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HUMAN RIGHTS AND INDIA

Thesis

Submitted By

RADHtt KRISHNA

In (partiatfuCfiCCmentfor the award of the degree of

Doctor of Philosophy
In
Political Science

Department of Political Science and Public Administration

SRI KRISHNADEVARAYA UNIVERSITY


ANANTAPUR - 515 055 (A.P.)

NOVEMBER-2011
DEDICATED
TO MY BELOVED

PARENTS
Smt. NARASAMMA,
Sri. OBANNA.
DECLARATION

I declare that the thesis entitled HUMAN RIGHTS AND INDIA

is a record of independent research work carried out by me under the

supervision and guidance of Prof. B.PADMANABHA REDDY, Retired

Professor of Political Science, Sri Krishnadevaraya University,

Anantapur for the award of the Degree of DOCTOR OF PHILOSOPHY

in Political Science, and this has not been previously submitted for the

award of any Degree, Diploma, Associateship or other similar title of

any other University.

ANANTAPUR,

NOVEMBER, |<3 ,2011. (RADHA KRISHNA)


Prof. B.PADMANABHA REDDY,
Research Supervisor,
[Retired Professor of Political Science,
Sri Krishnadevaraya University,
ANANTAPUR - 515 055 (A.P)].

CERTIFICATE

Certified that the thesis entitled HUMAN RIGHTS AND

INDIA is a record of independent research work carried out by

Sri. RADHA KRISHNA, Research Scholar in the Department of Political

Science and Public Administration, Sri Krishnadevaraya University,

Anantapur for the award of DOCTOR OF PHILOSOPHY in Political

Science under my supervision and this has not been previously

submitted for the award of any Diploma, Degree, Associateship or other

similar title of any other University.

ANANTAPUR, (B.PADMANABHA REDDY)

NOVEMBER, 11 , 2011.
CONTENTS
TITLES PAGE NOs

ACKNOWLEDGEMENTS Ml
LIST OF ABBREVIATIONS III-IV

CHAPTER I INTRODUCTION 1-34

CHAPTER II HUMAN RIGHTS: A HISTORICAL PERSPECTIVE 35-68

CHAPTER HI INTERNATIONAL DECLARATIONS AND 69-148


CONVENTIONS ON HUMAN RIGHTS

CHAPTER IV INDIAN CONSTITUTION AND HUMAN RIGHTS 149-179

CHAPTER V HUMAN RIGHTS AND INDIA 180-229

CHAPTER VI PROTECTIVE MECHANISMS OF HUMAN RIGHTS 230-267

CHAPTER VII SUMMARY AND CONCLUSION 268-294

BIBLIOGRAPHY 295-307
ACKNOWLEDGEMENTS

I am immensely happy to express my first and foremost

thanks and deep sense of gratitude to my Research Supervisor

Prof. B.Padmanabha Reddy, Retired Professor, of Political Science,

Sri Krishnadevaraya University, Anantapur who has been a source of

perennial inspiration to me for undertaking this research and also for his

guidance and advice throughout the period of my study.

I am indebted to Prof. P.W.Purushotham, Prof. B.V.Raghavulu,

Head and Chairman Board of Studies Department of Political Science

and Public Administration and Prof. B.Ananda Naidu, for their

encouragement and suggestions.

I express my sincere thanks to my teacher Dr. A.V. Siva Sankara

Reddy, Maharani Womens College, Bangalore without whose,

cooperation and help this work can never be a fact.

I would like to express my humble gratitude to my parents for their

stream of love and blessing through out my academic career.

I am grateful to our Principal, Prof. B.C. Sanna Chikkaiah, and

colleagues of Government First Grade College, Javanagondanahalli,

Hiriyur Taluq, Chitradurg District to their needful co-operation in

competing of my thesis.

i
I am also thankful to my friends for their help and support in my

studies.

I am also indebted to my wife Smt S.K. Champaka Rani who

sacrificed her leisure time in assisting me in completion of this work. My

regards are due to my father-in-law Mr. Krishnappa and

mother-in-law Smt. Lakshminarasamma and my brothers-in-law Mr.

Nataraj and Mr.Mallikarjuna for their constant encouragement in

completion of my task.

My regards are due to my elder brother Mr. Shankar and my

cousins Mr. Krishna Murthy, Kum. Nalina, Master Viswanatha,

Mr. Narasimha, Kum. Asha, Kum. Vidya Sree Mr. Dharanisha.Mr.

Sai Charan, and Kum. Sai Teja who has been guided and encouraged

me to complete this research work.

I am also thankful to the authorities of Sri Krishnadevaraya

University for providing me an opportunity to complete my research.

I would also like to acknowledge my deep gratitude to all those

who helped me directly and indirectly in completion of this thesis.

Last but not least I am thankful to Sri. M. Venkatesh, who typed

this thesis neatly.

(RADHA KRISHNA)

ii
LIST OF ABBREVIATIONS

ACHP African Commission on Human and Peoples' Rights/ African


Charter on Human and People's Rights
ACRWC African Charter on the Rights and Welfare of the Child
Al Amenesty International
AIR All India Reporter
AU African Union
BJP Bharatiya Janata Party
CAT Convention Against Torture
CBI Central Bureau of Investigation
CDHRI Cairo Declaration of Human Rights in Islam
CEDAW Convention on the Elimination of All Forms of Discrimination
Against Women
CMW Committee on Migrant Workers
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
ECHR European Convention on Human Rights
ECRML European Charter for Regional or Minority Languages
ECSR European Committee of Social Rights
EEC European Economic Community
ESC European Social Charter
ESCR Economic, Social, and Cultural Rights
EU European Union
FCNM Framework Convention for the Protection of National Minorities
GNP Gross National Poverty
GRETA Group of Experts on Action against Trafficking in Human Beings
IACPPT Inter-American Convention to Prevent and Punish Torture
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of

hi
Racial Discrimination
ICESCR International Covenant on Economic, Social, and Cultural Rights
ICSPCA International Convention on the Suppression and Punishment of
the Crime of Apartheid
IDAHO International Day Against Homophobia
ILO International Labour Organisation
MWC Convention on Migrant Workers and Members of Their Families
NCERT National Council of Educational Research and Training
NDA National Democratic Alliance
NGOs Non-Governmental Organisations
NHRC National Human Rights Commission
OAS Organisation of American States
OAU Organisation of African Union
OIC Organisation of Islamic Countries
OPCAT Optional Protocol to the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment
POTA Prevention of Terrorist and disruptive Prevention Act
SCIU Save the Children Union
SHRC State Human Rights Commission
SSR Sovereign Secular Republic
TADA Terrorist and Disruptive Activities
UDHR Universal Declaration of Human Rights
UNCRC United Nations Convention on the Rights of the Child
UNHCR United Nations High Commissioner for Refugees
UNICEF United Nations Childrens Fund
UNO United Nations Organisation
USSR Union of Soviet Socialist Republic

IV
Chapter-1

INTRODUCTION
Freedom is fragile and evanescent. Man has known so little of it in

his entire history. The American Civil War \A/as born of the conviction

that a nation cannot remain half slave and half free. But the world

continues to remain more than half slave and less than half free. Nearly

four-fifths of the members of the United Nations do not permit freedom

of the press. In half of the countries of the world people are incarcerated

for speaking their minds, often after trials that are no more than a sham.

Torture-mental, physical, and emotional-is regularly practiced by a third

of the world's governments, notwithstanding the Declaration Against

Torture and-Degrading Treatment issued by the United Nations in 1975.

In several states, dissenters who are inconvenient to the authorities

suddenly disappear and are never seen again. This vanishing act

continues to remain widely popular. More millions have died at the

hands of their own governments than in war. Human rights violations

have created more deaths and more human misery than have all the

weapons of mass destruction.

With day to day incredible scientific progress, the human beings

have reached a stage when the only threat to man, left to be met, is

man himself. In a zoo at Lusaka, there is a cage where the notice

reads, The world's most dangerous animal. Inside the cage there is no

animal but a mirror where you see yourself.

1
It is difficult to measure whether repression worldwide is

increasing or debreasing. But awareness of that repression has

undoubtedly increased, since the human rights movement started as a

world movement with the launching of Amnesty International in May

1961. The shifting hemlines of international atrocities are faithfully

recorded in the annual reports of that body.

No doubt, it is still a world of brutalities. But the historical

perspective would make us realize that ours is a perfecting world,

though its progress is painfully slow, sometimes by the millimeter.

There are two gleams of hope. The concept of human rights the

new gospel-has worked its way through the subsoil of human

consciousness with speed and strength, and has become one of the

great driving forces of our time. But one must be reconciled to the

inevitability of gradualness. The slow drip of Amnesty International has

begun to work. More and more people the world over realize, and

realize more clearly, that there should be increased human rights

inspections and publicizing of abuses because, as President Mitterrand

said, "Silence nourishes oppression." Secondly, there is a growing

solidarity among the nations of the world who believe in freedom. The

human rights record of a state has become the legitimate concern

of the international community. Today the human rights movement is

2
genuinely worldwide. There is, as Jerome Shestack observed, "a moral

inevitability to human rights."1

So much has been said about human rights lately that the term

defies a precise definition. Defining human rights may be both simple

and complex. Simple in the sense that one can argue that human rights

implies a universal ethic which claims that certain rights ought to be

believed and observed everywhere by everyone. They are possessed

by human beings simply as being human per se. And complex,

because when an attempt is made to list those rights, geographical

diversities, cultural variances and differences in social values make the

attempt a near impossibility to agree upon a universally accepted list of

rights.2

Any action, which would affect, distort or violate the inherent

dignity of a human being, would amount to violation of his/her human

rights. Keeping this aspect in mind one may conclude that human

rights are the basic rights of a person which are essential for the

realization of his/her personality, as an individual as well as a member

of the society in which he/she lives. They are based upon the belief

that all persons are born free and with equal dignity and natural

rights.3

Moreover, the concept of human rights is closely associated with

the worth and dignity of the individual, and accords highest respect to

3
human personality without any discrimination on grounds of caste,

religion, creed, race, colour, sex, or place of birth. It is s&lf-evident that

human rights primarily aim to protect the human dignity of an

individual. Human rights provide the necessary and vital protection to

an individual so that he/she may continue his/ her life and contribution

to the society in a dignified manner. Hence, if this be the case then the

rights which protect the individual's freedom and inherent human

dignity may thus be termed as inalienable and inviolable human rights.

India is an ancient society, but a modern State. The Indian has

largely been a tolerant society embracing and respecting the dignity of

its friends and foes alike. India has always welcomed and

accommodated foreigners from alien societies. The very fact that Indian

Culture could withstand and flourish amidst foreign ideologies, both

social and religious, speaks volumes of its eclecticism. In a way Indian

culture has emphasised some of the fundamental principles of modern

day philosophy of human rights from time past, which can be evidenced

in the declarations, made in the Rig-Veda.

No one is superior or inferior. All are brother. All should strive for

the interest of all and should progress collectively.4

It may be recalled that from time immemorial Indians have called

their culture by the name of 'human culture' (manav dharma / manav

sanskriti). No gainsaying the fact that human dignity had universal

4
appeal and Indian culture had tried to be so comprehensive as to suit

the needs of every human being, irrespective of age, sex, colour, or

caste.

But human dignity is very much associated with human wants.

The right to be human is, of course, the leitmotif of all human rights

thought and action. All the same, the human being who is the bearer

of these rights may not have the basic material needs fulfilled; no right

to use physical force is conceded to them, even in order to fulfil basic

needs; and threats to the right to be human arising from civil society are

not a part of the problematic of human rights. In these circumstances,

human rights, thought and action becomes a programschrift, a

blueprint, for a just society; but a blueprint with vacant spaces,

disallowing at the outset the preconditions for exercising the right to be

human.

It is characteristic of classical and contemporary western liberal

thought to ignore the entire problematic of basic human needs. The

whole tradition of discourse from John Stuart Mill to John Rawls

illustrates this tendency massively. Thus, Mill's famous Essay on

Liberty excluded the backward nations, women and children from the

right to liberty.5 John Rawls, at the end of a spectacularly cogent and

massive analysis in A Theory of Justice is able to say, without a

frown on his face, on page 543 of his well-acclaimed work, that the

5
lexical priority of liberty, after all, may not apply to societies where

basic wants of the individual are not fulfilled.

In his own words, "To be sure, it is not the case that when the

priority of liberty holds, all material wants are satisfied. Rather these

desires are not so compelling as to make it rational for the persons in

the original position to agree to satisfy them by accepting a less than

equal freedom. The account of the good enables the parties to work out

a hierarchy among their several interests and to note which kinds of

ends should be regulative in their rational plans of life. Until the basic

wants to individuals can be fulfilled, the relatives urgency of their

interest in liberty cannot be firmly decided in advance. It will depend on

the claims of the least favoured as seen from the constitutional and

legislative stages. But under favourable circumstances the fundamental

interest in determining our plan of life eventually assumes a prior

place."6

Now the basis for the priority of liberty is roughly as follows: as

the conditions of civilization improve, the marginal significance for our

good of further economic and social advantages diminishes relative to

the interests of liberty, which become stronger as the conditions for the

exercise of the equal freedoms are more fully realized. Beyond some

point it becomes and then remains irrational from the standpoint of the

original position to acknowledge a lesser liberty for the sake of greater

6
material means and amenities of office. The reasons for this state of

conditions are as follows. First of all, as the general level of well-being

rises (as indicated by the index of primary goods the less favoured can

expect) only the less urgent wants remain to be satisfied by further

advances, at least insofar as men's wants not largely created by

institutions and social forms. At the same time the obstacles to

the exercise of the equal liberties decline and a growing insistence

upon the right to pursue our spiritual and cultural interests asserts itself.

Increasingly it becomes more important to secure the free internal life of

the various communities of interests in which persons and groups seek

to achieve, in modes of social union consistent with equal liberty, the

ends and excellence to which they are drawn. In addition, men come to

aspire to some control over the laws and rules that regulate their

association, either by directly taking part themselves in its affairs or

indirectly through representatives with whom they are affiliated by ties

of culture and social situation.

It might seem that even though the desire for an absolute

increase in economic advantages declines men's concern for their

relative place in the distribution of wealth will persist. In fact, it is

supposed that everyone wishes a greater proportionate share; the

result could be a growing desire for material abundance all the same.

Since each strives for an end cannot be collectively attained, society

might conceivably become more and more preoccupied with raising

7
productivity and improving economic efficiency. And these objectives

' might become as dominant as to undermine the precedence of liberty.

Some have objected to the tendency to equality on precisely this

ground, that it is thought to arouse in individuals an obsession with their

relative share of social wealth. But while it is true that in a well-ordered

society there is most likely a trend to greater equality, its members take

little interest in their relative position as such is noted they are not much

affected by envy and jealousy, and for the most part they do what

seems best to them as judged by their own plan of life without being

dismayed by the greater amenities and enjoyments of others. Thus,

there are no strong psychological propensities prompting them to curtail

their liberty for the sake of greater absolute or relative economic

welfare. The desire for a higher relative place in the distribution of

material means should be sufficiently weak that the priority of liberty is

not affected.

In a well-ordered society then self-respect is secured by the

public affirmation of the status of equal citizenship for all; the

distribution of material means is left to take care of itself in accordance

with the idea of pure procedural justice. Of course doing this assumes

the requisite background institutions which narrow the range of

inequalities so that excusable envy does not arise. Now this way of

dealing with the problem of status has several noteworthy features

which may be brought out as follows. Suppose to the contrary that how

8
one is valued by others depend upon ones relative place in the

distribution of income and wealth. In this case having a higheY status

implies having more material means than a larger fraction of society.

Thus, not everyone can have the highest status, and to improve one

person's position is to lower that of someone else. Social cooperation to

increase the conditions of self-respect is impossible. The means of

status, so to speak, are fixed, and each man's gain is another's loss.

Clearly this situation is a great misfortune. Persons are set at odds with

one another in the pursuit of their self-esteem. Given the preeminence

of this primary good, the parties in the original position surely do not

want to find themselves so opposed. It would tend, for one thing, to

make the good of social union difficult if not impossible to achieve. If the

means of providing a good are indeed fixed and cannot be enlarged by

cooperation, then justice seems to require equal shares, other things

the same. But an equal division of all primary goods is irrational in view

of the possibility of bettering everyone's circumstances by accepting

certain inequalities. Thus, the best solution is to support the primary

good of self-respect as far as possible by the assignment of the basic

liberties that can indeed be made equal, defining the same status for

all. At the same time, distributive justice as frequently understood,

justice in the relative shares of material means is relegated to a

subordinate place. Thus one arrive at another reason for factoring the

social order into two parts as indicated by the principles of justice. While

9
these principles permit inequalities in return for contributions that are for

the benefit of all, the precedence of liberty entails equality in the social

bases of esteem.

It is quite possible that this idea cannot be carried through

completely. To some extent men's sense of their own worth may hinge

upon their institutional position and their income share. If, however, the

account of social envy and jealousy is sound, then with the appropriate

background arrangements, these inclinations should not be excessive,

at least not when the priority of liberty is effectively upheld. But

theoretically one can if necessary include self-respect in the primary

goods, the index of which defines expectations. Then in applications of

the difference principle, this index can allow for the effects of excusable

envy; the expectations of the less advantaged are lower the more

severe these effects. Whether some adjustment for self-respect has to

be made is best decided from the standpoint of the legislative stage

where the parties have more information about social circumstances

and the principle of political determination applies. Admittedly this

problem is an unwelcome complication.

Some may want to object to this account of the priority of liberty

that societies have other ways of affirming self-respect and of coping

with envy and other disruptive inclinations. Thus in a feudal or in a

caste system each person is believed to have his allotted station in the

10
natural order of things. His comparisons are presumably confined to

within his own estate or caste, these ranks becoming ineffect so many

non-comparing groups established independently of human control and

sanctioned by religion and theology. Men resign themselves to their

position should it ever occur to them to question it; and since all may

view themselves as assigned their vocation, everyone is held to be

equally fated and equally noble in the eyes of providence. This

conception of society solves the problem of social justice by eliminating

in thought the circumstances that gave rise to it. The basic structure is

said to be already determined, and not something for human beings to

affect. On this view, it misconceives men's place in the world to

suppose that the social order should match principles which they would

as equals consent to.

The problematic of needs is acutely disturbing for the received

models of human rights thought and action. It often gets translated into

a conflict between 'bread' and 'freedom'; freedom usually wins within

the liberal conceptions of rights, despite the awareness that without

'bread', freedom of speech and assembly, of association, of conscience

and religion, of political participation-even though symbolic adult

suffrage-may be existentially meaningless for its victims.

But the issues are not really bread and/or freedom in the abstract,

but rather who has how much of each, for how long, at what cost to

11
others, and why. Some people have both bread and freedom others

have freedom but little bread br none at all; yet others have half a loaf

(which is better than none, surely!) with or without freedom, and still

others have a precarious mix where bread is assured if certain (not all)

freedoms are bartered.7

In the Third World today, governments which are the most

successful economically are authoritarian ones and veneration for

human rights promises to be a cult of slow growth. That is because

human rights cannot exist in a cultural and economic vacuum. Their

chances of being understood-and respected-improve as the economic

and educational level of society rises. It is a noble maxim that it is better

for a man to go wrong in freedom rather than go right in chains; but it

sounds like empty rhetoric to people who live in economic chains below

the minimum subsistence level.

The categories of human rights are never closed. But people

must guard against the devaluation of human rights by proliferation. It is

good to increase the currency, but not at the cost of depreciating it. In

the verbal haze in which human beings live today, secondary concepts

have taken the place of primary ones; relative terms have pushed over

absolute ones; and the peripheral has been given the same status as

the crucial.

12
The primary idea of human rights involves rights against the

government. Modern liberalism has expanded the idea to include rights

to be satisfied by the government. Human rights should be

distinguished from human needs. Clarity of thought and a sense of

priorities would suggest that the essence of liberty which comprises

rights against the state should not be confused with claims or

entitlements which fall to be satisfied by the state. Various resolutions

and declarations of the United Nations list-as human rights-benefits like

full employment, vacations with pay, maternity leave, and free medical

care. Such broad banding enables leftist ideologues to make a

specious claim that even totalitarian States respect human rights. They

contend that while free democracies have a better record in certain

areas of human rights, totalitarian States have a superior record in

other areas. It was such depreciation of the currency of human rights

which emboldened Lenin to proclaim that the Soviets represent a higher

form of democracy and Hitler to claim to be an arch democrat; and

which enables States that practice torture and ruthless repression at

home to pay pious lip service to human rights at international forums.

