derogable. At present the African Charter does not contain any non-derogable rights. No doubt, African States are
more vulnerable due to civil strife and perpetual armed conflict.
For effective and meaningful implementation of all these provisions it is necessary on the part of the States
signatories to these Conventions, both at universal and regional levels, to ratify them.
SECTION V: PROHIBITION OF IMPRISONMENT FOR NON-FULFILMENT OF

CONTRACTUAL OBLIGATION
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
Article 11 of the CP Covenant stipulates: "No one shall be imprisoned merely on the ground of inability to fulfil a
contractual obligation". All human rights instruments except the Universal Declaration of Human Rights and the
African Charter on Human Rights contain this provision. But only the CP Covenant has made this right a non-
derogable right.
It has generally been agreed that this prohibition does not apply to cover crimes committed through the non-
fulfilment of obligations of public interest, imposed by statute or court order, such as the payment of maintenance
allowances. 121 The prohibition does not apply to obligations arising from legislation in public or private law. Nor
does the prohibition apply if a debtor acts with malicious or fraudulent intent.
During the discussion of this Article it was emphasised by the delegates from Belgium and Great Britain that the
Article should cover any contractual obligations, namely, the payment of debts, performance of services or the
delivery goods. It was apprehended that contractual obligations undertaken by the individual towards the State were
sometimes so vital in nature, such as the delivery of foodstuffs for the population, that inability to fulfil them should
justify imprisonment. 122 Finally, the Article covered any kind of contractual obligations of civil nature.
It was pointed out that, in practically all countries, persons who were able but unwilling to fulfil contractual
obligations might be punished by imprisonment. 123
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There was general agreement with the text of the Article, but some representatives were of the view that the term
"contractual obligation" did not go far enough. The term did not cover obligations which, although not contractual,
were nevertheless binding upon the person concerned. It was thought desirable to prohibit imprisonment being
used as an instrument by one individual against another in non-criminal cases and in cases such as those arising
out of commercial and labour laws and civil obligations in general. 124
However, it was doubted whether the term "civil" had the same meaning in all languages and in all legal systems.
In some countries, the term "civil obligation" was used to mean essentially "non-military obligations", in others, the
term did not cover commercial transactions, and in still others, it might cover taxation cases or cases of non-
compliance with court orders. Therefore, it was felt undesirable to accept an amendment which might broaden or
restrict the scope of the Article, depending upon the different national systems, but which would make a provision of
an international instrument indefinite in meaning. 125
Of course, the prohibition does not apply to obligations arising from legislation in public or private law. Nor does the
prohibition apply if a debtor acts with malicious or fraudulent intent; or if a person deliberately refuses to fulfil an
obligation, irrespective of his reasons therefor; or if his inability to meet a commitment is due to negligence. In these
circumstances, the failure to fulfil a contractual obligation may legitimately constitute a criminal offence. This
provision is also contained in Article 7(7) 126 of the American Convention and in Article 1 127 of the Fourth Protocol
of the European Convention, but in these treaties both Articles are derogable.
SECTION VI: RIGHT TO LEGAL RECOGNITION

The CP Covenant provides in Article 16 that, "Everyone shall have the right to recognition everywhere as a
person before the law".
This is the sixth non-derogable right identified under the CP Covenant. The text of Article 16 is based on Article 6
of the Universal Declaration of Human Rights (UDHR). 128Article 6 of UDHR is understood to apply to human
beings, not to "juridical persons", and the expression "as a person before the law" is meant to ensure recognition of
the legal status of every individual and of his capacity to exercise rights and enter into contractual obligations. 129
There was general agreement that Article 16 was intended to deal with the question of a persons legal capacity to
act, which might be restricted for such reasons as minority or insanity. 130
Great Britain raised this question during discussion on this Article in the Third Committee. It suggested that the
word "everywhere" should be deleted; not only was the matter to be dealt with in Article 2 , which specified that
rights recognised in the Covenant applied to all individuals within the territory and subject to the jurisdiction of the
respective Parties, but the Parties could accept responsibility for implementing the Covenant only within their
respective jurisdictions. It was, however, accepted that the word "everywhere" was not superfluous. The Drafting
Committee noted that the text of the Article followed that of Article 6 of the UDHR. 131
II. THE AMERICAN CONVENTION
The American Convention most elaborately deals with the right to legal personality in the following aspects:
(a) The Right to a Juridical Personality;

(b) The Right to a Name;
(c) The Right to a Nationality;
(d) The Rights of the Family;
(e) The Rights of the Child.
(a)Rights to Juridical Personality
Article 3 of the American Convention provides: "Every person has the right to recognition as a person before the
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law". This is the first non-derogable right enumerated under the American Convention. No corresponding provision
is available under the European Convention.
The subjects of law are individuals. The doctrinal attributes usually accorded to an individual includes a name,
domicile, patrimony, civil status, nationality and legal capacity. The doctrine comprises rights to life, physical
integrity, health and freedom of movement and those referring to moral individuality and to honour in all its
manifestations. An individuals right to juridical personality cannot be denied. 132
(b) Right to a Name
Every person has the right to a given name and to surnames of his parents or that of one of them. The law shall regulate
the manner in which the right shall be ensured for all, by the use of assumed names if necessary.
This non-derogable right recognises the right to a given name and to the surnames of his parents or that of one of
them. Article 24(2) of the CP Covenant also establishes this right although not as a non-derogable right. 133
The right to a name is one of the attributes of legal personality and has been incorporated into relevant national
legislation everywhere. For example, Article 3 of the Colombian Decree No. 1260 of 1970 provides:
Every person has the right to his individuality and, therefore to the name which, by law, corresponds to him. The name
includes the first name, the surnames and, if such is the case, the pseudonym. No changes, additions or corrections of the
name shall be admitted except in the circumstances and under the formalities prescribed by law. In the case of homonym,
the judge may take pertinent measures to avoid confusion. 134
(c) Right to a Nationality
1. Every person has the right to a nationality.

2. Every person has the right to the nationality of the State in whose territory he was born if he does not have
the right to any other nationality.
3. No one shall be arbitrarily deprived of his nationality or of the right to change it.
This non-derogable right establishes the right of a person to nationality of the State in which he was born if he does
not have the right to any other nationality. This Article was not included in the draft prepared by the Inter-American
Commission on Human Rights, but rather it was developed from Article 24 of the CP Covenant. 135 This Article
recognises under paragraph (1) of Article 20 that the right to a nationality belongs to every person. In order to
avoid the case of stateless persons, every person has the right to the nationality of the State in whose territory he
was born, if he does not have the right to another. Lastly, no one is to be deprived arbitrarily of his nationality, or of
the right to change it.
The grounds for acquiring, losing or recovering nationality are established in constitutions or other internal laws, but
States must respect the above-mentioned principles, which are already recognised by doctrine and by international
law. 136 Therefore, it is not possible to deprive a person of nationality because of his political ideas. No one can be
prevented from changing his nationality whenever he wishes because that is one of the forms of this freedom.
(d) Rights of the Family
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and
the State.
2. The rights of men and women of marriageable age to marry and to raise a family shall be recognised, if
they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of
non-discrimination established in this Convention.
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3. No marriage shall be entered into without the free and full consent of the intending spouses.
4. The States Parties shall take appropriate steps to ensure the equality of rights and the adequate balancing
of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution. In
case of dissolution, provision shall be made for the necessary protection of any children solely on the basis
of their own best interests.
5. The law shall recognise equal rights for children born out of wedlock and those born in wedlock.
Extensive coverage to family life is given under Article 17 . This provision is non-derogable under the American
Convention. No other Convention dealt with this aspect among non-derogable rights. Paragraph (3) of Article 17
was based on Article 23(3) 137 of the CP Covenant and Paragraph 4 is based on Article 23(4) 138 of the CP
Covenant.
This Article recognises the family as the natural and fundamental group unit of society, and hence its protection by
both society and the State.
Paragraph 2 of Article 17 stipulates in clear terms the rights of men and women of marriageable age to marry and
to raise a family which shall be recognised provided they fulfil the conditions required by domestic laws, insofar as
such conditions do not affect the principle of non-discrimination established in this Convention. Whereas paragraph
3 provides that no marriage shall be entered into force without the full consent of the intending spouses, paragraph
4 of this Article provides that States parties shall take appropriate steps to ensure the equality of rights and the
adequate balancing of responsibilities of the spouses as to marriage, during marriage and in the event of its
dissolution. Under paragraph 5, it also provides for equal rights for children born out of wedlock and those born in
wedlock.
The United States had the following Statement of Interpretation on the meaning of the clause relating to the
equality or rights and the adequate balancing of responsibilities, which is contained in paragraph 4, made a part of
the record of the Conference in Plenary Session:
The United States interprets paragraph 4 of Article 17 as permitting well accepted distinctions in the legal rights and
duties of husband and wife. For example, the husband can be made liable for the support of the family, alimony statutes
may make provision for the wife only, and the domicile of the wife may follow that of the husband. 139
The provision reflects the modern tendency to give equal rights to both husband and wife, to give equality to all
children and to share parental authority. 140
(e) Rights of the Child
Every minor child has the right to the measures of protection required by his condition as a minor on the part of his
family, society, and the State.
This is another non-derogable right under the American Convention. Article 19 of the Convention recognises that
the child, because of his vulnerable condition, is entitled generally to the measures of protection. The State must
implement all declarations and programmes related to the child. 141 This requires reforms in the laws relating to the
protection of all minors as well as adequate planning to implement them, and especially those in irregular or illegal
situations, or who have been physically or morally abandoned or are in physical or moral danger.
SECTION VII: FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION

The CP Covenant provides in Article 18 :
1. Everyone shall have the right to freedom of thought, conscience and religion. The right shall include
freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in
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community with others and in public or private, to manifest his religion or belief in worship, observance,
practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief
of his choice.
3. Freedom to manifest ones religion or beliefs may be subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health, or morals or the fundamental rights and
freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when
applicable, legal guardians to ensure the religious and moral education of their children in conformity with
their own convictions.
The right to freedom of thought, conscience and religion in Article 18(1) is far-reaching and profound. It
encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief,
whether manifested individually or in common with others. The fundamental character of these freedoms is also
reflected in the fact that Article 18 cannot be derogated from, even in times of public emergency as stated in
Article 4(2) of the CP Covenant.
Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or
belief. The term "belief and religion" is broadly construed. Article 18 is not limited in its application to traditional
religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional
religions.
This Article distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest
religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the
freedom to have or adopt a religion or belief of ones choice. These freedoms are protected unconditionally, as is the
right of everyone to hold opinions without interference in Article 19(1) . 142 In accordance with Articles 18(2) and
17 , no one can be compelled to reveal his thoughts or adherence to a religion or belief.
Article 18(1) says the freedom to manifest religion or belief may be exercised "either individually or in community
with others and in public or private". The freedom to manifest religion or belief in worship, observance, practice and
teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving
direct expression to belief, as well as various practices integral to such acts, including the building of places of
worship, the use of ritual formulas and objects, the display of symbols, and the observance of holidays and days of
rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs
as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals
associated with certain stages of life and the use of particular language customarily spoken by a group. In addition,
the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic
affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish
seminaries or religious schools and freedom to prepare and distribute religious texts or publications.
Article 18(2) bans coercion that would impair the right to have or adopt a religion or belief, including the threat or
use of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and
congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or
effect, such as, for example, those restricting access to education, medical care, employment or the rights
guaranteed by Article 25 and other provisions of the Covenant are similarly inconsistent with Article 18(2) . The
same protection is enjoyed by holders of all beliefs of a non-religions nature. 143 Paragraph (3) of Article 18
permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are
necessary to protect public safety, order, health or morals, or the fundamental rights and freedom of others. The
freedom from coercion to have or to adopt a religion or belief and the liberty of the parents and guardians to ensure
religious and moral education cannot be restricted. Restrictions are not allowed under Article 18 , paragraph 3 on
grounds not specified therein, even if they would be allowed as restrictions to other rights protected in the
Covenant, such as national security. Limitation may be applied only for those purposes for which there are specific
needs on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a
discriminatory manner.
Persons already subject to certain legitimate constraints such as prisoners, continue to enjoy their rights to
manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint.
Article 18(4) permits public school instruction in subjects such as the general history of religions and ethics if it is
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given in a natural and objective way. The liberty of parents or legal guardians to ensure that their children receive a
religious and moral education in conformity with their own convictions, set forth in Article 18(4) , is related to the
guarantees of the freedom to teach a religion or belief stated in Article 18(1) . The public education that includes
instruction in a particular religion or belief is inconsistent with Article 18(4) unless provision is made for non-
discriminatory exemptions or alterations that would accommodate the wishes of parents and guardians. Right to
freedom of conscience and religion is also a non-derogable right under the American Convention. The European
Convention too has a similar provision under Article 9 as a non-derogable right.
II. AMERICAN CONVENTION
Article 12 of the American Convention on freedom of conscience and religion provides:
1. Everyone has the right to freedom of conscience and of religion. This includes freedom to maintain or to
change ones religion or beliefs, and freedom to profess or disseminate ones religion or beliefs either
individually or together with others, in public or in private.
2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or
beliefs.
3. Freedom to manifest ones religion and beliefs may be subject only to the limitations prescribed by law that
are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.
4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of
their children or wards that is in accord with their own convictions.
This Article provides generally for freedom of conscience and religion. Article 12(1) encompasses freedom of
conscience and of religion. This right also provides freedom to maintain or to change ones religion or beliefs either
individually or together with others both in public or in private.
Precaution has been taken under paragraph 2 of Article 12 that imposition of any restrictions which may change
the religion of any individual is strictly restricted. There are similarities regarding this provision between the CP
Covenant and the American Convention. The only difference is that under the CP Covenant, the word "coercion"
has been used instead of "restrictions".
Paragraph (3) of Article 12 , like the CP Covenant, allows restrictions on the freedom to religion or belief only if
limitations prescribed by law are necessary to protect public safety, order, health or morals, or the fundamental
rights or freedoms of others.
Article 12(1) also provides that parents have the right to provide for religious and moral education of their children
that is in accord with their own convictions.
Like the CP Covenant, under this Convention enough safeguards have been incorporated to provide freedom of
conscience and religion to individuals. Restrictions have been imposed deliberately to curtail State powers in
influencing these matters.
The Articles in both the treaties contain a "limitation clause" authorising restrictions of the right when necessary to
protect public safety, order, health, morals, or the rights or freedom of others. 144
SECTION VIII: RIGHT TO PARTICIPATE IN GOVERNMENT

I. AMERICAN CONVENTION
1. Every citizen shall enjoy the following rights and opportunities:
(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;
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(b) to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and
by secret ballot that guarantees the free expression of the will of the voters; and
(c) to have access, under general conditions of equality, to the public service of his country.
2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph
only on the basis of age, nationality, residence, language, education, civil and mental capacity, or
sentencing by a competent court in criminal proceedings.
This is the last of the non-derogable rights under the American Convention. Historically, democracy as a form of
government is considered to be direct when the government is exercised directly by the people; representative
when the political power is exercised directly by representatives elected by the people; and indirect when
sovereignty is delegated to the legislature. If each citizen forms a part of the sovereign power, obviously he must
have the right to participate in the organisation of the government. Voting, taken as a right, leads to universal
suffrage.
Generally, this Article provides for the right of opportunity to take part in the conduct of public affairs, directly or
through freely chosen representatives.
Article 23(1)(b) recognises the right to vote and to be elected in genuine periodic elections and it shall be by
universal and equal suffrage and by secret ballot that guarantees the free expression of the will of voters.
Article 23(2) provides that the exercise of these rights and opportunities may be regulated by law only on the basis
of age, nationality, residence, language, education, civil and mental capacity or sentencing by a competent court in
criminal proceedings.
II. CONCLUSION
After studying all the non-derogable rights, it is clear that the American Convention provides an exhaustive list of
non-derogable rights. These core rights have covered almost all important civil and political rights. There are five
non-derogable rights under the American Convention which are not common to any available international human
rights instruments. These are: rights of the family (Article 17 ); right to a name (Article 18 ); rights of the child
(Article 19 ); right to a nationality (Article 20 ) and right to participate in government (Article 28 ). This shows the
commitment of the drafters of the American Convention who included all those rights which directly or indirectly help
in the protection of human rights.
There are two other Articles which are common to both the American Convention and the CP Covenant. They are
the right to juridical personality (Article 3 ) and freedom of thought, conscience and religion (Article 12 ) under
American Convention. Similar provisions are also available under the CP Covenant which provides the right to be
recognised as a legal person (Article 16 ), and freedom of thought, conscience and religion (Article 18 ).
A single non-derogable right which is only available under the CP Covenant and not in any other Conventions is
the right against imprisonment merely on the ground of inability to fulfil contractual obligations (Article 11 ).
The American Convention on Human Rights not only provides a long list of non-derogable rights, but also prohibits
the suspension of "the judicial guarantees essential for the protection" of the rights considered non-derogable by
the American Convention. 145 Application of this clause requires an assessment of which judicial guarantees are
essential, because a list of essential guarantees is not provided in the Article. There is no such guarantee available
under the CP Covenant and the European Convention on Human Rights.
1 Article 6 of the CP Covenant; Article 2 of European Convention; Article 4 of American Convention, Article 4 of
African Charter respectively deal with right to life.
2 Article 7 of the CP Covenant; Article 3 of the European Convention; Article 5 of American Convention deal with this
right.
3 Article 8(1)(2) of CP Covenant; Article 4(1) of European Convention; Article 6 of the American Convention covers
this aspect.
4 Article 15 of CP Covenant; Article 7 of the European Convention; Article 9 of the American Convention covers this
aspect.
Page 23 of 29
5 See, W.P. Gromley, "The Right to Life and the Rule of Non-Derogability Peremptory Norms of Jus Cogen", in B.G.
Ramacharan, ed., The Right to Life in International Law , (Hague, 1985), pp. 120-59; F. Przetacznik, "The Right to Life
as a Basic Human Right", Human Rights Law Journal , vol. 9 (1976), pp. 585-609; G.P. Fletcher, "The Right to Life",
Georgia Law Review , vol. 13 (1979), pp. 1371-94. L.G. Landerer, "Capital Punishment as a Human Rights Issue
Before in the United Nations", Human Rights Journal , vol. 4 (1971), pp. 511-34. Haji N.A. Noor Muhammad,
"Guarantees for Accused Persons under the UN Human Rights Covenants", Indian Journal of International Law , vol.
20 (1980), pp. 177-215; Daud Hassan, "Right to Life and Abortion : A Study on the Legal Controversy of the Status of
the Unborn Child in Human Rights" Indian Journal of International Law, vol. 51(3) 2011; Tania Penovic, "Human Rights
and the Unborn Child". Human Rights Quarterly, vol. 33, n. 1 (2011), pp. 229-243.
6 Draft International Covenant on Human Rights reports prepared by Secretary-General, Session 10, A/2929, 1 July,
1955, Chapter VI, pp. 1-10.
7 The delegate of Ukrainian Soviet Socialist Republic (UKSSR). A/C.3/L.655, para. 6(b)(iii).
8 E/CN.4/SR.199, Great Britain, para. 15; E/CN.4/SR.310, para. 8 (USA).
9 E/CN.4/SR.98, para. 5, para. 10.
10 This USA proposal was defeated by seven votes to twelve, with three abstentions; E/CN. 4/SR.91, p. 10.
11 M.J. Bossuyt, Guide to the " Travaux Preparatoires " of the International Covenant on Civil and Political Rights
(Dordercht, 1987), p. 122; Philip Alston and Ryan Goodman, International Human Rights (New York, Oxford University
Press, 2012).
12 The amendment of Belgium, Brazil, El Salvador, Mexico and Morocco (A/C.3/L.654) was to replace paragraph 1 by the
following:
"1. The right to life is inherent in the human person. From the moment of conception, this right shall be protected by law."
13 A/C.3/SR.815, Para. 37 (GB).
14 The amendment of Belgium, Brazil, El Salvador, Mexico and Morocco (A/C.3/i.654), "From the moment of conception,
this right shall be protected by law" was rejected by 31 votes to 20, with 17 abstentions.
15 E/CN.4/SR.311, p. 7 (Belgium).
16 Article 6(6) says, "Nothing in this Article shall be invoked to delay or to prevent the abolition of capital punishment by
any State Party to the present CP Covenant". However Optional Protocol II, to the CP Covenant deals with one idea
and provision: the capital punishment is to be abolished. This Second Optional Protocol required ten instruments of
ratification to come into force. Twenty five States have ratified it. India is not Party to this Protocol. It contains a
preamble and eleven Articles. It is evident that the State Parties to this Protocol believe that the abolition of the death
penalty contributes to enhancement of human dignity and progressive development of human rights. Article 1(1) of the
Protocol provides, "Each State Party shall abolish the death penalty in its territory and shall no longer forsee the use of
it against any individual subject to its jurisdiction nor impose nor execute it".
17 S. Wako, "Report on Summary or Arbitrary Executions", UN Doc. E/CN.4/11983/16, p. 14.
18 UN Doc. A/2910/Add.2, p. 11; UN Doc. A/3764/Add.1, para. 117.
19 Genocide Convention adopted by the General Assembly of the United Nations on 9 December, 1948, Resolutions 260
(III), General Assembly, 3rd Session, Official Records Pt.I, p. 174. The Genocide Convention came into force on 12
January, 1951 (India has ratified this treaty on 27 August, 1959).
20 See for further reading, "The Death Penalty" (Amnesty International Report, 1979 ).
21 Genocide is a crime which the international community has made the subject of a specific Convention, namely the
Convention on the Prevention and Punishment of Crime of Genocide of 9 December, 1948.
Convention on the Prevention and Punishment of the Crime of Genocide Article 2 of Genocide Convention Stipulates, "In
the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in
part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
22 No. 18984/91 Com. Rep. para 193 (1994). For the facts of the case, see Chapter VI.
23 Ibid.
Page 24 of 29
24 X v. UK No. 8416/78, 19DR 244 (1980).

25 As the Commission noted, the textual evidence supports this contention. Thus the wording of Article 2 beyond the
first sentence of Article 2(1) can only apply to persons already born while in most other Convention Articles in which
the word "everyone" appears, it has the limited meaning.
26 No. 17004/90 (1992), unreported.
27 Article 15(2) No derogation from Article 2 , except in respect of deaths resulting from lawful acts of war, or from
Articles 3 , 4 (paragraph 1) and 7 shall be made under this provision.
28 Sixth Protocol (1983) concerning the abolition of the death penalty. Out of the 31 parties to the European Convention,
23 countries have ratified it.
29 No. 11257/84, 4 IDR 213 (1986). This case is dealt with fully under Chapter VI.
30 No. 9013/80, 30DR 96 (1982) Decn Admiss; 38DR 44 (1984).
31 No. 17579/90 (1993).
32 The first non-derogable right under American Convention is Right to Juridical Personality (Article 3 ).
33 Marco Gerado and Manroy Cabra, "Rights and Duties established by the American Convention on Human Rights",
American University Law Review , vol. 30 (1980), pp. 21-63; David Harris and Stephen Livingstone, The Inter-American
System of Human Rights (New York, OUP, 1998); Clara Burnbano Herrera, Provisional Measures in the Case Law of
Inter-American Court of Human Rights (Cambridge, UK, 2010).
34 Ibid. , p. 27.
35 Cf. Ibid. , p. 27.
36 Amnesty International has defined extra-judicial executions as "Unlawful and deliberate killings carried out by order of
a government or with its complicity or acquiescence". Killings which result from self-defence, deaths resulting from the
use of reasonable force in law enforcement, the use of death penalty with certain conditions, and killings in war which
are not forbidden under international law regulating the conduct of armed conflict, do not constitute extra-judicial
executions. See R. Sock, "Occasional Paper on Extra-Judicial Executions", African Centre for Human Rights Studies
(Banjul, 1994), p. 2.
37 As a result of serious violations of the right to life in Africa, the African Commission appointed a Special Rapporteur to
study the various violations of the right to life in African countries. At its 15th Session in 1994, the African Commission
appointed one of its members as Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.
38 Communication No. 68/92, Amnesty International v. Malawi .
39 Article 58 of African Charter provides:
1. When it appears after deliberations of the Commission that one or more communications apparently related to
special cases which reveal the existence of a series of serious or massive violations of human and peoples rights,
the Commission shall draw the attention of the Assembly of Heads of State and Government to these Special
cases.
2. The Assembly of Heads of State and Government may then request the Commission to undertake an in-depth
study of these cases and make a factual report, accompanied by its finding and recommendations.
3. A case of emergency duly noticed by the Commission shall be submitted by the latter to the Chairman of the
Assembly of Heads of State and Government who may request an indepth study.
40 Cf. Evelyn A. Ankumah, The African Commission on Human and Peoples Rights (Hague, 1996), pp. 114-15; Fatsah
Ouguergouz, The African Charter on Human and Peoples Rights: A Comprehensive Agenda for Human Dignity and
Sustainable Democracy in Africa (The Hague, Kluwer Law International, 2013).
41 Ibid.
42 Ibid.
43 Ibid.
44 Rhonda Copelon, "Recognising the Egregious in the Everyday: Domestic Violence as Torture", Columbia Human
Rights Law Review , vol. 25 (1994), pp. 290-367; S. Ackerman, "Torture and Other Forms of Cruel and Unusual
Punishment in International Law", Vanderbilt Journal of Transnational Law , vol. 11 (1978), pp. 653-707; Bary M.
Klayman, "The Definition of Torture in International Law", Temple Law Quarterly , vol. 51 (1978), pp. 445-83. Bruce A.
Barenblat, "Torture as a Violation of the Law of Nations: An Analysis of 28 U.S.C. S. 1350 . Filartiga v. Pena-Irala , vol.
15 (1981), 630 F.2d 876 (2nd edn., 1980)". Texas International Law Journal , vol. 16 (1981), pp. 107-40; H. Murray,
"The Torture Victim Protection Act : Legislation to Promote Enforcement of the Human Rights of Aliens in US. Court",
Columbia Journal of Transnational Law , vol. 25 (1986-87), pp. 673-717; R.S. Saini, "Custodial Torture in Law and
Practice with Reference to India", Journal of Indian Law Institute , vol. 36 (1994), pp. 166-92; Yuval Shany, "The
Page 25 of 29
Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment and Punishment: Can the Absolute be
Relativized under Existing International Law?" available at SSRN: http://ssrn.com/abstract=856905 or
http://dx.doi.org/10.2139/ssrn.856905, visited on 18 May, 2013; Jordan J. Paust, "Ending the U.S. Program of Torture
and Impunity: President Obama's First Steps and the Path Forward " Tulane Journal of International & Comparative
Law , vol. 18 (2010), pp. 151-171; Helene Lambert, "Consolidation and Development of the Asylum-Related
Jurisprudence of the European Court of Human Rights - Key-Note Speech to the Second Colloquy on the European
Convention on Human Rights and the Protection of Refugees, Asylum-Seekers and Displaced Persons" available at
http://ssrn.com/abstract=1554844 or http://dx.doi.org/10.2139/ssrn. 1554844 visited on 17 May, 2013.
45 Article 40(4) provides, "The Committee shall study the reports submitted by the State Parties to the present Covenant.
It shall transmit its reports, and such general comments as it may consider appropriate, to the State Parties. The
Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports
it has received from State Parties to the present Covenant".
46 UN Doc. A/37/40, Annex. V, Para 1-3.
47 Cf. Dominic Mcgoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on
Civil and Political Rights (Oxford, 1994), pp. 364-66.
48 Ibid. , p. 365.
49 A.C. Ivy, "The History and Ethics of the use of Human subjects in Medical Experiments", Science (1948), no. 108, pp.
1-5; John Lunstroth, "Regulating the Research Enterprise: International Norms and the Right to Bodily Integrity in
Human Experiment Litigation". Issues L. & Med ., vol. 23, (2007), pp. 4-79.
50 E/CN.4/S.183, p. 13 (France).
51 Proposed by Australia, A.C.32/678.
52 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature
on 10 December, 1984, came into force on 26 June, 1987. See for text, Human Rights: A Compilation of International
Instruments (UN, 1988), pp. 212-26.
53 Article 2 of Torture Convention 1984.
54 Article 3 of Torture Convention, 1984.
59 Article 17(1) of Torture Convention, 1984.
61 Article 15(2) provides, "No derogation from Article 2 , except in respect of deaths resulting from lawful acts of war, or
from Articles 3 , 4 (paragraph 1) and 7 shall be made under this provision".
62 Bary M. Klayman, "The Definition of Torture in International Law", Temple Law Quarterly , vol. 51 (1978), pp. 445-83;
P.J. Duffy, " Article 3 of the European Convention on Human Rights", International and Comparative Law Quarterly ,
vol. 32 (1982), pp. 316-46; Niall Macdermot, "How to Enforce Torture Convention: A Draft Optional Protocol",
International Commission of Jurists , No. (1979), pp. 31-36; R.T. Spjut, "Torture under the European Convention on
Human Rights", American Journal of International Law , vol. 73 (1979), pp. 267-72; Gianluca Gentili, "European Court
of Human Rights: An Absolute Ban on Deportation to Countries Where Torture or Ill-Treatment is a Genuine Risk"
International Journal of Constitutional Law, vol. 8, (2010), pp. 311-322.
63 Yearbook of the European Convention on Human Rights , vol. 12, 1969, p. 180.
64 Ibid ., p. 156.
65 Ireland v. United Kingdom , 18 January, 1978, Ibid. , p. 501.
66 Ibid ., p. 186.
67 No. 4403/70, East African Asians v. United Kingdom , paragraph 189, 3, E.H.R.R. 76.
68 No. 5854/72, Tyrer v. United Kingdom.
69 Cf. Duffy, n. 62, Tyrer judgement, especially para. 30, 2 E.H.R.R.I; Ireland v. United Kingdom , judgement, paras. 163,
1678 and 181, 2 E.H.R.R. 25; Mark v. Belgium , judgement, para 66, 2 E.H.R.R.; Guzzardi v. Italy , judgement, para
107, 3 E.H.R.R.333; Campbell and Cosans v. United Kingdom , Judgement, para 30, 4, E.H.R.R. 293.
70 Ibid ., p. 319.
Page 26 of 29
71 Ireland v. U.K. judgement, 18 January, 1978.

72 Para 162 of the Ireland judgement and para. 30 of the Tyrer judgement.
73 Cf. Duffy, n. 62, fn. 33, No. 2686/65, Zeider-Kornmann v. Germany , 11 Yearbook 1020 the facts of this case inspired
the example in the text; it is noteworthy how the Commission stressed the applicants unco-operative behaviour and that
these measures were only adopted after others had been tried.
74 Cf. Duffy, n. 62, fn. 34, No. 6181/73, X. v. Germany , 46 Col.188.
75 A separate Convention which deals with torture, is, Inter-American Convention to Prevent and Punish Torture, The
Inter-American Torture Convention defines torture in Article 2 and, separately, in Article 3 , those guilty of the crime of
torture. Article 3 includes any official who "orders, instigates or induces the use of torture, or who directly commits it or
who, being able to prevent it, fails to do so", as well as a private person who is "instigated" by a public official to do any
of the above. Article 12 of the Inter-American Torture Convention also provides for universal criminal jurisdiction over
the crime of torture "described in this Convention", and Article 19 provides a right to compensation. [Inter-American
Convention to Prevent and Punish Torture, opened for signature, 9 December, 1985, OAS T.S. No. 67, OEA/Ser. A/42
[hereinafter Inter-American Torture Convention].
76 Article 5(3) of American Convention on Human Rights.
77 Article 5(5) of American Convention on Human Rights.
78 Robert E. Norris, "Observations in LOCO: Practice and Procedure of the Inter-American Commission on Human
Rights", Texas International Law Journal , vol. 15 (1980), pp. 46-95.
79 Cabra, n. 33, p. 30.
80 IACHR, Draft Convention of the Inter-American Commission on Human Rights, Article 4 , OEA/Ser.L/V/II, 19, Doc. 48,
Rev. 1 (1968).
81 C. Beccaria, Deilitti e Del Pena (Lione, 1979), cf. Cabra, n. 33, p. 31.
82 Klayman, n. 62, pp. 445-83.
83 Article 1 of UN Convention Against Torture.
84 Report of the Human Rights Committee (Muteba v. Zaire ), UN GAOR, Hum. Rts. Comm., 39th Session, Supp. No. 40,
annex. 13, p. 1897, UN Doc. A/39/40, 1984 (mock executions as a form of torture).
85 UN GAOR, Hum. Rts. Comm., 44th Session., Cmt.20, reprinted in Compilation of General Comments and General
Recommendations adopted by Human Rights Treaty Bodies , UN GAOR, Human Rights Commission, 44th Session,
UN Doc. HRI/GEM/1(1992).
86 UN GAOR, Human Rights Commission, 16th Session., Cmt. 7, reprinted in compilation.
87 P. Kooijmans, the Rapporteur, stated that there is a "grey-area" regarding the degree of "pain or suffering" which
distinguishes "torture" from "other treatments" particularly when the alleged "severe suffering" is more "mental" than
"physical". Torture and Other and, Inhuman or Degrading Punishment: Report of the Special Rapporteur , UN ESCOR,
Hum. Rts. Comm.; 33, UN Doc. E/CN. 4/1956/15 (1986).
88 Deborah Blatt, "Recognising Rape as a Method of Torture", New York University Law Review and Social Change , vol.
9 (1992), pp. 821-48.
89 Report by Special Rapporteur, n. 87, p. 119.
90 Amnesty International described rape as a violation of Article 1 of the United Nations Convention Against
Torture:[Rape is] both a physical violation and injury, and an assault on a womans mental and emotional well being.
Interrogators and other government officials have used rape as a form of torture in attempts to intimidate women from,
pursuing, particular activities and to extract information or "confessions" from them, Rape constitutes an especially
humiliating assault (and) often carries traumatic social repercussions.
91 Theodor Meron, "Rape as a Crime Under International Humanitarian Law", American Journal of International Law , vol.
87 (1993), pp. 424-28.
92 Article 1 of United Nations Convention Against Torture, 1984.
93 Myres S. Mcdougal, Harold Laswell & L.C. Chen, "Human Rights and World Public Order: A Framework for Policy-
Oriented Inquiry", American Journal of International Law , vol. 63 (1969), pp. 237-39, p. 267.
Let it be said immediately that a certain minimum of values indispensable to a dignified human existence must be
prescribed as immune from all claims of derogation at all times. Notably among these are the right to life, freedom from
torture and inhuman treatment, freedom from involuntary human experimentations, freedom from slavery, the slave
trade and servitude, freedom from imprisonment for debt, freedom from retroactive application of criminal punishment,
the right to recognition as a human being, and freedom of thought, conscience and religion. These rights and freedoms
are indispensable to a dignified human existence and must remain wholly intact from derogation upon grounds of crisis.
Page 27 of 29
In terms of our basic postulation, it can never be necessary to encroach upon these rights and freedoms, even in time
of emergency. Nor would their deprivation ever be proportional. If the emerging concept of jus cogens is to be given
rational meaning in the context of a world public order of human dignity, its bedrock must be in this minimal protection
of human rights".
94 Article 4 UDHR; Article 4 ECHR, Article 6 ACHR.
95 Article 8(3) stipulates:
3.
(a) No one shall be required to perform forced or compulsory labour;
(b) Paragraph 3(a) shall not be held to preclude, in countries where imprisonment with hard labour may be
imposed as punishment for a crime, the performance of hard labour in pursuance of a sentence to such
punishment by a competent Court;
(c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include:
(i) any work or service, not referred to in sub-paragraph (b), normally required of a person
(ii) any service of a military charter and, in countries where conscientious objection is recognised, any
national service required by law of conscientious objectors;
(iii) any service exacted in cases of emergency or calamity threatening the life or wellbeing of the
Community;
(iv) any work or service which forms part of normal civil obligations.
96 E/CN.4/SR.92, pp. 11-12.

97 This was proposed by USA, E/CN.4/SR.92, p. 9
98 The term "forced or compulsory labour" has been defined in the International Convention concerning Forced or
Compulsory labour of 28 June, 1930 as meaning "all work or service which is exacted from any person under the
menace of any penalty and for which the said person has not offered himself voluntarily". (International Labour
Conference, Conventions and Recommendations, 1919-1944, Convention No. 29, Art. 2 (Geneva, 1949)).
99 E/CN.4/SR.192(ILO), paragraph 28.
100 E/CN.4/SR.94, p. 6 (Philippines); p. 10 (USA & France).
101 n. 95.
102 E/CN.4/SR.143, para. 22 (France); E/CN.4/SR.142, Para. 17 (Great Britain).
103 n. 95
104 Ibid.
105 Bossuyt, n. 11, p. 177.
106 E/CN.4/SR.93, p. 3 (DK); E/CN.4/SP.94, p. 11 (USA); E/CN.4/SR.104, p. 10 (GB) & (SU), & (PI), P.11 (F).
107 E/CN.4/SR.104, p. 10 (IND).
108 E/CN.4/SR.104, p. 12-13 (YU), p. 13 (F), pp. 13-14 (B).
109 Article 5 of the European Convention stipulates that everyone has the right to liberty and security of person.
110 Cf. Cabra, n. 33, p. 32.
111 Under the sponsorship of the League of Nations, the Convention on Slavery was subscribed on 25 September, 1926
and the Convention on Forced labour was subscribed on 28 June, 1930. In the Convention on Slavery, the term
"slavery" is defined as "the state or condition of a person over whom any or all of powers attacking to the right of
ownership are exercised". The Convention pledges the State to prevent and to suppress the slave trade as well as to
attempt to abolish it.
112 In Committee 1, the US was successful in having the word "involuntary" added before "servitude" in the English text
which makes it conform to the 13th Amendment to the US Constitution; Cf. Cabra, n. 33, pp. 29-31.
113 CP Covenant and European Convention of Human Rights.
Page 28 of 29
114 E/CN.4/SR.112, p. 8.
115 M. Cherif Bassiouni, "Crime Against Humanity: The Need for a Specialised Convention", Columbia Journal of
Transnational Law , vol. 41 (1994), pp. 457-94. Michael S. Bernstein, "Holocaust and Human Rights Law: The Fourth
International Conference", Boston College Third World Law Journal , vol. 12 (1992), pp. 1-36. Theodor Meron, "The
Protection of the Human Person under Human Rights and Humanitarian Law", Bulletin of Human Rights (New York,
1992), pp. 1-36.
116 E/CN.4/SR.112, p. 4 (USA); E/CN.4/SR.159, para. 89 (France).
117 Duane W. Layton, "Forty Years After the Nuremberg and Tokyo Tribunals: The Impact of War Crimes Trials on
International and National Law", Proceedings of the American Society of International Law , vol. 80 (1986), pp. 56-75;
Rupa Bhattacharya, "Establishing a Rule-of-Law International Criminal Justice System", Texas International Law
Journal , vol. 31 (1996), pp. 57-99. The Principles of International Law recognised by the Charter of the Nuremberg
Tribunal and the judgements of the Tribunal were affirmed by the General Assembly.
118 E/CN.4/SR.112, para. 5 & (Philippines).
119 A/C.3/SR.1009, para. 13 (Great Britain); A/C.3/SR.1011, para. 31 (New Zealand), para. 35 (Italy).
120 Bhattacharya, n. 117, p. 64.
121 Bossuyt, n. 11, pp. 238-41.
122 E/CN.4/SR.102, pp. 9-10.
123 Ibid.
124 Representatives of Czechoslovakia and France, A/C.3/SR.568; A/C.3/SR.884.
125 AC/SR.884, p. 5 (Japan); A/C.3/SR.885, p. 4 (Netherlands).
126 Article 7(7) of American Convention provides, "No one shall be detained for debt. This principle should not limit the
orders of a competent judicial authority issued for non-fulfilment of duties".
127 Article 1 of Fourth Protocol of the European Convention provides, "No one shall be deprived of his liberty merely on
the ground of inability to fulfil a contractual obligation".
128 Article 6 says, "Everyone has the right to recognition everywhere as a person before the law".
129 A/C.3/SR.1014, p. 18 (Yugoslavia).
130 A/C.3/SR.290, para. 44 (New Zealand).
131 The proposal of Great Britain to delete "everywhere" was not pressed to vote. A/C.3/SR.1014.
132 Cabra, n. 33, pp. 21-63.
133 Article 24(2) says, "Every child shall be registered immediately after birth and shall have a name".
134 Cabra, n. 33, p. 49.
135 Article 24(3) says, "Every child has the right to acquire a nationality".
136 Cabra, n. 33, p. 52.
137 Article 23(3) says, "No marriage shall be entered into without the free and full consent of the intending spouses".
138 Article 23(4) stipulates that States parties to the present Covenant shall take appropriate steps to ensure equality of
rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution,
provision shall be made for the necessary protection of any children.
139 S. Exec. Doc. C.D., E&F, 95th Cong., 2nd Session XXI (1978) (letter from Warren Christopher, Department of State, to
the President dated 17 December, 1977, submitting the American Convention for transmission to the Senate) Cf.
Cabra, n. 33, p. 27.
140 Cabra, n. 33, p. 49.
141 Relevant to this Article are the principles expressed in the Declaration of the Rights of the Child proclaimed by the
General Assembly of the United Nations on 20 November, 1959; General Assembly Resolution 1386, 14 UN GAOR,
Suppl. (No. 19, UN Doc. A/4354 (1959)).
142 Article 19(1) of CP Covenant provides, "Everyone shall have the right to hold opinions without interference".
143 Bossuyt, n. 11, pp. 360-64.
144 Article 12(3) under American Convention; Article 18(3) under CP Covenant.
145 Article 27(2) of American Convention provides, "... or of the judicial guarantees essential for the protection of such
rights".
Page 29 of 29
End of Document
CHAPTER 3 Implementation of Non-Derogable Rights
Manoj Kumar Sinha
Human Rights
SECTION I: IMPLEMENTATION MECHANISM AT INTERNATIONAL LEVEL

The study of implementation mechanisms of human rights protection at the global level as well as the regional
levels may be undertaken from different angles. But here this study will begin with procedural aspects of
implementation. The study will examine the implementation mechanism available in the CP Covenant and Universal
Declaration of Human Rights (1948) and then study the implementation mechanism under the European
Convention on Human Rights and Fundamental Freedoms (hereinafter referred to as the European Convention),
the American Declaration of the Rights and Duties of Man (hereinafter referred to as the American Convention) and
lastly, the African Charter on Human and Peoples Rights (hereinafter referred to as the African Charter).
I. UNIVERSAL DECLARATION OF HUMAN RIGHTS
The Charter of the United Nations lays down certain guiding principles with regard to the promotion of human rights
and fundamental freedoms. The first step was towards the implementation of the UN Charter provisions, under the
authority of Article 68 . 1 The Economic and Social Council on 21 June, 1946 adopted a resolution 2 outlining the
function and composition of the Commission on Human Rights. The main task of the Commission was to prepare
proposals, recommendations and reports for consideration by the ECOSOC concerning:
(a) An International Bill of Rights;

(b) International Declarations or Conventions on civil liberties, the status of women, freedom of information
and similar matters;
(c) The protection of minorities;
(d) The prevention of discrimination on grounds of race, sex, language or religion;
(e) Any other matter concerning human rights not covered by items (a), (b), (c) and (d).
With regard to the composition of the Commission this resolution stated that:
(a) The Commission on Human Rights shall consist of one representative from each of eighteen members of
the United Nations selected by the Council. 3
(b) With a view to securing a balanced representation in the various fields covered by the Commission, the
Secretary-General shall consult with the Governments so selected before the representatives are finally
nominated by these Government and confirmed by the Council.
Through its three sessions, the Commission formulated and approved a draft Declaration, as the first part of the
proposed International Bill of Rights. 4 The draft Declaration was subsequently adopted by the General Assembly
as the Universal Declaration of Human Rights on 10 December, 1948 by a vote of 48 to 0 with 8 abstentions. 5 The
Universal Declaration of Human Rights (hereinafter referred to as the UDHR) includes not only civil and political
rights, 6 but also economic, social and cultural rights. 7
The concluding articles emphasise the interdependence of the rights and duties of the individual in relation to the
community. Article 29 , paragraph (1) states that: "Everyone has duties to the community in which alone the free
and full development of his personality is possible". Article 29 , paragraph (2) in broad general terms make the
following limitations respecting the exercise of the rights set forth in the Declaration. It states, "In the exercise of his
rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the
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purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society".
The UDHR recognises these rights and freedoms for all "without any discrimination of any kind, such as race, sex,
language, religion, political or other opinion, national or social origin, property, birth or other status". Furthermore,
no distinction shall be made with respect to the application of the above rights and freedoms, as between
independent States and trust or non-self governing territories. 8
Thus, the UDHR is designed as the first part of the proposed Bill of Rights. It is an elaboration of the principles of
human rights and fundamental freedoms.
II. DRAFTING OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
The draft Covenants are legal instruments designed to expand upon and give effect to the UDHR. The Commission
on Human Rights prepared the first draft Covenant in 1947. 9 It devoted six sessions, the fifth to tenth from 1949-
1954 to the preparation of the two Covenants. Once the Commission began to reconsider the drafting of a
Covenant on Human Rights in 1949, it was confronted with proposals put forward by the Soviet Union and Australia
which sought to extend the scope of the Covenant to include economic and social rights as well as civil rights. The
French delegate expressed a desire to see economic and social rights included, but in a separate and later
Covenant. However, the Commission did not take a decision on the USSR-Australian proposal at the fifth session
and instead adopted a resolution and requested the Secretary-General to prepare a report on the activities of the
other bodies of the United Nations as well as of the specialised agencies, affecting matters within the scope of
Articles 22 - 27 of the Universal Declaration for consideration by the Commission at its sixth session. The
Commission at its sixth session decided that the draft Covenant covering certain essential civil rights should be the
first of a series of Covenants and that it would consider additional Covenants dealing with economic, social, cultural,
political and other categories of human rights at its subsequent sessions. 10
The developing countries of Asia, Africa and Latin America and even USSR and East European countries were in
favour of inclusion of both economic and social rights, as well as civil and political rights in one Covenant. However,
those in favour of having two Covenants as well as those in favour of a single Covenant generally agreed that "the
enjoyment of civil and political freedoms and of economic, social and cultural rights are interconnected and
interdependent" and that "when deprived of economic, social and cultural rights, man does not represent the human
person whom the Universal Declaration regards as the ideal of the free man". 11
Those in favour of including economic and social rights in a separate Covenant based their contention on the fact
that civil and political rights were immediately enforceable, or of an absolute character, while economic, social and
cultural rights were to be progressively implemented. On the question of these two different categories of rights,
observations were made to the effect that measures necessary for the enforcement of civil and political rights are of
an entirely different type from those necessary for the enforcement of economic, social and cultural rights, which
were attainable only gradually because of the differing economic structures, standards of life and cultural traditions
of different States. 12 The Commission finally adopted two draft International Covenants on Human Rights and
Measures of Implementationthe one on Economic, Social and Cultural Rights, the other on Civil and Political Rights.
13
III. DRAFTING MEASURES FOR IMPLEMENTATION
The draft Covenants elaborated two types of implementation mechanism for two broad categories of human rights.
Whereas the Economic and Social Council (ECOSOC) is the key organ for the progressive implementation of
economic, social and cultural rights and Human Rights Committee (HRC) is the main instrument for implementation
of civil and political rights. However some representatives, among them those of the Byelorussian SSR,
Czechoslovakia, Poland and the USSR, were of the view that the establishment of HRC, would amount to
intervention in domestic affairs of sovereign States.
The Commission on Human Rights established a Working Group charged with the task of drafting measures of
implementation to be included in the Covenant on Human Rights (as only one instrument was then contemplated).
14
During the initial drafting stages nearly all the States were of the opinion that the draft Covenant must include
provisions guaranteeing for individuals the right to petition the United Nations or any other international organ which
might be established, if the Covenant were to be assured of proper implementation. The active proponents of the
right of individual petition were Australia, Belgium, France, India, Israel, Chile, Uruguay, the Netherlands, Egypt,
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Lebanon, the Philippines, Denmark, Ecuador and Sweden. 15 The main reasons which these countries offered in
favour of the individuals right of petition was the inherent weakness of the State versus the State system of
implementation. 16
The big powers were not ready to grant individuals or groups of individuals or non-government organisations any
right to petition an international body in case of violation of human rights. The United States representative made
the following statement:
...in the opinion of the United States Government, machinery for implementation should be set up on a limited scale at first
in order to make it acceptable to the greatest number of governments and to avoid setting up a complicated procedure
which might prove ineffective. Further steps could be taken in the light of experience. At the existing stage, it would be
better to set up a Committee which could deal only with complaints lodged by States, and not with those lodged by
individuals or group of individuals. 17
The delegate of the United Kingdom expressed the same view. He said:
The Covenant on Human Rights is an entirely new departure in the realm of international co-operation and, in the opinion
of His Majestys Government to include in it, at this stage, provisions permitting complaints by individuals would be to place
in jeopardy all the work which has been devoted to its preparation. It will be far wiser to start by establishing machinery to
deal with disputes which arise between States and, in the light of experience so gained, subsequently to consider the
extension of the machinery to complaints by individuals. 18
The Soviet-bloc countries felt that such a right would mean gross violation of national sovereignty. 19 Another
objection to the recognition of such a right was that it would have adverse repercussions on the judicial and
administrative processes of individual governments and States and damage the prestige of the national courts. 20 It
was observed that recognition of any such right would affect the United Nations adversely. The organisation might
be so swamped by individual petitions that it would be quite unable to handle them. 21
In spite of this, it cannot be denied that individuals are the first to suffer from any violation of human rights. 22 If an
individuals rights are to be protected, he must have the means at his disposal to enforce them. 23 It will be a great
change no doubt, but this right to petition seems to be a basic minimum for safeguards of the rights of man. 24
The alternative to it is the system of State to State complaints which has been accepted in Article 40 of the draft
Covenant on Civil and Political Rights. 25 The fundamental question seems to remain unanswered even in such an
arrangement. This can very well be used for propaganda purposes. 26 It may thus prejudice international
understanding. It may be a veritable source of international tension and even war. 27
The next important problem connected with the International Covenants is the question of implementation of the
Covenants by the States concerned. It includes the measures that each State will have to take to bring the
municipal law in line with the Covenants. Accession to the Covenants with a mere promise for future constitutional
adjustment will permit a State to earn credit at home and abroad without being compelled to take any steps to give
effect to them until the State sees it fit to do so. Article 2(2) of the draft Covenant on Civil and Political Rights
provides:
...where not already provided for by existing legislative or other measures, each State undertakes to take the necessary
steps, in accordance with its constitutional processes and with the provisions of the Covenant, to adopt such legislative or
other measure as may be necessary to give effect to the rights recognised in the present Covenant.
Article 2(1) of the draft Covenant on Economic, Social and Cultural Rights has also been drawn on similar lines
and it states:
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and
cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving
progressively the full realization of the rights recognised in this Covenant by all appropriate means, including particularly the
adoption of legislative measures.
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IV. IMPLEMENTATION MECHANISM UNDER THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS
(a) Background
A milestone was reached on 16 December, 1966, when the UN General Assembly adopted the CP Covenant by
unanimous vote. 28 The drafting of the Covenants was a long and arduous process; while the Universal Declaration
of Human Rights 29 took only 18 months to complete, the Covenant took as many years. 30 The value of these
instruments is apparent: first, they define more explicitly the scope and standards of those human rights which are
considered fundamental in the Declaration of Human Rights.Second, to the extent they are ratified, they would give
substantial legal efficacy to the general obligations now imposed by the UN Charter. Lastly, they would provide a
means for implementing the rights contained therein. 31
During the 1963 session of the General Assembly, the Third Committee (Social, Humanitarian and Cultural)
adopted the last of the substantive articles for both Covenants. 32 The Covenants are explicit as to the rights to be
protected and each places a positive obligation on States to ensure such protection. 33Article 2 of the CP
Covenant provides that each State:
...undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised
in the present Covenant, 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.
The CP Covenant 34 contains 53 articles. States are to respect and ensure those rights upon becoming the parties
to the CP Covenant. It is true that most of the substantive articles of the CP Covenant define and amplify
corresponding provisions in the Universal Declaration of Human Rights.
The implementation 35 measures of the CP Covenant are set out in Articles 28 to 45 , and also in the Optional
Protocol which establishes a procedure for considering individual communication. The body which is charged with
supervising the observance by States parties of their obligation under the CP Covenant is the Human Rights
Committee (hereinafter referred to as the HRC). 36Article 28 of the CP Covenant provides for the establishment of
a Human Rights Committee, consisting of 18 members who must be nationals of the parties to the CP Covenant
and "persons of high moral character and recognised competence in the field of human rights". 37 In their election
"consideration shall be given to equitable geographical distribution of membership" 38 and to the representation of
the different forms of civilisation and of the principal legal systems. 39 The members of the Human Rights
Committee are elected for a four year period by secret ballot from nominations by States parties 40 at a special
meeting convened for the purpose by the Secretary-General of the United Nations. Each party may nominate more
than two candidates, who must be nationals of the nominating State. Members of the Committee are eligible under
Article 29(3) of CP Covenant for re-election. The personal nature of the duties performed by Committee members
is reinforced by the requirement that each must, on appointment, make a solemn declaration that he will perform his
functions impartially and conscientiously. The Committee members are paid by the UN, thus eradicating one
particular major source of potential government interference. The Committee presently meets three times in each
year, in the spring, summer and autumn in sessions of three working weeks each. The spring session takes place in
New York and the others in Geneva. Secretariat services are provided by the United Nations Centre for Human
Rights.
(b) Supervisory Mechanisms
(i) The Obligation on the State
The CP Covenant and its Optional Protocol provides for one mandatory and two optional mechanisms to enable
the Human Rights Committee to monitor fulfilment of obligations by the States parties. The mandatory means of
supervision is a system of periodic reports under Article 40(1) . Under this provision States parties undertake to
submit reports on the measures they have adopted to give effect to the rights recognised in the CP Covenant and
on the progress made in the enjoyment of those rights. 41 Copies of State reports and comments are forwarded to
ECOSOC for consideration, and the Committee itself is also required to submit an annual report to the General
Assembly on its activities.
The Committee has decided that the periodicity for submission of subsequent reports other than initial reports is
five years. 42 However, pursuant to Article 40 , the rules of procedure also stipulate that reports can be requested
also "at any other time the Committee deems appropriate". The Committee has stressed that the official reports
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should deal not only with the constitutional and legal situation in a country, but also with relevant activities of
judicial, legal and administrative authorities, 43 together with any restrictions or limitations even of a temporary
nature imposed by law or practice or in any other manner on the enjoyment of the rights guaranteed in the CP
Covenant, and any other information on the progress made in the enjoyment of the rights. 44
However, in 1995 the Committee amended its guidelines for initial and periodic reports to stipulate that information
to be provided on implementation of each right should include, "factors affecting and difficulties experienced in the
implementation of the Covenant including any factors affecting the equal enjoyment by women of that right". 45
(ii) The Emergency Procedure
Since 1991 the HRC has developed a procedure to respond to what it perceives as emergency situations. The
procedure is clearly based on the provisions of Article 40 of the Covenant and is reflected as follows in the
Committees Rules of Procedure:
Request for submission of a report under Article 40 , paragraph 1(b) of the Covenant may be made in accordance with the
periodicity decided by the Committee or at any other time the Committee may deem appropriate. In the case of exceptional
situation when the Committee is not in session, a request may be made through the Chairman, acting in consultation with
the members of the Committee. 46
The Committee has under this procedure requested urgent reports from nine States parties so far. 47 In most
cases, the States parties are requested to submit the reports within three months. Non-governmental organisations
(NGOs) have an important role in bringing emergency situations of human rights violations to the attention of the
Committee.
(iii) Inter-State Complaints Procedure
A second method of supervision is optional, related to an inter-state complaints procedure covered under Articles
41 and 42 of the CP Covenant. The Committee is competent to consider communications from a State party which
considers that another State party is not giving effect to the provisions of the CP Covenant. It shall make available
its good offices to the State parties concerned with a view to promoting a friendly solution of the matter. This activity
can be exercised by the Committee only if both States have declared that they recognise its competence to receive
and consider such communication from States.
(iv) The Individual Communication Procedure
The third method of supervision of enforcement of the rights contained in the CP Covenant is again optional. This
is the individual communication procedure contained in the Optional Protocol. States parties may empower the
Committee to receive and consider communications from individuals who claim to be victims of a violation by a
State of any of the rights stipulated in the Covenant. 48 The Committee can entertain individual communications only
if a State party has ratified the Optional Protocol to the Covenant. The duty of the Committee here is to "forward its
views to the State Party concerned and to the individual". 49 The function of the Committee is to gather all
necessary information, by means of written exchanges with the parties, to consider the admissibility and merits of
complaints, and to issue its "views" accordingly.
All steps of the procedure under the Optional Protocol are confidential until the point where the Committee adopts
its views or otherwise concludes consideration of a case. 50
(c) Human Rights Committee under the Optional Protocol
The Human Rights Committee 51 started its work under the Optional Protocol at its second session in 1977. 52 One
general trend in the emerging case law of the Committee is most promising: the Committee has displayed a
determined desire to be seen to be acting in, at least, a quasi-judicial manner. It has been conducting its work being
fair to both petitioners and States parties. The ensuing analysis will reflect the nature and breadth of the
Committees decisions on communications lodged by individuals.
(d) Legal Basis for Follow-up Procedure
The idea for establishment of a Human Rights Court with effective implementation mechanism is still gaining
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momentum. This is true that the Human Rights Committee is not such a court, but it does exercise analogous
responsibilities and it is the only international body to fulfil this need.
The Human Rights Committees decisions on the merits are referred to as "views" in Article 5 , paragraph 4. 53
Although views are read like court judgements, in fact drafters of the CP Covenant did not call them so, nor did they
confer upon them legally binding force. Another weakness is that the Optional Protocol does not provide for an
enforcement mechanism. Thus, in practice the Committees views are more in the nature of recommendations.
For making the Human Rights Committee more effective, a State may provide in its domestic legislation that it will
carry out decisions of the Human Rights Committee.
(e) The Procedure for the Handling of Individual Communications
A number of important procedural and substantive issues have been the subject of discussion. The rule regarding
the legal standing of a person to submit a communication 54 on behalf of an alleged victim was further defined to
require that the author of the communication show "sufficient link" with the alleged victim. Exceptionally, the
Committee may entertain a communication submitted on behalf of an alleged victim under Rule 90(1)(b) when it
appears that the complainant is unable to submit the communication himself, as he has been detained.
The Committee will not consider communications where the author fails to establish any genuine link between
himself and the alleged victim. In Massera v. Uruguay, 55 the author petitioned on behalf of herself, her husband,
her mother and her step father, Jose Luis Massera. 56 The Committee decided that the "author of the
communication was justified by reason of close family connection in acting on behalf of the other alleged victims" 57
In other cases, the Committee has found that the author of a communication lacked sufficient locus standi to
submit a petition on behalf of others. In Grille Motta v. Uruguay, 58 the author submitted a communication on his
own behalf and on behalf of other persons who allegedly were not in a position to submit a communication on their
own. The Committee requested the author to furnish further information on "the grounds and circumstances
justifying his acting on behalf of the other alleged victims mentioned in the communication". 59 The author failed to
respond, and so the Committee was left with no choice and finally decided to drop the case altogether. In another
interesting case, U.R. v. Uruguay, 60 the petitioner was a member of a non-governmental organisation and had
taken an interest in the alleged victims situation. He claimed that he had worked for two and half years with an
NGO, and that he had the authority to act on behalf of U.R. as every prisoner treated unjustly would appreciate
further investigation of his case by the Human Rights Committee. 61 The Committee recalled its previous case law
and declared the application inadmissible. It stated that it had established through a number of decisions on
admissibility that a communication submitted by a third party on behalf of an alleged victim can only be considered
if the author justifies his authority to submit the communication. These cases tend to strike a balance between
allowing the maximum possible scope for petitioners who, for some reasons are unable to act on their own initiative
and on the other allowing the Optional Procedure to be swamped by a deluge of unauthorised communications.
Secondly, a complaint regarding violations occurring before the date on which the Covenant and the Protocol
became binding on a State party will not be considered, 62 but reference to such violations may be considered
whether the author alleges that the violations continued even after the critical date.
Thirdly, Article 5(2)(a) of the Optional Protocol, precludes the Committee from considering any communication
unless it has ascertained that, "the same matter is not being examined under another procedure of international
investigation or settlement". Accordingly, the Committee cannot "consider" any communication which is being
examined simultaneously under any other international procedure of investigation or settlement, for example, under
the Inter-American Commission on Human Rights (IACHR) or the European Commission on Human Rights. In such
cases, the Secretariat, on the instruction of the Committee, will notify the author that the Committee has no
competence to examine the matter.
Many difficult issues of interpretation in the terminology of Article 5(2)(a) have had to be resolved by the
Committee. For example, whether the Committee is prevented from considering a communication received by it
when an unrelated third party has simultaneously lodged an application in respect of the same victim with another
organ of international settlement. The Committee considered this question in the Altesor v. Uruguay, 63 wherein the
authors who were Uruguayan nationals living in Mexico, submitted an application on behalf of their father, Alberto
Altesor, also a Uruguayan citizen, to the IACHR in October, 1970, alleging inter alia that he had been arbitrarily
detained by governmental authorities. The authors submitted their fathers case to the Committee on 10 March,
1977. In March, 1979, an unrelated third party lodged a complaint with the IACHR in respect of the treatment of
Alberto Altesor. Subsequently by a letter dated 6 May, 1980, Albertos son and daughter withdrew their application
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on behalf of their father from the IACHR. There remained a petition before the IACHR by the unrelated third party.
The Committee concluded that it was not prevented from considering the Communication submitted to it by the
authors on 10 March, 1977 by the reason of the subsequent complaint made by an unrelated third party under the
procedures of the IACHR, 64 apparently the latter lacked the necessary locus standi before the Committee.
The Committee has also decided that an examination of situations which "appear to reveal" a consistent pattern of
gross and reliably attested violations of human rights and fundamental freedoms in a particular country under
ECOSOC Resolution 1503 (XLVIII) does not constitute an examination of the "same matter" on a claim by an
individual submitted to the Committee under the Optional Protocol, within the meaning of Article 5(2) of the
Protocol. Accordingly, the invocation of the ECOSOC Resolution does not constitute a bar to the consideration of
an individual case.
In general, the jurisprudence of the Committee, under Article 5(2)(a) of the Protocol narrowly confines the
operation of the grounds of admissibility in that article to a situation where an appropriate analogous body is actively
considering the "same matter" at the time of the Committees decision on admissibility. This strict interpretation is in
harmony with the terms of the Protocol itself.
The cases related to non-derogable rights are more extensively dealt with in Chapter V.
V. COMMISSION ON HUMAN RIGHTS
The UN Commission on Human Rights was established by the UN Economic and Social Council on 16 February,
1946 (Resolution 5(1)) in accordance with Article 68 of the United Nations Charter which authorises the Council to
set up "Commissions in economic and social fields and for the protection of human rights".
The Commissions original mandate was to submit to the Council proposals, recommendations, and reports
regarding: (a) an international bill of rights; (b) international declarations or conventions on civil liberties, the status
of women, freedom of information and similar matters; (c) the protection of minorities, (d) the prevention of
discrimination on grounds of race, sex, language or religion; and (e) any other matter concerning human rights. In
1979, a new function was added: to assist the Economic and Social Council in the coordination of activities
concerning human rights in the United Nations system. 65
Since its first meeting in 1947, the Commission had been at the forefront of international activity to define, promote
and protect human rights and fundamental freedoms. In addition to preparing a number of international treaties and
declarations on them, the Commission had considered many situations involving violation of those rights and
freedoms sought, through persuasion and dialogue, to prevent and eliminate human rights violations,
recommended measures to ensure compliance with universally recognised norms of human rights and has offered
and provided upon request, advisory services and other expert assistance to reduce the incidence of violations of
human rights.
The Commission employed a special procedure, established by the Economic and Social Council in Resolution
1503 (XLVIII) of 27 May, 1970, in examining situations which appear to reveal a consistent pattern of violations of
human rights.
(a) Composition of the Human Rights Commission
The Commission on Human Rights was composed of government representatives of 53 States (43 until 1991)
which are elected, one-third each year, by the Economic and Social Council to three-year terms.
The Commission used to meet for one six-week session annually, usually in February-March. From its inception
the CHR focussed on elaborating various human rights standards. It drafted the UDHR and the two Covenants, one
on civil and political right, and another on economic, social and cultural rights. The CHR in its functioning actively
solicited the help of human rights experts to assist it in the task of examining specific situations. As of now, 43 men
and women are serving as United Nations Experts in the field of human rights. They cover 36 mandates on a wide
range of issues relating to civil, cultural, economic, political and social rights. The CHR had established a long
tradition of dealing with specific country situations. Experts are currently in charge of 8 other country mandates. 66
These country mandates are complemented by the thematic mandates. They cover 22 themes concerning a wide
range of civil, political, economic, cultural and social rights. Recently, attention has been paid to economic, social
and cultural rights. In fact, most mandates created since 1995 have been in the area of economic, social and
cultural rights. 67 During its annual session, the CHR drew public attention to human rights issues and debates.
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The Commission had a wide range of competence in addition to its power under the "1503 procedure".
(b) Outline of the 1503 Procedure
The scope of the 1503 procedure ratione materiae is very broad, as the resolutions do not define the meaning of
human rights.
The organs which used to be involved in the implementation of the 1503 procedure are: (1) the Secretary-General
(Secretariat) of the United Nations, (2) the Sub-Commission on Prevention of Discrimination and Protection of
Minorities, (3) the Working Group (five members) on situations of the Commission on Human Rights, (4) the Ad hoc
Committee of Investigation, (5) the Special Rapporteur or other organ charged with a thorough study of a situation,
(6) the Economic and Social Council, and the General Assembly. 68
The United Nations Organisation has received since its foundation a growing stream of letters dealing with human
rights situations. In accordance with ECOSOC Resolution 728 F(XXVIII), paragraph 2(a), those communications
regarding human rights which do not name any specific country, i.e., those which are described by the Resolution
as dealing with "the principles involved in the promotion of universal respect for and observance of human rights",
were placed on a non-confidential list together with a brief implication of the substance of the communication and
circulated in a public document each year to the Commission on Human Rights. The authors names were divulged
unless they requested otherwise.
Individual communications which accuse specific countries of violation of human rights are received in massive
proportions by the UN Secretariat: at least some 20,000 letters each year is an officially quoted number.
(c) Procedure for Handling Complaints of "Gross Violations of Human Rights" under Resolution 1503
(XLVII) of the United Nations Economic and Social Council (ECOSOC)
Resolution 1503 is generally not regarded as creating direct legal obligations for States. Its application depends to
a large extent upon "the good will" of governments. 69 However, it has been said, the UN Charter does create a
legal duty for Member States to cooperate with the UN for the application of its recommendations or, at least, not to
obstruct such application. 70
The purpose of the 1503 procedure, under paragraph 5 of the Resolution, is to identify and, hopefully, eliminate
global "situations which appear to reveal a consistent pattern of gross...violations of human rights". In the light of
this global purpose, individual complaints are taken essentially as sources of information to show "consistent
patterns of gross violations", not as cases calling for redress or relief in each specific instance.
Thus, the 1503 procedure, a "petition-information system", is in contrast with the procedure of the Optional
Protocol, the European Convention on Human Rights and the American Convention, their aim being to bring
redress in respect of each specific complaint.
The global purpose of the 1503 procedure has important practical consequences, which should be well understood
by petitioners from the outset:
(a) Since the plaintiff is an information-transmitter, he is not required to have been a victim himself. "Direct and
reliable knowledge" is sufficient.
(b) Plaintiff has no right to have the substance of his communication considered in the process of identifying
the consistent pattern of violations. However, well-founded, complaints may be discarded if they do not
bring new evidence regarding such a pattern.
(c) Once he has submitted his information and received acknowledgement thereof, the plaintiff plays almost
no further role in the procedure. He is not officially appraised of any document before international organs
nor of any of the decisions of these bodies. The proceeding are almost entirely ex partevis-a-vis the
petitioner. The grounds advanced for this exclusionillogical as they may appearare that the search for
patterns of gross violations of human rights is an important matter of "international public policy" which
must be the responsibility of the whole international community, not of individual claimants. Similarly, for
criminal cases at the national level, the Public Prosecutor, not the victim, has the responsibility to seek
punishment.
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The ex parte character is not so stressed, however, as regards the respondent State, which has a right and an
opportunity to participate in the procedure.
(d) Procedure of Handling Complaints
When situations were referred to the Commission by the Sub-Commission, the government concerned was
informed and invited to submit written observations on the situation. The situations referred to were first examined
by a five member working group of the Commission which meets one week before the annual session of the
Commission. The working groups recommendations are transmitted to the government concerned in order to
facilitate the governments participation in the Commissions consideration of the situation.
The Commission on Human Rights, having considered the groups report, determined whether the situation
required a "thorough study" by the Commission leading to a report and recommendations to the Economic and
Social Council, as provided for in paragraph 3 of ECOSOC Resolution 1235 (XLII), or if it should be subject to an
investigation by an Ad hoc Committee appointed by the Commission with the "express consent of the State
concerned".
In connection with the Commissions examination of a situation the State directly concerned was invited to send its
representative to address the Commission and reply to questions. Further, the Chairman/Rapporteur of the Sub-
Commissions Working Group was invited to be present during the Commissions deliberations and to take the floor if
he wished.
The objective of the "thorough study" 71 of a situation was a report and recommendations by the Commission on
Human Rights to the Economic and Social Council. The Council in turn, may have made recommendations to the
General Assembly, Member States and specialised agencies.
The investigation by an Ad hoc Committee 72 emphasised fact finding and reaching a friendly settlement, 73 in
continually close co-operation with the government concerned. The Committee, in its report, may have made
observations and suggestions to the Commission on Human Rights which, in turn, as above, may have
maderecommendations to the Economic and Social Council.
The 1503 procedure was confidential in all its aspects and phases "until such time as the Commission may have
decided to make recommendations to ECOSOC". The practice tended to show, however, efforts towards greater
transparency of proceeding and a search for effective investigation.
VI. THE HUMAN RIGHTS COUNCIL
The CHR acted for almost six decades as a forum where countries large and small, non-governmental groups and
human rights and defenders from around the world voiced their concerns. Over the years, the work of the CHR
changed substantiallythough, the CHR had a proud history. Under its first chairperson, Eleanor Roosevelt, it gave
the world the UDHR, and went on to develop the body of international human rights law and other core human
rights treaties. Unfortunately, its functioning was increasingly undermined by block voting and procedural
maneuvers that prevented some of the worlds worst human rights violators from being held to account for their
abuses. 74 The States sought membership of the CHR not to strengthen human rights but to protect themselves
against criticism or to criticize others. The purpose was to protect the UNS human rights role against manipulation
by those who had become quite adept at gaming the system to their advantage. On 26 March, 2006, the CHR
concluded its sixty-second and last session after 60 years of work for the promotion and protection of human rights.
75
(a) Establishment of the Human Rights Council
Kofi Annan, Secretary-General of the United Nations urged Member States of the United Nations for the
establishment of a Human Rights Council (HRC), in his report, In Larger Freedom: Towards Development, Security
and Human Rights for All. 76 He highlighted the urgency of establishing the HRC in the following words:
...if the United Nations is to meet the expectations of men and women everywhere and indeed, if the Organisation is to
take the cause of human rights as seriously as those of security and developmentthen Member States should agree to
replace the Commission on Human Rights with a smaller Human Rights Council. 77
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The States did not agree in September, 2005, to the initial proposal of Kofi Annan, which he actually proposed as a
body that would ensure higher standards of membership and accountability. The failure of that first initiative was
due in part to demands for sweeping changes to the text that U.S. Ambassador to the United Nations John Bolton
put forward at the last minute. 78 Following lengthy negotiations and several draft resolutions, the General Assembly
overwhelmingly voted in favor of creating a new Human Rights Council (HRC). 79 The HRC remains large at 47
members, distributed by region, with States elected by an absolute majority of the General Assembly. The
Resolution calls upon States to take into account a candidates human rights record. Although the new Resolution
did not go as far as some Member States and human rights organizations hoped, the majority supported its
adoption. The US was one of only four Member States that voted against the adoption of the text. 80
Role and Functions of the Human Rights Council
A new beginning for the promotion and protection of human rights has started after the election of the first 47
members of the newly created HRC. 81 The members are elected on the basis of equitable geographical
distribution. 82 The 47 members would be individually elected by an absolute majority of 96 votes of the General
Assemblys members. 83 Those elected would be expected to respect the councils rules and their performance
would be reviewed under the universal periodic review mechanism during their term of membership. 84 An elected
member can be suspended, if it failed to uphold high human rights standards. For suspension, a two-thirds majority
vote by Assembly members present at the meeting is necessary. Moreover, the council has been meeting more
often and for more weeks in the year and schedule no fewer than three sessions per year, and would be able to call
additional meetings in order to address human rights crises, with the support of one third of the membership of the
Council. 85 The special role accorded by the commission to non-governmental organizations and experts has been
retained, preserving some of the checks and balances that help hold States properly accountable for their human
rights conduct. The HRCS work is guided by the principles of universality, impartiality, objectivity, non-selectivity
and international dialogue and cooperation. 86
After the election, General Assembly President Jan Eliasson of Sweden observed that, by creating the HRC as a
subsidiary organ of the Assembly, Member States had further strengthened the Organizations human rights
machinery and elevated the institutional standing of its human rights work. The fact that all candidates for election
have presented pledges and commitments in accordance with the Resolution was very encouraging. 87
(b) Conclusion
The HRC in its seven years of existence has addressed urgent, serious and long-running human rights situations
wherever they have occurred in an effective manner. A universal periodic review of all UN Member States makes all
countries guarantee scrutiny. In addition, those committing gross violations can be suspended from the body by the
General Assembly through a two third majority vote. The challenge for the HRC is to avoid the fate of the old CHR,
which abusive governments flocked to join to avoid condemnation. The new HRC is the best available option for
making the UN an effective human rights defender. Thats a reality that everyone should support. 88
SECTION II : REGIONAL INSTRUMENTS

I. IMPLEMENTATION MECHANISM AVAILABLE UNDER THE EUROPEAN CONVENTION FOR THE
PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
(a) Background
The European Convention for the Protection of Human Rights and Fundamental Freedoms was adopted in 1950. 89
The drafting of the Convention took place within the Council of Europe, a regional international organisation that
was formed after the Second World War. The Convention institutions are based in Strasbourg, France, where the
Council has its headquarters. The European system for protecting human rights is primarily composed of two main
treaties: the European Convention on Human Rights and Fundamental Freedoms (hereinafter referred as European
Convention) and the European Social Charter. 90 The substantive guarantee in the European Convention has been
supplemented by addition of further rights by the First, 91 Fourth, 92 Sixth 93 and Seventh 94 Protocols to the
Convention that are binding upon those States that have ratified them. There are also other Protocols that have
amended the enforcement machinery 95 and provided the European Court of Human Rights with a limited power to
give advisory opinions. 96
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There are two levels of machinery established for the protection and promotion of the rights and freedoms provided
under Article 19 to "Ensure the observance of the engagements undertaken by the High Contracting Parties in the
Present Convention":
1. A European Commission of Human Rights, hereinafter referred to as "the Commission".