However, this is not to say that economic and social rights

evolved by present-day liberalism are irrelevant or unimportant. Rights

of men are not only against the government but against the people

collectively. Humanity is one enormous extended family, with all the

obligations of family membership. One of the basic rights is the right to

13
decent living embodied in Article 25 of the Universal Declaration of

Human Rights, 1948. Paul Sieghart pointed out that the test of rights'is

not whether the prosperous, with access to the law courts, are well

protected, or whether living standards for the majority are improving,

but whether the weak are helped by the strong. "The ultimate measure

of whether a society can properly be called civilized," he concludes, is

how it treats those who are near the bottom of its human heap.8

Violations of economic needs occur from negligence, such as the

failure to save large numbers of people from famine or floods. But

mostly they occur when governments-wedded to the eighth deadly sin,

ideology-pursue economic policies which deprive the poor of

employment and education, nutrition and health care.

It has been said that a basic needs approach may be congenial

to the justification of authoritarian regimes. The provision of bread may

justify indefinite postponement of the provision of any kind of freedom.

In the absence of such freedom, even the promised bread may not be

realized by the masses; indeed, they even lose, in the process, their

power to protest at the indignity of regime-sponsored starvation. This,

indeed, is a possibility which has materialized more often than not.

The problem of human rights, in situations of mass poverty, is

thus one of redistribution, access and needs. In other words, it is a

problem of development; a process of planned social change through

14
continuing exercises of public power. As there is no assurance that

public power will always, or even in most bases, be exercised in favour

of the deprived and dispossessed, an important conception of

development itself is accountability by the wielders of public power to

the people affected by it and people at large. Accountability is the

medium through which one can strike and maintain a balance between

the ruler and the ruled.

Meaning and Definition

Human beings constitute the basic elements of all organized

societies within the state and the international community. In the

present organization of the society, the state has the fundamental task

to create conditions of life affording adequate protection of the individual

and permitting reasonable opportunities for the full development of the

individuals personality. In other words, the realization of human rights is

and will remain the first and final goal and purpose of the state for all

times to come.

Both nationally and internationally and almost all over the world,

human rights have now become a live issue. The foundational norm

governing the concept of human rights is that of the respect for human

personality and its absolute worth, regardless of colour, race, sex and

religion or other considerations. Human rights are widely considered to

be those fundamental moral rights of the person that are necessary for

a life with human dignity. These rights are essential for the adequate

15
development of human personality and for human happiness. The aims

of a universal system of human rights is to revise and restore human

dignity in all societies, where political and economic oppression exists

and to relieve human dignity in all societies, where political and

economic oppression exists and to relieve human misery, to enrich and

refine human life in all parts of the world. Without getting involved

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 virtue of having

been born a human being. With the individual as their point of reference

human rights seek to guarantee to the individual the minimum

necessary Conditions for pursuing a distinctively human life. According

to Francis Fukuyama, all persons have a drive to be respected, and that

the ultimate form of personal respect finds satisfaction in the idea of

human rights. He argues that the process of history drives persons

towards acknowledgement of human dignity. According to him, it is the

liberal democratic world that provides the ideal conditions to safeguard

human rights.10

Human rights are the rights that everyone has by virtue of his/her

being human. They are grounded in our appeal to human nature. David

Selby says, Human rights pertain to all persons and are posed by

everybody in the world because they are human beings, they are not

earned, bought or inherited, nor are they created by any contractural

16
undertaking.11 According to A.A.Said, Human rights are concerned

with the dignity of the individual-thfe level of self-esteem that secures

personal identity and promotes human community.12 Plano and Olton

have stated that human rights are those rights, which are considered to

be absolutely essential for the survival, existence and personality

development of human beings. According to Scot Davidson, the

concept of human rights is closely connected with the protection of

individuals from the exercise of state, government or authority in certain

areas of their lives; it is also directed towards the creation of social

conditions by the state in which individuals are to develop their fullest

potential. In the words of M. Freeden, human right is a conceptual

device, expressed in linguistic form that assigns priority to certain

human or social attributes regarded as essential to the adequate

functioning of a human being that is intended to serve as a protective

capsule for those attributes; and those appeals for a deliberate action to

ensure such a protection.

Human rights are an old issue in many ways. Most fundamental, it

is one way to deal with a persons and persons relation to public

authority and indeed to the rest of the society. If one has a human right,

one is entitled to make a fundamental claim that an authority, or some

other part of the society, do or refrain from doing something that affects

significantly ones human dignity.

17
Throughout history, every society has sought to define the

concept 6f human dignity, in the sense of seeking to ascertain the

qualities and inherent value of each person and his relationship to

society. These questions have been answered in various ways, whether

on the basis of social obligations and duties owed by individuals. In

terms of a social hierarchy based on birth and sex, through submission

to will of royal or divine forces, or on the basis of the overriding

importance attached to the maintenance of social harmony. Invariably

which has reflected the ethical, religious or political bases by which

each society has premised its answer to these questions to a large

extent in the values and the systems that society has in turn been

governed.13

Human rights are means to a greater social end, and it is the legal

system that tells us at any given point in time, which rights are

considered most fundamental in society. Even if human rights are

thought to be inalienable, a moral attribute of persons that the state

cannot contravene the rights still have to be identified. It means it has

to be constructed and codified in the legal system. Basic to human

rights is the concept of non-discrimination. But, if one look into the

pages of the history of humanity, this basic principle of non

discrimination between human beings or of the universality of human

rights has not always been so self-evident. There has been a perennial

conflict between the elites perception of their individual liberties and the

18
fundamental rights of the common people. Also, there has always

existed and continues to exist a wide gap between theory and practice,

between abstract principles and their application and implementation.14

In this perspective, the discussion of human rights becomes

fused with a discussion of developmental processes. But what is

development? To sleep, to dream, perchance to develop; here is the

rub. What is development? The many conceptions of development

floating around in massive literature are themselves the means of

exploitation. Undoubtedly, in most countries the GNP has increased;

but Gross National Poverty (the other GNP) has also simultaneously

increased. That is why one is more comfortable with the expression

impoverishing societies. Undoubtedly, the reasons for all, these are far

too complex to permit any whipping boy, scapegoat explanations.

Whatever it may be made to mean, Development must at least

mean this: people will be given the right to be and remain human. Total

and continuing destitution and impoverishment exposes people to a

loss of their humanity. In no society that takes human rights seriously

should there be allowed a state of affairs where human beings become

sub-human that is, when they perforce have to surrender even those

sonorously recited inalienable rights of man, where people sell their

wives, children or themselves (in bonded labour) in order to survive, or

surrender their life. The expression human rights presupposes a level at

19
which biological entities are bestowed with the dignity of being called

human. The bearers of human rights must have an implicit right to be

and remain human, allowing them some autonomy of choice in planning

survival.15

Basis of Human Rights

Views of the Jurists on the question as to basis of human rights

are divergent which have led to the emergence of different theories.

Prominent amongst them are as follows:

Natural Law Theory

Ancient thinkers and philosophers were of the view that human

rights have been derived from the principle of eternal law as revealed in

natural law which is also something called Divine law or Law reason,

Unwritten Law, Universal or Common Law, eternal law or Moral Law.

The source of natural law is either God or reason. The Greeks regarded

natural law as being closely related both to justice and ethics. It was

therefore conceived by the Greeks as a body of imperative rules

imposed upon mankind by nature, the personified universe. Natural law

notion was reflected in the writings of Aristotle, Cicero, Hugo Grotius

and other philosophers. Aristotle, the Greek philosopher stated that it is

natural justice that binds us all even those who have no association or

covenant with each other. Stoics popularized the maxim live according

to nature. Cicero was of the view that true law is reason in agreement

20
with nature, which is universally applicable, everlasting, and

unchanging. According to him natural law is universal in nature and

therefore its application is not limited to any class or category of

persons. Later, Christian Fathers extended the authority of natural law

by asserting to it a divine origin. They have cited St. Paul as approving

their doctrine. Aquinas, the Christian theologian, advocated that natural

law is derived from God. According to him eternal law governs the

world through the will of God and according to his wisdom. Thomasius

also stated that natural law is a divine law, written in the hearts of all

men.16

Natural law theory was practiced by Romans in the formation of

body of legal rules for the administration of justice. The Roman view

was that natural law is the immutable and universal part of civil law.

Roman classical writers used the Stoic theory as an ornament for their

texts. Thus, the origins of the concept of human rights are usually

agreed to be found in the Greco-Roman natural law doctrines of

Stoicism. The theory of natural law has therefore a religious base.

The theory of natural rights clearly derives from natural law.

Natural right is an interest recognized and protected by a rule of natural

justice. It was a body a principles superior to positive law. They arose

from the very nature of man. The concept of natural rights found place

in many documents of human rights such as the Bill of Rights (England)

21
of 1689, Declaration of Rights (Virginia) of 1779 and the Declaration of

Independence (U.S.A) of 1776. The Virginian Declaration of Rights

stated that, all men are by nature equally free and independent and

have certain inherent natural rights of which when they enter a society,

they cannot by any compact derive or divest their posterity.

Natural law as the basis of human right has been criticized on a

number of grounds. Firstly, all rights are legal rights and are the

creations of law and since natural rights are the creations of natural law;

they are a metaphor. Secondly, natural law theory regards that what is

natural is innate, universal or immutable. But there have been

conflicting interpretations as to what is natural. Thus, the meaning of the

law of nature itself is not precisely clear. Different jurists have given

different meaning to it such as reason, religious or moral and therefore it

is such a hazy concept that, if sought to be enforced, it can result in

confusion. However, it has to be admitted that the law of nature has

greatly influenced the growth of human rights law. There cannot be any

doubt if it is said that human rights law has developed in the initial stage

on the basis that its rules derive from the law of nature.17

Social Utility Theory

Another theory which has been advocated as to the basis of

human rights is the social utility. The theory maintains that what

conforms to the utility (or the interests) of an individual represents the

22
total sum of his happiness and that what conforms to the utility (or the

interests) of a community represents the total sum of happiness of the

individuals composing that community. Under the social utility theory of

human rights, those rights are considered genuine human rights which

tend to increase the total happiness of human beings. Thus, human

rights are those which constitute permanent and general conditions of

human happiness.

The above theory does not appear to be sound as it generates

the belief that the happiness of the individuals composing a community

is necessarily the interest of that community, but it is not true. It is a

delusion to think that there is a necessary identity between the

individual happiness and the happiness of the community. Moreover,

social utility may even be an outright conflict, at times, with human

rights.

It is to be noted that the basis of human rights lies in the fact that

an individual is a human being. Well being and freedom in all aspects

are important aspects of the individuals existence because he is a

rational being. These aspects are essential to an individual to live his

life in a dignified manner and also because they bring happiness to him.

Consequently, happiness and freedom constitute the foundation for

human rights.18

23
Classification of Human Rights

Human rights can be broadly classified into two different

perspectives: Firstly, from the perspective of various aspects of human

life - social, economic, political, moral and civil; and secondly, from the

perspective of the methods of securing them. On the second basis,

they are constitutional are legal. These classifications can be discussed

under the following heads:

1. Natural Rights

Natural rights are those rights which are considered to be

inherent and integral to human nature. In fact, every individual by

nature is given an individual property of his own which cannot be taken

away by any authority. Such rights include intellectual rights, rights of

the mind and also rights of acting as an individual for his own comfort

and happiness, provided they are not injurious to the natural rights of

others.19

2. Moral Rights

These rights are based on the general principles of fairness and

justice. These are simply aspirations and ideals of the people who claim

for it. Sometimes, people justify these rights on the ground of the role

they perform or the position they occupy in society. For example, the

mother of a family might complain that she has the right to be consulted

about what is going on in her family. In this case, she is applying the

24
principle that parents are entitled to be consulted when family decisions

affect the members. So it is the moral duty of other members to do the


20
same.

3. Fundamental Rights

There are certain rights which are more important and basic than

the others. For example, right to life is the most basic of all rights upon

which the enjoyment of other rights depends. These rights can never

be restricted or taken away by any authority. That is why, every society

has a fundamental duty to protect at all times. Among other basic rights

are the right to be recognized as a person before the law, the right to

equal protection under law, and freedom from illegal arrest or

detention.21

4. Legal Rights

Legal rights are otherwise known as positive rights. These rights

are laid down in law. They are also guaranteed and protected by the law

of the State. Thus, legal rights are uniform open to all irrespective of

the caste, colour, race or culture.

5. Civil and Political Rights

Rights that are granted by government or civil society are called

civil and political rights. These rights provide the basis for the fulfillment

of elementary conditions of the social life. Without them, civilized life is

not possible and they are, therefore, considered very essential for the

25
free and progressive life of man. Civil and political rights, however,

include the right to freedom of speech, of assembly, the right to move

freely, to hold property and practise trade or profession, and the right to

take part in the government of ones country. Part III of the Constitution

of India has resemblances with these rights.22

6. Economic, Social and Cultural Rights

These are entitlements of the individual vis-a-vis the state, in

order to eradicate social inequality, economic imbalances and to limit

disadvantages caused by nature, age and so on. These rights,

however, are bestowed by the State. The State is not bound to meet

these entitlements all at once. It depends upon the economic resources

of the society. Most of the socialist states recognize these rights as

fundamental rights of the people. Right to equality, right to work, right to

have family, right to privacy, right to information, right to public

assistance during old age and sickness, right to health care, right to

special care during childhood and during motherhood are some of the

examples of these rights. Such rights have been incorporated in Part IV

of the Constitution of India as Directive Principles of State Policy.23

Since the adoption of the Universal Declaration, there have been

many controversies regarding the question as to which rights are more

important and which are less. The representatives of some states had

26
been asserting that civil and political rights are more important than

economic, social and cultural rights.

The Vienna Declaration, issued after a Conference in which

representatives of 171 countries and hundreds of non-governmental

organizations participated, unambiguously affirmed that all human rights

are universal, indivisible, inter-dependent and inter-related. It has also

been affirmed that democracy is the sole guarantor of individual rights -

civil, political, economic, social, cultural and collective rights within

states and within the community of States.24

Human Rights in India

It is generally claimed by the Western scholars that the system

of international law is a product of European civilization. In reality the

roots of international law can be traced far back in ancient India, as in

most ancient civilizations. The object of this part of the study is to

establish the fact that the ancient Indian had a 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.

The Indian culture has been the product of the assimilation of diverse

cultures and religions that came into contact in the enormous Indian

sub-continent over time. The spirit of unity and universality in our

tradition extends to the whole world. It is said in the Rig Veda: There

27
is one race; of human beings and the validity of different traditions, a

religion, indeed of paths to Truth, has always been respected. Our

guiding principle has been Sarva Dharma Samanan'.

According to a scholar, "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 one's family, to other

fellowmen, to the society and the world at large.

The Buddhist doctrine of non-violence in deed is a humanitarian

doctrine par excellence, dating back to the third century B.C. Both

Buddhism and Jainism emphasized 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 in meeting internal threats as

well as external aggression to man's liberty. Gautama Buddha

prescribes that the special responsibility of the King is to protect all

beings, to award just punishment and that he has 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 attached from it.

Vasistha, too states that the wise say that protection is a life long Sautra

in which the king has to give up fear and softness of heart. In ancient

28
India there were elaborate provisions for social services such as

education, public health, medical attendance, insurance against

unemployment, old age, widowhood, orphanage and the 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 disabled, the old and the widowed and finds employment for those

who were unemployed.

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". The

King is also called upon to support helpless and aged people, the blind,

the Crippled, lunatic, widows, orphans, those suffering from diseases

and calamities and pregnant women by giving them medicines, lodging,

food and clothing according to their requirements.25

The great tradition of India, which enjoins peace, friendship,

equality, respect for human life and dignity, provided the 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

29
persuasions, from towns, cities, villages. Our independence Movement

represented a struggle for securing the fundamental human rights for

people of India.

The development of human rights was 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 recognized by several Indian scholars.

Statement of the problem

Human rights perhaps are one among the most powerful

concepts of the twentieth century. It has particularly acquired a central

place in the post-world war II period, ever since the adoption of the

Universal Declaration of Human Rights by the United Nations in 1948.

While the general legitimacy and popularity of the human rights

discourse has grown consistently, it has also opened up simultaneously

various grey areas of ambiguity.

30
Objectives

The study Human Rights* and India keeps the following

objectives:

1. To discuss the meaning definition and implications of the concept of

Human Rights.

2. To trace the origin and development of Human Rights over the ages.

3. To analyze various international covenants, conventions and

conferences of Human Rights.

4. To examine the development of Human Rights in India and to

examine the constitution and institutional safeguards.

5. To assess the role of various national and international mechanisms

which are functioning for the protection of Human Rights

6. To assess the importance of Human Rights in the present day of

world.

Methodology

The source material has been collected from both primary and

secondary sources. The method followed is historical and descriptive.

The material has been collected from the Libraries of Sri

Krishnadevaraya University, Anantapur, Sri Venkateswara University,

Tirupati, Osmania University, Hyderabad, Bangalore University,

Bangalore, National Law School of India University, Nagarbhavi,

Bangalore, Institute of Social and Economic Change, Nagarabavi,

Bangalore and the Karnataka University, Dharwad, Mysore University,

Mysore and Karnataka State Human Rights Council, Bangalore. The

material collected has been thoroughly analysed and utilized

purposefully.

31
Chapterisation

The first Chapter - Introduction - deals with'the concept of

human rights and also contains theoretical frame work of the study.

The second Chapter - Human Rights: A Historical Perspective-

traces the evolution and historical development of Human Rights. The

third Chapter - International Declarations and Conventions on

Human Rights - elucidates various International Covenants,

International Conferences and their importance. The fourth chapter-

Indian Constitution and Human Rights - presents various

constitutional safeguards for human rights. The fifth chapter - Human

Rights and India - refers to the origin and development of Human

Rights in India. The sixth chapter- Protective Mechanisms of Human

Rights - discusses various national and international mechanisms

which are functioning for the protection of human rights and their

dynamisms. Seventh Chapter - Summary and Conclusion

summarizes the research study.

32
REFERENCES

1. A. Paikhiwala, Nani, We The Nation, The Lost Decades UBSPD

New Delhi; 1994, p. 23.

2. Attar Chand, Politics of Human Rights and Civil Liberties - A

Global Survey, UDH Publishers, Delhi, 1985, p.22.

3. Cranston, Maurice, What are Human Rights? Longmans, London,

1973.p.21.

4. Kapil Slbal Law, the constitution, weaker sections, Women,

Minorities, Scheduled Castes and their Development in Mohammad

Shabiir (Ed) Quest for Human Rights, Rawat Publications New

Delhi, 2005, p.7.

5. Ibid, p.16.

6. John Rawls, A Theory of Justice O.U.P., London 1972, p.36.

7. Baxi, Upendra, Matorino's Helinet Har-Anand Publications, New

Delhi, 1994, p.29.

8. A. Paikhiwala, Nani, op. Cit., p. 25.

9. Baxi, Upendra, Inhuman Wrongs and Human Rights Har-Anand

Publications, New Delhi 1994,p.3..

10. Nichiketa Singh, Human Rights:Various Meanings in Tapan

Biswal Human Rights, Gender and Environment, Viva Books,

New Delhi, 2006, p.43,

11. Ibid p.44.

12. Ibid, p.45.

33
13. Human Rights Manual, Department of Foreign Affairs and Trade,

Canberra : Australian Government publication'Service, 1993, p.10.

14. Jai Narain Sharma, The Concept of Human Rights in Suresh

Kumar Soni (ed), Human Rights : Cocept, Issues, Emerging

Problems, Regal Publications, New Delhi,2005, p.11.

15. Ibid, p. 12.

16. S. Prakash Sinha, Human Rights Philosophically, Indian

Journal of International Law, Vol.18, 1978, p.153.

17. Ibid, p.155.

18. Ibid, p.156

19. C.Naseema, Human Rights Education: New Trends and

Innovations, Deep and Deep Publications, New Delhi, 2001, p.11.

20. Ibid.p.12.

21. Ibid.p.16

22. Ibid, p.7.

23. Ibid, pp.15-16.

24. Suptadas, Arjun Dev and Indira Arjun Dev, Human Rights: A

Source Book, NCERT Publications, 1996, pp.2-3

25. Dhananjay Vasudeo Dwivedi, Thoughts for Human Rights in Vedic

Tradition, The Indian Journal of Political Science, Vol.LXX, No.4,

October-December 2009, pp.1021-1022.

34
Chapter- 2

HUMAN RIGHTS: A
HICTHDir AT l
JlaJL^ Jl UlvlL/AL PFDQPFrTTVl?
H/lvijr A1V JDj
Chapter- 3

INTERNATIONAL DECLARATIONS
AND CONVENTIONS ON
HUMAN RIGHTS
International human rights instruments can be classified into two

categories: declarations, adopted by bodies such as the United Nations

General Assembly, which are not legally binding although they may be

politically so; and conventions, which are legally binding instruments

concluded under international law. International treaties and even

declarations can, over time, obtain the status of customary international

law.

International human rights instruments can be divided further into

global instruments, to which any state in the world can be a party, and

regional instruments, which are restricted to states in a particular region

of the world.

Most conventions establish mechanisms to oversee their

implementation. In some cases these mechanisms have relatively little

power, and are often ignored by member states; in other cases these

mechanisms have great political and legal authority, and their decisions

are almost always implemented. Examples of the first case include the

UN treaty committees, while the best exemplar of the second case is

the European Court of Human Rights.

Mechanisms also vary as to the degree of individual access to

them. Under some conventions-e.g. the European Convention on

Human Rights (as it currently exists)- individuals or states are permitted,

subject to certain conditions, to take individual cases to the enforcement

69
mechanisms; under most, however (e.g. the UN conventions), individual

access is contingent on the acceptance of that right by the relevant

state party, either by a declaration at the time of ratification or

accession, or through ratification of or accession to an optional protocol

to the convention. This is part of the evolution of international law over

the last several decades. It has moved from a body of laws governing

states to recognizing the importance of individuals and their rights within


the international legal framework.1

The Universal Declaration of Human Rights, the International

Covenant on Civil and Political Rights, and the International Covenant

on Economic, Social and Cultural Rights are sometimes referred to as

the International Bill of Rights. The international human rights

instruments can be broadly divided in to declarations and conventions.

Besides there are regional conventions which have bearing on human

rights of respective regions.

International Declarations

> Declaration of the Rights of the Child 1923

> Universal Declaration of Human Rights (UN, 1948)

> American Declaration of the Rights and Duties of Man Organisation

of American States (OAS, 1948)

> Cairo Declaration of Human Rights in Islam (OIC.1990)

> Declaration on the Rights of Indigenous Peoples (UN, 2007)

> UN Declaration on Sexual Orientation and Gender Identity (UN,

2008).

70
International Conventions

> International Covenant on Civil and Political Rights (ICCPR)

> International Convention on the Suppression and Punishment of the

Crime of Apartheid (ICSPCA)

> International Covenant on Economic, Social, and Cultural Rights

(ICESCR)

> Convention Relating to the Status of Refugees and Protocol Relating

to the Status of Refugees

> Convention on the Rights of the Child (CRC)

> Convention Against Torture (CAT)

> Convention on the Elimination of All Forms of Racial Discrimination

(ICERD)

> Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW)

> International Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families (MWC)

> Convention on the Prevention and Punishment of the Crime of

Genocide

> Convention on the Rights of Persons with Disabilities (CRPD)

> International Convention for the Protection of All Persons from

Enforced Disappearance

> Indigenous and Tribal Peoples Convention, 1989 (ILO 169)

71
Regional Conventions: Africa

> African Charter on Human and Peoples' Rights

> African Charter on the Rights and Welfare of the Child

> Maputo Protocol

Regional Conventions: America

> American Convention on Human Rights

> Inter-American Convention to Prevent and Punish Torture

> Inter-American Convention on Forced Disappearance of Persons

> Inter-American Convention on the Prevention, Punishment, and

Eradication of Violence against Women

> Inter-American Convention on the Elimination of All Forms of

Discrimination against Persons with Disabilities

Regional Conventions: Europe

> Charter of Fundamental Rights of the European Union

> Convention on Action against Trafficking in Human Beings

> European Charter for Regional or Minority Languages (ECRML)

> European Convention on Human Rights (ECHR)

> European Convention for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment (CPT)

> European Social Charter (ESC), and Revised Social Charter

> Framework Convention for the Protection of National Minorities

(FCNM)

72
Declaration of the Rights of the Child

The Declaration of the Rights of the Child is the name given to a

series of related childrens rights proclamations. The first was drafted by

Eglantyne Jebb and adopted by the International Save the Children

Union, Geneva, on 23 February 1923 and endorsed by the League of

Nations General Assembly on 26 November 1924 as the World Child

Welfare Charter.

The original document, in the archives of the city of Geneva,

carries the signatures of various international delegates, including Jebb,

Janusz Korczak, and Gustave Ador, a former President of the Swiss

Confederation.

The International Save the Children Union (SCIU) merged into the

International Union of Child Welfare by 1946, and this group pressed

the newly formed United Nations to continue to work for war-scarred

children and for adoption of the World Child Welfare Charter.

On 20 November 1959 the United Nations General Assembly

adopted a much expanded version as its own Declaration of the Rights

of the Child, with ten principles in place of the original five. This date

has been adopted as the Universal Children's Day. The initial 1923

document consisted of the following stipulations:2

1. The child must be given the means requisite for its normal

development, both materially and spiritually.

73
2. The child that is hungry must be fed, the child that is sick must be

nursed, the child that is backward must be helped, the delinquent

child must be reclaimed, and the orphan and the waif must be

sheltered and succored.

3. The child must be the first to receive relief in times of distress.

4. The child must be put in a position to earn a livelihood, and must

be protected against every form of exploitation.

5. The child must be brought up in the consciousness that its talents

must be devoted to the service of its fellow men.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is a

declaration adopted by the United Nations General Assembly on 10

December 1948 at the Palais de Chaillot in Paris. The Declaration has

been translated into at least 375 languages and dialects. The

Declaration arose directly from the experience of the Second World War

and represents the first global expression of rights to which all human

beings are entitled. It consists of 30 articles which have been elaborated

in subsequent international treaties, regional human rights instruments,

national constitutions and laws. The International Bill of Human Rights

consists of the Universal Declaration of Human Rights, the International

Covenant on Economic, Social and Cultural Rights, and the

International Covenant on Civil and Political Rights and its two Optional

74
Protocols. In 1966 the General Assembly adopted the two detailed

Covenants, which complete the international Bill of Human Rights.3

European philosophers of the Age of Enlightenment developed

theories of natural law that influenced the adoption of documents such

as the Bill of Rights of England, the Bill of Rights in the United States,

and the Declaration of the Rights of Man and of the Citizen in France.

National and International pressure for an international bill of

rights had been building throughout World War II. In his 1941 State of

the Union address US president Franklin Roosevelt called for the

protection of what he termed the essential Four Freedoms: freedom of

speech, freedom of conscience, freedom from fear and freedom from

want, as its basic war aims. This has been seen as part of a movement

of the 1940s that sought to make human rights part of the conditions for

peace at the end of the war. The United Nations Charter reaffirmed faith

in fundamental human rights, and dignity and worth of the human

person and committed all member states to promote universal respect

for, and observance of, human rights and fundamental freedoms for all

without distinction as to race, sex, language or religion.

When the atrocities committed by Nazi Germany became public

knowledge around the world after World War II, the consensus within

the world community was that the United Nations Charter did not

sufficiently define the rights it referenced. A universal declaration that

75
specified the rights of individuals was necessary to give effect to the

Charter's provisions on human rights.

Adoption of Universal Declaration of Human Rights

The Universal Declaration was adopted by the General Assembly

on 10 December 1948 by a vote of 48 in favour, 0 against, with 8

abstentions (Byelorussian Social Secular Republic , Czechoslovakia,

Poland, Ukrainian SSR, USSR, as well as Yugoslavia, South Africa and

Saudi Arabia).

Structure of Universal Declaration of Human Rights

The underlying structure of the Universal Declaration was

introduced in its second draft which was prepared by Rene Cassin.

Cassin worked from a first draft prepared by John Peters Humphrey.

The structure was influenced by the Code Napoleon, including a

preamble and introductory general principles. Cassin compared the

Declaration to the portico of a Greek temple, with a foundation, steps,

four columns and a pediment. Articles 1 and 2 are the foundation

blocks, with their principles of dignity, liberty, equality and brotherhood.

The seven paragraphs of the preamble, setting out the reasons for the

Declaration, are represented by the steps. The main body of the

Declaration forms the four columns. The first column (Articles 3-11)

constitutes rights of the individual, such as the right to life and the

prohibition of slavery. The second column (Articles 12-17) constitutes

76
the rights of the individual in civil and political society. The third column

(Articles 18-21) is concerned with spiritual, public and political freedoms

such as freedom of religion and freedom of association. The fourth

column (Articles 22-27) sets out social, economic and cultural rights. In

Cassin's model, the last three articles of the Declaration provide the

pediment which binds the structure together. These articles are

concerned with the duty of the individual to society and the prohibition of

use of rights in contravention of the purposes of the United Nations.

With regard to the Communist block's abstentions, the 9 December

Velodrome d'Hiver meeting of 20,000 Parisiens at the invitation of World

Citizen Garry Davis and his Conseil de Solidarity who had interrupted a

General Assembly session on 22 November to call for a world

government, provoked its abstention rather than voting against the

human rights document. Eleanor Roosevelt in her column My Day wrote

on 15 December that Garry Davis, the young man who in Paris as a

citizen of the world...has succeeded in getting the backing of a few

intellectuals and even has received a cablegram from Albert Einstein

telling him, from Professor Einstein's point of view, that the United

Nations has not yet achieved peace. The United Nations, of course, is

not set up to achieve peace. That the governments is supposed to do

themselves. But it is expected to help preserve peace, and it is doing

more effectively day by day. During a plenary session in the General

Assembly, this young man tried to make a speech from the balcony on

77
the subject of how incompetent the United Nations is to deal with the

questions before it. How much better it would be if Mr. Davis would set

up his own governmental organisation and start then and there a

worldwide international government. All who would join him would learn

that they had no nationality and, therefore, not being bothered by any

special interest in any one country, everyone would develop...a

completely cooperative feeling among all peoples and a willingness to

accept any laws passes by this super government.4

Commemoration: International Human Rights Day

The adoption of the Universal Declaration is a significant

international commemoration marked each year on 10 December and is

known as Human Rights Day or International Human Rights Day. The

commemoration is observed by individuals, community and religious

groups, human rights organisations, parliaments, governments and the

United Nations. Decadal commemorations are often accompanied by

campaigns to promote awareness of the Declaration and human rights.

2008 marked the 60th anniversary of the Declaration and was

accompanied by year long activities around the theme Dignity and

Justice for All.5

Significance of Universal Declaration of Human Rights

In the preamble, governments commit themselves and their

peoples to measures to secure the universal and effective recognition

78
and observance of the human rights set out in the Declaration. Eleanor

Roosevelt supported the adoption the UDHR as a declaration, rather

than as a treaty, because she believed that it would have the same kind

of influence on global society as the United States Declaration of

Independence had within the United States. In this she proved to be

correct. Even though not formally legally binding, the Declaration has

been adopted in or influenced most national constitutions since 1948. It

also serves as the foundation for a growing number of international

treaties and national laws and international, regional, national and sub

national institutions protecting and promoting human rights.

Legal effect of Universal Declaration of Human Rights

While not a treaty itself, the Declaration was explicitly adopted for

the purpose of defining the meaning of the words fundamental freedoms

and human rights appearing in the United Nations Charter, which is

binding on all member states.6 For this reason, the Universal

Declaration is a fundamental constitutive document of the United

Nations. Many international lawyers, in addition, believe that the

Declaration forms part of customary international law and is a powerful

tool in applying diplomatic and moral pressure to governments that

violate any of its articles. The 1968 United Nations International

Conference on Human Rights advised that it constitutes an obligation

for the members of the international community to all persons. The

declaration has served as the foundation for two binding UN human

79
rights covenants, the International Covenant on Civil and Political Rights

and the International Covenant on Economic, Social and Cultural Rights

and the principles of the Declaration are elaborated in international

treaties such as the International Convention on the Elimination of All

Forms of Racial Discrimination, the International Convention on the

Elimination of Discrimination Against Women, the United Nations

Convention on the Rights of the Child, the United Nations Convention

Against Torture and many more. The Declaration continues to be widely

cited by governments, academics, advocates and constitutional courts

and individual human beings who appeal to its principles for the

protection of their recognised human rights.7

American Declaration of the Rights and Duties of Man

The American Declaration of the Rights and Duties of Man was

the world's first international human rights instrument of a general

nature, predating the Universal Declaration of Human Rights by less

than a year.

The Declaration was adopted by the nations of the Americas at

the Ninth International Conference of American States in Bogota,

Colombia, in April 1948, the same meeting that adopted the Charter of

the Organization of American States and thereby created the OAS.

Chapter one of the Declaration sets forth a catalogue of civil and

political rights to be enjoyed by the citizens of the signatory nations,

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together with additional economic, social, and cultural rights due to

them. As a corollary, its second chapter contains a list of corresponding

duties.

Although strictly speaking a declaration is not a legally binding

treaty, the jurisprudence of both the Inter-American Court of Human

Rights and the Inter-American Commission on Human Rights holds it to

be a source of binding international obligations for the OAS's member

states. While largely superseded in the current practice of the inter-

American human rights system by the more elaborate provisions of the

American Convention on Human Rights (in force since 18 July 1978),

the terms of the Declaration are still enforced with respect to those

states that have not ratified the Convention, such as Cuba and the

United States.8

The American peoples have acknowledged the dignity of the

individual, and their national constitutions recognize that juridical and

political institutions, which regulate life in human society, have as their

principal aim the protection of the essential rights of man and the

creation of circumstances that will permit him to achieve spiritual and

material progress and attain happiness. The American States have on

repeated occasions recognized that the essential rights of man are not

derived from the fact that he is a national of a certain state, but are

based upon attributes of his human personality. The international

81
protection of the rights of man should be the principal guide of an

evolving American law. The affirmation of essential human rights by the

American States together with the guarantees given by the internal

regimes of the states establish the initial system of protection

considered by the American States as being suited to the present social

and juridical conditions, not without a recognition on their part that they

should increasingly strengthen that system in the international field as

conditions become more favorable.

Cairo Declaration on Human Rights in Islam

The Cairo Declaration of Human Rights in Islam (CDHRI) is a

declaration of the member states of the Organisation of the Islamic

Conference adopted in Cairo in 1990, which provides an overview on

the Islamic perspective on human rights, and affirms Islamic Shari'ah as

its sole source. CDHRI declares its purpose to be general guidance for

Member States [of the OIC] in the Field of human rights. This

declaration is usually seen as an Islamic response to the post-World

War II United Nations Universal Declaration of Human Rights (UDHR)

of 1948.

Background

Predominantly Muslim countries, such as Sudan, Iran, and Saudi

Arabia, frequently criticized the Universal Declaration of Human Rights

for its perceived failure to take into account the cultural and religious

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context of non-Western countries. The CDHRI was adopted on August

5, 1990 by 45 foreign ministers of the Organisation of the Islamic

Conference to serve as a guidance for the member states in the matters

of human rights.

The Declaration starts by forbidding any discrimination on the

basis of race, colour, language, belief, sex, religion, political affiliation,

social status or other considerations. It continues on to proclaim the

sanctity of life, and declares the preservation of human life as a duty

prescribed by the Shariath. In addition the CDHRI guarantees non

belligerents such as old men, women and children, wounded and the

sick and prisoners of war, the right to be fed, sheltered and access to

safety and medical treatment in times of war.10

The CDHRI gives men and women the right to marriage

regardless of their race, colour or nationality, but not religion. In addition

women are given equal human dignity, own rights to enjoy, duties to

perform, own civil entity, financial independence, and the right to retain

her name and lineage, though not equal rights in general. The

Declaration makes the husband responsible for the social and financial

protection of the family. The Declaration gives both parents the rights

over their children, and makes it incumbent upon both of them to protect

the child, before and after birth. The Declaration also entitles every

family the right to privacy. It also forbids the demolition, confiscation and

83
eviction of any family from their residence. Furthermore, should the

family get separated in times of war; it is the responsibility of the State

to arrange visits or reunions of families.

Article 10 of the Declaration states: Islam is the religion of

unspoiled nature. It is prohibited to exercise any form of compulsion on

man or to exploit his poverty or ignorance in order to convert him to

another religion or to atheism.11

The Declaration protects each individual from arbitrary arrest,

torture, maltreatment and/or indignity. Furthermore, no individual is to

be used for medical or scientific experiments. It also prohibits the taking

of hostages of any individual for any purpose whatsoever. Moreover,

the CDHRI guarantees the presumption of innocence; guilt is only to be

proven through a trial in which he [the defendant] shall be given all the

guarantees of defence. The Declaration also forbids the promulgation of

emergency laws that would provide executive authority for such actions.

Article 19 stipulates that there are no other crimes or punishments than

those mentioned in the Sharia, which include corporal punishment

(whippings, amputations) and capital punishment. The right to hold

public office can only be exercised in accordance with the Sharia, which

forbids Muslims to submit to the rule of non-Muslims.

The Declaration also emphasizes the full right to freedom and

self-determination, and its opposition to enslavement, oppression,

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exploitation and colonialism. The CDHRI declares the rule of law,

establishing equality and justice for all. The CDHRI also guarantees all

individuals the right to participate, directly or indirectly in the

administration of his country's public affairs. The CDHRI also forbids

any abuse of authority 'subject to the Islamic Shariah.12

The CDHRI concludes in article 24 and 25 that all rights and

freedoms mentioned are subject to the Islamic Shariah, which is the

declaration's sole source. The CDHRI declares true religion to be the

guarantee for enhancing such dignity along the path to human integrity.

It also places the responsibility for defending those rights upon the

entire Ummah.

Declaration on the Rights of indigenous Peoples

The United Nations Declaration on the Rights of Indigenous

Peoples was adopted by the United Nations General Assembly during

its 62nd session at UN Headquarters in New York City on 13

September 2007.

While as a General Assembly Declaration it is not a legally

binding instrument under international law, according to a UN press

release, it does represent the dynamic development of international

legal norms and it reflects the commitment of the UN's member states

to move in certain directions. The UN describes it as setting an

important standard for the treatment of indigenous peoples that will

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undoubtedly be a significant tool towards eliminating human rights

violations against the planet's 370 million indigenous people and

assisting them in combating discrimination and marginalisation.

The Declaration sets out the individual and collective rights of

indigenous peoples, as well as their rights to culture, identity, language,

employment, health, education and other issues. It also emphasizes the

rights of indigenous peoples to maintain and strengthen their own

institutions, cultures and traditions, and to pursue their development in

keeping with their own needs and aspirations. It prohibits discrimination

against indigenous peoples, and it promotes their full and effective

participation in all matters that concern them and their right to remain

distinct and to pursue their own visions of economic and social

development.13

The Declaration was then referred to the General Assembly,

which voted on the adoption of the proposal on 13 September 2007

during its 61st regular session. The vote was 143 countries in favour,

four against, and 11 abstaining. The four member states that voted

against were Australia, Canada, New Zealand and the United States, all

of which have their origins as colonies of the United Kingdom and have

large non-indigenous immigrant majorities and small remnant

indigenous populations. Australia and New Zealand have since

changed their votes in favour of the Declaration, in 2009 and 2010

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respectively. The abstaining countries were Azerbaijan, Bangladesh,

Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian

Federation, Samoa and Ukraine; another 34 member states were

absent from the vote. Colombia and Samoa have since endorsed the

document.

UN Declaration on Sexual Orientation and Gender Identity

The United Nations Declaration on sexual orientation and gender

identity is a Dutch/French-initiated, European Union-backed statement

presented to the United Nations General Assembly on 18 December

2008. The statement, originally intended to be adopted as resolution,

prompted an Arab League-backed statement opposing it. Both

statements remain open for signatures and none of them has been

officially adopted by the United Nations General Assembly.

The declaration includes a condemnation of violence,

harassment, discrimination, exclusion, stigmatization, and prejudice

based on sexual orientation and gender identity. It also includes

condemnation of killings and executions, torture, arbitrary arrest, and

deprivation of economic, social, and cultural rights on those grounds.14

The declaration was praised as a breakthrough for human rights,

breaking the taboo against speaking about the rights in the United

Nations. Opponents criticized it as an attempt to legitimize same-sex

civil partnerships or marriage, adoption by same sex couples,

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pedophilia and other deplorable acts and curtail freedom of religious

expression against homosexual behavior.

As of December 2008, homosexuality is illegal in 77 countries and

punishable by death in seven. In its 1994 decision in Toonen vs

Australia, The UN Human Rights Committee, which is responsible for

the International Covenant on Civil and Political Rights (ICCPR),

declared that such laws are in violation of human rights law.

In 2003 a number of predominantly European countries put

forward the Brazilian Resolution at the UN Human Rights Commission

stating the intention that lesbian and gay rights be considered as

fundamental as the rights of all human beings.

In 2006, with the effort of its founder, Louis George Tin,

International Day Against Homophobia (IDAHO) launched a worldwide

campaign to end the criminalization of same-sex relationships. The

campaign was supported by dozens of international public figures

including Nobel laureates, academics, clergy and celebrities.