2. A European Court of Human Rights, hereinafter referred as "the Court".
(b) European Commission of Human Rights
The European Commission of Human Rights provided for in the Convention for the Protection of Human Rights
and Fundamental Freedoms was established in 1954. The Commission consists of a number of members equal to
that of the High Contracting Parties. No two members of the Commission may be nationals of the same State. 97
The members of the Commission serve for a period of six years 98 in their individual capacity and may not during
this period of office hold any other office which is incompatible with their independence and impartiality. In the past,
the Commission was required to sit as a plenary body when considering individual applications submitted to it under
Article 25 . Consequent to an amendment to the Convention by Protocol No. 8 in 1985 (in order to expedite its
procedures) it may now sit in chambers of seven members. The Commission must sit in plenary session, however,
if it is required to deal with inter-State applications under Article 24 or if one of the chambers considers it
necessary in view of the nature of the case before it. Under Article 24 of the European Convention the jurisdiction
of the Commission under the Convention was accepted by States when they become parties to the European
Convention. All proceedings before the Commission take place in camera (Article 33 ) largely to facilitate the
conciliation function which is the main duty of the Commission, 99 if an application is found to be admissible. An
allegation of a breach of the Convention may only be dealt with by the Commission after all domestic remedies
available to the applicant have been exhausted, according to the generally recognised rules of international law
and, within a period of six months from the date on which the final decision was taken. 100 The Commission can also
reject an application on further grounds: (a) anonymity; 101 (b) incompatibility with the provisions of the Convention;
(c) being manifestly ill-founded; or (d) constituting an abuse of the right of individual petition. 102
When the Commission admits a petition, a sub-commission consisting of seven members 103 must examine it
together with the representatives of the parties 104 and this sub-commission may undertake an investigation for
which the parties concerned must furnish all facilities. 105Article 28(b) requires that the Commission must seek a
friendly settlement of the matter. If a solution is not reached, the Commission must draw up a report on the facts
and state its opinion as to whether the facts disclose a breach of the Convention by the State concerned. 106 The
Commission may also make proposals on the case. Finally, the report is transmitted to the Committee of Ministers
and to the States concerned, but is not published. 107
The Commission is not a "tribunal". Its main function is to investigate the facts and to promote a friendly settlement
of the dispute. The Commission does not consider itself called upon to act as an appellate court or "Cour de
cassation" for domestic courts, or in particular, to review how they have interpreted or applied domestic law. The
Commissions function is mainly confined to determining, in each case submitted to it, whether such courts have
observed the provisions of the Convention and Protocol which are binding upon them.
(c) Procedure for Approaching the European Commission
There are two types of complaint procedures under the Convention, namely: (i) an inter-State complaint system,
and (ii) the right of individual application, 108Article 24 109 of the European Convention says that any party may refer
to the Commission through the Secretary-General of the Council of Europe, any alleged breach of the European
Convention by any other party simply on the basis that each party has ratified the Convention. The term "petition" is
used in Article 25 of the European Convention and under this provision a party may make a declaration accepting
the right of an individual regardless of the Convention, to bring on application against it.
Articles 25 110 stipulates that applications to the Commission may be lodged with the Secretary-General of the
Council of Europe by "any person, non-governmental organisation or group of individuals claiming to be the victim
of a violation, by one of the parties, of the rights set forth in this Convention, provided, of course, that the State in
question has accepted the right of individual application".
Both State and individual applications go to the European Commission of Human Rights. The Commission decides
whether the application should be admitted for consideration on merits. If it is admitted, the Commission examines
the facts and the legal arguments and, if a friendly settlement is not possible, it adopts a report indicating its findings
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of fact and its opinion as to whether the defendant State has infringed the Convention. Following the adoption of the
report, which is not legally binding, the case may be referred by the Commission or a party with a recognised
interest in it to the European Court of Human Rights. 111 If it is not so referred, the case will be decided by the
Committee of Ministers of the Council of Europe, which is composed of government representatives of all of the
Member States. In either case, the outcome is a decision that is binding in international law.
But the situation has changed after the amendment of European Convention for the Protection of Human Rights in
1994 by Protocol No. 11. 112 In reality the process for restructuring had already begun since the 1980s. The need
for a reform was considered increasingly urgent as a growing number of complaints had been lodged with the
Commission. The number of applications registered with the Commission increased from 404 in 1981 to 2,037 in
1993. 113 The backlog of cases before the Commission was considered at the end of the Commissions session in
January, 1994, the number of pending cases stood at 2,672 out of which 1,487 had not yet been looked into by the
Commission. It takes on an average over five years for a case to be finally determined by the Court or Committee of
Ministers.
Also, whereas up to 1988 there were never more than 25 cases referred to the Court in one year, 31 were referred
in 1989, 61 in 1990, 93 in 1991, 50 in 1992 and 52 in 1993. Likewise, at the end of 1992, the Committee of
Ministers had before it 15 cases for examination under Article 32 of the Convention; these figures were at the end
of 1993. 114
In the light of these facts, the Committee of Ministers, on several occasions, stressed the urgency of reform, most
recently at its 92nd session on 14 May, 1993. In its Recommendation 1194 (1992), adopted on 6 October, 1992, the
Parliamentary Assembly noted:
...that the number of Council of Europe member States has risen...and will continue to rise in the next few years and that
the considerable increase in the number of applications submitted to the Commission and to the Court is thus to be
expected.
It expected that the number of individual applications will increase disproportionately to the population of the new member
States as, contrary to older member States, the Council of Europes system for the protection of human rights constitutes for
them an important element for the building-up of fundamental rights, democracy and the rule of law.
Maintaining that the real test for its system of the protection of human rights is still to come and that the reform of the
control mechanism of the Convention is therefore of the utmost importance for the Council of Europe.
It then recommended that the Committee of Ministers:
(i) Take the necessary steps to reform the control mechanism of the European Convention on Human Rights
without delay;
(ii) In doing so, give clear preference to the proposal to create a single court as a full-time body in place of the
existing Commission and the Court;
(iii) Refrain from opting for a temporary solution that would further delay the necessary reform. 115
The point was emphasised by the Council of Europes Heads of State and Government in the "Vienna Declaration"
of 9 October, 1993:
Since the Convention entered into force in 1953 the number of contracting States has almost tripled and more countries
will accede after becoming members of the Council of Europe. We are of the opinion that it has become urgently necessary
to adapt the present control mechanism to this development in order to be able to maintain in the future effective
international protection for human rights. The purpose of this reform is to enhance the efficiency of the means of protection,
to shorten procedures and to maintain the present high quality of human rights protection. 116
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The reform proposed is thus principally aimed at restructuring the system, so as to shorten the length of Strasbourg
proceedings. It has been stressed that there is a need for a supervising machinery that can work efficiently and at
acceptable costs even with forty Member States and which can maintain the authority and quality of the case law in
future.
The existing text of Sections II to IV of the Convention (Articles 19 to 56 ) and Protocol No. 2 conferring upon the
European Court of Human Rights competence to give advisory opinions shall be replaced by the new Section II of
the Convention (Articles 19 to 51 ). These new provisions will be discussed below in detail under the European
Court of Human Rights.
The idea of a European Convention on Human Rights to be implemented by a court to which individuals would
have access can be traced back to the Congress of Europe, convened by the International Committee of
Movements for European Unity and held at The Hague from 8 to 10 May, 1948. In their "Message to Europeans"
adopted at the final Plenary Session, the Congress delegates proclaimed inter alia, that:
...we desire a Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as the right to
form a political opposition;
We desire a Court of Justice with adequate sanctions for the implementation of this Charter.
The Resolution adopted by the Congress on the proposal of its Political Committee should also be noted. It said
that the Congress:
Is convinced that in the interest of human values and human liberty, the [proposed] Assembly should make proposals for
the implementation of this Charter [of Human Rights], and to this end any citizen of the associated countries shall have
redress before the Court, at any time with the least possible delay, of any violation of his rights formulated in the Charter.
The single Court has replaced two of the existing supervisory organs created by the European Convention, i.e., the
Commission and the Court, and will perform the functions carried out by these organs.
II. EUROPEAN COURT OF HUMAN RIGHTS
As noted already at present the Court is the only machinery available for effective implementation of human rights
under the European Convention. The new provision under Article 19 provides:
To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the
Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as "the Court". It shall
function on a permanent basis.
The Court consists of a number of judges equal to the number of High Contracting Parties. 117 The judges of the
Court must be of high moral character and must either possess the qualifications required for appointment to high
judicial office or be jurisconsults of recognised competence. 118 The judges function in their individual capacity. 119
During their term of office the judges shall not engage in any activity which is incompatible with their independence,
impartiality or with the demands of a full time office; all questions arising from the application of this paragraph will
be decided by the Court. 120Article 22 of the Convention provides that the judges of the Court shall be elected by
the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of
three candidates nominated by the High Contracting Party. 121
The judges are elected for a period of six years, with the term of one-half of the number of judges expiring every
three years. 122 The new provision deals with dismissal of judges. 123Article 24 provides:
...no judge may be dismissed from his office unless the other judges decide by a majority of two-thirds that he has ceased
to fulfil the required conditions.
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This provision was added in order to ensure the independence of the Court. Article 26 provides that the Plenary
Court shall elect its President and one or two Vice-Presidents for a period of three years. 124 They may be re-
elected. Cases brought before the Court are to be decided by Committees, Chambers and the Grand Chamber. 125
A Committee may declare inadmissible under Article 28 by a unanimous vote, an individual application 126
submitted under Article 34 . Article 29 deals with decisions delivered by Chambers on admissibility and merits.
Article 29 says:
1. If no decision is taken under Article 28 , a Chamber shall decide on the admissibility and merits of
individual applications submitted under Article 34 .
2. A Chamber shall decide on the admissibility and merits of inter-State applications submitted under Article
33 .
3. The decision on admissibility shall be taken separately unless the Court, in exceptional cases, decides
otherwise.
Article 31 provides for the powers of the Grand Chamber; the Grand Chamber shall:
(a) determine applications submitted either under Article 33 or Article 34 when a Chamber has relinquished
jurisdiction under Article 30 or when the case has been referred to it under Article 43 ; and
(b) Consider requests for advisory opinions submitted under Article 47 .
The jurisdiction of the Court 127 extends to all matters concerning the interpretation or the application of the
Convention and the Protocols, provided under Articles 33 , 34 and 37 . In the event of a dispute on whether the
Court has jurisdiction, the power is vested in the Court to decide the issue. Article 35 provides the admissibility
criteria.
Article 35 stipulates:
1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to
the generally recognised rules of international law, and within a period of six months from the date on
which the final decision was taken.
2. The Court shall not deal with any individual application submitted under Article 34 that:
a) is anonymous; or
b) is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information.
3. The Court shall declare inadmissible any individual application submitted under Article 34 which it
considers incompatible with the provisions of the Convention or protocols thereto, manifestly ill-founded, or
an abuse of the right of application.
4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any
stage of the proceedings.
In the interest of the proper administration of justice any High Contracting Party can invite third party intervention
under Article 36 .
1. In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is
an applicant shall have the right to submit written comments and to take part in hearings.
2. The President of the Court may, in the interest of the proper administration of justice, invite any High
Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant
to submit written comments or take part in hearings.
The examination of the case and friendly settlement proceedings are mentioned under Article 38 . Finding of a
friendly settlement; 128 public hearing and access to documents; 129 just satisfaction; 130 judgements of Chambers;
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131referral to the Grand Chamber; 132 final judgements; 133 reasons for judgements and decisions; binding force and
execution of judgements under Article 46 stipulates:
1. The High Contracting Parties undertake to abide by the final judgement of the Court in any case to which
they are parties.
2. The final judgement of the Court shall be transmitted to the Committee of Ministers, which shall supervise
its execution.
The various aspects of the Court are: advisory opinions, 134 advisory jurisdiction of the Court; 135 reasons for
advisory opinions; 136 expenditure on the Court 137 and lastly, privileges and immunities of judges. 138
After the merger of the Commission and the Court into a single body as the European Court, the Court was
inundated with cases and this helped the Court to developa strong jurisprudence in the field of human rights. The
Court has provided a new dimension to the implementation mechanism under the European Convention. 139
SECTION III : IMPLEMENTATION OF HUMAN RIGHTS UNDER THE

AMERICAN CONVENTION ON HUMAN RIGHTS
The States of the Western Hemisphere have developed a regional system to promote and protect human rights in
the Americas. The system centres around a regional treaty, the American Convention on Human Rights, drafted by
the Member States of the Organisation of American States (OAS). Twenty four American States have ratified the
American Convention and thereby are obliged to respect human rights in their domestic jurisdictions. 140
The American Commission on Human Rights too, establishes two types of organs to supervise the implementation
and enforcement of the rights contained within it. It is provided under Article 33 :
The following organs shall have competence with respect to matters relating to the fulfilment of the commitments
made by the States Parties to this Convention:
(a) the Inter-American Commission on Human Rights, referred to as "the Commission"; and
(b) the Inter-American Court of Human Rights, referred to as "the Court".
I. INTER-AMERICAN COMMISSION ON HUMAN RIGHTS 141
Under Article 34 of the Inter-American Conventions, the Inter-American Commission on Human Rights is to be
composed of seven members, "who shall be persons of high moral character and recognised competence in the
field of human rights".
Article 35 of the American Convention clearly says that, "The Commission shall represent all the member
countries of the organisation of American States". The tenure of the Commission members is for a period of four
years, the members will serve in an independent capacity. 142
(a) Functions
Article 41 of the Convention sets forth the main functions and prerogatives of the Commission.
Article 41 states:
The main functions of the Commission shall be to promote respect for and defence of human rights. In the exercise of its
mandate, it shall have the following functions and powers:
(a) To develop an awareness of human rights among the people of America;

(b) To make recommendations to the governments of the member States, when it considers such action
advisable, for the adoption of progressive measures in favour of human rights within the framework of their
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domestic law and constitutional provisions as well as appropriate measures to further the observance of
those rights;
(c) To prepare such studies or reports as it considers advisable in the performance of its duties;
(d) To request the governments of the member States to supply with information measures adopted by them in
matters of human rights;
(e) To respond, through the General Secretariat of the Organisation of American States, to inquiries made by
the member States on matters related to human rights and, within the limits of its possibilities, to provide
those states with the advisory services they request;
(f) To take action on petitions and communications pursuant to its authority, under the provisions of Articles
44 and 51 of this Convention; and
(g) To submit an annual report to the General Assembly of the Organisation of American States.
States parties are bound to provide information whenever the Commission seeks it regarding how their domestic law
ensures the effective implementation of any of the provisions of the Inter-American Commission. 143
(b) Jurisdiction
Article 29(1) empowers the Commission in urgent cases to take any action necessary for the discharge of its
functions. If the Commission is not in session the Chairman or when necessary, one of the Vice-Chairmen, may
decide to request the measures on behalf of the Commission. 144 The Commission is empowered to request the
Inter American Court to take provisional measures whether the matter is before the Court or even when the case
has not yet been submitted to the Court. 145 If the Court holds a public hearing on the question, it is the
responsibility of the Commission to present the position of the petitioners. 146Article 44 of the American Convention
establishes a right of private petition. Individuals, groups and non-governmental entities may file complaint with the
Commission alleging violations of the American Convention by States parties. Furthermore, the American
Convention requires States parties to cooperate with the Commission in its investigation of allegations raised in
petitions. States parties "undertake to provide Commission with such information as it may request of them", 147 and
to "furnish to it all necessary facilities". 148 The Convention also provides that States parties may complain to the
Commission of violations by other States parties. 149 However, this right of State petition is more restricted than the
right of individual petition. Although the Commission may admit private petitions against any State party, but in case
of State petitions, it may admit petitions from States only if both the complaining government and the alleged
violator have formally recognised its competence to do so. 150
(c) Necessity of Prior Exhaustion of Domestic Legal Remedies
In regard to the jurisdiction of the Commission, Article 46 of the Convention has established several requirements
to be fulfilled before a communication or petition is admitted. 151 Among these there are two requirements relating to
the local remedies rule, namely, (a) that domestic legal remedies be exhausted, and (b) that the subject of the
petition or communication is not pending in another international proceeding for settlement.
Article 46(1)(a) requires that the remedies offered under domestic law have been pursued and exhausted in
conformity with generally recognised principles of international law. Article 46(2) states, however, that the
requirement is not applicable, when:
(a) the domestic legislation of the State concerned does not afford due process of law for the protection of the
right or rights that have allegedly been violated;
(b) the party alleging violation of his rights has been denied access to the remedies under domestic law or has
been prevented from exhausting them; or
(c) there has been unwarranted delay in rendering a final judgement under the aforementioned remedies.
In other words, the local remedies requirement is not applicable if in the opinion of the Commission any of the
above exceptions applies. The Commission then proceeds to examine other conditions for admissibility under
Article 47 . The Commission shall not admit any petition or communication submitted under Article 44 or 45 if:
(a) any of the requirements indicated in Article 46 has not been met;
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(b) the petition or communication does not state facts that tend to establish a violation of the rights guaranteed
by this Convention;
(c) the statements of the petitioner or of the State indicate that the petition or communication is manifestly or
obviously out of order; or
(d) the petition or communication is substantially the same as one previously studied by the Commission or by
another international organisation.
Once a petition or communication has been declared prima facie admissible, the first task of the Commission is to
verify the facts. It may undertake an investigation, for which the States concerned will furnish all necessary facilities.
152 An urgent procedure for emergency cases is set out in Article 48(2) . 153 The Commission can also attempt at a
friendly settlement. 154 If it fails to achieve friendly settlement, the Commission is required to draw up a report
setting out such proposals and recommendations as it may think fit. 155
If within three months the matter has not been either settled or submitted by the Commission or by the State
concerned to the Court and its jurisdiction accepted, the Commission may, by an absolute majority of its members,
set forth its opinion and conclusions concerning the questions submitted for its consideration. 156
It may be seen that the Commission has a wide discretion to decide whether or not to deal with an issue by itself or
to transmit it to the Court if, of course, the State concerned has accepted the Courts jurisdiction. No doubt the
proceedings before the Commission appears to be cumbersome and lengthy.
The Commission regulations however, provide a means for limited individual participation in juridical process.
There are two possible situations pertaining to the requirements for admission of an individuals complaint by the
Commission. First, Article 46(1)(a) requires prior exhaustion of domestic remedies prior to admission of a
complaint. However, it would impose an unduly heavy burden on the individual petitioner. A petition may be
admitted conditionally if it provides information indicating that domestic remedies are wrongly denied. 157
The second admissibility requirement is set forth in Article 46(1)(c) of the American Convention. In order for a
petition to be admitted, its subject matter should not be pending in another international organization. The purpose
of this provision is to avoid duplication of procedures, for this is a common precept of judicial economy and is
reasonable when the parties involved have the same legal authority in relation to each other. However, it is unduly
harsh, when applied to individual petitioners in international proceedings, because it prevents him from applying to
multiple sources for relief.
II. INTER-AMERICAN COURT OF HUMAN RIGHTS 158
The Inter-American Court of Human Rights (hereinafter referred as the Court) was established in 1979 following
the entry into force of the American Convention on Human Rights. The Court is headquartered in San Jose, Costa
Rica.
(a) Composition of the Court
The American Convention provides that the Court shall be composed of seven judges, nationals of the Member
States of the Organisation:
elected in an individual capacity from among the jurists of the highest moral authority and of recognised competence in the
field of human rights, who possess the qualifications required for the exercise of the highest judicial functions under the law
of the State of which they are nationals or of the State that proposes them as candidates. 159
Among the seven judges, no two judges should be the nationals of the same State. 160 The judges are elected
through secret ballot by an absolute majority of States parties to the American Convention at the OAS General
Assembly from a panel of candidates proposed by those States. 161 Only States parties to the American Convention
are entitled to participate in the nomination of candidates and the election of judges to the Court. 162 Each of the
States parties may propose up to three candidates who are nationals either of the State that proposes them or of
any other OAS Member State. When a slate of three candidates is proposed, at least one must be a national of a
State other than the State proposing the slate. 163 The judges of the Inter-American Court are elected for a period of
six years and may be re-elected only once. 164
(b) Ad hoc Judges

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The American Convention provides for the appointment of ad hoc judges. The system for the appointment of ad
hoc judges by the States parties has been covered under Article 55 of the Convention. This article provides that if
a judge is a national of a State party to the case, he need not withdraw from the case, and any other State party in
the case may appoint an ad hoc judge to serve on the Court, if it does not have a judge of its nationality on the
Court. If several States parties to the case have the same interest in the case, they are entitled to appoint only one
ad hoc judge. The quorum necessary for the conduct of business is five judges. Three judges, i.e., a majority of the
five-judge quorum, could take decisions and render opinions of significant magnitude without the support of the
other four judges, who in a similar case might decide differently. Definitely such a situation could create
jurisprudential instability and weaken the prestige of the Inter-American system. Therefore, the statute ought to
state that the decisions of the Court must be made by an absolute majority.
The Court also proposes its own budget, for approval by the General Assembly of the OAS through the General
Secretariat, which is not authorised to introduce any changes thereto. 165 This provision is of greater importance in
ensuring the independence and effectiveness of the Court, for upon these precepts rest the proper performance of
the means of protecting the human rights defined in the Convention.
Under the Courts Rules of Procedure, the Court meets in two regular sessions each year, and the President may
invoke any special session if necessary. If the workload of the Court increases in the coming years, the Court may
have to modify its procedure to permit additional sessions.
The hearings of the Court are public unless, in exceptional circumstances, it decides otherwise. The Courts
deliberations, however, are private. The decisions, judgements and the parties are given written notification thereof.
The individual votes and opinions of the judges and any other data that the Court deems pertinent are also
published.
(c) Functions
(i Contentious and Advisory Jurisdiction
The American Convention empowers the Court with two types of jurisdiction whose scope, legal nature, and effects
are different. Contentious jurisdiction permits the Court to decide specific claims related to the interpretation and
application of the provisions of the Convention. The Courts judgement is binding on the State party to the case; it is
also binding on the Commission and the other bodies of the Convention.
The Court has consultative or advisory jurisdiction to render opinions regarding controversies on the interpretation
of the Convention and other treaties concerning the protection of human rights in the American States or regarding
the compatibility of any domestic laws with these treaties. 166
Under the Convention, the jurisdiction of the Court is generally optional. In matters of jurisdiction, the Inter-
American system has followed the model established by the International Court of Justice and the European Court
within the Council of Europe.
(ii Contentious Jurisdiction
The American Convention provides that the Court shall have jurisdiction over contentious cases as well as
competence to render advisory opinions. The Court under the adjudicatory or contentious jurisdiction has
competence to consider disputes involving complaints of violations of human rights guaranteed by the Convention.
167
The Courts contentious jurisdiction "shall comprise all cases concerning the interpretation and application of the
provisions of this Convention provided, of course, that the States parties to the case have recognised the Courts
jurisdiction", pursuant to Article 62 of the Convention. Although the American Convention gives the individual
direct access to the Commission upon ratification of the Convention, it does not automatically render the
acceptance of the compulsory jurisdiction of the Court. It is necessary for a State party to this Convention to make a
separate declaration, accepting the Courts jurisdiction. Also, in a case between two States Parties concerning a
violation of protected rights or any other breach of the Convention, it is essential that the two States have accepted
the Courts jurisdiction beforehand. Thus, in each case, States parties must have concluded a special agreement or,
when receiving notification from the other party, each State must formally declare that it accepts the jurisdiction of
the Court. Otherwise, the Court must declare its lack of competence.
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A State does not automatically submit itself to the Courts contentious jurisdiction when it ratifies the Convention.
The Court may exercise this jurisdiction over a case only when States parties to the case have separately indicated
that they recognise the jurisdiction by means of a "special declaration" made either at the time when they become
parties to the Convention or at any time thereafter. 168
The Court is also restricted in exercising its jurisdiction over cases which have not been first submitted to the
Commission, or which have been submitted to the Commission but the Commission has not completed its
complaint examination procedure. 169
The Court is also empowered to provide provisional measures in serious and urgent cases. While the proceedings
before the Court are pending, or even before a case has been submitted to the Court, the Commission may request
the Court to issue "provisional measures" to prevent "irreparable damage" to any person in danger.
Finally the Courts contentious jurisdiction results in a legally binding, final judgement.
The important cases dealt by the Court on non-derogable rights will be noted under Chapter V.
(iii Advisory Jurisdiction
The Court has jurisdiction to give advisory opinions as spelled out in Article 64 of the Convention which states:
1. The member States of the Organisation may consult the Court regarding the interpretation of this
Convention or of other treaties concerning the protection of human rights in the American States. Within
their spheres of competence, the organs listed in the Chapter X of the Charter of the Organisation of
American States, as amended by the Protocol of Buenos Aires, may in like manner consult the Court.
2. The Court, at the request of a member State of the Organisation, may provide that State with opinions
regarding the compatibility of any of its domestic laws with the aforesaid international instruments.
Pursuant to Article 64 of the Convention, any Member State of the Organisation of American States, not only
States parties to the Convention, "may consult the Court regarding the interpretation of this Convention or of other
treaties concerning the protection of human rights in the American States". In addition, the other organs of the OAS,
such as, for example, the General Assembly or the Permanent Council, may also consult the Court on matters
within their spheres of competence.
The Court has, in an advisory opinion, adopted a broad construction of its jurisdiction, and held that it has the
power to issue advisory opinions on any human rights treaty applicable to an American State even if the treaty also
includes non-OAS Member States, and has been adopted outside the Inter-American system. The Courts advisory
opinion is not legally binding.
The Government of Peru, requested an advisory opinion of the Court as regards the language of Article 64 , "In
the opinion of the Court, did the phrase other treaties include treaties outside the inter-American system or to which
non-OAS Member States were parties?"
The specific issue before the Court was to determine which treaties were subject to its jurisdiction. 170
The Court affirmed that, " Article 64 of the Convention confers on this Court an advisory jurisdiction that is more
extensive than that enjoyed by any international tribunal in existence today".
Having broadly mapped out the scope of its jurisdiction the Court then proceeded to set forth its limits. Since the
Court is a "judicial institution of the Inter-American System" it plays a special role in that system. The Court noted
that:
...ratione materiae, the Convention confers jurisdiction on the Court to render advisory opinions on treaties other than the
American Convention that deal with the protection of human rights in the Latin American countries, and that, ratione
personae, it confers the right to seek an opinion on all organs mentioned in Chapter X of the Charter, and upon "all OAS
member States", whether or not they are parties to the Convention. 171
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SECTION IV : IMPLEMENTATION PROVISIONS UNDER THE AFRICAN

CHARTER ON HUMAN AND PEOPLES RIGHTS
As noted already, the African Charter on Human and Peoples Rights 172 (hereinafter referred to as the African
Charter) does not contain non-derogable rights. Does this imply that all rights are automatically suspended when a
State declares a state of emergency? Not necessarily. A right may be derogated from only when the derogation is
necessary in order to deal with the emergency and to the extent that the derogation is proportionate to the
requirements of the emergency.
The African Charter is a different kind of human rights instrument specifically designed to respond to "African
concerns, African traditions and African conditions". 173 It has not only incorporated internationally recognised
individual rights, but also proclaimed collective rights and individual duties. The crucial task of enforcing the rights
enshrined in the Charter is entrusted to the African Commission on Human and Peoples Rights 174 (hereinafter
referred to as the African Commission).
I. DEROGATION CLAUSES UNDER THE AFRICAN CHARTER
The African Charter contains no specific provision entitling a State to derogate from its obligations. However, there
are certain provisions that entitle a State to restrict the granted rights to the extent permitted by domestic law. In the
case of the African Charter, Gittleman believes that:
where derogation occurs, the Commission should not have difficulty in reviewing State discretion where the State
concerned is party to the International Covenant on Civil and Political Rights and is thereby bound by the restrictions
therein. 175
It is impossible to identify any article in the African Charter as embodying a fundamental right except the right to
life.
Article 4 deals with right to life. It says:
Human beings are inviolable. Every human being shall be entitled to respect for his life and integrity of his person. No one
may be arbitrarily deprived of this right.
"Inviolable" means that which must not be profaned; that which no one is allowed to dishonour or injure. Under the
traditional African concept, the inviolability of human beings is not only a meaningful assertion, it is also an idea to
which great importance is attached. Even during the colonial period, this notion was respected. However, in
contemporary Africa, the value of mans life has become gravely distorted. In the period 1992-1993 alone, the UN
Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions documented evidence of such executions in
twenty seven African States. 176
A subject of particular significance concerning right to life is extra-judicial and summary executions. 177 The African
Commission has been called upon to consider a number of complaints alleging widespread extrajudicial executions
in African States. For example, in October, 1990, the African Commission had received complaints alleging severe
and massive violations of the right to life in Rwanda. Upon receipt of the complaint, the Commission contacted the
State of Rwanda requesting permission to conduct on the spot investigations. Rwandan government responded
immediately in December, 1990 stating that Rwanda would receive an objective observer. The African Commission
did not seize the opportunity to send a mission possibly due to financial and administrative reasons. 178 Finally, at its
17th session, the Commission decided to send a two person mission to Rwanda with the assistance of the UN. 179
The Commission also received complaints alleging extra-judicial execution in Mauritania, Sudan, Togo and Zaire.
The Commission decided to send delegations to conduct on the spot investigations in these countries. A two men
delegation visited Togo from 10 to 18 January, 1995. 180 The delegation reported that during the visit, it resolved
two complaints previously submitted against Togo. 181 After a number of attempts, the Commission failed to receive
permission to visit the States of Malawi and Zaire. 182
The African Commissions address of issues involving widespread massacres and extra-judicial executions has
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been far from satisfactory. The violation of the right to life causes irreparable harm and the Commission must seize
every opportunity to mobilise all available resources in this respect.
II. IMPLEMENTATION BY THE AFRICAN COMMISSION
The African Commission is the only body entrusted to ensure State compliance of the rights and freedoms
guaranteed by the African Charter. 183 Implementation 184 of the African Charter is entrusted to a Commission of
eleven members. Article 31 of the African Charter provides that the composition of the Commission is eleven
Africans known for their "high morality, impartiality and competence in matters of human rights; particular
consideration being given to persons having legal training". Four months prior to elections, 185 the Secretary-
General of the OAU invites each State party to the Charter to nominate up to two candidates. 186 Under Article 36 ,
members of the Commission are appointed for six years and are eligible for re-election. Under Article 39 , if a seat
becomes vacant in case of death or if in the unanimous opinion of the Commission a member of the Commission
has stopped discharging his or her duties, the Chairperson of the Commission shall inform the Secretary- General
who may declare the seat vacant. The Assembly of Heads of States of OAU shall replace the member whose seat
became vacant for the remaining period of his or her term unless the period is less than six months. 187
The Commission, once elected by the Heads of State and Government, elects its own officers 188 and establishes
its own rules of procedure. 189 The Commission meets "whenever necessary" but will be convened by its Chairman
at least once a year. 190
(a) Independence and Impartiality
The success of the Commission solely depends on its independence and impartiality. The term "independence and
impartiality" simply means that a member of an enforcement or supervisory body should be free from improper
influences and biases. As a mark of the independent nature of the Commission, its headquarters are located in the
Gambia, and not in Ethiopia, the seat of the OAU.
(b) The Mandate
The mandate of the African Commission can be found in Articles 45 to 55 of the Charter. The functions of the
Commission may be summarised as promotional, protective, and the interpretation of the Charter and any other
tasks entrusted to it by the Assembly of Heads of State and Government. The protective and interpretative mandate
entrusted to the Commission appears to vest quasi-judicial and judicial legislative functions in the Commission.
(c) Protective Act ivities
Another significant function of the African Commission is its protective activities. To fulfil the important task of
protecting human rights, the Commission is empowered to consider inter-State communications.
(d) Inter-State Communications
The procedure for State complaints is covered by Articles 47 to 54 of the African Charter. Under the procedure, if
a State has reasonable grounds to believe that another State party has breached its obligations under the Charter,
it may write to the respondent State regarding the matter. Copies of the correspondence should be submitted to the
Secretary-General of the OAU and the Chairperson of the African Commission. 191 This first attempt to settle the
dispute between the Member States is a promotion of an effort to resolve disputes through dialogue and negotiation
rather than through confrontation.
If within three months the matter is not resolved satisfactorily by the States involved, either State may submit the
matter to the African Commission. 192 The above procedures can be waived if a State party which has reason to
believe that another State party has breached any of the principles set forth in the African Charter may bring the
matter directly to the attention of the Commission. 193 The Commission can entertain any case only if it is satisfied
that local remedies have been exhausted, except where the Commission feels that the procedure of achieving
these remedies would be unduly prolonged. 194
Once the Commission entertains any case, it has power to investigate the matter by using any appropriate means.
When the Commission is considering the matter, States concerned may be represented before it and may make
written or oral submissions. 195
After gathering sufficient information on a State-communicated matter, if the Commission feels that it is difficult to
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reach an amicable solution, it shall make a report stating the facts and its findings. 196 The Commissions ultimate
power in respect of inter-State complaints is to prepare a report to the "Assembly of Heads of State and
Government" (AHSG) within a reasonable period from the date of session. The report may be accompanied by
recommendations of the Commission. 197
The Commissions powers under the inter-State communications procedure are less than those of a judicial body
as the Commission cannot enforce its decisions against States. But the Commission is gradually gaining influence
and credibility over States parties, as was evidenced by a request from Mali to the Commission to observe its
elections. 198 Another example is the concern of a State over a resolution which the Commission adopted on
Algeria. Algeria sent a representative to the 17th session of the Commission 199 to object to the Resolution on the
basis that a number of statements therein were incorrect. Finally, the African Commission withdrew the Resolution.
The important aspect of this case was that Algeria took the trouble to send a representative to the Commission to
object to the Resolution. This is a clear indication of the countrys actual recognition and acceptance of the
importance of the African Commission. 200
Interestingly, the Commission has not received any communications submitted by one State against another.
Therefore, one is left with the individual and NGO complaint procedures as the major mechanism for human rights
protection.
(e) Individual and NGO Complaints
The African Commission is also mandated to consider communications other than inter-State. These are the
individual and NGO complaint procedures governed by Articles 55 to 59 of the Charter, under which individuals
and NGOS are entitled to submit a written complaint to the Commission of actions by States parties which are in
violation of the principles set forth in the African Charter. The complaint should be sent to the Secretary of the
Commission at the Commissions headquarter in Banjul, the Gambia. The Secretary transmits the complaint to the
Commission which decides whether or not it should be declared admissible. 201 Once a complaint is declared
admissible, the Commission is required under the Charter to bring the complaint to the knowledge of the State
concerned prior to any substantive consideration. 202
In examining complaints, the Commission should be inspired not only by the principles set forth in the Charter 203
but also by recognised international human rights principles. As in the area of inter-State complaints, here too the
Commission does not have authority to bind States with its decisions. 204 The Commissions findings and
recommendations must be sent to the Assembly of Heads of State and Government (AHSG). 205 In other words, the
decisions of the Commission are subject to the approval of the OAU, a political body. Certainly, this undermines the
effectiveness of the Commission.
In spite of these limitations, the Commission can use its powers of examining complaints to develop an African
human rights jurisprudence which can enhance the protection of human rights.
(f) Civil and Political Rights
(i) Prohibition of Torture
Article 5 of the African Charter provides:
Every individual shall have the right to respect of the dignity inherent in a human being and to the recognition of his legal
status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or
degrading punishment and treatment shall be prohibited.
Freedom from torture is one of the core human rights recognised as non-derogable rights in all other human rights
instruments. However, the provision is violated with impunity in Africa. 206 In many African States, the provision is
violated to force political opponents into submission. The provision is also violated to obtain incriminating evidence.
The African Commission has received numerous complaints alleging violations of the right. The Commission has
declared many complaints alleging torture of persons in detention to be inadmissible for non-exhaustion of local
remedies. 207
(ii) Prohibition of Slavery and Slave Trade

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Slavery has been described as the oldest violation of human rights in the world. "The shame of ancient slavery
continues to blind Africans to the horrors of modern slavery". 208 The freedom from slavery is violated in many
African countries. The practice can be found in parts of Ghana and Togo. It involves the pledging of young girls
sometimes as young as four years, into slavery as payment for alleged crimes committed by male members of their
families. The girls are given to traditional priests whom they serve in slave like conditions. They work on the priests
farms and bear their children. Another type of slavery involves young girls forced into marriage in exchange for
dowry payment to the girls family.
Almadu is another practice which gives rise to concerns about slavery. It is a practice whereby children live with a
religious leader, the marabou, who teaches them the Koran. The children in turn seek alms be it money or food,
which they give to the marabou. The marabou determines all aspects of the childrens activities and the children
follow him whenever he moves from place to place. 209 The use of domestic servants, including child labour, has
given rise to issues relating to contemporary forms of slavery.
In spite of the magnitude of the slavery problem, no complaints have been received by the Commission alleging
violation of the right against slavery. 210 The African Commission considered and adopted a Resolution on
contemporary forms of slavery in Africa at its 16th and 17th sessions in 1994 and 1995 respectively. The Resolution
calls on all OAU member States to ratify and effectively implement international legal instruments relating to
slavery, slave trade, sale and traffic of human beings and other practices similar to slavery. 211
Necessary safeguards to combat slavery in Africa may include laws regulating wages and working hours and
working age for all workers including domestic servants; laws on age of marriage; laws requiring females to consent
to marriage; and laws criminalizing violations of the right against slavery. Some of these laws already exist in the
legislation of African States. 212
(iii The Right to Fair Trial
The right to fair trial is guaranteed by Article 7 of the African Charter. Article 7 reads:
1. Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts violating his fundamental rights as
recognised and guaranteed by conventions, laws, regulations and customs in force;
(b) the right to be presumed innocent until proved guilty by a competent court or tribunal;
(c) the right to defence, including the right to be defended by counsel of his choice; and
(d) the right to be tried within a reasonable time by an impartial court or tribunal.
2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at
the time it was committed. No penalty may be inflicted for an offence for which no provision was made at
the time it was committed. Punishment is personal and can be imposed only on the offender.
Article 7 , paragraph 2, prohibits States from adopting ex-post facto criminal laws. The prohibition of ex-post facto
laws and freedom from retroactive punishment is a recognised legal principle which is also available in Article 15
of the CP Covenant, Article 7 of the European Convention and Article 9 of the American Convention. The
prohibition on adopting ex-post facto laws has been identified as non-derogable rights in all above mentioned three
human rights instruments except the African Convention.
The stipulation in sub-paragraph 2 which provides that punishment is personal and should only be imposed on the
offender is a unique provision of special significance for Africa. There are many cases in Africa where not only is an
alleged offender made to pay for the alleged offence, but the members of his family and community are punished
directly or indirectly for giving him or her moral support. 213 It is not surprising therefore that a number of complaints
submitted to the African Commission has alleged infliction of punishment on family members of alleged offenders.
For example, in Alhassan Abubakar v. Ghana, 214 the complainant alleged that he had been detained without trial
for seven years until he escaped from a prison hospital. After his escape, his sister and his wife who had visited him
in his country of refuge were arrested and detained for two weeks in an attempt to get information on the
whereabouts of the complainant. In another case Monja Jaona v. Madagascar, 215 it was alleged that the
complainant, an eighty year old prominent political figure, was arrested and detained and later charged for trespass
in government buildings and acquisition of arms without authorisation. His sons were also arrested for reasons
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unknown. 216 In yet another case, Muthuthirin Njoka v. Kenya, 217 the complainant alleged to have been wrongfully
detained in a mental institution where he was tortured and subjected to all kinds of degrading treatment.
Subsequent to his arrest, members of his family were arrested and persecuted by the Kenyan officials. His sons
were charged, convicted, and imprisoned for crimes they did not commit. In another case, 218 a child was expelled
from a secondary school and his aged parents were removed from the family home, thus causing them to be
separated from each other. In all of these cases, the relief sought from the Commission was not for the family
members but for the complainants.
The African Charter, unlike other international human rights treaties, does not guarantee the freedom from double
jeopardy. The omission of this principle from the Charter is shocking. It is not uncommon in Africa for persons to be
tried for an offence for which they have previously been tried and acquitted.
However, the practice of the African Commission is encouraging. The African Commission, when it reviews
individual complaints alleging violation of the Civil and Political rights in the Charter, does not concern itself with
whether or not there is a State law which limits or prohibits the exercise of the rights in question. In fact, in specific
situations where State legislation restricting freedom of expression and participation in government has been
challenged, the African Commission has explicitly ruled that such legislation is in violation of the African Charter. 219
SECTION V : IMPLEMENTATION OF NON-DEROGABLE RIGHTS UNDER

GENEVA CONVENTIONS OF 1949 AND THE ADDITIONAL PROTOCOLS OF
1977
Human rights are largely embodied in human rights instruments adopted by the United Nations and its specialised
agencies, while humanitarian rights are articulated largely in the Geneva Conventions of 12 August, 1949 and in
other instruments applicable to armed conflicts. Both human rights and humanitarian norms comprise conventional
as well as customary law.
Human rights law and humanitarian law have different historical strands of development, and originally different
jurisprudential underpinnings. One of the fundamental guiding principles of human rights is the principle of
humanity. Although humanitarian considerations are also a powerful motivating force behind the law of armed
conflict, these considerations blend with others, such as economic advantage, to create a counter force to military
necessity. The tension between military necessity and restraint on the conduct of belligerents is the hallmark of
humanitarian law.
Humanitarian instruments, having been enacted to govern situations of armed strife, are not subject to derogations,
except in the rather narrow context of Article 5 of the Fourth Geneva Convention which parallels the limitation
clauses of human rights instruments.
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely
suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim
such rights and privileges under the present Convention as would, if exercised in favour of such individual person, be
prejudicial to the security of such state.
Where on occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite
suspicion of activity hostile to the security of the occupying power, such person shall, in those cases where absolute military
security so requires, be reserved as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the
rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges
of a protected person under the present Convention at the earliest date consistent with the security of the State or
occupying Power, as the case may be.
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Imperative military reasons, military necessity, or reasons of security may provide States with certain options, as
expressed, for example, in Articles 49(2) , 64(1) or 78(1) of the Fourth Geneva Convention. However, human
rights instruments, in contrast are generally subject to broader derogations in various exceptional situations
including armed conflict.
The law of armed conflicts is largely inspired by humanitarian considerations. The Four Geneva Conventions of
1949 establish the international norms and machinery for the purpose of ensuring their implementation. 220 The
common Article 1 of the Four Geneva Conventions of 1949 stipulates, "The High Contracting Parties undertake to
respect and to ensure respect for the present Convention in all circumstances".
The wording of the Convention is very ambitious, it provides that the contracting parties do not undertake merely to
respect the Convention, but also to ensure respect for it. The use in all four Conventions of the word "and to ensure
respect for" was, however, deliberate: they were intended to emphasise the responsibility of the Contracting
Parties.
I. NON-DEROGABLE HUMAN RIGHTS AND HUMANITARIAN LAW
The parallelism and divergence of non-derogable norms under the CP Covenant during international and non-
international armed conflict and norms under the Geneva Conventions and Additional Protocols demand
examination.
The Geneva Conventions and Protocol I contain a large number of human rights applicable in international armed
conflicts. Not all of the non-derogable rights under the CP Covenant have corresponding rights under the Geneva
Conventions. For example, the right to life is non-derogable under the CP Covenant. Neither instrument establishes
an absolute guarantee of the right to life but various provisions of both the humanitarian instruments and the CP
Covenant attempt to regulate the conditions under which capital punishment may be imposed. The provisions of the
two Additional Protocols which forbid the carrying out of death penalty on pregnant women and mothers of young
children are more enlightened than Article 6(5) of the CP Covenant, which does not prohibit the carrying out of the
death penalty on mothers of young children.
The non-derogable principle of non-discrimination, the prohibition of torture, and the prohibition of retroactive penal
measures stated in the CP Covenant appear prominently also in humanitarian instruments. The prohibition of
slavery and servitude in Article 8 of the CP Covenant, which is also non-derogable, has a counterpart in Article
4(2)(f) of Additional Protocol II which concerns the protection of victims of non-international armed conflicts.
The non-derogable prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation,
contained in Article 11 of the CP Covenant, has no counterpart in the Geneva Conventions. Article 16 of the CP
Covenant, which provides that everyone shall have the right to recognition everywhere as a person before the law,
is paralleled in some respects by Article 14(3) of the Third Geneva Convention and Article 80 of the Fourth
Geneva Convention. The provisions of Article 18 of the CP Covenant, providing for freedom of thought,
conscience and religion, are paralleled in some respects to Article 93 of the Four Geneva Conventions, and
Article 16 of Additional Protocols II.
Several of the human rights protected by Article 3 of Four Geneva Conventions 1949, are also among the non-
derogable rights protected by the CP Covenant. Among these are non-discrimination (Article 4(1) of the CP
Covenant); the right to life (protected by the CP Covenant); andin different termsby the common Article 3(1)(a) and
3(1)(d) ; and prohibition of torture etc., stated in Article 7 of the CP Covenant.
The human rights stated in the common Article 3 have been reinforced in significant respects by the provisions of
Protocol II. Article 4 of Protocol II enumerates certain "fundamental guarantees" for persons who do not take or
who have ceased to take part in hostilities.
II. THE PROTECTING POWER IN THE FRAMEWORK OF GENEVA CONVENTIONS
The institution of the Protecting Power is not an offshoot of the humanitarian Conventions. With respect to the
"Protecting Powers" whose duty is to safeguard the interests of the "Parties to the Conflict", the Conventions of
1949, following the precedent created by Article 86 221 of the Geneva Convention of 1929 (Code of Prisoners of
War), take as their foundation an institution long enshrined in the law of nations.
The experience of armed conflicts in the post-1950 period has shown that the Protecting Power system is not
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working well, although it had some successes. It is observed that on one pretext or another, Protecting Powers
have not been appointed. That is why the Diplomatic Conference of 1974-77, which framed the two Additional
Protocols of 1977, tried to remove this major lacuna in the implementation system in these instruments of
international humanitarian law of armed conflict. A serious effort was made to make the Protecting Power system
both mandatory and faultless. The outcome can be easily found in Article 5 222 of Protocol I which provides clear
rules about battle conduct and combatancy. These rules were designed to secure the maximum protection for the
civilians. Still, the actual procedure is again left to the Parties or, in the absence of agreement, to an umpire chosen
by them. 223
An innovative element of the Geneva Conventions and Protocol I is the obligation for the High Contracting Parties
not only to respect but also to ensure respect for the relevant instruments. 224 This covers two types of obligations:
(a) Party must adopt the necessary measures to ensure the implementation of the instrument by itself, particularly
integrating it into its municipal law; (b) it must also, irrespective of whether it is a party to the conflict, endeavour to
bring another Contracting Party which has violated the treaty back to an attitude of respect for that treaty. 225
Protocol I expressly mentions the United Nations in relation to the implementation of international humanitarian law.
Article 89 , entitled "Co-operation", provides:
In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act,
jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Charter.
This probably gives a positive role for the United Nations to act in situations of armed conflict.
III. THE INTERNATIONAL FACT-FINDING MISSION
Additional Protocol I of 1977 introduced an important mechanism for implementing international humanitarian law.
Article 90 226 of the Protocol provides for the establishment of an International Fact-Finding Commission when not
less than twenty High Contracting Parties have agreed to accept its competence.
The Commission is a permanent body whose mandate is to enquire into all allegations of grave breaches or other
violations of the 1949 Geneva Conventions and of Protocol I, provided that both the party alleging the violation and
the party against whom the allegation was made have accepted the Commissions competence.
Any party which has made the declaration accepting its competence may apply to the Commission by right and
without special agreement concerning breaches alleged to have been committed by any other party having made
the same declaration. Any party which has not made the declaration may apply to the Commission on an ad hoc
basis with the agreement of the other party or parties concerned. The Commission will present a report on the result
of enquiry and, if need be, its recommendations to the parties concerned. It will not report its findings publicly unless
requested to do so by all the parties to the conflict.
In its capacity as a permanent and completely independent body, the Commission represents a new important
mechanism for promoting respect for international humanitarian law. Fact-finding in a situation of armed conflict is a
means of averting unnecessary dispute and violence. The Commission also affords the belligerents the opportunity
to show their willingness to comply with international humanitarian law.
The machinery can prove its effectiveness, only if it can function and draw lessons from its experience. For this
reason, it is most important, for the States which have not yet accepted the competence of the Commission to do
so.
IV. PENAL SANCTIONS
Geneva Conventions make it mandatory for States parties to enact legislation for "effective penal sanctions". 227
Under the Geneva Conventions persons accused of grave breaches "shall benefit by safeguards of proper trial and
defence, which shall not be less favourable than those provided by Article 105 and those following the Geneva
Convention relative to the Treatment of Prisoners of War of 12 August, 1949".
According to the First, Second, Third and Fourth Geneva Conventions (Articles 50 , 51 , 130 and 147
respectively) the following acts constitute grave breaches of International Humanitarian Law:
(a) Breaches specified in all four Geneva Conventions:

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- Wilful Killing
- Torture
- Inhuman treatment
- Biological experiments
- Wilfully causing great suffering
- Causing serious injury to body or health
- Destruction and appropriation of property not justified by military necessity [with the exception of Article
130 of the Third Convention].
(b) Breaches specified in both the Third and Fourth Geneva Conventions:
- Compelling a prisoner of war or civilian protected by the Fourth Geneva Convention to serve in the armed
forces of the hostile power;
- Wilfully depriving a prisoner of war or civilian protected by the Fourth Geneva Convention of the right to fair
and regular trial, prescribed in the Third and Fourth Geneva Convention.
(c) Breaches specified in the Fourth Geneva Conventions:
- Unlawful deportation or transfer
- Unlawful confinement
- Taking of hostages.
Under Article 85(3) of Additional Protocol I, these are grave breaches:
The following acts, when committed wilfully and causing death or serious injury to body or health:
(a) making the civilian population the object of attack;

(b) launching an indiscriminate attack, or an attack against works or installations containing dangerous forces
in the knowledge that such an attack will cause excessive loss of life, injury to civilians or damage to
civilian objects, as defined in Article 57 , Paragraph 2(9);
(c) launching an attack against works or installations containing dangerous forces in the knowledge that such
attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article
57 , paragraphs (2)(a) (iii).
(d) making non-defended localities and demilitarised zones the object of attack;
(e) making a person the object of attack in the knowledge that he is hors de combat.
(f) the perfidious use, in violation of Article 37 , of the distinctive emblem of the red cross, red crescent or red
lion and sun or of other protective signs recognised by the Conventions or this Protocol.
The parties to the Geneva Conventions are obligated to repress grave breaches of international humanitarian law
or to hand over the presumed perpetration of such breaches to a Contracting Party wishing to prosecute, as long as
this party can prefer substantial charges in accordance with the principle autjudicare out dedere (prosecute or
extradite).
In accordance with the principle of universal jurisdiction, the obligation to repress grave breaches is independent of
the nationality of the perpetrators and the place where the acts were committed.
V. NATIONAL MEASURES
The war crimes alleged by a party during a conflict generally involves acts committed by the soldiers of the adverse
party. It is therefore useful to point out that the obligation to suppress breaches of international humanitarian law
and to repress grave breaches thereof requires the authorities to exercise great vigilance concerning acts
committed by members of their own armed forces. In fact, this implies taking the necessary measures at the
national level, especially by introducing these breaches into their penal codes.
Page 28 of 43
In many countries, judges cannot give a judgement directly on international treaty law; the relevant provisions of
that law should therefore be incorporated into the national legislation. The introduction of these provisions into the
national penal system is indispensable. Moreover, the Geneva Conventions and Additional Protocol I contain no
indication of the penalties to be applied to the various breaches.
Article 51 of the Indian Constitution enjoins that the Union "shall endeavour to foster respect for international law
and treaty obligations in the dealings of the organised people with another".
India ratified the four Geneva Conventions on 9 November, 1950 without reservations. India has actively
participated in the formulation of Protocol I, and supported all the articles of the draft Protocol I. India had opposed
Protocol II. The Indian delegate explained to the Conference:
His delegation had always opposed the idea of a Second Protocol, although its provisions were already a part of his
countrys national law. The application of an international instrument in an internal situation militated against the sovereignty
of the country concerned and constituted an interference in that countrys domestic affairs. 228
India has not ratified either of the Protocols.
VI. IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW DURING NON-INTERNATIONAL ARMED

CONFLICTS
The Common Article 3 229 of the Geneva Convention of 1949, applicable in non-international armed conflicts, can
be considered as the core of non-derogable rights during any armed conflict. Article 3 is the most difficult of 417
articles to secure acceptance by States applied to armed conflicts within the territory of a State party "not being
international in character". The major problem regarding its implementation is that no definition of such internal
conflicts was inserted in the Conventions.
The main problem in implementing this provision in the event of a non-international armed conflict is that other
States parties to it would most probably be least inclined to exercise this competence for fear of being accused of
interfering in the internal affairs of the State in which the conflict has broken out.
Article 4 of Protocol II also enumerates certain "fundamental guarantees" for persons who do not take or who have
ceased to take part in hostilities. 230
Part IV of Additional Protocol II is devoted to rules on the conduct of hostilities. Expressly prohibited are attacks on
the civilian population; starvation of the civilian population; attacks on objects indispensable to the survival of the
civilian population; and orders to displace the civilian population, other than for the security of the persons displaced
or for imperative military reasons. 231
However, these humanitarian law rules do not formally apply unless the State in question is party to Protocol II and
the threshold of intensity required for its application has been reached. Thus, in other situations, it is essentially
customary law which determines the rules of international humanitarian law that the belligerents must observe in
military operations.
It is generally accepted that the Regulations Respecting the Laws and Customs of War on Land annexed to the
Hague Convention No. IV of 1907 are now part of the corpus of customary international law. While the binding
nature of the Geneva Conventions of 1949 is generally based on their status as treaties, many of their provisions
reflect customary law. 232 This is true even of the (Fourth) Geneva Convention relative to the Protection of Civilian
Persons in Time of War which, although not preceded by an earlier Geneva Convention on the same subject,
echoes many provisions of the Hague Regulations of 1907, including the basic rules on occupation. In the case of
Military and Paramilitary Activities in and against Nicaragua, 233 the International Court of Justice viewed common
Articles 1 and 3 of the Geneva Conventions as reflecting general principles. Except in a limited number of
situations, the extent to which provisions of the Conventions are declaratory of customary law is of limited
significance because of the universal acceptance of these Conventions as binding treaties.
Recently the International Court of Justice in an advisory opinion sought by General Assembly rendered on 8 July,
1996, has emphasised the relevance of the principles of International Humanitarian Law in an armed conflict. While
the Court opined this by unanimous vote, it however, subtly observed that "the threat or use of Nuclear Weapons
would generally be contrary to the rules of international law applicable in armed conflict, and in particular the
Page 29 of 43
principles and rules of humanitarian law...." 234
SECTION VI : ROLE OF NON-GOVERNMENTAL ORGANISATIONS IN

IMPLEMENTATION OF HUMAN RIGHTS AT INTERNATIONAL AND
REGIONAL LEVELS 235
A large number of Non-Governmental Organisations (hereinafter referred to as NGOS) are engaged in the
protection of human rights. 236 These NGOS are working both at international as well as national levels. Their
primary concern is the prevention or elimination of human rights violations. Most of these "NGOs have consultative
status with such inter-governmental bodies as the UN Economic and Social Council (ECOSOC), 237 the
International Labour Organisation (ILO), the UN Educational, Scientific and Cultural Organisation (UNESCO), the
Council of Europe, and the Organisation of American States (OAS)". NGOS are founded upon a membership of
people, rather than of governments, NGOS are most often structured so that there exists an international
Secretariat which more or less represents national sections in various countries.
NGOS play an important role in the collection and dissemination of facts concerning alleged violation of human
rights. Large number of institutions and organisations, specifically United Nations, rely heavily on data concerning
violation of human rights provided by NGOS and groups. There are some important human rights organisations,
namely, Amnesty International, the International Commission of Jurists, the International Committee of the Red
Cross, and other international NGOS who gather information in more or less the same way. These organisations at
their international centres gather information about human rights problems from newspapers, magazines,
professional journals, United Nations publications, members and relatives of prisoners. The reports prepared by
these organisations are of varying reliability, of course, and care is taken to check sources and contradictions.
Almost every countrys constitution prominently sets forth the fundamental rights of its citizens. If a government,
whether democratic or dictatorial, acts tyrannically towards its citizens, it violates the basic trust which permits it to
continue ruling. No government would like to be reminded that they are ignoring the fundamental rights of their
citizens. Specifically they do not like to be criticised in the international forum. The acceptance of the International
Bill of Human Rights 238 by an overwhelming majority in the international community implies that a government
cannot violate basic human rights without some fear of exposure. It has been observed that the effective lobbying
by NGOS have caused executions to be stayed, death sentences to be commuted, torture to be stopped, prison
conditions to be ameliorated, prisoners to be released, and more attention to be paid to the fundamental rights of
citizens. 239
I. INTERVENTIONS BY NGOS
Once a case is selected, the NGO may decide to seek a visit with representatives of the concerned government.
Initial contact apprises the government that a violation has been noted and the NGO may propose inquiry by
competent officials. Several times the NGO works as a much-needed intermediary between the highest officials in a
government and human rights victims. But once an NGO brings a problem to the governments attention it becomes
more difficult to ignore human rights violations by the concerned government. In addition to this sometimes the
NGO may offer or ask to send a mission to the particular country, to interview alleged victims, lawyers, and
government officials, to witness trials, or to attempt to mediate disputes. Some countries are sufficiently concerned
about their image, that is why they accept NGO visits. 240
II. CONTRIBUTION OF NGOS TO INTERNATIONAL INVESTIGATION
Non-governmental organisations have also used the developing procedures for individual communications about
human rights violations in the UN Commission on Human Rights, the International Labour Organisation, the Inter-
American Commission on Human Rights, and the European Commission of Human Rights. NGOS have the right to
do special studies on various human rights issues conducted by the Commission on Human Rights. 241 In addition
to this, NGOS are entitled to submit written or oral communications in other UN bodies, namely, the Trusteeship
Council, 242 the Special Committee against Apartheid, 243 the Special Committee on the Situation with regard to the
Implementation of the Declaration on the Granting of Independence to Colonial Countries and People. 244
III. CONCLUSION
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In recent times, the rights of people have acquired a certain degree of prominence in international law. In this
Chapter, it was observed that a considerable number of international and regional human rights instruments along
with elaborate provisions for implementation mechanism are available to safeguard human rights.
The question which arises now is: Is implementation mechanism effective in containing human rights violations? A
large number of countries are parties of these universal and regional human rights instruments, but when matters
come for implementation of these provisions, it was found that countries are not ready to implement it.
Three types of supervisory mechanisms are available under the CP Covenant, the first one is mandatory (that is
submission of State report to Human Rights Committee periodically) while the other two are optional (Inter-State
Complaints, Individual Complaint). It has been realised that the implementation mechanism can be made more
effective if every country ratifies the Optional Protocol I. The only human rights instruments, functioning effectively,
at regional levels is the European Convention. To make it more effective, the Member States have decided to have
only one kind of enforcement mechanism under the European Convention, that is the European Court. 245
The other two regional human rights instruments namely, American Commission and African Charter of human
rights are effective in their own sphere. The major problem in implementation of these provisions is lack of political
will on the part of concerned countries.
The perception of and the problem in implementation of human rights are essentially related to the national level.
Human rights are contextually related there, the problems arise in the social and economic context of a nation, and
solutions may be better evolved in their own sphere.
1 Article 68 says, "The Economic and Social Council shall set up commissions in economic and social fields and for the
promotion of human rights, and such other commissions as may be required for the performance of its functions.
2 Resolution 1/5 of 16 February, 1946 (Doc. E/20 of 15 February, 1946); Record of the Economic and Social Council,
First Year: First Session, pp. 163-64.
3 Second session, 3rd to 21st May, 1948; for two years: (1) Byelorussian SSR, (2) China, (3) Lebanon, (4) Panama, (5)
United Kingdom, (6) Uruguay; for three years (1) Egypt, (2) France, (3) India, (4) Iran, (5) Ukrainian SSR, (6) USSR; for
four years (1) Australia, (2) Belgium, (3) Chile, (4) Philippines Republic, (5) United States, (6) Yugoslavia.
4 Resolution 115 of 16 February, 1946 (Doc. E/20 of 15 February, 1946). Official Records of Economic and Social
Council, First Year: First Session, pp. 163-64.
5 The Universal Declaration of Human Rights was adopted in UN General Assembly in Resolution 217A, 3 UNGAOR,
Pt.I, pp. 71-72. The abstaining States were: Byelorussia SSR, Czechoslovakia, Poland, Saudi Arabia, Ukrainian SSR,
USSR, Union of South Africa, and Yugoslavia.
6 Articles 2 to 21 of the Universal Declaration.
7 Articles 22 to 27 of the Universal Declaration.
8 Article 2 of Universal Declaration.
9 See Lord Dukestons letter containing the United Kingdoms proposals, which formed the basis of this study.
E/CN.4/AC.1/4.
10 UN Secretary-General, Draft International Covenants on Human Rights, Doc. A/2929 (1 July, 1955), p. 25.
11 UN Commission on Human Rights, Doc. E/CN.4/SR.64.
12 As Lauterpacht states: "That does not mean that the recognition of these rights in an international instrument must be
reduced to a mere declaration which is not legally binding upon States or that it must be ignored altogether. The
difficulty surrounding this problem can be solved by giving to social and economic claims a place in an enforceable bill
of rights without making such enforcement primarily judicial in character", H. Lauterpacht, International Law and Human
Rights (London, 1945), p. 286.
13 General Assembly Resolution, 543 (VI).
14 UN Commission on Human Rights, Doc. E/CN.5/43 (10 December, 1947), pp. 1-34.
15 UN Commission on Human Rights, Documents E/CN.4/AC.1/27; E/CN.4/82/Rev.1; E/CN.4/82/Add.6;
E/CN.4/353/Add.9; E/CN.4/515/Add.4; E/CN.4/353/Add.8; E/CN.4/SR.105; E/CN.4/SR.355.
16 Article 40 of draft Covenant on Civil and Political Rights.
Page 31 of 43
17 UN Commission on Human Rights, Doc. E/CN.4/SR.105 (2 June, 1949), p. 3.