In 2008, the 34 member countries of the Organization of

American States unanimously approved a declaration affirming that

human rights protections extend to sexual orientation and gender

identity.15

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Following meetings between Tin and French Minister of Human

Rights and Foreign Affairs Rama Yade in early 2008, Yade announced

that she would appeal at the UN for the universal decriminalization of

homosexuality; the appeal was quickly taken up as an international

concern.

Co-sponsored by France, which then held the rotating presidency

of the European Union, and The Netherlands on behalf of the European

Union, the declaration had been intended as a resolution; it was

decided to use the format of a declaration of a limited group of States

because there was not enough support for the adoption of an official

resolution by the General Assembly as a whole. The declaration was

read out by Ambassador Jorge Arguello of Argentina on 18 December

2008, and was the first declaration concerning gay rights read in the

General Assembly.

Conventions

The following are the important Conventions on human rights at

international level.

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR)

is a multilateral treaty adopted by the United Nations General Assembly

on December 16, 1966, and in force from March 23, 1976. It commits its

parties to abide by the civil and political rights of individuals, including

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(among others) the right of self-determination; the right to life; the

prohibition of torture and cruel, inhuman, or degrading treatment or

punishment; the prohibition of slavery; the right to liberty and security of

person; treatment of prisoners aimed at reformation and social

rehabilitation; the right to freedom of movement; rights to fair and public

hearing by competent, independent, and impartial tribunal established

by law; the right to be presumed innocent until proved guilty according

to law; the right to be informed promptly and in detail in a language

which they understand of the nature and cause of the charge against

them; the right to not be held guilty of any criminal offense on account of

any act or omission which did not constitute a criminal offense under

national or international law at the time when it was committed; the right

to privacy; the right to freedom of thought, conscience, and religion; the

right to freedom of expression; the right to peaceful assembly; the right

of men and women of marriageable age to marry and to found a family;

equality before the law; the right of every child to such measures of

protection as are required by his status as a minor on the part of his

family, society and the State; the right of every citizen to vote and to be

elected at genuine periodic elections which shall be by universal and

equal suffrage and shall be held by secret ballot; the rights of ethnic,

religious or linguistic minorities to enjoy their own culture, to profess and

practise their own religion, or to use their own language. As of

September 2010, the Covenant had 72 signatories and 166 parties.16

90
The ICCPR is part of the International Bill of Human Rights, along

with the International Covenant on Economic, Social and Cultural Rights

(ICESCR) and the Universal Declaration of Human Rights (UDHR).

The ICCPR is monitored by the Human Rights Committee (a

separate body to the Human Rights Council), which reviews regular

reports of States parties on how the rights are being implemented.

States must report initially one year after acceding to the Covenant and

then whenever the Committee requests (usually every four years). The

Committee meets in Geneva or New York and normally holds three.

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The ICCPR has its roots in the same process that led to the

Universal Declaration of Human Rights. A Declaration on the Essential

Rights of Man had been proposed at the 1945 San Francisco

Conference which led to the founding of the United Nations, and the

Economic and Social Council was given the task of drafting it. Early on

in the process, the document was split into a declaration setting forth

general principles of human rights, and a convention or covenant

containing binding commitments. The former evolved into the UDHR

and was adopted on December 10,1948.

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Drafting continued on the convention, but there remained

significant differences between UN members on the relative importance

of negative Civil and Political versus positive Economic, Social and

Cultural rights. These eventually caused the convention to be split into

two separate covenants, one to contain civil and political rights and the

other to contain economic, social and cultural rights. The two covenants

were to contain as many similar provisions as possible, and be opened

for signature simultaneously. Each would also contain an article on the

right of all peoples to self-determination.17

The first document became the International Covenant on Civil

and Political Rights, and the second the International Covenant on

Economic, Social and Cultural Rights. The drafts were presented to the

UN General Assembly for discussion in 1954, and adopted in 1966.

The Covenant follows the structure of the UDHR and ICESCR,

with a preamble and fifty-three articles, divided into six parts.18

Part 1 (Article 1) recognises the right of all peoples to self-

determination, including the right to freely determine their political

status, pursue their economic, social and cultural goals, and manage

and dispose of their own resources. It recognises a negative right of a

people not to be deprived of its means of subsistence, and imposes an

obligation on those parties still responsible for non-self governing and

92
trust territories (colonies) to encourage and respect their self-

determination.

Part 2 (Articles 2-5) obliges parties to legislate where necessary

to give effect to the rights recognised in the Covenant, and to provide an

effective legal remedy for any violation of those rights. It also requires

the rights be recognised 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, and to ensure that they are

enjoyed equally by women. The rights can only be limited in time of

public emergency which threatens the life of the nation, and even then

no derogation is permitted from the rights to life, freedom from torture

and slavery, the freedom from retrospective law, the right to

personhood, and freedom of thought, conscience and religion.

Part 3 (Articles 6-27) lists the rights themselves. These include

rights to:

physical integrity, in the form of the right to life and freedom from

torture and slavery (Articles 6, 7, and 8);

liberty and security of the person, in the form of freedom from

arbitrary arrest and detention and the right to habeas corpus

(Article 9);

procedural fairness in law, in the form of rights to due process, a

fair and impartial trial, the presumption of innocence, and

93
recognition as a person before the law (Articles 10, 11, 14, 15,

and 16);

individual liberty, in the form of the freedoms of movement,

thought, conscience and religion, speech, association and

assembly, family rights, the right to a nationality, and the right to

privacy (Articles 12,13, 17 - 24);

political participation, including the right to join a political party

and the right to vote (Article 25);

Non-discrimination and equality before the law (Articles 26 and

27).

Many of these rights include specific actions which must be

undertaken to realise them.

Part 4 (Articles 28 - 45) governs the establishment and operation

of the Human Rights Committee and the reporting and monitoring of the

Covenant. It also allows parties to recognise the competence of the

Committee to resolve disputes between parties on the implementation

of the Covenant (Articles 41 and 42).

Part 5 (Articles 46 - 47) clarifies that the Covenant shall not be

interpreted as interfering with the operation of the United Nations or the

inherent right of all peoples to enjoy and utilize fully and freely their

natural wealth and resources.

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Part 6 (Articles 48 - 53) governs ratification, entry into force, and

amendment of the Covenant.

Optional protocols

There are two Optional Protocols to the Covenant. The First

Optional Protocol establishes an individual complaints mechanism,

allowing individuals to complain to the Human Rights Committee about

violations of the Covenant. This has led to the creation of a complex

jurisprudence on the interpretation and implementation of the Covenant.

As of September 2009, the First Optional Protocol has 113 parties.19

The Second Optional Protocol abolishes the death penalty;

however, countries were permitted to make a reservation allowing for

use of death penalty for the most serious crimes of a military nature,

committed during wartime. As of October 2009, the Second Optional

Protocol had 72 parties.

International Convention on the Suppression and Punishment of

the Crime of Apartheid (ICSPCA)

The crime of apartheid is defined by the 2002 Rome Statute of

the International Criminal Court as inhumane acts of a character similar

to other crimes against humanity committed in the context of an

institutionalized regime of systematic oppression and domination by one

racial group over any other racial group or groups and committed with

the intention of maintaining that regime.

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On 30 November 1973, the United Nations General Assembly

opened for signature and ratification the International Convention on the

Suppression and Punishment of the Crime of Apartheid (ICSPCA). It

defined the crime of apartheid as inhuman acts committed for the

purpose of establishing and maintaining domination by one racial group

of persons over any other racial group of persons and systematically

oppressing them.20

Background

The term apartheid, from Afrikaans for apartness, was the official

name of the South African system of racial segregation which existed

after 1948. Complaints about the system were brought to the United

Nations as early as 12 July 1948 when Dr. Padmanabha Pillai, the

representative of India to the United Nations, circulated a letter to the

Secretary-General expressing his concerns over treatment of ethnic

Indians within the Union of South Africa. As it became more widely

known, South African apartheid was condemned internationally as

unjust and racist and many decided that a formal legal framework was

needed in order to apply international pressure on the South African

government.

In 1971, the Union of Soviet Socialist Republics and Guinea

together submitted early drafts of a convention to deal with the

suppression and punishment of apartheid. In 1973, the General

96
Assembly of the United Nations agreed on the text of the International

Convention on the Suppression and Punishment of the Crime of

Apartheid (ICSPCA). The Convention has 31 signatories and 107

parties.21

As such, apartheid was declared to be a crime against humanity,

with a scope that went far beyond South Africa. While the crime of

apartheid is most often associated with the racist policies of South

Africa after 1948, the term more generally refers to racially based

policies in any state.

Seventy-six other countries subsequently signed on, but a

number of nations have neither signed nor ratified the ICSPCA,

including Canada, France, Germany, Israel, Italy, the Netherlands, the

United Kingdom, Australia, New Zealand and the United States. In

explanation of the US vote against the convention, US Ambassador

Clarence Clyde Ferguson Jr. said: we cannot...accept that apartheid

can in this manner be made a crime against humanity. Crimes against

humanity are so grave in nature that they must be meticulously

elaborated and strictly construed under existing international law.22

In 1977, Addition Protocol 1 to the Geneva Conventions

designated apartheid as a grave breach of the Protocol and a war

crime. There are 169 parties to the Protocol.

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The International Criminal Court provides for individual criminal

responsibility for crimes against humanity, including the crime of

apartheid.

The International Criminal Court (ICC) came into being on 1 July

2002, and can only prosecute crimes committed on or after that date.

The Court can generally only exercise jurisdiction in cases where the

accused is a national of a state party, the alleged crime took place on

the territory of a state party, or a situation is referred to the Court by the

United Nations Security Council. The ICC exercises complimentary

jurisdiction. Many of the member states have provided their own

national courts with universal jurisdiction over the same offenses and do

not recognize any statute of limitations for crimes against humanity. As

of July 2008, 106 countries are states parties (with Suriname and Cook

Islands set to join in October 2008), and a further 40 countries have

signed but not yet ratified the treaty. However, many of the world's most

populous nations, including China, India, the United States, Indonesia,

and Pakistan are not parties to the Court and therefore are not subject

to its jurisdiction, except by Security Council referral.

International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural

Rights (ICESCR) is a multilateral treaty adopted by the United Nations

General Assembly on December 16, 1966, and in force from January 3,

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1976. It commits its parties to work toward the granting of economic,

social, and cultural rights (ESCR) to individuals, including labour rights

and rights to health, education, and an adequate standard of living. As

of December, 2008, the Covenant had 160 parties. A further six

countries had signed, but not yet ratified the Covenant.

The ICESCR is part of the International Bill of Human Rights,

along with the Universal Declaration of Human Rights (UDHR) and the

International Covenant on Civil and Political Rights (ICCPR), including

the latter's first and second Optional Protocols. The Covenant is

monitored by the UN Committee on Economic, Social and Cultural

Rights. The Covenant follows the structure of the UDHR and ICCPR,

with a preamble and thirty-one articles, divided into five parts.23

Part 1 (Article 1) recognises the right of all peoples to self-

determination, including the right to freely determine their political

status, pursue their economic, social and cultural goals, and manage

and dispose of their own resources. It recognises a negative right of a

people not to be deprived of its means of subsistence, and imposes an

obligation on those parties still responsible for non-self governing and

trust territories (colonies) to encourage and respect their self-

determination.

Part 2 (Articles 2-5) establishes the principle of progressive

realisation. It also requires the rights be recognised without

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discrimination of any kind as to race, colour, sex, language, religion,

political or other opinion, national or social origin, property, birth or other

status. The rights can only be limited by law, in a manner compatible

with the nature of the rights, and only for the purpose of promoting the

general welfare in a democratic society.

Part 3 (Articles 6-15) lists the rights themselves. These include rights

to

work, under just and favourable conditions, with the right to form

and join trade unions (Articles 6, 7, and 8);

social security, including social insurance (Article 9);

family life, including paid parental leave and the protection of

children (Article 10);

an adequate standard of living, including adequate food, clothing

and housing, and the continuous improvement of living conditions

(Article 11);

health, specifically the highest attainable standard of physical and

mental health (Article 12);

education, including free universal primary education, generally

available secondary education, and equally accessible higher

education. This should be directed to the full development of the

human personality and the sense of its dignity, and enable all

persons to participate effectively in society (Articles 13 and 14);

participation in cultural life (Article 15).

100
Many of these rights include specific actions which must be

undertaken to realise them.

Part 4 (Articles 16-25) governs reporting and monitoring of the

Covenant and the steps taken by the parties to implement it. It also

allows the monitoring body - originally the United Nations Economic and

Social Council - now the Committee on Economic, Social and Cultural

Rights to make general recommendations to the UN General Assembly

on appropriate measures to realise the rights (Article 21).

Part 5 (Articles 26-31) governs ratification, entry into force, and

amendment of the Covenant.

This is known as the principle of progressive realisation. It

acknowledges that some of the rights (for example, the right to health)

may be difficult in practice to achieve in a short period of time, and that

states may be subject to resource constraints, but requires them to act

as best they can within their means.

The principle differs from that of the ICCPR, which obliges parties

to respect and to ensure to all individuals within its territory and subject

to its jurisdiction the rights in that Convention. However, it does not

render the Covenant meaningless. The requirement to take steps

imposes a continuing obligation to work towards the realisation of the

rights. It also rules out deliberately regressive measures which impede

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that goal. The Committee on Economic, Social and Cultural Rights also

interprets the principle as imposing minimum core obligations to

provide, at the least, minimum essential levels of each of the rights. If

resources are highly constrained, this should include the use of targeted

programmes aimed at the vulnerable.24

The Committee on Economic, Social and Cultural Rights regards

legislation as an indispensable means for realising the rights which is

unlikely to be limited by resource constraints. The enacting of anti-

discrimination provisions and the establishment of enforceable rights

with judicial remedies within national legal systems are considered to be

appropriate means. Some provisions, such as anti-discrimination laws,

are already required under other human rights instruments, such as the

ICCPR.

Optional Protocol

The Optional Protocol to the International Covenant on Economic,

Social and Cultural Rights is a side-agreement to the Covenant which

allows its parties to recognise the competence of the Committee on

Economic Social and Cultural Rights to consider complaints from

individuals.

The Optional Protocol was adopted by the UN General Assembly

on 10 December 2008. It was opened for signature on 24 September

102
2009, and as of July 2010 has been signed by 32 parties and ratified by

2. It will enter into force when ratified by 10 parties.25

Convention Relating to the Status of Refugees

The United Nations Convention Relating to the Status of

Refugees is an international convention that defines who is a refugee,

and sets out the rights of individuals who are granted asylum and the

responsibilities of nations that grant asylum. The convention also sets

out which people do not qualify as refugees, such as war criminals. The

Convention also provides for some visa-free travel for holders of travel

documents issued under the convention.

The convention was approved at a special United Nations

conference on 28 July 1951. It entered into force on 22 April 1954. It

was initially limited to protecting European refugees after World War II

but a 1967 Protocol removed the geographical and time limits,

expanding the Convention's scope. Because the convention was

approved in Geneva, it is often referred to as the Geneva Convention,

though it is not one of the Geneva Conventions specifically dealing with

allowable behavior in time of war.

Denmark was the first state to ratify the treaty (on 4 December

1952) and there are now 147 signatories to either the Convention or the

Protocol or to both.

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It is widely accepted that the prohibition of forcible return is part of

customary international law. This means that even States that are not

party to the 1951 Refugee Convention must respect the principle of

non-refoulement. Therefore, States are obligated under the Convention

and under customary international law to respect the principle of non

refoulement. If and when this principle is threatened, UNHCR can

respond by intervening with relevant authorities, and if it deems

necessary, will inform the public.

Protocol Relating to the Status of Refugees

The Protocol Relating to the Status of Refugees entered into

force on October 4, 1967. Where the United Nations 1951 Convention

relating to the Status of Refugees had restricted refugee status to those

whose circumstances had come about as a result of events occurring

before 1 January 1951, as well as giving States party to the Convention

the option of interpreting this as events occurring in Europe or events

occurring in Europe or elsewhere, the 1967 Protocol removed both the

temporal and geographic restrictions. However, it also gave those

States which had previously ratified the 1951 Convention and chosen to

use the geographically restricted definition the option to retain that

restriction. The English text is at Protocol relating to the Status of

Refugees of 31 January 1967.

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Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child

(commonly abbreviated as the CRC, CROC, or UNCRC) is a human

rights treaty setting out the civil, political, economic, social, and cultural

rights of children. The Convention generally defines a child as any

human being under the age of eighteen, unless an earlier age of

majority is recognized by a country's law.26

Nations that ratify this convention are bound to it by international

law. Compliance is monitored by the United Nations Committee on the

Rights of the Child which is composed of members from countries

around the world. Once a year, the Committee submits a report to the

Third Committee of the United Nations General Assembly, which also

hears a statement from the CRC Chair, and the Assembly adopts a

Resolution on the Rights of the Child.

Governments of countries that have ratified the Convention are

required to report to, and appear before, the United Nations Committee

on the Rights of the Child periodically to be examined on their progress

with regards to the advancement of the implementation of the

Convention and the status of child rights in their country.

The United Nations General Assembly adopted the Convention

and opened it for signature on 20 November 1989 (the 30th anniversary

of its Declaration of the Rights of the Child). It came into force on 2

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September 1990, after it was ratified by the required number of nations.

As of November 2009, 194 countries have ratified it, including every

member of the United Nations except Somalia and the United States.

Somalia's cabinet ministers have announced plans to ratify the treaty.27

The Convention deals with the child-specific needs and rights. It

requires that states act in the best interests of the child. This approach

is different from the common law approach found in many countries that

had previously treated children and wives as possessions or chattels,

ownership of which was often argued over in family disputes.

The Convention obliges states to allow parents to exercise their

parental responsibilities. The Convention also acknowledges that

children have the right to express their opinions and to have those

opinions heard and acted upon when appropriate, to be protected from

abuse or exploitation, to have their privacy protected and requires that

their lives not be subject to excessive interference.

Two optional protocols were adopted on 25 May 2000. The First

Optional Protocol restricts the involvement of children in military

conflicts, and the Second Optional Protocol prohibits the sale of

children, child prostitution and child pornography. Both protocols have

been ratified by more than 120 states.

In India, there is no outright ban on child labor, and the practice is

generally permitted in most industries except those deemed hazardous.

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Although a law in October 2006 banned child labor in hotels,

restaurants, and as domestic servants, there continues to be high

demand for children as hired help in the home. Current estimates as to

the number of child laborers in the country range from the government's

conservative estimate of 12 million children under 13 years of age to the

much higher estimates of children's rights activists, which hover around

60 million. Little is being done to address the problem since the

economy is booming and the nuclear family is spreading, thereby

increasing demand for child laborers. Under the auspices of the

UNICEF financed Udisha initiative the Government of India is specifying

the outline of a means of change and improvement in child care.28

United Nations Convention against Torture

The United Nations Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment is an international

human rights instrument, under the review of the United Nations, that

aims to prevent torture around the world.

The Convention requires states to take effective measures to

prevent torture within their borders, and forbids states to return people

to their home country if there is reason to believe they will be tortured.

The text of the Convention was adopted by the United Nations

General Assembly on 10 December 1984 and, following ratification by

the 20th state party, it came into force on 26 June 1987. Now 26th June

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is recognised as the International Day in Support of Torture Victims, in

honour of the Convention. As of January 2010, 146 nations are parties

to the treaty, and another ten countries have signed but not ratified it.

The Covenant follows the structure of the UDHR, ICCPR and the

ICESCR, with a preamble and 33 articles, divided in to three parts.29

Part I (Articles 1-16) defines torture (Article 1), and commits

parties to taking effective measures to prevent any act of torture in any

territory under their jurisdiction (Article 2). These include ensuring that

torture is a criminal offence (Article 4), establishing jurisdiction over acts

of torture committed by or against a party's citizens (Article 5), ensuring

that torture is an extraditable offence (Article 8), and establishing

universal jurisdiction to try cases of torture where an alleged torturer

cannot be extradited (Article 5). Parties must promptly investigate any

allegation of torture (Articles 12 and 13), and victims of torture must

have an enforceable right to compensation (Article 14). Parties must

also ban the use of evidence produced by torture in their courts (Article

15), and are barred from deporting, extraditing or refouling people

where there are substantial grounds for believing they will be tortured

(Article 3).

Part II (articles 17 - 24) governs reporting and monitoring of the

Convention and the steps taken by the parties to implement it. It

establishes the Committee against Torture (Article 17), and empowers it

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to investigate allegations of systematic torture (Article 20). It also

establishes an optional dispute-resolution mechanism between parties

(Article21) and allows parties to recognise the competence of the

Committee to hear complaints from individuals about violations of the

Convention by a party (Article 22).

Part III (Articles 25 - 33) governs ratification, entry into force, and

amendment of the Convention. It also includes an optional arbitration

mechanism for disputes between parties (Article 30). India signed on

the convention on 14th October 1997.