18 UN Commission on Human Rights, Doc. E/CN.4/353/Add.2, p. 11.
19 UN Commission on Human Rights, Doc. E/CN.4/SR 115, p. 3.
20 See the Statement by the United Kingdom representative in A/C.3/SR.300, para. 38.
21 UN Commission on Human Rights, Doc. E/CN.4/SR.115, pp. 5-6.
22 Statement by Egyptian representative in E/CN.4/SR.243, p. 22.
23 Statement by representative of India in E/CN.4/SR./49, p. 15.
24 Statement by Guatemala representative in E/CN.4/SR.115, pp. 10-11.
25 UN Commission on Human Rights, Doc. E/CN.4/145 (16 June, 1948).
26 Statement by the French and Indian representatives in E/CN.4/SR.115, p. 7, p. 8.
27 Statement by the Indian representative in E/CN.4/SR.243, p. 15.
28 G.A. Resolution 2200A, 21 UN GAOR, Supp. 16, p. 49. Three instruments annexed to the Resolution were adopted:
The International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political
Rights and an Optional Protocol to the CP Covenant, both the Covenants adopted unanimously. The Optional Protocol
was adopted by a vote of 66 to 2(Niger and Togo) with 38 abstentions. The Covenant entered into force on 23 March,
1976 in accordance with Article 45 of CP Covenant for all provisions except those of Article 41 ; 28 March, 1979 for
the provisions of Article 41 (Human Rights Committee); There are 129 countries parties to the CP Covenant; for
optional Protocol 80 countries parties to it and 25 has ratified it: [Multilateral Treaties deposited with the Secretary-
General (United Nations, New York, 1995), pp. 117-53].
29 The Universal Declaration of Human Rights was adopted in UN General Assembly in Resolution 217A, 3 UN GAOR,
Pt. I, pp. 71-77. UN Doc. A/811 (1948). This Resolution was finally adopted on 10 December, 1948.
30 At its first session the General Assembly decided that an "international bill of rights" should be prepared by the
Commission on Human Rights. See GA Resolution 43(I), UNGAOR 68, UN Doc. A/164/Add/(1947). After a lengthy
debate, the Commission decided in 1947 that the international bill of rights should consist of a declaration, a Covenant,
and measures of implementation. When the General Assembly adopted the Universal Declaration on 10 December,
1948, it also decided that priority should be given to the preparation of a draft Covenant on human rights and draft
measures of implementation, and that the question of the right of petition should be examined further. See, G.A. Res.
217B, 217E, 3UN GAOR, 77, UN Doc. A/810 (1948). Thereafter, the Commission devoted six session, from 1949 to
1954, to prepare the draft Covenants. In 1954 the draft Covenants were submitted to the General Assembly for
consideration by its Third Committee, which considered them article by article until 1966. The reports of the Third
Committee summarizes its consideration of the draft Covenants and are contained in the following documents: UN Doc.
A/6173 (1965); UN Doc. A/5655 (1963).
31 See Moses Moskowtiz, "The Covenants on Human Rights: Basic Issues of Substance", Proceedings of the American
Society of International Law, vol. 53 (1959), pp. 230-34.; Oona A Hathaway, "Human Rights Abroad: When Do Human
Rights Treaty Obligations Apply Extraterritorially?" Arizona State Law Journal, available at
http://www.law.yale.edu/documents/pdf/cglc/Hathaway_HumanRightsAbroad.pdfvisited on 7 July, 2013.
32 The draft CP Covenant sets forth; in part, the rights of men as follows: the inherent right to life; the right to be free from
torture, or cruel, inhuman or degrading treatment or punishment; the right to be free from slavery; the right to liberty and
security of person, including freedom from arbitrary arrest; the right to be treated with humanity if arrested; the right to
be free from imprisonment for inability to fulfil a contractual obligation; the right to move freely within and without ones
own State; the right to protection as an alien; the right to be equal before the courts; the right against retroactive penal
legislation; the right to be recognised everywhere as person before the law; the right to be free from arbitrary or
unlawful interference with privacy, family, home, or from unlawful attacks against honour and reputation; the right to
freedom of thought, conscience and religion; the right to hold opinion without interference; the right to peaceable
assembly; the right to vote and contest in elections; the right to equality before the law without discrimination and to
equal protection of the law, the right to enjoy, as a minority, ones own culture, religion and language. UN Doc. No.
A/5655 (1963), A/C.3L./062 (1963).
The draft Covenant on Economic, Social and Cultural Rights sets forth the following rights: the right to work; the right to the
enjoyment of just and favourable conditions of work, the right to form trade unions; the right to social security; the right
to provide special protection to the family; the right to have an adequate standard of living; the right to be free from
hunger; the right to enjoy the highest attainable standard of physical and mental health; the right to have an education;
the right to take part in cultural live; the right to enjoy the benefits of scientific progress, U.N. Doc. No.A/5655 (1963).
33 Articles 2 and of both Covenants contain in each case an undertaking to respect, or to take steps to secure
progressively the substantive rights which follow in Part III of CP Covenant.
34 Originally a single Covenant was under consideration, that would have been largely confined to socalled "hard core"
Civil and Political Rights. However, at its 5th session, in 1950, the General Assembly decided that it would be desirable
Page 32 of 43
to include economic, social and cultural rights in the draft Covenant then under consideration, in view of the
interconnection and interdependence between such rights and the enjoyment of Civil and Political freedoms, see G.A.
Res.421, 5 UN GAOR Suppl.20, p. 42, UN Doc. A/1775 (1950).
At its 6th session, in 1951, the General Assembly reached a compromise favoured by the United States in ordering the
preparation of two separate Covenants, and in deciding that they would be open for signature simultaneously. G.A.
Res.543, 6 U.N. GAOR, Supp. 60, p. 36; UN Doc. A/21/9 (1952). The Soviet Union subsequently made two attempts in
the Commission on Human Rights to have this decision of the General Assembly reconsidered, but it was defeated on
both counts.
35 On the measures of implementation see, Egon Schwelb, "The International Measures of Implementation of the
International Covenant and Civil and Political Rights and of the Optional Protocol", Texas International Law Journal
(Austin), vol. 12 (1977), pp. 141-56. John Carey, "Procedures for International Protection of Human Rights", Iowa Law
Review (Iowa), vol. 53, 1967, pp. 291-324; K.P. Saksena, "International Covenants on Human Rights", The Indian
Yearbook of International Affairs (Madras), vol. 16 (1966-67), pp. 596-614; Jaap A Walkate, "The Human Rights
Committee and Public Emergencies", Yale Journal of World Public Order (New Haven), vol. 9 (1982), pp. 133-46.
William Karey, "The Key to Human Rights Implementation", International Conciliation (New York), No. 570, 1968, pp. 5-
65. Hersch Lauterpacht, "The International Protection of Human Rights", Recueil des Cours (Hague), vol. 70 (1947),
pp. 1-108 Heribert Golsong, "Implementation of International Protection of Human Rights, Recueil des Cours , pt.III,
1963, pp. 7-142; V.S. Mani, "Regional Approaches to the Implementation of Human Rights", Indian Journal of
International Law (New Delhi), vol. 21 (1981), pp. 96-117; Yogesh K. Tyagi, "Human Dignity, National Security and
International Responsibility: Search for a Symbiosis" in K.P. Saksena ed., Human Rights Perspective and Challenges
(New Delhi, 1994), pp. 45-78; Yogesh Kumar Tyagi, "Promotion and Observance of Human Rights by the Nonaligned
Countries", in M.S. Rajan, et. al., ed., The Nonaligned and the United Nations (New Delhi, 1987), pp. 123-42; Elvira
Dominguez Redondo, "Rethinking the Legal Foundations of Control in International Human Rights Law - The case of
Special Procedures", Netherlands Quarterly of Human Rights , vol. 29 (3) (2011) pp. 261-288.; Noelle Quenivet,
"Binding the United Nations to Human Rights Norms by way of the Laws of Treaties", George Washington International
Law Review , vol. 42 (3) (2010).
36 Human Rights Committee which sits either at the UN headquarters in New York or at Geneva, which is the location of
Human Rights Division of the UN Secretariat. Article 37(2) of CP Covenant.
37 Article 28(2) of CP Covenant.
38 The principles of equitable geographical distribution and representation of the principal legal systems were respected,
as may be seen from the following indications of the nationality of the members of the Committee: there were five from
Western Europe; four from Eastern Europe; two from Asia; three from Africa; one from North America and three from
Latin America.
41 Rules of Procedure of the Human Rights Committee, Rule 66, UN Doc. CCPR/C/3/Rev.3
42 UN Doc. CCPR/C/19/Rev.1.
43 UN Doc. CCPR/C/20/Rev.2, para. 8.
46 Rules of Procedure of the Human Rights Committee, Rule 66, paragraph 2, UN Doc. CCPR/C/3/Rev.3.
47 Iraq, the Federal Republic of Yugoslavia (twice), Peru, Bosnia and Herzegovina, Croatia, Angola, Burundi, Haiti and
Rwanda.
48 Article 1 of the Optional Protocol.
49 Article 5(4) of the Optional Protocol on the Human Rights Committee, see, P.R. Gandhi, "The Human Rights
Committee and the Right of Individual Communications", British Yearbook of International Law , vol. 57 (1986), pp. 201-
51; T. Opsahl, "Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the
Human Rights Committee", German Yearbook of International Law , vol. 28 (1985), pp. 9-64; M. Nowak, "The
Effectiveness of the International Covenant on Civil and Political Rights: Stocktaking after the First Eleven Sessions of
the UN Human Rights Committee", Human Rights Law Journal , vol. 1 (1980), pp. 136-70.; Scott Davidson, "Procedure
under the Optional Protocol", in Alec Conte, Scott Davidson and Richard Burchill, (ed.). Defining Civil Rights and
Political Rights: The Jurisprudence of the United Nations Human Rights Committee (Asghate, USA, 2004), pp. 17-33;
Martin Scheinin and Malcolm Langford, "Evolution or Revolution? Extrapolating from the Experience of the Human
Rights Committee" available at http://www.jus.uio.no/smr/english/people/aca/malcolml/ 8Scheinin% 20
and%20Langford97-113.pdf visited on 25 May, 2013.
50 Rules of Procedure of the Human Rights Committee, Rules 95-98; UN Doc. CCPR/C/3/Rev.3.
Page 33 of 43
51 Dana D. Fischer, "Reporting under the Covenant on Civil and Political Rights: The First Five Years of the Human
Rights Committee", American Journal of International Law , vol. 76 (1982), pp. 142-53; A.F. Bayefsky, "The Human
Rights Committee and the case of Sandra Lovelace", Canadian Yearbook of International Law , vol. 20 (1982), pp. 244-
64; "Human Rights Committee", International Commission of Jurists , No. 33 (1984), pp. 34-46; Alfred M. de Zoyas,
"The Follow-up Procedure of the UN Human Rights Committee", International Commission of Jurists , No. 47, 1991, pp.
28-35; Dominick Mcgoldrick, The Human Rights Committee: Its rule in the Development of the International Covenant
on Civil and Political Rights (London, 1991); Yogesh Kumar Tyagi, "Co-operation between the Human Rights
Committee and Non-Governmental Organisations: Permissibility and Propositions", Texas International Law Journal ,
vol. 18 (1983), pp. 273-90. Henry J. Steiner, "Individual Claims in a World of Massive Violations: What Role for the
Human Rights Committeee?" in Philip Alston and James Crawford (eds.) The Future of Human UN Human Rights
Treaty Monitoring (Cambridge University Press, Cambridge, 2000).
52 In its report A/50/40, paras. 482-91, 1995, the Committee indicated the status of all Communication under the Optional
Protocol as follows:
(i) 636 Communications have been registered
(ii) Views have been adopted concerning 208 communications.
(iii) 213 Communications have been declared inadmissible.
(iv) 108 Communications have been discontinued or withdrawn.
(v) 39 Communications have been declared admissible but not yet concluded.
(vi) 68 Communications were at the pre-admissibility stage.
53 Article 5(4) says, "The Committee shall forward its views to the State Party concerned and to the individual".
54 Rule 90, with a view to reaching a decision on the admissibility of a communication, the Committee, or a Working
Group established under Rule 89, Paragraph 1 shall ascertain:
(a) That the communication is not anonymous and that it emanates from an individual, or individuals, subject to the
jurisdiction of a State party to the Protocol;
(b) That the individual claims, in a manner sufficiently substantiated, to be a victim of a violation by that State party of
any of the rights set forth in the Covenant. Normally, the Communication should be submitted by the individual
himself or by his representative; a communication submitted on behalf of an alleged victim may, however, be
accepted when it appears that he is unable to submit the communication himself;
(c) That the communication is not an abuse of the right to submit a communication under the Protocol;
(d) That the Communication is not incompatible with the provisions of the Covenant;
(e) That the same matter is not being examined under another procedure of international investigation or settlement;
(f) That the individual has exhausted all available domestic remedies.
55 Comm. No. R. 115.
56 It is interesting to note that J.L. Maser, who was arrested by the Uruguayan authorities in October 1975 on the grounds
of "subversive association", was finally released in March, 1984.
57 GAOR, 34th Session, Supplement 40, Report of the Human Rights Committee, p. 126.
58 Comm. No. R. 2/11.
59 Report, n. 57, p. 133.
60 Comm. No. 128/82. The present position is that communications are numbered consecutively, indicating also the year
of registration. Formerly, the reference number of each case consisted of the serial number of the case in the register,
preceeded by the number of the list of communications in which it was summarized and the letter indicating "restricted"
(e.g. R. 18/73).
61 GAOR, 35th session, supplement, Report of the Human Rights Committee, p. 133.
62 In the very first case, Massera v. Uruguay (Comm. No. R/1/5) the Committee rejected the communication, as
inadmissible in so far as it related to the author "since it concerned events which allegedly took place prior to the entry
into force of the Covenant and the Optional Protocol in respect of Uruguay". Inadmissibility ratione temporis is a feature
common to other systems of international adjudication.
63 Comm. No. R 2110.
64 GAOR, 37 Session, Supplement 40, Report of the Human Rights Committee, p. 125; other grounds of inadmissibility
are stated in Article 3 of the Protocol which reads: "The Committee shall consider inadmissible any communication
under the present Protocol which is anonymous, or which it considers to be an abuse of the right of submission of such
Page 34 of 43
communications from individuals who claim that any of their rights enumerated in the Covenant have been violated..."
(Article 2 of the Protocol).
65 ECOSOC Resolution, session 36, 1979, approved in General Assembly Resolution 34/25.
66 Ibid .
67 Ibid.
68 UN Action in the Field of Human Rights (New York, 1973), p. 183.
69 E/CN. 4/1317, para. 29.
70 See, Goodrich, Hambro and Simons, The Charter of the United Nations, Commentary and Documents (third rev. ed.,
1969), p. 381, and opinion of Judge Lauterpacht in the South Africa Voting Procedure Case , ICJ Reports , 1955 , pp.
188-220.
71 An investigation by an Ad hoc Committee can be undertaken only if "all available means at the national level have
been resorted to and exhausted". The Commission may, under paragraph 6(a) of Resolution 1503 (XL VIII), undertake
a "thorough study" as provided for in Council Resolution 1235 (XLII).
72 This decision by the Commission under paragraph 6(b) of Resolution 1503 (XLVIII) requires the express Consent of
the State concerned.
73 No rule expressly regulates the question of friendly settlement in the Commissions examination of a situation.
74 The two countries from the African Continent notorious for human rights violations, namely, Sudan and Zimbabwe,
both managed to become members of the CHR. For complete list of members see,
http://www2.ohchr.org/english/bodies/chr/membership.htm, visited on 10 August, 2013.
75 The CHR adopted without a vote Resolution E/CN.4/2006/L.2 entitled "closure of the work of the Commission"
recalling General Assembly Resolution 60/251 of 15 March, 2006, which created the Human Rights Council, and
Economic and Social Council Resolution 2006/2 of 22 March, 2006; taking note of General Assembly Resolution
60/251 of 15 March, 2006; referring, accordingly, all reports to the Human Rights Council for further consideration at its
first session in June, 2006; expressing its appreciation to all those who contributed to the promotion and protection of
human rights during its 60 years of existence; and deciding to conclude its work in accordance with the above
mentioned Resolutions. Press release, Commission on Human Rights Concludes its Sixty Second and last Session, 27
March, 2006, available at http://www.ohchr.org/ , visited on 10 August, 2013.
76 Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All ,
A/59/2005, 21 March, 2005. Available on http://www.un.org/largerfreedom/ contents.htm visited on 7 August, 2013.
77 Ibid ., para. 183.
78 Joseph Klein, The (UN)-Human Rights Council, http://www.FrontPageMagazine. com, 13 March, 2006; M. Cherif
Bassiouni and William A Schabas (ed.) New Challenges for the Human Rights Machinery: What Future for the UN
Treaty Body system and the Human Rights Council Procedures? (Cambridge, Cambridge University Press, 2008).
79 General Assembly Establishes New Human Rights Council by vote of 170 in favour to 4 against, with 3 abstentions.
Israel, Marshall Islands, Palau, United States voted against the Resolution, and Belarus, Iran, Venezuela abstained
from the voting. General Assembly, GA/10449, 15 March, 2006. Available at, http://www.un.org, visited on 10 May,
2006.
80 Ibid., Israel, Marshall Islands, Palau, United States voted against the Resolution
81 The following members were elected: Algeria, Argentina, Azerbaijan, Bahrain, Bangladesh, Brazil, Cameroon, Canada,
China, Cuba, Czech Republic, Djibouti, Ecuador, Finland, France, Gabon, Germany, Ghana, Guatemala, India,
Indonesia, Japan, Jordan, Malaysia, Mali, Mauritius, Mexico, Morocco, Netherlands, Nigeria, Pakistan, Peru,
Philippines, Poland, Republic of Korea, Romania, Russian Federation, Saudi Arabia, Senegal, South Africa, Sri Lanka,
Switzerland, Tunisia, Ukraine, United Kingdom, Uruguay and Zambia. 81 "General Assembly Elects 47 Members of
New Human Rights Council; Marks "New Beginning" for Human Rights Promotion, Protection", Sixtieth General
Assembly Plenary 80th Meeting, General Assembly, 10459, 9 May, 2006. Available at, http://www.un.org, visited on 10
May, 2006.
82 General Assembly Resolution 60/251 of 15 March, 2006, Article 8 , the membership in the new Council is based on
equitable geographic distribution, and seats shall be distributed as follows among regional groups: African Group, 13;
Asian Group, 13; Eastern European Group, 6; Latin American and Caribbean Group, 8; and Western European and
Others Group, 7.
83 Ibid ., Article 7 .
84 Ibid ., Article 9 .
85 Ibid., Article 10 .
86 General Assembly, n. 28, Article 4 .
Page 35 of 43
87 Ibid.
88 Maximilan Sphor, "United Nations Human Rights Council: Between Institution Building Phase and Review of States,
Max Planck UN Yearbook , vol. 14 (2010), pp. 169-218.
89 European Convention for Protection of Human Rights and Fundamental Freedoms was signed in Rome on 4
November, 1950. The Convention entered into force in 1953 after the tenth ratification and has now been ratified by 31
of the 36 Member States of the Council of Europe. The 36 members are: Albania, Andorra, Austria, Belgium, Bulgaria,
Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Maltova, Maldova, Netherlands, Norway, Poland, Portugal, Romania, San
Marino, Slovak Republic, Slovania, Spain, Sweden, Switzerland, Turkey and the U.K. Albania, Andorra, Estonia, Latvia
and Maldova, members only as of 1993 or later, have yet to ratify this Convention. See generally, Karel Vasak, "The
Council of Europe", in Vasak ed., The International Dimensions of Human Rights (Paris, 1982), vol. 2, pp. 475-84,
Davidson Scott, Human Rights Law and Political Change (London, 1995); Frede Castberg, The European Convention
on Human Rights (London, 1974), J.E.S. Fawcett, The Application of the European Convention on Human Rights
(Oxford, 1969). A.H. Robertson, and J.G. Merrils, Human Rights in the World: An Introduction to the Study of the
International Protection of Human Rights (New York, 1992), 3rd. edn.; Peter van Dijk, Theory and Practice of the
European Convention on Human Rights (The Hague, Kluwer Law International, 1998); Helen Keller, Magdalena
Forowich and Lorenz Eugi, Friendly Settlements before the European Court of Human Rights : Theory and Practice
(Oxford, Oxford University Press, 2010): Ed. Bates, The Evolution of the European Convention on Human Rights: From
Its inception to the creation of a Permanent Court of Human Rights (Oxford, Oxford University Press, 2012).
90 The European Social Charter mainly covers the implementation of Economic and Social Rights and Principles; was
adopted in 1961 and entered into force in 1965. Both the Conventions were drafted under the auspices of the Council
of Europe, an inter-governmental organisation of 25 European States, the function of which was to facilitate European
Cooperation across a broad range of subjects. 529 UNTS 89; UKTS 38 (1965).
91 213 UNTS 262; ET S9; UKTS 46 (1954), and 9221 adopted in 1952, came into force in 1959. Twenty eight countries
are parties to this.
92 Adopted in 1963 and came into force in 1968. Securing certain rights and freedoms other than those already included
in the Convention and in the first Protocol thereto, they are as follows: Prohibition of imprisonment for debt (Art. 1 );
Freedom of Movement (Art. 2 ); Prohibition of expulsion of nationals (Art. 5 ); Prohibition of collective expulsion of
aliens (Art. 4 ).
93 Adopted in 1983 and came into force in 1985. Concerning the abolition of the death penalty, they are as follows:
abolition of the death penalty (Art. 1 ); death penalty in time of war (Art. 2 ); prohibition of derogations (Art. 3 ).
94 Adopted in 1984 and came into force in 1988. Procedural safeguards relating to expulsion of aliens (Art. 1 ); Right of
appeal in criminal matters (Art. 2 ); Compensation for wrongful conviction (Art. 3 ); right not to be tried or punished
twice (Art. 4 ); equality between spouses (Art. 5 ).
95 Third Protocol 1963, ETS45, UKTS 106 (1970), Cmnd 4552; Fifth Protocol 1966, ETS 55, UKTS 48 (1972), Cmnd
4963; Eight Protocol 1992, ETS 146. These three Protocols entered into force for all Convention parties in 1970, 1971
and 1990 respectively. The Ninth Protocol, which allows individuals to refer a case to the Court is optional, came into
force in 1994. The tenth Protocol, which amends the Committee of Ministers voting rule, requires ratification by all of
the parties to the Convention to enter into force (21 ratifications so far).
96 Second Protocol 1963, ETS 44; UKTS 104 (1970), Cmnd.4551, came into force in 1970, ratified by all Convention
parties.
97 Article 20 of European Convention.
99 See for further reading on European Commission, Sean Macbride, "The European Court of Human Rights", New York
University Journal of International Law and Politics, vol. 3 (1970), pp. 1-17; A.B. Mcnulty and Andre Eissen, "The
European Commission of Human Right Procedures and Jurisprudence", International Commission of Jurists , vol. 1
(1964), pp. 195-223; Lucian G. Weeramantry, "Application before European Commission of Human Rights against
Greece", International Commission of Jurists , No. 4, (1969), pp. 39-45; Thomas Burgenthal, "Proceeding against
Greek case under the European Convention on Human Rights", American Journal of International Law , vol. 62 (1968),
pp. 441-50; John T. Wright, "The European Commission of Human Rights: An Analysis and Appraisal", Brooklyn
Journal of International Law , vol. 8 (1982), pp. 309-44. G.L. Weil, "Evolution of the European Convention on Human
Rights", American Journal of International Law , vol. 57 (1963), pp. 804-27; Neri Sabsema Neil, "The European System
for the Promotion and Protection of Human Rights", Georgia Journal of International and Comparative Law (Athens),
vol. 20 (1990), pp. 407-12; C.H.M. Waldock, "The European Convention for the Protection of Human Rights and
Fundamental Freedoms", British Yearbook of International Law , vol. 39 (1958), pp. 356-63. : Mark Janis, Richard Kay
and Anthony Brodley, European Human Rights Law: Text and Materials (New York: Oxford University Press, 2010);
Andrew Legg, The Margin of Appreciation in International Human Rights Law : Defence and Proportionality (Oxford,
Oxford University Press, 2012).
Page 36 of 43
101 Article 27(1)(a) of European Convention.

102 Article 27(1)(b) of European Convention.
103 Article 29(1) of the European Convention.
105 Article 28(a) and 29 of the European Convention.
108 There is also provision for occasional reports by States on their compliance with the Convention (Article 57 ), but the
procedure was seldom used.
109 Article 24 says, "Any High Contracting Party may refer to the Commission through the Secretary-General of the
Council of Europe, any alleged breach of the provisions of the Convention by another High Contracting Party".
110 Article 25 says:
1. The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any
person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against
which the complaint has been lodged has declared that it recognises the competence of the Commission to
receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to
hinder in any way the effective exercise of this right.
2. Such declarations may be made for a specific period.
3. The declarations shall be deposited with the Secretary-General of the Council of Europe who shall transmit copies
thereof to the High Contracting Parties and publish them.
4. The Commission shall only exercise the powers provided for this Article when at least six High Contracting Parties
are bound by declarations made in accordance with the preceding programs.
111 This Court which administers the European Convention at Strasbourg and operates within the framework of the
Council of Europe is distinct from the European Court of Justice, which is the Court of the European Union and is based
in Luxembourg.
112 Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the
control machinery. The member of European Convention were trying to create a single Court as full-time body in
replacement of the existing European Commission and Court of Human Rights. In fact this was decided long time back
in November, 1991 by the Ministers of Foreign Affairs of Europe; see for details, International Legal Materials , vol. 33,
No. 4 (1994), pp. 943-70. Status of this Protocol on 11 May, 1994, 32 members have already ratified it.
113 Ibid, p. 948.
114 Ibid.
115 Ibid.
116 Ibid.
117 Article 20 ECHR (Article is based on Article 38 of the Convention, except that the second sentence of former Article
38 of the Convention has been deleted i.e. , the condition that no two judges may be nationals of the same State has
been removed).
118 Article 21(1) of ECHR (Paragraph 1 and 2 of Article 21 follows closely paragraph 3 of former Article 39 and
paragraph 7 of former Article 40 of the Convention).
119 Article 21(2) of ECHR.
120 Article 22(3) of ECHR [This provision in paragraph 3 concerns incompatibility "with the demands" of this office means
that judges must be able fully to assume all the duties inherent in the membership of the new Permanent Court; this is
an indispensable requirement for the efficient working of the Court. During their term of office judges may not engage in
any activity incompatible with the full-time character of their office].
121 Article 22 of ECHR (The text of Article 22 is virtually identical to that of former Article 39 , paragraph 1 and 2 of the
Convention).
122 Article 23 of ECHR [the text of Article 23 is similar to that of paragraphs 1 to 6 of former Article 40 of the
Convention (as to paragraph 7 of that Article, see Article 21 ). Judges will be elected for a period of six years, as
compared to nine years, as was previously the case. Consequently, the rotation provisions have been amended
accordingly. If the number of judges is uneven, paragraphs 1 and 3 are to be interpreted to mean one half of the judges
minus one person].
Page 37 of 43
123 Article 24 of ECHR [This Article is modelled on Article 18 , paragraph 1, of the Statute of the International Court of
Justice. However, unlike the latter text, which requires unanimity, in the present text dismissal from office requires a
majority of two-thirds of all the judges of the Court.]
124 Article 26 of ECHR: The plenary Court shall: a. Elect its President and one or two Vice-Presidents for a period of three
years; they may be reelected;
b. Set up Chambers, constituted for a fixed period of time;
c. elect the Presidents of the Chambers of the Court; they may be re-elected;
d. adopt the rules of the Court; and
e. elect the Registrar and one or more Deputy Registrars.
125 Article 27 of ECHR.
126 Article 34 ; Individual Application:
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be
the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols
thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.
139 Raffaella Nigro, "The Notion of" Jurisdiction" in Article 1 : Future Scenarios for the Extra- Territorial Application of the
European Convention on Human Rights", Italian Yearbook of International Law , vol. 20 (2010). pp. 11-30; Antonio
Bultrini, "The European Convention on Human Rights and the Rule of Prior Exhaustion of Domestic Remedies in
International Law", Italian Yearbook of International Law , vol. 20 (2010), pp. 101-109; Pasquale Pirrone, "The Value of
the Judgments of the European Court of Human Rights for the Courts of the Respondent State: Domestic Judicial
Decision in Favour of the Applicant and the Principle of "Doing as Much as Possible"", Italian Yearbook of International
Law , vol. 20 (2010).
140 The twenty four nations include: Argentina, Barbados, Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, El
Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, the
Dominican Republic, Surinam, Trinidad and Tobago, Uruguay and Venezuela. The United States has signed but has
not ratified the American Convention, Cf. J.M. Pasqualucci, "Provisional Measures in the Inter-American Human Rights
System: An Innovative Development in International Law", Vanderbilt Journal of International Law , vol. 26 (1993), pp.
803-63, at p. 810.
141 See for the final text, "American Convention on Human Rights" in International Legal Materials , vol. 9 (1970), pp. 99-
126; for further studies see Jane A. Peddicart, "The American Convention on Human Rights: Potential Defects and
Remedies", Texas International Law Journal , vol. 19 (1984), pp. 139-60., J.M. Posgualucci, "Provisional Measures in
the Inter-American Human Rights System: An Innovative Development of International Law", Vanderbilt Journal of
International Law , vol. 26, 1993, pp. 803-61; C. Sepulveda, "The Reform of the Charter of American States", Hague
Recuil des Cours , vol. 137 (1972-III), pp. 83-140; M.E. Tardu, "The Protocol to the United Nations Covenant on Civil
and Political Rights and the Inter-American System: A Study of Co-existing Petition Procedures", American Journal of
International Law , vol. 70 (1980), pp. 167-87, P.P. Camargo, "The Inter-American Commission on Human Rights",
Human Rights Law Journal , vol. 31 (1970), pp. 333-56; David Harris and Stephen Livingstone, The Inter-American
System of Human Rights (New York, OUP, 1998); Edmundo Vargas Carreno, "Some Problems Presented by the
Application and Interpretation of the American Convention on Human Rights", American University Law Review , vol. 30
(1981), pp. 121-54: Lucas Lixinski, "Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism
at the Service of the Unity of International Law", European Journal of International Law , vol. 21, no. 3 (2010), pp. 585-
604.
Page 38 of 43
142 Article 37 of American Convention.

(1) The members of the Commission shall be elected for a term of four years and may be reelected only once, but the
terms of three of the members chosen in the first election shall expire at the end of two years. Immediately
following that election the General Assembly shall determine the names of those three members by lot.
(2) No two nationals of the same State may be members of the Commission.
144 Article 29(3) of American Convention.
148 Article 48(1)(d) of American Convention.
151 Article 46 :
1. Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall
be subject to the following requirements:
(a) that the remedies under domestic law have been pursued and exhausted in accordance with generally
recognised principles of international law;
(b) that the petition or communication is lodged within a period of six months from the date on which the party
alleging violation of his rights was notified of the final judgement;
(c) that the subject of the petition or communication is not pending before another international procedure for
settlement; and
(d) that, in the case of Article 44 , the petition contains the name, nationality, profession, domicile, and signature
of the person or persons or of the legal representative of the entity lodging the petition.
152 Article 48(1)(d) of American Convention.

153 However, in serious and urgent cases, only the presentation of a petition or communication that fulfils all the formal
requirements of admissibility shall be necessary in order for the Commission to conduct an investigation with the prior
consent of the State in whose territory a violation has allegedly been committed.
158 Benito Pena, "Human Rights: The Statute of the Inter-American Court of Human Rights", Harvard International Law
Journal , vol. 21 (1980), pp. 735-742; Thomas Buergenthal, "The Inter-American Court of Human Rights", American
Journal of International Law , vol. 76 (1982), pp. 231-45; Maxel D. Vargas, Individual Access to the Inter-American
Court of Human Rights", New York University Journal of International Law and Politics , vol. 16 (1984), pp. 601-18;
Thomas Buergenthal, "The Advisory Practice of the Inter-American Human Rights Court", American Journal of
International Law , vol. 79 (1985), pp. 1-27; Claudio Grossman, "Disappearances in Honduras: The Need for Direct
Victim Representation in Human Rights Litigation", Hastings International and Comparative Law Review , vol. 15
(1992), pp. 363-89; Christina M. Cerna, "The Structure and Functioning of the Inter-American Court of Human Rights",
British Yearbook of International Law, vol. 63 (1992), pp. 135-229 ; Dunshee de Abranches. "The Inter-American Court
of Human Rights", American University Law Review, vol. 30 (1980), pp. 79-125; Thomas Buergenthal, "Inter-American
System for the Protection of Human Rights" in Theodore Meron, ed., Human Rights in International Law (Oxford, 1984),
vol. II, pp. 439-93; Jo M. Pasqualucci, The Practice and Procedures of the Inter-American Court of Human rights
(Cambridge, Cambridge University Press, 2006); Clara Burbano Herrera, Provisional Measures in the Case Law of
Inter-American Court of Human Rights (Cambridge University Press, UK, 2010).
Page 39 of 43

162 The 24 State parties to the Convention (as on 1 January, 1993) are: Argentina, Barbados, Bolivia, Brazil, Chile,
Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica,
Mexico, Nicaragua, Panama, Paraguay, Peru, Surinam, Trinidad and Tobago, Uruguay and Venezuela. However, it is
necessary for the State party to have declared that it recognises the Courts jurisdiction under Article 62 of the
167 Article 62 :
1. A State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any
subsequent time, declare that it recognises as binding, ipso facto , and not requiring special agreement, the
jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.
2. Such declaration may be made unconditionally, on the condition of reciprocity, for a specified period, or for specific
cases. It shall be presented to the Secretary-General of the Organisation, who shall transmit copies thereof to the
other member States of the Organisation and to the Secretary of the Court.
3. The jurisdiction of the Court shall comprise all cases concerning the interpretation and application of the provisions
of this Convention that are submitted to it, provided that the States parties to the case recognise or have
recognised such jurisdiction, whether by special declaration pursuant to the preceding paragraphs, or by a special
agreement.
169 Article 61(2) "In order for the Court to hear a case, it is necessary that the procedures set forth in Articles 48 to 50
shall have been completed".
170 Cerna, n. 140, p. 156.
171 Ibid. , p. 157.
172 The African Charter on Human and Peoples Rights was adopted on 27 June, 1981 in Nairobi, Kenya by the
Organisation of African Unity (OAU). It entered into force on 21 October, 1986. 50 out of 53 OAU Member States have
ratified the Charter.
173 Richard Gittleman, "The African Charter on Human and Peoples Rights: A Legal Analysis", Virginia Journal of
International Law , vol. 22 (1981), pp. 667-714.
174 The African Commission was established in 1987, "to promote human and peoples rights and ensure their protection".
175 Gittleman, n. 173, pp. 667-714.
176 Evelyn A. Ankumah, The African Commission on Human and Peoples Rights: Practice and Procedure (The Hague,
1996): Fatsahouguergouz, The African Charter on Human and Peoples rights: A Comprehensive Agenda for Human
Dignity and Sustainable Democracy in Africa (The Hague, Kluwer Law International, 2013).
177 Amnesty International has defined extra-judicial executions as "unlawful and deliberate killings carried out by order of a
government or with its complicity or acquiescence..." Killings which result from self-defence, deaths resulting from the
use of reasonable force in law enforcement, the use of death penalty with certain conditions discussed below, and
killing in war which are not forbidden under international law regulating the conduct of armed conflict, do not constitute
extra-judicial executions. Cf. Ankumah, n. 176, p. 113, fn. 349.
178 Communication No. 46/90, International Commission of Jurists, Rwanda.
179 The International Commission of Jurists apparently offered to finance a mission by the Commission to Rwanda.
However, the Commission did not accept the offer.
180 The delegates are Commissioners Amega who previously served as a UN representative in Rwanda, and Been Salem,
Special Rapporteur for Extra-judicial Executions in Africa.
181 Communication nos.88/93, and 91/93. These allege summary and extra-judiciary executions.
182 Ankumah, n. 176, p. 114.
183 Article 30 says, "An African Commission on Human and Peoples Rights, hereinafter called the Commission, shall be
established within the Organisation of African Unity to promote human and peoples rights and ensure their protection in
Africa".
Page 40 of 43
184 For further studies, see Emmanuel G. Bello, "The African Charter on Human and Peoples Rights: A Legal Analysis",
Recuil des Cours, vol. 194 (1985), Part-I, pp. 21-240; Birame Ndiaye, "The Place of Human Rights in the Charter of
OAU", in K. Vasak, ed., The International Dimensions of Human Rights (Paris, 1982), vol. 2, pp. 601-15; V.O.
Umozurike, "The African Charter on Human and Peoples Rights", American Journal of International Law , vol. 77
(1983), pp. 902-76; Timothy F. Yerima, "African Regional Human Rights Courts: Features and Comparative Critique
with the European and Inter-American Courts of Human Rights", Indian Journal of International Law , vol. 50 (4) 2010,
pp. 592-616; Takele Soboka Bulto, "Towards Rights-Duties Congruence: Extraterritorial Application of the Human
Rights to Water in the African Human Rights System ", Netherlands Quarterly of Human Rights , vol. 29 (4) 2011, pp.
491-523.
185 Article 35(1) of African Charter.
186 Article 34 of African Charter.
187 When the late Commissioner Mubanga Chipoya passed away in late 1991, few months after his term had been
renewed, he was replaced by Commissioner Ben Salem in June 1992 for the remaining five years of his term. When
Commissioner Ibingira resigned in 1989, he was replaced by Commissioner Umozorike for the remaining two years of
his term. Cf. Ankumah, n. 176, p. 15.
188 Article 42(1) of the African Charter.
191 Article 47 of the African Charter.
198 The invitation was received during the 11th session held in Tunis, Tunisia in 1992. The Commission accepted the
request and attached great importance to it.
199 Held in Lome, Togo, March, 1995.
200 See Final Communiqu of the 17th ordinary Session, held in Lome, Togo in 1995. Cf. Ankumah, n. 176, pp. 23-4.
203 Articles 60 and 61 of African Charter.
206 Bello, n. 184, p. 153.
207 Ankumah, n. 176, p. 116.
208 Ibid ., p. 117.
209 Ibid., p. 119.
210 Ibid. , p. 120.
211 Ibid. , p. 120.
212 Ibid .
213 Ibid ., p. 129.
214 Ibid., p. 130.
215 Ibid .
216 Ibid.
217 Ankumah, n. 176.
218 Ankumah, n. 176.
Page 41 of 43
219 Ibid., p. 177.

220 These Four Geneva Conventions are namely:
I. Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field;
II. Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed
Forces at Sea;
III. Convention Relative to the Treatment of Prisoners of War; and
IV. Convention Relative to the Protection of Civilian Persons in Time of War. See for Commentary, Jean S. Pictet,
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, ICRC, 1958).
221 Article 86 , "The...Parties recognise that a guarantee of the regular application of the present Convention will be found
in the possibility of collaboration between the Protecting Powers charged with the protection of the interest of the
belligerents".
222 See for details, International Legal Materials , vol. 17 (1977), pp. 1397-98; Herczegh Geza, Development of
International Humanitarian Law (Budapest, 1984); Hilaire Mccoubrey, International Humanitarian Law: The Regulation
of Armed Conflicts (Aldershot, 1990); Theodor Meron, Human Rights in Internal Strife: Their International Protection
(Cambridge, 1987); Jean Pictet, Humanitarian Law and the Protection of War Victims (Leiden, 1975); Rozemaryabi-
Saab, "The General Principles of Humanitarian Law According to the International Court of Justice", International
Review of the Red Cross , no. 259 (1987), pp. 367-78; G.I.A.D. Draper, "The Implementation and Enforcement of the
Geneva Conventions of 1949 and of the Two Additional Protocols of 1977", Recueil des Cours , no. 164 (1979), pp. 1-
54; Solomon T. Ebobrah, "Towards a Positive Application of Complementarily in the African Human Rights System:
Issues of Functions and Relations", European Journal of International Law , vol. 22 (3) 2011, pp. 663-689; Jeremie
Gilbert, "Indigenous Peoples Human Rights in Africa: the Pragmatic Revolution of the African Commission on Human
Rights and Peoples' Rights", International and Comparative Law Quarterly , vol. 60(1) 2011, pp. 245-262.
223 Similar Article 52 of the First Geneva Convention, 53 of the Second Geneva Convention, 132 of the Third Geneva
Convention and 149 of the Fourth Geneva Convention. This procedure has never been used.
224 Common Article I of the First, Second, Third and Fourth Geneva Conventions; and Protocol I, Art. 1 .
225 See Pictet, n. 218.
226 See Materials , n. 220, pp. 1429-30.
227 Articles 49 , 50 , 129 and 146 of the First, Second, Third and Fourth Geneva Conventions respectively.
228 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian
Law Applicable in Armed Conflicts, vol. 7 (1978), p. 76.
229 Article 3 .
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting
Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Person taking no active part in the hostilities, including members of armed forces who have laid down their arms
and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances
be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth,
or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any
place whatsoever with respect to the above mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) Outrages upon personal dignity, its particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a
regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by
civilised peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties
to the Conflict;
The Parties to the conflict should further endeavour to bring into force by means of special agreements, all or part of the
other provisions of the present Convention.
Page 42 of 43
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
230 Article 4 - Fundamental Guarantees:
1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty
has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They
shall in all circumstances be treated humanely without any adverse distinction. It is prohibited to order that there
shall be no survivors.
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph
1 are and shall remain prohibited at any time and in any place whatsoever:
(a) Violence to the life, health and physical or mental well being of persons, in particular murder as well as cruel
treatment such as torture, mutilation or any form of corporal punishment;
(b) Collective punishments;
(c) Taking of hostages;
(d) Acts of terrorism;
(e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution
and any form of indecent assault;
(f) Slavery and slave trade in all their forms;
(g) Pillage
(h) Threats to commit any of the foregoing acts.
3. Children shall be provided with care and aid they require, and in particular:
(a) they shall receive education, including religious and moral education, in keeping with the wishes of their
parents, or in the absence of parents, of those responsible for their care;
(b) all appropriate steps shall be taken to facilitate the reunion of families temporarily separated;
(c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups
nor allowed to take part in hostilities;
(d) the special protection provided by this Article to children who have not attained the age of fifteen years shall
remain applicable to them even if they take a direct part in hostilities despite the provisions of sub-paragraph
(c) and are captured;
(e) measures shall be taken, if necessary, and whenever possible with the consent of their parents or of persons
who by law or custom are "primarily responsible for their care", to remove children temporarily from the area
in which hostilities are taking place to a safer area within the country and ensure that they are accompanied
by persons responsible for their safety and well-being.
231 See, Materials , n. 202, pp. 1447-48, Article 13(2) , Clause 14 and 17 respectively.
232 Draper, n. 202, pp. 1-54.
233 Nicaragua v. U.S. , ICI Reports (1986), p. 114.
234 The Advisory Opinions on "Is the Threat or use of Nuclear Weapons in any circumstances permitted under
International Law?", International Legal Materials , vol. 35 (1996), p. 881.
235 Yogesh Kumar Tyagi, "Human Rights and Non-Governmental Organisations: A Case Study of the Amnesty
International" (M.Phil. dissertation, JNU, 1979).
Page 43 of 43
236 See for further reading, David Weissbrodt, "The Role of International Non-governmental Organisations in the
Implementation of Human Rights", Texas International Law Journal , vol. 12 (1977), pp. 293-312; David Weisbrodt,
"The Contribution of International Nongovernmental Organisations to the Protection of Human Rights", in Theodore
Meron, ed., Human Rights in International Law (Oxford, 1984), vol. II, pp. 403-33; Shestack, "Sisyphus Endures: The
International Human Rights NGO", New York Law School Review , vol. 24 (1978), pp. 89-104; Theo van Boven, "The
Role of Non-Governmental Organisations in International Human Rights Standard Setting: A Pre-requisite of
Democracy", California Western International Law Journal , vol. 20 (1990), pp. 207-26. Yogesh Kumar Tyagi, Human
Rights and Non-Governmental Organisations: A Case Study of the Amnesty International (M.Phil. dissertation,
Jawaharlal Nehru University, New Delhi, 1979).
237 More than 700 NGOS have accredited status with the United Nations Economic and Social Council. UN Doc. E/INC/62
(1972). Among them the organisations which have full-time international human rights programs are Amnesty
International, Anti-Slavery Society, Commission of the Churches on International Affairs, International Association of
Democratic Lawyers, International Commission of Jurists, International Committee of the Red Cross, International
Federation of Human Rights.
238 The International Bill of Human Rights comprises the documents: (a) The Universal Declaration of Human Rights; (b)
The International Covenant on Civil and Political Rights; (c) The International Covenant on Economic, Social, and
Cultural Rights; (d) Optional Protocol I; (e) Optional Protocol II.
239 For example, internal political liberalisation and international human rights pressure apparently have combined to result
in the release of some political detainees after others were executed. Review of International Commission of Jurists ,
No. 13 (1974), p. 19; "Amnesty International Appeals to India to Release 30,000 Detainees During Strike Crisis", AI
Newsletter , June, 1974.
240 See, Report of an Amnesty International Mission to Israel and Syrian Arab Republic to investigate allegations of ill-
treatment and torture, 10-24 October, 1974 (1975). Interestingly, sometimes an NGO is invited by a government to visit
the country and to act as an impartial international factfinding on allegations of human rights violations. See
International Commission of Jurists , Report on the Events in Panama, January 9-12, 1964 (1965); International
Commission of Jurists , Report on the British Guyana Commission of Inquiry (1965).
241 Study of the Right of Everyone to be Free From Arbitrary Arrest, Detention and Exile, UN Doc. E/CN.4/Sub
2/200/Rev.1 (1960), p. 64.
242 See UN Charter Article 87 .
243 See, GA Res.1761, 17 UN GAOR, Suppl (No. 17) 9, UN Doc. A/5217 (1961).
244 UN Doc. A/10156 (1975), p. 22.
245 Article 19 of the European Convention.
End of Document
CHAPTER 4 Implementation Mechanism for Non-Derogable Rights at The
National Level: The Indian System
Manoj Kumar Sinha
Human Rights
CHAPTER 4 Implementation Mechanism for Non-Derogable Rights at

The National Level: The Indian System
The Indian experience on the promotion and protection of human rights at the national level, despite having
numerous social and economic problems, most importantly its stark poverty, may be of some interest at the
international level, particularly to countries in Asia and Africa. Indias experience may reveal with clarity that
democracy, freedom and rule of law are not luxuries which only the western societies can afford.
Considering Indias extensive territorial domain, the vastness of its population and the complexity of social
structure, cases of violation of rights, whether attributable to the agencies of the State or to the private individuals or
groups, may occur despite its best efforts. 1
It is pertinent here to highlight the problems in implementation of human rights highlighted by commentators like
V.S. Mani. 2 They are as follows:
(1) Human rights are evolving ideals which the human society cherishes, no nation in the world can verily
claim to have lived up to these ideals.
(2) Nations differ in the level of rights performance achieved, and often the level of rights performance is
relatable to the level of economic development achieved.
(3) The politics of human rights, both domestic and international often casts a veil of exaggeration, if not
mendacity, on issues of human rights violations.
(4) Wild allegations of rights violations must be distinguished from those supported by verifiable proof.
(5) The problems of criminal law overlap those of human rights.
(6) Situations related to terrorism and threats to territorial integrity of a nation actively aided from across the
border, it is at times difficult to sit in judgement as to the proportionality of use of force by the State against
groups and individuals.
This chapter will examine the implementation mechanism available under the Indian Constitution keeping in mind
these considerations. For a proper understanding of the implementation mechanism under the Indian Constitution, it
is essential here to cover the crucial role played by judiciary, executive and legislature in implementation of human
rights in general.
First and foremost task here is to identify what are the non-derogable rights enshrined under the Indian
Constitution. This Chapter will also cover enforcement provisions under the Indian Constitution, the recently
established National Human Rights Commission, and the roles of NGOS and the Media in the implementation of
Human Rights.
I. THE CONSTITUTIONAL REGIME
The Indian Constitution3 envisages a noble democracy which ensures freedom under the law and the dignity of the
individual. Part III of the Indian Constitution enumerates the fundamental rights 4 and Part IV sets out the Directive
Principles of State Policy. 5
Page 2 of 27
CHAPTER 4 Implementation Mechanism for Non-Derogable Rights at The National Level: The Indian System
The Indian Constitution provides certain rights for individuals in Part III of the Constitution which are known as the
"fundamental rights". The word "fundamental" means that these rights are inherent in all human beings and are
basic and essential for the individual. These rights represent the basic value of a civilised society and the
Constitution makers declared that they should be given pride of place in the Constitution. These rights are aimed at
protecting the dignity of the individual and create conditions in which every human being can develop his
personality to the fullest extent. 6 No law, ordinance, custom, usage or administrative order can abridge or take
away ones fundamental rights. 7
There are two fundamental human rights under Indian Constitution which have acquired the status of non-
derogable human rights. They are contained in Articles 20 and 21 respectively.
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.
2. No person shall be prosecuted and punished for the same offence more than once.
3. No person accused of any offence shall be compelled to be witness against himself.
Article 21 provides:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The Constitutional rights under Article 20 prohibits ex-post facto operation of criminal law and confers immunity
against double jeopardy and protection against self-incrimination. The Supreme Court, in Maneka Gandhi v. Union
of India 8 widened the ambit of Article 21 of the Constitution which provides that no person shall be deprived of his
life and personal liberty except according to procedure established by law. This judgement marks a watershed in
the history of the Constitutional law of the country. In fact, the Supreme Court of India, for the first time, took the
view that Article 21 affords protection not only against executive action but also against legislation, that no law can
deprive a person of his life or personal liberty unless it prescribes a procedure which is reasonable, fair and just and
that if it is not, the Court will strike down the law as invalid. After this judgement, Article 21 assumed a new
dimension and the Supreme Court introduced substantive and procedural due process in the Constitutional law of
India through creative interpretation inspired by judicial activism. 9
II. DIRECTIVE PRINCIPLES OF STATE POLICY AND INTERNATIONAL OBLIGATIONS
The Indian Constitution has laid down the implementation procedure in Parts III and IV. While the former
guarantees certain rights to the individual, the latter gives direction to the State to provide economic and social
rights to its people in specified matters. Together they constitute the conscience of the Constitution. However, the
rights guaranteed and provided in the Constitution are required to be in conformity with the Covenant on Civil and
Political Rights and the Covenant on Economic, Social and Cultural Rights in view of the fact that India has become
a party to these Covenants by ratifying them. 10The Constitution of India lays down clearly the bases on which
foreign policy should be framed and respected, 11Article 51 of the Indian Constitution highlights this principle.
The State shall endeavour to:
(a) promote international peace and security;