Optional Protocol

The Optional Protocol to the Convention against Torture and

other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT),

adopted by the General Assembly on 18 December 2002 and in force

since 22 June 2006, provides for the establishment of a system of

regular visits undertaken by independent international and national

bodies to places where people are deprived of their liberty, in order to

prevent torture and other cruel, inhuman or degrading treatment or

punishment, to be overseen by a Subcommittee on Prevention of

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.30

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Convention on the Elimination of All Forms of Racial

Discrimination

The International Convention on the Elimination of All Forms of

Racial Discrimination (ICERD) is a United Nations convention. A

second-generation human rights instrument, the Convention commits its

members to the elimination of racial discrimination and the promotion of

understanding among all races. Controversially, the Convention also

requires its parties to outlaw hate speech and criminalize membership

in racist organizations.

The Convention also includes an individual complaints

mechanism, effectively making it enforceable against its parties. This

has led to the development of a limited jurisprudence on the

interpretation and implementation of the Convention.

The convention was adopted and opened for signature by the

United Nations General Assembly on December 21, 1965, and entered

into force on January 4, 1969. As of October 2009, it had 85 signatories

and 173 parties. The Convention is monitored by the Committee on the

Elimination of Racial Discrimination (CERD).

The Convention follows the structure of the Universal Declaration

of Human Rights, International Covenant on Civil and Political Rights,

and International Covenant on Economic, Social and Cultural Rights,

with a preamble and twenty-five articles, divided into three parts.31

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Part 1 (Articles'!-7) commits parties to the elimination of all forms

of racial discrimination and to promoting understanding among all races

(Article 2). Parties are obliged not to discriminate on the basis of race,

not to sponsor or defend racism, and to prohibit racial discrimination

within their jurisdictions. They must also review their laws and policies to

ensure that they do not discriminate on the basis of race, and commit to

amending or repealing those that do. Specific areas in which

discrimination must be eliminated are listed in Article 5.

The Convention imposes a specific commitment on parties to

eradicate racial segregation and the crime of apartheid within their

jurisdictions (Article 3). Parties are also required to criminalize the

incitement of racial hatred (Article 4), to ensure judicial remedies for

acts of racial discrimination (Article 6), and to engage in public

education to promote understanding and tolerance (Article 7).

Part 2 (Articles 8-16) governs reporting and monitoring of the

Convention and the steps taken by the parties to implement it. It

establishes the Committee on the Elimination of Racial Discrimination,

and empowers it to make general recommendations to the UN General

Assembly. It also establishes a dispute-resolution mechanism between

parties (Articlesl 1-13), and allows parties to recognise the competence

of the Committee to hear complaints from individuals about violations of

the rights protected by the Convention (Article 14).

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Part 3 (Articles 17-25) governs ratification, entry into force, and

amendment of the Convention.

Prevention of discrimination

Article 2 of the Convention condemns racial discrimination and

obliges parties to undertake to pursue by all appropriate means and

without delay a policy of eliminating racial discrimination in all its forms.

It also obliges parties to promote understanding among all races.

The signatories to the convention are obliged when the

circumstances so warrant to use affirmative action policies for specific

racial groups to guarantee the full and equal enjoyment of human rights

and fundamental freedoms. However, these measures must be finite,

and shall in no case entail as a consequence the maintenance of

unequal or separate rights for different racial groups after the objectives

for which they were taken have been achieved.32

The Convention condemns apartheid and racial segregation and

obliges parties to prevent, prohibit and eradicate these practices in

territories under their jurisdiction. This article has since been

strengthened by the recognition of apartheid as a crime against

humanity in the Rome Statute of the International Criminal Court.

The Committee on the Elimination of Racial Discrimination

regards this article as also entailing an obligation to eradicate the

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consequences of past policies of segregation, and to prevent racial

segregation arising from the actions of private individuals.

Convention on the Elimination of All Forms of Discrimination

against Women

The Convention on the Elimination of all Forms of Discrimination

against Women (CEDAW) is an international convention adopted in

1979 by the United Nations General Assembly. Described as an

international bill of rights for women, it came into force on 3 September

1981. The United States is the only developed nation that has not

ratified the CEDAW. Several countries have ratified the Convention

subject to certain declarations, reservations and objections.33

The Convention defines discrimination against women in the

following terms:

Any distinction, exclusion or restriction made on the basis of sex which

has the effect or purpose of impairing or nullifying the recognition,

enjoyment or exercise by women, irrespective of their marital status, on

a basis of equality of men and women, of human rights and

fundamental freedoms in the political, economic, social, cultural, civil or

any other field.34

It also establishes an agenda of action for putting an end to sex-

based discrimination: States ratifying the Convention are required to

enshrine gender equality into their domestic legislation, repeal all

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discriminatory provisions in their laws, and enact new provisions to

guard against discrimination against women. They must also establish

tribunals and public institutions to guarantee women effective protection

against discrimination, and take steps to eliminate all forms of

discrimination practiced against women by individuals, organizations,

and enterprises.

Convention oversight is the task of the Committee on the

Elimination of Discrimination against Women, which is made up of 23

experts on women's issues from different UN member states. The

Committee meets twice a year to review reports on compliance with the

Convention's provisions that the signatory nations are required to

submit every four years.

The Committee is one of the eight UN-related human rights treaty

bodies. The Committee's members, described as experts of high moral

standing and competence in the field covered by the Convention, are

elected to serve four-year terms in staggered elections held every two

years. Its officers are a chairperson, three vice-chairpersons, and a

rapporteur. Efforts are made to ensure balanced geographical

representation and the inclusion of the world's different forms of

civilization and legal systems.

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Optional Protocol

The Optional Protocol to the Convention on the Elimination of All

Forms of Discrimination against Women is a side-agreement to the

Convention which allows its parties to recognise the competence of the

Committee on the Elimination of Discrimination against Women to

consider complaints from individuals.35

The Optional Protocol was adopted by the UN General Assembly

on 6 October 1999 and entered into force on 22 December 2000.

Currently it has 79 signatories and 98 parties.

United Nations Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families

The International Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families is an international

agreement governing the matters described in the title. It was signed on

18 December 1990.

A Priority: The Human Rights of Migrants

On 1 July 2003, the United Nations Convention on the Protection

of the Rights of All Migrant Workers and Members of Their Families

entered into force, after the threshold of 20 ratifying States was reached

in March 2003. The Committee on Migrant Workers (CMW) monitors

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implementation of the convention, and is one of the seven UN-linked

Human Rights treaty bodies.36

In 2005, the number of international migrants is between 185 and

192 million. This represents approximately three per cent of the world

population, and is comparable to the population of Brazil. Nearly all

countries are concerned by migration, whether as sending, transit, or

receiving countries, or as a combination of these. International migration

has become an intrinsic feature of globalization.

It is time to take a more comprehensive look at the various

dimensions of the migration issue, which now involves hundreds of

millions of people, and affects countries of origin, transit and

destination. The people have to understand better the causes of

international flows of people and their complex interrelationship with

development. United Nations Secretary General, Kofi Annan, from his

report on strengthening the Organization, 9 November 2002.

The United Nations Convention constitutes a comprehensive

international treaty regarding the protection of migrant workers rights. It

emphasizes the connection between migration and human rights, which

is increasingly becoming a crucial policy topic worldwide. The

Convention aims at protecting migrant workers and members of their

families; its existence sets a moral standard, and serves as a guide and

stimulus for the promotion of migrant rights in each country.

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The primary objective of the Convention is to foster respect for

migrants human rights. Migrants are not only workers, they are also

human beings. The Convention does not create new rights for migrants

but aims at guaranteeing equality of treatment, and the same working

conditions for migrants and nationals. The Convention innovates

because it relies on the fundamental notion that all migrants should

have access to a minimum degree of protection. The Convention

recognizes that legal migrants have the legitimacy to claim more rights

than undocumented migrants, but it stresses that undocumented

migrants must see their fundamental human rights respected, like all

human beings.

In the meantime, the Convention proposes that actions be taken

to eradicate clandestine movements, notably through the fight against

misleading information inciting people to migrate irregularly, and

through sanctions against traffickers and employers of undocumented

migrants. India has not ratified the Convention.37

Convention on the Prevention and Punishment of the Crime of

Genocide

The Convention on the Prevention and Punishment of the Crime

of Genocide was adopted by the United Nations General Assembly on 9

December 1948 as General Assembly Resolution 260. The Convention

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entered into force on 12 January 1951. It defines genocide in legal

terms, and is the culmination of years of campaigning by lawyer

Raphael Lemkin, who coined the term by reference to the Simele

massacre, the Holocaust, and the Armenian Genocide. All participating

countries are advised to prevent and punish actions of genocide in war

and in peacetime. The number of states that have ratified the

convention is currently 140.

The convention was passed to outlaw actions similar to the

Holocaust by Nazi Germany during World War II. The first draft of the

Convention included political killings, but the USSR along with some

other nations would not accept that actions against groups identified as

holding similar political opinions or social status would constitute

genocide, so these stipulations were subsequently removed in a

political and diplomatic compromise.38

Convention on the Rights of Persons with Disabilities

The Convention on the Rights of Persons with Disabilities is an

international human rights instrument of the United Nations intended to

protect the rights and dignity of persons with disabilities. Parties to the

Convention are required to promote, protect, and ensure the full

enjoyment of human rights by persons with disabilities and ensure that

they enjoy full equality under the law.

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The text was adopted by the United Nations General Assembly

oh 13 December 2006 and opened for signature on 30 March 2007.

Following ratification by the 20th party, it came into force on 3 May

2008. As of December 2010, it has 147 signatories and 96 parties. The

Convention is monitored by the Committee on the Rights of Persons

with Disabilities.

The Convention follows the civil law tradition, with a preamble, in

which the principle that 'all human rights are universal, indivisible,

interdependent and interrelated of Vienna Declaration and Programme

of Action is cited, followed by 50 articles. Unlike many UN covenants

and conventions, it is not formally divided into parts.

Guiding principles of the Convention

There are eight guiding principles that underlie the Convention:39

1. Respect for inherent dignity, individual autonomy including the

freedom to make one's own choices, and independence of

persons.

2. Non-discrimination.

3. Full and effective participation and inclusion in society.

4. Respect for difference and acceptance of persons with disabilities

as part of human diversity and humanity.

5. Equality of opportunity.

6. Accessibility.

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7. Equality between men and women.

8. Respect for the evolving capacities of children with disabilities

and respect for the right of children with disabilities to preserve

their identities.

The Convention stresses that persons with disabilities should be

able to live independently and participate fully in all aspects of life. To

this end, States Parties should take appropriate measures to ensure

that persons with disabilities have access, to the physical environment,

to transportation, to information and communications technology, and to

other facilities and services open or provided to the public.

Optional protocol

The Optional Protocol to the Convention on the Rights of Persons

with Disabilities is a side-agreement to the Convention which allows its

parties to recognise the competence of the Committee on the Rights of

Persons with Disabilities to consider complaints from individuals. The

text is based heavily on the Optional Protocol to the Convention on the

Elimination of All Forms of Discrimination against Women. The Optional

Protocol entered into force with the Convention on 3 May 2008. As of

September 2010, it has 89 signatories and 57 parties.40

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International Convention for the Protection of All Persons from

Enforced Disappearance

The International Convention for the Protection of All Persons

from Enforced Disappearance is an international human rights

instrument of the United Nations and intended to prevent forced

disappearance. The text was adopted by the United Nations General

Assembly on 20 December 2006 and opened for signature on 6

February 2007. It came into force on 23 December 2010. As of

November 2010, 87 states have signed, and twenty have ratified or

acceded.

The convention is modelled heavily on the United Nations

Convention Against Torture. The widespread or systematic use of

enforced disappearance is further defined as a crime against humanity

in Article 6.

The Convention will be governed by a Committee on Enforced

Disappearances elected by its parties. Parties are obliged to report to

this committee on the steps they have taken to implement it within two

years of becoming subject to it.41

The Convention includes an optional complaints system whereby

citizens of parties may appeal to the Committee for assistance in

locating a disappeared person. Parties may join this system at any time,

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but may only opt out of it upon signature. India is a signatory to the

convention.

Indigenous and Tribal Peoples Convention, 1989

Indigenous and Tribal Peoples Convention, 1989 is an

International Labour Organization Convention, also known as ILO-

convention 169, or C169. It is the major binding international convention

concerning indigenous peoples, and a forerunner of the Declaration on

the Rights of Indigenous Peoples.

This Convention revised Convention C107, the Indigenous and

Tribal Populations Convention, 1957. Some of the nations ratifying the

1989 Convention denounced the 1957 Convention.

African Regional Conventions

The following are the important conventions of Africa

African Charter on Human and Peoples' Rights

The African Charter on Human and Peoples' Rights (also known

as the Banjul Charter) is an international human rights instrument that is

intended to promote and protect human rights and basic freedoms in

the African continent.

It emerged under the aegis of the Organisation of African Unity

(since replaced by the African Union) which, at its 1979 Assembly of

Heads of State and Government, adopted a resolution calling for the

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creation of a committee of experts to draft a continent-wide human

rights instrument, similar to those that already existed in Europe

(European Convention on Human Rights) and the Americas (American

Convention on Human Rights). This committee was duly set up, and it

produced a draft that was unanimously approved at the OAU's 1981

Assembly. Pursuant to its Article 63 (whereby it was to come into force

three months after the reception by the Secretary General of the

instruments of ratification or adherence of a simple majority of the

OAU's member states), the African Charter on Human and Peoples'

Rights came into effect on 21 October 1986- in honour of which 21

October was declared African Human Rights Day.42

Oversight and interpretation of the Charter is the task of the

African Commission on Human and Peoples' Rights, which was set up

in 1987 and is now headquartered in Banjul, Gambia. A protocol to the

Charter was subsequently adopted in 1998 whereby an African Court

on Human and Peoples' Rights was to be created. The protocol came

into effect on 25 January 2005.

In July 2004, the AU Assembly decided that the ACHP would be

incorporated into the African Court of Justice. In July 2005, the AU

Assembly then decided that the ACHP should be operationalised

despite the fact that the protocol establishing the African Court of

Justice had not yet come into effect. Accordingly, the Eighth Ordinary

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Session of the Executive Council of the African Union meeting in

Khartoum, Sudan, on 22 January 2006, elected the first judges of the

African Court on Human and Peoples' Rights. The relationship between

the newly created Court and the Commission is yet to be determined.

As of 15 June 2009, 53 countries have ratified the Charter.43

The African Charter on Human and People's Rights followed the

footsteps of the European and Inter-American systems by creating a

regional human rights system for Africa. The Charter shares many

features with other regional instruments, but also has notable unique

characteristics concerning the norms it recognizes and also its

supervisory mechanism.

The preamble commits to the elimination of Zionism, which it

compares with colonialism and apartheid, caused South Africa to qualify

its 1996 accession with the reservation that the Charter fall in line with

the UN's resolutions regarding the characterization of Zionism.44

African Charter on the Rights and Welfare of the Child

The African Charter on the Rights and Welfare of the Child (also

called the ACRWC or Children's Charter) was adopted by the

Organisation of African Unity (OAU) in 1990 (in 2001, the OAU legally

became the African Union) and was entered into force in 1999. Like the

United Nations Convention on the Rights of the Child (CRC), the

Children's Charter is a comprehensive instrument that sets out rights

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and defines universal principles and norms for the status of children.

The ACRWC and the CRC are the only international and regional

human rights treaties that cover the whole spectrum of civil, political,

economic, social and cultural rights.

It calls for the creation of an African Committee of Experts on the

Rights and Welfare of the Child (Committee of Experts). Its mission is to

promote and protect the rights established by the ACRWC, to practice

applying these rights, and to interpret the disposition of the ACRWC as

required of party states, AU institutions, or all other institutions

recognized by AU or by a member state.

Focus on Childrens Right in Africa

Children in Africa are affected by many different types of abuse,

including economic and sexual exploitation, gender discrimination in

education and access to health, and their involvement in armed conflict.

Other factors affecting African children include migration, early

marriage, differences between urban and rural areas, child-headed

households, street children and poverty. Furthermore, child workers in

Sub-Saharan Africa account for about 80 million children or 4 out of

every 10 children under 14 years old which is the highest child labour

rate in the world.45

The ACRWC defines a child as a human being below the age of

18 years. It recognises the child's unique and privileged place in African

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society and that African children need protection and special care. It

also acknowledges that children are entitled to the enjoyment of

freedom of expression, association, peaceful assembly, thought,

religion, and conscience. It aims to protect the private life of the child

and safeguard the child against all forms of economic exploitation and

against work that is hazardous, interferes with the child's education, or

compromises his or her health or physical, social, mental, spiritual, and

moral development. It calls for protection against abuse and bad

treatment, negative social and cultural practices, all forms of exploitation

or sexual abuse, including commercial sexual exploitation, and illegal

drug use. It aims to prevent the sale and trafficking of children,

kidnapping, and begging of children.

Maputo Protocol

The Protocol to the African Charter on Human and Peoples

Rights on the Rights of Women in Africa, better known as the Maputo

Protocol, guarantees comprehensive rights to women including the right

to take part in the political process, to social and political equality with

men, to control of their reproductive health, and an end to female genital

mutilation. As the name suggests, it was adopted by the African Union

in the form of a protocol to the African Charter on Human and Peoples'

Rights.

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The protocol was adopted by the African Union on 11 July 2003

at its second summit in Maputo, Mozambique. On 25 November 2005,

having been ratified by the required 15 member nations of the African

Union, the protocol entered into force.

Of the 53 member countries in the African Union, the heads of

states of 45 countries signed the protocol, and as of December 2009,

27 of those countries had ratified and deposited the protocol.46

Opposition

There are two particularly contentious factors driving opposition to

the Protocol: its article on reproductive health, which is opposed mainly

by Catholics and other Christians, and its articles on female genital

mutilation, polygamous marriage and other traditional practices, which

are opposed mainly by Muslims.

Christian opposition

Pope Benedict XVI has described the Protocol as an attempt to

trivialize abortion surreptitiously. The Roman Catholic bishops of Africa

oppose the Maputo Protocol because it defines abortion as a human

right. The US-based pro-life advocacy organization, Human Life

International, describes it as a Trojan horse for a radical agenda.

In Uganda, the powerful Joint Christian Council has successfully

opposed moves to ratify the treaty on the grounds that Article 14, in

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guaranteeing abortion "in cases of sexual assault, rape, incest, and

where the continued pregnancy endangers the mental and physical

health of the mother or the life of the mother or the foetus," is

incompatible with traditional Christian morality.47 In an open letter to the

government and people of Uganda in January, 2006, the Catholic

Bishops' Conference of Uganda set out their opposition to the

ratification of the Maputo Protocol.

Muslim opposition

In Niger, the Parliament voted 42 to 31, with 4 abstentions,

against ratifying it in June, 2006; in this Muslim country, several

traditions banned or deprecated by the Protocol are common. Nigerien

Muslim womens groups in 2009 gathered in Niamey to protest what

they called the satanic Maputo protocols, specifying limits to marriage

age of girls and abortion as objectionable.48

In Djibouti, however, the Protocol was ratified in February, 2005

after a sub-regional conference on female genital mutilation called by

the Djibouti government and No Peace Without Justice, at which the

Djibouti Declaration on female genital mutilation was adopted. The

document declares that the Koran does not support female genital

mutilation, and on the contrary practicing genital mutilation on women

goes against the precepts of Islam.

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American Regional Conventions

The following are the important American Regional Conventions

American Convention on Human Rights

The American Convention on Human Rights (also known as the

Pact of San Jose) is an international human rights instrument. It was

adopted by the nations of the Americas meeting in San Jose, Costa

Rica, in 1969. It came into force after the eleventh instrument of

ratification (that of Grenada) was deposited on 18 July 1978.

The bodies responsible for overseeing compliance with the

Convention are the Inter-American Commission on Human Rights and

the Inter-American Court of Human Rights, both of which are organs of

the Organization of American States (OAS).49

According to its preamble, the purpose of the Convention is to

consolidate in this hemisphere, within the framework of democratic

institutions, a system of personal liberty and social justice based on

respect for the essential rights of man.

In the ensuing years, the states parties to the American

Convention have supplemented its provisions with two additional

protocols.