(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organised peoples with one
another; and
(d) encourage settlement of international disputes by arbitration.
Page 3 of 27
The key provision to the Directive Principles of State Policy is found in Article 37 which says:
The provisions contained in this part shall not be enforceable by any Court, but the principles therein laid down are
nevertheless fundamental in the governance of the country it shall be the duty of the State to apply these principles in
making law.
The reason to make these principles judicially non-enforceable appears to be that the Directive Principles impose
positive obligations on the State to secure a new socio-economic order for the promotion of the welfare of the
people of India and that this cannot be achieved here and now. It is clear from Article 12 that the term "the State"
for the purpose of Parts III and IV of the Constitution, includes the constituent States of the Union of India. The
basic thrust of Article 51 is international peace and security, international relations and international obligations,
matters which, under the Indian Constitution, fall exclusively within the domain of the Union. 12
In reality, Article 51(c) does not deal with the enforcement of implementation of treaties, it only obligates the State
to foster respect for "international law and treaty obligations" in inter-State relations. This Article embodies the
object of India in the international sphere. It does not lay down that international treaties or agreements entered into
by India shall have the force of municipal law without appropriate legislation undertaken under Article 253 .
Article 253 provides:
Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole
or any part of the territory of India for implementing any treaty agreement or convention with any other country or countries
or any decision made at any international conference, association or other body.
This Article is in conformity with the objectives as declared by Article 51(c) , i.e., treaty-making and implementing
of treaties. Article 51(c) does not deviate from the well-established principle that every State is bound by the
principles of international law.
Technically speaking, obligations arising from treaties are not judicially enforceable in India unless backed by
legislation. 13 In other judgements it was highlighted that there was, however, no need to incorporate a treaty into
law if its implementation was possible at the administrative level without legislative endorsement. 14
The State is directed to promote the welfare of the people by securing social order in which justice, social,
economic and political, shall form the institution of national life. The Directive Principles are intended to ensure
dignity of human life and the Parliament and State Legislatures are to secure these objectives.
III. EMERGENCY PROVISIONS 15
A remarkable feature of the Indian Constitution is the way in which the normal, peace time federation can be
adapted to an emergency situation. The Constitution envisages mainly three types of emergencies: (i) emergency
arising from a threat to the security of India; (ii) breakdown of Constitutional machinery in a State; (iii) financial
emergency. 16
Article 352(1) of the Indian Constitution17 empowers the President to make a declaration of emergency by issuing
a Proclamation of Emergency:
If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof
is threatened, whether by war or external aggression or internal disturbance, he may, by proclamation, make a declaration
to that effect.
Before 1978, emergency could be declared because of war, external aggression or internal disturbance. The
expression "internal disturbance" was too vague and broad. The 44th Amendment substituted the words "armed
rebellion" for "internal disturbance" 18 with a view to excluding the possibility of an emergency being proclaimed on
the ground of internal disturbance only not involving armed rebellion. This change, effected to prevent recurrence of
another 1975-77 type of emergency, has somewhat restricted the scope of what may be called an internal
emergency.
Page 4 of 27
A Proclamation issued under Article352(1) may be varied or revoked by a subsequent proclamation. 19 The 44th
Amendment has introduced a clause 20 to the effect that the President shall not issue a proclamation of emergency
or a proclamation varying the same, unless the decision has been taken by the Union Cabinet 21 and that such a
proclamation may be issued has been communicated to him in writing. This implies that the decision to issue such a
proclamation has to be arrived at collectively by the Cabinet and not by the Prime Minister alone without consulting
the Cabinet as happened in 1975 when the President proclaimed emergency on the advice of the Prime Minister
and the Cabinet was later presented with a fait accompli.
It has so far been the practice to treat the question whether or not the security of India is threatened as being within
the subjective satisfaction of the President acting on the advice of the Cabinet. The question was raised several
times whether this satisfaction of the President was justiciable. In Bhut Nath v. West Bengal, 22 the Supreme Court,
refusing to hold the continuance of the emergency under Article 352 "void", stated that the question is "a political,
not justiciable issue and the appeal should be to the polls and not to the Courts". However, to put the matter beyond
doubt, the Constitution (Thirty-Eighth Amendment) Act, 1975 amended the Constitution by inserting clause 5 in
Article 352 which declared that the "satisfaction" of the President mentioned in Article 352(1) and (3) "shall be
final and conclusive" and "shall not be questioned in any Court on any ground".
But by the 44th amendment the situation was once again brought back to what had existed before the 38th
amendment. Thus, it will be for the Supreme Court or even a High Court to decide whether it will treat the
"satisfaction" of the President to issue a proclamation of emergency, or to vary it or to continue it as "final" and
"non-justiciable" or as subject to judicial review on some grounds. 23
As a result of the declaration of emergency, the President becomes more powerful and assumes a number of
additional powers and functions to those already provided under the Constitution during normal times. 24 The
powers of the Union Government extends to the giving of direction to the States as to the manner in which the
executive power of the State is to be exercised. The financial arrangements between the State and the Union as
provided in Articles 268 to 279 may be altered.
During the operation of an emergency Article 358 suspends the fundamental rights guaranteed by Article 19 , 25
authorising the State during the period of proclamation of emergency to make laws in derogation of the rights
conferred in Article 19 and to take executive action under those laws.
Article 358 :
(1) While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is
threatened by war or by external aggression is in operation, nothing in Article 19 shall restrict the power of
the State as defined in Part III to make any law or to take any executive action which the State would but
for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the
extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except
as respects things done or omitted to be done before the law so ceases to have effect:*Provided that
**[where such proclamation of emergency] is in operation only in part of the territory of India, any such law
may be made, or any such executive action may be taken, under this Article in relation to or in any State or
Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in
so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to
the part of the territory of India in which the Proclamation of Emergency is in operation.
(2) Nothing in clause (1) shall apply:
(3) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of
emergency in operation when it is made; or
(4) to any executive action taken otherwise than under a law containing such a recital.
Article 359 does not 26 suspend any fundamental rights of its own force, but authorises the President to deprive an
individual of his right to approach any court for the enforcement of any or all of the rights conferred by Part III of the
Constitution, except Articles 20 and 21 .
Both Articles 358 and 359 (1-A) provide that as soon as the proclamation of emergency ceases to operate, the
effect of the suspension vanishes except in respect of things done or omitted to be done during emergency. It would
be wrong to hold that the protection for otherwise invalid laws during emergency is converted into their validation
which derogates from the rights conferred under the Constitution. A law inconsistent with the fundamental rights
Page 5 of 27
made during the emergency would not be validated, but its invalidity would only be suspended. 27 Quite possibly,
the chastened, post-emergency Supreme Court of today would not hesitate to be the arbiter of permissibility of such
laws, even during an emergency.
Emergency and the Writ of Habeas Corpus
The issue relating to the suspension of the writ of habeas corpus during the period of emergency declared under
Article 352 came up before the Supreme Court in the controversial case of A.D.M. Jabalpur v. Shivakant Shukla.
28
In 1975, the President on the advice of the Prime Minister proclaimed emergency under Article 352 on the ground
that the security of India was threatened by internal disturbance and also issued an order under Article 359
suspending the right of access to the courts for the enforcement of fundamental rights enshrined in Articles 14, 21
and 22. 29 The Parliament, thereafter, amended the Maintenance of Internal Security Act, 1971 and conferred
extraordinary powers on the government to detain a person without trial. A question arose whether the writ of
habeas corpus under Article 226 could be issued to release a detenu on the ground that his detention was
inconsistent with the provision of the MISA or was mala fide.
It was contended that the object of the Presidential order under Article 359(a) was to remove fetters on the
legislature so that during emergency it was free to make laws even in derogation of the fundamental rights
mentioned in the order and that suspension of the right to enforce fundamental rights could not confer any right on
the government to flout the law, be it during an emergency or times of peace. It was further contended that the
obligation on the government to act in accordance with law stemmed from the inherent compulsion of the rule of
law, and the suspension of Article 21 did not automatically entail the suspension of the rule of law. The inquiry in
the habeas corpus petition raised the question whether the detention is justified by law, and it was not shutout by
the suspension of the right to enforce fundamental rights, otherwise it would necessarily mean that during the
emergency no person had any right to life or personal liberty. The Supreme Court, with the dissent of Khanna J.,
legitimised the suspension of the writ of habeas corpus during the period of emergency on the basis of higher
claims on national security. In other words, the detenu had no locus standi to file the writ petition and question the
reasons or grounds of detention.
The majority view in Shivakant Shukla case was completely overturned by the Forty-Fourth Amendment of the
Constitution as well as subsequent judicial interpretation thereof and therefore it is no longer good law.
The ultimate justification for an emergency in a democratic State is to enable it to preserve vital values of a
democratic society temporarily endangered on account of unexpected situations of exceptional gravity. Emergency
cannot be declared for undermining the basis of democracy. The rule of law is an indispensable feature of
democracy. In the absence of the rule of law, lawlessness predominates, especially government lawlessness, when
there is no authority to question the governments action, no mechanism to control it and no institution to make it
accountable and to check its excesses.
IV. INDIAN CONSTITUTION AND DUE PROCESS OF LAW
The genesis of due process of law can be traced back to the Indian Constituent Assembly Debates, 1947-49. 30
The first time it was reflected in K.M. Munshis draft in its chapter on Rights to Freedom which provided:
No person shall be deprived of his life, liberty or property without due process of law.
The other provision, which in effect elucidated the "due process" clause guaranteed to every person the right to be
informed within twenty four hours of his deprivation of liberty by what authority and on what grounds the action was
taken. It had laid down further that no person would be subjected to prolonged detention preceding trial, to
excessive bail or unreasonable refusal of bail, to inhuman or cruel punishment or to denial of adequate safeguards
and proper procedure. 31 B.R. Ambedkar not only strongly supported this view in his draft Article, but also included a
provision that the State should not deprive any person of life, liberty or property without "due process of law". 32
The Sub-Committee on Fundamental Rights discussed the subject on 25, 26 and 29 March, 1947 and included in
its draft two clauses 11 and 29: 33
11. No person shall be deprived of his life, liberty or property without due process of law.
Page 6 of 27
29. No person shall be subjected to prolonged detention preceding trial, to excessive bail, or unreasonable refusal thereof,
or to inhuman or cruel punishment.
Commenting on the draft report, B.N. Rau pointed out that clause 11 had been adopted from the Fifth and the
Fourteenth Amendments of the Constitution of the United States, while clause 29 was based on the Sixth and the
Eight Amendments of that Constitution.
B.N. Rau, the Constitutional Advisor, reproducing clause 16 ofhis Draft Constitution of October, 1947, restricted the
scope of the expression "liberty" by adding the word "personal" before it. He justified the change on the ground that
the word "liberty" by itself might be construed widely unless it was qualified by the word "personal". The change had
the approval of the Drafting Committee which accepted it at its meeting on 31 October, 1947 despite Munshis
opposition. 34
Meanwhile, during his visit to the United States of America, B.N. Rau had discussion with Justice Frankfurter of the
United States Supreme Court who was of the opinion that the power of review implied in the "due process" clause
was not only undemocratic because it gave a few judges the power of vetoing legislation enacted by the
representatives of the nation, but also threw an unfair burden on the judiciary. In fact, this view was communicated
by B.N. Rau to the Drafting Committee which introduced a far-reaching change in the clause by replacing the
expression "without due process of law" by the expression "except according to procedure established by law". The
text of the provision, thus redrafted by the Committee, was incorporated in Article 15 of the Draft Constitution.
No person shall be deprived of his life or personal liberty except according to procedure established by law nor shall any
person be denied equality before the law or the equal protection of the law within the territory of India. 35
Draft Article 15 evoked a keen controversy regarding the respective merits of the expressions "due process of
law" and "procedure established by law" when the issue came up for consideration in the Assembly on 6
December, 1948. Almost the entire debate centred on the controversy, with all the speakers including Munshi,
favouring the restoration of the expression "due process of law". Syed Karimuddin and Mehboob Ali Beg pointed
out that the use of the phrase "procedure established by law" stripped a court of the power to go into the merits and
demerits of the grounds on which a person was deprived of his life or liberty; a court could not look into the injustice
of any law since its function would cease the moment it was satisfied that the "procedure established by law" had
been complied with. 36
Thakurdas Bhargava explaining the import of the use of the words "without due process of law" highlighted that if
this phrase was used, the courts could go into the question of substantive as well as procedural law; in other words,
the courts would have the right to go into the question whether a particular law enacted by the Parliament was just
or not, whether it was good or not, as a matter of fact, it protected the liberties of people; and if the Supreme Court
came to the conclusion that any law was unconstitutional, unreasonable or unjust, such a law would cease to have
effect. Z.H. Lari expressed the opinion that the essence of the "due process of law" provision was two-fold. There
would first be an enquiry before a man was condemned, and then there would be a judgement after trial. If the
words "procedure established by law" were adopted, it would mean that the legislature was all powerful. He said:
Men as well as assemblies or any mass of people are subject to passing emotions...and if the present state on things,
particularly keeping in view the Constitution that we are going to have, namely a parliamentary government, the legislature
is controlled by a Cabinet, which means by the executive. 37
The lone voice in support of "procedure established by law" as against the "due process" provision, Alladi
Krishnaswami Ayyar, argued that the verdict of three or five gentlemen sitting as a court of law on what exactly was
"due process" according to them in a particular case could not be regarded as more democratic than the expressed
wishes of the legislature or the action of an executive responsible to the legislature. He expressed his fear that the
clause "due process of law" might prove to be a great handicap for all social legislation, for the ultimate relationship
between the employer and the labour, for the protection of children and for the protection of women.
The feeling in favour of incorporating in the Constitution "due process of law" even outside the Assembly was so
deep that the vote of the Assembly against it evoked a great deal of criticism. It was felt that draft Article 15 gave
to Parliament a carte blanche to provide for the arrest of any person under any circumstances it deemed fit. 38
Page 7 of 27
Introducing this Article in the Assembly on 15 September, 1949, B.R. Ambedkar observed that they were "making,
if I may say so compensation for what was done in passing Article 15 ", while it might not satisfy those who
believed in the absolute personal freedom of the individual, he claimed, it contained the substance of the law of
"due process". The first two clauses of the Article embodied two of the most fundamental principles of justice
recognised by every civilised country and which were already contained in the Criminal Procedure Code. 39
Ambedkar was satisfied that the draft Article provided adequate protection against arbitrary or illegal arrests, and
that the inclusion of further safeguards against inroads by the executive and the legislature upon the personal
liberty of the individual, urged by some members, was unnecessary. 40
The new draft Article 15-A , as amended by the suggestions made or accepted by Ambedkar, was adopted by the
Assembly:
Draft :
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 be denied the grounds for such arrest nor shall be denied the right to consult and
be defended by a legal practitioner of his choice.
2. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a
period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to
the Court of the magistrate and no such person shall be detained in country beyond the said period without the
authority of a magistrate.
3. Nothing in Clauses (1) and (2) of this Article shall apply:
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested under any law providing for preventive detention;
Provided that nothing in sub-clause (b) of clause 3) of this Article shall permit the detention of a person
for a longer period than three months unlessa Advisory Board consisting of persons who are or have
been or are qualified to be appointed as judges of a high court has reported before the expiration of the
said period of such detention; or (3-a) where an order is made in respect of any person under sub-clause
(b) of clause (3) of this Article, the authority making an order shall, as soon as may be, made and afford
him the earliest opportunity of making a representation against the order.
3-b. Nothing in clause (3-a) of this Article shall require the authority making any order sub-clause (b) of clause (3) of
this Article to disclose the facts which such authority considers to be against the public interest to disclose.
4. Parliament may by law prescribe the circumstances under which, and the class or classes of cases in which, a
person who is arrested under any law providing for preventive detention may be detained for a period longer than
three months and also the maximum period for which any such person may be so detained, and Parliament may
also prescribed by law the procedure to be followed by an Advisory Board in an enquiry under clause (a) of the
proviso to clause (3) of this Article.
In the course of the revision, the Drafting Committee renumbered draft Articles 15 and 15-A as Articles 21 and 22
respectively. The other changes were: (i) the "legal equality" provision which had been coupled with the "Protection
of life and liberty" provision in draft Article 15 was separated and transferred under the heading "Right to Equality"
as Article 14 , the renumbered Article 21 being confined to guaranteeing that no person would be deprived of life
and personal liberty (ii) the provision to clause (3) of draft Article 15-A was converted into an independent clause
(4) in the renumbered Article 22 ; and (iii) clauses (3-a)(3-b), and (4) were redrafted and renumbered as clauses
(5),(6) and (7) respectively.
Interestingly when the text of Article 21 thereafter remained unaltered, that of Article 22 underwent further
modifications when the revised Draft Constitution was considered by the Assembly on 14, 15 and 16 November,
1949. The provisions of Article 22 was severely criticised and several amendments were moved to it on behalf of
the Drafting Committee itself. T.T. Krishnamachari moved two amendments which sought to redraft clauses (4) and
(7) so as to indicate clearly that there would be a maximum period laid down by Parliament for which any person or
Page 8 of 27
any class or classes of persons could be detained by any law providing for such detention. Even in cases where the
Advisory Board approved of detention beyond three months, no authority in India could in any circumstances order
the detention of a person beyond the maximum limit so laid down by Parliament. 41
The Drafting Committees amendment as moved by Krishnamachari was adopted and Article 22 of the
Constitution assumed its present form. 42 The two Articles as adopted read:
No one shall be deprived of his life or personal liberty except according to procedure established by law.
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 be denied the right to consult, and to be defended by, a legal practitioner
of his choice.
2. Every person who is arrested and detained in custody shall be produced before the nearest magistrate,
within a period of twenty-four hours of such arrest excluding the time, necessary for the journey from the
place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the
said period without the authority of a magistrate.
3. Nothing in clauses (1) and (2) shall apply
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
4. No law providing for preventive detention shall authorise the detention of a person for a longer period than
three months unless:
(a) An Advisory Board consisting of persons who are, or have been, or one qualified to be appointed as,
judges of a High Court has reported before the expiration of the said period of three months that there is in
its opinion sufficient cause for such detention: provided that nothing in this sub-clause shall authorise the
detention of any person beyond the maximum period prescribed by any law made by Parliament under
sub-clauses (a) and (b) of clause (7).
5. When any person is detained in pursuance of an order made under any law providing for preventive
detention, the authority making the order shall, as soon as may be, communicate to such person the
grounds on which the order has been made and shall afford him the earliest opportunity of making a
representation against the order.
6. Nothing in clause 5 shall require the authority making any such order as is referred to in that clause to
disclose facts such authority considers to be against the public interest to disclose.
7. Parliament may by law describe
(a) The circumstances under which, and the class or classes of cases in which, a person may be detained for
a period longer than three months under any law providing for preventive detention without obtaining the
opinion of an Advisory Board in accordance with the provisions of sub-clause (a) clause (4);
(b) the maximum period for which any person may in class or classes of cases be detained under any law
providing for preventive detention; and
(c) to procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)
A substantial member of the framers of the Indian Constitution were in favour of keeping the "due process of law"
provision under Indian Constitution, although this phrase was replaced by "procedure established by law". 43
It was not until 1978 that the Supreme Court infused life into Article 21 by subjecting State action interfering with
life or liberty to a test of reasonableness; requiring not only that procedures be authorised by law that they are
"right, just and fair" 44 and not arbitrary, fanciful or oppressive. The Court has also expanded the horizons of
"procedure established by law" which bears its testimony in the Hussainara Khatoon 45 case. The post-emergency
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Supreme Court was indeed a different incarnation. Having learnt the bitter lessons of emergency, it had its lost
prestige to retrieve, it had to redefine its Constitutional role. From now on there would be no difference between
"due process of law" and "procedure established by law".
V. IMPLEMENTATION MECHANISM AT THE NATIONAL LEVEL
The fundamental rights enumerated in Part III of the Constitution would remain ineffective if there is no strict
implementation mechanism. The framers of the Indian Constitution were fully aware that the supreme importance of
judicial remedies to enforce fundamental rights were evident from the fact that not only did they expressly lay down
that any law which contravened any of the fundamental rights should be "void", but they also incorporated in the
Constitution itself certain extraordinary remedies for enforcing these rights against any deviant State action,
legislative or executive. Further, the right to make use of these Constitutional remedies is itself made a fundamental
right guaranteed by the Constitution, so that nothing short of an amendment of the Constitution can take away the
power of the superior courts, that is, the Supreme Court and the State High Courts, to apply these Constitutional
remedies for the protection of individual rights guaranteed by the Constitution. The courts have made it clear that
they cannot refuse to entertain an application for an appropriate Constitutional remedy where a fundamental right
has been infringed. Indeed, it is doubtful if powers of the High Courts and the Supreme Court can be abridged even
by a Constitutional amendment. 46
Justiciability of Fundamental Rights
The justiciability of fundamental rights is itself guaranteed under Article 32 which provides:
1.The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part
is guaranteed.
2.The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights
conferred by this part.
3.Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law
empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the
Supreme Court under Clause (2).
4.The right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution.
Article 32 has been described as "the Cornerstone of the democratic edifice", 47 as "the protector and guarantor of
fundamental rights", 48 or as the "qui vive". 49 In one of the judgements the Apex Court held that it is the duty of the
courts to guard the remedial fundamental rights and to protect it "zealously and vigilantly". 50
The High Courts have the power under Article 226 that the fundamental rights can be enforced by moving the
High Courts. Indeed, the High Courts powers are broader than those of the Supreme Court.
The responsibility for the enforcement of the fundamental rights lies on the Supreme Court by virtue of Article 32 .
It is often alleged that this would involve the Court in making a decision on policy, 51 which in reality is a matter to be
left to the legislature, and that this would contravene the Constitutional framework for the separation of powers. The
general principle is that any person whose fundamental right is violated can seek remedy under Article 32 of the
Constitution. The violation of a fundamental right of the petitioner is the condition precedent for moving the Court
under Article 32 . 52 To be actionable, it is not necessary for actual infringement of the fundamental right, a petition
can be moved even if there is an imminent danger of infraction of a fundamental right. 53
It appears from above discussion that the primary duty of the Supreme Court is to set right the violation of the
fundamental right of concerned individual. Secondly, it would have to ensure that the State is compelled to observe
the law, in view of interpreting its duty under Article 32 and that it has always attempted to redress substantive
violations of the rights rather than refuse relief on the basis of technicalities.
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VI. THE WRITS
An important aspect of the Indian Constitution is the jurisdiction it confers on the Supreme Court and the High
Courts to issue writs. Under Article 32 the Supreme Court and under Article 226 , the High Courts have power to
issue orders, directions or writs including writs in the nature of habeas corpus, mandamus, prohibition, certiorari and
quo warranto for the enforcement of the fundamental rights. For the High Courts this power is available for "any
purpose", including the enforcement of any other legal rights as well. These writs are indeed a contribution of British
Constitutional jurisprudence. 54
(a) Habeas Corpus
The fundamental right to personal liberty is meaningless if there does not exist the writ of habeas corpus. 55 The
writ of habeas corpus is used to secure the release of a person who has been detained unlawfully or without legal
justification. 56 The writ of habeas corpus sub jiciendum as it was originally named, has proved to be a very effective
legal remedy to secure personal liberty, it enables an immediate determination of a persons right to freedom. 57 In
India, detention may be unlawful if, inter alia, it is not in accordance with law, 58 or the procedure established by law
has not been followed in detaining a person, 59 or there is no valid law to authorise detention or the law is invalid
because it infringes a fundamental right, or the legislature enacting it exceeds its limits.
The purpose of the habeas corpus is to secure the release of a detenu from unlawful detention and not to punish
the detainee. 60 The detention should not contravene the provisions of Article 22 , which says, if a person who is
not produced before a magistrate within 24 hours of his detention is entitled to be released. 61 The power of
detention vested in an authority if exceeded, abused or exercised mala fide makes the detention unlawful. 62 The
efficacy of the habeas corpus depends, to a large extent, on the operative part of the law under which the
curtailment of an individuals liberty is authorised, as for example, the Preventive Detention Act, which has given rise
to numerous cases on this writ, authorises detention in the subjective satisfaction of administrative officers and the
scope left for judicial review is thus very limited. 63
(b) Mandamus
Mandamus is a command issued by a court asking a public authority to perform a public duty belonging to its office.
64 For example, when a tribunal omits to decide a matter which it is bound to decide, it can be commanded to
determine the question which it has left undecided. 65Mandamus can be granted only when a legal duty is imposed
on the authority in question and the petitioner has a legal right to compel the performance of his duty. 66
A mandamus also lies where the discretion is exercised on irrelevant or extraneous considerations or where the
exercise of discretion is delegated to someone else or where its exercise is improperly declined. 67 But where the
discretion has not been exercised in good faith the court would not intervene; it is not the function of the court to
substitute their wisdom and discretion for that of the persons to whose judgement the matter is entrusted by the law.
68
(c) Certiorari
The writ of certiorari is issued to a body acting in a judicial or quasi-judicial manner and not to one which acts in a
purely administrative manner. 69 In modern law c ertiorari goes to a quasi-judicial body when it violates the
principles of natural justice 70 when it assumes jurisdiction which it does not possess or where the order passed by
it contains an error of law apparent on the face of record. Certiorari would be available against administrative bodies
not having any quasi-judicial obligation, if they affect rights of individuals without conforming to the principles of "fair
play". 71
In T.C. Bassapa v. T. Nagappa, the Court observed:
One of the fundamental principles in regard to the issuing of a writ of certiorari, is that writ can be availed of only to remove
or adjudicate on the validity of judicial acts. The expression "judicial acts" includes the exercise of quasi-judicial functions by
administrative bodies or other authorities or persons obliged to exercise such functions and used in contrast with what are
purely ministerial acts. The second essential feature of a writ of certiorari is that the control which is exercised through it
over judicial or quasi-judicial tribunals or bodies is not in appellate but supervisory capacity. In granting a writ of certiorari
the superior court does review or reweigh the evidence upon which the determination of the inferior tribunal purports to be
based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its
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own views for those of inferior tribunal. 72
It is already established that these writs lie to control the administrative act also if there is a duty on the person or
authority acting administratively to act fairly. The landmark English decisions propounding this view, are Ridge v.
Baldwin, 73 and In Re H.K., 74 and the leading Indian decisions are A.K. Kraipak v. Union of India, 75 and Maneka
Gandhi v. Union of India., 76
(d) Prohibition
The writ of prohibition is issued to prevent a court or quasi-judicial tribunal from exceeding its jurisdiction, 77 or
acting contrary to natural justice. The object of prohibition is prevention rather than cure. It differs from certiorari not
so much in its nature as in the fact that it is issuable at a stage when the matter is being proceeded with and has
not yet been disposed of. After disposal of the matter, the proper writ is certiorari for it is the decision to be
quashed. Prohibition is issued only if there are proceedings pending in a court or a quasi-judicial body. Prohibition
restrains the adjudicatory body concerned from proceeding further in excess of jurisdiction or against natural justice.
(e) Quo Warranto
Quo warranto is a discretionary remedy which the Court may grant or refuse according to the facts and
circumstances of each case. The Court may refuse it where the application was actuated by ill-will or malice, or
ulterior motive. 78 The Constitution of India retains the writ of quo warranto under Articles 32 and 226.
These are five writs available under Article 226 , but the most effective writ among all these available writs is
habeas corpus, which is directly related with personal liberty.
VII. ACCESS TO PUBLIC INTEREST LITIGATION
Access to justice is one of the most basic human rights and without its realisation many of the human rights may
stay merely on paper. The Indian judiciary has tried to bring law into the service of the poor and oppressed. The
courts have widened its jurisdiction for enforcement of fundamental human rights under Public Interest Litigation
(PIL). 79 Unlike the case of PIL, in the United States, the PIL movement in India has been almost entirely initiated
and led by the judiciary.
In India, PIL is channelled through two basic ways. First, if the complaint is of a "legal wrong", the appropriate
forum is the High Court of the State under Article 226 of the Constitution. Second, if a fundamental right is alleged
to have been violated, the remedy may be sought from the High Court or directly from the Supreme Court. 80
The Supreme Court has thrown its doors open by broadening the doctrine of locus standi and making it possible for
the problems of the poor to be brought before the courts. The Indian Supreme Court in Maharaj Singh v. Uttar
Pradesh, 81 has discussed about locus standi. Since this case, the Indian approach to PIL has extended the rules of
standing to the point where they may be said to have ceased to present any real obstacle to the PIL as long as it
does not amount to abuse of process of the court. PIL has been initiated by individuals on behalf of other individuals
and groups, by academicians, journalists and by many social action organisation. 82
The Supreme Court has in the Judges Appointment and Transfer case 83 said that though the ordinary rule of
Anglo-Saxon jurisprudence is that an action can be brought only by a person to whom legal injury has been caused,
this rule can and must be departed from having regard to the massive poverty and ignorance of the people and
where legal injury is caused to a person or class of persons, who by reason of poverty or disability or socially or
economically disadvantaged position cannot approach the courts for judicial redress. In such a situation, any
member of the public or social action group, acting bona fide, can maintain an application in the High Court under
Article 226 and in the Supreme Court under Article 32 seeking judicial redress for the legal injury caused to such
person or class of persons. And in such a case, the courts will not insist on a regular writ petition to be filed by the
public spirited individual or social action group espousing their cause and readily respond to a letter addressed by
an individual or a social action group. 84
The public interest litigations have covered already wide areas combating inhuman prison condition, 85 and the
horrors of bonded labour. 86 Public interest have also now established the right to a speedy trial, 87 the right to free
legal aid, 88 the right to livelihood, 89 rights against pollution, 90 a right to be protected from individual hazards, 91
right to human dignity, 92 reforming hospital or jails. 93
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There are numerous cases which deal with procedural aspects and basic approach, 94locus standi 95 andmode of
entertaining. 96 The widening of the rule of locus standi and creation of epistolary jurisdiction 97 have opened a new
vista of a totally different kind of litigation for enforcing the basic human rights and basic human dignity of the poor
and deprived sections of the community.
The development of PIL has strengthened implementation in human rights cases. The Supreme Court has made
the following significant observation in the
Peoples Union for Democratic Rights v. Union of India:, 98
Public Interest Litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the
reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the
ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two, one
making claim or seeking relief against the other and that other opposing such claim or resisting such relief. 99
Public interest litigation is brought before the Court not for the purpose of exercising the right of one individual as
against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public
interest which demands that violations of Constitutional or legal rights of a large number of people who are poor,
ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed.
VIII. PREVENTIVE DETENTION 100
The Supreme Court has had occasion to deal with the (a) nature of preventive detention under the Indian
Constitution, (b) no-justiciability of nature of executive satisfaction, (c) the requirement of application of mind by the
detaining authority, (d) relevance of the grounds for detention, and (e) safeguards of detenu.
There is no authoritative definition of the term "Preventive Detention" in Indian law. According to Lord Finlay, "it is
not a punitive but a precautionary measure" 101 Lord Macmillan observed in Liversidge v. Anderson, that the object
is not to punish a man for having done something but to intercept him before he does it and to prevent him from
doing it. No offence is proved, nor any charge formulated; and the justification of such detention is suspicion or
reasonable probability and not criminal conviction which can only be warranted by legal evidence. 102
Preventive detention 103 has received Constitutional recognition under Article 22 104 clauses 4 to 7 under Part III of
the Indian Constitution. The first enactment on the subject was the Preventive Detention Act, passed by the Indian
Parliament in 1950. The Act was not meant to punish a man for having done something but to prevent him before
he does it. The peculiarity of the provisions of the preventive detention law under the Indian Constitution is that it is
not limited to times of emergency, but it is recognised even during normal times.
The first case under the Preventive Detention Act 1950 was A.K. Gopalan v. State of Madras., 105 The petitioner
prayed for the issue of a writ of habeas corpus on the ground that the detention order was illegal and void. The
Preventive Detention Act takes away or abridges the rights of an individual guaranteed under Part III of the
Constitution in general, and under Articles 21, 22 and 19(1)(a) in particular.
A Special Constitution Bench of the Supreme Court dismissed the petition by a majority of four to two. The Court
declared that the Preventive Detention Act, 1950, was valid, and upheld the detention. In spite of this, the Court
criticised the inclusion of preventive detention in the Chapter on fundamental rights as a peace time legislation
which did not exist in any free and democratic Constitution. In Ram Singh v. State of Delhi, 106 again this rationale
was applied by the Supreme Court.
In State of Bombay v. Atma Ram, 107 it was held by a majority of judges that the subjective satisfaction of the
government was not subject to an objective test in a court of law. Hence, it was made a non-justiciable issue. The
Court observed that it was true that the interpretation was moulded by laying down a distinction between vague
grounds and irrelevant grounds. The Court rejected the contention of the petitioner based on the vagueness of the
grounds.
In Rameshwar Shah v. District Magistrate, Burdwan, 108 the Court stipulated that as an abstract proposition of law,
it may be said that a detaining authority had power to pass a detention order against a person who is already in
detention or in jail; but in every case, the detaining authority had to apply its mind whether detention order was
necessary. In Bitu Mahato v. District Magistrate, Dhanbad, 109 the detaining authority had passed a detention order
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against a person already in jail, but the detaining authority was not aware of the fact. In this case, Desai, J.,
observed:
...the detention order must show on the face of it that the detaining authority was aware of the situation. Otherwise
detention order will suffer from the vice of non-application of mind. The awareness must be of the fact that person against
whom the detention order is made is already under detention or in jail in respect of some offence.
It is necessary that the authority who is detaining a person must apply its mind. The satisfaction may be subjective
or objective. 110
(a) Relevancy of Grounds of Preventive Detention
The ground of detention must be relevant to the order of detention. In Gora v. State of West Bengal, 111 the ground
of detention referred to only one incident which narrated that the petitioner along with other associates armed with
lethal weapons, including fire arms, raided the house of one "A" and looted away cash, ornaments etc. It was
further contended that the action of the petitioner created such a panic in the locality that the local people felt a
sense of insecurity and thus he acted in a manner prejudicial to the maintenance of public order. Bhagwati, J.,
observed that there was clearly a disturbance of public order by the appellant, and thus upheld the detention.
(b) Other Safeguards
One of the important safeguards under Article 22(5) is that the authority passing the order of detention must
afford the detenu the earliest opportunity of making a representation against the order of detention. Bhagwati, J.,
insisted that opportunity should be "comprehensive and effective". 112 In another case John Martin v. State of West
Bengal, 113 one of the contentions on behalf of the petitioner was that the order of the government, made after
considering the representation of detenu, did not disclose any reasons for rejecting the representation of the detenu
that the order was invalid. Justice Bhagwati, following Haradhans case 114 held that "there need not be a speaking
order", "all that is necessary is that there should be a real and proper consideration by the government".
The power of preventive detention is a draconian power and justified only in the interest of public security and order
and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary
power constituting encroachment on personal liberty and it is the solemn duty of the courts to ensure that this power
is exercised strictly in accordance with the requirements of the Constitution and the law. The courts should always
lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind, without it life
would not be worth living. 115
IX. THE RIGHT TO COMPENSATION
The rationale for awarding compensation under Article 32 for the violation of a fundamental right, is that the right
in question has been violated by the executive whose sworn duty is to uphold the right of an individual. Under the
CP Covenant there is clear provision for compensation in Article 9(5) which says,"Anyone who has been victim of
unlawful arrest or detention shall have an enforceable right to compensation." 116
India has already ratified 117 this Convention but with reservations, specifically with Article 9(5) of the CP
Covenant. It says:
With reference to Article 9 of International Covenant on Civil and Political Rights, the Government of the Republic
of India takes the position that the provisions of the Article shall be so applied as to be in consonance with the
provisions of Clauses (3) to (7) of Article 22 of the Constitution of India. Further under the Indian legal system,
there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention
against the state. 118
However the Supreme Court overlooked this reservation in various cases and established the rule of
compensation. In Nilabati Behera v. State of Orissa, 119 a sum of Rs. 1.5 lakhs was awarded to a mother whose son
had died in police custody. In this case the Court also referred to the CP Covenant:
We may also refer to Art. 9(5) of the International Covenant on Civil and Political Rights, which indicated that an
enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Anyone who has been
the victims of unlawful arrest or detention shall have an enforceable right to compensation.
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The Court also rejected the principle of sovereign immunity in this case, it stipulates:
A claim in public law for compensation for contravention of human rights and fundamental freedoms is available under
Article 32 by Supreme Court or by the High Court under Article 226 of the Constitution is a remedy available in public
law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not
apply, even though it may be available as a defence in private law in an action based on tort.
The fixing of monetary liability on the State through the award of compensation under Article 32 is no longer a
question of debate after the landmark judgement delivered in Rudul Shah v. State of Bihar., 120 In this case, this
involved the petitioners claim for compensation for his incarceration for fourteen years after his acquittal in a full
dressed trial. 121 Chief Justice Chandrachud opined that the Indian Constitution had no provision similar to Article
9(5) of the CP Covenant which entitles a victim of unconstitutional arrest or detention to claim compensation from
the State. The absence of this provision from the Indian Constitution is certainly not accidental. Aware of this fact,
the Chief Justice still said that if in a case of gross violation of liberty the Court refuses to pass an order of
compensation, it would only be paying lip-service to liberty. He said:
Article 21 which guarantees the right to life and liberty, will be denuded of its significant content if the power of the
Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation
of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured is to mulct
its violators in the payment of compensation. 122
Keeping this in view the Court awarded a sum of Rs.30,000 as compensation. Through this judgement the Court
has incorporated the provision of Article 9(5) of the CP Covenant via Article 21 and enlarged the jurisdiction of
the Court under Article 32 and of the High Courts under Article 226 to enforce fundamental rights through
compensatory remedies.
In another important case, Sebastian M. Hongray v. Union of India, 123 the Supreme Court by a writ of habeas
corpus required the Government of India to produce two persons, but the government failed to produce them. The
Supreme Court in the circumstances, keeping in view the torture, agony and the mental oppression through which
the wives of C. Daniel and C. Paul, the persons directed to be produced, had to pass, the Court, instead of
imposing a fine, directed payment as a measure of exemplary costs, of Rs.1 lakh to the two women. There have
been numerous other cases 124 where the Court has granted compensation against the sovereign immunity
concept. It is clear that the Supreme Court is not helpless; wide power has been assumed by the Court under
Articles 32 and 21. The Court is free to forge new tools necessary to impart complete justice and enforce the
fundamental rights guaranteed in the Constitution.
X. ROLE OF NATIONAL HUMAN RIGHTS COMMISSION IN IMPLEMENTATION OF HUMAN RIGHTS
The establishment of an autonomous Commission for promotion and protection of human rights by the
Government of India reflects its genuine intention for effective implementation of human rights provisions under
national and international instruments. The National Human Rights Commission 125 (hereinafter referred as NHRC)
is the first of its kind among the South Asian countries.
The NHRC came into effect on 12 October, 1993, by virtue of the Protection of Human Rights Act, 1993. The Act
contains broad provisions related to its function and powers, composition and other related aspects. 126
(a) Constitution of the National Human Rights Commission
The Constitution of the NHRC is dealt under Chapter II of the Act. Section 3 of Act says:
1. The Central Government shall constitute a body to be known as the National Human Rights Commission to
exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.
2. The Commission shall consist of:
(a) A chairperson who has been a Chief Justice of the Supreme Court;
(b) One Member who is, or has been a judge of the Supreme Court;
(c) One Member who is, or has been the Chief Justice of a High Court;
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(d) Two Members to be appointed from amongst persons having knowledge of, or practical experience in,
maters relating to human rights.
3. The Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled
Castes, the National Commission for Scheduled Tribes and the National Commission for Women shall be
deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of
section 12 .
4. There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall
exercise such powers and discharge such functions of the Commission except judicial functions and the
power to make regulations under section 40B , as may be delegated to him by the Commission or the
Chairperson as the case may be.
5. The headquarters of the Commission shall be at Delhi and the Commission may, with the previous
approval of the Central Government, establish offices at other places in India.
The appointment of the Chairperson and other Members are elaborately discussed under Section 4 of the Act. 127
The other provisions relate to the removal of a member of the Commission, 128 the term of office of members, 129 a
member to act as a Chairperson or to discharge his functions in certain circumstances, 130 the terms and conditions
of service of members, 131 vacancies, etc., not to invalidate the proceedings of the Commission, 132 the procedure to
be regulated by the Commission, 133 the officers and other staff of the Commission. 134
(b) Functions and Powers of the Commission
Wide powers and functions have been given to the Commission under Section 12 . Paragraph (a) of Section 12
provides, that the Commission can require suomotu 135 action against any public servant against whom complaint
has been registered for violation of human rights.
Section 12(b) provides that the Commission can intervene in any proceeding involving any allegation of violation
of human rights pending before a court with the approval of such court. 136Section 12(c) empowers the
Commission to visit any jail or other institution with prior intimation to the State Government, for the purpose of
mainly monitoring prison or custodial conditions. The Commission can make recommendations to State
Governments on the basis of such visits. The Commission observed after visiting many jails that there prevailed
pathetic conditions in which prisoners are forced to live. In its view this is not due to lack of ideas but due to apathy
and lack of priority accorded to prison conditions and the rights of prisoners and undertrials. The Commission has
already initiated action to improve prison conditions in India, and started studying all prevailing reports related with
prisons. 137 The Commission has recommended the preparation of a new All India Jail Manual and also suggested
the revision of the old Indian Prison Act of 1894. The Commission sought help from all who believe that human
dignity must not be left when a person enters the gates of a prison. 138
Section 12(d) empowers the Commission to review the safeguards provided under the Constitution or any law for
the time being in force for the protection of human rights and also recommending measures for their effective
implementation.
Under Section 12(e) there is a separate provision to review the factors responsible for terrorism which inhibits the
enjoyment of human rights and recommend appropriate remedial measures. Section 12(f) provides for study of all
treaties related with international human rights instruments and making recommendation for their effective
implementation.
Section 12(g) 139 provides for promotion of research in the field of human rights, Section 12(h) empowers the
Commission to spread human rights literacy among various sections of society and promote awareness of the
safeguards available for the protection of these rights through publication, the media, seminars and other available
means. 140Section 12(i) empowers the Commission to encourage the efforts of non-governmental organisations
working in the field of human rights. Lastly, Section 12(j) provides, "such other functions as it may consider
necessary for the promotion of human rights.
(c) Functional Approach of the Commission
Non-Governmental Organisations
The responsibilities entrusted to the Commission under the Protection of Human Rights Act, 1993 cannot be
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adequately fulfilled without the development of close ties between the Commission and non-governmental
organisations. For the Commission, it is not just a matter of a statutory obligation under Section 12(i) of the Act.
The Commission in its first report noted that the cause of human rights had much to gain both from the practical
help and from the constructive criticism that NGOS and the Commission can bring to bear in their mutual interaction
and growing relationship. 141 The Commission has already started associating NGOS with the inquiry of complaints.
In several places, during visits by the Commission, NGOS have boldly come forward with evidence of wrong-doing
in relation to specific complaints addressed to the Commission. 142
The Commission believes that the promotion and protection of human rights requires the courage and commitment
that NGOS bring to bear in their endeavours and that it is for this reason that the country has much to gain by
encouraging their efforts, whether the NGOS are national or international.
(d) Investigation Division
There is a well organised investigation division within the Commission. The primary duty of this investigation
division is to look into complaints received by the Commission. For this purpose investigation team makes on the
spot investigation.
The Protection of Human Rights Act, 1993 outlines the investigative role of the Commission. Sub-section 1(b) of
Section 11 provides:
1(b) Such police and investigative staff under an officer not below the rank of a Director General of Police and such other
officers and staff as may be necessary for the efficient performance of the functions of the Commission.
(e) Inquiry into Complaints
A considerable increase in public awareness of the work of the Commission has been observed. This was reflected
in the vast increase in the number of complaints of human rights violations received by the Commission. 143 Many of
the cases received by the Commission were of great poignancy, but they could not be entertained by the
Commission falling as they did under the categories listed in Regulation No. 8 144 of the Commission.
Once the Commission accepts a complaint, it seeks comments from the concerned government or authority
regarding the complaint. 145 After receiving the comments of the concerned authority a detailed note on the merits of
the case is prepared for the consideration of the Commission. 146 After this, directions and recommendations of the
Commission are communicated to the concerned government under sections 18 and 19 of the Act. 147
In some of the cases the Commission may opt for a personal hearing to the petitioner or any other person on
behalf of the petitioner for appropriate disposal of the matter. This personal hearing will provide an opportunity of
examining witnesses, if any, in support of the complaint and hearing of evidence in support of his stand. 148
Once investigation has been undertaken by the Commission or any other person under its authority, the report of
the investigation should be submitted within a week of its completion. In some cases, the Commission may allow
further time for submission of reports. If the Commission is not satisfied with any report it may direct fresh
investigation for ascertaining the truth or enabling it to properly dispose of the matter. On receipt of the report, the
Commission on its own motion, or if moved in the matter, may direct inquiry to be carried out by it and receive
evidence in course of such inquiry. 149
Lastly under Section 8(12) , the Commission or any of its members when requested by the Chairperson may
undertake visits for on-the-spot study and where such a study is undertaken by one or more members, a report
thereon shall be furnished to the Commission as early as possible.
(f) Steps after Inquiry
On the completion of inquiry, the Commission may take any of the following steps under Section 18 of this Act,
namely:
(1) Where the inquiry discloses, the commission of violation of human rights or negligence in the prevention of
violation of human rights by a public servant, it may recommend to the concerned Government or authority
the initiation of proceedings for prosecution or such other action as the Commission may deem fit against
the concerned person or persons;
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(2) approach the Supreme Court or the High Court concerned for such directions, orders or units 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;
(4) subject to the provisions of clause (5) provide a copy of the inquiry report to the petitioner or his
representative;
(5) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned
Government or authority who shall, within a period of one month, or such further time as the Commission
may allow, forward its comments on the report, including the action taken or proposed to be taken thereon,
to the Commission;
(6) the Commission shall publish its inquiry report together with the Comments of the concerned Government
or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority
on the recommendations of the Commission.
The Commission has in several cases recommended prosecution of public servants responsible for violation of
human rights, under Section 18(1) of the Act. 150
In case of violation of human rights, the Commission may recommend under Section 18(3) of the Act to the
concerned State for grant of immediate interim relief to the victim or members of the victims family. 151
The Commission incorporated elaborate provisions under Section 18(5) on procedural regulations, to make its
inquiry more transparent and impartial. After the completion of its inquiry the Commission generally sends its report
along with recommendations to the concerned government to report and comment within a period of one month, or
such further time as the Commission may allow. This recommendation also includes what action should be taken in
particular case or purport to be taken.
Lastly, Section 18(6) stipulates that the Commission should publish its report in detail. It must include the
comments of the government or authority. The report should also include what action the concerned government or
authority is going to take in a particular case.
It seems from the above provisions that the Commission is fully equipped to handle any situation, but in practice
the Commission is powerless, in case any State Government refuses to comply with its recommendations. The
Commission is endowed with only recommendatory power, that is why the recommendations of the Commission
are not legally binding. But so far, in most of the cases, recommendations of the Commission have been complied
with by the concerned government or authority, which is clear from prosecutions 152 of several police officials, and
compensation 153 granted in various cases.
Being a government institution from the very beginning, people were suspicious about the functioning of the
Commission. But within less than a three year period it has been able to establish its integrity and commitment.
Through its work the Commission is able to convey the message that it can work independently; impartially and its
recommendations prove this.
Even if the Commission is a very small step in the daunting task of implementation of human rights at the national
level, it remains a very significant small step.
The important cases dealt with by the Commission will be covered in Chapter VI.
XI. ROLE OF NON-GOVERNMENTAL ORGANISATIONS (NGOS) AT NATIONAL LEVEL
There are a number of NGOS working in India in various fields of human rights, specifically in the field of child
welfare, environment, women rights, bonded labour, old age care, health and human rights, disabled rights and
rehabilitation of manual scavengers. There are various NGOS working as national sections of international NGOS,
and, indeed many NGOS, without any direct international ties have succeeded in implementing human rights law in
ways unavailable to international NGOS. Success of a large number of NGOS depend solely on the functioning of
its national section. This is particularly true in the case of Amnesty International, due considerably to its ability to
mobilise the efforts of local groups who work for the human rights of named prisoners. 154
The role of local NGOS manifest a personal concern for the release of prisoners and work towards that end by
writing letters to prison officials, judges, and various government officers of the State involved, by visiting
Page 18 of 27
embassies and by sending appeals to lawyers and other NGOS which might intervene. Also, the group attempts to
write letters directly to their adopted prisoners or to his or her family thereby giving moral support, and to provide
economic and other assistance where possible.
The major problem with the Indian NGOS is that there is a lack of co-ordination of their activities in terms of their
fields, territorial areas, and target groups of their activities. Indeed, at times, they reveal a sense of rivalry. 155 It
cannot be doubted that a person-to-person and energetic approach can be effective when the more professional,
sophisticated, better researched, and discreet efforts of international NGOS are not successful.
NGOS are active in nearly every sphere of international human rights. These NGOS have advocated and helped to
draft international human rights norms in multilateral treaties and resolutions, also assisted intergovernmental
organisations and governments in the implementation of human rights norms. Indian NGOS are playing an
important role not only in monitoring human rights violations, but equally in rehabilitation of victims and promotion of
implementation of human rights. 156
NGOS have been playing a crucial role in the protection of non-derogable rights of people. There are several
instances where NGOS were the first to report violation of human rights to appropriate authorities. The NHRC has
taken action on several human rights violation complaints mainly reported by local NGOS from different parts of the
country. In the Chakma Refugees case, the NHRC approached the Supreme Court after receiving a complaint from
a NGO named Peoples Union for Civil Liberties. However, similar issues were raised by a second organisation, the
Committee for Citizenship Rights of the Chakmas (CCRC).
NGOS can play a significant role in the promotion and protection of fundamental rights of people. It is a sacred duty
of NGOS to educate the local masses about their rights and report each case of violation of human rights to the
appropriate forum.
XII. ROLE OF MEDIA IN THE PROMOTION OF HUMAN RIGHTS
Under the Indian Constitution, the freedom of information is implicitly covered under Article 19 and Article 21 .
The media has been playing a very crucial role in the promotion and protection of human rights in India. The role of
the media, print as well as audio-visual, acquires tremendous significance in the promotion of human rights. The
media has tremendous power to mould public opinion against age-old societal wrongs like untouchability, manual
scavenging and discrimination against the girl child. It can also arouse societys indignation against child labour,
child prostitution and child marriage.
The common man is in a position to understand human rights through press reports and audio-visual media.
Through these modes, masses are made aware of their rights and also made familiar with the institutions they can
approach for redress in case of violation of their human rights.
The NHRC has taken suo motu cognizance of press reports in several cases and initiated proceedings.
Interestingly, the first case taken up by the Commission was related to the unprovoked firing by the Border Security
Force (BSF) personnel on unarmed civilians in Bijbehra, Jammu and Kashmir. 157
However, the media has exposed itself to criticism. While disposing of a case of contempt of court proceedings
against the editors of two newspapers recently, the Supreme Court observed:
It is the duty of a true and responsible journalist to inform the people with accurate and impartial presentation of news and
his views after dispassionate evaluation of the facts and information received by him and to be published as a news item.
The editor of a newspaper or a journal, the Court said, has a greater responsibility to guard against untruthful news
and its publication. "If the newspaper publishes what is improper, mischievously false or illegal and abuses its
liberty, it must be punished by a Court of law". While a free and healthy press is indispensable to the functioning of
a true democracy, the Court said, the freedom of press is subject to reasonable restraints. 158
The media also has a tendency to launch "trials by the media", even sentencing by the media, while a court
proceeding is underway. Further, increasing vulgarity and obscenity in the media could also give rise to human
rights violations. On the whole, if the media is properly used, it can foster the right kind of attitudes, beliefs and
conduct which conform to human rights principles.
XIII. CONCLUSION
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The above-mentioned mechanisms are available for implementation of human rights in India. The provisions of the
Constitution, embodying fundamental rights basic to political democracy are not static. It is true that in the context of
the non-inclusion of certain human rights in the Indian Constitution and the non-incorporation of the International
Covenant on Civil and Political Rights into Indias municipal law the "Indianization" of much needed human rights by
the judges looks like "Constitution making". However, a closer analysis of all these significant judgements reveal
that the judges have not usurped the role of law maker or the "Constitution maker".
The judges are not duty-bound to adopt those conceptions and meanings as they have to only interpret the
Constitution in terms of what the Constitution makers wanted. In fact, they may clothe the concepts with new
conceptions and the words with new meanings to make them serve the nation. Thus the power to interpret includes
the power of law making. Through its various judgements the Supreme Court has rationalised much needed human
rights into justiciable fundamental rights. The Court has enriched and enlarged the right of access to justice through
public interest litigation, transformed the distant Supreme Court into a poor mans court. Remarkable advances have
been made in the field of human rights by the Supreme Court. The main emphasis has been on making basic civil
and political rights meaningful for the large masses of people who are living a life of poverty and destitution and to
whom these basic human rights have so far no meaning or significance because of constant and continuous
deprivation and exploitation.
Prior to 1978, the States had the power to abrogate any of the fundamental rights of its citizens during the
proclamation of emergency. But there are two rights which have acquired the attributes of non-derogable rights.
They are, namely, Articles 20 and 21 of the Indian Constitution. The effect of these provisions is like that of the
non-derogable provisions in the universal or regional human rights instruments. 159 In case of violations of these two
rights, a victim can move the Supreme Court and High Courts for redressal even during a State emergency.
1 The magnitude of Indias diversity is indicated by the 1991 census, which recorded a population of 879 million with
growth rate of less than two per cent per annum (since the mid 1980s), while its linguistic diversity is reflected in the
eighteen major languages which are recognised in Schedule VIII of the Constitution and the 844 dialects spoken by its
people. Cf. Third Country Report submitted by India, CCPR/C/76/Add.6, 17 June, 1996, pp. 3-4.
2 V.S. Mani, "Human Rights in India: An Overview" (unpublished paper prepared for the Konrad Adenauer Foundation,
Germany, 1997), pp. 1-63; Mahendra P. Singh, "Human Rights in the Indian Tradition: An Alternative Model" vol. II, no.
2 (2009), pp. 145-182.
3 Durga Das Basu, Commentary on the (Calcutta, 1994): M.P. Jain, Indian Constitutional Law (Bombay, 1986), H.
Seervai, Constitutional Law of India: A Critical Commentary (Bombay, 1991), edn. 4.
4 Articles 12 to 35 of the Indian Constitution deal with Fundamental Rights. The Indian Constitution groups the
Fundamental Rights under several sub-heads. A) Right to Equality (Arts. 14 - 18 ). B) Right to Freedom (Arts. 19-22);
C) Right against Exploitation (Arts. 23 - 24 ); D) Right to Freedom of Religion (Arts. 25 - 26 ); E) Cultural and
Educational Rights (Arts. 29 - 30 ); F) Right to Constitutional Remedies (Art. 32 ).
5 Articles 38 to 51-A contain the Directive Principles of State Policy. The idea to have such principles in the
Constitution has been borrowed from the Irish Constitution. The Directive Principles are not enforceable by a court of
law.
6 H.O. Agarwal, Implementation of Human Rights Covenants with Special Reference to India (Allahabad, 1983), pp. 112-
52.
7 Article 13(2) of Indian Constitution says, "The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the extent of the Contravention, be
void.
(3) In this Article, unless the context otherwise requires:
(a) "law" includes any Ordinance, order, bye-laws, rule, regulation, notification, custom or usages having in the
territory of India the force of law;
(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of
India before the commencement of this Constitution and not previously repealed, notwithstanding that any
such law or any Part thereof may not be then in operation either at all or in particular areas."
8 Maneka Gandhi v. Union of India, AIR 1978 SC 597 [LNIND 1978 SC 25].
Page 20 of 27
9 P.N. Bhagwati, "Human Rights in the Criminal Justice System", Journal of the Indian Law Institute , vol. 27 (1985), pp.
1-22. The major setback to fundamental rights was noticed when emergency was declared on 26 June, 1975 on the
pretext that the security of India was threatened by "internal disturbances". Once there was a Presidential order under
Article 359 suspending the enforcement of fundamental rights to life and liberty guaranteed by Article 21 , a person
who is deprived of his liberty by a detention could not approach the court for redress.
10 Human Rights International Instruments: Signatures, Ratification, etc., 1 July, 1982 (United Nations, New York, 1982),
p. 52
11 P.C. Rao, The Indian Constitution and International Law (New Delhi, 1993), p. 3.
12 Articles 73 , 254(2) and 253 and entries 1 and 10 to 21 of the Union list in the Seventh schedule to the Constitution.
For details see, Rao, n. 11, pp. 126-78.
13 See, State of West Bengal v. Jugal Kishore, AIR 1969 SC 1171 [LNIND 1969 SC 8]; State of Gujarat v. Vora Fiddali,
AIR 1964 SC 1043 [LNIND 1964 SC 22]; Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470 [LNIND 1980
SC 48]; Birma v. State of Rajasthan, AIR 1951 Raj 129 [LNIND 1949 RAJ 42]; C.R.V. Committee, S.L.S.R.C.C.L. v.
Union of India, AIR 1983 Knt 85 .
14 State of Gujarat v. Voru Fiddali, AIR 1969 SC 1051 ; Maganbhai v. Union of India, AIR 1969 SC 783 [LNIND 1969 SC
6].
15 See for further reading, H.M. Seervai, The Emergency, Future Safeguards and the Habeas Corpus Case, a Criticism
(Bombay, 1978); G.O. Koppel, "The Emergency, the Courts and Indian Democracy", Journal of Indian Law Institute ,
vol. 8 (1966), pp. 287-337; Charles Henry Alexandrowich, "Personal Liberty and Preventive Detention", Journal of
Indian Law Institute , vol. 3 (1961), pp. 445-53.
16 Jain, n. 3, pp. 358-78. Article 15(1) of the European Convention on Human Rights permits the Member States to take
measures derogating from their obligations under the Convention in respect of the guaranteed fundamental freedoms;
Article 4(1) of the International Covenant on Civil and Political Rights provides ground for suspension during public
emergency; Article 27(1) of American Convention on Human Rights, provides suspension of Human Rights in Certain
situations.
17 Part XVIII of Indian Constitution contains emergency provisions from Articles 352 to 360 . Articles 352 to 360 deals
with emergency provisions.
i. Art. 352 - Proclamation of Emergency arising from threat to the security of India.
ii. Art. 353 - Effect of Proclamation of Emergency
iii. Art. 354 - Application of Provisions relating to distribution of revenues while a Proclamation of Emergency is in
operation.
iv. Art. 355 - Duty of the Union to protect States against external aggression and internal disturbance.
v. Art. 356 - Provisions in case of failure of Constitutional machinery in States.
vi. Art. 357 - Exercise of legislative powers under Proclamation issued under Article 356 .
vii. Art. 358 - Suspension of provisions of Article 19 during emergency.
ix. Art. 359 - Suspension of the enforcement of the rights conferred by Part III during emergencies. Article 359A -
Application of this Part in State of Punjab was repealed by the Sixty Third Amendment Act, 1989, Section 3
(w.e.f. 6 January, 1990).
ix Art. 360 - Provisions as to financial emergency.
18 Substituted by the Constitution (Forty-Fourth Amendment) Act, 1978, Section 37 , for "internal disturbance" (w.e.f. 20
June, 1979).
19 Article 352(2) . Subs. by the Constitution (Forty-Fourth Amendment) Act, 1978, S.37, for clauses (2), (2A) and (3)
(w.e.f. 20 June 1979).
20 Article 352(3) .
21 The Council consisting of the Prime Minister and Ministers of Cabinet rank, appointed under Article 75 .
22 AIR 1974 SC 806 [LNIND 1974 SC 31].
23 P.N. Awasti v. State, AIR 1976 All 414 ; P. Venkataseshamma v. State, (FB) AIR 1976 A.P. 2 ; Shersingh v. State, AIR
1976 M.P. 87 .
24 K. Rao, Parliamentary Democracy of India: A Critical Commentary (Calcutta: 1961).
25 Article 19
(1) guarantees that all citizens have the right:
Page 21 of 27
(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;
(e) to reside and settle in any part of the territory of India;
(f) to practise any profession, or to carry on any occupation, trade or business.
* Ins. by the Constitution (Forty-Second Amendment) Act, 1976, Section 52 (w.e.f. 3-1-1977).
** Subs. by the Constitution (Forty-Fourth Amendment) Act, 1978, Section 39 (w.e.f. 20-6-1979).
+ Ins. by the Constitution (Forty-Fourth Amendment) Act, 1978, Section 30 , Section 39 (w.e.f. 30 June, 1979).
26 Article 359(1) . "Where a Proclamation of Emergency is in operation, the President may by order declare that the right
to move any Court for the enforcement of such of [the rights conferred by Part III (except Articles 20 and 21 )] as may
be mentioned in the order and all proceedings pending in any Court for the enforcement of the rights so mentioned
shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be
specified in the order."
27 Madan Mohan Pathak v. Union of India, AIR 1978 SC 803 [LNIND 1978 SC 64].
28 AIR 1976 SC 1207 [LNIND 1976 SC 196].
29 Ved P. Nanda, "From Gandhi to Gandhi: International Legal Response to the Destruction of Human Rights and
Fundamental Freedoms in India", Denver Journal of International Law , vol. 6 (1976), pp. 19-42.
30 K.M. Munshis draft Article in The Framing of the Indian Constitution: Select Documents (Bombay, 1969), vol. II, p. 75.
31 Munshis draft Articles V(i) and V(4) and Articles XII(3), Rao, n. 30, 4(ii)(b), pp. 75-79.
32 Ambedkars draft Article 11(2) , Rao, n. 30, 4(ii)(a), p. 86.
33 Minutes and Draft Report of the Sub-Committee, Annexure, clauses 11 and 29. Select Documents II , 4(iii) and (iv), pp.
119-20, 122, 132, 139, 141. The provision regarding the right to be informed of the authority and grounds of deprivation
of ones liberty within twenty four-hours was omitted in view of "the due process of law" provision (clause 11).
34 Minutes, also see Draft Constitution, Rao, n. 30, Select Documents III , 5 & 6, pp. 328, 406, 523.
35 Rao, n. 30.
36 Constituent Assembly Debates , vol. II, pp. 843-45.
37 The Constitutional Assembly Debates , vol. VII, pp. 855-6.
38 The Constitutional Assembly Debates , vol. IX, pp. 1496-7.
39 See, Sections 60 , 61 , 81 and 167 of the Criminal Procedure Code, 1898. Sections 53 , 54 and 167 of Criminal
Procedure Code, 1973, are aimed at affording procedural safeguards to a person arrested by the police.
40 The Constitutional Assembly Debates , vol. IX, pp. 1497-8.
41 The Constitutional Assembly Debates . vol. XI, pp. 466-67 and 531-32.
42 The Constitutional Assembly Debates . vol. XI, pp. 575-6, and 600.
43 This provision is similar to Article 31 of the Japanese Constitution.
44 Maneka Gandhi case, n. 8.
45 Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360 . [In this case a writ of habeas corpus was filed before the
Supreme Court for the release of undertrials subjected to prolonged detention in prison. These undertrials included
men, women and children and some of them were behind bars for periods ranging from three to ten years without trial
having been commenced so far].
46 Bhagwati, n. 9, pp. 1-22.
47 Prem Chand v. Excise Commissioner, AIR 1963 SC 996 [LNIND 1962 SC 356]; "the fundamental rights guaranteed by
Part III which have been made justiciable, form the most outstanding and distinguishing feature of the Indian
Constitution" (Para 2 ), p. 998.
48 Romesh Thapar v. State of Madras, AIR 1950 SC 124 [LNIND 1950 SC 27] at p. 126.
49 State of Madras v. V.G. Row, AIR 1952 SC 96 .
50 Daryao v. State of U.P., AIR 1961 SC 1457 [LNIND 1961 SC 133] at p. 1461.
Page 22 of 27
51 AIR 1984 SC 802 [LNIND 1983 SC 564] at p. 812; see also W.E. Dellinger, "Of Rights and Remedies: The Constitution
as a Sword", Harvard Law Review , vol. 85 (1971), p. 1532.
52 Romeshwar Prasad v. Commrs. ,LRsJ, AIR 1959 SC 498 [LNIND 1958 SC 233]. "It is well settled that no petition
under Article 32 is maintainable, unless it is shown that the petitioner has some fundamental rights. The fundamental
right claimed in these case is that the property which the State of Madhya Pradesh Bharat (now Madhya Pradesh) is
not permitting the petitioners to remove from the forests is property which they have right to hold and dispose off. This
could only be so if the property in the trees or the charcoal or katha which have been manufactured passed to the
petitioners. No such property, however, passed to the petitioners. In the circumstances they have no right to hold and
dispose petitioners. In the circumstances they have no right to hold and dispose of their property, in the absence of any
law authorising the state to deprive them of it" (K.M. Wanchoo) para 15; Haji Ismail v. Competent Officers, AIR 1967 SC
1244 [LNIND 1967 SC 66]; Kuriakose v. State of Kerala, AIR 1977 SC 1509 [LNIND 1977 SC 154].
53 Hans Muller v. Supdt., Presidency Jail, AIR 1955 SC 367 [LNIND 1955 SC 14].
54 Seervai, n. 3; V.G. Ramacharan, Fundamental Rights and Constitutional Remedies: Law of Writs (Lucknow, 1963).
55 See also, Luis Kutner, "World Habeas Corpus, Human Rights and World Community", De Paul Law Review , vol. 17
(1967), pp. 3-37.
56 The writs have been among the great safeguards provided by the British judicial system for upholding the rights and
liberties of the people and it was an act of great wisdom and foresight on the part of the Constitution-makers to
introduce the writ system in India. In the Pre Constitution era, only the High Courts of Calcutta, Madras and Bombay
enjoyed the jurisdiction to issue writs.
57 Ranjit v. Pepsu, AIR 1959 SC 893 .
58 Bihar v. Kameshwar Prasad, AIR 1965 SC 575 .
In this case a convict Bipat Gope sentenced to imprisonment was released from custody on grounds of ill-health but was
subsequently rearrested and detained in jail. On an application under Article 226 for a writ of habeas corpus , the
State did not file any return showing the provisions under the convict was released or rearrested.
In this connection the observation of Lord Atkin in Eshugbal Eleko v. Administering Govt. of Nigeria, 1931 AC 661 at p.
670 : AIR 1931 PC 298 are appropriate as observed by Subba Rao, J., "In accordance with British jurisprudence no
member of the executive can interfere with the liberty or property of a British subject except on the condition that he can
support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not
shrink from deciding such issues in the face of the executive."
It is the same jurisprudence which was adopted in this country on the basis of which the courts of this country exercise
jurisdiction. It has not been shown in this case that there was any lawful authority under which Bipat Gope was
rearrested and in the absence of such lawful authority Bipat Gopes detention cannot be supported and is illegal. In the
circumstances the remedy under Article 226 is rightly applicable to the facts of this case.
59 Makhan Singh v. Punjab, AIR 1964 SC 387, Biren Dutta v. Chief Commr. of Tripura, AIR 1965 SC 596 [LNIND 1964
SC 186].
60 Kedarnath v. State of Punjab, AIR 1960 Punjab 122, The Court observed that writ of habeas corpus was meant to
determine the legality or illegality of the detention and not for punishing the detainee.
61 In Gunapati v. Nafisul Hassan, AIR 1954 SC 636 [LNIND 1952 SC 155]; in this case a person was arrested in Bombay
and taken to Lucknow in custody to be produced before the speaker of the U.P. Legislative Assembly to answer a
charge of breach of privilege. The arrest was made on a warrant issued by the Speaker. He remained in the speakers
custody at Lucknow and was not produced before a magistrate within twenty four hours of his arrest. The court held
that this was a clear breach of the peremptory provisions of Article 22(2) and hence the petitioner was released.
62 Jagannath Misra v. State of Orissa, AIR 1966 SC 1140 [LNIND 1965 SC 396]; Ram Manohar Lohia v. State of Bihar,
AIR 1966 SC 746 ; Inder Singh v. State of Punjab, AIR 1995 SC 312 [LNINDORD 1994 SC 20]; Sanju v. Shobanath,
AIR 1995 SC 922 [LNIND 1995 SC 166].
63 Ram Bali v. State of West Bengal, AIR 1975 SC 623 [LNIND 1974 SC 426], "on a habeas corpus petition, what has to
be considered by the Court is whether the detention is prima facie legal or not, whether the detaining authorities have
wrongly or rightly reached on every satisfaction of the Court. Court have no doubt to zealously guard the personal
liberty of the citizen and to ensure that the case of detenu is justly and impartially considered".
64 Mysore v. Chandrasekhara, AIR 1965 SC 532 [LNIND 1964 SC 639]; NHRC v. State of Arunachal Pradesh, AIR 1996
SC 2351 ; N.S. Ziyauddin Ahmed v. Union of India, AIR 1995 Mad 129 [LNIND 1994 MAD 788]; K. Vaithianathan v.
Union Territory of Pondicherry, AIR 1995 Mad 197 [LNIND 1994 MAD 170].
65 Parry & Co., v. Commercial Employees Ass., AIR 1952 SC 179 [LNIND 1952 SC 25]; Bhopal Sugar Industries v.
Income Tax Officer, AIR 1961 SC 182 [LNIND 1960 SC 190].
66 Madhya Pradesh v. Mandavar, AIR 1954 SC 493 [LNIND 1954 SC 90]; Sohan Lal v. India, AIR 1957 SC 529 [LNIND
1957 SC 27]; K.V. Rajyalakshmi Setty v. Mysore, AIR 1967 SC 993 [LNIND 1966 SC 288].
Page 23 of 27
67 T.G. Goakar v. R.N. Shukla, AIR 1968 SC 1050 [LNIND 1968 SC 68]; Bombay Union of Journalists v. State of
Bombay, AIR 1964 SC 1617 [LNIND 1963 SC 305].
68 Vice-Chancellor Utkal University v. S.K. Ghosh, 1954 SCR 883 [LNIND 1954 SC 6]; Prabodh v. State of U.P., AIR 1985
SC 167 [LNIND 1984 SC 376]; NHRC v. State of Arunachal Pradesh, AIR 1996 SC 1235 .
69 Yadley, "The Grounds for Certiorari and Prohibition", Canadian Bar Review , vol. 37 (1959), pp. 294-307.
70 T.C. Basappa v. T. Mayappa, AIR 1954 SC 440 [LNIND 1954 SC 84].
71 Union of India v. Nambudri, (1991) 2 UJSC 302.
72 Basappa, n. 70, p. 440.
73 (1963) 2WLR 935.
74 (1967) 2KB 617.
75 AIR 1970 SC 150 [LNIND 1969 SC 197].
76 AIR 1978 SC 12 [LNIND 1977 SC 293].
77 East India Comm. v. Collector of Customs, AIR 1962 SC 1893 [LNIND 1962 SC 228].
78 Mukhtiar Singh v. State of Punjab, AIR 1991 P&H 20 ; Satish Chandra v. Rajasthan University, AIR 1970 Raj 186 (para
12).
79 Moin Qazi, "Social Action Litigation: Reality or Mirage of Justice", Lex et Juris , vol. 4 (1989), pp. 26-27; Beena
Choudhary, "Public Interest litigation and locus standi ", Civil and Military Law Journal , vol. 28 (1992), pp. 236-43, P.N.
Bhagwati, "Judicial Activism and Public Interest Litigation", Columbia Journal of Transnational Law , vol. 23 (1985), pp.
561-77; S.K. Aggarwal, Public Interest Litigation in India (Indian Law Institute Publications, New Delhi, 1986); N.R.
Madhav Menon, "Public Interest Litigation: A Major Breakthrough in the Delivery of Social Justice", Journal of Bar
Council of India , vol. 5 (1982), pp. 150-58; Clark D. Cunningham, "Public Interest Litigation in Indian Supreme Court: A
Study in the Light of American Experience", Journal of the Indian Law Institute , vol. 30 (1988), pp. 19-44; Jamie
Cassels, "Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?", American Journal of
Comparative Law , vol. 37 (1989), pp. 495-519; Rajeev Dhavan, ed., Judges and Judicial Power: Essays in Honour of
Justice V.R. Krishna Iyer (London: Sweet & Maxwell Ltd., 1995). S.K. Aggarwala, Public Interest Litigation in India: A
Critique (Bombay, 1985); Rajeev Dhavan, "Law as Struggle: Public Interest Law in India", Journal of Indian Law
Institute , vol. 36 (1994), pp. 302-338; Mani, n. 2, pp. 51-54; M.C. Sharma and Raju Ramachandran, Constitutionalism
Human Rights & the Rule of Law: Essays in Honour of Soli J. Sorabjee (Universal Law Publishing House, New Delhi.
2005).
80 Article 32(1) , "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
guaranteed by this part is guaranteed".
81 AIR 1976 SC 2609 . Justice Krishna Iyer observed, "Where a wrong against community interest is done, "no locus
standi " will always be a plea to non-suit an interested body chasing the wrong doer in Court... locus standi has a larger
ambit in current legal semantics than the accepted individualistic jurisprudence of the old (para 21).
82 Cassels, n. 79, p. 495.
83 S.P. Gupta v. Union of India, AIR 1982 SC 149 .
84 For an examination of the areas see, Dhavan, n. 79, p. 307; Mani, n. 2, p. 53.
85 Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 [LNIND 1978 SC 215]; Upendra Baxi v. State of Uttar Pradesh,
(1983) SCC 2 p. 308.
86 Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 [LNIND 1982 SC 135]; Bandhua Mukti
Morcha v. Union of India, AIR 1984 SC 802 [LNIND 1983 SC 564].
87 M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199]; Hussainara Khatoon v. Home
Secretary, State of Bihar, AIR 1979 SC 1360 .
88 Suk Das v. Union Territory of Arunachal Pradesh, 1986 SCE 401 ; Sheela Barse v. Union of India, AIR 1983 SC 378
[LNIND 1983 SC 57].
89 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 [LNIND 1985 SC 215].
90 Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, AIR 1985 SC 652 [LNIND 1985 SC 82].
91 M.C. Mehta v. Union of India, AIR 1987 SC 982 ; Ratlam Municipality v. Vardichand, AIR 1980 SC 1622 [LNIND 1980
SC 287].
92 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27]; Upendra Baxi
v. State of Uttar Pradesh, (1986) 4 SCC 106 [LNIND 1986 SC 232].
Page 24 of 27
93 Rakesh v. State of Bihar, (1991) (2) Supp SCC 626; Mathur v. State of U.P., (1993) (1) Supp SCC 722.
94 Gupta, n. 83, p. 149.
95 D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579 [LNIND 1986 SC 546]; Fertiliser Corporation of India v. Union of
India, AIR 1981 SC 344 ; V. Satyam Reddy v. Union of India, AIR 1996 AP 175 [LNIND 1995 AP 521].
96 State of H.P. v. Parent, AIR 1985 SC 910 [LNIND 1985 SC 123]; Shivajirao v. Mahesh, AIR 1985 SC 194 .
97 The Supreme Court of India also felt that when any member of a public or social organization espoused the cause of
the poor, he should be able to move the Court by just writing a letter, because it would not be fair to expect a person
acting pro bono publico to incur expenses from his own pocket in order to go to a lawyer and prepare a regular petition
to be filed in Court for endorsement of the fundamental rights of the poor. In such a case, a letter addressed by him to
the Court can legitimately be regarded as an appropriate proceeding within the meaning of Article 32 of the
Constitution. The Supreme Court thus evolved what has come to be known as "epistolary jurisdiction", where the Court
can be moved by just addressing a letter on behalf of the disadvantaged class of persons. Epistolary jurisdiction was a
major breakthrough achieved by the Supreme Court in bringing justice closer to the large masses of people.
98 AIR 1982 SC 1473 [LNIND 1982 SC 135].
99 Ibid.
100 C.M. Jariwala, "Public order under prevention detention: The judicial and legislative responses", Indian Bar Review ,
vol. 6 (1989), pp. 168-69; K. Narayana Rao, "Right to Compensation for unlawful detention in India", vol. 26 (1986), pp.
516-8; C.M. Jariwala, "Justice Bhagwati and Personal liberty", The Banaras Law Journal , vol. 16 (1980), pp. 51-81;
K.D. Gaur, "Personal Liberty and National Emergency: A Critical Appraisal", Kurukshetra University Law Journal , vol. 4
(116) 1978, pp. 18-34; S.V. Pulla Reddy, "Preventive Detention and National Security: The Scope for Judicial Scrutiny",
Cochin University Law Review , vol. 9 (1985), pp. 473-81; Satvinder Mohan Mehta, "Preventive Detention Laws, Their
Enforcement and the Judiciary vis--vis Personal liberty", Kurukshetra Law Journal , vol. 4 (116), 1978, pp. 116-30;
Chandra Pal, "Personal Liberty and Preventive Detention", Kurukshetra University Law Journal , vol. 4 (116), 1978, pp.
143-52; Rajatrana, "Could Domestic Courts Enforce International Human Rights Norms? An Empirical Study of The
Enforcement of Human Rights Norms by the Indian Supreme Court Since 1997", Indian Journal of International Law ,
vol. 49, no. 4 (2009), pp. 533-575.
101 Rex v. Halliday, 1917 AC 260.
102 C.M. Jariwala, "Justice Bhagwati and Personal Liberty", Banaras Law Journal , vol. 16 (1980), pp. 57-75.
103 The term finds mention in entry 9 of List I which empowers the central legislature to pass law with regard to preventive
detention. It also appears in Entry 3 of List III under Schedule VII which empowers both the Central and the State
Legislatures to make laws on preventive detention.
104 Article 22(4) to (7) stipulates:
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three
months unless:
(a) An Advisory Board consisting of persons who are, or have been, or are have qualified to be appointed as Judges
of a High Court has reported before the expiration of the said period of three months that there is in its opinion
sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention beyond
the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a)
and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the
authority making the order shall, as soon as may be, communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose
facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe:
(a) the circumstances under which, and the class of case in which, a person may be detained for a period longer than
three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board
in accordance with the provisions of sub-clause (1) of clause (4);
(b) the maximum period for which any person may in class or classes of cases be detained under any law providing
detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause(a) of clause (4).
105 AIR 1950 SC 27 [LNIND 1950 SC 22]. [The case arose from a petition filed by Gopalan under Article 32(1) of the
Constitution of India for a writ of habeas corpus against his detention in a Madras jail. While he was under detention
Page 25 of 27
under one of the orders of the Madras State Government, on 1st March, 1950 he was served with an order made under
Section 3(1) , L, Preventive Detention Act (IV) 4 of 1950. He challenged the legality of the order as he contended that
Act (IV) 4 of 1950 contravenes the provisions of Articles 13, 19 and 21 and the provisions of the Act were not in
accordance with Article 22 of the Constitution.
106 AIR 1951 SC 270 [LNIND 1951 SC 24][In this case a man was detained under the Preventive Detention Act for making
allegedly prejudicial speeches, detenu was unable to challenge his detention on the grounds of a violation of his rights
under Article 19(1)(g) because the legislation did not attempt directly to control citizens freedom of speech.]
107 AIR 1951 SC 187 .
108 AIR 1964 SC 334 [LNIND 1963 SC 214].
109 AIR 1984 SC 104 .
110 Binod Bihari v. State of Bihar, AIR 1974 SC 2125 [LNIND 1974 SC 291]; State of Orissa v. Manilal Singhania, AIR
1976 SC 456 ; Kishori Mohan v. State of West Bengal, AIR 1972 SC 1949 ; Akshoy Konai v. State of West Bengal, AIR
1973 SC 300 .
111 AIR 1975 SC 473 ; Gandhi Sardar v. Union of India, AIR 1975 SC 755 .
112 Ibid .
113 Khudiram Das v. State of West Bengal, AIR 1975 SC 550 [LNIND 1974 SC 386].
114 Haradhan Saha v. State of West Bengal, AIR 1975 SC 775 [LNIND 1975 SC 26].
115 Jariwala, n. 102, pp. 50-82.
116 Human Rights: A Compilation of International Instruments (New York, 1988), p. 23.
117 For the text of Indias instrument of accession, see Indian Journal of International Law , vol. 20 (1980), pp. 118-19.
118 Human Rights International Instruments: Signatures, Ratifications, Accessions, etc., 1 July, 1982 (United Nations, New
York, 1982), p. 52.
119 AIR 1993 SC 1960 [LNIND 1993 SC 1167].
120 AIR 1983 SC 1086 [LNIND 1983 SC 181].
121 In this case the petitioner (Rudul Shah) was acquitted by the Session Court of Muzaffarpur on 3 June, 1968,
unfortunately he languished in jail for another fourteen years, finally released on 16 October, 1982.
122 AIR 1983 SC 1080 .
123 AIR 1984 SC 1026 [LNIND 1984 SC 120].
124 Bhim Singh v. State of J&K, AIR 1986 SC 494 [LNIND 1985 SC 350]; Peoples Union for Democratic Rights v. State of
Bihar, AIR 1987 SC 355 [LNIND 1986 SC 531]; Saheli, a Womens Resource Centre v. Commissioner of Delhi Police,
AIR 1990 SC 513 ; State of Maharashtra v. Ravikant S. Patil, AIR 1991 SCW 871 ; Kumari v. State of Tamil Nadu, AIR
1992 SC 2069 .
125 The Commission was constituted by an Act of Parliament. The Act is divided into eight Chapters consisting of 43
Articles. Special Powers conferred to NHRC under Article 10(c) which says, "The Commission shall regulate its own
procedure". There are 19 Articles under Procedural Regulations.
126 See for details, The Protection of Human Rights Act, 1993 with Procedural Regulations (National Human Rights
Commission, New Delhi, 1993).The Human Rights Act was amended in 2006.
127 Ibid ., pp. 3-4.
128 Ibid ., Section 5 , pp. 4-5.
129 Ibid ., Section 6 , p. 6.
133 Ibid ., Section 10 , pp. 5-6.
135 The Commission took suo motu action on basis of press report on 12 January 1994 concerning the alleged tattooing
the words " jebkatri " on the forehead of an alleged pick pocket by the Amritsar Police Personnel, Annual Report ,
National Human Rights Commission (New Delhi), 1993-94, p. 22.
Page 26 of 27
136 The Commission has decided to intervene in the pending court proceedings in the Punjab & Haryana Court relating to
the disappearance of Harjit Singh. Already two years had passed since the Punjab & Haryana High Court calling for a
report on this matter from Sessions Judge, Chandigarh, the Commission finally on 23 May, 1995, decided to intervene
in pending proceedings before the High Court, Human Rights Newsletter , vol. 2, no. 7 (1995), p. 1.
137 Report of the All-India Jail Manual Committee of 1957-59; the Report of the All-India Committee on Jail reforms 1980-
83 chaired by Justice A.N. Mulla (popularly known as Mulla Committee Report); The Report of the National Expert
Committee on Women Prisoners of 1987 chaired by Justice V.R. Krishna Iyer; the Report of the Group of officers on
Prison Administration chaired by Sri R.K. Kapur in 1987. In addition to this the Commission remains mindful of the need
for the country to abide by the United Nations Standard Minimum Rules for the Treatment of Prisoners of 1957.
138 National Human Rights Commission, Second Annual Report, 1994-95 (New Delhi, 1994-95), pp. 12-16.
139 See n. 125, p. 7.
140 Report, n. 135.
141 National Human Rights Commission, First Annual Report, 1993-94 (New Delhi, 1993-94), pp. 28-29.
142 National Human Rights Commission, Second Annual Report, 1994-95 (New Delhi, 1994-95), p. 27.
143 Currently, 29,179 complaints attracted the consideration of the Commission. The Commission has disposed off 4013
cases with directions by the Commission to the appropriate authorities for action at their end by 19 July, 2013. Available
at http://www.nhrc.nic.in visited on 19 July, 2013.
144 Under this regulation, the Commission had decided not to entertain cases relating to (a) events which happened more
than one year before the making of the complaint, (b) matters which are sub judice, (c) those that are vague,
anonymous or pseudonymous, (d) those that are frivolous in nature, or (e) matters which are outside the purview of the
Commission.
145 Section 8(7) of procedural regulation, n. 125, p. 27.
146 Section 8(8) of procedural regulation, n. 125, p. 27.
147 Ibid ., pp. 10-12.
148 Ibid ., Section 8(10) , p. 27.
149 Ibid ., Section 8(11) of the Act, p. 27.
150 The Commission has asked the Government of Pondicherry to prosecute five police constables found guilty of raping a
tribal girl; Human Rights Newsletter , vol. 2, no. 1 (1995), p. 2; Due to the Commissions intervention prosecution has
been initiated against the accused persons responsible for the murder of two women belonging to the scheduled
castes, Govindammal and Boopathy , mother and sister respectively of a certain Veluswamy in Puduchatiram village,
Salem District, Tamil Nadu, Human Rights Newsletter , vol. 2, no. 3 (1995), p. 3; upon the recommendation of the
Commission, a case under section 302 IPC has been registered against a police constable for the alleged murder of
Sariful Hussain alias Babu Hussain in police custody,Human Rights Newsletter , vol. 2, no. 4 (1995), p. 2; The
Commission recommended prosecution of forest officials who were involved in the killing of Ganeshan , in this case the
Commission also recommended to the State Government that a compensation of Rs. 50,000 be paid to the next of kin
of deceased. Human Rights Newsletter , vol. 2, no. 7 (1995), p. 2.
151 Upon the recommendation of the Commission, the Tamil Nadu Government has sanctioned a sum of fifty thousand
rupees as a compensation to the parents of fifteen year old boy Raja alias Murugan, Human Rights News letter , vol. 2,
no. 2 (1995), p. 2; Compensation of Rs. 1 lakh was ordered for killing of Baljinder Singh by Punjab police, Human
Rights News letter , vol. 2, no. 6 (1995), p. 4; The Andhra Government has sanctioned rupees fortyfive thousand for
treatment of Kankatisail U., who sustained serious injuries at the hands of naxalites. Human Rights Newsletter , vol. 2,
no. 6 (1995), p. 2; In a major move to bring about "quick and appropriate sensitisation of police personnel and others,
the Commission has taken the view that compensation to be paid in custodial death cases should be borne by
delinquent public servant and not by the State. First case, in regard to the custodial death of Anthoniswamy of Tamil
Nadu, the Commission recommended that an interim compensation of Rs. 25,000 be paid within one month to the next
of the kin of the deceased. In second incident, Babula Das of Orissa was taken into custody in connection with a case
of theft. In view of the admitted position of the Orissa Government his death had occurred in police custody as a result
of torture, the Commission recommended to the Orissa government to pay Fifty thousand as compensation to the next
of kin of deceased. In the third incident, the Rajasthan Government in its report to the Commission accepted the fact
that Teja Ram was taken into custody for recovery of a stolen TV set and he was held in detention for two days, later he
died in police custody. The Commission, recommended compensation of twenty thousand should be paid to the next of
the kin of the deceased. In all these three cases the Commission asked respective States to recover amount from
delinquent police officials. Human Rights Newsletter, vol. 2, no. 11 (1995), pp. 2-3; on recommendation of the
Commission, Bihar government paid one lakh rupees as compensation to Mrs. Ashima of Danapur Bihar whose
husband was shot dead in the riots following demolition of Babri Masjid" , Human Rights Newsletter , vol. 3, no. 1
(1996), p. 21. The Assam State Government sanctioned a sum of rupees fifty thousand as compensation to the kin of
Gopal Gwala who died in police custody; Human Rights Newsletter , vol. 3, no. 2 (1996), p. 3.
Page 27 of 27
152 See fn. 150.

153 See fn. 151.
154 See Amnesty International Report (London, 1977), p. 79.
155 Cf. Mani, n. 2, p. 60.
156 Ibid .
157 On 1 November 1993, the Commission took suo motu cognisance of the incident , Annual Report, 1993-94, pp. 11-12.
158 Mani, n. 2, p. 61.
159 Article 4(2) under CP Covenant, Article 15(2) under European Convention, Article 27(2) under American
Convention contains a list of Non-Derogable rights.
End of Document
CHAPTER 5 Jurisprudence of Non-Derogable Human Rights at the
International Level
Manoj Kumar Sinha
Human Rights
CHAPTER 5 Jurisprudence of Non-Derogable Human Rights at the

International Level
This chapter dwells on major determinations made by principal international and regional bodies with regard to
non-derogable rights. It will mainly cover the decisions of the Human Rights Committee at the international level
and those of the European Court of Human Rights and the European Commission of Human Rights, the American
Court of Human Rights and the American Commission on Human Rights at the regional level. An effort will also be
made to identify post-Second World War international judicial decisions on international humanitarian law. In
practice, there are only three human rights courts, all three at regional levels, namely the European Court of Human
Rights, American Court of Human Rights and the African Court of Human Rights. On the international plane, the
International Covenant on Civil and Political Rights does not have any provision for a court. It has established a
Human Rights Committee (hereinafter referred to as the Committee), which makes recommendations on cases
related with violations of human rights on the basis of a quasi-judicial determination. 1
SECTION I : THE HUMAN RIGHTS COMMITTEE OF THE CP COVENANT

The condition for admissibility of a communication is covered under Article 1 of the Optional Protocol to the CP
Covenant, which provides that a State which is a party to the Protocol must have recognised the competence of the
Committee to receive communications from individuals subject to its jurisdiction who claim to be victims of a
violation of any of the rights protected by the CP Covenant. 2
Under the Optional Protocol, individuals who claim that their rights guaranteed in the CP Covenant have been
violated and who have exhausted all available domestic remedies may submit written communications to the
Committee for consideration. The Committees work in relation to individual communications is divided into two main
stages: (a) determining whether they are admissible under the Optional Protocol; and (b) examination of the merits
of the cases, and formulation of the Committees final views under its rules of procedure. A communication may not
be declared admissible unless the State party concerned has been given an opportunity to submit information or
observations relevant to their admissibility. 3
The implementation procedure of international human rights instruments had already been discussed in detail in
Chapter III. This section will confine itself to important decisions pronounced by the Committee in respect of non-
derogable human rights.
I. RIGHT TO LIFE
Article 6 :
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the
most serious crimes in accordance with the law in force at the time of the commission of the crime and not
contrary to the provisions of the present Covenant and the Convention on the Prevention and Punishment
of the Crime of Genocide. This penalty can only be carried pursuant to a final judgement rendered by a
competent court.
Page 2 of 35
CHAPTER 5 Jurisprudence of Non-Derogable Human Rights at the International Level
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall
authorise any State Party to the present Covenant to derogate in any way from any obligation assumed
under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty,
pardon or commutation of the sentence of death, may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and
shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any
State Party to the present Covenant.
The right enshrined in this article is the supreme right of a human being. It follows that the deprivation of life by
authorities of a State is a matter of utmost gravity. This emanates from the article as a whole and in particular,
paragraph 2 of Article 6 which provides that a "sentence of death may be imposed only for the most serious
crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the
provisions of the Covenant". Thus, a link is established between the imposition of a sentence of death and
observance by State authorities of guarantees under the Covenant. Accordingly, in cases where the Committee
found that the State party had violated Article 14 of the Covenant, in that the author had been denied a fair trial
and appeal, the Committee held that the imposition of the sentence of death entailed a violation of Article 6 . 4 The
Committee has given its views in various cases related with Article 6 . A few important cases will be discussed
here.
Illustrative Cases
(i ) Eduardo Beleier v. Uruguay
Violation of Article 6 of the CP Covenant have been alleged in a small number of communications. In Beleier v.
Uruguay, 5 one of the principal issues was what had happened to Eduardo Beleier(E.B). The victims wife and
daughter alleged and provided information that E.B. had been arrested, detained and tortured by the government
authorities. The government had only responded by stating that a warrant had been issued since August, 1976 but
that his whereabouts was unknown. In its interim decision, the Committee decided:
...the failure of the State Party to address in substance, the serious allegations brought against it and corroborated by
unrefused information, cannot but lead to the conclusion that Eduardo Bleier (sic. ) is either still detained, incommunicado,
by the Uruguayan authorities or has died while in custody at the hands of Uruguayan authorities. 6
The Uruguayan government strongly objected to the Committees interim decision, alleging that the Committee had
displayed not only an ignorance of legal rules relating to presumption of guilt but a lack of ethics in carrying out its
tasks. The Committee categorically rejected such criticism. It stated:
The Human Rights Committee cannot accept the State Partys criticism that it has displayed an ignorance of rules and a
lack of ethics in carrying out the tasks entrusted to it or the insinuation that it has failed to carry out its task under the rule of
law. On the contrary, in accordance with its mandate under Article 5(1) of the Optional Protocol, the Committee has
considered the communication in the light of the information made available to it by the authors of the communication and
by the State Party concerned. In this connection the Committee has adhered strictly to the principle audi a turet altera pars
and has given the State Party every opportunity to furnish information to refute the evidence presented by the authors. 7
It is evident from the case that the Committee provided the State party every opportunity to furnish evidence in
defence of the allegations. It allowed repeated extensions for submissions as stipulated in Article 4(2) of the
Protocol. 8 Although flexibility regarding time limits to the State party may result in an undue delay for the
complainant, in principle this will facilitate States parties to provide information to the Committee, whose view will
carry great weight on the subject matter.
(ii ) Hugo Dermit Barbato v. Uruguay
In H. Barbato v. Uruguay, 9 Barbato had completed eight years in imprisonment in July, 1980 but was still kept in
detention on the pretext of "prompt security measures". The Uruguayan authorities had agreed to release Barbato
on condition of his leaving the country. He was informed that he would be released if he would leave for Sweden on
Page 3 of 35
his release, but this decision was later revoked. At the end of November, 1986 Barbato was shifted to Montevideo
Police Headquarters and after that his whereabouts were unknown till 28 December, 1986 when his mother was
called to the Military Hospital and shown Barbatos body for identification. The death certificate stated the cause of
death as "acute haemorrhage resulting from a cut of carotid artery" and Barbatos mother was told that he had
committed suicide with a razor blade. Barbatos cousin alleged in his complaint that the explanation given by the
police was false and that Barbato had died of maltreatment and torture to which he had allegedly been subjected. 10
In its decision on admissibility, the Committee held that the communication was admissible and requested the
State party to respond to its queries relating to Barbato.
The State party forwarded a transcript of the autopsy report concerning Barbato. Expressing its views the
Committee stated that it had taken into account the following considerations:
Only a transcript of the autopsy report had been submitted. The State Party has not submitted any report on the
circumstances into which Hugo Dermit (H) died or any information as to what inquiries have been made or the outcome of
such inquiries. Consequently the Committee cannot help but give appropriate weight to the information submitted by the
author, indicating that a few days before Hugos death he had been seen by other prisoners and was reported to have been
in good spirits, in spite of the interruption of the preparations for his release and departure from Uruguay. While the
Committee cannot arrive at definite conclusion as to whether Hugo Dermit committed suicide or was killed by others while
in custody; yet, the inescapable conclusion is that in all the circumstances the Uruguayan authorities either by act or by
omission were responsible for not taking adequate measures to protect his life, as required under Article 6(1) of the
Covenant. 11
In the Committees view, Article 6 had been violated in this case as "the Uruguayan authorities had failed to take
appropriate measures to protect Barbatos life while in custody". The approach of the Committee would seem to
mirror the customary international law obligation of a State to account for an individual held in custody.
(iii ) Guerrero v. Colombia
In Guerrero v. Colombia, 12 the complainants wife died in the course of a police raid on a house where it was
believed that a kidnapped ambassador was being held captive. Guerrero was not found at the time of raid, but the
police patrol waited in the house for the arrival of the suspected kidnappers. Seven persons who subsequently
entered the house were shot dead by the police. Among them was the complainants wife, Mrs. Guerrero. 13 The
police initially claimed that the victim had died while resisting arrest whereas the forensic, ballistic, and other tests
repudiated this account.
The office of the State Counsel for the National Police instituted an administrative inquiry into this case. The
criminal investigations into the case were defeated by recourse to Decree Law No. 0070 of 1978. 14 The Decree
established a new ground of defence that could be pleaded by members of the police force to exonerate them if an
otherwise punishable act was committed, "in the course of operations planned with the object of preventing and
curbing the offences of extortion and kidnappings..." 15 Unfortunately, the Supreme Court of Colombia had already
held the Decree to be Constitutional. 16
In this case the Committee pointed out the factual elements suggesting that the police action was not necessary;
the victims were given no warning, no opportunity to surrender or to offer any explanation, and were only suspects.
In this way the Committee introduced the principle that the State action must be proportionate to the requirements
of law enforcement.
(iv ) Baboeram and Others v. Surinam
In the case involving Baboeram and others v. Surinam, 17 the Committee had to consider a notorious incident in
which fifteen persons were arrested, subjected to violence and executed on 8 December, 1982 while in custody of
the army. They included four journalists, four lawyers, amongst whom was the Dean of the Bar Association, two
university professors, one trade union leader, two businessmen, and two army officers. Most of them were
members of the newly formed Surinam Association for Democracy. This group had written an open letter to the
Head of State, calling for a constructive dialogue with a view to ensure return of the country to Constitutional rule,
parliamentary elections and the Rule of Law. Communications were submitted on behalf of the seven of the victims,
alleging violation of Articles 6 (right to life), 7 (prohibition against torture), 17 (right to be free from arbitrary or
unlawful interference with privacy) and 19 (right to hold opinions without interference). 18
Page 4 of 35
The State party had objected to the admissibility of the complaint under Article 5 of the Optional Protocol on the
ground that the same matter had been submitted to another international organisation. 19
The Committee rejected this argument stating that investigation by inter-governmental organisations concerning
the human rights situation in a country could not be seen as the same matter as the examination of individual cases
within the meaning of Article 5 , nor could procedures established by non-governmental organisations such as the
International Commission of Jurists, Amnesty International or the ICRC constitute a procedure of international
investigation or settlement.
In rendering its decision the Committee took note of the State partys failure to provide the information and
clarification requested by the Committee. 20
The Committee then went on to conclude that the 15 prominent persons lost their lives as a result of the deliberate
action of the military police; that the deprivation of life was intentional and that therefore the victims had been
arbitrarily deprived of their lives contrary to Article 6(1) of the CP Covenant.
Two principles developed through this case: First, the Committees jurisdiction is independent of the jurisdictions of
other bodies. Second, failure of the State to provide requisite information to the Committee may lead to a finding of
fault against the State.
(v ) Herrera Rubbio v. Colombia
In Herrera Rubbio v. Colombia, 21 H. Rubbio was allegedly arrested and tortured by Colombian military authorities,
who also threatened him to sign a confession,otherwise his parents would be killed. Subsequently, the Colombian
military authorities went to the home of H. Rubbios parents and took them away by force. A week later corpses of
Rubbios parents were discovered. A judicial investigation on the killing was carried out and the State party claimed
that no member of the Armed Forces had taken part in the killings. 22 As regards Article 6 , the Committee
expressed the following view:
Whereas the Committee considers that there is reason to believe, in the light of the authors allegations, that Colombian
military persons bear responsibility for the death of Jose Herrea (sic. ) and Emma Rubbio de Herrera, no conclusive
evidence has been produced to establish the identity of the murderers. 23
The principles which developed from this case are that (a) a State has a duty to show due diligence in taking
measures to prevent disappearance and killings, and (b) it has a duty to diligently investigate such cases.
The Committee expressed the view that there had been a violation of Article 6 , because the State party failed to
take appropriate measures to prevent the disappearance and subsequent killing of Jose Herrera and Emma Rubbio
de Herrera and to effectively investigate the responsibility for their murder. 24
(vi ) Miango v. Zaire
In Miango v. Zaire, 25 Miango was allegedly kidnapped, taken to a military camp and tortured. He was later seen in
a precarious physical condition in a hospital at Kinshasa. Later Miangos relations were brought to the hospital to
identify his body. The explanation in the report of the traffic police was that Miango died as a result of an accident.
The Committee did not accept this. They preferred the explanation given in a report by a forensic physician that
Miango had died as a result of traumatic wounds probably caused by a blunt instrument. Miangos family had
requested the public prosecutors office to conduct an inquiry into the death of Miango, and in particular that the
military officer who delivered Miango to the hospital be summoned for questioning. However, the officer concerned,
with the consent of his superiors, refused to be questioned.
Noting the failure of the State party to furnish any information and clarifications, the Committee expressed the view
that the facts disclosed a violation of Article 6(1) of the Covenant. 26 The principle that failure of the State to give
full information may lead to a finding of fault against it.
(vii ) Mbenge v. Zaire
The most relevant decision of the Committee concerning Article 6 perhaps is Mbenge v. Zaire, 27 in which a
Zairian citizen and former Governor of the Shabaregion, left Zaire in 1974 and thereafter resided in Belgium as a
Page 5 of 35
political refugee. In his absence he was twice sentenced to capital punishment by Zairian tribunals. The Committee
examined the information and stated that the facts disclosed violations, inter alia, of Article 14(3)(a), (b), (d) and
(e) 28 because Mbenge was charged, tried and convicted in circumstances in which he could not effectively enjoy
the safeguards of due process enshrined in Article 14 . Mbenge had also alleged a breach of Article 6 . On this the
Committee expressed the view that:
Paragraph 2 of that article provides that the sentence of death may be imposed only in accordance with the law in force at
the time of the commission of the crime and not contrary to the provisions of the Covenant. This requires that both the
substantive and the procedural law in the application of which the death penalty was imposed was not contrary to the
provisions of the Covenant and also that the death penalty was imposed in accordance with that law and therefore in
accordance with the provisions of the Covenant. Consequently, the failure of the State Party to respect the relevant
requirements of Article 14(3) leads to the conclusion that the death sentences pronounced against the author of the
communication were imposed contrary to the provisions of the Covenant, and therefore in violation of Article 6(2) . 29
The Committee has considered a small number of cases on Article 6 . The Committee has had to deal with some
important aspects of Article 6 . There is a "clear duty" to make full, thorough, and effective inquiries concerning
alleged violations. The Committee expressed its view in the Hugo Dermit Barbato case that the State has an
obligation to prevent custodial death. There are various obligations to be considered upon a finding of a violation of
the right to life. For example, the obligations to compensate the family and to amend the law which does not
adequately protect the right to life. 30 The Committee has developed two principles in the Baboeram case: (i) that
the Committees jurisdiction is independent of the jurisdictions of other bodies, and (ii) that failure of the State to
provide requisite information to the Committee may lead to a finding of fault against the State. The Committee has
stressed that the right to life is the "supreme right" and that Article 6 requires strict controls and limitations on the
circumstances on which a person may be deprived of life by the authorities of the State.
II. TORTURE
Article 7 of the CP Covenant:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall
be subjected without his free consent to medical or scientific experimentation.
The Committees view on Article 7 under the reporting procedure has provided a useful opportunity for obtaining
information on how the States parties apply the prohibition in Article 7 in their domestic systems. 31 Here the study
will delve into some important cases related with Article 7 and try to highlight the significance of the Committees
view on this article.
(a) Ambrosini v. Uruguay
In the first case Ambrosini v. Uruguay, 32 it was alleged that Ambrosini was held incommunicado in an unidentified
place, confined with four other political prisoners in a cell measuring 4.2 meters by 2.5 meters in conditions
seriously detrimental to his health. The Committee expressed the view that the facts revealed, inter alia, violation of
Article 7 and 10(1) because Ambrosini was detained under conditions seriously detrimental to his health. 33
(b) Antonaccio v. Uruguay
In Antonaccio v. Uruguay, 34 the Committee expressed the view that there had been violation of Article 7 and
10(1) because Antonaccio was held in solitary confinement for three months in an underground cell, subjected to
torture over a period of three months, and denied the medical treatment which his condition required. 35
(c) Lanza and Perdoma v. Uruguay
In another finding in Lanza and Perdoma v. Uruguay 36 allegations of ill-treatment of Lanza and physical and
mental torture of Perdoma, the Committee expressed the view that the facts disclosed pointed to violation of Article
7 and 10(1) 37 as per the "treatment which they have received while in detention". 38 No comment was, however,
made on the allegations of mental as distinct from physical torture. Torture covers both physical and mental torture.
(d) J.L. Mussero v. Uruguay

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In the J.L. Mussero v. Uruguay 39 it was alleged that Mussero had been forced to remain standing with his head
hooded for many hours, had lost his balance, fallen down, and broken his leg. The injury was not immediately taken
care of. Due to this fact, one leg was left several centimetres shorter than the other one. The Committee found that
as a result of the maltreatment received Mussero had suffered permanent injury, and expressed the view that the
facts disclosed violations of Article 7 and 10(1) because during detention Mussero was tortured as a result of
which he suffered permanent physical damage, 40 although the Committee did not define the term "torture". The
only factual evidence of Musseras mistreatment was that he was hooded and forced to remain standing for long
hours. Evidently, the Committee held that torture included hooding and being forced to remain standing for long
hours.
(e) De Bouton v. Uruguay
The term "degrading treatment" has appeared only in a small number of cases. In De Bouton v. Uruguay, 41 Bouton
alleged that she was subjected to "moral and physical ill treatment" including once being forced to stand for thirty-
five hours with minor interruptions, that her wrists were bound causing pain and that her eyes were continuously
kept bandaged. 42 The Committee expressed the view that there had been violations of Article 7 and 10(1) on the
basis of "inhuman" and "degrading treatment". However, there was no discussion or explanation, in the Committees
decision, of the term "degrading treatment" or how it was to be distinguished from "inhuman treatment" or why other
cases concerning similar factual allegations have been designated only as "inhuman treatment", "severe treatment"
or "ill treatment" but not "degrading treatment".
(f) Gilbo v. Uruguay
In Gilbo v. Uruguay, 43 the Committee expressed the view that Gilbo had been subjected to "torture and to cruel
and degrading treatment". In its statement of facts, the Committee referred to the torture (beating, "electric prod",
stringing up) to which Gilbo had been subjected. There is no explanation of "cruel and degrading treatment". The
allegations included "various forms of continuous degradation and violence, such as always having to remain naked
with the guards and torturers, threats and insults and promises of further acts of cruelty." 44
(g) Valcada v. Uruguay
In Valcada v. Uruguay, 45 it was alleged that Valcada has been tortured, ill-treated, and subjected to conditions of
detention which violated the Covenant. 46 In its final view the Committee stated that:
As regards the allegations of ill-treatment, the Committee noted that in his communication the author named the senior
officers responsible for the ill-treatment which he alleged he received. The State Party adduced no evidence that his
allegations of ill-treatment have been duly investigated in accordance with the laws to which it drew attention...A refutation
of these allegations in general terms is not enough. The State Party should investigate the allegation in accordance, with
the laws.
...As regards Article 7 of the Covenant the Committee cannot find that there has not been any violation of this provision.
In this respect the Committee notes that the State Party has failed to show that it had ensured to the person concerned the
protection required by article 2 of the Covenant. 47
The Committee ruled that a general refutation of the allegations is not enough, but the State should show that the
allegations have been properly investigated.
(h) E. Quinteros and M.C. Almmedia de Quinteros v. Uruguay
Another important case concerning Article 7 is E. Quinteros and M.C. Almmedia de Quinteros v. Uruguay. 48 A.Q.
submitted the communication on behalf of herself and her daughter E.Q. It was alleged that E.Q. was arrested by
military personnel from the premises of the Venezuelan Embassy in Montevideo and systematically tortured. 49 The
Uruguayan authorities denied that the government had any part in the episode and stated that the authorities were
still searching for E.Q. throughout Uruguay. 50
The Committee found that on 28 July, 1976, E.Q. was arrested from the premises of the Embassy of Venezuela at
Montevideo by at least one member of the Uruguayan police force and that in August, 1976 she was held in a
military detention centre in Uruguay where she was subjected to torture. 51 The Committee expressed the view that
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there had been violation of Article 7 and 9 , and 10(1) of the Covenant. A.Q. had also claimed, inter alia, that she
was a victim of violation of Article 7 (psychological torture because she did not know where her daughter was) and
of Article 17 (because of interference with her private and family life). 52 The Committee stated that:
With regard to the violations alleged by the author on her own behalf, the Committee notes that, the statement that she
was in Uruguay at the time of the incident regarding her daughter, was not contradicted by the State Party. The Committee
understands the anguish and stress caused to the mother by disappearance of her daughter and the continuing uncertainty
concerning her fate and whereabouts. The author has a right to know what has happened to her daughter. In these
respects, she too is a victim of the violations suffered by her daughter in particular, of article 7 . 53
As disappearance of a near and dear one may result in psychological torture of another, the disappearance of the
daughter resulted in the psychological trauma of the mother.
From the above view of the Committee, it is clear that both E.Q. and A.Q. were victims of psychological torture.
One commentator 54 noted that:
The most important aspect of the Quinteros decision is that it recognises as a violation of the Covenant a States acts which
cause anguish and suffering to the immediate relatives of disappeared persons. This has never been done before in a
human rights case. By expanding the class of victims of human rights violations by States parties to the Covenant, the
decision increases the number of persons who may be afforded a remedy by the Committee.
(i) Pratt and Morgan v. Jamaica
The Pratt and Morgan v. Jamaica 55 case raised two issues concerning Article 7 :
The first is whether excessive delays in judicial proceedings constituted not only a violation of Article 14 , but "cruel,
inhuman and degrading treatment". The possibility that such a delay as occurred in this case could constitute cruel and
inhuman treatment was referred to by the Privy Council. In principle prolonged judicial proceedings do not per se constitute
cruel, in human or degrading treatment even if they can be a source of mental strain for the convicted prisoners. However,
the situation can be otherwise in cases involving capital punishment and an assessment of the circumstances of each case
would be necessary. In the present cases the Committee does not find that the authors have sufficiently substantiated their
claim that delay in judicial proceedings constituted for them cruel, inhuman and degrading treatment under Article 7 .
Excessive delays in judicial proceedings do not per se constitute cruel, inhuman degrading treatment. However, each case
has to be looked on its own merits.
The second issue under Article 7 concerns the issue of warrants for execution and the notification of the stay of
execution. The issue of a warrant for execution necessarily causes intense anguish to the individual concerned. In the
authors case, death warrants were issued twice by the Governor-General, first on 13 February, 1987 and again on 23
February, 1988. It is uncontested that the decision to grant a first stay of execution, taken at noon on 23 February, 1987,
was not notified to the authors until 45 minutes before the scheduled time of the execution on 24 February, 1987. The
Committee considers that a delay of close to 20 hours from the time of stay to execution was granted to the time the
authors were removed from their death cell constitutes cruel and inhuman treatment within the meaning of article 7 . 56
Delayed communication of stay of execution may amount to cruel and inhuman treatment.
The Committees work under Article 7 under the Optional Protocol has provided a useful opportunity for obtaining
information on how States parties apply the prohibition in Article 7 in their domestic systems.
III. RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION 57
Article 18 of the CP Covenant states:
Article 18(1) provides, "Everyone shall have the right to freedom of thought, conscience and religion". This right
shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in
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community with others and in public or private, to manifest his religion or belief in worship, observance, practice and
teaching.
Paavo Muhonen v. Finland
In Pavvo Muhonen v. Finland, 58 the victim alleged that his rights under Article 18 , paragraph (1) had been
violated because the government had not respected his ethical convictions and his right to be a conscientious
objector to military service. Initially the government had rejected the victims position that he was a conscientious
objector to military service, and had ordered him to perform armed service. His refusal to do so led to criminal
conviction and a jail sentence. At a second hearing before the Military Service Examining Board, at which the victim
personally appeared, his claim was accepted and shortly after that he was pardoned by the President.
After reviewing the facts the Committee decided that the final review of the Examining Board which recognised.
Muhonens status as a conscientious objector obviated the necessity to determine whether Article 18 guaranteed a
right to conscientious objection to military service. However, there was a question as to whether the victim was
entitled to compensation under Article 14 , paragraph (6). 59 After presentation of information by parties, the
Committee determined that the conviction of Muhonen had never been reversed and that the pardon had not been
given on ground of miscarriage of justice, but rather on consideration of equity. Therefore, no claim to
compensation existed under Article 14 . The principle which developed from this case is that where a person was
pardoned off a criminal conviction on the basis of equity, no claim for compensation lies. This, however, leaves
open the issue of the basis of a claim to compensation. If the basis is the fact of deprivation of a right, can that be
washed away by a post facto pardon? Does not pardon justify the previous deprivation? 60
Another case, Bhinder v. Canada, elucidates the scope of Articles 18 and 26 (non-discrimination) of the CP
Covenant. In this case Bhinder, a Sikh by religion, had been dismissed from his employment as an electrician in the
Toronto Coach Yard of the Canadian National Railroads, because he refused to wear a hard hat, arguing that as a
Sikh he could only wear a turban. The Committee expressed its view that there was no violation of Articles 18 and
26 of the Covenant since the hard hat requirement was not discriminatory and was based on reasonable and
objective considerations of safety. The principle developed from this case is that the right to freedom of conscience
does not militate against a non-discriminatory requirement based on reasonable and objective considerations of
safety.
SECTION II : EUROPEAN COURT OF HUMAN RIGHTS AND EUROPEAN

COMMISSION OF HUMAN RIGHTS
This part of the study covers the major judicial decisions pronounced by the European Court of Human Rights and
the European Commission of Human Rights. Emphasis in this part will chiefly be on decisions delivered on non-
derogable rights. Two types of implementation machinery are available for the protection and promotion of the
rights under the European Convention, Article 19 of which provides:
To ensure the observance of the engagements under taken by the High Contracting Parties in the Present
Convention, there shall be set up:
1. A European Commission of Human Rights hereinafter referred to as the Commission.

2. A European Court of Human Rights, hereinafter referred to as the Court.
The European Court of Human Rights 61 was not established until 1958, whereas the European Commission, was
established immediately following the entry into force of the Convention in 1953. The Court could only come into
operation when the condition for the recognition of its jurisdiction by at least eight States had been fulfilled.
As seen already, there are four non-derogable rights available under the European Convention on Human Rights,
they are mainly Article 2 , 3 , 4(1) and 7 , right to life, right against torture, right against slavery and freedom from
retroactive criminal offences.
I. RIGHT TO LIFE

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1. Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his conviction of a crime for which this penalty is provided
by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the
use of force which is no more absolutely necessary.
(a) in defence of any person from unlawful evidence;
The right to life guaranteed in the European Convention, under Article 2 is the supreme human right of all.
Surprisingly, the European Court has not decided a single case specifically invoking this article, although there are
some cases which are pending before the Court related with Article 2 . The only case in which a breach of Article
2 has been found was Cyprus v. Turkey. 62
The right to life is a basic human right. Article 2 provides non-derogable protection of the right to life. Decisions
under Article 2 do not yet provide a clear answer to this question but do suggest that it places two distinct duties
on the national authorities, although their scope is unclear. 63 First, it implies that the public authorities should
refrain from some acts or omissions which directly endanger life. 64 Secondly, Article 2 implies a positive
obligations on the part of the State authorities to take reasonable steps in order to prevent the deprivation of life by
individuals. 65 However, it was held in W v. UK 66 that these measures will not be scrutinised in detail.
The decisions of the European Commission and the Court on the right to life cover the following aspects, namely,
obligation to protect the right to life and restrictions on taking life.
(a) The Obligation to Protect the Right to Life by Law with Reference to the Right of the Unborn Child
The first sentence of Article 2 requires States to take action to prohibit unlawful killing. This establishes a positive
obligation for States to make adequate provision in their law for the protection of human life.
Article 2 states that "everyones right to life must be protected". A question that came up was whether the word
"everyone" required that the right to life of an unborn child be protected. 67
In Paton v. UK, 68 the Commission ruled that the abortion of a ten-week-old foetus under British law to protect the
physical or mental health of a pregnant woman was not in breach of Article 2 . In doing so, it stated that Article 2
does not recognise an absolute right to life of an unborn child and that it could not be protected to the detriment of
the health of the mother. However, the Commission left unanswered the question whether Article 2 protects the
unborn child or not.
The Commissions position was again clarified in H v. Norway. 69 In this case, abortion of a fourteen week old foetus
on the statutory ground that the "pregnancy, birth or care for the child may place the woman in a difficult situation of
life", was held not to be contrary to Article 2 . The important aspect of the Commissions decision in H v. Norway
was its understanding that "national laws on abortion differ considerably" within the States parties to the
Convention. Again the Commission did not have to decide the question whether Article 2 protected the unborn
child at all.
(b) Restrictions on Taking of Life
Article 2 imposes liability for the actual taking of life where it is not justified by any of the four exceptions permitted
by its text. In one case, a State has been found to have infringed Article 2 by the taking of life. In Cyprus v. Turkey,
70 contrary to Article 2(1) , the Commission found that twelve Greek Cypriot civilians had been killed in Northern
Cyprus by Turkish soldiers under the command of an officer following the 1974 invasion of northern Cyprus by
Turkey. The Commission was satisfied that a number of Greek Cypriots who had been declared to be missing had
been taken prisoner by Turkish troops following the invasion. 71
Article 2(2) of the Convention permits the taking of life only when it results from the use of force which is "no more
than absolutely necessary" for one or more of the authorised purposes. In Stewart v. UK, 72 the Commission stated
that force is "absolutely necessary" if it is "strictly proportionate to achievement of the permitted purpose". In the
Stewart case, the applicants thirteen year old son died after being hit on the head by a plastic bullet fired by a
British soldier in Belfast. The boy was one of a crowd of some 150 people, some of whom were throwing stones
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and bottles at an eight-man patrol. The patrol officer had ordered a soldier to fire plastic bullets at one of the leaders
of the rioters. While aiming at the youths legs, the soldier was struck by missiles which caused him to hit the
applicants sons head instead. 73 In deciding that the force used was "absolutely necessary", the Commission noted
that public disturbances involving a loss of life were common in Northern Ireland; and that riots such as that on the
facts were sometimes used as cover for sniper fire against soldiers. The Commission justified the ordering of the
baton round to quell the riot. The death of the applicants son resulted accidentally from the deflection of the soldiers
aim, according to the Commission. Determination of proportionate force, depends on the context. Accidental hitting
of bullet used against a violent mob is within the test of proportionality. Article 2 covers not only intentional killings.
It covers all killings not falling within the exceptions, said the Commission.
In the Stewart case, it was argued by the defendant State that Article 2 was concerned only with the intentional
taking of life, so that it did not regulate unintentional killings. The Commission rejected this argument stating that:
...the text of Article 2 , read as a whole, indicates that paragraph 2 does not primarily define situations where it is permitted
intentionally to kill an individual, but defines the situations where it is permissible to "use force" which may result, as the
unintended outcome of the use of force, in the deprivation of life. 74
Article 2(2)(a) allows the use of force in self-defence or the defence of another. This test was later followed in
Wolfgram v. FRG. 75 In this case the police arrested five persons whom they suspected were armed with dangerous
weapons and were on their way to commit a robbery. When one of the men detonated a grenade, the police
opened fire, killing two of the men. The Commission expressed the opinion that the force used is justified in this
case as being "absolutely necessary" both in self-defence and to effect a lawful arrest.
The Commission reached similar conclusions in Diaz Ruano v. Spain 76 in which the accused was killed in police
custody. The accused, a 21 year old young man, with no criminal record, was being questioned by the police
officers at a police station in the absence of his lawyer while under arrest on suspicion of a robbery. Becoming
agitated, the accused snatched a policemans revolver and fired at another policeman. The shot missed the target,
but the policeman fired back which killed the accused. The policemans conviction for manslaughter was overturned
on appeal on grounds of self-defence. The Commission concluded that the killing fell within Article 2(2) as being
"absolutely necessary" in the policemans defence.
In McCann, Farrell and Savage v. UK, 77 three members of the Provisional IRA were shot dead on the street by
SAS soldiers in Gibraltar. The persons killed were suspected of having with them a remote control device to be
used to explode a bomb that was believed to be in a car parked in a public place; the explosion of which would
have caused a "devastating loss of life". In fact, the suspects did not have such a device with them and there was
no bomb in the car. The Commission was of the opinion, by 11 to 6, that the shooting was justified under Article
2(2) . It stated that:
..." given the soldiers" perception of the risk to the lives of the people of Gibraltar that a car bomb could be and was about
to be detonated by the activation of a remote control devicethe shooting of the three suspects can be considered as
absolutely necessary for the legitimate aim of the defence of others from unlawful violence.
Proportionality test in self-defence has to be "judged in the context of the authorities" perceptions of public risk.
(c) To Effect an Arrest or Prevent an Escape
This issue under Article 2(2)(b) was involved in the two Northern Irish cases, viz., Farrell v. UK 78 and Kelly v. UK.
79
In the Farrell case, four soldiers were placed on the rooftop on the basis of information provided by intelligence that
a bomb attack would be made by three men on a bank on the opposite side of the street. When three men were
seen attacking two other men who were depositing money in the banks night shift, the soldier in charge shouted,
"Halt, I am ready to fire". They ran away, and they were fired on with an intent to kill in order to effect their arrest, in
the mistaken belief that they were terrorists.
It was established in civil proceedings in the Northern Ireland courts that the soldiers had no means of contact with
their base and were left in a situation where the only way of stopping the men was to fire at them. The jury found
that the soldiers had used force that was "reasonable in the circumstances" to effect a lawful arrest or in the
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prevention of crime and hence lawful under Section 53(1) of the Criminal Law Act, 1967 of Northern Ireland. The
case resulted in a friendly settlement before the Commission.
The question of shooting with intent to kill to effect a lawful arrest was also raised in the Kelly case. Kelly, a
seventeen-year-old joyrider, was shot dead by soldiers in Northern Ireland who opened fire when he tried to evade
an army checkpost. Prior to the application being made, a civil claim for compensation in tort had failed in the
Northern Ireland courts because the use of force had been lawful under Section 3(1) of the Criminal Law Act, 1967
of Northern Ireland, as being "reasonable in the circumstances in the prevention of crime". The Commission in its
decision on admissibility of the claim under Article 2 , found that the soldiers had fired "in order to effect a lawful
arrest". Having established this, the Commission thought it unnecessary to consider the trial court judges
"prevention of crime" justification for the shooting.
Both the Farrell case and the Kelly case seem to raise the question whether the use of force with intent to kill can
ever be justified to effect an arrest in accordance with a "strict proportionality test".
There is not much case law in this area largely because the Strasbourg authorities have adopted a cautious
attitude to this right and practise only a marginal review of the justification of restrictions. 80
The meaning of the right to life in Article 2 of the Convention has been the subject of a number of cases before
the European Commission of Human Rights, but has not yet been considered by the European Court of Human
Rights.
II. RIGHT AGAINST TORTURE
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The provision formulates the ban on torture in absolute terms. This Article has received some attention by the
European Commission of Human Rights and European Court of Human Rights. 81 There have been numerous
individual applications alleging breach of Article 3 most of which have been rejected at the initial admissibility
stage because, inter alia, the Commission considered the case to be "incompatible with the provisions of the
present convention or manifestly ill-founded". 82
However, only a few of the most illustrative cases will be discussed here. Among the cases which the Commission
has investigated and reported, Republic of Ireland v. United Kingdom may be highlighted. In its decision of 18
January, 1978 in this case, the Commission considered that the so-called "five techniques" 83 of torture involved
serious inhuman treatment and that their use affected the victims both physically and mentally. The Commission
observed that the five techniques were systematically applied for the purpose of inducing persons to give
information. This enabled the Commission to consider unanimously that use of the five techniques constituted a
practice of inhuman treatment and torture. 84
The Irish Government then petitioned the European Court of Human Rights for a ruling that the British Government
had committed breaches of the Convention, in particular to decide that the combined use of the five techniques
amounted to torture. Although before the Court, the British Government did not challenge the Commissions opinion
on this point, the Court by a large majority, held that while the use of the five techniques, was indeed a practice of
inhuman treatment, it did not constitute one of torture.
The Court held:
(i) by sixteen votes to one, that recourse to the five techniques amounted to a practice of inhuman and
degrading treatment;
(ii) by thirteen votes to four, that the use of the techniques did not occasion suffering of the particular intensity
and cruelty implied by the torture. 85
Accordingly, serious suffering or cruelty of high intensity must be shown before torture can be established. One is
still unsure of the distinction between torture, and inhuman and degrading treatment.
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However there is a great force in Sir Gerald Fitzmaurices separate opinion: "Torture is torture whatever its object
may be or even if it has none, other than to cause pain, provided it is inflicted by force". 86
In a number of cases, inhuman treatment was cited by individuals which arose mainly out of alleged assaults of
persons during detention or on remand following conviction. In Tomasz v. France, 87 the applicant was arrested and
charged with murder related to Corsican terrorist activities. The Court upheld his claim that he had been severely
assaulted to the point of ill-treatment in breach of Article 3 while in police custody. The Court relied entirely upon
separate medical certificates and reports provided by four doctors that attested to "the large number of blows
inflicted upon Tomasz and their intensity". This judgement establishes that any unjustified physical force used
against a person in custody is a breach of Article 3 . 88
(a) Inhuman Treatment
The conditions and treatment of persons in a place of detention sometimes may become inhuman. In the Greek
case, the Commission observed that political detainees were kept in inhuman condition, with reference to
overcrowding and to inadequate heating, toilets, sleeping arrangements, food, recreation and provision for contact
with the outside world. 89
Various issues concerning a States responsibility for prison conditions were addressed in McFeeley v. UK. 90 In this
case, prisoners adopted a form of "dirty protest" to secure "special category status". The convicted IRA prisoners
defiled their cells with waste food and urine and smeared the walls of the cell with human faeces. As they refused to
wear prison uniforms, they were allowed to wear blankets in their cell but could not leave their cells naked. The
Commission expressed its opinion that the resulting cell conditions, if imputable to the State, amounted to inhuman
treatment. On the same basis, the prisoners need to go naked if they left their cells would have raised a "serious
question" of compliance with Article 3 . But a State is not generally responsible under Article 3 for self-imposed
conditions of detention and for this reason the United Kingdom was not liable.
A few cases have also been about conditions of detention in mental hospitals. In B v. UK 91 the Commission visited
Broadmoor Hospital, where the applicant was detained. It noted that there was "deplorable overcrowding" in the
dormitory accommodation and also sanitary conditions in certain places were "less than satisfactory". The
Commission considered the facilities at Broadmoor as "extremely unsatisfactory", yet it determined, somewhat
surprisingly, that there was no inhuman treatment contrary to Article 3 . In other words, merely unsatisfactory
conditions did not by themselves amount to inhuman or degrading treatment.
Medical Facilities
There is an obligation to provide medical treatment for persons in detention. In Hurtado v. Switzerland, 92 a person
who had been forcibly arrested was not given an X-ray which revealed a fractured rib, until six days after he
requested it. Generally, the obligation of the detaining authority includes the need to review arrangements for
detention continuously in the interest of a prisoners health and well-being. Medical treatment must be provided in
the place of detention or the detainee must be released for a short period to allow it to be obtained elsewhere, for
example in a specialist clinic. The failure to adopt such measures were contrary to Article 3 as it leads to serious
repercussions on health. 93 The fact that imprisonment is inconsistent with a prisoners health is not of itself sufficient
to require his release to avoid liability under Article 3 since imprisonment following conviction or on remand is
obviously permissible. Article 3 may, however, require "humanitarian measures" in exceptional cases. 94
Several questions arise in respect of compulsory medical treatment of persons in detention. The compulsory
administration of treatment in accordance with established principles of medicine to a detained mentally disordered
person unable to take decisions for himself is neither inhuman nor degrading treatment, even though it may involve
physical force. In Herczegfalry v. Austria, 95 the Court held that the forcible administration of food and drugs to a
violent, mentally ill-patient on hunger strike is not in breach of Article 3 . However, experimental medical treatment
96 may be inhuman treatment, if not torture, in the absence of consent.
(b) Extradition
The Convention does not guarantee a right not to be extradited or deported. In the remarkable case of Amekarne
v. UK, 97 the applicant fled to Gibraltar seeking political asylum after an unsuccessful coup detat in Morocco. At
Moroccos request, he was handed back the following day as a prohibited immigrant. He was then convicted by a
Moroccan Military Court and executed by a firing squad for his part in the plot. The case was terminated when the
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UK paid 35,000 compensation by way of friendly settlement to the second applicant, the first applicants widow.
However, the Commission failed to find breach of Article 3 in this case. 98
In one of the most important cases, Soering v. UK, 99 the Court held that Great Britain would violate the Convention
if it extradited Jens Soering to the United States to face murder charges and a potential death sentence. The
European Court held that return of the applicant would be a breach of Article 3 . 100
The Courts decision on the facts of the Soering case turned mainly on a combination of the "conditions of
detention" and the "personal circumstances" of the applicant. For conditions of detention, the crucial consideration
was the exposure to the "death row phenomenon" that the applicant would face. A condemned person in Virginia
spent six to eight years subjected to a stringent security and severe mental stress awaiting execution. In this regard,
the Court highlighted the fact that this period of time resulted from the convicted persons resort to the appeal
procedures available because it was "part of human nature that the person will cling to life by exploiting those
safeguards to the full".
In terms of "personal circumstances", Soering was only 18 when the offence was committed, 101 and there was
psychiatric evidence supporting the view that he was not mentally responsible for his acts.
On the basis of this approach, a State could be liable under the Convention if a persons deportation or extradition
presented a real risk of the infringement of any Convention Article, not just Article 3 .
(c) Racial Discrimination
Racial discrimination was found to be degrading treatment contrary to Article 3 in the East African Asian cases.
102 In those cases, 25 East African Asians had retained their status as United Kingdom citizens when Kenya and
Uganda became independent. They did so on the understanding that this would allow them continued access to the
United Kingdom free from immigration control. But the situation changed, when the United Kingdom passed a piece
of legislation in order to control immigration from its former colonies, terminating the right of entry to the United
Kingdom for citizens who did not have ancestral or "place of birth" connections with the United Kingdom. The
Commission held that this piece of legislation was racially discriminatory and that the applicants subjection to it, with
the attendant publicity and in the special circumstance of their cases, was an affront to their dignity to the point of
being "degrading treatment" in breach of Article 5 .
(d) Degrading Punishment
"Degrading" has the same meaning as in connection with degrading treatment. In Tyrery v. UK, 103 the Court
characterised a degrading punishment as follows:
...in order for a punishment to be "degrading" and in breach of Article 3 , the humiliation or debasement involved must
attain a particular level and must in any event be other than that usual element of humiliation referred to in the preceding
sub-paragraph (i.e., that which follows from the very fact of being convicted and punished by a Court). The assessment is,
in the nature of things, relative, it depends on all the circumstances of the case and, in particular, on the nature and context
of the punishment itself and the manner and method of its execution.
There have also been several cases concerning disciplinary corporal punishment in school. In Campbell and
Cosans v. UK, 104 both applicants alleged that the use of corporal punishment as a disciplinary measure in the
schools attended by their sons constituted degrading treatment.
In its judgement the Court considered it appropriate to examine the allegations under Article 3 of the Convention.
The Court expressed the opinion that, "provided it is sufficiently real and immediate a mere threat of conduct
prohibited by Article 3 may itself be in conflict with that provision. Thus, to threaten an individual with torture might
in some circumstances constitute at least inhuman treatment". 105
In Costello-Roberts v. UK, 106 the Court held by 5 votes to 4, that a disciplinary measure at a private boarding
school by which a seven-year-old boy was given three "whacks" on the bottom with a gym shoe over his trousers by
the headmaster with no one else present was not degrading treatment.
The four dissenting judges gave the following reasons for disagreeing: "After a three day gap, the headmaster of
the School "whacked" a lonely and insecure seven-year old boy. A spanking on the spur of the moment might have
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been permissible, but in our view, the official and formalised nature of the punishment meted out, without the
adequate consent of the mother, was degrading". 107
In contrast to the Costello-Roberts case, in which neither the Court nor the Commission held that Article 3 had
been infringed, in two other cases - Warwick v. United Kingdom 108 and Y. v. United Kingdom, 109 the Commission
was of the opinion that there had been a breach of Article 3 . In the Warwick case, a 16-year old girl at a State
school who had been caught red handed smoking a cigarette was punished one stroke of the cane on hand,
resulting in bruising, by the headmaster in his office in the presence of the deputy headmaster and another similarly
delinquent girl immediately after being reported. The Committee of Ministers could not decide whether Article 3
had been infringed.
In Y v. United Kingdom, a 15 year-old schoolboy at a private school was given four strokes of the cane on his
bottom through his trousers, causing severe bruising. The caning was administered by the headmaster in private as
soon as the pupil was sent to him for defacing another boys file. A country courts claim of assault had been
unsuccessful on the basis that the parents had agreed by contract to caning as a disciplinary punishment and the
force used was reasonable. The case was not decided by the Court, having been struck off its list following a
friendly settlement. 110
The conclusion to be drawn from the jurisprudence of the Court and the Commission is that the imposition of
disciplinary corporal punishment in State or private schools is suspect from the standpoint of Article 3 , particularly
where physical harm is inflicted or where the manner of its administration is humiliating. It may in an appropriate
context amount to inhuman treatment.
Article 3 has proved to be a difficult provision to interpret because of its generality. It has also led to an
extraordinary variety of complaints. Although the broad interpretations of Article 3 adopted by the Court in several
of the above-mentioned cases would scarcely have been anticipated by the drafters of the Convention, they are
none the less in tune with present-day European standards.
III. EUROPEAN CONVENTION FOR THE PREVENTION OF TORTURE, 1987
Article 3 is supplemented by the European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment, 1987 (hereinafter referred to as the Torture Convention). 111 The Torture Convention
came into force on 1 February, 1989. This convention does not seek to establish any new norms but is designed to
introduce a procedure which will "strengthen by non-judicial means of preventive nature". 112 The European
Convention on Human Rights provides a remedy for a State or an individual victim after the event when Article 3 is
infringed. On the other hand "the Torture Convention" provides a preventive system whereby an independent
committee of experts is authorised to visit public places of detention in States parties to the Convention to examine
cases of torture.
Article 2 of the Torture Convention provides that "Each Party shall permit visits, in accordance with this
Convention, to any place within its jurisdiction where persons are deprived of their liberty by a public authority".
It has been argued that the Torture Convention is unnecessary, since the European Convention on Human Rights
itself provides for fact-finding visits in Article 28(1)(a) 113 and that thus, there is unnecessary duplication. But, a
close observation of both the Conventions make this argument ill-founded, since a fact-finding visit under the
European Convention can take place only in the context of the examination of an application. In fact, the scope of
the Torture Convention is wider, embracing regular visits of inspection forming the basis for general
recommendations that would fall beyond the scope of the European Convention fact-finding visit.
The Torture Committee under the Torture Convention has visited places of detention like police stations, prisons,
and mental hospitals of its choice in all of the States parties to the Convention. It adopts country reports in which it
indicates its findings and makes recommendations and suggestions as to improvements for the protection of
detained persons. If a State refuses to comply with the Committees recommendations, it is empowered to make a
public statement regarding this. Public statement is the only sanction available under the Torture Convention for
non-compliance of its recommendations. 114 The country reports are confidential, except that they may be published
at the request of the State concerned. 115
The Prevention of Torture Committee has tended to read the wording "inhuman or degrading treatment or
punishment" more widely than the European Court. 116 It is too early to evaluate the Committees work, particularly
for the paucity of materials concerning the results of investigation.
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IV. FREEDOM FROM SLAVERY, SERVITUDE OR FORCED OR COMPULSORY LABOUR
Article 4 of the European Convention states: 1. No one shall be held in slavery or servitude.
Article 4(1) requires that no one shall be held in slavery or servitude. Its importance is underlined by the fact that it
cannot be derogated from in time of war or public emergency. 117Article 4 has generated comparatively little case
law. Slavery has not been defined in any of the Strasbourg cases.
The status or condition of servitude does not involve ownership and differs from slavery on that count.
Distinguishing servitude from forced labour, the Commission stated in the Van Droogen Broek case:
...it may be considered that in addition to the obligation to provide another with certain services the concept of servitude
includes the obligation on the part of the "Serf to live on anothers property and the impossibility of changing his condition.
In this case, the Commission was of the opinion that the applicant was not held in "servitude" when a court, having
convicted him of criminal offence, ordered that on completion of his prison sentence, he should be placed at the
disposal of the State for a number of years, during which time he could be recalled for detention. The Commission
noted that the applicant was placed at the disposal of the State for only a limited period of time; that any recall
decision would be subject to judicial review, and that the resulting detention would be compatible with detention
permitted under Article 5 of the Convention. And thus, the applicants condition did not amount to that particularly
serious form of deprivation of "liberty" constituting servitude. 118 As the Court stated in the same case, the
compatibility of any detention with Article 5 does not by itself prevent it from involving "servitude" contrary to
Article 4(1) . 119
V. FREEDOM FROM RETROACTIVE CRIMINAL OFFENCES AND PUNISHMENT
Article 7 of European Convention provides:
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time of criminal offence was
committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general principles of law recognised by civilised
nations.
Article 7 incorporates the principle of legality, by which in the context of criminal law, a person should only be
convicted and punished on a basis of law: nullem crimen nulla poena sine lege. Its general scope was elaborated in
Kokkinakis v. Greece 120 as follows:
The Court points out that Article 7 (1) of the Convention is not confined to prohibiting the retrospective application of the
criminal law to an accuseds disadvantage. It also embodies, more generally, the principle that only the law can define a
crime and prescribe a penalty (nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be
extensively construed to an accuseds detriment, for instance by analogy; it follows from this that an offence must be clearly
defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if
need be with the assistance of the Courts interpretation of it, what acts and omissions will make him liable.
The meaning of Article 7 has been interpreted widely by the Commission in its decisions as to admissibility and
very few cases have been admitted for consideration on the merits under Article 7 and so far only two instances of
its breaches have been found.
The wording of Article 7(1) is limited to cases in which a person is convicted of a criminal offence. A prosecution
that does not lead to a conviction cannot raise an issue under Article 7 . A State application under Article 24 may
question the compatibility with Article 7 of a law in abstracto, so that not even a prosecution is required. In Ireland
v. United Kingdom, 121 Ireland challenged the consistency of the UK Northern Ireland Act 1972 with Article 7 , in so
far as it could be read as making a failure to comply with an order issued by the security forces as an offence
retroactively. The application was withdrawn when the United Kingdom Attorney-General gave an undertaking that
the Act would not be applied retroactively.
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The Commission decided in a number of early cases that offences that are classified as disciplinary offences under
a States law do not qualify as criminal offences for the purposes of Article 7 . 122 In Harman v. U.K., 123 a solicitor
had been found guilty of civil contempt of court because she gave a journalist access to documents copied to her
under the rules as to discovery of documents in civil proceedings. The application was admitted for consideration on
the merits under Article 7 , without questioning whether civil contempt in English law was a "criminal" offence for
the purposes of that Article or not. Although civil contempt is not classified as a crime in English law, however, it
does carry penal sanctions. Despite this fact it was regarded as "criminal" in the sense of Article 7 because its
purpose was coercive rather than punitive.
Article 7(1) also provides that "there shall not be imposed a heavier penalty...than the one that was applicable at
the time criminal offence was committed". The meaning of "penalty" was examined in Welch v. UK. 124 In this case,
the applicant was convicted of criminal offences involving drug trafficking. He was given a 22 year prison sentence
and a confiscation order was made under the Drug Trafficking Offences Act, 1986. 125 The order was for the
payment of 59,000 in default of which he would receive a further consecutive two-year prison sentence. There was
no dispute that the Act had been applied retroactively in the sense of Article 7 to an offence that had been
committed before the Act came into force. The only question was whether the confiscation order was a "penalty" so
that Article 7 applied. In deciding that it was, and that Article 7 had been infringed, the Court noted that it had
been imposed following a conviction; that the measure had punitive as well as preventive and reparative aims; and
that there were indications of a regime of punishment in view of the fact that:
(i) the amount of the order was related to the proceeds of drug dealing, not just the actual profits;
(ii) the amount could be affected by culpability; and
(iii) imprisonment might result in default of payment. 126
The European Court and the European Commission have given decisions on all non-derogable rights. After going
through all these cases, one point is clear that the Court is more effective in implementation of human rights in
comparison with the European Commission wherever it finds that there is clear cut violation of human rights by
Member States.
A greater role is expected to be played by the Court from now on because at present the Court is the only
machinery available for effective implementation of human rights under European Convention, after the abolition of
the European Commission.
SECTION III : THE INTER-AMERICAN COMMISSION AND COURT OF HUMAN