The first, the Additional Protocol to the American Convention on

Human Rights in the area of Economic, Social, and Cultural Rights

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(more commonly known as the Protocol of San Salvador), was opened

for signature in the city of San Salvador, El Salvador, on 17 November

1988. It represented an attempt to take the inter-American human rights

system to a higher level by enshrining its protection of so-called second-

generation rights in the economic, social, and cultural spheres. The

protocol's provisions cover such areas as the right to work, the right to

health, the right to food, and the right to education. It came into effect on

16 November 1999 and has been ratified by 14 nations.

The second, the Protocol to the American Convention on Human

Rights to Abolish the Death Penalty, was adopted at Asuncion,

Paraguay, on 8 June 1990. While Article 4 of the American Convention

had already placed severe restrictions on the states' ability to impose

the death penalty-only applicable for the most serious crimes; no

reinstatement once abolished; not to be used for political offenses or

common crimes; not to be used against those aged under 18 or over

70, or against pregnant women-signing this protocol formalizes a state's

solemn commitment to refrain from using capital punishment in any

peacetime circumstance. To date it has been ratified by 11 nations.

As on 2010, 24 of the 35 OAS's member states have ratified the

Convention.50

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Inter-American Convention to Prevent and Punish Torture

The Inter-American Convention to Prevent and Punish Torture

(IACPPT) is an international human rights instrument, created in 1985

within the Western Hemisphere Organization of American States and

intended to prevent torture and other similar activities.

The Inter-American Convention entered into force on February

28, 1987, and, as of 2010, 18 nations are party to it, with another two

having signed but not yet ratified.

The Inter-American Convention defines torture more expansively

than the United Nations Convention Against Torture, including the use

of methods upon a person intended to obliterate the personality of the

victim or to diminish his physical or mental capacities, even if they do

not cause physical pain or mental anguish. The Convention is one of a

series of OAS agreements that seek to protect human rights, within the

framework of the American Convention on Human Rights, which bans

torture in less detail.51

The Convention also requires states to take effective measures to

prevent torture within their borders, and creates an ability to extradite

persons accused of torture.

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European Regional Conventions

The following are the important European Regional Conventions.

Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union

enshrines certain political, social, and economic rights for European

Union (EU) citizens and residents, into EU law. It was drafted by the

European Convention and solemnly proclaimed on 7 December 2000

by the European Parliament, the Council of Ministers and the European

Commission. However its then legal status was uncertain and it did not

have full legal effect until the entry into force of the Treaty of Lisbon on

1 December 2009.

Under the Charter, the European Union (EU) must act and

legislate consistently with the Charter and the EU's courts will strike

down EU legislation which contravenes it. The Charter only applies to

EU member states when they are implementing EU law and does not

extend the competences of the EU beyond the competences given to it

in the treaties.52

The Treaty establishing the European Economic Community did

not include any reference to fundamental or human rights. The EEC

Treaty was written a few years after the failure of the European Defence

Community Treaty and the European Political Community Treaty. This

latter treaty had included rights provisions and Craig and de Burca

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argue that, in light of that failure, the drafters of the EEC Treaty wished

to eschew any implicitly political elements. However the idea that the

purely economic end of the new EEC Treaty would be unlikely to have

any implications for fundamental rights was soon to be tested.

The Convention adopted the draft on 2 October 2000 and it was

solemnly proclaimed by the European Parliament, the Council of

Ministers and the European Commission on 7 December 2000. It was at

the same time, however, decided to defer making a decision on the

Charter's legal status. However it did come with the political weight of

having been approved by three powerful institutions and as such was

regularly cited by the ECJ as a source of fundamental rights.

Legal force

A modified Charter formed part of the defunct European

Constitution. After that treaty's failure, its replacement, the Lisbon

Treaty, also gave force to the Charter albeit by referencing it an

independent document rather than by incorporating it into the treaty

itself. It should be noted, however, that both the version included in the

Constitution and the one referenced by the Lisbon Treaty were

amended versions.53

On its coming into force with the Lisbon Treaty on 1st December

2009, Justice Commissioner Viviane Reding proposed that

Commissioners should swear to uphold all EU treaties and the Charter.

133
On 3 May 2010, the European Commission swore a solemn declaration

at the European Court of Justice in Luxembourg, pledging to respect the

EU Treaties and to be completely independent in carrying out their

duties during their mandate. For the first time, the Commissioners also

explicitly pledged to respect the new Charter of Fundamental Rights.

Several states insisted upon an opt-out from national application of the

charter.

Convention on Action against Trafficking in Human Beings

The Convention on Action against Trafficking in Human Beings is

a regional human rights treaty of the Council of Europe. The Convention

aims to prevent and combat human trafficking for the purposes of

commercial sexual exploitation or forced labour; to protect and assist

victims and witnesses of trafficking; to ensure effective investigation and

prosecution, and to promote international cooperation against

trafficking. In particular, the Convention requires national co-ordination

measures, awareness raising, measures to identify and support victims

and a recovery and reflection period during which trafficked persons will

not be expelled from the receiving state.54

The Convention establishes a monitoring mechanism (the Group

of experts on action against trafficking in human beings, or GRETA)

consisting of 10 to 15 members elected by the states parties.

134
The Convention opened for signature on 16 May 2005, and

entered into force on 1 February 2008. It has been ratified (as of 30 May

2010) by 27 European states, while a further 16 have signed but not yet

ratified.

European Charter for Regional or Minority Languages

The European Charter for Regional or Minority Languages

(ECRML) is an European treaty (CETS 148) adopted in 1992 under the

auspices of the Council of Europe to protect and promote historical

regional and minority languages in Europe. It only applies to languages

traditionally used by the nationals of the State Parties (thus excluding

languages used by recent immigrants from other states), which

significantly differ from the majority or official language (thus excluding

what the state party wishes to consider as mere local dialects of the

official or majority language) and that either have a territorial basis (and

are therefore traditionally spoken by populations of regions or areas

within the State) or are used by linguistic minorities within the State as a

whole (thereby including such languages as Yiddish and Romani, which

are used over a wide geographic area).

Languages that are official within regions or provinces or federal

units within a State (for example Catalan in Spain) are not classified as

official languages of the State and may therefore benefit from the

Charter. On the other hand, the Republic of Ireland has not been able to

135
sign the Charter on behalf of the Irish language (although a minority

language) as it is defined as the first official language of the state. The

United Kingdom has, though, ratified the Charter in respect of (among

other languages) Welsh and Irish in Northern Ireland. France, although

a signatory, has been constitutionally blocked from ratifying the Charter

in respect of the languages of France.55

The charter provides a large number of different actions state

parties can take to protect and promote historical regional and minority

languages. There are two levels of protection-all signatories must apply

the lower level of protection to qualifying languages. Signatories may

further declare that a qualifying language or languages will benefit from

the higher level of protection, which lists a range of actions from which

states must agree to undertake at least 35.

European Convention on Human Rights

The European Convention on Human Rights (ECHR) (formally

the Convention for the Protection of Human Rights and Fundamental

Freedoms) is an international treaty to protect human rights and

fundamental freedoms in Europe. Drafted in 1950 by the then newly

formed Council of Europe, the convention entered into force on 3

September 1953. All Council of Europe member states are party to the

Convention and new members are expected to ratify the convention at

the earliest opportunity.

136
The Convention established the European Court of Human

Rights. Any person who feels his or her rights have been violated under

the Convention by a state party can take a case to the Court.

Judgments finding violations are binding on the States concerned and

they are obliged to execute them. The Committee of Ministers of the

Council of Europe monitors the execution of judgments, particularly to

ensure payment of the amounts awarded by the Court to the applicants

in compensation for the damage they have sustained. The

establishment of a Court to protect individuals from human rights

violations is an innovative feature for an international convention on

human rights, as it gives the individual an active role on the international

arena (traditionally, only states are considered actors in international

law). The European Convention is still the only international human

rights agreement providing such a high degree of individual protection.

State parties can also take cases against other state parties to the

Court, although this power is rarely used.

The Convention has several protocols. For example, Protocol 13

prohibits the death penalty. The protocols accepted vary from State

Party to State Party, though it is understood that state parties should be

party to as many protocols as possible.

137
European Convention for the Prevention of Torture and Inhuman

or Degrading Treatment or Punishment

The European Convention for the Prevention of Torture and

inhuman or Degrading Treatment or Punishment was adopted by the

member states of the Council of Europe, meeting at Strasbourg on 26

November 1987. It was subsequently amended by two Protocols that

entered into force on 1 March 2002. Overseeing compliance with its

provisions of the Convention is the task of the Committee for the

Prevention of Torture, which was set up by the Convention.56

After the European Convention on Human Rights, the Convention

for the Prevention of Torture is widely regarded as being one of the

most important of the Council of Europe's treaties. It has been ratified

by all 47 of the Council of Europe's member states, and ratification of

the Convention has been a pre-condition for all states who have Joined

the Council of Europe in the last few years.

European Social Charter

The European Social Charter is a Council of Europe treaty which

was adopted in 1961 and revised in 1996. The Revised Charter came

into force in 1999 and is gradually replacing the initial 1961 treaty.

The Charter sets out rights and freedoms and establishes a

supervisory mechanism guaranteeing their respect by the States

parties.

138
The Charter guarantees rights and freedoms which concern all

individuals in their daily existence. The basic rights set out in the

Charter are as follows: housing, health, education, employment, social

and legal protection, free movement of persons and non discrimination.

States Parties to the Charter must submit annual reports on a part

of the provisions of the Charter (be it the 1961 Charter or the 1996

Revised Charter), showing how they implement them in law and in

practice. The European Committee of Social Rights (ECSR) is the body

responsible for monitoring compliance in the States party to the Charter.

The ECSR is composed of 15 independent, impartial members

who are elected by the Council of Europes Committee of Ministers for a


period of six years, renewable once.57

Under the 1995 Additional Protocol providing for a system of

Collective Complaints which came into force in 1998, complaints of

violations of the Charter may be lodged with the ECSR.

Certain organisations are entitled to lodge complaints with the

ECSR (a special list of NGOs has been established, made up of NGOs

enjoying participatory status with the Council of Europe). The ECSR

examines the complaint and, if the formal requirements have been met,

declares it admissible.

139
Framework Convention for the Protection of National Minorities

The Framework Convention for the Protection of National

Minorities (FCNM) was signed on February 1995 by 22 member States

of the Council of Europe (not to be confused with similarly named

institutions of the European Union).

The Council of Europe first discussed according specific

protection for national minorities in 1949, but it was not until 1990 that

the Council of Europe made a firm commitment to protect these minority

groups. Recommendation 1134 (1990) contained a list of principles

which the Assembly considered necessary for this purpose.

The Framework was to become active in 1998. The broad aims of

the Convention are to ensure that the signatory states respect the rights

of national minorities, undertaking to combat discrimination, promote

equality, preserve and develop the culture and identity of national

minorities, guarantee certain freedoms in relation to access to the

media, minority languages and education and encourage the

participation of national minorities in public life.

140
INFERENCE

To protect and safeguard the human rights of the individual

several conventions and declarations were held. These can be broadly

divided into international and regional. A good number of these

conventions and declarations were aimed to oversee the

implementation of human rights. The impact and influence of these

declarations and conventions is vary from one another. The important

International Declarations includes Declarations of the Rights 1948,

American Declaration of the Rights and Duties Man 1948, Caniro

Declaration Human Rights in Islam 1990, Declaration on the Rights of

Indigenous peoples 2007 and UN Declaration on Sexual Orientation

and Gender Identity 2008 etc. Besides, there are 14 International

Conventions on the human rights. Coming to regional Declarations

there are 3 African, 5 American and 7 European human rights

declarations.

The Declaration of the Rights of the child was endorsed by the

General Assembly of League of Nations on 26th November 1924. The

draft was modified by the UN General Assembly on 20th November

1959. As such 20th November is observed as the Universal Childrens

Day. The Universal Declaration of Human Rights on December 10,

1948 in Paris is built on the inherent dignity of every person and is

rightly described as Magna Carta for all humanity. Since 1948, several

human rights treaties and declarations have been negotiated at the

141
United Nations. Among them are the convention on the Prevention and

Punishment of Crime of Genocide, Convention relating to the status of

Refugees, Convention on the Elimination of ail forms Racial

Discrimination, Convention on the Elimination of Discrimination Against

Women Convention against Torture and the Cruel, Inhuman or

Degrading Treatment or Punishment, Convention on the Right of

persons belonging to National or ethnic, Religions and Linguistic

Minorities etc. Apart from these declarations and convections of state of

African Charter on the Rights and Welfare of the child and Maputo

Protocol. The organisation of American states ratified, American

convention on Human Rights, Inter American Convention to prevent and

Punish Torture, Inter-American Convention Forced Disappearance of

Persons, Inter-American Convention on the prevention punishment and

Eradication of violence against Women and Inter American Convention

on the Elimination of all Forms of Discrimination against Persons with

Disabilities. The European Regional Conventions include Charter of

Fundamental Right of the European Union, European Convention of

Human Rights European Social Charter etc.

142
REFERENCES

1. http://treaties.un.ora/Paaes/ViewDetails.aspx?src=TREATY&mtdsq

no=IV-3&chapter=4&lanq=en, Retrieved 2009-02-25.

2. Fact Sheet No.2 (Rev.1), The International Bill of Human Rights.

UNOHCHR.June, 1996, http://www,unhchr.ch/html/menu6/2/fs2,

htm. Retrieved 2008-06-02.

3. Sieghart, Paul, The International Law of Human Rights. Oxford

University Press. 1983. p. 25.

4. Zdzislaw Kedzia United Nations Mechanism to promote and protect

Human Rights in Janusz symonides (Eds) Human Rights

International Protection, Monitoring, Enforcement, Rawat

Publications, New Delhi, 2005, p.9.

5. Opsahl, T., The Human Rights Committee, in P.AIston (ed.), The

United Nations and Human Rights-A Critical Appraisal, Oxford:

Clarendon Press, 1992, p.96.

6. United Nations, Year Book of the Human Rights Committee 1977-

1978, Geneva: United Nations, 1986, p.21.

7. Weissbrodt, David and Farely, Rose, The UNESCO human rights

procedures an evaluation, Human Rights Quarterly, 1994, Vol.16,

No.2, May, pp.391-392.

8. Zdzislaw Kedzia, Op.Cit. p.15.

143
9. Abdel Ghafar, Mostafa, Safeguards of human rights at the

regional level, Cairo Institute for Human Rights Studies, 2001,

pp.1-2.

10. Ibid, p.9

11. Ibid, p.12

12. Ibid, p.29

13. Hanski, R. and Suksi, M. (eds), An Introduction to the

international Protection of Human Rights, Turku/Abo: Institute

for Human Rights, Abo Akademic University, 1999, p.54.

14. Marks, Stephen, UNESCO and human rights; the

implementation of rights relating to education, science,

culture and information, Texas International Law Journal, 1977-

78, 13, pp.35-36.

15. www.aooale.com Human rights.

16. English, Kathryn and Stapleton, Adam, The Human Rights

Handbook, UK Human Rights Centre, 1995.p25.

17. Ramcharan, Bertrand, The United Nations High Commissioner

for Human Rights: The Challenges of International Protection,

Kluwer Law International, 2002, p.30.

18. Shelton, Dinah, Remedies in international Human Rights Law,

Oxford University Press, London, 1999, p.28.

19. Alston, Philip, ed. Human Rights Law. University Press, New

York, 1996. p.11.

144
20. Bayefskh, Anne, Report-the United Nations Human Rights

Treaty System: Universality at the Crossroads, Transitional

Publishers, 2001, p.31.

21. Ramcharan, Bertrand, G. Human Rights and Human Security,

Martinus Nijhoff, 2002, p.53.

22. Ibid, p.59.

23. United Nations, United Nations Action in the Field of Human

Rights, UN Centre for Human Rights, Geneva, 1994, p.59.

24. Dumot, Georges-Henri, UNESCO, the Quest for Human Rights:

UNESCOs Ultimate Goal, UNESCO Sources, 16(1), June, 1990,

p.11.

25. Alston, Philip (ed.), The United Nations and Human Rights - A

Critical Appraisal, Clarendon Press, Oxford, 1992.p.58.

26. Swepston, Lee, The Convention on the Rights of the Child and the

ILO, Nordic Journal of International Law Vols.61-62, 1994.p.56.

27. Ibid, p.58.

28. United Nations Treaty Collection. Convention on the Rights of the

Child, Article 49.

29. Cancado Trindade, A.A. The Application of the Rule of

Exhaustion of Local Remedies in International Law, Cambridge

University Press, Cambridge, 1983, p.25.

30. Bayefskh, Anne, Op.Cit, p.32.

31. Alston, Philip, Op.Cit.p.13.

145
32. Brett, R. Human rights and the OSCE, Human Rights Quarterly,

Vol. 19, 1996, pp.668-669.

33. Winston, S. The rights of women, the African Charter and the

economic development of Africa, Boston College Third World

Law Journal, 1987, Vol. 7, No.2, Spring, pp.215-216.

34. CEDAW, Article.12.

35. CEDAW, Article.18.

36. Ramcharan, Bertrand, G. p.54.

37. Casser Antari, Human Rights in Changing world, Temple

University Press, Philadelphia, 1990, p.51.

38. Brett, R.Op.Cit, 671.

39. Ibid, p.672.

40. Gentleman, Amelia,Children's domestic labor resists India's legal

efforts, New York Times, 18 February, 2007.

41. Alston, Philip, Op.Cit.p.59.

42. Danid D.C. Don Nanjira, The protection of Human Rights in Africa:

The African charter on Human and Peoples Rights, in Janusz

symonides (Eds) Human Rights International Protection,

Monitoring, Enforcement, Rawat Publications, New Delhi, 2005,

p.217.

43. Ibid, p.218.

44. Ibid, p.218.

146
45. Kodjo, Edem, The Africian Charter of Human and Peoples Rights,

Human Rights Law Journal, 1990, Vol.11, Nos.3-4, pp.271-272.

46. Ibid, p.279.

47. Ibid, p.281.

48. Welch Jr. Claude E. Human rights and African women: a

comparison of protection under two major treaties, Human Rights

Quarterly, 1993, Vol.15, No.3, August, pp.549-550.

49. Hugo Caminor, The European System for the protection of Human

Rights, in Janusz symonides (Eds) Human Rights International

Protection, Monitoring, Enforcement, Rawat Publications, New

Delhi, 2005, p.165.

50. Organization of American States (OAS), Inter American Year

book of Human Rights, 1968, Washington DC: OAS, 1973, p.2.

51. Shelton Dinah, Implementation procedures of the American

Convention on Human Rights, German Yearbook of

International Law, 1983, pp.238-239.

52. MacDonald, R. St. J., F.Matscher and H.Petzold, The European

System for the Protection of Human Rights, Dordrecht, Nijhoff,

1993, p.3.

53. Van Dijik, P. and Van Hoff, G.J.H., Theory and Practice of the

European Convention of Human Rights, Deventer: Kluwer,

1990. p.85.

147
54. Maxime Tardu, The European Systems for the protection of

Human Rights, in Janusz syrhonides (Eds) Human Rights

Internationa! Protection, Monitoring, Enforcement, Rawat

Publications, New Delhi, 2005, p.146.

55. Baheyel Din Hasan, Regional Protection of Human Rights in the

Arab States in statu Nar Candi, in Janusz symonides (Eds)

Human Rights International Protection, Monitoring,

Enforcement, Rawat Publications, New Delhi, 2005, p.239.

56. Maxime Tardu, Op. Cit.p.147.

57. Van Dijik, P. and Van Hoff, G.J.H, Op.Cit.p.86.

148
The idea of human rights, that is the notion that anyone has a set

of inviolable rights simply on grounds of being human regardless of

legal status, origin or conviction for crimes, emerges as an idea of

Humanism in the Early Modern period and becomes a position in the

18th century Age of Enlightenment. The modern human rights

movement as a consequence comes to bear in the post-World War II

era.

Some notions of righteousness present in ancient law and religion

is sometimes retrospectively included under the term human rights.

While Enlightenment philosophers suggest a secular social contract

between the rulers and the ruled, ancient traditions derived similar

conclusions from notions of divine law, and, in Hellenistic philosophy,

natural law.

Early history of human rights

While it is known that the reforms of Urukagina of Lagash, the

earliest known legal code (2350 BC), must have addressed the concept

of rights to some degree, the actual text of his decrees has not yet been

found. The oldest legal codex extant today is the Neo-Sumerian Code

of Ur-Nammu (2050 B.C). Several other sets of laws were also issued in

Mesopotamia, including the Code of Hammurabi (1780 B.C), one of the

most famous examples of this type of document. It shows rules, and

35
punishments if those rules are broken, on a variety of matters, including

women's rights, men's rights, children's rights and slave rights.

The prefaces of these codes invoked the Mesopotamian Gods for

divine sanction. Societies have often derived the origins of human rights

in religious documents. The Vedas, the Bible, the Qur'an and the

Analects of Confucius are also among the early written sources that

address questions of people's duties, rights, and responsibilities.

Persian Empire

The Achaemenid Persian Empire of ancient Iran established

unprecedented principles of human rights in the 6th century BC under

Cyrus the Great. After his conquest of Babylon in 539 BC, the king

issued the Cyrus Cylinder, discovered in 1879 and recognized by many

today as the first human rights document. The Cyrus Cylinder declared

that citizens of the empire would be allowed to practice their religious

beliefs freely. It also abolished slavery, so all the palaces of the kings of

Persia were built by paid workers in an era where slaves typically did

such work. These two reforms were reflected in the biblical books of

Chronicles, Nehemiah, and Ezra, which state that Cyrus released the

followers of Judaism from slavery and allowed them to migrate back to

their land. The Cylinder now lies in the British Museum, and a replica is

kept at the United Nations Headquarters.1

36
In the Persian Empire, citizens of all religions and ethnic groups

were also given the same rights, while women had the same rights as

men. The Cyrus Cylinder also documents the protection of the rights to

liberty and security, freedom of movement, the right of property, and

economic and social rights.

Human Rights in Greco-Roman Period

In philosophy, the development of the notion of natural rights of

man was contributed by the stoic philosophers. They first developed

natural law theory and by virtue of it they explained the nature of human

rights, that is, the rights that every human being possesses by virtue of

being human. According to Socrates, the possesses insight and this

insight reveals to him the goodness and badness of things and makes

him know the absolute, eternal and moral rules. This human insight is

the basis to Judge the law.2 However, it may be noted that the citizens

of the Greek City states enjoyed some basic rights even before the

formulation of natural law theory by the Stoic philosophers. They were

in particular:

The Right to freedom of speech.


The Right to equality before law and
The Right to Equal respect for all.

According to the Greek Philosophy, the laws of nature are unwritten.

According to them, human beings are born with human rights, which are

inalienable.

37
The Stoic Philosophers formulated the theory of natural law after

the breakdown of the Greek City states. The central notion of the stoic

philosophy was that the Principles of natural law were universal in their

nature.3

There was a court at Athens, which tried animals and inanimate

objects and guilty human beings. Plato the great philosopher,

recommended the trial and punishment of animals and lifeless objects.

The Exodus says, if an ox gore a man or a woman that they die, then

the ox shall be surely stoned and his flesh shall not be eaten, but the

owner of the ox shall be quit.

The Idea of Justice, at an early stage in Greek Philosophy, was a

guiding principle not only for the behaviour of the individual, but also for

the organization of society. The most outstanding among the Great

Philosophers who speculated the concept of justice was Aristotle (384-

322 B.C). One of the main ideas of Aristotles ethics is that like shall be

treated as like, and unlike as unlike. King August recognized the rights

of slaves. During 500 B.C. to 483 A.D. various changes were made.

During this period women were also given some rights, including the

right to diverse.

In part because Hellenistic Stoicism played a key role in its

formation and spread, Roman law has allowed the existence of a Jus

naturale (natural law) and with pursuant to the Jus gentium (law of

38
nations), contains universal rights that extended beyond the rights of

citizenship.

According to the Roman Jurist Ulpian, for example, natural law

was that which nature not the State assures to all human beings,

Roman citizen or not. They believed in the universal brotherhood of

man and they related what they considered to be the innate reason of

man to cosmic order. In this respect, Cicero remarked Universal

consent is the voice of Nature.4

Mauryan Empire

The Mauryan Empire of ancient India established unprecedented

principles of civil rights in the 3rd century B.C under Ashoka the Great.

After his brutal conquest of Kalinga in 265 B.C, he felt remorse for what

he had done, and as a result, adopted Buddhism. From then, Ashoka,

who had been described as the cruel Ashoka eventually came to be

known as the pious Ashoka. During his reign, he pursued an official

policy of nonviolence (ahimsa) and the protection of human rights, as

his chief concern was the happiness of his subjects. The unnecessary

slaughter or mutilation of animals was immediately abolished, such as

sport hunting and branding. The first welfare state was established.

Ashoka also showed mercy to those imprisoned, allowing them outside

one day each year, and offered common citizens free education at

universities. He treated his subjects as equals regardless of their

39
religion, politics or caste, and constructed free hospitals for both

humans and animals. Ashoka defined the main principles of

nonviolence, tolerance of all sects and opinions, obedience to parents,

respect for teachers and priests, being liberal towards friends, humane

treatment of servants, and generosity towards all. These reforms are

described in the Edicts of Ashoka.5

In the Mauryan Empire, citizens of all religions and ethnic groups

also had rights to freedom, tolerance, and equality. The need for

tolerance on an egalitarian basis can be found in the Edicts of Ashoka,

which emphasize the importance of tolerance in public policy by the

government. The slaughter or capture of prisoners of war was also

condemned by Ashoka. Some sources claim that slavery was also non

existent in ancient India. Other state, however, that slavery existed in

ancient India, where it is recorded in the Sanskrit Laws of Manu of the

1st century B.C.

Human Rights during Middle Ages

It was not until after the middle ages, however, that natural law

doctrines became closely associated with liberal political theories about

natural rights. One of the first attempts at codification of some thing like

a catalogue of rights can be seen in 1188 A.D. When King Alfonso IX of

the Kingdom of Leonso, confirmed a series of rights, including the right

of the inviolability of life, however, home and property, on his lords,

40
conferred on the feudal Assembly of the kingdom of Leon. In the

Golden Bull of King Andrew II of Hungary (1222) the King guaranteed

among other things, that no noble would be arrested without first being

convicted in conformity with judicial procedure.

During this period, the idea of human rights to take hold as a

general social need and reality, it was necessary that basic changes in

the beliefs and practices of society take place, changes of the sort that

evolved from about the 13th century to the peace of Westphalia (1648),

during the Renaissance and the decline of feudalism. The teaching of

St. Aquinas (1224-1274) and Hugo Grotius (1583-1645) on the

European continent, and the English B

were proof of this change.6

Early Islamic Caliphate

Many reforms in human rights took place under Islam between

610 A.D and 661 A.D, including the period of Muhammad's mission and

the rule of the four immediate successors who established the Rashidun

Caliphate. Historians generally agree that Muhammad preached against

what he saw as the social evils of his day, and that Islamic social

reforms in areas such as social security, family structure, slavery, and

the rights of women and ethnic minorities improved on what was

present in existing Arab society at the time. For example, according to

Bernard Lewis, Islam "from the first denounced aristocratic privilege,

41
rejected hierarchy, and adopted a formula of the career open to the

talents." John Esposito sees Muhammad as a reformer who condemned

practices of the pagan Arabs such as female infanticide, exploitation of

the poor, usury, murder, false contracts, and theft. Bernard Lewis

believes that the egalitarian nature of Islam "represented a very

considerable advance on the practice of both the Greco-Roman and the

ancient Persian world." Muhammed also incorporated Arabic and

Mosaic laws and customs of the time into his divine revelations.7

The Constitution of Medina, also known as the Charter of Medina,

was drafted by Muhammad in 622 A.D. It constituted a formal

agreement between Muhammad and all of the significant tribes and

families of Yathrib (later known as Medina), including Muslims, Jews,

and pagans. The document was drawn up with the explicit concern of

bringing to an end the bitter inter tribal fighting between the clans of the

Aws (Aus) and Khazraj within Medina. To this effect it instituted a

number of rights and responsibilities for the Muslim, Jewish and pagan

communities of Medina bringing them within the fold of one community-

the Ummah. The Constitution established the security of the community,

freedom of religion, the role of Medina as a haram or sacred place

(barring all violence and weapons), the security of women, stable tribal

relations within Medina, a tax system for supporting the community in

time of conflict, parameters for exogenous political alliances, a system

for granting protection of individuals, a judicial system for resolving

42
disputes, and aiso regulated the paying of blood-write (the payment

between families or tribes for the slaying of an individual in lieu of less

taxations).8

Muhammad made it the responsibility of the Islamic government

to provide food and clothing, on a reasonable basis, to captives,

regardless of their religion. If the prisoners were in the custody of a

person, then the responsibility was on the individual. Lewis states that

Islam brought two major changes to ancient slavery which was to have

far-reaching consequences. "One of these was the presumption of

freedom; the other, the ban on the enslavement of free persons except

in strictly defined circumstances,"9 Lewis continues. The position of the

Arabian slave was enormously improved, the Arabian slave was now no

longer merely a chattel but was also a human being with a certain

religious and hence a social status and with certain quasi-legal rights.

Esposito states that reforms in women's rights affected marriage,

divorce, and inheritance. Women were not accorded with such legal

status in other cultures, including the West, until centuries later. The

Oxford Dictionary of Islam states that the general improvement of the

status of Arab women included prohibition of female infanticide and

recognizing women's full personhood. "The dowry, previously regarded

as a bride-price paid to the father, became a nuptial gift retained by the

wife as part of her personal property." Under Islamic law, marriage was

43
no longer viewed as a status but rather as a contract, in which the

woman's consent was imperative. Women were given inheritance rights

in a patriarchal society that had previously restricted inheritance to male

relatives. Annemarie Schimmel states that compared to the pre-lslamic

position of women, Islamic legislation meant an enormous progress; the

woman has the right, at least according to the letter of the law, to

administer the wealth she has brought into the family or has earned by

her own work. William Montgomery Watt states that Muhammad, in the

historical context of his time, can be seen as a figure who testified on

behalf of womens rights and improved things considerably. Watt

explains: "At the time Islam began, the conditions of women were

terrible - they had no right to own property, were supposed to be the

property of the man, and if the man died everything went to his sons."

Muhammad, however, by "instituting rights of property ownership,

inheritance, education and divorce, gave women certain basic

safeguards." Haddad and Esposito state that "Muhammad granted

women rights and privileges in the sphere of family life, marriage,

education, and economic endeavors, rights that help improve women's

status in society."10 However, other writers have argued that women

before Islam were more liberated drawing most often on the first

marriage of Muhammad and that of Muhammad's parents, but also on

other points such as worship of female idols at Mecca.

44
Sociologist Robert Bellah (Beyond belief) argues that Islam in its

seventh-century origins was, for its time and place, "remarkably modern

in the high degree of commitment, involvement, and participation

expected from the rank-and-file members of the community." This is

because, he argues, that Islam emphasized the equality of all Muslims,

where leadership positions were open to all. Dale Eickelman writes that

Bellah suggests "the early Islamic community placed a particular value

on individuals, as opposed to collective or group responsibility.11

The Magna Carta (1215 A.D.)

During the Hellenistic period, philosophers began to claim that all

people, regardless of position, should be guaranteed certain political

and human rights. During the middle ages in England, wealthy land

owners and barons stood up to suffering they were subject to under the

rule of King John, forcing him to sign the Magna Carta. This made it

mandatory for the King to rule in a fair manner and protect the barons

from unfair treatment from the government, although the peasants were

barely mentioned. Today the Magna Carta is hailed as one of the most

important landmarks in the history of human rights and free

government.12

The most important event of this period was the signing of Magna

Carta by the King, which is said to be the first milestone on the road to

the liberties of the people of England in 1215 A.D. The Magna Carta is

45
also known as the great charter of liberty. The English King John at

Runnymede accepted to grant certain rights to a particular section of his

people. Its famous clause 39, stating: No freeman shall be taken or

imprisoned or banished in any way destroyed, nor will we go upon him,

nor send him, except by the lawful judgement of his peers or by the law

of the land has been termed as the symbol of individual liberty for

centuries to come.13

The Petition of Rights (1628)

The petition of rights is a celebrated document drawn up by the

English House of Commons in 1628, setting forth grievances against

King Charles-I. The King had levied taxes without approval by

Parliament: he had illegally imprisoned persons who refused the loans -

all in order to pursue external policies as vacillating as they were

unsuccessful. The petition of Rights was a Parliamentary Declaration in

which freedom of people was dealt with, for example, that nobody shall

be indebted nor taxed without the permission of Parliament, and nobody

shall be imprisoned in an arbitrary way.

The Petition of Rights, however, is a landmark in the English

history and constitutional development, echoed in the American

Declaration of Independence and the US Constitution.14

46
The Bill of Rights (1689)

The Bill of Rights was officially titled as an act for declaring the

rights and liberties of the subjects and for settling the succession of the

crown, 1689. This Act was enacted at the time when William of Orange

and Mary Stuart ascended to the Throne of England. The Declaration

of Rights, which was drawn up and passed through Parliament in 1689,

completed the work which Magna Carta had begun.

Its clauses may be briefly summarized, First William and Mary

were declared to be King and Queen and a clause was added that no

person who was a Roman Catholic or who married a Roman Catholic

could succeed to the throne. Secondly, it declared to be illegal: (a) the

Pretended Power of the crown to suspend laws; (b) the power of

dispensing with laws as it has been exercised of late by the crown; (c)

The existence of the Court of High Commission and similar courts.

Thirdly, Parliament was to be freely elected, to have freedom of speech

and to meet frequently, and there was to be no taxation without its

consent. Fourthly, a standing army was declared illegal. The Bill of

Rights is concerned particularly with limiting, the powers of the King and

safeguarding certain rights of the subject.15

The Social Contract Theory

The social contract theory 17th century was another cause which

survived the conception of human rights and pressed its power for the

47
development of it. In the 17th century, the protagonists of social contract

theory, mainly Rousseau undertook to explain that state of nature

emerged as a political society due to separate acts of individuals,

whereby they undertook with one another to set up a government which

would be responsible for promotion of their common interests. These

social contract writers revitalized the concept of natural rights and put

forward certain dynamic contents which greatly influenced the American

and French Revolutions.16

Early Modern period and Age of Enlightenment

The conquest of the Americas in the 16th century by the Spanish

resulted in vigorous debate about human rights in Spain. The debate

from 1550-1551 A.D between Las Casas and Juan Gines de Sepulveda

at Valladolid was probably the first on the topic of human rights in

European history. Several 17th and 18th century European philosophers,

most notably John Locke, developed the concept of natural rights, the

notion that people are naturally free and equal. Though Locke believed

natural rights were derived from divinity since humans were creations of

God, his ideas were important in the development of the modern notion

of rights. Lockean natural rights did not rely on citizenship nor any law

of the state, nor were they necessarily limited to one particular ethnic,

cultural or religious group.

48
Two major revolutions occurred that century in the United States

(1776) and in France (1789). The Virginia Declaration of Rights of 1776

sets up a number of fundamental rights and freedoms. The later United

States Declaration of Independence includes concepts of natural rights

and famously states "that all men are created equal, that they are

endowed by their Creator with certain inalienable rights that among

these are life, liberty and the pursuit of happiness." Similarly, the French

Declaration of the Rights of Man and Citizen defines a set of individual

and collective rights of the people. These are, in the document, held to

be universal - not only to French citizens but to all men without

exception.17

The American War of Independence (1775-1783)

The American War of Independence period from 1775 to 1783

was a very important age of constructive ideas and progressive

expectations. The Charter of American Revolution is based on the

views of Hobbes, Locke, Rousseau, Bodin and Montesquieu etc.

Thomas Jeffersons famous words in the United States Declaration of

Independence are ominous.

We hold these truths to be self evident that all men are created

equal; that they are endowed with certain inalienable rights; that among

them are life, liberty and pursuits of happiness.18

49
Thus, was inaugurated the era of the declaration of fundamental

rights. The Constitution came into existence in which the Bill of Rights

was part of the Constitution. Jackson J. observed that the very purpose

of a Bill of Rights was to withdraw certain subjects from the vicissitudes

of political controversy, to place them beyond the reach of majority and

to establish them as legal principles to be applied by courts. The

constitutional history of the United States vividly brings to force the

concept of constitutionally recognized fundamental rights. About the Bill

of Rights, Thomas Jefferson was of the view that all people are entitled

to it.

The French Revolution (1789)

The trident of equality, liberty and fraternity found its most

emphatic expression in human history in 1789, when the French

Assembly declared the rights of man and citizen decreed by the French

National, on August 20-26,1789. The remarkable thing that occurs with

adoption of this declaration is that the inviolable, natural law human

rights are set forth in a state document and thus, in so far as that goes,

incorporated in national positive law. The French Declaration of the

Rights of Man and of the Citizen, in its Article 1 stated:

Men are born and remain free and equal in rights; social

distinctions can be based only upon public utility. The French

Revolution was the result of economic and social inequalities and

50
injustices of the ancient regime of French. The doctrine of natural law

at the turn of the century after the French Revolution was a doctrine on

abstract, immutable principles and eternal, inviolable human rights. It is

against this ideology of natural law that reaction sets in with tremendous

violence in many countries.

The idea of human rights as natural rights was not without its

detractors, however, even at this otherwise receptive time. In the first

place being frequently associated with religious orthodoxy, the doctrine

of natural rights became less and less acceptable to philosophy and

political liberals. Additionally, because they were conceived in

essentially absolutist-inalienable, unalterable, eternal-terms natural

rights were found increasingly to come into conflict with one another.

Most importantly, the doctrine of natural rights came under powerful

philosophical and political attack from both the right and the left.

In England, for example, conservatives Edmund Burke and David

Hume united with Liberal, Jeremy Bentham in condemning the doctrine,

the former out of fear that public affirmation of natural of natural rights

would led to social upheaval, the latter out of concern lest declaration

and proclamations of natural rights substitute for effective legislation.

This assault upon natural law and natural rights thus began

during the 18th century and early 20th centuries. John Stuart Mill,

despite his vigorous defense of liberty, proclaimed that rights ultimately

51
are founded on utility. The German Jurist Frederic Karl Van Savingnly

Englands Sir Henry Maine and other historians emphasized that rights

are a function of cultural and environmental variables unique to

particular communities. The Jurist, John Austin insisted respectively

that the law is the command of the sovereign.19

19th century to World War I

Philosophers such as Thomas Paine, John Stuart Mill and Hegel

expanded on the theme of universality during the 18th and 19th

centuries. In 1831 William Lloyd Garrison wrote in a newspaper called

The Liberator that he was trying to enlist his readers in "the great cause

of human rights" so the term human rights probably came into use

sometime between Paine's The Rights of Man and Garrison's

publication. In 1849 a contemporary, Henry David Thoreau, wrote about

human rights in his treatise On the Duty of Civil Disobedience which

was later influential on human rights and civil rights thinkers. United

States Supreme Court Justice David Davis, in his 1867 opinion for Ex

Parte Milligan, wrote "By the protection of the law, human rights are

secured; withdraw that protection and they are at the mercy of wicked

rulers or the clamor of an excited people."20

Many groups and movements have managed to achieve profound

social changes over the course of the 20th century in the name of

human rights. In Western Europe and North America, labour unions

52
brought about laws granting workers the right to strike, establishing

minimum work conditions and forbidding or regulating child labour. The

women's rights movement succeeded in gaining for many women the

right to vote. National liberation movements in many countries

succeeded in driving out colonial powers. One of the most influential

was Mahatma Gandhi's movement to free his native India from British

rule. Movements by long-oppressed racial and religious minorities

succeeded in many parts of the world, among them the civil rights

movement, and more recent diverse identity politics movements, on

behalf of women and minorities in the United States.

The foundation of the International Committee of the Red Cross,

the 1864 Lieber Code and the first of the Geneva Conventions in 1864

laid the foundations of international humanitarian law, which is further

developed following the two World Wars.

Between World War I and World War II

The League of Nations was established in 1919 at the

negotiations over the Treaty of Versailles following the end of World

War I. The League's goals included disarmament, preventing war

through collective security, settling disputes between countries through

negotiation, diplomacy and improving global welfare. Enshrined in its

Charter was a mandate to promote many of the rights which were later

included in the Universal Declaration of Human Rights.

53
The League of Nations had mandates to support many of the

former colonies of the Western European colonial powers during their

transition from colony to independent state.

Established as an agency of the League of Nations, and now part

of United Nations, the International Labour Organization also had a

mandate to promote and safeguard certain of the rights later included in

the Universal Declaration of Human Rights (UDHR).21

The primary goal of the International Labour Organisation (ILO)

today is to promote opportunities for women and men to obtain decent

and productive work, in conditions of freedom, equity, security and

human dignity.-Report by the Director General for the International

Labour Conference 87th Session.

Human Rights prior to World War II

Ever since ancient times, especially since the emergence of the

modern state system, the Age of discovery, and the accompanying

spread of Industrialization and European culture throughout the world,

there has developed, for economic and other reasons, a unique set of

customs and conventions relative to the humane treatment of

foreigners. This evolving international law of state responsibility of the

injuries to aliens, as these customs and conventions came to be called,

may be understood to represent the beginning of active concern for

human rights on the international plane. The founding fathers of

54
International Law particularly Francisco Devitoria (1486-1546). Hugo

Grotius (1583-1645) and Emmerich De Vattel (1714-1767) were quick

to observe that all persons, outlander as well as other, were entitled to

certain natural rights; and they emphasized, consequently, the

importance of according aliens fair treatment.22

Throughout the 19th and early 20th centuries numerous military

operations and diplomatic representations, not all of them with the

purest of motives but done nonetheless in the name of humanitarian

intervention, undertook to protect oppressed and persecuted minorities

in the Ottoman Empire and in Syria, Crete various Balkan countries,

Romania and Russia. Paralleling these actions, first at the Congress of

Vienna (1814-1815) and later between the two World Wars, a series of

treaties and international declarations sought the protection of certain

racial, religious, and linguistic minorities in Central and Eastern Europe

and in the Middle East.