RIGHTS
This part of study will focus on the decisions pronounced by the Inter-American Court and the Commission of
Human Rights. As noted already, Inter-American Convention on Human Rights provides a comprehensive list of
eleven non-derogable rights. 127
The Inter-American Court of Human Rights (hereinafter referred to as the "Court") of the Organisation of American
States (hereinafter OAS) was established in 1979 pursuant to the entry into force of the American Convention on
Human Rights (hereinafter referred to as the Convention). 128 The powers of the Inter-American system are
primarily exercised through the Inter-American Commission of Human Rights.
The Court and the Commission have identical special functions, and neither is subordinate to the other. This is true
despite the fact that the Court has the power to revise and, in some instances, to modify the decisions taken by the
Commission. The contents and scope of the interaction established by the two specialised organs will be clearly
seen in their relevant rules. Once the Commission recognises a petition or communication as admissible, it
investigate the facts alleged as violations to the Convention. The Commission then drafts the preliminary report,
with its proposals and recommendations and sends it to the accused States. Article 51 of the Convention
empowers both the Commission and the State to submit the matter to the Court within three months. Whether the
case is submitted to the Court by the Commission or by the State, the Commission must appear before the Court.
129
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The Commission has the power to obtain a decision from the Court in two other situations. First, in extremely grave
and urgent cases and when necessary to avoid irreparable damage to persons, the Commission can request the
Court to adopt such provisional measures as it deems pertinent, even if the case has not been submitted to the
Court. Secondly, as one of the organs of the OAS, the Commission may consult the Court regarding the
interpretation of the Convention or the other treaties concerning the protection of human rights in the American
States.
(a) Illustrative Cases
There were twelve advisory opinions 130 that had been delivered by the Court. It adjudicated four cases, three
involving the same country, namely, Honduras, and the fourth related with Surinam.
Viviano Gallarado case
The Court in its first decision of 13 November, 1981 in Viviano Gallarado, interpreted the Commissions role as that
of the "State Attorney" (Ministerio Publico ) in the Inter-American system. 131
In this case the Government of Costa Rica sought direct access to the Court in 1981 by attempting to waive 132 the
procedures before the Commission. 133 This was the first case presented to the Court and it was presented by the
Costa Rican government against itself. The facts of this case involved the killing of suspected terrorist, Viviano
Gallarado, and the injuring of her cell-mates by a member of the Costa Rican Civil Guard, who was responsible for
their custody. The governments application under Article 62(3) of the Convention, requested that the Court decide
whether these acts constituted a violation by the national authorities of Costa Rica of the human rights guaranteed
in Articles 4 and 5 of the Convention or of any other right guaranteed therein.
The Costa Rican application to the Court raised two important prima facie issues bearing on the system
established by the Convention. The first had to do with the fact that Article 61(2) requires that the procedures
before the Commission be exhausted before the Court can hear a case. 134 The second concerns Article 46(1)(a) ,
which conditions the admissibility of a petition or complaint before the Commission on the requirement that the
remedies under domestic law be pursued and exhausted in accordance with the generally recognised principles of
international law. Neither of these requirements had been complied within this case.
The Court observed that the Commission has inter alia the functions of investigating allegations of violation of
human rights guaranteed by the Convention which must be carried out in all cases that do not concern disputes
relating to mere questions of law. Although the Court does not lack the power to carry out its own investigation, but
it is necessary to provide the Court with the information it needs to discharge its functions. Basically the Convention
entrusts the Commission with the initial phase of the investigation into the allegations. The Commission also has a
conciliatory function empowering it to propose friendly settlements as well as to make the appropriate
recommendations to remedy the violations it has found to exist. Thus, the Commission is the channel through which
an individual has a chance to activate the international system for the protection of human rights. As a strictly
procedural matter, it should be remembered that just as individuals cannot submit cases to the Court, States can
submit them to the Commission only if conditions of Article 45 have been met.
The Court noted, in addition that it lacks the power to discharge the important function of promoting friendly
settlements. To the individual claimant this process has the advantage of ensuring that the agreement requires his
consent to be effective. Any solution that desires access to these procedures before the Commission deprives
individuals, especially victims, of the important right to negotiate and accept freely a friendly settlement arrived at
with the help of the Commission "on the basis of the human rights recognised in Convention". 135
From the above discussion it is clear that the procedures before the Commission cannot be dispensed with without
impairing the institutional integrity of the protective system guaranteed by the Convention. The Costa Rican
governments waiver of the rule contained in Article 61(2) consequently lacked the force necessary to dispense
with the procedures before the Commission. The Courts decision also clarified the respective roles of the
Commission and the Court.
(b) Advisory Opinions
Restrictions to the Death Penalty ((2 ) and 4 (4 ) , American Convention on Human Rights ) . 136
This case was presented by the Commission to the Court, pursuant to Article 64(1) 137 which involved the
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interpretation of a reservation to the Convention. The Commission requested the Court to render an advisory
opinion on the following questions relating to the interpretation of Article 4 138 of the Convention:
1.May a government apply the death penalty for crimes for which the domestic legislation did not provide such punishment
at the time the American Convention on Human Rights entered into force for said state?
2.May a government on the basis of a reservation 139 to Article 4(4) of the Convention, made at the time of ratification,
adopt, subsequent to the entry into force of the Convention, a law imposing the death penalty for crimes not subject to this
sanction at the moment of ratification?
The Commission sought the Courts assistance in order to resolve certain differences of opinion between it and the
Government of Guatemala, a defendant in a case pending before the Commission concerning the interpretation of
the last sentence of Article 4(2) as well as on the effect of Guatemalas reservation to Article 4(4) . Guatemala
contested the advisory jurisdiction of the Court, arguing that the Court had no power to render an opinion on a
question which directly involved a State unless the State had previously accepted the Courts jurisdiction pursuant to
Article 62(1) of the Convention.
The Court, after submission of the jurisdictional issue to the OAS Member States for their views on the same,
explained the nature of advisory proceedings in the following terms:
There are no parties (in advisory proceedings) in the sense that there are no complainants and respondents; no State is
required to defend itself against formal charges for the proceeding does not contemplate formal charges; no judicial
sanctions are envisaged and none can be decreed. 140
The Government of Guatemala had argued that a State party to the Convention had to accept the Courts
jurisdiction, pursuant to Article 62 , in all cases of interpretation of the Convention, be the proceedings contentious
or advisory, before the Court could act. The Court rejected the governments challenge to its jurisdiction and stated
that:
[I]f the Commission were to be barred from seeking an advisory opinion merely because one or more governments are
involved in a controversy with the Commission over the interpretation of a disputed proviso, the Commission would seldom,
if ever, be able to avail itself of the Courts advisory jurisdiction. 141
On the substantive issue, the Court drew the conclusion that Article 4(2) of the Convention contained "an
absolute prohibition that no State Party may apply the death penalty to crimes for which it was not provided
previously under the domestic law of that State." No provision of the Convention can be relied upon to give a
different meaning to the very text of Article 4(2) . The only way to achieve a different result would be by means of
timely reservation designed to exclude in some fashion the application of the aforementioned provision in relation to
the State making the reservation. Such a reservation, of course, would have to be compatible with the object and
purpose of the treaty. 142
The Court then examined Guatemalas reservation to Article 4(4) of the Convention and concluded that a
reservation "restricted by its own wording to Article 4(4) " cannot be extended to cover Article 4(2) , for the
purpose of extending the application of death penalty to crimes (by means of the Court of special jurisdiction) to
which that penalty did not previously apply. 143
Despite the fact that the opinion of the Court was not legally binding on the Government of Guatemala, it is worth
noting that two days before the public hearing of the oral arguments in this case, General Rios Montt promised to
abolish the Courts of Special Jurisdiction. On 8 August, 1983 General Rios Montt, who came to power through a
coup on 23 March, 1982, was ousted in another coup led by General Oscar Homberto Mejia Victores. The Courts of
Special Jurisdiction ceased to exist as on 1 September, 1983 and by Decree Law 74/84 all those sentenced by
these courts were pardoned. 144
(c) Habeas Corpus in Emergency Situations [, and, American Convention on Human Rights]
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In this case the Commission again invoked Article 64(1) of the American Convention seeking advisory opinion,
regarding the following question:
Is the writ of habeas corpus, the legal basis for which is found in Articles 7(6) 145 and 25(1) 146 of American Convention on
Human Rights, one of the judicial guarantees that, pursuant to the last clause of Article 27(2) 147 of that Convention, may
not be suspended by a State Party to the aforementioned American Convention?
The Court invited written observations under Article 52 of its Rules of Procedure. 148 The Commission was
concerned that certain States parties to the convention had promulgated laws enabling them to hold a detainee
incommunicado for prolonged periods of time, during which he was denied any possibility of communication with
the outside world. 149 The major threat perceived by the Commission was that detainees were often subjected to
torture during such incommunicado detention. The Commission emphasised that to deny a detainee the protection
of habeas corpus would be to deprive him or her of a judicial guarantee necessary for the protection of a non-
derogable right under Article 27(2) of the Convention.
The Commission asked the Court whether the Executive was required to bring a detainee before a judge in order
to allow the detainee to challenge the legality of the detention (habeas corpus ) during a state of emergency? The
question arose because Article 7 , which deals with the right to personal liberty, is not included in the list of non-
derogable rights set forth in Article 27(2) , the judicial protection of which may not be suspended during a state of
emergency. Hence, does it follow that the judicial remedy (habeas corpus ) , which safeguards a derogable right,
may also be suspended during an emergency? 150
The Commission argued that the failure to preserve recourse to the writ of habeas corpus during a state of
emergency would be tantamount "to attributing uniquely judicial functions to the executive branch, which would
violate the principle of separation of powers, a basic characteristic of the rule of law and of democratic systems?" 151
The Court observed that the writ of habeas corpus may never be suspended, and it sympathised with the
Commissions viewpoint that torture tends to occur during long periods of incommunicado detention. The opinion is
primarily of importance for two pronouncements made by the Court in interpreting the American Convention:
1. Only democratic governments may avail themselves of the right to declare a state of emergency, and only
under certain closely prescribed circumstances; and
2. the writ of habeas corpus may never be suspended. 152
The Court also examined the main issue whether the judicial guarantee of habeas corpus could ever be
suspended. The Court observed that a State may suspend certain rights and guarantees during an emergency,
whereas other rights and guarantees that are non-derogable may never be suspended. The Court was unwilling to
link the (derogable) right to personal liberty with the guarantee of habeas corpus as this would have resulted in the
derogability of both. The Court stated that Article 27(2) does not link these judicial guarantees to any specific
provision of the Convention, which indicates that what is important is that these judicial remedies have the character
of being essential to ensure the protection of those [non-derogable] rights. The Court found that the "primary
purpose"of habeas corpus is to protect the personal freedom of those who are being detained or who have been
threatened with detention. It achieves this, the Court said, by obtaining a "judicial determination of the lawfulness of
a detention" for which "it is necessary that the detained person be brought before a competent judge or tribunal with
jurisdiction over him". And it is in this context that the habeas corpus proceeding is also a judicial guarantee which
protects the detainee from torture, a non-derogable right. 153
Here, habeas corpus performs a vital role in ensuring that a persons life and physical integrity are respected, in
preventing his disappearance or keeping his whereabouts secret and in protecting against torture or other cruel,
inhumane, or degrading treatment. 154
This advisory opinion of the Court enhanced its reputation for its courageous defence of habeas corpus, generally
perceived as a remedy to protect the individual from arbitrary detention or, more recently, from forced
disappearance. Lastly, the Courts linkage of habeas corpus with the Conventions prohibition on torture is an
effective redefinition of the object and purpose of this remedy.
(d) Judicial Guarantees during Emergency

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A request for an advisory opinion came from the Government of Uruguay vide its note dated 17 September, 1986,
seeking an advisory opinion from the Court under Article 64(1) on the scope of the judicial guarantees which could
not be suspended under Article 27(2) :
...the Government of Uruguay requests the Courts opinion, in particular, regarding: (a) which of those judicial guarantees
are "essential" and (b) the relationship between Article 27(2) in that regard and Articles 25 and 8 of the American
Convention. 155
Pursuant to Article 52 of the Courts Rules of Procedure, written observations were requested from the OAS
Member States and the organs listed in Chapter X of the OAS Charter. 156
The Court interpreted Article 1(1) of the American Convention to mean that the State has the obligation "to
respect" and "to ensure" free and full exercise of the rights recognised in the American Convention. According to
the language of Article 1(1) , 157 the American Convention covers two groups of obligations for each substantive
right: First, a State party is obliged "to respect" the conventions rights by implementing them and by not violating
them. Second, it is obliged "to ensure" the exercise or enjoyment of that right by providing remedies under its
domestic law for redress if the rights are violated. The Court stated that:
A remedy which proves illusory because of the general conditions prevailing in the country, or even in the particular
circumstances of a given case, cannot be considered effective.
Consequently, if an emergency measure is taken by the State resulting in the suspension of a judicial guarantee
established for the protection of a non-derogable right, the emergency measure itself "is a violation of the
Convention". It follows, therefore, that a States suspension of the writ of habeas corpus, for example, during a state
of emergency, is itself a violation of the Convention, whether or not anyone has, in fact, been detained, i.e., whether
or not any Convention right has in fact been denied to anyone.
The Court then examined Article 8 of the Convention which recognises the concept of "due process of law",
which, read together with Articles 7(6) , 158 25 159 and 27 160 of the Convention, "leads to the conclusion that the
principles of due process of law cannot be suspended in a state of emergency insofar as they are necessary
conditions for the procedural institutions regulated by the Constitutions to be considered judicial guarantees". 161
Lastly, the Court found that the "essential judicial guarantees which are not subject to suspension include those
judicial procedures which are inherent in a representative democratic form of government". 162
The three advisory opinions given by the Court have clarified the doubts raised by different countries regarding
substantive rights.
(e) The Contentious Jurisdiction of the Court
Compensation for Deprivation of Rights
A major aspect of the protective system established by the American Convention on Human Rights is the
competence of the Inter-American Court of Human Rights to award compensation under Article 63(1) of the
American Convention for violation of the rights protected by the Convention. The Court applied this provision in
three cases. The three cases are: (1) Manfredo Velasquez Rodriguez, (2) Francisco Fairen Garbi and Yolanda
Solis Coralles, and (3) Saul Godinez Cruz. On 24 April, 1986, the Inter-American Commission on Human Rights
submitted these cases to the Court. 163 These complaints were against the Republic of Honduras which was
charged with a series of violations of human rights allegedly committed between 1981 and 1984, which resulted in
the forced disappearance and death of four individuals.
The first case involved Manfredo Velasquez Rodriguez, a student at the National Autonomous University of
Honduras, who was taken to a detention centre in Tegucigalpa on 12 September, 1981, and was never seen again.
He was thirty-five years old when he disappeared, leaving a wife and four small children. Without any judicial
process he had been detained, interrogated and tortured, and then reported as disappeared. A petition concerning
the disappearance of Velasquez Rodriguez was filed with the Inter-American Commission on Human Rights in
October, 1981. On 29 July, 1988, an historic day in the fight against governmental human rights abuses in Latin
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America, the Inter-American Court of Human Rights held that the Government of Honduras was responsible for the
disappearance of Manfredo Velasquez Rodriguez. 164
In view of the governments failure to cooperate, the Commission found that Honduras had violated Articles 4 and
7 of the American Convention and recommended to the government that it investigate the case, punish those
responsible in accordance with the Honduran law, and inform the Commission within sixty days on the measures
taken to comply with these recommendations. The Commission gave notice to the government that if it failed to
inform the Commission of the measures taken, it would publish the resolution in its Annual Report.
The Honduran Government requested reconsideration of the resolution to which the Commission agreed. By
another resolution of 18 April, 1986, the Commission deemed the information presented by the government
insufficient to warrant reconsideration. By the same resolution the Commission confirmed its earlier resolution,
denied the request for reconsideration, and referred the matter to the Court. In its request to the Court the
Commission asked the Court to enter into a finding against Honduras for violation of the rights to life (Article 4 ), to
humane treatment (Article 5 ) and to personal liberty (Article 7 ) guaranteed by the Convention.
The second case involved Francisco Fairen Garbi and Yolanda Solis Corrales, both Costa Rican nationals, who
disappeared on 11 December, 1981 while in transit, on their way to Mexico. On 19 January, 1982, the Commission
requested information on the case from the Government of Honduras.
In response to the Commissions request for information on the alleged "disappearance" of Fairen and Solis, the
government responded that they had departed from El Salvador on 14 December, 1981 and that their departure
was attested to by a certificate issued by the Guatemalan authorities.
On 4 October, 1983, the Commission adopted a resolution which declared that the Government of Honduras was
responsible for the "disappearance" of Fairen and Solis and recommended that the Honduran Government
investigate the impugned acts in order to determine the circumstance of their disappearance and to punish those
responsible in accordance with Honduran law, and inform the Commission within 90 days of the measures taken to
comply with those recommendations.
On 29 October, 1989, the Honduran Government requested reconsideration of the resolution on the grounds that
Fairen Garbi and Solis Corrales who had disappeared had left its territory, presumably for Guatemala, that it would
consent to the exhumation of a body found on 28 December, 1981 in La Montanita, near Tegucigalpa, as requested
by the petitioners and that it had given specific orders to the authorities to investigate the allegations contained in
the petition. On 7 April, 1986, the government informed the Commission that no new evidence had been
discovered. On 18 April, 1986, the Commission decided not to reconsider its resolution. The Commission adopted
another resolution by which it decided to publish the decision taken and refer the matter to the Court. 165
The third case involved a school teacher, Saul Godinez Cruz, who "disappeared" on the morning of 22 July, 1982
while riding his motorcycle on his way to work. An eyewitness claimed to have seen a man in a military uniform with
two plain clothed companions arrest a person who looked like Godinez Cruz. They placed him and the motorcycle
in a double-cabin vehicle with no licence plates. A writ of habeas corpus was brought on his behalf on 4 June, 1983.
By a note dated 19 July, 1983, the Government of Honduras informed the Commission that "the competent national
authorities are investigating the case".
Till 7 April, 1986, the government informed the Commission that it had not been able to discover new evidence
pertaining to this case. Consequently, the Commission adopted Resolution 24/68, confirming Resolution 32/83, and
referring the case to the Court. In its request, the Commission asked the Court to find violation of Articles 4 , 5 and
7 of the American Convention, although the Commission had found violation of Articles 4 and 7 only.
The Government of Honduras, which had accepted the Courts jurisdiction in accordance with the provisions of
Article 62 of the Convention, 166 challenged the admissibility of the cases and the tribunals jurisdiction to hear
them on various grounds relating to the Commissions handling of the cases and for failure to exhaust local
remedies. The Court dealt with these contentions in separate but almost identical judgements which were rendered
on 26 June, 1987. 167 It observed that the Court has jurisdiction to hear the case as Honduras had ratified the
Convention on 8 September, 1977 and recognised the contentious jurisdiction of the Court, as set out in Article 62
of the Convention, on 9 September, 1981. The case was submitted to the Court by the Commission pursuant to
Article 61 of the Convention and Article 50(1) and 50(2) of the Regulations of the Commission.
On 29 July, 1986, the Court held that the Government of Honduras was responsible for the disappearance of
Manfredo Angel Velasquez Rodriguez. In this decision, the Court exercised for the first time its compulsory
Page 22 of 35
jurisdiction in a contested case and became the first international tribunal to find a State responsible for
disappearance of a person. 168 It also decided various issues related to proof: standard of proof, 169 burden of proof,
170 and admissibility of evidence. 171 The Court described the crime of disappearance, 172 and further defined the
scope of the obligation to exhaust local remedies, and established procedures for compensation of victims. Finally,
the Court ordered the Government of Honduras to pay compensation to the family of the victim. 173 The Courts final
decision and the decision on compensation represented enormous breakthroughs for the protection of human rights
in the Latin American countries. 174
In its final decision rendered on 29 July, 1988, the Court held the Honduran Government responsible for the
disappearance of Manfredo Angel Velasquez Rodriguez. The Courts judgement of 29 July, 1988 in the case of
Velasquez Rodrigues was its first decision in three cases submitted by the Commission.
In the second case, the Court concluded that Saul Godinez, a leader of the teachers group, disappeared on the
morning of 22 July, 1982 at the hands of government agents, in spite of the fact that it had only circumstantial
evidence "to establish" the judicial presumption that this disappearance was carried out within the framework of the
Honduran Governments systematic practice of forced "disappearances" of persons. 175 The Court found violations
of Articles 7 , 5 , 4 and 1(1) of American Convention and ordered that fair compensation be paid to the family of
Saul Godinez.
In the third case involving Fairen Garbi and Solis Corrales, the Court found that the Commission had presented
insufficient evidence to hold the Government of Honduras responsible for the "disappearance" of the petitioners.
There were no witnesses to testify that they had seen Fairen Garbi and Solis Corrales being abducted or had seen
them in the detention centre; perhaps this fact was the crucial element distinguishing this case from the other two.
The Commission failed to establish that Francisco Fairen and Yolanda Solis had been taken into detention, and
since the Government of Honduras stated that the two had continued their trip and had left Honduras for
Guatemala, there was little reason for the Government of Honduras to investigate their whereabouts. Consequently,
the Court was reluctant "to create a legal presumption that the Honduran Government is responsible for those
disappearances". 176
By its judgement dated 21 July, 1989, the Court ordered the Government of Honduras to pay 750,000 lumpiras in
compensatory 177 damages to the family of Manfredo Velasquez, and 650,000 lumpiras in compensatory damages
to the family of Saul Godinez Cruz. After the expiration of one year from the date on which the compensation
payment was to have been made, the Government of Honduras paid part of the judgement amount but had not
complied in full, and this matter continues to be pending before the Court. 178
On 10 September, 1993, the Court granted compensation in Aloeboetoe et al., v. Surinam. 179 In this case, on 1
January, 1987, a number of Bushnegroes, or Maroons 180 residing in a remote corner of Surinam were attacked by
a group of soldiers who suspected them of being members of a rebel organisation known as the Jungle
Commandos. The suspects were rounded up by the soldiers, blindfolded, placed in a military vehicle and driven in
the direction of the Surinamese capital, Paramaribo. The vehicle was stopped at a secluded place, and the victims
were dragged out, handed over a spade and ordered to start digging. One of the victims attempted to escape, and
although he was shot and wounded, he was not pursued by the soldiers. He later heard shooting and screaming.
On 2 January, 1987, a number of people from the victims village went in search of them. They found the injured
escapee, who, although mortally wounded, was able to narrate the facts of the massacre. He was the only survivor,
the other dead victims had been partly devoured by vultures.
The Inter-American Commission received complaints against Surinam on behalf of the victims under Article 45 of
the Convention claiming that the State had violated a number of the substantive rights sought to be protected by the
Convention. 181 The Commission failed to secure a friendly settlement in accordance with Article 48(1) of the
Convention, and decided to submit the case to the Court. Initially Surinam indicated that it would contest the case in
the Court, but, in proceedings before the Court in December, 1991, the new government declared that the State
would accept the responsibility for the violations of the Convention. 182
The only question left to be decided by the Court, therefore, was that of reparations. The task of the Court was
complicated by the unusual social structure of the Maroon and Saramacca tribes. According to the Commission, the
Saramacca displayed "a strongly matriarchal familial configuration where polygamy frequently occurs".
Furthermore, the main family group was the "bee", which was composed of all the descendants of one woman. This
group assumed responsibility for the actions of its members, who, in turn were responsible to the bee as a whole. In
the Commissions view, therefore, not only did the direct relatives of the victims suffer damage as a result of
Surinams violation of the Convention, but so too did the Saramacca tribe as a whole. 183 This view was contested
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by Surinam, which argued that the customary norms of the tribe were irrelevant in fixing compensation under the
Convention. 184
At the outset the Court reviewed the relationship between Article 63(1) of the Convention and general
international law. The Court held that a decision under Article 63(1) placed international legal obligations upon the
State, the application of which could not be frustrated by the State invoking provisions of its domestic law. The
Court also observed that the provision required a State violating the Convention to not only remedy that violation by
offering the victims the rights or freedoms which he or she had been denied, but also to make reparation including
"fair compensation". The Court also recalled its holding in Velasquez Rodrigues and Godinez Cruz that in cases
involving loss of life "reparation must of necessity be in the form of pecuniary compensation given the nature of the
rights violated". In those cases the Court had characterised the nature of remedy as restitutio in integrum 185 In its
earlier reparations judgements, compensation was made available for moral damage. In the instant case the Court
ruled that given the circumstances in which the victims had died, it was evident that moral damage was suffered.
On the question of identity of those entitled to compensation, the Court held that the heirs of the victims by
succession were entitled to be compensated, including those dependants who were not heirs but could prove their
dependency. 186
The Court has demonstrated through its judgements that it has become a kind of international criminal court
competent to judge some of the most heinous crimes committed by the OAS member countries. It did not shy away
from confronting gross and systematic violations of human rights and delivered some of its more creative reasoning
in these first judgements. These cases brought to light certain patterns of human rights violations by governments
ostensibly democracies, allowing their armed forces systematically to cause "disappearances" of persons they
considered dangerous to the "security of the State". 187 The judicial system of the country in question was unable to
protect the rights of its citizens as it failed to investigate or prosecute even one case of "disappearance". In these
areas, the contributions of the Latin American Commissions and Courts of Human Rights are impressive.
SECTION IV: JURISPRUDENCE OF INTERNATIONAL HUMANITARIAN LAW

Only a few international judicial decisions have dealt with the customary law and nature of international
humanitarian law. A study of some important cases and decisions of International Court of Justice (ICJ) seems to
be necessary for proper understanding of international humanitarian law. These decisions highlighted certain trends
in this area like the availability of State practice, the humanitarian principles that deserve recognition, and the
positive law of the international community, that have in fact been recognised by the State.
Article 1 of the four Geneva Conventions of 1949, provides that "the High Contracting Parties undertake to respect
and to ensure respect for the present Convention in all circumstances". The International Court of Justice in its
judgement in the Barcelona Traction case stated:
When a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is
bound to extend to them the protection of the law and assume obligations concerning the treatment to be afforded them.
These obligations, however, are neither absolute nor unqualified. In particular, an essential distinction should be drawn
between the obligations of a state towards the international Community as a whole, and those arising vis-a-vis another
state in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the
importance of the rights involved, all states can be held to have a legal interest in their protection; they are obligations erga
omnes.
Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of
genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general
international law... others are conferred by international instruments of a universal or quasi-universal character. 188
The above pronouncements do not make it clear whether "basic rights of the human person" giving rise to
obligations erga omnes, are synonymous with human rights or are limited to rights intimately associated with the
human person and human dignity and generally accepted, such as the right to personal liberty, and protection from
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slavery and racial discrimination. 189 However, the judgement in other parts seeks to distinguish between human
rights in general and the basic rights of the human person. The Court stated "at the universal level, the instruments
which embody human rights do not confer on States the capacity to protect the victims of infringements of such
rights irrespective of their nationality". 190
Although this judgement does not deal with either human rights law or humanitarian law as such, they amounted to
judicial recognition of certain rights as basic human rights. The humanitarian law questions were dealt with in the
Corfu Channel case, Nicaragua v. United States 191 and the Bosnian Genocide case. 192
Both Nicaraguaand the United States are parties to the Geneva Conventions. In case of Nicaragua, the question
arose in an unusual context: the multilateral treaty reservation of the United States appeared to obstruct the ICJ
from applying the Geneva Conventions as treaties. Certain aspects of the Nicaragua judgement involved
humanitarian law.
At the preliminary stage,Nicaragua refrained from invoking the Geneva Conventions in the proceedings, the main
reason for its reluctance was either to acknowledge that the conflict constitutes an internal armed conflict, or to
have its own acts measured by the yardstick of norms contained in the common Article 3 . 193 The Court also
preferred to evade the question of relevance of the Geneva Conventions to the US reservations. In the Courts view,
the conduct of the United States could be judged according to fundamental principles of humanitarian law. The
Court took the US reservation into account by applying certain provisions of the Geneva Conventions as part of
customary law rather than treaty obligations.
The Court started its analysis with the statement that the Geneva Conventions represent "in some respects a
development, and in other respects no more than the expression" of fundamental principles of humanitarian law. In
support of this proposition, the Court mentioned, according to the terms of the Conventions, the denunciation of one
of them:
Shall in no way impair the obligations which the Parties to the Conflict shall remain bound to fulfil by virtue of the principles
of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity and the
dictates of the public Conscience". 194
Article 3 , which is common to all the four Geneva Conventions of 12 August, 1949, clearly provides that certain
rules should be applied in the armed conflicts of a non-international character. There is no doubt that, in the event
of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate
rules which are also applicable to international conflicts, and there are rules which, in the Courts opinion, reflect
what the Court in 1949 called "elementary considerations of humanity". 195 The Court therefore found them
applicable to the present dispute, and clearly stated that it is not required to know what role the United States
multilateral treaty reservation might otherwise play in regard to the treaties in question.
In this case, the Court specifically focused on two common Articles 1 and 3 , of the Four Geneva Conventions,
1949. Article 1 provides that "the High Contracting Parties undertake to respect and to ensure respect for the
present Convention in all circumstances". The Court concluded:
There is an obligation on the United States Government, in the terms of Article 1 of the Geneva Conventions, to "respect"
the Conventions and even "to ensure respect" for them "in all circumstances", since such an obligation does not derive only
from the Conventions themselves but from the general principles of humanitarian law to which the Conventions merely give
specific expression. The United States is thus under an obligation not to encourage persons or groups engaged in the
conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions. 196
The responsibility not to encourage violations finds support in the erga omnes character of the humanitarian norms
implicated. There is no denying that the Geneva Conventions and especially the common Article 3 , mentions a
number of basic rights of the human person, some of which have attained the status of jus cogens. 197
The Court determined that the conflict between the Contras and the Government of Nicaragua was an armed
conflict not of an international character and that the acts of Contras against the government were governed by the
law applicable to such conflicts, but that "the actions of the United States in and against Nicaragua fall under the
legal rules relating to international conflicts". 198 The Court went on to state that:
Page 25 of 35
Because the minimum rules applicable to international and to non-international conflicts are identical, there is no need to
address the question whether those actions must be looked at in the context of the rules which operate for the one or for
the other category of conflict. The relevant principles are to be looked for in the provisions of Article 3 of each of four
Conventions of 12 August 1949, the text of which, identical in each Convention, expressly refers to conflicts not having an
international character. 199
The Court, thus, viewed the core norms governing non-international armed conflicts as substantially the same as
those that apply to international armed conflicts and found in Article 3 , perceived as the "minimum common
denominator", a justification for not deciding whether those actions must be examined by the yardstick applicable to
international or to non-international conflicts.
Article 3 has no antecedents in the earlier Geneva Conventions and was clearly viewed in 1949 as marking a
"new step" in the development of humanitarian law. 200 The Nicaragua judgement has thrown light on various
aspects of Geneva Conventions, specifically on the importance of Article 3 in terms of international customary law.
No doubt this judgement is a landmark judgement not only for humanitarian law but also for the law of human rights
in general.
Article 2 of the Fourth Geneva Conventions of 1949 contains a specific enumeration of "grave breaches", which
constitute war crimes under international law for which States have a corresponding duty to prosecute. Grave
breaches include wilful killing, torture or inhuman treatment, wilfully depriving a civilian of the rights of fair and
regular trial, and unlawful confinement of a civilian". Similar provisions are mentioned in Article 85 of Additional
Protocol I which constitutes grave breaches. Article 146 of the Fourth Geneva Convention stipulates that persons
accused of grave breaches:
shall benefit by safeguards of proper trial and defence, which shall not be less than those provided by Article 105
and those following of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August, 1949.
This protection applies to all accused persons, regardless of their status or the time of trial. 201
The violations of general international humanitarian law governing internal armed conflicts entail the criminal
responsibility of those committing or ordering those violations. 202 For instance, in two resolutions on Somalia,
where civil strife was underway, the Security Council unanimously condemned breaches of humanitarian law and
stated that perpetrators of such breaches or those who had ordered their commission would be held "individually
responsible" for them.
The Security Council passed Resolution 827 on 25 May, 1993 by which it established the International Tribunal for
the prosecution of persons responsible for serious violations of humanitarian law committed in the territory of the
former Yugoslavia. Soon thereafter, in response to a request from the Rwandan government, the Security Council
further approved the establishment of an international tribunal intended to prosecute those accused of genocide
following the tribal war in Rwanda. 203
The International Tribunal for Yugoslavia pronounced its first judgement. The accused,Tadic, had argued that the
tribunal lacked subject-matter jurisdiction. The appellants claim that the subject-matter jurisdiction under Articles 2 ,
3 and 5 of the Statute of the International Tribunal is limited to crimes committed in the context of an international
armed conflict, and the alleged crimes, if proven, were committed in an internal armed conflict. 204 However, the trial
chamber held that all three types of crimes were applicable to both, internal as well as international armed conflicts.
205
The trial chamber observed that, "it is by now a settled rule of customary international law that crimes against
humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor pointed out,
customary international law may not require a connection between crimes against humanity and any conflict at
all..." 206
To conclude, the UN Secretary-Generals Report on the statute of the Yugoslavia Tribunal stated that international
law now prohibits crimes against humanity "regardless of whether they are committed in an armed conflict". 207
The essential purpose of these humanitarian rules is no longer to provide a code governing the "game" of war, but
Page 26 of 35
humanitarian reasons to reduce or limit the suffering of individuals and to circumscribe the areas within which the
savagery of armed conflict is permissible.
International Humanitarian Law still lacks the strength necessary to restrain the savageries that are often
concomitant of international armed struggles. It also lacks a generally acceptable international judicial tribunal to
apply it in suitable cases, 208 yet it provides a trigger to activate the "conscience of mankind".
1 Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Political Rights: Cases,
Materials, and Commentary (Oxford, Oxford University Press, 2000); Anne F. Bayefsky, The UN Human Rights Treaty
System: Universally at the Crossroads (New York, Transnational Publishers, 2001); Daniel Moeckli, Sangeeta Shah
and Sadesh Sivakumaran (eds.) International Human Rights Law (New York, Oxford University Press, 2010).
2 The CP Covenant and its First Optional Protocol provides one mandatory and two optional mechanisms to enable the
HRC to supervise the states parties obligations.
1. The mandatory means of supervision is a system of periodic obligations.
2. The second method of supervision is an inter-state complaint procedure under Articles 41 and 42 .
3. The third method of supervision and enforcement of the rights contained in the Article 1 of the Optional Protocol.
3 Article 5 of the First Optional Protocol provides:
1. The Committee shall consider communications received under the present Protocol in the light of all written
information made available to it by the individual and by the State Party concerned.
2. The Committee shall not consider any communication from an individual unless it has ascertained that:
(a) The same matter is not being examined under another procedure of international investigation or settlement;
(b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application
of the remedies is unreasonably prolonged.
3. The Committee shall hold closed meetings when examining communications under the present Protocol.
4. The Committee shall forward its views to the State Party concerned and the individual.
4 General Comment No. 06: The Right to Life ():. 30 April, 1982, http://www.unhchr.ch/tbs/
oc.nsf/(Symbol)/84ab9690ccd81fc7c12563ed0046fae3? Opendocument visited on 20 July, 2013.
5 Comm. No. R 7130.
6 GAOR, 37th Session, Supplement 40, Report of the Human Rights committee, pp. 134-35.
7 Ibid., p. 135.
8 Article 4(2) of the Optional Protocol provides, "Within six months, the receiving State shall submit to the Committee
written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by the State".
9 Doc. A/38/40, p. 124.
10 Ibid ., paragraph 1.6.
12 Doc. A/137/40, p. 137.
13 Mrs. Maria Fanny Suaraz De Guerrero.
14 Doc. n. 10, paragraph 64. This office was responsible for exercising judicial suspension over the system of military
criminal justice with regard to proceedings against national police personnel.
15 Doc. n. 9, paragraph 11.2.
17 Doc. A/40146, p. 187.
18 "Human Rights Committee", International Commission of Jurists , no. 35 (1985), pp. 21-22.
19 Inter-American Commission on Human Rights, the International Committee of the Red Cross, International Labour
Organisation, International Commission of Jurists, Amnesty International.
Page 27 of 35
20 Doc. A/40/40, p. 187, paragraph 14.1.

21 Doc. A/43/40, p. 190.
24 Ibid ., paragraph 11.
25 Doc. A/43/40, p. 218.
27 Doc. A/38/40, p. 134.
28 Article 14(3) , "In the determination of any criminal charge change against him, everyone shall be entitled to the
following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and clause of the charge
against him.
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his
own choosing;
(d) To be tried in his presence, and to defend himself in personal or through legal assistance of his own choosing; to
be informed if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any
case where the interests of justice so require, and without payment by him in any such case if he does not have
sufficient means to pay for it;
(e) To examine, or have examined, the witness against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him;
29 Doc. A/38/40, p. 134, paragraph 17.
30 Guerrero v. Colombia , Doc. n. 10.
31 General Comment No. 07: Torture or Cruel, Inhuman or Degrading Treatment or Punishment (Art. 7 ) :. 30, May 1982,
available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/7e9dbcf014061fa7c12563 ed004804fa? Opendocument visited
on 20 July, 2013.
32 Doc. A/34/4, p. 124.
34 Doc. A/37/40/p. 114.
36 Doc. A/35/40, p. 111.
37 Article 10 paragraph 1 stipulates that, "All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person".
39 Doc. A/34/40, p. 124.
40 Doc. A/34/40, p. 124, paragraph 9(ii).
41 Doc. A/136/40, p. 143.
43 Doc. A/41/40, p. 128.
45 Doc. A/35/46, p. 107.
47 Ibid ., pp. 11-12.
48 Doc. A/38/40, p. 216.
Page 28 of 35
52 Ibid ., paragraphs 1.9 and 7.3.

54 Camille Jones, "Human Rights: Rights of Relatives of Victims Views of the Human Rights Committee in the
Quintenterts Communication", Harvard International Law Journal , vol. 25, no. 3 (1984), pp. 440-77, p. 476.
55 Doc. A/44/40, p. 222.
56 Ibid ., paragraphs 13.6, 13.7.
57 General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Art. 18 ), 30 July, 1993,
available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/9a30112c27d1167cc12563 ed004d8f15? Opendocument visited
on 20 July, 2013.
58 "Human Rights Committee" International Commission of Jurists", no. 35 (1955), pp. 23-24.
59 Article 14(6) provides, "When a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered
fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a
result of such convictions shall be compensated according to law, unless it is proved that the non-disclosure of the
unknown fact in time is wholly or partly attributable to him.
60 This observation was made by V.S. Mani while going through the manuscript.
61 See for European Court, David R. Lawry, and Robert T. Spjut, "The European Convention on Human Rights in
Northern Ireland", Case Western Journal of International Law , vol. 10 (1978), pp. 251-98; P.J. Duffy, " Article 3 of the
European Convention on Human Rights", International and Comparative Law Quarterly , vol. 32 (1983), pp. 316-46;
A.H. Robertson, "The European Court of Human Rights", American Journal of Comparative Law , vol. 9 (1960), pp. 1-
28, Asbjorn Eide, "European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment", ICJ Review (1987); pp. 51-55. Steven A. Bibas, "The European Court of Justice and The Early US
Supreme Court: Parallels in fundamental Jurisprudence", Hastings International and Comparative Law Review , vol. 15
(1992), pp. 253-95; R.T. Spjut, "Torture under the European Convention on Human Rights", American Journal of
International Law , vol. 73 (1979), pp. 267-72; Christopher Lush, "The Territorial Application of the European
Convention on Human Rights: Recent Case Law", International and Comparative Law Quarterly , vol. 42 (1993), pp.
695-905; Sean Macbride, "The European Court of Human Rights", New York University Journal of International Law
and Politics , vol. 13 (1981), pp. 427-72; Beck L. Doswald, "What does the Prohibition of Torture or Inhuman or
Degrading Treatment or Punishment mean: The Interpretation of the European Commission and Court of Human
Rights", Netherlands International Law Review , vol. 25 (1978), pp. 24-50. Michael P. Shea, "Expanding Judicial
Scrutiny of Human Rights in Extradition cases after Soering", The Yale Journal of International Law , vol. 17, 1992, pp.
85-138. : Ane Maria Roddik, Judicial Accommodation of Human Rights in the European Union (Copenhagen, DJOF
publishing, 2007); Heln Keller, Magdaalena Forowich and Lorenz Eugi, Friendly Settlements Before the European
Court of Human Rights : Theory and Practice (Oxford, Oxford University Press, 2010); Andrew Legg, The Margin of
Appreciation in International Human Rights Law: Defence and Proportionality (Oxford, Oxford University Press, 2012).;
Cedric Ryngaert, "The European Court of Human Rights' Approach to the Responsibility of Member States in
Connection with Acts of International", International and Comparative Law Quarterly , vol. 60 (4) 2011, pp. ; Ed. Bates,
The Evolution of the European Convention on Human Rights: Its inception to the creation of a Permanent Court of
Human Rights (Oxford, Oxford University Press, 2012).
62 Cyprus v. Turkey , No. 8007/77, Yearbook of the European Convention on Human Rights (Hague, 1978), vol. 21, pp.
100-247; Turkey had occupied more than forty per cent of territory of Cyprus after invading Cyprus on 20 July, 1974.
Cyprus alleged in its application of 6 September 1977 to the European Convention that large scale of human rights
violations continued to be committed by Turkey. Around 2000 Greek Cypriots were missing and feared killed by Turkish
authorities.
63 Helwen Fenwick, Civil Liberties (London,1995), pp. 35-36, at p. 35.
64 Ibid ., p. 35.
65 X v. UK , no. 8416178, 19 DR 244 (1980).
66 W v. UK , no. 9348181, 32 DR 190 (1983).
67 "In practice, this question has arisen in context of abortion, other "right to life" issues concerning the unborn child
include those arising out of embryonic and foetal research and the taking of hazardous drugs by pregnant women". cf.
D.J. Harris et al., Law of the European Convention on Human Rights (London, 1995), p. 92.
68 Paton v. UK , No. 8416/79, 19 DR 244 (1980).
69 No. 17004/96 (1992) unreported. Cf. Harris, n. 67, p. 42.
70 Cyprus n. 62, pp. 535-36.
71 The Commission was refused access by Turkey to places of detention of Greek Cypriot prisoners. The Turkish
Government also declined to respond to any of the allegations of killings. Cyprus v. Turkey (Third Application, Yearbook
Page 29 of 35
of the European Convention on Human Rights (Hague, 1983), vol. 26, pp. 509. Irrespective of other considerations, the
case could not have been referred to the Court because Turkey had not accepted its jurisdiction.
72 Stewart v. U.K ., no. 10094/82, DR (162) 1984.
73 These were the facts as found in civil proceedings in tort in the Northern Ireland courts. The Commission accepted
these findings which differed considerably from the account presented by the applicant, in accordance with its usual
practice of accepting the facts as found by national courts. The civil claim failed on the basis that the force used was
lawful under Section 3 (under the Criminal Law Act (NI) 1967; Section 3(1) is identified to Section 3(1) of the
Criminal Law Act 1967, which applies in England and Wales. Section 3(1) reads: "A person may use such force as is
reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or
suspected offenders or of persons unlawfully at large".
74 Stewart, n. 72. p. 170.
75 Application No. 11257/84, 49 DR 213 (1986).
76 Cf. Harris, n. 67, pp. 48-49.
77 No. 18984/91 (1994), Com. Rep. para 233. Case pending before the Court.
78 No. 9013/80, 30DR 96 (1982).
79 No. 17579/90 (1993) unreported. Cf. Harris, n. 67, p. 50.
80 Helwen, n. 63, p. 35.
81 R.T. Spjut, "Torture under the European Convention on Human Rights", American Journal of International Law , vol. 73
(1979), pp. 267-72; L. Diswakd-Beck, "What does the Prohibition of "Torture or Inhuman or Degrading Treatment or
Punishment" mean? The Interpretation of the European Commission and Court of Human Rights", Netherlands
International Law Review , vol. 25 (1978), pp. 24-50; P.J. Duffy, " Article 3 of the European Convention on Human
Rights", International and Comparative Law Quarterly , vol. 32 (1983), pp. 316-46; Asbjorn Eide, "European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment", International Commission of Jurists
, vol. 39 (1987), pp. 51-56; Michael P. Shea, "Expanding Judicial Scrutiny of Human Rights in Extradition cases after
Soering", The Yale Journal of International Law , vol. 17 (1992), pp. 85-138; J.H. Burgers, "The Fight Against Torture",
International Commission of Jurists , no. 32, (1984), pp. 47-48; Colin Warbrick, "The European Convention on Human
Rights and the Prevention of Terrorism", International and Comparative Law Quarterly , vol. 32 (1983), pp. 82-99;
Giovanni Distefano, "The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment: Genesis of an Exemplary Model of International Control on Human Rights" Journal of Sharia & Law , vol.
47, pp. 21-42, July, 2011. Clare M. S. Mcglynn, Rape, Torture and the European Convention on Human Rights (2009)
International and Comparative Law Quarterly, 58(3) pp. 565-595; Karsten Poetschke, Weiwei Fu and Howard, L.
Joseph, "Of Life and Torture: Differences in the "Mistreatment-Threshold" for the Invocation of Article 2 and 3 of the
European Convention on Human Rights" Available at http://ssrn.com/abstract=1729757 or
http://dx.doi.org/10.2139/ssrn.1729757 visited on 12 July, 2013.
82 Article 27(2) : "The Commission shall consider inadmissible any petition submitted under Article 25 which it considers
incompatible with the provisions of the Present Convention, manifestly illfounded, or an abuse of the right of petition".
83 Ireland v. United Kingdom , Yearbook of European Convention on Human Rights , vol. 19, 1976, p. 604.
Five techniques were:
(a) Wall standing - the witnesses demonstrated how they were spread-eagled against the wall, the legs spread apart
and the feet back, causing them to stand on their toes with the weight of the body mainly on the toes.
(b) Hooding - a black or navy coloured bag was put over the head.
(c) Subjection to noise - Pending interrogations the witnesses were held in room where there was a continuous loud
and hissing noise.
(d) Deprivation of sleep - Pending interrogations the witnesses were deprived of sleep, but it was not possible to
establish for what periods each witness had been without sleep.
(e) Restricted food and drinkthe witnesses were subjected to a reduced diet during their stay at the centre pending
interrogation.
84 Ibid ., p. 795.
85 Ibid ., p. 606.
86 Cf. Duffy, n. 81, p. 317.
87 Cf. Harris, n. 67, p. 63.
88 The medical evidence established remaining superficial abrasions and bruises on the face, arm and chest and injury to
an ear.
Page 30 of 35
89 Nos.6780/74 and 6950/75 (first and second applications), Yearbook of European Convention on Human Rights .
90 Cf. Harris, n. 67, pp. 66-67.
91 Application No. 6870175.
92 Cf. Harris, n. 67, p. 76.
93 Ibid ., p. 75, fn. 12; Bonnechaux v. Switzerland No. 8224/78, 18 DR 100 (197a) Com Rep; C.M. Res. DH (80)
(treatment for a man in his 70s suffering from cardio-vascular disorders and diabetes during nearly three years
detention on remand satisfactory); De Varga-Hirsch v. France No. 9559/81, 33DR 158 (1983) or to permit a medical
examination CRSA and CV Portugal Nos. 9911/82 and 9945/82.36 DR 200 (1984).
94 Chartier v. Italy No. 9044/88, 33DR 41 (1982) Com Rep; CM Res DH/83, 12.
95 Cf. Harris, n. 67, p. 72.
96 Ibid .
97 The Commission, by 6 votes to 5, had found no breach of Article 3 .
98 N.6361/72, Yearbook of European Convention on Human Rights , vol. 16 (1973), p. 356; The case has been regarded
as one of "disguised extradition". There was no extradition treaty with Morroco and, in any event, the political defence
would have been available in national law.
99 Eur.Ct. H.R. (ser.A) (1989). On the Soering case see, Michael P. Shea, "Expanding Judicial Scrutiny of Human Rights
in Extradition Cases", Yale Journal of International Law , vol. 17 (1992), pp. 86-137; Richard B. Lillich, "The Soering
Case", American Journal of International Law , vol. 85 (1991), pp. 178-31; Christie Vanden Wyngacert, "Applying the
European Convention on Human Rights to Extradition: Opening Pandoras Box", International and Comparative Law
Quarterly , vol. 39 (1990), pp. 757-790.
100 After the Courts judgement, the UK refused extradition on the charges of capital murder but surrendered the applicant
on charges of non-capital murder. The applicant was then convicted in Virginia of the two murders and given two life
terms. The applicants girlfriend was already serving a long term of imprisonment for the murders when he was
convicted.
101 The Court referred to the prohibition of the death penalty for persons under 18 (and hence less responsible for their
acts than older persons) in Article 6 , ICCPR and Article 4 , ACHR. The standards in these later instruments "at the
very least" indicated that as a general principle the youth of the person concerned was in a circumstance which was
liable, with others, to put in question the compatibility with Article 3 of measures connected with the death penalty; Cf.
Harris, n. 67, p. 76, fn. 10.
102 Mo.4403/76, East African Asians , Yearbook of European Convention on Human Rights (Hague, 1970), vol. 13, p. 928.
103 Resolution (789) 39, Yearbook of European Convention on Human Rights (Hague, 1976), vol. 19, pp. 654-55.
104 ECHR Reports, Series A, No. 48, see Sandy Gandhi, "Spare the Rod: Corporal Punishment in Schools and the
European Convention on Human Rights", International and Comparative Law Quarterly , vol. 33, (1984), pp. 488-94.
105 Para 26 of the judgement.
106 Cf. Harris, n. 67, pp. 86-89.
107 Ibid ., p. 56.
108 No. 9471/81.60 DR 5(1986) Com Rep; Ciu Res. DH (89)5.
109 A.247-C (1993). Com Rep.
110 The UK government agreed to pay 8,000 compensation and 9,000 in costs.
111 See for text, International Legal Materials , vol. 27, no. 6 (1988), p. 1152; See Antonio Cassesse, "A New Approach to
Human Rights: the European Convention for the Prevention of Torture", American Journal of International Law , vol. 33
(1989), pp. 128-45; Malcom Evans and Rod Morgan, "The European Convention for the Prevention of Torture:
Operational Practice", International and Comparative Law Quarterly , vol. 41, no. 3 (1992), pp. 549-614.
112 Preamble to the Torture Convention.
113 Article 28(1) provides: "In the event of the Commission accepting a petition referred to it: (a) it shall, with a view to
ascertaining the facts, undertake together with the representatives of the parties an examination of the petition and, if
need be, an investigation, for the effective conduct of which the states concerned shall furnish all necessary facilities,
after an exchange of views with the Commission".
114 Article 10(2) .
Page 31 of 35
115 Article 11 provides, "The information gathered by the Committee in relation to a visit, its report and its consultation
with the party concerned shall be confidential". Article 13 extends the obligation of confidentiality to members, experts
and others assisting the CPT "during and after" their terms of office.
116 Cassesse, n. 107, pp. 128-45.
117 Article 15(2) of ECHR.
118 Cf. Harris, n. 67, p. 91.
119 Ibid . The court held that there was no breach of Article 4(1) on the facts, referring to the Commissions report in other
respects.
120 See Kokkinakis v. Greece , A 260-A (1993). Cf. Harris, n. 67, p. 274.
121 Ireland v. United Kingdom , n. 78, p. 607.
122 X v. FRG, No. 4274/69, Yearbook of European Convention on Human Rights (Hague, 1970), vol. 13, pp. 888-91.
123 No. 10038/82, DR 53 (1984): The case resulted in a friendly settlement.
124 A 307 - A paras 27.35 (1995). Cf. Harris, n. 63, p. 280.
125 The case does not affect the 1986 Act insofar as it applies to crimes committed after it entered into force.
126 Cf. Harris, n. 67, p. 280.
127 Article 27(2) of IACHR. The implementation procedure of Inter-American Commission and Court of Human Rights
have already been discussed in detail in Chapter III.
128 See for further readings, Pedro Pablo Camargo, "The American Convention on Human Rights", Human Rights Journal
, vol. 3 (1970), pp. 333-56, Benito Pena, "Human Rights: The Statute of the Inter-American Court of Human Rights",
Harvard International Law Journal , vol. 21 (1980), pp. 735-42; Thomas Buergenthal, "The Inter-American Court of
Human Rights", American Journal of International Law , vol. 76 (1982), pp. 231-45; Manyel D. Vargas, "Individual
Access to the Inter-American Court of Human Rights", New York University Journal of International Law and Politics ,
vol. 16 (1984), pp. 601-18; Thomas Buergenthal, "The Advisory Practice of the Inter- American Human Rights Court",
American Journal of International Law , vol. 79 (1985), pp. 1-27; Claudio Grossman, "Disappearances in Honduras: The
need for Direct Victim Representation in Human Rights Litigation", Hastings International and Comparative Law Review
, vol. 15 (1992), pp. 363-89; ICJ, Inter-American Court of Human Rights Case, "Velasquez Rodriguez", no. 41 (1988),
pp. 58-60; Christina M. Cerna, "The Structure and Functioning of the Inter-American Court of Human Rights", British
Yearbook of International Law , vol. 63 (1992), pp. 135-229; Dunshee de Abranches, "The Inter-American Court of
Human Rights", American University Law Review , vol. 30 (1980), pp. 79-125; Thomas Buergenthal, "Inter American
System for the Protection of Human Rights" in Theodore Meron, ed., Human Rights in International Law (Oxford, 1989),
vol. II, pp. 439-93;Thomas M.Antkowiak, "Remedial Approaches to Human Rights Violations: The Inter-American Court
of Human Rights and Beyond", Columbia Journal of Transnational Law, Vol. 46, No. 2, 2008., pp. 350-419;, F.Yerima,
"African Regional Human Rights Courts: Features and Comparative Critique with the European and Inter-American
Courts of Human Rights", Indian Journal of International Law , vol. 50 (4) 2010, pp. 592-616; Lucas Lixinski, "Treaty
Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International
Law", European Journal of International Law , vol. 21, no. 3 (2010), pp. 585-604.
129 Article 57 stipulates, "The Commission shall appear in all cases before the Court".
130 Till 1 June, 1992.
131 Inter-American Court of Human Rights: Decision on the application of the Costa Rica with regard to Viviano Gallarado
et al. , International Legal Materials , vol. 20 (1981), pp. 1424-35.
132 The Government declared that for purposes of this case it "formally waives the requirement of the prior exhaustion of
the domestic legal remedies and the prior exhaustion of the procedures set forth in Articles 48 to 50 of the
Convention", that is, the procedures before the Inter-American Commission on Human Rights (the Commission). The
Government also declared that waiver was designed to enable the Court to "consider the instant case immediately and
without any procedural obstacle". Cf. Cerna, n. 128, pp. 135-229.
133 The proceedings before the Court are initiated by the Commission or a State Party pursuant to Article 51 of the
134 In order for the Court to hear a case, it is necessary that the procedures set forth in Articles 48 to 50 shall have been
completed. Under international law relating to the interpretation of treaties, the aforementioned provision must be read
in accordance with "the ordinary meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose". Vienna Convention on the Law of Treaties (1963), Article 31(1) .
135 Article 48(1)(f) .
Page 32 of 35
136 Restriction to the Death Penalty (Article 4(2) and 4(4) , American Convention on Human Rights), International Law
Reports (Cambridge, 1986), vol. 70, pp. 445-82; Protocol to the American Convention on Human Rights to Abolish the
Death Penalty, 1990 .
137 Article 64(1) provides, "The member states of the Organisation may consult the Court regarding the interpretation of
this Convention or of other treaties concerning the protection of human rights in the American States within their
spheres of competence, the organs listed in Chapter X of the Charter of the Organisation of American States, as
amended by the Protocol of Buenos Aires, may in like manner consult the Court".
138 Article 4(2) provides, "In countries that have not abolished the death penalty, it may be imposed only for the most
serious crimes and pursuant to a final judgement rendered by a competent court and in accordance with a law
establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall
not be extended to crimes to which it does not presently apply. Article 4(4) states, "In no case shall capital punishment
be inflicted for political offences or related common crimes".
139 The Government of the Republic of Guatemala, ratified the American Convention on Human Rights, signed in San
Jose, Costa Rica, on the 22 November of 1969, making a reservation with regard to Article 4(4) , in as much as the
Constitution of the Republic of Guatemala, in its Article 54 , only excludes from the application of the death penalty,
political crimes, but not common crimes related to political crimes". Cf. Cerna, n. 119, p. 162.
140 Cf. Cerna, n. 128, p. 162.
141 Ibid ., p. 163.
142 Reports, n. 136, para 59, p. 469.
143 Ibid ., paragraphs 68 to 72, pp. 472-73.
144 Cf. Cerna, n. 128, p. 164.
145 Article 7 , paragraph 6, provides:
Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide
without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In
States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is
entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may
not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.
146 Article 25(1) provides:
Everyone has the right to simple and prompt recourse, or any other effective, recourse, to a competent court or tribunal for
protection against acts that violate his fundamental rights recognised by the Constitution or laws of the State concerned
or by this Convention even though such violation may have been committed by persons acting in the course of their
official duties.
...does not authorize any suspension of the following articles: Article 3 (Right to juridical personality), Article 4 (Right to
Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex post
facto laws), Article 12 (Freedom of conscience and religion), Article 17 (Rights of the family), Article 18 (Right to a
Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to participate in the
Government), or of the judicial guarantees essential for the protection of such rights.
148 Three governments submitted replies. They are: Ecuador, Panama and Venezuela.
149 Cf. Cerna, n. 128, p. 186.
150 Ibid ., p. 187. Compare Article 1 , section 9 , of the United States Constitution which prohibits the suspension of the
writ of habeas corpus except in cases of rebellion or invasion.
151 Ibid ., p. 187.
152 Ibid .
153 Ibid ., p. 188.
154 Ibid ., pp. 168-89.
155 Ibid ., p. 189.
156 The Governments of Bolivia and Panama responded to the Courts request and a number of nongovernmental
organisations submitted amicus briefs.
Article 64 of the American Convention states:
1. The member States of the Organisation may consult the Court regarding the interpretation of this Convention or
other treaties concerning the protection of human rights in the American States. Within their spheres of
Page 33 of 35
competence, the organs listed in Chapter X of the Charter of the Organisation of American States, as amended by
the Protocol of Buenos Aires, may in like manner consult the Court.
2. The Court, at the request of a member State of the Organisation, may provide that State with opinions regarding
the compatibility of any of its domestic laws with the aforesaid international instruments.
The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all
persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination
for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status,
birth or any other social conditions.
158 Article 7(6) stipulates:
anyone who is deprived of his liberty shall be entitled to recourse to a competent Court, in order that the Court may decide
without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In
States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is
entitled to recourse to a competent Court in order that it may decide on the lawfulness of such threat, this remedy may
not be restricted or abolished. The interested party or another person on his behalf is entitled to seek these remedies.
159 Article 25 stipulates that:
everyone has the right to simple and prompt recourse, to a competent Court or tribunal for protection against acts that
violates his fundamental rights recognised by the constitution or laws of the State concerned or by this Convention,
even though such violation may have been committed by persons acting in the course of their official duties.
2. The States Parties undertake:
(a) to ensure that any person claiming such remedy shall have his rights determined by the competent authority
provided for by the legal system of the State;
(b) to develop the possibilities of judicial remedy; and
(c) to ensure that the competent authorities shall enforce such remedies when granted.
160 Article 27(2) does not authorize any suspension of the following articles: Article 3 (right to juridical personality),
Article 4 (Right to Life), Article 5 (Right to humane treatment), Article 6 (freedom from slavery), Article 9 (freedom
from ex-post facto laws), Article 12 (freedom of conscience and religion), Article 17 (right of the family), Article 18
(right to a name), Article 20 (right to nationality) and Article 23 (right to participate in Government), or of the judicial
guarantees essential for the protection of such rights.
161 Cerna, n. 124, p. 189.
162 Ibid .
163 Annual Report of the Commission (1985-6): Resolution no. 22/86, Case No. 7920, p. 46; Resolution No. 23/86 Case
No. 7951, p. 71; Resolution No. 24/86, Case No. 8097, p. 49. Cf. Cerna, n. 124, p. 206, fn. 307.
164 International Legal Materials , vol. 28 (1989), p. 291.
165 See, Cerna, n. 128, pp. 208-09.
166 Article 62(1) provides, "A State Party, may, upon depositing its instrument of ratification or adherence to this
Convention, or at any subsequent time, declare that it recognises as binding, ipso facto , and not requiring special
agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention".
167 Materials , n. 164, p. 291.
168 See Grossman, n. 128, pp. 363-89.
169 The Court recognised that the standard of proof is dependent upon the nature, character, and seriousness of each
case. Therefore the Court had to take into account the seriousness of a binding that a state is guilty of the practice of
disappearance, a practice characterised "by an attempt to suppress all information about the kidnapping or
whereabouts and fate of the victim". Materials , n. 164, paragraph 131, p. 316.
170 The matter of burden proof is of great importance due to the nature of the crime of disappearances. Disappearances
usually involve a governmental conspiracy of cover-ups, and hence the enforcement officials responsible for them are
unlikely to cooperate in the investigation. Cf. Grossman, n. 128, fn. 48, p. 372.
171 The Court concluded that it would not consider direct evidence alone because the type of evidence would be almost
impossible to obtain in cases of disappearances attributable to a government, Cf. Grossman, n. 128, p. 372.
172 The Court found the Honduran government practice that individuals considered dangerous to the States security first
were put under surveillance. A second step was detention, either openly by the security forces or kidnapping by
disguised military personnel in unmarked vehicles. Materials , n. 163, paragraph 147 (d) (iv), p. 319.
Page 34 of 35
173 Grossman, n. 128, p. 373.

174 The Court found Honduras responsible for the violation of Article 4 (the right to life), Article 5 (the right to integrity of
the person, including the right to dignity and freedom from torture), and Article 7 (the right to personal liberty, including
freedom from arbitrary arrest or imprisonment). The Court ruled further that Honduras behaviour also violated Article 1
of the Convention, concerning the States obligation to respect the rights of its citizens. The Court observed that to find a
government guilty of a disappearance, the individual perpetrator need not be identified; it is enough to prove "whether a
violation of the rights recognised by the Convention has occurred with the support or the acquiescence of the
government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish
those responsible". Materials , n. 167, pp. 325-26.
175 Cerna, n. 128, p. 226.
176 Ibid ., p. 228.
If the Court finds that there has been a violation of right or freedom protected by this Convention, the Court shall rule that
the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that
the consequences of the measure or right or freedom be remedied and that fair compensation be paid to the injured
party.
178 Ibid ., p. 228.
179 Scott Davidson, "Remedies for violations of the American Convention on Human Rights", International and
Comparative Law Quarterly , vol. 44 (1995), pp. 405-14.
180 The Bushnegroes, or Maroons, were the descendants of slaves who had fled from their Dutch owners during the
eighteenth century and established the communities in the jungle of Surinam, former Dutch Guyana.
181 It was claimed that the rights violated by Surinam were Article 1 (obligation to respect rights), Article 2 (Domestic
legal effects), Article 4 (Right to life), Article 5 (Right to humane treatment), Article 7 (Right to personal liberty),
Article 25 (Right to judicial protection).
182 The democratically elected government of President Ronald Venetian which took office on 7 September, 1991
demonstrated at the outset that it was committed to constitutional development and respect for human rights. Cf.
Davidson, n. 175, fn. 11, p. 406.
183 Davidson, n. 179, p. 407.
184 Ibid .
185 Ibid . The Court observed: "Reparation of harm brought about by the violation of an international obligation consists in
full restitution (restitutio in integrum), which includes the restoration of the prior situation, the reparation of the
consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional
harm". Ibid .
186 Ibid ., p. 408. A question which arose before the Court was the identity of the appropriate family law. This was
complicated by the fact that the Saramacca had enjoyed substantial autonomy since 1762, when the Dutch entered into
a treaty with the Saramacca which not only recognised the legal authority of the tribe over its own territory but also
included provisions concerning its active participation in providing and returning runaway slaves to the Dutch. Although
Surinam acknowledged that it had succeeded to this treaty upon independence from the Netherlands, the Court did not
consider it necessary to enquire into its precise legal nature, except simply holding that its provisions violated jus
cogens and thus "no treaty of that nature may be invoked before an international human rights tribunal".
187 Cerna, n. 128, pp. 135-229.
188 Barcelona Traction, Light & Power Co., Ltd. (Belgium v. Spain) , New Application: 1967, ICJ Reports (1970),
Judgement 5 February, 1970, p. 32.
189 Theodore Meron, "A Hierarchy of Human Rights", American Journal of International Law , vol. 80, no. 1 (1986), pp. 1-
23.
190 Reports, n. 188, p. 48.
191 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S., Merits, ICJ Reports, 1986 (Judgement
of June 27), p. 114.
192 International Legal Materials , vol. 35 (1996), pp. 35-88.
193 Jean Pictet, ed., Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention for the Amelioration
of the Condition of the wounded and sick in Armed Forces in the Field (Geneva, 1952), p. 25.
194 Reports, n. 191, pp. 113-14, para 218.Common Article, Convention I, Article 63 ; Convention II, Art. 62 ; Convention
III, Art. 142 ; Convention IV, Art. 158 ).
Page 35 of 35
195 Corfu Channel , Merits, ICJ Reports , 1949, paragraph 215, p. 22.
196 Reports , n. 191, para 220, p. 114.
197 Meron, n. 189, p. 15.
198 Theodor Meron, "On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New
Instrument", American Journal of International Law , vol. 77 (1983), p. 603.
199 Report, n. 191, para 219, p. 114.
200 Pictet, n. 193, p. 25.
201 Ibid . p. 595.
202 S.C. Res. 794 of 3 December 1992; S.C. Res. 814 of 26 March 1993.
203 S.C. Res. 955, reprinted in International Legal Materials , vol. 33 (1994), p. 1600. The government of Rwanda
requested the creation of an international tribunal for several reasons, including its desire to avoid "the risk of being
accused of administering on "expeditious victors justice", its belief that genocide was a "crime against humanity, calling
for collective efforts to prevent, stop and punish it"; and its hope that a "free and fair international tribunal would
contribute to allay the fear of retribution...would facilitate much needed reconciliation ... and was indispensable in
building a legal system based on the rule of law. Despite its initial request for the formation of the tribunal, Rwanda
voted against the Resolution as passed by the Security Council. Its main criticisms were that the Tribunal failed to
provide for a number of essential features, including a death penalty for those convicted, organisational guilt, in-country
trial and punishment, and adequate structure and composition. Cf. Rupa Bhattacharya, "Establishing a Rule-of-Law
International Criminal Justice System", Texas International Law Journal , vol. 31 (1996), fn. 23, p. 62.
204 Materials , n. 192, pp. 53-55.
205 Ibid ., pp. 54-55.
206 Ibid ., p. 73.
207 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25764
(1993).
208 Report of the International Law Commission on the Work of its Forty-Sixth Session , UN GAOR, Sess.49, Supp. 10, p.
29, UN Doc. A/49/10 (1994).
End of Document
CHAPTER 6 Jurisprudence of the Indian Judiciary and National Human
Rights Institutions
Manoj Kumar Sinha
Human Rights
CHAPTER 6 Jurisprudence of the Indian Judiciary and National Human

Rights Institutions
This chapter is mainly confined to portraying important decisions pronounced by the Supreme Court and the
various High Courts of India as well as the National Human Rights Commission of India (NHRC). The emphasis of
the study is not to cover all cases related with fundamental rights. The thrust will be mainly on non-derogable rights
under the Indian Constitution.
There was not a single right recognised as a non-derogable right before the 44th Amendment to the Constitution. 1
Prior to 1978, the State had the power to abrogate any of the fundamental rights of its citizens during the
proclamation of emergency. There are two rights which acquired the attributes of non-derogable rights. They are
Articles 20 2 and 21 3 of the Indian Constitution. The effect of these provisions is like the non-derogable provisions
in the universal or regional human rights instruments. 4 The following table 5 reflects the similarity between the
different provisions of the International Covenant of Civil and Political Rights (CP Covenant) and the Indian
Constitution.
International Covenant on Civil and Political Rights Indian Constitution
(right to life)
(right against torture)
(prohibition of slavery) *
(prohibition of imprisonment for non-fulfilment of contractual

obligation)
(freedom from ex-post facto laws)
(right to Legal recognition) *
(freedom of thought, conscience and religion) and *
[* Articles 15(2) , 23 , 25 and 28 of the Indian Constitution are not recognised as non-derogable rights under the
Indian Constitution, unless in any context they fall within the scope of Article 21 . The table indicates that Article 21
under the Indian Constitution covers not only the right to life but also the right against torture and right against
imprisonment for breach of contractual obligations.]
This chapter is divided into two sections. The first section will cover major judicial decisions pronounced by the
Supreme Court of India and some of the High Courts of India. The second section will mainly cover the cases taken
up by the National Human Rights Commission and State Human Rights Commissions.
SECTION I
Page 2 of 35
CHAPTER 6 Jurisprudence of the Indian Judiciary and National Human Rights Institutions
The major judicial decisions will be divided into two sub-headings, the first one will cover only substantive rights
and the second will cover procedural rights.
I. SUBSTANTIVE RIGHTS
The following substantive rights will be covered under this section:
(i) Right to life

(ii) Death penalty
(iii) Torture
(a) Right to Life ()
The widening of Article 21 of the Constitution of India has taken place in two respects. 6 The first one is that, the
expression "the procedure established by law" received a new interpretation, not intended by the founding fathers of
the Constitution. 7 In A.K. Gopalan v. State of Madras 8 the Supreme Court held that, "procedure established by
law" only meant that a procedure had to be set by a law as enacted by a legislature and that this phrase was
deliberately used in Article 21 in preference to the American "due process" clause. Three decades later, in the
Maneka Gandhi case, 9 the Supreme Court rejected its earlier interpretation and held that the procedure
contemplated under Article 21 is a right, just and fair procedure, not an arbitrary or oppressive procedure. The
procedure which is reasonable and fair must now be in conformity with the test of Article 14 - "in effect it has
become due process". 10 There is no doubt that the experience of national emergency (1975-1977) prompted the
Court to go all out for vindication of human rights. 11
Secondly, the judiciary interprets "the right to life and personal liberty" to encompass all basic conditions for a life
with dignity and liberty. Such an approach allows it to come down heavily on the system of administration of criminal
justice and law enforcement, it also brings into the fold of Article 21 , all those directive principles of State policy
that are essential for a "life with dignity".
The right to life guaranteed by Article 21 of the Constitution of India is not merely a fundamental right but is the
basic human right from which all other human rights stem. It is basic in the sense that the enjoyment of the right to
life is a necessary condition for the enjoyment of all other human rights. This right existed even prior to the
commencement of Indian Constitution. In A.D.M. Jabalpur v. Shivakant Shukla 12 case, Justice H.R. Khanna rightly
observed:
...sanctity of life and liberty was not something new when the Constitution was drafted. It represented a facet of higher
values which mankind began to cherish in its evolution from a state of tooth and claw to a civilised existence. Likewise, the
principle that no one shall be deprived of his life and liberty arbitrarily without the authority of law was not the gift of the
Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty which existed and was in
force before the coming into force of the Constitution...
The term "life" has not been defined in the Constitution as such. However, the Supreme Court of India in Kharak
Singh v. State of U.P. 13 held that the word "life" as it occurs in the Fifth and Fourteenth Amendments of the US
Constitution corresponds to Article 21 of the Indian Constitution.
The Court adopted an annotation of Article 21 , in Kharak Singhs case which expanded the connotation of the
term "life" as given by Field, J., of the Supreme Court of America in Munn v. People of Illinois. 14
Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties
by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, of the
putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer
world. 15
Maneka Gandhi case 16
The opportunity for widening the horizons of Article 21 , in fact started from R.C. Cooper case, 17 but Maneka
Gandhi v. Union of India proved to be a watershed in this direction. The latter judgement has a great significance in
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the development of human rights jurisprudence in India. The concept of "procedure established by law" came to be
equated with the American concept of "due process of law", after the Maneka Gandhi case.
The first contention raised in this case was that the right to go abroad was part of "personal liberty" and no one
could be deprived of this right except according to the procedure established by law. In this case, Bhagawati, J.
opined that "the fundamental right of life and personal liberty has many attributes and it covers a variety of rights
which go to constitute the personal liberty of man and some of them have been raised to the status of distinct
fundamental rights and given additional protection under Article 19 ". 18 Obviously, the procedure cannot be
arbitrary, oppressive or unjust as prescribed by the law.
It is appropriate here to consider the relations between Article 21 on the one hand and Articles 14 and 19 on
the other. The majority view in A.K. Gopalan case 19 was that so long as a law of preventive detention satisfied the
requirements of Article 22 , it would be within the terms of Article 21 and that it would not be required to meet the
challenge of Articles 19 , 14 and 21 . The minority view of Fazal Ali, J. on the other hand, was that preventive
detention was a direct breach of the right under Article 19(1)(d) and that a law providing preventive detention had
to be subject to such judicial review as required under clause (5) of that Article.
Now it is established that Article 21 does not exclude Article 19 and that even if there is a law prescribing a
procedure for depriving a person of "personal liberty" and there is consequently no infringement of the fundamental
right conferred by Article 21 , such law in so far as it abridges or takes away any fundamental right under Article
19 would have to meet the requirements of that Article.
The next question immediately relates to the nature and requirement of the procedure under Article 21 . In fact
equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other to the
whim and caprice of a tyrant. Where an act is arbitrary, it is implicit in it that it is unequal both according to political
logic and Constitutional law and is therefore violative of Article 14 . 20Article 14 strikes at arbitrariness in State
action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as
philosophically is an essential element of equality of non-arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to
be in conformity with Article 14 . It must be "right, just and fair" and not "arbitrary, fanciful or oppressive, otherwise
it would be no procedure at all and the requirement of Article 21 would not be satisfied". 21
The landmark judgement delivered by the Supreme Court in Maneka Gandhi case infused a new life into Article 21
. The verdict not only checked unbridled power of the executive, but also restricted arbitrary law making power of
legislature. The most welcome feature of this decision is not just the removal of Gopalan from the lore of law but
also development of a human rights jurisprudence. 22
Interestingly, this decision reflected the Courts liberation from the shuttered gloom of authoritarianism of the
emergency era to the refreshing liberalism of the post-emergency period. It also unchained Article 21 from the
shackles of Frankfurters philosophy. 23 To be fair to the Supreme Court, it initially trusted the executive and
legislatures to follow the Constitutional mandates strictly, and when that mandate was abused as demonstrated
during the emergency, the Court realised its folly and came on its own to rectify the balance in the Constitutional
jurisprudence. 24
(b) Death Penalty
The Supreme Court of India has, over a period of time, given liberal interpretation to the right to life of which a
person cannot be deprived except according to the procedure established by law, which should be reasonable, fair
and just. The Supreme Court and the High Courts are the final arbiters of what is a reasonable, fair and just
procedure. The death penalty has been retained in the Indian statutes, largely in view of its deterrent value, but it is
only invoked in exceptional cases. 25 The Supreme Court of India has ruled in Bachan Singhs case 26 that sentence
of death should be awarded in the rarest of rare cases. More than 32 years after the Supreme Court devised the
"rarest of rare" criterion to restrict imposition of death penalty to exceptionally heinous and cold-blooded murder
cases, the Supreme Court held in the Sangeet & Anr. v. State of Haryana 27 that standard was being applied
differently by different judges and needed to be looked at afresh. Justices K.S. Radhakrishnan and Madan B. Lokur
said there was "little or no uniformity in the application" of this principle. 28
India has not abolished the death penalty, but as a rule laid down by the Supreme Court, it is to be awarded by the
competent courts only in the rarest of rare cases, in which the crime committed is so heinous that it shakes the
conscience of mankind. Under the present criminal law, imposition of a death sentence is an exception rather than
the rule. Even in those exceptional cases, special reasons have to be given in justification of the imposition of the
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death penalty. Section 416 of Code of Criminal Procedure, 1973, requires the High Court to postpone the
execution of capital sentence on pregnant women and may, if it thinks fit, commute the sentence to imprisonment
for life.
Article 6 , paragraph 2 of the International Covenant on Civil and Political Rights provides:
In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious
crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of
the present Covenant and to the Convention on the Prevention and Punishment of the crime of genocide. This penalty can
only be carried out pursuant to a final "judgement rendered by a competent court".
It seems from the above provision that Article 6 is not absolute, and unqualified, it has not abolished the death
penalty. Instead of prohibiting death penalty in all circumstances, it seeks to reduce the scope of award of death
penalty. The requirements of Article 6(2) of the CP Covenant are substantially the same as the "guarantee" or
"prohibitions" contained in Articles 20 and 21 of the Indian Constitution. In India, death sentence has not yet been
abolished, death penalty is Constitutionally permissible provided it follows procedure established by law. 29
There are few important judgements delivered by the Supreme Court which throw light on this issue. In Jagmohan
Singh v. State of U.P., 30 the Supreme Court emphasised that before delivering the final verdict, the Court was to be
fully conversant with the facts and circumstances, connected with the particular crime under inquiry. All such facts
and circumstances are capable of being proved in accordance with the provisions of Indian Evidence Act in a trial
regulated by the Code of Criminal Procedure (Cr.P.C.). The trial does not come to an end until all the relevant
facts are proved and the counsel of both sides have an opportunity to address the Court. The only thing that
remains is for the judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2) of the
Cr.P.C. intend to provide for. These provisions are part of the procedure established by law and unless it is shown
that they are invalid for any other reasons they must be regarded as valid. There are no reasons establishing that
they are Constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure
established by law is not unconstitutional under Article 21 .
In another interesting case, Rajendra Prasad v. State of U.P. 31 Krishna Iyer, J., as usual took a different view
stating that the criminal law of Raj vintage has lost some of its vitality, notwithstanding its formal persistence in print
in the Penal Code so far as Section 302 32 of Indian Penal Code (1860) is concerned. In the post-Constitution
period, Section 302 of IPC and Section 354(3) of Cr.P.C.33 have to be read in the light of Parts III and IV of the
Constitution. 34 In this case, Krishna Iyer, J. vehemently arguing for abolition of death penalty from India, took the
view that the death sentence would not be justified unless it was shown that the criminal was dangerous to society.
He observed that the death sentence should only be awarded in the rarest of rare cases.
Moreover, when the conviction is for an offence punishable with death, the judgement should state the special
reasons for such sentence. The following observations made by the Supreme Court in Bachan Singhs case will
explain the question of "special reasons":
From a reading of SS.354 (3) and 235(2) and other related provisions of the Code of 1973, it is quite clear that for making
the choice of ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both
to the crime and the criminal And it is only when the culpability assumes the proportion of extreme depravity that "special
reasons" can legitimately be said to exist. 35
There are indications in the Constitution which show that the Constitution makers were fully aware of the death
penalty for murder and certain other offences in the Indian Penal Code. Article 72(1)(c) specifically vests with the
President of India, powers to suspend, remit or commute the sentence of any person convicted of any offence, and
also "in all cases where the sentence is a sentence of death". The Court observed that, it cannot be said that death
penalty for the offence of murder violates the basic structure of the Constitution.
The Constitutional validity of Section 354(5) Cr.P.C. 1973 was challenged in Deena v. Union of India. 36 The main
contention in this case was that hanging by the rope as prescribed by this section was barbarous, inhuman and
degrading and, therefore, violative of Article 21 . However, the Court unanimously held in this case that the method
prescribed by Section 354(5) 37 for executing the death sentence by hanging by rope was not violative of Article 21
.
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The Court in Attorney General of India v. Lachman Devi 38 opined that the execution of death sentence by public
hanging is barbaric and violative of Article 21 of the Constitution. It is true that the crime of which the accused
have been found to be guilty is barbaric, but a barbaric crime does not have to be visited with a barbaric penalty
such as public hanging.
In several cases the Supreme Court commuted death sentence into life imprisonment, in view of the inordinate
delay in executing the death sentence. In T.V. Vaitheeswaran v. State of Tamil Nadu, 39 the Supreme Court
observed that the delay of two years is sufficient for commutation of death sentence into life imprisonment.
However, this proposition did not last long and was overruled in Shersingh v. State of Punjab. 40 In this case, the
Supreme Court differed from its earlier pronouncement and said that no hard and fast rule can be laid down and
that the petitioner must prove that it was unjust, unfair and harsh to execute him in the facts and circumstances of
the case.
However, in Daya Singh v. Union of India, 41 the Supreme Court observed that inordinate delay in execution of the
death sentence is violative of Article 21 which would entitle the convict to get his sentence converted to life
imprisonment. The Supreme Court upheld the death penalty by majority decision in Sutherdraraja alias Santhan &
Ors. v. State. 42 In this case the judges could not agree on the award of the death sentence to Nalini.The Supreme
Court in Devender Pal Singh Bhullar v. NCT Delhi 43 held that long delay in deciding the mercy plea of a terror
convict cannot be the ground for granting commutation of death penalty to life sentence, thus putting crime of
terrorism on the top of a hierarchy of "rarest-of-rare" crimes which attract capital punishment. Justices G.S. Singhvi
and S.J. Mukhopadhyaya observed, "Terrorism stands on an altogether different plane and cannot be compared
with murders committed due to personal animosity or over property and personal disputes,". 44
It is clear from the above cases that the matter of life or death is entirely within the discretion of the Court and
"there being no legislative policy or principle to guide the Court in exercising its discretion in delicate and sensitive
area of life and death, the exercise of discretion of the Court is bound to vary from judge to judge". 45 In this
connection it has rightly been remarked by O. Chinnapa Reddy J., in Bishnu Deo v. State of West Bengal 46 that:
Judges in India have the discretion to impose or not to impose death penalty. It is one of the great burdens which judges in
this country have to carry. In the past the reasons which weighed in the matter to award or not to award death sentence
varied widely and there was certainly room for complaint that there was an unequal application of the law in the matter of
imposition of the sentence of death.
Indias commitment, therefore, does not go beyond what is provided in the Constitution and the Indian Penal Code
and the Criminal Procedure Code. The Penal Code prescribes death penalty as an alternative punishment for
heinous crimes. Indias penal laws, including the impugned provisions and their application are entirely in accord
with international commitment.
(c) Torture
In recent times there has been an increasing concern of the international community about the practice of torture of
prisoners and detenues. Indias record in this field is dismal. Torture is a well established tool of investigation of the
Indian police. The case of torture was widely witnessed during the emergency.
The term "torture" has not been defined in the Constitution or in other penal laws. Article 21 of Constitution only
provides "no person shall be deprived of his life or personal liberty except according to procedure established by
law". The term "life" or personal liberty has been held to include the right to live with human dignity and, therefore,
includes within its ambit a guarantee against torture and assault by the State or its functionaries. Any person
subjected to torture or to cruel, inhuman or degrading treatment or punishment can move the higher Courts for
various judicial remedies under Articles 32 and 226 of the Constitution.
There are a range of legal safeguards against the use of torture:
(a) Section 54 of Criminal Procedure Code of 1973 confers upon an arrested person the right to have
himself medically examined;
(b) A confession made to police officers is not admissible in evidence under Sections 25 and 26 of the Indian
Evidence Act, 1872;
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(c) Section 162 of the Cr.P.C. also provides that no statement of a witness recorded by a police officer can
be used for any purpose other than that of contradicting his statement before the Court;
(d) Section 24 of Indian Evidence Act also provides that when admissible, confession must be made
voluntarily. If it is made under any inducement, threat or promise, it is inadmissible in criminal proceedings;
(e) An additional safeguard is that under Section 164 of the Cr.P.C. it is for the magistrate to ensure that
confession or a statement being made by an accused person is voluntary.
There are few Constitutional safeguards provided to a person to protect his personal liberty against any unjustified
assault by the State. Article 22 guarantees protection against arrest and detention in certain cases and declares
that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest
and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Article 22(2)
directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a
period of 24 hours of such arrest, excluding the time necessary for the journey from the place of the arrest to the
Court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not
be compelled to be a witness against himself.
The sacred duty of the Court is to protect these fundamental human rights of the citizens. Custodial violence,
including torture and death in the lock-ups strikes a blow to the rule of law, which demands that the powers of the
executive should not only be derived from law but it should be limited by law. Practice of torture by the police and
other law enforcing officers is a matter of deep concern.
The Supreme Court of India developed "Custodial Jurisprudence" in D.K. Basu v. State of West Bengal. 47 The
case came up before the Court through a writ petition under Article 32 of the Constitution of India by a non-
governmental organisation. The executive chairman of this organisation had written to the Chief Justice of India
drawing his attention to a news items published in The Telegraph 48 regarding deaths in police lock-ups and custody
in the State of West Bengal. It was requested in this petition to examine in-depth and to develop "Custodial
Jurisprudence".
In this case the Court outlined the following requirements which should be followed in all cases of arrest or
detention as preventive measures:
1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear
accurate, visible and clear identification and name tags with their designations. The particulars of all such
police personnel who handle interrogation of the arrrestee must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of
arrest and such memo shall be attested by at least one witness, who may be either a member of the family
of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrestted or detained and is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known
to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested
and is being detained at the particular place, unless the attesting winess of the memo of arrest is himself
such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next
friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the
District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the
arrest.
5. The person arrested must be made aware of this right to have some one informed of his arrest or detention
as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall
also disclose the name of the next friend of arrest and the names and particulars of the police officials in
whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor
injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be
signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
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8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his
detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services
of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all
Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the
Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.
11. A police control room should be provided at all district and State headquarters, where information
regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing
the arrest. Within 12 hours of effecting the arrest and at the police control room it should be displayed on a
conspicuous board. 49
The Court observed that the requirements, referred above flow from Articles 21 and 22(1) of the Constitution
and need to be strictly followed. 50
In Joginder Kumar v. State of U.P., 51 it was alleged that Joginder Kumar had been called to the police station in
connection with a case. Thereafter, his whereabouts became unknown to his family members. The family members
of the detained lawyer filed a writ petition in the nature of the habeas corpus before the Supreme Court. In
pursuance of Court notice the lawyer was finally produced on 14 January, 1994. The police version was that from 7
to 14 January, 1994 the lawyer was not in detention at all but was merely assisting the police in the investigation of
a case. However, the lawyers version was different. The Court voiced its concern about complaints of violations of
human rights during and after arrest. It observed:
The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been
receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike a balance
between the two?...
A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and
privileges, on the one hand; and individual duties, obligations and responsibilities on the other; of weighing and balancing
the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is
wanted and where to put the weight and the emphasis, of deciding which comes first the criminal or society, the law violator
or the abider... 52
The Court categorically said that the precious right guaranteed by Article 21 of the Constitution of India cannot
be denied to convicts, undertrials, detenues and other prisoners of custody, except according to the procedure
established by law.
In another case, Nilabati Behera v. State of Orissa, the Court observed that prisoners and detenues are not
denuded of their fundamental rights under Article 21 and that it is only such restrictions as are permitted by law,
which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenues. It observed:
...there is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of
his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his
interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no
exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of
his life except according to procedure established by law. 53
The Court awarded a sum of Rs.1.5 lakhs to the mother as her son had died in police custody. The Courts
judgement also referred to the CP Covenant:
We may also refer to Article 9(5) of the International Covenant on Civil and Political Rights, which indicated that an
enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Anyone who has been
the victim of unlawful arrest or detention shall have an enforceable right to compensation. 54
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While implementing this provision in India, the Court was aware of absence of specific provision in the Indian
Constitution on right to compensation for victims of unlawful deprivation of Article 21 freedoms. The Court noted in
the Basu case that "there is no express provision in the Constitution of India for grant of compensation for
violation of a fundamental right to life, in spite of this lacuna the Court has judiciously evolved a right to
compensation in case of established unconstitutional deprivation of personal liberty". 55
The Latin maxims salus populi est suprema lex (the safety of the people is the supreme law) and salus republicae
est suprema lex (safety of the State is the supreme law) co-exist and are not only important but lie at the heart of
the doctrine that the welfare of an individual must yield to that of the community. However, the action of the State
must be "right, just and fair". Practising any form of torture for extracting any kind of information would neither be
"right nor just nor fair" and therefore would be impermissible, being offensive to Article 21 .
II. PROCEDURAL RIGHTS
Discussion in this part will be centred on mainly procedural rights. The following are the important areas that will be
covered in this section.
(a) Right to Human Dignity

(b) Handcuffing of Detenues
(c) Right to Bail
(d) Right to Speedy trial
(e) Right to Free Legal Aid
(a) Right to Human Dignity
The human rights jurisprudence in India has reached a stage where one could easily say that the Indian
Constitution recognises the fundamental right to human dignity. The fundamental right to human dignity directly
flows from Article 21 of the Indian Constitution. Before Maneka Gandhi v. Union of India, a very narrow and
contrite meaning to the fundamental right embodied in Article 21 was given. But the Maneka Gandhi decision gave
a new direction to human rights jurisprudence. It laid down that not merely should there be procedure established
by law, but the procedure must also be "reasonable, fair andjust", otherwise the law would be violative of Article 21
.
The Supreme Court has dwelt at length on various aspects of personal liberty. The striking feature of the
development of the right to dignity is that the Supreme Court has even upheld the dignity of a person who is behind
the bars.
In D.B. Mohan Patnaik v. State of Andhra Pradesh, 56 Chandrachud, J., (as he then was) observed:
Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A
compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the
deprivation of fundamental freedoms like the right to move freely throughout the territory of India or right to practice a
profession But the Constitution guarantees other freedoms...even a convict is entitled to some precious rights guaranteed
by Article 21 that he should be deprived of his life or personal liberty except according to procedure established by law.
This development of the law in Sunil Batra v. Delhi Administration 57 reached a stage when it can be safely
asserted that apart from the curtailment of his rights arising out of the fact of his detention, a prisoner has all other
liberties available to him.
The Sunil Batra case brought before the Court the question of reform of the prison process. In this case, involving
Sunil Batra and Charles Sobhraj, the Court was called upon to determine the validity of solitary confinement and
keeping a prisoner in fetters.
A team of judges of the Supreme Court visited the Tihar jail in New Delhi to see for themselves the cell in which
Sunil Batra was kept in solitary confinement. The Supreme Court was concerned with two prisoners: One of them,
Sunil Batra, under death sentence, was put in solitary confinement, pending his appeal to the High Court; the other,
charged with serious offences, was put under bar fetters.
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In both the petitions, it was argued that solitary confinement of a prisoner in iron was a cruel and unusual
punishment. And so it violated the right to life and personal liberty under Article 21 and the right to equality under
Article 14 . Justice Desai, speaking for the majority, admitted that there was no provision in the Indian Constitution
like the Eighth Amendment of the American Constitution which forbids cruel and unusual punishment. But, he
pointed out that conviction did not degrade the convict to be a non-person, vulnerable to major punishments
imposed by the jail authorities without observance of due procedural safeguards. He also emphasised a Courts duty
towards a prisoner as he was in prison under its order and direction. He held:
We cannot be oblivious to the fact that the treatment of a human being which offends human dignity imposes avoidable
torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14 . 58
In his concurring opinion, Justice Krishna Iyer was more explicit:
True, our Constitution has no due process clause, or the VIII Amendment; but in this branch of law after Cooper and
Maneka Gandhi the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel or
rehabilitatively counter-productive is unarguably unreasonable and is shot down by Articles 14 and 19 . 59
Again in Sunil Batra (II) case, 60 arising out of a letter written by Sunil Batra to one of the judges of the Supreme
Court, it was alleged that a warden in Tihar Jail, had caused a bleeding injury to a convict, Prem Chand, by forcing
a stick into his anus. Justice Krishna Iyer was ready to do what the political process was unwilling to do. He said:
Of course, new legislation is the best solution but when law makers take far too long for social patience to suffer, as in this
very case of prison reform, Courts have to make do with interpretation and carve on wood and sculpt on stone ready at
hand and not wait for faraway marble architecture. 61
Another fact brought to the notice of the Court in the Sunil Batra case was that undertrials were kept along with the
convicts. Justice Iyer observed:
The undertrials who are presumably innocent until convicted are by being sent to jail, by contamination, made criminalsa
custodial perversity which violates the test of reasonableness in Article 19 and of fairness in Article 21 . How cruel would
it be if one went to a hospital for a check-up and by being kept along with contagious cases came home with a new
disease. 62
The learned judge drew the picture of Tihar prison thus:
Tihar prison is an arena of tension, trauma, tantrums and crime of violence, vulgarity and corruption. And to cap it all, there
occurs the contamination of pre-trial accused with habitual, and "injurious prisoners of international gangs". The crowning
piece is that the jail officials themselves are allegedly in league with the criminals in the cell. That is, there is a large
network of criminals, officials, and non-officials, in the house of correction. Drug racket, alcoholism, smuggling, violence,
theft, unconstitutional punishment by way of solitary cellular life, and transfer to other jails are not uncommon. 63
The Court held in this case that personal liberty of the person who is incarcerated is to a great extent curtailed by
punitive detention. The liberty to move, mix, mingle, talk, share company with co-prisoners, if substantially curtailed
would be a violation of Article 21 unless the curtailment has the backing of law. 64
In another important judgement delivered by the Supreme Court in Francis Corallie Mullin v. The Administrator,
Union Territory of Delhi, 65 the Court observed that even a convict is entitled to precious rights guaranteed by
Article 21 of the Constitution and he shall not be deprived of his life or personal liberty except according to
procedure established by law. Bhagawati, J. observed in this case:
The right to life enshrined in Article 21 cannot be restricted to mere animal existence.
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It means something much more than just physical survival. The right to life includes the right to live with human dignity and
all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the
head and facilities for reading, writing and expressing oneself in diverse forms, freely moving and out and mixing and
commingling with fellow human beings. 66
In Upendra Baxi v. State of UP, 67 a public interest litigation drew the Courts attention towards the inhuman and
barbaric conditions in which women lived in protective homes in Uttar Pradesh and other States. The Supreme
Court issued several directives to the State Government so the inmates of the Agra Protective Home could cease to
live in inhuman and degrading conditions and that the right to live with dignity was made real for them. The matter
was again brought before the Supreme Court when the Government of U.P. shifted a protective home to an
unhealthy place. The Court again issued directions to the State Government to ensure healthy and decent
conditions of living in the home so that inmates could live with human dignity. The Court observed:
It must be remembered that this is not a litigation of an adversary character undertaken for the purpose of holding the State
Government or its officers responsible for making reparation but it is public interest litigation which involves a collaborative
and co-operative effort on the part of the State Government and its officers, the lawyers appearing in the case and the
Bench for the weaker sections of the Community. It marks a step forward in the direction of reaching socio-economic justice
to the deprived and vulnerable sections of humanity in this country. 68
A similar case related to Care Home, Patna, was Vikram Deo Singh Tomar v. State of Bihar. 69 In this case the
main contention was that female inmates of the so-called Care Home were compelled to live in the most inhuman
conditions in an old ruined building. It was found that the Patna Care Home was a crowded home in which a large
number of women and children were thrown together and compelled to subsist in conditions of animalistic survival,
conditions which blatantly denied basic humanity. Pathak, C.J., elaborating the concept of the Indian Welfare State
said that the Constitution of India lays emphasis on the protection and well-being of the weaker sections of the
society and seeks to improve their economic and social conditions.
He emphasised, it is incumbent upon the State to provide at least minimum living conditions ensuring human
dignity in an establishment euphemistically called "Care Homes".
(b) Handcuffing of Detenues
In a number of cases the Supreme Court has held that handcuffing of prisoners is against human dignity and
violative of Article 21 . In Prem Shankar Shukla v. Delhi Administrator, 70 arising out of a telegram sent to one of
the judges, the Supreme Court was asked to determine the validity of handcuffing of the prisoners during transit
from prison to the Court for trial. While delivering the judgement, Justice Krishna Iyer drew attention to Article 5 of
the Universal Declaration of Human Rights forbidding torture or cruel, inhuman or degrading treatment or
punishment and Article 10 of the CP Covenant protecting the dignity and worth of a person and guaranteeing him
humane treatment and said that even if these provisions coloured the mental process of the judges, the
fundamental rights and the Prisoners (Attendance in Courts) Act, 1955, controlled their task. He held that
handcuffing of a prisoner was unconstitutional if there was any other reasonable way of preventing escape of the
prisoner. He reiterated that Article 21 , now the sanctuary of human values, prescribes fair procedure and forbids
barbarities, punitive as well as procedural.
In Sunil Gupta v. State of Madhya Pradesh, 71 some social workers who were remanded to judicial custody were
taken from jail to the Court and back to prison in handcuffs. The Supreme Court said, the handcuffing of them was
violative of Article 21 , particularly when no reasons were recorded which necessitated handcuffing them.
In another important case, State of Maharashtra v. Ravikant, 72 anundertrial prisoner was handcuffed and paraded
in streets in a procession by the police. The Court came down heavily on the government and directed that a sum of
Rs.10,000 be paid by the State Government to the victim for the humiliation he had suffered.
In Khetad Mazdoor Chetna Sangathan v. State of Madhya Pradesh, 73 the Supreme Court again held that
handcuffing was illegal and unconstitutional. The authorities were directed to act in a responsible manner, to uphold
human values and to protect the rights guaranteed under the Indian Constitution.
(c) Right to Bail

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The Indian Constitution does not provide explicitly that the right to bail is a fundamental right. The innovative
interpretation of Constitutional provisions by the judges of the Supreme Court and High Courts have developed bail
as a human right. The Code of Criminal Procedure contains provisions for bail. Section 57 of the Code provides:
No police officer shall detain in custody a person arrested without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under
Section 167 , 74 exceed twenty four hours of arrest to the Magistrates Court.
The Supreme Court observed that the right to bail is an invaluable right available to a person and that this right
should not be denied arbitrarily, and that denial of this contravenes the fundamental right to personal liberty. As it is
established in the Indian judicial system, law presumes an accused to be innocent till his guilt is established, and as
an innocent person, he is entitled to defend his freedom. Relying on this principle, in Vidhya Sagar v. State of
Punjab, 75 the Court observed:
Though the stage for raising the presumption of innocence in favour of the accused person does not arise till the
conclusion or the trial and appreciation of entire evidence on the record, yet the matter of granting bail has to be considered
in the background of the fact that in the criminal jurisprudence, which guides the Courts, there is a presumption in favour of
the accused. 76
In Kashmira Singh v. State of Punjab, 77 Bhagwati, J. observed:
It would be indeed a travesty of justice to keep a person in jail for a period of five to six years for an offence which is
ultimately found not to have been committed by him. Can the Courts ever compensate him for his incarceration which is
found to be unjustified? 78
Krishna Iyer, J., while expressing this view in Godikanti v. Public Prosecutor, 79 case observed:
"Bail or Jail?" at the pre-trial or post conviction stage belongs to the blurred area of the criminal justice system and largely
hinges on the hunch of the bench, otherwise called judicial discretion. 80
In this judgement he emphasised that:
personal liberty, deprived when bail is refused, is too precious a value of our Constitution recognised under Article 21 and
that the crucial power to negate it is a great trust exercisable, not casually but judicially, with likely concern for the cost to
individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative
gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful
eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right. 81
In another case, Krishna Iyer, J., stressed:
Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive
purpose but for the bi-focal interest of justice to the individual involved and society affected. 82
It has been noticed in several cases that an accused is not able to furnish bail bond because of his poverty. This
important aspect was dealt in Moti Ram v. State of Madhya Pradesh, 83 in which the Court held that there is a need
for liberal interpretation of social justice, individual freedom and indigents rights and while awarding bail covers
release on ones own bond, with or without sureties. When sureties should be demanded and what sum should be
insisted on are dependent on variables. 84
In Hussainara Khatoon v. State of Bihar, 85 Bhagawati J., while effectively raising the inherent weaknesses of
monetary bonds said:
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The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs drastic
change. In the first place it is virtually impossible to translate risk of non-appearance by the accused into precise monetary
terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful
validity. There are several considerations which deter an accused from running away from justice and risk of financial loss
is only one of them and that too not a major one. The experience of enlightened Projects in the United States such as
Manhattan Bail Project and D.C. Bail Project shows that even without monetary bail it has been possible to secure the
presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination
against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons
otherwise in similar situation would be able to secure their freedom because they can afford to furnish bail. This
discrimination arises even if the amount of the bail as fixed by the Magistrate is not high, for a large majority of those who
are brought before the courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small
amount. 86
Justice Bhagawati suggested that, under the law as it stands today the Court must abandon the antiquated concept
under which pre-trial release is ordered only against bail with sureties. That concept is outdated and experience has
shown that it has done more harm than good. The new insight into the subject of pre-trial release which has been
developed in socially advanced countries and particularly the United States should now inform the decisions of our
Courts in regard to pre-trial release. If the Court is satisfied, after taking into account, on the basis of information
placed before the Court, that the accused has his roots in the community and is not likely to abscond, the Court can
safely release the accused on his personal bond. To determine whether the accused has his roots in the community
which would deter him from fleeing, the Court should take into account the following factors concerning the
accused:
1. The length of his residence in the community.

2. His employment status, history and his financial condition.
3. His family ties and relationships.
4. His reputation, character and monetary condition.
5. His prior criminal record including any record or prior release on recognisance or on bail.
6. The identity of responsible members of the community who would vouch for his reliability.
7. The nature of the offence charged and the apparent probability of conviction and the likely sentence in so
far as these factors are relevant to the risk of non-appearance, and
8. Any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure
to appeal. 87
If the Court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and
that there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his
personal bond.
(d) Right to Speedy Trial
Article 14(3)(c) of the CP Covenant provides for the right "to be tried without undue delay".
Right to speedy trial is incorporated under the Indian Constitution as part of personal liberty. However, there is no
specific provision under the Indian Constitution which deals specifically with speedy trial. In spite of this, there is no
dearth of judicial decisions which have given new dimensions to speedy trial, and made it almost a fundamental
right.
The landmark case is Hussainara Khatoon v. State of Bihar., 88 Justice Bhagwati observed in this case that speedy
trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21
. The Supreme Court had in Maneka Gandhi v. Union of India, 89 held that Article 21 confers a fundamental right
on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law. If
a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would
be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right
and secure his release. Now obviously procedure established by law for depriving a person of his liberty cannot be
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reasonable, fair or just unless that procedure ensures a speedy trial for determination of the guilt of such aperson.
"Any procedure which does not ensure a reasonably quick trial can not be regarded "reasonable, fair or just" and it
would fall foul of Article 21 ". Therefore, by speedy trial we mean reasonably expeditious trial which is an intrinsic
and essential part of the fundamental right to life and liberty enshrined in Article 21 . 90
The learned judge observed that speedy trial was the essence of the criminal justice system 91 and delay in trial by
itself constitutes denial of justice.
In another case, Kadra Pehadiya v. State of Bihar, 92 four young boys who were designated as petitioners were
lodged in Pakur sub-jail in Santhal Parganas for a period of eight years without trial. They all belonged to the
Paharia tribe, a backward tribe. Out of four, two of them were arrested on 26 November, 1978 and the other two, on
19 December, 1972. The jail record showed the ages of the petitioners being between 18 and 22 years at the time
of their arrest, but the writ petition stated that they could not have been more than 9 to 11 years old when they were
arrested.
Interestingly this case came for hearing only after the Hussainara Khatoon case, and it was clearly pointed out that
speedy trial is a fundamental right of an accused as implied in Article 21 of the Constitution. In the case of these
four petitioners, this fundamental right has merely remained a paper promise and been grossly violated.
Bhagwati, J., said, on behalf of the Court:
We hoped that after the anguish expressed and the severe strictures passed by us, the justice system in the State of Bihar
would improve and no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think
cannot and should not exceed one year for a sessions trial, but we find that the situation has remained unchanged and
these four petitioners, who entered the jail as young lads of 12 or 13 have been languishing in jail for over eight years for a
crime which perhaps ultimately they may be found not to have committed. 93
The position continues to be very disappointing and still a large number of prisoners languish in jail without their
trial having commenced.
The issue related to speedy trial again came before the Supreme Court in Raghuvir Singh v. State of Bihar., 94 The
Supreme Court held:
The constitutional position is now well settled that the right to speedy trial is one of the dimensions of the fundamental right
to life and liberty... "
In Madhu Mehta v. Union of India, 95 the Supreme Court reiterated that speedy trial is implicit in the broad sweep
and content of Article 21 . This principle has no less importance for disposal of mercy petition than a trial in the
Court.
(e) Right to Free Legal Aid
Article 14(3)(d) of the CP Covenant provides:
...the right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to
be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case
where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means
to pay for it.
The Indian Constitution does not explicitly provide the right to free legal aid as a fundamental right. But under the
"Directive Principles of State Policy", Article 39-A provides for free legal aid in all cases involving indigent persons.
Article 39A of the Constitution stipulates:
The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in
particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities. 96
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The Supreme Court has held that legal aid to the poor and deserving is part of personal liberty as enshrined in
Article 21 of the Constitution. In M.H. Hoskot v. State of Maharashtra, 97 the Supreme Court observed that free
legal service for a citizen is implicit in Article 21 and an essential ingredient of a reasonable, fair and just
procedure. In this case, Krishna Iyer, J., observed:
If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal...for
want of legal assistance, there is implicit under Article 14 read with Articles 21 and 39-A of the Constitution, power [of
the Court] to assign a counsel for such imprisoned individual for doing complete justice. 98
In another case, Khatri v. State of Bihar, 99 the Supreme Court said that the right to free legal services is clearly an
essential ingredient of a reasonable, fair and just procedure for a person accused of an offence and it is implied in
Article 21 . The State Government cannot avoid its Constitutional obligation to provide free legal services to a poor
accused by pleading financial or administrative inability. The State is under a Constitutional mandate to provide free
legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is
necessary for this purpose has to be done by the State. 100
In another case, Sheela Barse v. Union of India, 101 the Supreme Court held that Constitutional obligations to
provide free legal aid emanates from Articles 14 , 21 and 39A . In this case the Court also expressed its
unhappiness with the attitude of some lawyers. Bhagwati J., clearly stressed the duty of lawyers to help people in
distress. He said:
The lawyers must positively reach out to those sections of humanity who are poor, illiterate and ignorant and who, when
they are placed in a crisis such as accusation of crime or arrest or imprisonment, do not know what to do or where to go or
to whom to turn. If lawyers, instead of coming to the rescue of persons in distress, exploit and prey upon them, the legal
profession will come into disrepute and large masses of people in the country would lose faith in lawyers and that would be
destruction of democracy and rule of law. 102
The Supreme Court went a step further in Sukh Das v. Arunachal Pradesh, 103 to remind the State of its
Constitutional obligation to provide free legal aid and brought this to its logical end. The Supreme Court said that
the right of a poor person to have legal aid exists even if it is not demanded by him. Failure to provide free legal aid
to an accused vitiates the trial even where legal aid was not demanded by the accused.
The Court has also brushed aside the contention that legal aid should not be made available when a person is
accused of economic offences or offences relating to prostitution or child abuse. The Court felt, if the presumption
that everyone is innocent unless his guilt is established is available to every accused, indigent persons accused of
these offences too should be entitled to free legal aid. 104
It is now fairly settled that the right to legal aid and speedy trial are part of the guarantee of human rights envisaged
by Article 21 of the Constitution of India. 105
Article 21 , already identified as a non-derogable human right in the Indian Constitution, in fact covers almost every
aspect under its broad sweep. Denial of provision of the above-mentioned procedural rights means denial of
"reasonable, fair and just" content of procedural aspects. The Court has widened the ambit of Article 21 and
included in the right to life, the basic necessities of life, right to live with human dignity, freedom from police
atrocities, immunity from cruel or inhuman treatment, and right to clean environment.
III. FREEDOM FROM SLAVERY
Article 23 of the Indian Constitution embodies the right against exploitation and prohibits begar (i.e., labour or
service exacted by an employer without giving remuneration for it) and other similar forms of forced labour. Slavery,
servitude and forced labour are prohibited and are made punishable under the Indian Constitution and the Indian
laws.
The problem of bonded labour in India is the outcome of certain categories of rural indebtedness which, prevailing
over a long period of time, involved the social exploitation of weaker sections of society. The Indian social system
originated from a highly stratified social structure, based on artificial considerations of caste and class, left by an
inequitable and unethical land revenue system initiated under the colonial rule, which perpetuated rack-renting,
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absentee landlordism, and inequitable distribution of land. Due to this condition the small and marginal farmers
were converted into landless agricultural labourers and were socially and economically tied to certain feudal and
semi-feudal elements of the rural society.
Article 23 on prohibitions of traffic in human beings and forced labour provides:
(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.
(2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes, and in
imposing such service the State shall not make any discrimination on grounds only of religion, race, caste
or class or any of them.
Article 23 is clearly intended to protect the individual not only against the State but also against other private
citizens. The sweep of Article 23 is wide and unlimited and it strikes at "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" wherever they are found. The reason for enacting this provision in Part III on
fundamental rights is to be found in the socio-economic condition of the people at the time when the Constitution
came into force.
This system was abolished throughout the country from 25 October, 1975 by the promulgation of a Presidential
ordinance which was later replaced by the Bonded Labour System (Abolition) Act of 1976.
The Supreme Court pronounced in Sanjit Ray v. State of Rajasthan:, 106
We must, therefore hold consistently with this decision that, where a person provides labour or service to another for
remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the meaning of
the words "forced labour" and attracts the condemnation of Article 23 . Every person who provides labour or service to
another is entitled at the least to the minimum wage is paid to him, he can complain of violation of his fundamental right
under Article 23 and ask the Court to direct breach of Article 23 may be abated.
In another case, Peoples Union for Democratic Rights v. Union of India, 107 the Supreme Court was confronted with
a similar type of problem. The main contention in this case was that the fundamental rights enshrined in Article 23
was violated by non-payment of minimum wages to workers.
The Supreme Court emphasised that " Article 23 is intended to abolish every form of forced labour". The word
"other similar forms of forced labour" are used in Article 23 not with a view to importing the particular characteristic
of "begar that labour or service should be exacted without payment of any remuneration but with a view to bringing
within the scope and ambit of that Article all other forms of forced labour and since "begar" is one form of forced
labour, the Constitution makers used the words "other similar forms of forced labour".
...Every form of forced labour, "begar or otherwise, is within inhibition of Article 23 and it makes no difference whether the
person who is forced to give his labour or service to another is remunerated or not. Even if remuneration is paid, labour
supplied by a person would be hit by this Article if it is forced labour, that is, labour supplied not willingly but as a result of
force or compulsion. 108
In another important case Bandhua Mukti Morcha v. Union of India, 109 the Supreme Court observed:
There are still a number of bonded labourers in various parts of the country, it is absolutely true that a number of them
belonging to Scheduled Castes and Scheduled Tribes account for the largest number while a few who are not from
Scheduled Castes or Scheduled Tribes are generally landless agricultural labourers.
It is absolutely essential that the bonded labourers must be identified and released from the shackles of bondage
so that they can assimilate themselves in the main stream of civilised human society and realise the dignity, beauty
and worth of human existence. The process of identification and release of bonded labourers is a process of
discovery and transformation of non-beings into human-beings and what it involves is eloquently described in the
beautiful lines of Rabindranath Tagore in "Kadi and Komal" :
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Into the mouths of these
Dumb, pale and meek
we have to infuse the language of the soul.
In to the hearts of these
Weary and worn, dry and forlorn
we have to minstrel the language of humanity.
One point is clear from the above cases that Article 23 is not a non-derogable human right but there is no doubt
left that it has a content of substantive rights under the Indian Constitution. However, even without Article 23 , the
broad sweep of Article 21 is good enough to cover forced-labour. These important judgements have given new
interpretation and directed the government for the identification of bonded labourers.
IV. PROHIBITION OF IMPRISONMENT FOR INABILITY TO FULFIL A CONTRACTUAL OBLIGATION
Article 11 of the CP Covenant provides that no one shall be imprisoned merely because of his inability to fulfil a
"contractual obligation". In India, imprisonment of a person merely on the ground of inability to fulfil a contractual
obligation is now considered illegal and violative of the provisions of Article 21 of the Constitution on personal
liberty. 110 However, Section 51(b) of the Indian Civil Procedure Code (C.P.C.) until 1985, authorised detention of a
judgement debtor if he "has or had, since the date of the decree the means to pay the amount of the decree or
some substantial part thereof and refuses or neglects or has refused or neglected to pay the same".
In the Jolly George Verghese case 111 a judgement debtor, had failed to repay the amount which he had borrowed
from banks. Due to this fact, Vergheses property was attached for the purpose of court sale in discharge of the
decreed debts. Verghese was also confronted with a warrant for his arrest and detention under Section 51 of the
C.P.C. Verghesechallenged the validity of Section 51 of the C.P.C. under Article 11 of the CP Covenant. This
challenge raised the question whether the ratified CP Covenant was a part of the supreme law of the land to which
the existing laws must conform. Justice Krishna Iyer said:
The positive commitment of the State parties ignites legislative action at home but does not automatically make the
Covenant an enforceable part of the corpus juris of India. 112
Despite this doctrinal constraint, Justice Iyer held that the basic compulsion of Article 11 of the CP Covenant was
a part of the fair procedure envisaged by Article 21 .
Krishna Iyer J., observed:
Where the judgement debtor if once had the means to pay the debt but subsequently, after the date of decree, had no
such means or he had money on which there are other pressing claims, it is violative of Article 11 of the International
Covenant to arrest him in jail so as to coerce him into payment". He also emphasised that "the high value of human dignity
and the worth of human person enshrined in Article 21 , read with Articles 14 and 19 , obligates the State not to
incarcerate except under law which is fair, just and reasonable in its procedural essence.
V. RIGHT NOT TO BE PUNISHED UNDER EX-POST FACTO CRIMINAL LAWS
Article 15 of the CP Covenant deals with the right against ex-post facto criminal legislation which is also a non-
derogable right. It says:
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a
criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time when criminal offence was committed. If,
subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the
offender shall benefit thereby.
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2. Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general principles of law recognised by the community
of nations.
Similar provisions are found in the Indian Constitution under Article 20 , which says:
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.
2. No person shall be prosecuted and punished for the same offence more than once.
3. No person accused of any offence shall be compelled to be a witness against himself.
Article 15(1) of CP Covenant and Article 20(1) of the Indian Constitution are almost identical. Fortunately after
the 44th Amendment of the Indian Constitution, Article 20 along with Article 21 became non-derogable and these
two provisions cannot be suspended now even during a national emergency. The prohibitions imposed by Article
20 are directly relevant to the criminal process, while Article 20(1) is mainly concerned with the substantive law of
criminal liability and penalty. The other two clauses 20(2) and 20(3) refer mainly to the stage of procedure. In
Constitutional jurisprudence, Article 20(1) incorporates a prohibition against "ex-post facto penal law", Article
20(2) incorporates a prohibition against double jeopardy, and Article 20(3) gives protection against "testimonial
compulsion".
In fact Article 20(1) has two parts. Under the first part, no person is to be convicted of an offence except for
violating a "law in force at the time of commission of the act charged as an offence". The second part of Article
20(1) immunises a person from a penalty greater than that to which he is to be subjected at the time of committing
the offence. Thus, a person cannot be made to suffer a higher punishment under an ex-post facto law than the one
he would have been subjected to at the time when he committed the crime or offence.
In Rao Shiv Bahadur Singh v. State of U.P., 113 the main question that arose was with reference to the objections
raised in reliance on Article 20 of the Constitution. This question arose from the fact that the charges against the
two appellants, referred to the offences committed under the various sections of the Indian Penal Code as adopted
by the United States of Vindhya Pradesh by an Ordinance of 1949. This ordinance was passed on 11 September,
1949, while the offences were committed in the months of February, March and April in 1949, that is, prior to the
passing of the ordinance. It was urged, therefore, that convictions in this case which was after the Constitution
came into force were in respect of"ex-post facto" law creating offences after the commission of the acts charged as
such offences and was hence unconstitutional.
This contention raised two important questions, viz., (1) the proper construction of Article 20 of the Constitution
and (2)whether the various acts in respects of which the appellants were convicted constituted offences in this area
only from the date when ordinance of 1949 was passed or were already so prior thereto.
While delivering the judgement of the Supreme Court, Justice Jagannadha Das said:
In this context it is necessary to notice that what is prohibited under Article 20 is only conviction or sentence under a "ex-
post facto law" and not the trial thereof. Such trial under a procedure different from what obtained at the time of the
commission of the offence or by a Court different from that which had competence at the time cannot ipso facto be held to
be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court
or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any
other right may be involved. 114
In other words, the right against ex-post facto law does not include a right to trial by a particular court or to a
particular procedure.
In another case Jawala Ram v. State of Pepsu, 115 an "ex post facto" law was again in question. The main
contention raised in this case was that Section 3 and Section 4 of the Pepsu Sirhind Canal and Western Yamuna
Canal Rules (Enforcement and Validation) Act No. IV of 1954 were unconstitutional being in contravention of
Article 20(1) of the Constitution. While delivering the Courts Judgement, Dasgupta, J., said:
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Article 20(1) provides that no person shall be convicted of any offence except for violation of 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. It is argued on behalf of the appellants that the
application by these sections of rules imposed under the provisions of rules 32 and 33 of the Pepsusirhind Canal Rules,
which could not have been imposed at the time the water was used is bad; as thereby the appellant, have been subjected
to a penalty greater than which might have been inflicted under the law in force at the time of the commission of the
offence. 116
The Court noted that the special rates imposed did not deprive these States of their essential character of a charge
for water used and did not convert them into any penalty for the commission of an offence. The Court ruled out any
scope here for the application of the provisions of Article 20(1) of the Constitution. Thus, Article 20(1) would not
apply to a situation of retrospective increase in rates or tariffs for services or goods rendered by the State.
In State of West Bengal v. S.K. Ghosh, 117 the respondent S.K. Ghosh was prosecuted under Sections 120-B and
409 of the Indian Penal Codebefore the Second Special Tribunal was constituted under the Criminal Law
Amendment Ordinance, No. 29 of 1943. In the meantime, the Criminal Law Amendment Ordinance, No. 38 of 1944
was passed. The object of this Ordinance was to prevent the disposal or concealment of money or other property
procured by means of certain scheduled offences punishable under the Indian Penal Code, and one of the offences
to which this Ordinance applied was Section 409 of the Indian Penal Code, and any conspiracy to commit such
offence.
On 21 November, 1944 an application was made on behalf of the Provincial Government before the District Judge
for attachment of certain properties under Section 3 of the 1944 Ordinance on the ground that these properties
had been purchased by the respondent with moneys procured by him by committing offences under Sections 120-
B and 409 of the Indian Penal Code. The District Judge ordered attachment of the properties after hearing the
respondent and the orders of attachment were extended from time to time.
The respondent was finally convicted by the Special Tribunal after a protracted trial on 31 August, 1949. Meanwhile
the Criminal Law Amending Ordinance, No. 12 of 1945 came into force on 12 May, 1945. 118 The Special Tribunal
found the respondent guilty of offences under Sections 120-B and 409 of the Indian Penal Code. The tribunal
sentenced him to rigorous imprisonment for five years and a fine of Rs.45 lakhs on the charge of conspiracy.
The respondent then went on appeal to the Calcutta High Court and challenged the order of the District Judge.
This appeal was heard by Judges Mitter and Bhattacharya. Two points were urged before the High Court, namely,
(1) No proceedings under Section 12 of the 1944 Ordinance could be taken, because it was not open for District
Judge to take proceedings under Section 13 of the 1944 Ordinance. (2) Even if it were open to the District Judge
to take proceedings under Section 13 , the proceedings could not go on in view of Article 20(1) of the
Constitution.
Mitter J., did not express any opinion as to the applicability of Article 20(1) of the Constitution. While quashing
the judgement of District Court, Bhattacharya J., on the other hand opined differently from Mitter. J. In his opinion,
the District Judge had jurisdiction to forfeit properties worth Rs. 30 lakhs under Section 13 of the 1944 Ordinance.
But Section 53 of the Indian Penal Code refers to forfeiture as punishment and is distinct from fine imposed and
as the punishment of forfeiture contemplated by the 1944 Ordinance had yet to take place, Article 20(1) of the
Constitution would apply. His reasoning for reaching this conclusion was that the 1944 Ordinance came into force
on 23 August, 1944 while the real and effective period during which the offences were committed ended in July,
1944. Therefore, according to him, as forfeiture was not prescribed as a punishment before the 1944 Ordinance
and as that ordinance came into force after the offences with which the respondent was charged had been
committed, no forfeiture could be ordered under the 1944 Ordinance as that would be violative of Article 20 of the
Constitution. 119
However this decision was overturned by the Supreme Court. While delivering the judgement, Wanchoo J.,
observed:
We do not think it necessary for the purpose of this appeal to decide whether the facts that the respondent continued in
office till 25 August, 1944 and the Ordinance came into force on 23 August, 1944 would take the case out of ambit of
Article 20(1) , for we have come to the conclusion that the forfeiture provided under S.13(3) is not a penalty at all within the
meaning of Article 20(1) ....It will therefore be clear that the Ordinance provides for no punishment or penalty; all that it
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provides is attachment of the money or property procured by the offence or any other property of the offender if the above
property is not available and the purpose of the attachment is to prevent the disposal or concealment of such
property...clearly therefore Article 20 is dealing with punishment for offences and provides two safeguards, namely (i) that
no one shall be punished for an act which was not an offence under the law in force when it was committed, and (ii) that no
one shall be subjected to a greater penalty for an offence than what was provided under the law in force when the offence
was committed. The provision for forfeiture under S.13(3) has nothing to do with the infliction of any penalty on any person
for an offence. If the forfeiture provided in S.13(3) were really a penalty on a convicted person for commission of an offence
we should have found it provided in the 1943-Ordinance and that penalty of forfeiture would have been inflicted by the
Criminal Court by trying the offender. 120
It is quite clear from this judgement that provisions of Article 20(1) can be invoked only on the ground of
punishment, and therefore attachment of property, not in the nature of punishment, does not invite Article 20(1) .
VI. RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
This is the last non-derogable right mentioned under the CP Covenant. Article 18 of the CP Covenant provides:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include
freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in
community with others and in public or private, to manifest his religion or belief in worship, observance,
practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief
of his choice.
3. Freedom to manifest ones religion or beliefs may be subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health, or morals or the fundamental rights and
freedoms of others.
4. The State Parties to the present Covenant undertake to have respect for the liberty of parents and, when
applicable, legal guardians to ensure the religious and moral education of their children is in conformity
with their own convictions.
The relevance of this Article in India is very high because India is a secular country. Under the Indian Constitution,
Articles 25 to 28 confer certain rights relating to freedom of religion to all persons in India. The absence of any
State religion and the equality of treatment assured to all religions makes our Constitution among one of the most
advanced. Despite the fact that Hindus constitute a vast majority of the population, India is not a Hindu State but a
secular State.
The right to freedom of religion comes under Article 25 which provides for freedom of conscience and free
profession, practice and propagation of religion:
1. Subject to public order, morality and health and to other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
2. Nothing in this Article shall affect the operation of any existing law or prevent the State from making any
law:
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated
with religious practice;
(b) providing for social welfare and reform or throwing open of Hindu religious institutions of a public character
to all classes and sections of Hindus.
Explanation 1:
The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation 2:
In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing
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the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
Article 25(1) guarantees to every person freedom of conscience and the right to freely profess, practise and
propagate religion, but these rights are subject to certain restrictions for the maintenance of public order, health and
morality. According to Article 25(2)(a) the State is not prevented from making any law regulating or restricting any
economic, financial, political or other secular activity which may be associated with religious practice. Article
259(2)(b) saves the power of the State to make laws providing for social welfare and social reform and also for
throwing open Hindu religious institutions of a public character to all classes.
The Article has two explanations. The first explanation provides that the wearing and carrying of kirpans by Sikhs
should be considered part of their religion and as such protected by clause (1). Explanation 2 provides that Sikhs,
Jains and Buddhists and their religious institutions are included within the purview of clause 2(b).
Freedom guaranteed by this Article is not an absolute one. Thus, there is no religious freedom where such freedom
comes into conflict with public order, morality or health.
There are a few important judicial decisions which throw light on the nature and scope of Article 25 . In
Commissioner, H.R.E. v. L.T. Swamiar, 121 the petitioner was the Superior or Matadhipati of Shirur Math, one of the
eight Maths situated at Udipi in the district of South Kanara and said to have been founded by Sri Madavacharya,
the well known exponent of dualistic theism of the Hindu religion. 122
The main contention, however, was regarding the fundamental rights guaranteed under the Constitution in matters
of religion and religious institutions belonging to particular religious denominations. The arguments that the law
regulating the framing of a scheme interfering with the management of the Math and its affairs by the Matadhipati
conflicted with the provisions of Articles 19(1)(g) and Article 26 123 of the Constitution and was hence void under
Article 13 .
The judgement of the Court delivered by B.K. Mukherjee, J., stated:
A Matadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to
perform the duties of a religious teacher. It is his duty to practise and propagate the religious texts, of which he is an
adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious
freedom which is guaranteed to every person under Article 25 . Institutions, as such cannot practise or propagate religion;
it can be done only be individual persons and whether these persons propagate their personal views or the tenets for which
the institution stands is really immaterial for purposes of Article 25 . It is the propagation of belief that is protected, no
matter whether the propagation takes place in a Church or monastery, or in a temple or parlour meeting. 124
The Court also referred to an American case in this connection. In West Virginia Board of Education v. Barnette, 125
the US Supreme Court overruled an earlier decision that the action of a State in making it compulsory for children in
public schools to salute the flag and pledge allegiance constituted a violation of the First and Fourteenth
Amendments to the American Constitution. The Indian Supreme Court held that a law which takes away the right of
administration from the hands of a religious denomination altogether and vests it in any other authority would
amount to a violation of the right guaranteed under clause (d) of Article 26 .
In Digyadarshan V.R.R. Vasu v. State of A.P., 126 the petitioner claimed to be the Matadhipati of Swami Hathiramji
Math Tirupati-Thirumala in the State of Andhra Pradesh. The main contention of the petitioner was that after the
death of the previous incumbent, Chettandoss, on 18 March, 1962, the Commissioner took over the charge of the
Math and its properties under Section 53 of the Andhra Pradesh (Andhra Pradesh) Hindu Religious and Charitable
Endowments Act, 1951. The petitioner filed a suit on 26 March, 1962 in the Court of the Subordinate Judge,
Chittoor, for a declaration that he was the rightful successor.
While delivering the Courts judgement, Grover, J., observed that a Matadhipati was placed under suspension and
the Assistant Commissioner was appointed as day-to-day administrator because of the enquiry which was pending
against the former in which serious charges of misappropriation and deflection of trust funds and of leading an
immoral life were being investigated. It was not established that the M atadhipati was prohibited or debarred from
professing, practising and propagating his religion.
The Court held that there was no violation of Article 25 of the Constitution. The mere fact that the entire Math
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was being guarded by police constables did not mean that the Matadhipati could not be allowed to enter the Math
premises and exercise the fundamental right conferred by Article 25(1) of the Constitution.
In Mohd. Hanif Quareshi v. The State of Bihar, 127 the case related to a ban under the Bihar Preservation and
Improvement of Animals Act, 1955, on the cow slaughter of all categories of animals of the species of bovine cattle.
This Act was enacted under Article 48 128 of the Constitution. The petitioners, who were engaged in the butchers
trade and its subsidiary undertakings challenged the Constitutional validity of the Act on the grounds that this Act
infringed their fundamental rights guaranteed under Articles 14 , 19(1)(g) and 25 of the Constitution. The
respondent State contended that the impugned Act was Constitutional and valid as it was made in consonance with
the Directive Principles of State Policy under Article 48 which were superior to the Fundamental Rights and that
the impugned Act did not offend 19(1)(g) or 25 .
The petition also submitted that the impugned section violated the fundamental right of the petitioners guaranteed
under Article 25 of the Constitution in as much as on the occasion of Bakr-Id, the religious practice of the Muslims
allowed the sacrifice of a cow on the occasion. The poor members of the community usually sacrificed one cow for
every seven members whereas one sheep or one goat would be required for each member which would entail more
expenditure.
The Court observed that it is optional for a Muslim to sacrifice a goat for one person or a cow or camel for seven
persons. It does not appear to be obligatory that a person must sacrifice a cow. So there might be economic
compulsions but there is no religious compulsion. 129
However, no reference was made in the petition to any particular saying in the Surah or Quran which, in terms,
required the sacrifice of a cow. All that was placed before the Court during the argument included Surah XXII,
verses 28 and 33, and Surah CVIII. The Holy Book only enjoins that the people should pray unto the Lord and make
sacrifice.
After going through the above mentioned cases, it is clear that freedom guaranteed under this article is not an
absolute one.
SECTION II : JURISPRUDENCE OF THE NATIONAL HUMAN RIGHTS

COMMISSION
This section covers important decisions made by National Human Rights Commission of India (NHRC). Section
13(1) of the Protection of Human Rights Act stipulates that, NHRC has all the powers of a civil court trying a suit
under the Code of Civil Procedure 1908, and in particular in respect of the following matters 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.
There are two other provisions of Section 13 which are relevant here, they are paragraphs 4 and 5 of Section 13 .
Section 13(4) stipulates:
The Commission shall be deemed to be a civil court and when any offence as is described in Section 175 , Section 178 ,
Section 179 , Section 180 or Section 228 of the Indian Penal Code is committed in the view or presence of the
Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as
provided for in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having jurisdiction to try the same
and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the
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case has been forwarded to him under Section 346 of the Code of Criminal Procedure, 1973.
Section 13(5) states:
Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193
and 228 and for the purposes of Section 196 , of the Indian Penal Code, and the Commission shall be deemed to be a
civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
The procedure for dealing with complaints comes under Regulation 8 of the procedural regulations.
Regulation 8 stipulates:
(1) All complaints in whatever form received by the Commission shall be registered and assigned a number
and placed for admission before a bench of two members constituted for the purpose not later than two
weeks of receipt thereof. Ordinarily complaints of the following nature are not entertainable by the
Commission:
(a) In regard to events which happened more than one year before the making of complaints;
(b) With regard to matters which are sub-judice;
(c) Which are vague, anonymous or pseudonymous;
(d) Which are of frivolous nature; or
(e) Those which are outside the purview of the Commission.
NHRC decisions can be divided into three broad categories:
(A) Individual complaints and suo motu action;

(B) Intervening in Court proceedings;
(C) The Court availing of the Commissions services to investigate in human rights violations.
I. INDIVIDUAL COMPLAINTS AND SUO MOTU ACTIONS
A large number of complaints fall under the first category. An effort will be made here to cover some of the
important cases. The Commission, till 20 July, 2013, had received 29,179 complaints. Out of this the Commission
disposed of 4013 with directions to the appropriate authorities for action at their end. 130 The large number of
complaints received by the Commission reflects its growing popularity and faith among Indian masses. The
complaints poured in from all parts of the country from individuals and organisations.
(a) Bijbehara Incident
The Commissions cause celebre, was its very first case. On 1 November, 1993, it took cognisance suo motu of a
press report which highlighted the death of sixty persons in and around Bijbehara 131 in Jammu and Kashmir, as a
result of firing by security forces operating in the area. The Commission called for reports from the Ministries of
Defence and Home Affairs as also from the Government of Jammu and Kashmir.
The Ministry of Defence clarified that army was not involved. The report submitted by the Ministry of Home Affairs
was based on the Magisterial inquiry ordered by the State Government into the incident and the Staff Court of
Iinquiry ordered by B.S.F. authorities. The Commission made the following observations:
(a)The Commission noted that disciplinary proceedings had been initiated under the Border Security Force Act against 14
members of the Force, and further that, on the basis of magisterial inquiry, steps may be initiated to launch prosecutions.
(b)Payment was recommended of interim compensations on graded scale.