By the end of World War I, there were scarcely any theorists who

would or could defend the rights of man along the lines of natural law.

Indeed, under the influence of 19th century German idealism and

parallel expression of rising European nationalism, there were some

Marxists, for example, who although not rejecting individual rights

altogether maintained that rights, from whatever source derived, belong

to communities or whole societies and nations permanently. The

55
following observation of F.H.Bradlay, the British Idealist, made in 1894

a'ptly depicts the entire scenario.

The rights of the individual are today not worth serious

consideration-the welfare of the community is the end and is the

ultimate standard.23

The League of Nations

The covenant of the League of Nations, the Treaty which in 1920

established the League and served as its Constitution, contained no

general provisions dealing with human rights and while failing to lay

down a principle of racial non-discrimination as requested by Japan.

Nevertheless committed the Leagues members to several human rights

goals; fair and humane working conditions far men, women and

children. The execution of agreements regarding traffic in women and

children is under the general supervision of the Permanent Mandates

Commission, the administering powers were obligated to promote to

the utmost the material and moral well-being and the social progress of

the inhabitants as a sacred trust of civilization. The establishment of

League of Nations received special impetus when President Woodrow

Wilson announced his historic 14-Point Programme in January 1918.

The covenant came into force on January 10, 1920 after obtaining the

ratification of requisite number of States.

56
These agreements did little to slow the descent toward World War

II. In the Atlantic Charter of 1941, President Franklin D. Roosevelt* and

Prime Minister Winston Churchill pledged to respect the right of all

people to choose the form the government under which they will live to

see sovereign rights and self government restored to those who have

been forcibly deprived of them.

Roosevelts emphasis on the four freedoms, that is, freedom of

speech and expression, freedom of worship, freedom from want and

freedom from fear and were incorporated into the Atlantic Charter in

August 1941 and also foreshadowed the post war Universal Declaration

of Human Rights, and the decision immediately after the war, to try

German and Japanese leaders for war crimes and crimes against

humanity represented the first effort to determine responsibility for

violating human rights.

Geneva Conventions

The Geneva Conventions came into being between 1864 and

1949 as a result of efforts by Henry Dunant, the founder of the

International Committee of the Red Cross. The conventions safeguard

the human rights of individuals involved in conflict, and follow on from

the 1899 and 1907 Hague Conventions, the international community's

first attempt to define laws of war. Despite first being framed before

57
World War II, the conventions were revised as a result of World War II

and readopted by the international community in 1949.

The Geneva Conventions are:24

First Geneva Convention "for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field" (first adopted in

1864, last revision in 1949)

Second Geneva Convention "for the Amelioration of the Condition of

Wounded, Sick and Shipwrecked Members of Armed Forces at Sea"

(first adopted in 1949, successor of the 1907 Hague Convention X)

Third Geneva Convention "relative to the Treatment of Prisoners of

War" (first adopted in 1929, last revision in 1949)

Fourth Geneva Convention "relative to the Protection of Civilian

Persons in Time of War" (first adopted in 1949, based on parts of the

1907 Hague Convention IV)

In addition, there are three additional amendment protocols to the

Geneva Convention:25

Protocol I (1977): Protocol Additional to the Geneva Conventions

of 12 August 1949, and relating to the Protection of Victims of

International Armed Conflicts. As of 12 January 2007 it had been

ratified by 167 countries.

Protocol II (1977): Protocol Additional to the Geneva Conventions

of 12 August 1949, and relating to the Protection of Victims of

58
Non-International Armed Conflicts. As of 12 January 2007 it had

been ratified by 163 countries.

Protocol III (2005): Protocol Additional to the Geneva

Conventions of 12 August 1949, and relating to the Adoption of

an Additional Distinctive Emblem. As of May 20, 2008, it had

been ratified by 28 countries and signed but not yet ratified by an

additional 59 countries

All four conventions were last revised and ratified in 1949, based

on previous revisions and partly on some of the 1907 Hague

Conventions. Later conferences have added provisions prohibiting

certain methods of warfare and addressing issues of civil wars. Nearly

all the members of UNO of the world are signatory nations, in that they

have ratified these conventions. The International Committee of the Red

Cross is the controlling body of the Geneva conventions.

The United Nations and Human Rights

The idea of human rights emerged stronger after World War II.

The extermination by Nazi Germany of over six million Jews, Sinti and

Romani, persons with disabilities horrified the world. Trails were held in

Nuremberg and Tokyo after World War II, and officials from the

defeated countries were punished for community war crimes, Crimes

against peace, and Crimes against humanity.26

59
With the drafting of the Charter of the United Nations, human

rights achieved a central place on the world stage. The founders of the

United Nations sought to avoid the weaknesses of the League of

Nation, including its cumbersome procedures, its inability to counter

aggression effectively, and the lack of American participation. Its

purpose included to develop friendly relations among nations based on

respect for the principles to achieve informational corporation in

promoting and encouraging respect for all without distinctions as to

race, sex, language and religion.27

The Economic and Social Council which in turn established the

Commission on Human Rights in January, 1946 was charged with

Human Rights Protection. This Commission composed entirely of

Government representatives, has played an important role in drafting

declarations and treaties that have given human rights a far stronger

footing international law than ever before.

Human Rights under the U.N. Charter

At the San Francisco Conference it was expressed by several

delegates that the United Nations should frame an International Bill of

Rights. Although that could not be done, it was well realised by the

members that it should be the obligation of the international community

to cooperate in eradicating the scourge of war, and they were therefore

determined that the promotion and respect for human rights which at

60
present constitute so important and so conspicuous be an integrated

part of the U.N. Charter.

The result was that the Charter contains provisions for the

promotion and protection of human rights and fundamental freedoms in

the preamble and in Articles 1, 13 (1) (6), 55, 56, 62 (2), 68 and 76 (c).

The Preamble of the Charter in its first substantive paragraph laid down

that the peoples of the United Nations determined to re-affirm faith in

fundamental human rights, in the dignity and worth of the human

person, in the equal rights of men and women and of nations large and

small one of the purposes, therefore, as set out in Para 3 of Article 1 of

the Charter was the achievement of international co-operation in

promoting and encouraging respect for human rights and for

fundamental freedoms for all without distinction as to race, sex,

language or religion.

The above provision shows that the desirability of promoting and

encouraging respect for human rights and fundamental freedoms,

without distinction as to race, sex, language or religion was generally

recognized. However, despite the differences as to what rights and

freedoms are, the achievement of the maximum freedom and dignity of

the human beings was the primary aim of the United Nations. The

General Assembly and the Economic and Social Council were given the

task for the realisation of the promotion of human rights and

61
fundamental freedoms. By the terms of Article 13, the General

Assembly was empowered to initiate studies and make '

recommendations for the purpose of assisting in the realisation of

human rights and fundamental freedoms all without distinction as to

race, sex, language or religion. Article 55 provides that the United

Nations shall promote, universal respect for and observance of, human

rights and fundamental freedoms for all without distinction as to race,

sex, language or religion and by the terms of Article 56 members of the

United Nations pledged themselves to take joint and separate action in

co-operation with the organisation for the achievement of the purposes

set forth in Article 55. Article 62 of the Charter authorizes the Economic

and Social Economical to make recommendations for the purposes of

promoting respect for, and observance of human rights and

fundamental freedoms. Article 68 directs the Council to establish

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. Para (c) of Article 76 stipulated that one of

the basic objectives of the trusteeship system is to encourage respect

for human rights and for fundamental freedoms for all without distinction

as to race, sex, language or religion, and to encourage recognition of

the interdependence of the peoples of the world.

The above provisions of the Charter make it clear that the States

treatment of its own citizens is a matter of international concern.

62
Although there was no universal agreement as to the precise extent of

the human rights and fundamental freedoms- guaranteed to all by the

Charter, there is at present no dissent from the view that they have

become one of the basic principles of international law.28

The Charter by incorporating the provisions relating to promotion

of human rights and fundamental freedoms opened a new dimension

towards the progressive development of international law. It was the

first international document which recognised the respect for human

rights and fundamental freedoms as a principle of international law.

Their recognition and their further realization was deemed necessary as

they were regarded as one of the methods of achieving greater unity

between the states and also because they are indispensable for the

maintenance of international peace and security. It is clear from the

wordings of Article 55 of the Charter which lays down that the United

Nations shall promote universal respect for, and observance of human

rights and fundamental freedoms for all without distinction as to race,

sex, language or religion with a view to the creation of conditions of

stability and well being which are necessary for peaceful and friendly

relations among nations. The observance of human rights therefore

contains an essential element of peace. President Truman at the

closing address to the San Francisco Conference as to relationship of

the promotion of human rights and the maintenance of international

peace and security stated that:

63
The Charter is dedicated to the achievement and observance of

human rights and fundamental freedoms. Unless world citizens attain

these objectives for all men and women everywhere without regard to

race, language or religion one cannot have permanent peace and

security in the world.29

It is to be noted that the Charter neither defined the human rights

nor they were enumerated therein. The guarantee for the protection of

human rights and fundamental freedoms was also not provided therein.

Although it was proposed by the Latin American States during the

drafting of the Charter at San Francisco Conference that it should

contain an International Bill of Rights, a specific list of rights could not

be prepared at the conference.

64
INFERENCE

The history of human rights can be traced back to 2350BC. The

preparation of legal code of conduct guaranteed some kind of rights of

all sections of the people in ancient kingdoms of Mesopotamia, Persian

Empire, Greek Empire, etc. During Greco-Roman period the idea of

natural rights was came into prominence, after the development of

natural law. No authentic information is available on the enjoyment of

rights by the people of India before the establishment of Mauryan

Empire. The great Mauryan ruler Ashoka after the completion of

Kalinga conquest slowly turned his attention towards humanity and their

rights. During his reign all sections of people enjoyed rights to freedom,

tolerance and equality. But, in other parts of India the people suffered

due to slavery.

During medieval ages the notion of human rights took hold as a

general social need and reality. In some parts of the world the old legal

code of conducts was replaced by new ones. During this age, the

philosophies of some scholars have given boost to the human rights.

Under the rule of Muslim Caliphate several reforms were introduced to

put a full stop to several social evils. It has been made obligatory to

provide food and clothing even for captives under the rule Muhammad.

The signing on the Magna Carta by King John of England further

boosted the human rights movement. The petition of Rights and the Bill

of Rights have recognised the rights of the subjects by the ruler. The

65
American War of Independence further boosted the theory of natural

rights of the man. The French Revolution of 1789 is The most

remarkable event in the development of rights of man all over the world.

It is considered as the war of man for the sake of freedom, liberty and

equality. The two World Wars have given further fillip for the recognition

of justiciable rights of the man. After the end of the Second World War

the United Nations Organisation made several provisions in various

provisions of its charter to guarantee several rights to the citizens of the

world. Besides, the UNO also established several agencies to look after

the rights of several sections of the human society of the world.

66
REFERENCES

1. C.Naseema, Human Rights and Education Conceptual and

Pedagogical Aspects, Kanishka Publishers, New Delhi: 2002, p.1.

2. Ibid, p.2.

3. Szabo, Historical foundations of Human Rights and Subsequent

Developments, in Vasak, K. International Dimensions of Human

Rights, Vol.1. 1982, p.39.

4. H.O.Agarwal, International Law and Human Rights, Central Law

Publications, 2007, p.142.

5. C.Naseema, Human Rights and Education Conceptual and

Pedagogical Aspects, Deep and Deep Publications, New Delhi,

2001, p.3.

6. Ibid, pp.4-5.

7. Arun Kumar Palai, National Human Rights Commission of India

Formation, Functioning and Future Prospects, Atlantic

Publishers, New Delhi, 1996, p.10.

8. Ibid, p.11.

9. Ibid, pp.11-12.

10. Ibid, p.12.

11. Scott Davidson, Human Rights, Philadelphia Open University

Press, Philadelphia, 1993, p.2.

12. C.Naseema, Op.Cit, p.7.

13. Ibid, p.8.

14. Ibid, p.12.

67
15. A.C.Kapur, Principles of Political Science, S.Chand Company

Pvt. Ltd., New Delhi, 1987, p.210.

16. Rajinder Pawar, Historical Development of Human Rights,

American Law Journal, 1989, Vol. 4. Nos. 1-7, p.52.

17. U.Chandra, Human Rights, Allahabad Law Agency, Allahabad,

1999, p.71.

18. Paramjit S.Jaswal and Niswtha Jaswal, Human Rights and the

Law, A.P.H. Publishing Corporation, New Delhi, 1996, p.58.

19. Burns H. Weston, Human Rights, Human Rights Quarterly,

Vol.6, No.3, 1984, p.257.

20. Paramjit S.Jaswal and Nishtha Jaswal Op.Cit., p.118.

21.Indian Socio-legal Journal, Vol. XXXI, 2005.

22. George Townsend Warner et.al. The New Ground Work of British

History, Blackie Limited, London, 1968, p. 136.

23.Indian Socio-Legal Journal, Vol.XXXI, 2004, p.3.

24. Encyclopedia Americana, 1999, p. 814.

25. K.C.Wheare, Modern Constitutions, Oxford University, Bombay

1984, p. 10.

26. Encyclopedia Americana, 1999 pp.126-127.

27. Ibid, p.127.

28. Jacob E.Salfra and James E. Goulka Encyclopedia Britannica,

656,: Encyclopedia Britannica Inc, Chicago, 1997, p.10.

29.Indian Socio-Legal Journal, Vol. XXXI, 2005,

p.42.

68
Chapter- 3

INTERNATIONAL DECLARATIONS
AND CONVENTIONS ON
HUMAN RIGHTS
International human rights instruments can be classified into two

categories: declarations, adopted by bodies such as the United Nations

General Assembly, which are not legally binding although they may be

politically so; and conventions, which are legally binding instruments

concluded under international law. International treaties and even

declarations can, over time, obtain the status of customary international

law.

International human rights instruments can be divided further into

global instruments, to which any state in the world can be a party, and

regional instruments, which are restricted to states in a particular region

of the world.

Most conventions establish mechanisms to oversee their

implementation. In some cases these mechanisms have relatively little

power, and are often ignored by member states; in other cases these

mechanisms have great political and legal authority, and their decisions

are almost always implemented. Examples of the first case include the

UN treaty committees, while the best exemplar of the second case is

the European Court of Human Rights.

Mechanisms also vary as to the degree of individual access to

them. Under some conventions-e.g. the European Convention on

Human Rights (as it currently exists)- individuals or states are permitted,

subject to certain conditions, to take individual cases to the enforcement

69
mechanisms; under most, however (e.g. the UN conventions), individual

access is contingent on the acceptance of that right by the relevant

state party, either by a declaration at the time of ratification or

accession, or through ratification of or accession to an optional protocol

to the convention. This is part of the evolution of international law over

the last several decades. It has moved from a body of laws governing

states to recognizing the importance of individuals and their rights within


the international legal framework.1

The Universal Declaration of Human Rights, the International

Covenant on Civil and Political Rights, and the International Covenant

on Economic, Social and Cultural Rights are sometimes referred to as

the International Bill of Rights. The international human rights

instruments can be broadly divided in to declarations and conventions.

Besides there are regional conventions which have bearing on human

rights of respective regions.

International Declarations

> Declaration of the Rights of the Child 1923

> Universal Declaration of Human Rights (UN, 1948)

> American Declaration of the Rights and Duties of Man Organisation

of American States (OAS, 1948)

> Cairo Declaration of Human Rights in Islam (OIC.1990)

> Declaration on the Rights of Indigenous Peoples (UN, 2007)

> UN Declaration on Sexual Orientation and Gender Identity (UN,

2008).

70
International Conventions

> International Covenant on Civil and Political Rights (ICCPR)

> International Convention on the Suppression and Punishment of the

Crime of Apartheid (ICSPCA)

> International Covenant on Economic, Social, and Cultural Rights

(ICESCR)

> Convention Relating to the Status of Refugees and Protocol Relating

to the Status of Refugees

> Convention on the Rights of the Child (CRC)

> Convention Against Torture (CAT)

> Convention on the Elimination of All Forms of Racial Discrimination

(ICERD)

> Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW)

> International Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families (MWC)

> Convention on the Prevention and Punishment of the Crime of

Genocide

> Convention on the Rights of Persons with Disabilities (CRPD)

> International Convention for the Protection of All Persons from

Enforced Disappearance

> Indigenous and Tribal Peoples Convention, 1989 (ILO 169)

71
Regional Conventions: Africa

> African Charter on Human and Peoples' Rights

> African Charter on the Rights and Welfare of the Child

> Maputo Protocol

Regional Conventions: America

> American Convention on Human Rights

> Inter-American Convention to Prevent and Punish Torture

> Inter-American Convention on Forced Disappearance of Persons

> Inter-American Convention on the Prevention, Punishment, and

Eradication of Violence against Women

> Inter-American Convention on the Elimination of All Forms of

Discrimination against Persons with Disabilities

Regional Conventions: Europe

> Charter of Fundamental Rights of the European Union

> Convention on Action against Trafficking in Human Beings

> European Charter for Regional or Minority Languages (ECRML)

> European Convention on Human Rights (ECHR)

> European Convention for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment (CPT)

> European Social Charter (ESC), and Revised Social Charter

> Framework Convention for the Protection of National Minorities

(FCNM)

72
Declaration of the Rights of the Child

The Declaration of the Rights of the Child is the name given to a

series of related childrens rights proclamations. The first was drafted by

Eglantyne Jebb and adopted by the International Save the Children

Union, Geneva, on 23 February 1923 and endorsed by the League of

Nations General Assembly on 26 November 1924 as the World Child

Welfare Charter.

The original document, in the archives of the city of Geneva,

carries the signatures of various international delegates, including Jebb,

Janusz Korczak, and Gustave Ador, a former President of the Swiss

Confederation.

The International Save the Children Union (SCIU) merged into the

International Union of Child Welfare by 1946, and this group pressed

the newly formed United Nations to continue to work for war-scarred

children and for adoption of the World Child Welfare Charter.

On 20 November 1959 the United Nations General Assembly

adopted a much expanded version as its own Declaration of the Rights

of the Child, with ten principles in place of the original five. This date

has been adopted as the Universal Children's Day. The initial 1923

document consisted of the following stipulations:2

1. The child must be given the means requisite for its normal

development, both materially and spiritually.

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2. The child that is hungry must be fed, the child that is sick must be

nursed, the child that is backward must be helped, the delinquent

child must be reclaimed, and the orphan and the waif must be

sheltered and succored.

3. The child must be the first to receive relief in times of distress.

4. The child must be put in a position to earn a livelihood, and must

be protected against every form of exploitation.

5. The child must be brought up in the consciousness that its talents

must be devoted to the service of its fellow men.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is a

declaration adopted by the United Nations General Assembly on 10

December 1948 at the Palais de Chaillot in Paris. The Declaration has

been translated into at least 375 languages and dialects. The

Declaration arose directly from the experience of the Second World War

and represents the first global expression of rights to which all human

beings are entitled. It consists of 30 articles which have been elaborated

in subsequent international treaties, regional human rights instruments,

national constitutions and laws. The International Bill of Human Rights

consists of the Universal Declaration of Human Rights, the International

Covenant on Economic, Social and Cultural Rights, and the

International Covenant on Civil and Political Rights and its two Optional

74
Protocols. In 1966 the General Assembly adopted the two detailed

Covenants, which complete the international Bill of Human Rights.3

European philosophers of the Age of Enlightenment developed

theories of natural law that influenced the adoption of documents such

as the Bill of Rights of England, the Bill of Rights in the United States,

and the Declaration of the Rights of Man and of the Citizen in France.

National and International pressure for an international bill of

rights had been building throughout World War II. In his 1941 State of

the Union address US president Franklin Roosevelt called for the

protection of what he termed the essential Four Freedoms: freedom of

speech, freedom of conscience, freedom from fear and freedom from

want, as its basic war aims. This has been seen as part of a movement

of the 1940s that sought to make human rights part of the conditions for

peace at the end of the war. The United Nations Charter reaffirmed faith

in fundamental human rights, and dignity and worth of the human

person and committed all member states to promote universal respect

for, and observance of, human rights and fundamental freedoms for all

without distinction as to race, sex, language or religion.

When the atrocities committed by Nazi Germany became public

knowledge around the world after World War II, the consensus within

the