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(c)The Commission recommended that a thorough review should be undertaken by Government of the circumstances and
condition in which Units of the Border Security Force are deployed and expected to operate in situations involving civilian
population.
The above recommendations of the Commission were accepted by the Central Government. The Central
Government further conveyed to the Commission that pursuant to the completion of the BSF Staff Court of Inquiry,
Record of Evidence (ROE) proceedings against 14 personnel have been initiated. 132
The Jammu and Kashmir government has given ex-gratia relief of one lakh each to the next of kin of the 31
civilians, who were killed in the incident. Further, an amount of Rs.25,000 each has been paid to 44 seriously
injured persons, Rs.5,000 each to 26 persons and Rs.1,000 each to five persons who sustained minor injuries. 133
The Central Government has assured the Commission that the government is seriously concerned to ensure that
harm to civilian life and property is effectively curbed. The government would continue to make its efforts towards
the attainment of this objective. 134
(b) Alleged Custodial Death of Sri Shankshem Kharsaiot Followed by Death of Two Persons in Police Firing
in Meghalaya
The Commission took cognisance of this case on the basis of a news broadcast over AIR on 5 November, 1993. It
was mentioned in the news that two persons died as a result of police firing on a crowd gathered outside Sohra
police station in Cherrapunjee in Meghalaya. The people had gathered outside the police station to protest against
the alleged custodial death of one Shankshen Kharsaiot. The Commission called for a report from Chief Secretary,
Meghalaya regarding this incident. On 19 November, 1993, the State Government sent an interim report stating that
Magisterial inquiry had been ordered in regard to the custodial death. The report also mentioned that a retired High
Court judge was being requested to investigate the incident of police firing. Meanwhile, Rs.25,000 had been paid to
the next kin of each of the deceased to meet funeral expenses. 135
The Commission called for further report on the action taken by the State Government. The State Government sent
a report regarding the custodial death of Shanskhem Kharsaiot on 15 January, 1994. 136 It was stated in this report
that the Magesterial Inquiry had indicted the police officer responsible for the custodial death. The ex-gratia
assistance of Rs.50,000 had been given to the next kin of the deceased and a near relative of the deceased had
been given a government job on compassionate grounds. 137 It has mentioned in the report that an inquiry by a
retired High Court judge has been going on with regard to the deaths resulting from the police firing. 138
(c) Alleged Custodial Death of Sri Chandrasekharan in Pondicherry.
This case was brought to the notice of the Commission by the Tamil Nadu State Legal Aid and Advice Board. It
was alleged in this complaint that one Chandrasekharan 139 had died in police custody on 29 December, 1993. The
Commission appointed Sri K.R. Gururajan, retired Vice-Chairman of Railway Claims Tribunal, Madras, to
investigate the matter. 140 While investigation was in progress, the Chief Secretary to the Government of
Pondicherry reported that as a result of the Magisterial inquiry, the concerned police officers had been suspended
and cases were registered against them under the relevant provisions of law. On perusing the report, the
Commission decided that no further action was required on its part and the investigation ordered by the
Commission was dropped. 141
(d) Alleged Death of Muhammad Akbar Sheikh in Armed Forces Custody, Baramulla District, Jammu &
Kashmir
The Commission received a complaint alleging the death of Muhammad Akbar Sheikh on 27 December, 1993, in
the custody of armed forces. 142 Proceeding under Section 19 of the Act, the Commission called for reports from
the Defence and Home Ministries. The reply of the Defence Ministry, forwarded a report from Army Headquarters.
According to that report, the 15 Punjab Regiment was involved in an operation against militants on 27 December,
1993 around the village of Fatehgarh, Tehsil Barwah, District Baramulla. All male adults were collected at the local
government high school. Muhammed Akbar Sheikh agreed to assist one of the companies of the unit in the matter
of search. The search continued till morning. It was being conducted in the last week of December, 1993, and the
weather was harsh. The report attributed the death of Muhammad Akbar Sheikh to exhaustion. After carefully
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analysing the report, the Commission observed that it was apparent that the deceased had been totally exhausted.
Though the case was not one of custodial death, the situation was more or less akin to it.
Finally, the Commission directed the Ministry of Defence to pay Rs.50,000 as compensation to the legal heirs of
the deceased. The payment was made to the legal heirs of the deceased by the Ministry of Defence.
(e) Alleged Death of 125 Children in Phulbani District, Orissa, owing to Malnutrition, Malaria and Chicken
Pox.
The Commission took cognisance of a complaint alleging that some 400 children had died in Phulbani district as a
result of acute malnutrition, accompanied by repeated attacks of malaria, chicken-pox and various water borne
diseases. 143 The Commission asked for a full report from the State Government.
The Commission felt that the tragedy reflected the inability of the State Government to adequately educate tribal
citizens, which was an obligation of the State Government under the Constitution. Therefore, the Commission
recommended that the State Government pay, within a month, a sum amounting to Rs. 6,52,000 to the 125 tribal
families whose children had died. However, the State Government requested the Commission to reconsider its
recommendation regarding the payment of compensation.
The Commission has reviewed the matter once again on the basis of a request made by the State Government to
the Commission to reconsider its recommendations. However, the Commission decided not to alter its earlier
recommendation in any way and directed the State Government of Orissa to implement its earlier recommendation
within an extended period of one month. 144
Finally, the Orissa Government has paid an amount totalling Rs. 625,000 to 125 tribal families whose children had
died of malnutrition and malaria in Phulbani district. 145
(f) Robin Pal case
In this case, Robin Pal, owner of a tea-garden in Calcutta was arrested on 30 April, 1995 in connection with a case
and was severely harassed along with his family members. Later, he was released by the police for want of a
proper cause. Pal sought the intervention of the Commission to render justice against the harassment he and his
family were forced to undergo. After a thorough inquiry the Commission found three police officialsverghese Mishra
then Superintendent of Police, Debkumar Gangopadhyaya Additional Superintendent of Police of South 24
Parganas district and Ranjit Chakrabarty, the officer in charge of Jadavpore Thana guilty. 146
The Commission then recommended to the West Bengal Government to initiate action against the three police
officials. Unfortunately, the government was reluctant to take action. A reminder to this effect from the Commission
also failed to elicit any response. In its further communication to the State Government, the Commission threatened
to institute proceedings against the West Bengal Government before the Supreme Court for ignoring its
recommendations. 147
These are the few important cases where the Commission has taken cognisance of the human rights violation. In
most of the cases the Commissions recommendations were complied with by concerned authorities.
(g) Gujarat Communal Riot
The Commission took suo motu action on the communal riots which took place in Gujarat in early 2002. The
decision to take the action was based on both print and electronic media reports. 148 Besides, the Commission
received an e-mail communication requesting the Commission to intervene. A team of the Commission visited
Gujarat between 19 and 22 March, 2002 and prepared a confidential report, which was later made public. 149 The
release of the confidential report was initially withheld to provide an opportunity to the Gujarat Government to
comment on its contents, given the sensitivity of the allegations contained in it. 150 Unfortunately, the State
Government did not bother much about this report. The Commission observed that the State had failed to discharge
its primary and inescapable responsibility to protect the rights to life, liberty, equality, and dignity of all of those who
constitute it. 151 The principle of res ipsa loquitur (the affair speaking for itself) applies in this case in assessing the
degree of State responsibility in the failure to protect the Constitutional rights of the people of Gujarat. 152 The
responsibility of the State extended not only to the acts of its own agents, but also to those of non-State actors
within its jurisdiction and to any action that may cause or facilitate the violation of human rights. 153 The US
government even denied a visa to Chief Minister Narendra Modi because of the Commissions report on Gujarat. 154
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II. INTERVENTION IN COURT PROCEEDINGS
There are a few cases where the Commission has taken the exemplary step of seeking interventions in court
proceedings. In the case of Harjit Singh, the Commission had to intervene in pending proceedings before the High
Court under Section 12(b) . 155
(a) Harjit Singh case
Harjit Singh, an employee of the Punjab State Electricity Board, was alleged to have been arrested by the police on
29 April, 1992. His whereabouts were not known after his disappearance.
Amnesty International expressed concern over the slow progress in legal proceedings initiated in October, 1992 to
bring to light the whereabouts of Harjit Singh. According to Amnestys report, Harjit Singh was twice seen alive by
his father in police custody after the police claimed that his son had been killed. The Commission on 23 May, 1995,
finally decided to intervene in pending proceedings before the High Court with the permission of the High Court. 156
(b) Chakma Refugees
In this case the Commission was approached by Peoples Union for Civil Liberties(PUCL) regarding the alleged
violation of human rights of Chakma refugees in September, 1994. The Commission also received a representation
from the Committee for Citizenship Rights of the Chakma of Arunachal Pradesh (CCRCA), which also enclosed
press reports indicating that an ultimatum had been issued by the All Arunachal Pradesh Students Union (AAPSU),
to "foreigners" asking them to quit the State by September, 1994. 157
The Commission pursued the matter with the Arunachal Pradesh Government and also with the Union Home
Ministry. Meanwhile, it received another petition from the CCRCA on 28 October, 1995, alleging certain serious
instances of "State-supported violations of human rights". 158
After a thorough inquiry conducted by the Commission in this matter, the Commission directed the State
Government to maintain the status quo. Its directions were communicated to all concerned parties. However,
expressing doubts on whether its directions would be effectively implemented, the Commission decided to
approach the Supreme Court of India through a writ petition.
According to the petition, alien residents in case of violation of human rights can approach the Commission. The
Commission may recommend under Section 18(3) of the Act, to the concerned State for immediate interim relief to
the victim or members of the family. 159 The Commission argued that in India, aliens were entitled to invoke the
protection of Article 21 . Similarly, an alien cannot be subjected to such hostile treatment by a private body such as
the AAPSU particularly when the actions of AAPSU are with the tacit support and/or acquiescence of the
functionaries of the State of Arunachal Pradesh. 160
The petition also invoked the need to ensure that Article 13 of the CP Covenant, to which India is a party, was
fully complied with. It pointed out that the ratification of this Covenant by India gave rise to "legitimate expectations"
in the international community.
The Supreme Court of India issued an interim order on 2 November, 1995, directing Arunachal Pradesh
Government that "Chakma refuges situated in Arunachal Pradesh are not ousted from the State by any coercive
action not in accordance with law". 161 The Supreme Court directed in its final judgement to the State Government
of Arunachal Pradesh to ensure that the life and personal liberty of each and every Chakma residing within the
State shall be protected. 162
(c) Jalil Ahmed Andrabi case
Jalil Ahmed Andrabi, an advocate was alleged to have been arrested on 8 March, 1996 between 5 to 6 p.m. from
Srinagar, Jammu & Kashmir and subsequently his dead body was recovered on 27 March, 1996 from a river in
Srinagar.
The Commission took suo motu cognisance of this killing of a human rights activist, Jalil Ahmed Andrabi 163 in
Jammu and Kashmir and directed the Chief Secretary of Jammu & Kashmir for detailed report in regard to this
incident.
A writ petition had already been filed in the Jammu & Kashmir High Court and the Court had set up a special
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investigation team for investigating the matter. The Commission decided to intervene in the pending proceeding
with the approval of the High Court. 164
III. THE COURT UTILIZING THE COMMISSIONS INVESTIGATION MECHANISM
In a case relating to the alleged mass cremation of numerous unidentified dead bodies in Punjab, the Supreme
Court of India on 12 December, 1996 requested the Commission to have the matter examined in accordance with
law and to determine all the issues raised before the Court.
The Commission has already issued a notice to fourteen parties including the petitioner, Paramjit Kaur. 165
These are a few important cases under the above-mentioned three broad categories where the Commission has
taken cognisance of human rights violation. In most of the cases, the Commissions recommendations have been
complied with by concerned authorities. In various cases, the Commission recommended prosecution of public
servants responsible for violation of human rights, under Section 19(1) of the Act. 166
(a) Indian Council of Legal Aid and Advice and Others
On 3 December, 1996 the Commission took cognisance of a letter from Chaturanan Mishra, the then Union
Minister for Agriculture regarding deaths caused by starvation after the drought in the Bolangir district of Orissa. A
writ petition 167 was filed on 23 December, 1996 by the Indian Council of Legal Aid and Advice and Others before
the Supreme Court of India under Article 32 of the Constitution. The petition alleged that deaths by starvation
continued to occur in certain districts of Orissa. 168 The Supreme Court of India on 26 July, 1997 pointed out that
since the matter had been seized with the NHRC and the NHRC was expected to deliver a direction in this case,
the petitioner could approach the Commission. Realising the urgency of the matter the Commission acted quickly,
prepared interim measures for a two-year period, and requested the Orissa State Government to constitute a
Committee to examine all aspects of the land reform question in the Kalahandi, Bolangir and Koraput (KBK)
districts. 169 The Commission has appointed a Special Rapporteur to monitor the progress of implementation of its
directions.
The Commission observed that as starvation deaths reported from some pockets of the country are invariably the
consequence of mis-governance resulting from acts of omission and commission on the part of the public servant.
170 The Commission strongly supported the view that to be free from hunger is a fundamental right of the people of
the country. Starvation, hence, constitutes a gross denial and violation of this right.
The Commission organised a meeting with leading experts on the subject, in January 2004, to discuss issues
relating to the right to food. 171 The Commission approved the constitution of a Core Group on Right to Food that
can advise on issues referred to it and also suggest appropriate programmes, which can be undertaken by the
Commission. 172 By this decision it is firmly established in the context of India that economic, social and cultural
rights are treated on a par with civil and political rights before Indian courts and the NHRC. India is amongst the few
countries in the world which has accorded justiciability of economic, social and cultural rights.
(b) The Punjab Mass Cremation Order
Two writ petitions 173 were filed before the Supreme Court of India containing serious allegations that the Punjab
Police had carried out large-scale cremations of persons allegedly killed in what were termed as "encounters". The
main thrust of the writ petitions was that these extra-judicial executions as wells as hasty and secret cremations
rendered the State liable for action. These petitions largely relied on a press note dated 16 January, 1995 by the
Human Rights Wing of the Shiromani Akali Dal under the caption "disappeared" and "cremation ground". The note
alleged that the Punjab Police had cremated a large number of human bodies after labelling them as unidentified.
The Supreme Court after examining a report on the subject-matter submitted to the Court by the Central Bureau of
Investigation (CBI) observed that the report indicated that 585 dead bodies were fully identified, 274 partially
identified and 1238 unidentified. 174 The report disclosed flagrant violations of human rights on a large scale. On 12
December, 1996 the Court requested the Commission to examine the matter in accordance with law and determine
all issues relating to the case. The Commission has granted in some cases compensation amounting to rupees
250,000 to the next of kin of 89 deceased persons. 175 While granting the compensation the Commission relied on
the jurisprudence developed by Indian courts pertaining to legal standards for remedial, reparatory, punitive and
exemplary damages for human rights violation. The Commission observed that it is now a well accepted proposition
in most of the legal systems that monetary or pecuniary compensation is an appropriate and, indeed, effective and
sometimes perhaps the only suitable remedy for redress of the established infringement of the fundamental right of
life of a citizen by public servants and the State. 176 The claim of the citizen is based on the principle of strict liability
Page 27 of 35
to which the defence of sovereign immunity cannot be raised and the citizen must receive the amount of
compensation. 177
VI. STATE HUMAN RIGHTS COMMISSIONS
At present, State Human Rights Commissions are functioning independently in Assam, Himachal Pradesh, Madhya
Pradesh, West Bengal, Tamil Nadu, Jammu & Kashmir, and the Punjab. Besides, Human Rights Cells exist in
Andhra Pradesh, Kerala, Daman & Diu, Dadra & Nagar Haveli and Delhi. As per Section 30 of the Protection of
Human Rights Act, 1993, Human Rights Courts have been notified in the States of Andhra Pradesh, Assam,
Sikkim, Tamil Nadu and Uttar Pradesh and other States are expected to follow suit.
West Bengal Human Rights Commission
The West Bengal Human Rights Commission has recommended actions against a police constable for torturing
two women suspects in custody by trying to pull off their thumb nails with pliers. The WBHC has also recommended
that suitable action should be taken against three women colleagues of constable for negligence in preventing the
occurrence of this gruesome act. 178
The two women were kept in police custody in the Nivedita Women Cell in Burdwan police station on the suspicion
that they were pick pockets.
The constable accused of the torture was subsequently produced before the Court of the Sub-Division Magistrate,
Burdwan. 179
Death of Agun Kasem of Karimpur, Nadia
The Commission took cognizance of the news item which appeared in The Telegraph, Calcutta, dated 23 August,
1995 reporting the death of Agunkasem in police custody. The victim was beaten by the police, tied to a jeep and
dragged 150 yards along a rough pot-holed village road.
The enquiry report of CID, West Bengal, based on 40 local witnesses revealed that:
...the accused Kasem was actually arrested by the police on 19 August, 1995 from his house at Charmuktarpur, district
Nadia. The accused was mercilessly beaten by officer-in-charge (OC), Shankar Chatterjee, on 20 August, 1995. The
accused along with another accused namely Kalimuddin Malitha was kept in the prison van. OC of Karimpur Police Station
reached Charmuktarpur Primary School with Kasem and their (sic.) he tied him to the back side of the police jeep and
dragged him for about 150 yards up to the house of Kasem. This happened in broad daylight. Most of the villagers around
Kasems house witnessed the incident with horror and shock. Kasems wife Manwara Bibi started crying over the near
unconscious body of Kasem who had received injuries due to abrasion on his back, buttock, thigh and knees.
The Commission relying upon the CID report, held Shankar Chatterjee, OC, Karimpur Police Station and other
police personnel in the raid party guilty of gross negligence of their duty as public servants and brutal violation of
human rights resulting in the death of Kasem.
The Commission recommended:
(a) that the Government shall pay a sum of Rs. 50,000 to the next of kin of the deceased Agun Kasem;
(b) that the Government shall initiate departmental proceedings against the OC and other police personnel
involved in this incident.
The State Government sanctioned a sum of Rs.50,000 for payment to the next of kin of the deceased Agun Kasem
of Karimpur. The State Government initiated a criminal case against the OC, Karimpur Police Station and other
police personnel. 180
However, other State Human Rights Commissions have not delivered any significant decisions which may help in
developing human rights jurisprudence.
From its work the Commission is able to convey the message that it can work independently, impartiality and its
recommendations are hallmark of its functioning.
Page 28 of 35
In the past members of the NHRC were appointed governors of Tamil Nadu and Kerala respectively. This move of
the government was criticised by many as this may affect the impartial functioning of the Commission if its members
start accepting gubernatorial or any other executive posts. So, in order to make NHRC an autonomous and free
body, in the true sense, its members should not be allowed to hold any executive posts offered by the government,
even after their term comes to an end.
The Commissions efforts have contributed to transforming the human rights ethos of the country. It has developed
a capacity to defend the least powerful of the citizens of India. It can justly take pride in the fact that its efforts have
begun to strengthen the hands of the just and compassionate, and the weak in need of justice, of whom there are a
legion. It has earned an important place in human rights implementation in India.
Indeed, implementation of human rights in India, and its monitoring remains a daunting task. Even if the
Commission is a very small step in this direction, it remains a very significant small step for its presence has made
a difference.
V. CONCLUSION
From its inception the Commission attracted much suspicion because of its status as a governmental institution.
However, in twenty years it was able to ascertain its integrity and commitment. The Commission was able to
demonstrate its ability to work independently and impartially, which is borne out by its recommendations. Even if the
Commission is a very small step in the daunting task of the implementation of human rights at the national level, it
remains a very significant step. Considering Indias extensive territory, the vastness of its population and the
complexity of social structure, cases of violation of rights, whether attributable to the agencies of the State or to the
private individuals or groups, may occur despite its best efforts.
1 Forty-Fourth Amendment Act, 1978, came into effect on 20 June, 1979, Article 359(1) says, "where a proclamation of
emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of
such of the rights conferred by Part III (except Articles 20 and 21 ) as may be mentioned in the order and all
proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the period
during which the proclamation is in force or for such shorter period as may be specified in the order".
2 Article 20 :
Protection in respect of conviction for offences(1) No person shall be convicted of any offence except for violation of 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 time of the commission of the offence. (2) No person shall be
prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be
compelled to be a witness against himself.
3 Article 21 , "No person shall be deprived of his life or personal liberty except according to procedure established by
law".
4 Article 4(2) under International Covenant on Civil and Political Rights, Article 15(2) under European Convention,
Article 27(2) under American Convention contains list of non-derogable rights.
5 Cf. H.O. Aggarwal, Implementation of Human Rights and Covenant: With Special Reference to Indian Constitution
(Allahabad, 1964), pp. 113-52, p. 116.
6 V.S. Mani, "Human Rights in India: An Overview" (unpublished paper prepared for the Konrad Adenauer Foundation,
Germany, January, 1997), p. 48; Mahendra P. Singh, "Human Rights in the Indian Tradition; An Alternative Model",
NUJS Law Review, vol. II, n. 2 (2009), pp. 145-182.
7 Ibid .
8 A.K. Gopalan v. State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22].
9 Maneka Gandhi v. Union of India, AIR 1978 SC 597 [LNIND 1978 SC 25].
10 Justice Sujata Manohar, "Judiciary and Human Rights", Indian Journal of International Law , vol. 36 (1996), p. 41;
Rajat Rana, "Could Domestic Courts Enforce International Human Rights Norms? An Empirical Study of The
Enforcement of Human Rights Norms by the Indian Supreme Court Since 1997", Indian Journal of International Law ,
vol. 49, no. 4 (2009), pp. 533-575; Upendra Baxi, The Future of Human Rights (New Delhi, Oxford University Press,
2008).
11 Mani, n. 6, p. 48.
Page 29 of 35
12 A.D.M. Jabalpur v. Shivakant Shukla , AIR 1976, SC 1267, p. 1254.

13 AIR 1953 SC 1295 .
14 (1877) 24 Law Ed. 77 (90) - S4 US 113.
15 n. 13, p. 1305.
16 Maneka , n. 9, p. 597. In this case the petitioners passport was impounded in public interest by an order dated 2 July,
1977. The Government of India declined "in the interests" of the "general public" to furnish the reasons for its decision.
Thereupon she filed this writ petition under Article 32 of the Constitution challenging the order.
17 R.C. Cooper v. Union of India, AIR 1970 SC 564 . In this case, the Court observed, that determining the impact of State
action upon Constitutional guarantees which are fundamental, it follows that the extent of protection against impairment
of a fundamental right is determined not by the object of legislature nor by the form of the action, but by its direct
operation upon the individuals rights. The theory that the object and form of the State action determine the extent of
protection which the aggrieved party may claim is not consistent with the Constitutional scheme. The observations
made in Coopers case were made in relation to the right to property under erstwhile Article 31 .
18 The Supreme Court in Satwant Singh Sawhney v. Assistant Passport Officer, AIR 1967 SC 1836 [LNIND 1967 SC
427]; held that the right to go abroad is a part of a persons "personal liberty" within the meaning of Article 21 of the
Constitution, and consequently no person can be deprived of this right except according to procedure prescribed by
law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad
and that was the reason why the order of the Passport officer refusing to issue passport to the petitioner in Satwant
Singhs case was struck down as invalid. K.R. Nambiar, "Satwant Singh v. Assistant Passport Officer , New Delhi",
Indian Journal of International Law , vol. 6 (1967), pp. 542-550.
19 Gopalan, n. 8, p. 27.
20 Article 14 stipulates "The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India".
21 Maneka, n. 9, p. 624.
22 Mohammad Ghouse, "Human Rights and Fundamental Rights", Indian Bar Review , vol. 11 (1984), p. 405.
23 Justice Frankfurter had advised B.N. Rau to include "procedure established by law" clause instead of "due process of
law" in Indian Constitution. See B. Shiva Rao, The Framing of Indian Constitution: Select Documents (Bombay, 1969),
vol. II, p. 328.
24 This observation was made by V.S. Mani while going through the manuscript in the month of April, 1997.
25 Third Periodic Report submitted by India (hereinafter referred to as the Third Report) CCPR/C/76/Add.6, 17 June,
1996, p. 20.
26 Bachan Singh v. State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 261].
27 (2012)9 SCC 742 [LNIND 2012 SC 945].
28 Times of India, "Supreme Court calls for a Relook at Norms of Death Penalty", 21 November, 2012.
29 Second Periodic Report submitted by India [hereinafter cited as Second Report] CCPR/C/37/Add.133, 5 October,
1989.
30 Jagmohan Singh v. State of U.P, AIR 1973 SC 947 [LNIND 1972 SC 477]; In this case, the appellant Jagmohan Singh
has been convicted under Section 302 , IPC for the murder of one Chootey Singh and sentenced to death by Sessions
Judge, Shahjahanpur (U.P). The conviction and the sentence was confirmed by the Allahabad Court. The appeal was
dismissed by the Supreme Court.
31 Rajendra Prasad v. State of U.P., AIR 1979 SC 916 [LNIND 1979 SC 107]; A long standing family feud, with years long
roots, led to a tragic murder.
32 Section 302 IPC, "Whoever commits murder shall be punished with death or imprisonment for life, and shall also be
liable to fine".
33 Sub-section (3) of Section 354 of the Code of Criminal Procedure, 1973, enacts "when the conviction is for an
offence punishable with death, in the alternative with imprisonment for life or imprisonment for a term of years, the
judgement shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons
for such sentence.
34 Rajendra n. 31, p. 930. Punishment by deprivation of life or liberty must be validated by Articles 21 , 14 and 19 - the
first guarantees fair procedure, the second is based on reasonableness of the deprivation of freedom to live and
exercise the seven liberties and the last is an assurance of nonarbitrary and civilised punitive treatment.
35 Bachan, n. 26, p. 898.
36 (1983) 4 SCC 645 [LNIND 1983 SC 265].
Page 30 of 35
37 Section 354(5) of the Cr.P.C. which prescribed hanging as mode of execution lays down fair, just and reasonable
procedure within the meaning of Article 21 , and hence is Constitutional. The Court took the view that neither
electrocution, nor lethal gas, nor shooting, nor even the lethal injection had "any distinct advantage" over the system of
hanging by rope.
38 AIR 1986 SC 467 .
39 AIR 1983 SC 361 [LNIND 1983 SC 58].
40 AIR 1983 SC 465 [LNIND 1983 SC 89].
41 Daya Singh v. Union of India, AIR 199 SC 1548.
42 (1999) 9 SCC 2317 .
43 (2013) 6 SCC 195 [LNIND 2013 SC 1281].
44 Times of India, "Rise of Terror is the Main Reason: Why Death Sentence Exists", 13 April, 2013.
45 Bachan Singh, n. 26, p. 898.
46 AIR 1979 SC 944 .
47 D.K. Basu v. State of West Bengal , 18 December, 1996 (1479/96).
48 The Telegraph (Calcutta), dated 20, 21 and 22 July, 1986.
49 Basu, n. 47, pp. 29-31.
50 Ibid ., pp. 31-32.
51 (1994) (4) SCC, p. 260.
52 Basu, n. 47, p. 14.
53 Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 [LNIND 1993 SC 1167].
54 Ibid ., p. 1970.
55 Basu, n. 47, pp. 34-40.
56 (1975) 3 SCC 185 [LNIND 1974 SC 269].
57 AIR 1978 SC 1675 [LNIND 1978 SC 215].
58 Ibid ., 1735.
59 Ibid ., 1790.
60 Sunil Batra II v. Delhi Administration, AIR 1980 SC 1579 .
61 Ibid ., p. 1594.
62 Ibid ., p. 1580.
63 Ibid ., p. 1586.
64 Ibid ., paragraph 228, p. 1732.
65 Francis Corallie Mullin v. The Administrator, Union Territory of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27].
66 Ibid ., p. 752.
67 (1984) 2 SCC 308 .
68 Ibid ., p. 310.
69 AIR 1988 SC 1782 [LNIND 1988 SC 355].
70 Prem Shankar Shukla v. Delhi Administrator, AIR 1980 SC 1535 [LNIND 1980 SC 215].
71 (1991) 3 SCC 119 [LNIND 1991 SC 234].
72 (1991) 2 SCC 373 [LNIND 1991 SC 158].
73 (1994) 6 SCC 260 .
74 Section 167(2) of the Code provides:
The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to
try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a
term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and
Page 31 of 35
considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such
jurisdiction. Provided that:
(a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police,
beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody under this paragraph for a total period exceeding:
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years; and
(ii) Sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days,
or sixty days, as the case may be, accused person shall be released on bail if he is prepared to and does furnish
bail.
75 Vidhya Sagar v. State of Punjab, AIR 1962 Punj 487 .
76 Ibid ., p. 488.
77 Kashmira Singh v. State of Punjab, AIR 1977 SC 2147 [LNIND 1977 SC 262].
78 Ibid ., pp. 2148-45.
79 Godikanti v. Public Prosecutor, AIR 1978 SC 429 [LNIND 1977 SC 336].
80 Ibid ., para 1, p. 430.
81 Ibid ., p. 432.
82 Babu Singh v. State of U.P., AIR 1978 SC 531 (Para 17 ); Mantoo Majumdar v. State of Bihar, (1980) 2 SCC 406
[LNIND 1980 SC 91].
83 Moti Ram v. State of MP, AIR 1978 SC 1595 ; In this case the petitioner, a poor mason from MP, pending his appeal in
the Supreme court obtained an order for bail in his favour "to the satisfaction of the Chief Judicial Magistrate". The
direction of the Supreme Court did not spell out the details of bail, and so, the Magistrate ordered that a surety in a sum
of Rs.10,000 be produced. The petitioner could not afford to procure that huge sum or manage a surety of sufficient
property. Further, the Magistrate demanded sureties for his own district. He refused to accept the suretyship of the
petitioners brother because he and his assets were in another district. The petitioner moved the Supreme Court again
to modify the original order "to the extent that the petitioner be released on furnishing surety to the tune of Rs.2,000 - or
an executing a personal bond or pass any other order or direction" deemed fit and proper.
84 Ibid ., p. 1600 (para 2a).
85 Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1377 . This petition for a writ of habeas corpus disclosing a
shocking state of affairs in regard to administration of justice in the State of Bihar, where certain undertrial prisoners
remained in jail without trial for periods longer than the maximum term for which they could have been sentenced if
convicted and such persons had been in detention for periods longer than the maximum terms. Court held [proviso to
Section 167(2) , Cr.P.C.] without their trial having been commenced, their continued detention was clearly illegal and in
violation of their fundamental right under Article 21 of the Constitution. As such they must be released forthwith.
86 Ibid ., p. 1362 (para 3).
87 Ibid ., pp. 1363-64 (para 4). In this case Justice Bhagwati found that the magistrates mechanically remanded the
undertrials to custody without drawing their attention to the fact that, on the expiry of that period of 60 days or 90 days
as case may be, they were entitled to be released on bail under Section 167(2)(a) of the Criminal Procedure Code.
He further found that though Section 167(5) of the code required investigation to be completed within six months, but
this was not adhered to.
88 Ibid ., p. 1360. A social activist lawyer, Kapila Hingorani filed the writ petition in Supreme Court on behalf of an
undertrial for habeas corpus; the respondent, the State of Bihar, made the shocking disclosure that there were about
22,000 undertrials in Bihar jails comprising about 80 per cent of the prison population and that the duration of their
imprisonment ranged from a few months to ten years. In certain cases the duration of imprisonment prescribed as
punishment for the offences they were charged with if convicted was longer than the maximum terms prescribed by the
law.
89 Maneka, n. 9, p. 597.
90 Hussainara, n. 85, pp. 1364-65, para 5. There are a few references in this judgement regarding undertrial prisoners
which are nerve breaking, Bhola Mahato was in jail from 23 November, 1968 until 16 February, 1979 when he was
released on his personal bond pursuant to the directions given by a Court order dated 5 February, 1979. He was
accused in a case under Sections 363 and 368 of the Indian Penal Code and he was committed to the Court of
Session on 13 September, 1972 but his Sessions trial had not yet commenced. It is amazing that a sessions trial of a
person committed to the Court of Session as far as back as 13 September, 1972 could not have even commenced for
about seven years.
Page 32 of 35
The same may be said also of the case of Ram Sagar Mistry who was admitted in jail on 28 March, 1971 and committed to
the Court of Sessions on 28 June, 1972 on a charge under Section 395 of Indian Penal Code but whose trial had not
commenced and a period of more than six years has elapsed.
In another interesting case Lambodar Gosain has been in Ranchi jail for an offence under Arms Act for which the maximum
punishment is two years, with the result that he has been in jail as an undertrial prisoner for eight-and-a-half years.
These cases were taken from Court affidavit filed by Bihar Government. Hussainara, n. 80.
91 In the United States, speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the
Constitution provides that, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial".
Article 3 of the European Convention on Human Rights provides that, "everyone arrested or detained shall be entitled
to trial within a reasonable time or to release pending trial".
92 Kadra Pehadiya v. State of Bihar, AIR 1981 SC 939 . The Supreme Court has taken cognisance of this case on the
basis of a letter written to the Court by one Vasudha Dhagmawar, a researcher and social scientist working in the
Santhal Parganas of the State of Bihar.
93 Ibid ., p. 940.
94 (1989) 4 SCC 481 .
95 (1989) 9 SCC 62 .
96 The Forty-Second Amendment Act, 1976 included free legal aid as one of the Directive Principles of State Policy under
Article 39A .
97 M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199].
98 Ibid ., p. 1556.
99 Khatri v. State of Bihar, AIR 1981 SC 928 [LNIND 1980 SC 473].
100 Ibid ., p. 928.
101 Sheela Barse v. Union of India, AIR 1983 SC 378 [LNIND 1983 SC 57]. The petition came up before the Supreme
Court on complaint of custodial violence to women prisoners whilst confined in police lock up. The petitioner stated in
her letter that she interviewed fifteen women prisoners in the Bombay Central Jail, five out of fifteen complained they
had been assaulted by the police in the police lock up.
102 Ibid ., p. 380, para 2.
103 (1986) 2 SCC 401 [LNIND 1986 SC 60].
104 Under the Legal Services Authorities Act, 1987, legal aid is available to indigent persons below certain income (the
financial ceiling of legal aid varies from state to State) and to women, children, under Section 12 , members of the
Scheduled Castes and the Scheduled Tribes irrespective of any income.
Free legal aid is also available to:
(a) a victim of trafficking in human being or begar as referred to in Article 23 of the Constitution;
(b) a mentally ill or otherwise disabled person;
(c) A victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster;
(d) an industrial worker; and
(e) a person in custody, including custody in protective home with meaning of clause (g) of Section 2 of the Immoral
Traffic (Prevention) Act, 1956 or in a juvenile home within the meaning of clause (g) of the Juvenile Justice Act,
1986 or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the
Mental Health Act, 1987.
105 State of Maharashtra v. Manubhai Pragaji Vashi, AIR 1996 SC 1 [LNIND 1995 SC 788]. The prayer therein was to
direct the Government of Maharashtra to extend the grant-in-aid scheme to the non-Government law colleges in the
State retrospectively from April, 1982.
106 Sanjit Ray v. State of Rajasthan, AIR 1983 SC 38 .
107 Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1973 ; This case was brought under writ petition
by way of public interest litigation in order to ensure observance of the provisions of various labour laws in relation to
workmen employed by a contractor in the construction work of various projects connected with the Asian Games.
108 Ibid ., 1488.
109 Bandhua Mukhi Morcha v. Union of India, AIR 1984 SC 802 [LNIND 1983 SC 564]; where a public interest litigation
alleging that certain workmen were living in bondage and under inhuman conditions was initiated.
110 Second Report, n. 27, p. 17.
Page 33 of 35
111 Jolly George Verghese v. Bank of Cochin, AIR 1986 SC 470 .

112 Ibid ., p. 474.
113 Rao Shiv Bahadur Singh v. State of U.P., AIR 1953 SC 394 [LNIND 1953 SC 68].
114 Ibid ., para. 9.
115 Jawala Ram v. State of Pepsu, AIR 1962 SC 1246 [LNIND 1961 SC 211]. In this case, 51 appellants, filed in the Pepsu
High Court at Patiala, a petition under Article 226 and Article 227 of the Constitution for relief against an order
made by Divisional Canal Commissioner.
116 Ibid ., para 7, p. 1247.
117 State of West Bengal v. S.K. Ghosh, AIR 1963 255 ; The respondent was appointed the Chief Refugee Administrator of
Burma Refugee Organisation in November, 1942 and held that post till 25 August, 1944 when he was suspended. He
was believed to have embezzled large sum of money belonging to Government which were at his disposal as the Chief
Refugee Administrator, in conspiracy with certain persons. It was in that connection he was suspended on 25 August,
1944 and investigation into the alleged offences began thereafter.
118 By this Ordinance, Section 10 of the 1943-Ordinance was amended and the amended section was in these terms:
When any person charged before a Special Tribunal with an offence specified in the schedule is found guilty of that offence,
the Special Tribunal shall, notwithstanding anything contained in the Indian Penal Code (XIV of 1860), whether or not it
imposes a sentence of imprisonment, impose a sentence of fine which shall not be less in amount than the amount of
money or value of other property found to have been procured by the offender by means of the offence.
119 Ghosh, n. 117, p. 259.
120 Ibid ., pp. 262-63 (para 1d).
121 Commissioner H.R.E., v. L.T.V.L.T. Swamiar, AIR 1954 SC 282 [LNIND 1954 SC 69].
122 See for details of the case history , Ibid ., pp. 285-86.
123 Article 26 :
Freedom to manage religious affairssubject to public order, morality and health, every religious denomination or any section
thereof shall have the right:
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
124 Swamiar, n. 121, paragraph 4.
125 1942, 319 US 624 (J).
126 Digyadarshan V.R.R. Vasu v. State of A.P., AIR 1970 SC 181 [LNIND 1969 SC 142].
127 Mohd. Hanif Quareshi v. The State of Bihar, 1959 0 (SCR) 629.
128 Article 48 Organisation of agriculture and animal husbandry"The State shall endeavour to organise agriculture and
animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the
breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle".
This Article can be found in Chapter IV of the Indian Constitution which enshrines what are called the directive principles of
State policy. Under Article 37 , these directive principles are not enforceable by any court of law but are nevertheless
fundamental in the governance of the country and are to be applied by the State while making laws.
129 Quareshi, n. 127, p. 636.
130 Data available at http://www.nhrc.nic.in visited on 15 May, 2013.
131 Annual Report of National Human Rights Commission , 1993-94, pp. 1-12.
132 Ibid ., p. 47.
133 Ibid ., p. 48.
134 Ibid ., p. 49.
135 Ibid ., p. 12.
136 Ibid ., p. 12.
Page 34 of 35
137 Ibid ., p. 12.

138 Ibid ., p. 13.
139 Ibid ., p. 14.
140 Section 14(1) stipulates, "The Commission may, for the purpose of conducting any investigation pertaining to the
inquiry, utilise the services of any officer or investigation agency of the Central Government or any State Government
with the concurrence of the Central Government or the State Government as the case may be".
141 Annual Report , n. 131, p. 17.
142 Annual Report of National Human Rights Commission , 1994-95, pp. 36-37.
143 Ibid ., pp. 39-40.
144 Ibid ., p. 40.
145 Human Rights News Letter , vol. 3 (1996), p. 2.
146 Hindustan Times (New Delhi), 30 May, 1996.
147 Annual Report of National Human Rights Commission , 1995-96 , pp. 58-9.
148 National Human Rights Commission, Gujarat case, Case No. 1150/6/2001-2002, 6 March, 2002.
149 Gujarat case, http://nhrc.nic.in/GujaratOrders.htm visited on 12 August, 2013.
150 Ibid.
151 Ibid .
152 Ibid.
153 Ibid.
154 Nilova Roy Chaudhury "US Denies Visa to Modi, India asks for Review" Hindustan Times , 18 March, 2005.
155 Section 12(b) of Act, "intervene in any proceeding involving any allegation of violation of human rights pending before
a High Court, with the approval of such Court".
156 Annual Report , n. 137, pp. 40-41.
157 Human Rights Newsletter , vol. 2, no. 12 (1995), p. 1.
158 Ibid .
159 Upon the recommendation of the Commission, the Tamil Nadu Government has sanctioned a sum of fifty thousand
rupees as a compensation to the parent of fifteen year old boy Raja alias Murugan, Human Rights News Letter , vol. 2,
no. 2 (1995), p. 2; Compensation of rupees one lakh was ordered for killing of Baljinder Singh by Punjab police, Human
Rights Newsletter , vol. 2, no. 6 (1995), p. 4; the Andhra Government has sanctioned rupees forty five thousand for
treatment of Kankatisail U., who sustained serious injuries at the hands of Naxalites, Human Rights Newsletter , vol. 2,
no. 6 (1995), p. 2; In a major move to bring about "quick and appropriate sensitisation of police personnel and others,
the Commission has taken the view that compensation to be paid in custodial death cases should be borne by
delinquent public servant and not by the State. First case, in regard to the custodial death of Anthoni Swamy of Tamil
Nadu, the Commission recommended that an interim compensation of Rs. 25,000 be paid within one month to the next
of the kin of the deceased. In second incident, Babula Das of Orissa was taken into custody in connection with a case
of theft. In view of the admitted position of the Orissa Government, his death had occurred in police custody as a result
of torture, the Commission recommended to the Orissa government to pay Fifty thousand as compensation to the next
of kin of deceased. In the third incident Teja Ram Bhil, the Rajasthan Government in its report to the Commission
accepted the fact that Teja Ram was taken into custody for recovery of a stolen TV set and he was held in detention for
two days, later he died in police custody. The Commission, recommended compensation of twenty thousand to be paid
to the next of the kin of the deceased. In all these three cases the Commission asked respective States to recover the
amount from delinquent police officials, Human Rights Newsletter , vol. 2, no. 11 (1995), pp. 2-3; On recommendation
of the Commission, Bihar government paid one lakh rupees as compensation to Ashima of Danapur Bihar whose
husband was shot dead in the riots following demolition of Babri Masjid, Human Rights Newsletter, , vol. 3, no. 1
(1996), p. 21. The Assam State Government sanctioned a sum of rupees fifty thousand as compensation to the kin of
Gopal Gwala who died in police custody; Human Rights Newsletter , vol. 3. no. 2 (1996); The Commission
recommended a compensation of Rs.50,000 for every person killed and Rs.10,000 for those with serious injuries and
Rs.5,000 for other injured person in firing at Begusarai, Bihar, Human Rights Newsletter , vol. 3, no. 3, 1997, p. 3; upon
the recommendation of the Commission, the Kerala Government has sanctioned Rs.10,000 to each of the seven boys
who were stripped and forced to spend two nights in the company of the frills in the police lock-up at Tirunelveli in
Wayanad District, Human Rights Newsletter , vol. 3, no. 4, 197, p. 3.
160 Newsletter , n. 145, p. 1.
161 Ibid .
Page 35 of 35
162 National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC 1235 .
163 Human Rights Newsletter , vol. 3, no. 5, 1996, p. 1.
164 Ibid .
165 Human Rights Newsletter , vol. 4, no. 1, 1997, p. 2.
166 The Commission has asked the Government of Pondicherry to prosecute five police constables found guilty of raping a
tribal girl; Human Rights Newsletter , vol. 2, no. 1 (1995), p. 2; due to Commissions intervention prosecution has been
initiated against the accused persons responsible for the murder of two women belonging to the Scheduled Castes,
Govindammal and Boopathy, mother and sister respectively of a certain Veluswamy in Puduchatiram village, Salem
district, Tamil Nadu, Human Rights Newsletter , vol. 2, no. 3 (1995), p. 3; Upon the recommendation of the
Commission, a case under Section 302 IPC has been registered against a police constable for the alleged murder of
Saiful Hussain alias Babu Hussainin police custody, Human Rights Newsletter , vol. 2, no. 4, (1995), p. 2; The
Commission recommended prosecution of forest officials who were involved in the killing of Ganeshan, in this case the
Commission also recommended to the State Government that a compensation of Rs.50,000 be paid to the next of kin
of deceased, Human Rights Newsletter , vol. 2, no. 7 (1995), p. 2.
167 Writ petition (Civil) No. 4297. Sanjay Parikh, a public-spirited lawyer on behalf of the Indian Council of Legal Aid and
Advice and others, filed this petition.
168 The author has personally seen the file and appeared before the Commission on a couple of occasions along with
Sanjay Parikh as an advocate.
169 Starvation Death in Orissa, http://nhrc.nic.in/disparchive.asp? fno=546 and http://nhrc.nic.indisparchive.asp? fno=83
visited on 12 August, 2013.
170 Ibid.
171 http://nhrc.nic.in/disparchive.asp? fno=846 visited on 12 August, 2013.
172 Ibid.
173 Writ Petition (Crl.) No. 497/95, Paramjit Kaur v . State of Punjab and others and Writ Petition (Crl.) No. 447/95,
Committee for Information and Initiative on Punjab v . State of Punjab .
174 Punab Mass Cremation Order, http://nhrc.nic.in/disparchive.asp? fno=855 visited on 12 August, 2013.
175 Ibid.
176 Punjab Mass Cremation Order, supra note 44 .
177 Ibid .
178 Human Rights Newsletter , vol. 4, no. 2 (1996), p. 3.
179 Ibid ., p. 3.
180 Annual Report of West Bengal Human Rights Commission , 1995-96 (Calcutta, 1995-96), pp. 21-25.
End of Document
CHAPTER 7 Conclusion
Manoj Kumar Sinha
Human Rights
The principle of non-derogability of fundamental rights is of crucial importance in the legal regime of human rights,
for it points to the irreducible core of human rights, any derogation from which will make the whole body of human
rights meaningless, as there will no longer be human persons whose rights are to be protected. It has been
observed from the above study that even in times of national emergency there are some fundamental rights which
cannot be derogated. The implementation of the human rights is important for the development of world public order
as it is essential for the development of an equitable national order. The human rights instruments both at the
universal as well as at the regional levels have established that these human right instruments contain diverse lists
of non-derogable rights. Thus, a large body of rules of international law governing the realm of human rights
represents one of the most dynamic areas in the progressive development of international law.
The rapid progress of human rights law has created several new problems. It has been observed that there are
numerous difficulties in implementation of non-derogable rights.
The major weakness of the International Covenant on Civil and Political Rights lies in the derogation provision
contained in Article 4(1) . This provision provides wide scope to States parties to suspend certain human rights
during emergency. It is not surprising that derogation provisions have proved to be a safe ground for fanciful
justifications by States for denial of human rights.
1. Article 4(2) , "No derogations from Articles 6 , 7 , 8 (Paragraph 1 and 12), 11, 15 16 and 18 may be made
under this provision."
There are seven groups of rights identified as non-derogable human rights under Article 4(2) 1 of the CP
Covenant. The seven immutable core rights under Article 4(2) which does not admit any derogation with regard to
the right to life; the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment;
the right not to be held in slavery or servitude; the right not to be imprisoned on the ground of inability to fulfil a
contractual obligation; right against an ex-post facto law; the right to recognition everywhere as a person before the
law and the right to freedom of thought, conscience and religion. The main obstacle in effective implementation of
these non-derogable rights is that the derogation clause has been defined too broadly and adequate normative and
institutional safeguards are either lacking or inadequate.
Whenever violations of any right take place the only proper place to seek redress is the judiciary of the State
concerned. However, States differ in the level of integrity and independence which they accord their judicial system.
Whether independence of judiciary remains intact even during emergency is very controversial in many countries. It
has been observed that the role of the national judiciary in protecting human rights in such situations is often
marginal.
The due process provision of Article 14 of the CP Covenant is not included as a non-derogable right. The effect of
the derogability of Article 14 is that in times of emergency, when due process rights are suspended, even death
sentences can arguably be imposed following summary procedures. The safeguard provided under Article 6(2)
which states that the death penalty can only be carried out pursuant to a final judgement rendered by a competent
Court can be made illusory because a State can decide in a time of emergency what a competent Court can do in
normal times.
Even the European Convention on Human Rights does not include a due process clause as a non-derogable
human right. Emergency situations that constitute a threat to the independence or the security of the State often
Page 2 of 5
require the government to limit the right to personal liberty. Having reviewed some of the important cases in
Chapters Vand VI, it has been found that the wholesome suspension of guarantees against arbitrary arrest and
imprisonment can seriously impinge upon the right to life and integrity of the person.
However, the American Convention on Human Rights has included due process as a non-derogable right. The
American Convention came into force in July, 1978, much later in comparison with the CP Covenant and the
European Convention. The final clause of the second paragraph of Article 27 of the American Convention prohibits
the "suspension of the judicial guarantees essential for the protection" of the rights considered non-derogable by
the American Convention. This clause should also be regarded as responsive to the problem. A right is not fully
protected unless governmental actions or laws restricting that right can be challenged for their Constitutional or
legal validity. Accordingly such provisions as amparo and habeas corpus, when utilised to test the Constitutionality
of a given action or law, are clearly within the purview of the "essentially judicial guarantees" clause. 2
Latin American countries have been facing frequent political instability. The clause which gives essential judicial
guarantees can be effectively utilised in restricting the application of military law on civilians. This has been invoked
with much abuse in the Latin American countries. Generally, jurisdiction over civilians by military tribunals, and the
application of the military law should be allowed only in situations where the normal judicial system is inoperative. In
Latin America, a number of States parties provide in their Constitutions scope for national security laws, state-of-
siege statutes or military codes of justice, and the imposition of martial law in response to civil disturbance or to
check terrorist activities. In some cases, a military code was applied to common crimes, and jurisdiction transferred
to military tribunals. It has been found that military justice normally offers fewer guarantees and its application may
not comply with the requirements of the "essential judicial guarantees" or Article 27 of the American Convention
insofar as non-derogable rights may be affected.
The African Charter does not contain any non-derogable clause. The reason for non-inclusion of such a provision
was not spontaneous. The serious effort regarding the adoption of a human rights treaty for Africa began as early
as 1961. 3 But, it was not until 1979, after many Africans had suffered at the hands of ruthless rulers, that the
drafting of the African Charter on Human and Peoples Rights began.
African States fought very hard to acquire their independence from colonial powers, in fact after securing
independence, most of these newly independent States were preoccupied with maintaining their political
sovereignty and territorial integrity. With their inherited weak economies, they thought that their primary task was to
overcome poverty, disease, malnutrition, and illiteracy, all of which require political stability. These problems do not
justify human rights violations, but the reality is that they tend seriously to undermine the promotion and protection
of human rights.
Notwithstanding this, the African Charter seeks to combine African values with international norms. Indeed, the
African Charter guarantees civil and political rights, such as the rights to life, liberty and freedom from torture. The
civil and political rights guaranteed by the Charter include, equal protection of laws, the right to due process and the
freedom from ex-post facto laws. The freedoms of conscience, religion, expression, association, and assembly and
the right to participate in government are enshrined in the Charter.
Even while the African Charter does not contain a general derogation clause which would permit States to suspend
a limited number of rights in times of national crises, many of the individual rights guaranteed by the Charter contain
a "clawback" clause which restricts rights in a very broad sense. For instance, Article 9 of the Charter provides
that the right to express and disseminate opinions is subject to the requirements of law and order.
The only enforcement mechanism of the African Charter is the African Commission on Human and Peoples Rights.
Unlike the other regional human rights instruments, namely, the European and the American Conventions, the
African Charter does not establish a Court. The reason for rejecting a Court has been the hesitation of African
States to be subjected to the jurisdiction of a supra-national body.
The non-inclusion of a Court coupled with the weaknesses in the substantive and procedural provisions of the
Charter raise serious questions about the efficiency of the African Charter in the promotion and protection of human
rights. In spite of all these weaknesses the African Commission still has potential to become an effective protector
of human rights, the Africans willing.
Humanitarian instruments, having been enacted to govern situations of armed strife are, however, subject to
Page 3 of 5
derogation. A derogation provision is mentioned in Article 5 of the four Geneva Conventions. The common Article
3 of the four Geneva Conventions contains non-derogable provisions. It may be recalled, Article 3 of the four
Geneva Conventions simply states that in the case of armed conflict not of an international character occurring in
the territory of the contracting parties, each party to the conflict shall be bound to apply certain minimum guarantees
of rights of victims or other persons affected by the conflict. Article 3 does not clearly define what constitutes non-
international armed conflict, except by simply excluding international armed conflicts. 4
The major difficulty regarding the application of international humanitarian instruments has been the refusal of
States to apply them in situations in which their application is required. As long as States continue to evade the
applicability of humanitarian norms, justifying their evasions by the specific circumstances of particular situations,
the principle of no derogation could provide little solace.
The complexity of various conflicts, the difficulties involved in the characterisation of the conflict (e.g., international
armed conflict, internationalised internal conflict, internal armed conflict, internal strife accompanied by violence)
and the dependence of the applicability of humanitarian norms on the conflicts characterisation facilitate denial of
human rights and a gross imbalance in favour of military necessity as perceived by a State or other party to a
conflict. Unfortunately, no agreed international machinery exists to arbiter these matters.
In the Indian context, before the Forty Fourth Amendment to the Indian Constitution, the power of the State for
suspension of fundamental rights during a proclamation of emergency was very wide. Article 359(1) empowers the
President to pass an order to declare that "the rights to move any Court for the enforcement of such of the rights
conferred by Part III as may be mentioned in the order and all proceedings pending in any Court for the
enforcement of the rights so mentioned shall remain suspended" either for the entire period of emergency or for
such shorter period as might be specified in the order.
But the Fortyfourth Amendment of the Constitution made a drastic departure from earlier practices. It has so
amended Article 359 that even during a proclamation of emergency, Articles 20 (Protection in respect of
conviction for offences), and 21 (Right to life) cannot be suspended.
The power to proclaim an emergency in accordance with the Constitution lies with the President. The President
may proclaim an emergency in respect of the whole or a part of India, on his being satisfied as to the existence of a
grave emergency. During the operation of an emergency, Article 19 of the Constitution stands suspended with the
result that the States power to pass laws or take executive action is not restricted by it any longer; also, the
President may by order declare the suspension of the right to move any Court for enforcement of any of the
fundamental rights conferred by Part III, except Articles 20 and 21 .
The revolutionary judgement pronounced by the Supreme Court in Maneka Gandhi v. Union of India, 5 infused a
new lease of life to Article 21 ; it has also restricted the arbitrary law making process. At present both Articles 20
and 21 are recognised as the irreducible core of human rights in India. These two rights are so fundamental that
they cannot be snatched away by an arbitrary fiat of the executive even during the proclamation of emergency. Any
executive action, as any piece of legislation, must be "right just and fair" and not arbitrary, fanciful or oppressive;
otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.
The provisions of the Indian Constitution, embodying fundamental rights are basic to political democracy and are
not static. It is true that in the context of the non-inclusion of certain human rights in the Indian Constitution and the
municipal law, the "Indianization" of the needed human rights by the judges looks like Constitution making.
However, a closer analysis of all significant judgements reveal that the judges have not usurped the role of law-
maker or Constitution-maker. Through its various judgements, the Supreme Court has rationalised much needed
human rights into justiciable fundamental rights. The Court has enriched and enlarged the right of access to justice
through public interest litigation and transformed the distant Supreme Court into a poor mans court. Remarkable
advances have been made in the field of human rights by the Supreme Court. The main emphasis has been on
making basic civil and political rights meaningful for the large masses of people who are living a life of poverty and
destitution to whom these basic human rights have so far no meaning or significance because of constant and
continuous deprivation and exploitation.
Apart from the Court, the National Human Rights Commission (NHRC) is fully equipped to handle any situation.
Being a government-established institution, people were suspicious about the functioning of the Commission. But
within less than a three year period, it was able to establish its integrity and commitment. Through its work the
Page 4 of 5
Commission has been able to convey message that it can work independently and impartially, and its
recommendations prove this.
Non-governmental organisations (NGOs) and the media have been playing a crucial role in the protection of the
non-derogable rights of people. There are several instances where NGOS were the first to report violation of human
rights to the appropriate authorities. The NHRC has taken action on several human rights violation complaints
mainly reported by local NGOS from different parts of the country. NGOS can play a significant role in the
promotion and protection of the fundamental rights of the people. It is the sacred duty of NGOS to educate the local
masses about their rights and report each case of violation of human rights to the appropriate forum.
The media has been playing a very crucial role in the promotion and protection of human rights in India. The role of
the media, print as well as audio-visual, has acquired tremendous significance in the promotion of human rights.
The media has helped in moulding public opinion against age-old societal wrongs like untouchability, manual
scavenging and discrimination against the girl child. The NHRC has taken suo motu cognizance of press reports in
several cases and initiated proceedings.
The historical process of crystallisation and expansion of international protection of human rights has been marked
by the phenomenon of multiplication and co-existence of instruments of distinct legal nature and affects both
theglobal and regional levels. The various means of protection are accompanied by their overriding identity of
purpose and the broad conceptual unity of human rights. These mechanisms of human rights protection ought to be
seen as mutually complementing rather than competing with each other. With the policy of avoidance of conflict
between international and national jurisdictions, co-existing human rights procedures seem in practice to reinforce
each other at the international level.
Formulations of certain rights under various human rights instruments, a common core of some fundamental rights,
admit no derogation. The small number of rights that are deemed non-derogable under the CP Covenant, the
European Convention and the American Convention, constitute the basic common minimum rights, and some of
them even peremptory norms. These irreducible core rights comprise of four groups: the right to life and the
prohibitions of slavery, torture, and non-retroactive penal measures. The prospects for a consensus reaching
beyond these few rights are not immediate. It appears to have been generally accepted that these basic rights have
an imperative character as they are recognised as non-derogable by human rights treaties at both global and
regional levels and by most legal systems. There is no juridical impossibility in the process. The legitimacy of the
process of "infiltration" of fundamental rights into the realm of international law has met with judicial recognition.
Such doctrinal developments cannot be overlooked in the approach to the issue of co-existence and co-ordination
of mechanisms of human rights protection at global and regional levels.
It is not surprising that attempts were made to upgrade other rights by giving them various quality labels, on the
belief that the sanctity of the higher right will not be violated. These higher rights could be invoked both as a moral
and a legal barrier to derogations from and violation of, human rights. The trend towards the characterisation of
certain rights as hierarchically superior may also be seen as a response to the proliferation of human rights
instruments, sometimes of poor drafting and consensual quality and uncertain legal value.
The lodging of a complaint affects the applicants original claim of being a "victim" of a violation of his rights under a
human rights treaty. There may be a case, when redress is not obtained in one human rights procedure, but the
lack of redress under one instrument will not hinder recourse to another procedure. It also appears that there can
be no adequate analogy between the operation of domestic and international remedies. The requirement of
exhaustion of local remedies before making a human rights complaint is duly entertained by international or regional
organisations appears most objectionable. There is a need, therefore, for proper conditioning between the two. All
the existing human rights instruments, both at global and regional levels, can deal with a matter referred to it only
after ascertaining that all domestic remedies have been exhausted. Generally, it takes six months for finally
accepting any complaint. This practice militates against the foundations of the operation of international
mechanisms of human rights protection.
At a substantive level, there is a common core of non-derogable fundamental rights. However, at a procedural
level, barring exceptional circumstances, there is a hierarchy between distinct mechanisms of protection which
continues to prevail.
In a world marked by cultural diversity and fragmentation into independent States with diverse socio-political-
Page 5 of 5
economic structures, we have not yet reached a stage where the consequences of merging or centralisation, or
absence of hierarchy, procedures and mechanisms of human rights protection at global and regional levels can be
properly anticipated and assessed.
The international community should make serious efforts to define the distinction between ordinary and higher
rights and the legal significance of this distinction. It should also intensify efforts to extend the list of non-derogable
rights recognised by the international community of States as a whole. In addition, the concepts of jus cogens and
public order of the international community should be allowed to develop gradually through international practice
and growing consensus. Acceptance of these concepts would go far towards deterring violation of human rights.
Lastly, the new human rights structure should eventually be secured by international acceptance of binding
provisions for the adjudication of disputes implicating jus cogens and public order of the international community.
1 Article 4(2) , "No derogations from Articles 6 , 7 , 8 (Paragraph 1 and 12), 11, 15 16 and 18 may be made under this
provision."
2 H. Fix Zamudio, "Latin American Procedures for the Protection of the Individual", Journal of International Commission
of Jurists , no. 9 (1968), pp. 60.; David Harris and Stephen Livingstone (eds.) The Inter-American System of Human
Rights (New York, Oxford University Press, 1998).
3 The Principal discussion took place during the following: Congress of African Jurists held in 1961 in Lagos, Nigeria,
Congress of French speaking African Jurists, held in 1965 in Dakar, Senegal; United Nations Seminar held in 1969 in
Cairo, Egypt; United Nations Seminar held in 1974 in Dar-es-Salaam, Tanzania; Conference of the International
Commission of Jurists, held in Dakar in 1978; Conference of the French speaking African Bar Association, held in
Dakar in 1979; and a United nations Seminar held in Monrovia, Liberia in 1979. Cf. Evely A. Ankumah, The African
Commission on Human and Peoples Rights: Practice and Procedure (Hague, 1996).
4 Theodor Meron, "On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New
Instruments", American Journal of International Law , vol. 77 (1983), pp. 589-606.
5 Maneka Gandhi v. Union of India AIR 1978 SC 597 [LNIND 1978 SC 25].
End of Document

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Manoj Sinha Human Rights

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Date and Time: 13 March 2021 15:47:00 IST

Job Number: 138820194

"Do you know the law?" the King asks her.

"Yes" she replies.

"Then why did you break it?"

Nor did I dream that thou, a mortal man,

couldst by a breathannul and override

The immutable, unwritten laws of heaven:

They were not born today nor yesterday;

They die not, and none knoweth whence they sprang.

II. DEVELOPMENT OF HUMAN RIGHTS IN INDIA

III. DEVELOPMENT OF HUMAN RIGHTS IN INTERNATIONAL LAW

VI. PROMOTION OF HUMAN RIGHTS PRIOR TO THE UNITED NATIONS

(a) The Four Freedoms

VII. PROMOTION OF HUMAN RIGHTS WITHIN THE UNITED NATIONS

VIII. THE THREE TREATIES: DRAFTING DEBATES

(b) The European Convention

(c) The American Convention

IX. NON-DEROGABLE RIGHTS AT UNIVERSAL, REGIONAL AND NATIONAL

X. PRINCIPLES RELATING TO DEROGATION

(a) Procedural Limitations

(b) Substantive Limitations

XI. NON-DEROGABLE RIGHTS UNDER THE INDIAN CONSTITUTION

XII. JUS COGENS

(b) Slavery or Slave trade

(a) Jus cogens and the International Law Commission

XIII. OBSERVATIONS ON A HIERARCHY OF NORMS

"Basic rights of the human person" create obligations ergaomnes 104

XIV. RELATION BETWEEN TREATIES AND CUSTOMARY LAW AND HUMAN

1 Cf. Maurice Cranston, What are Human Rights? (London, 1973), p. 9.

CHAPTER 2 Non-Derogable Human Rights

(a) Right to life; 1

SECTION I: RIGHT TO LIFE

(a) execution of death sentence proposed in accordance with the law;

(a) A sentence of death may only be imposed for serious crimes;

(a) in defence of any person from unlawful violence;

(a) Limitation as to the Taking of Life

(a) in defence of any person from unlawful violence;

III. AMERICAN CONVENTION ON HUMAN RIGHTS

Article 4 of the American Convention provides:

IV. AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHTS

Article 4 of the African Charter reads:

The Malawi governments response was:

Sorry we are engaged in general election, we will let you know. 41

SECTION II: RIGHT AGAINST TORTURE

of the CP Covenant provides:

II. OTHER UNITED NATIONS INSTRUMENTS DEALING WITH TORTURE

(a) Definition of the Terms "Torture", and "Degrading Treatment"

(ii) Degrading Treatment

(iii) General Issues

(iv) Prohibition Absolute

IV. AMERICAN CONVENTION ON HUMAN RIGHTS

The Right to Humane Treatment

Article 5 of the Convention provides:

V. THE INTERNATIONAL LEGAL STANDARDS

SECTION III: PROHIBITION OF SLAVERY AND SERVITUDE

that relating to "normal civic obligations" applied to sovereign States. 108

Article 4 of the European Convention provides:

1. No one shall be held in slavery or servitude.

III. AMERICAN CONVENTION ON HUMAN RIGHTS

Article 6 of the American Convention on Freedom from Slavery says as follows:

SECTION IV: FREEDOM FROM RETROACTIVE CRIMINAL OFFENCES AND

Article 15 of the CP Covenant provides: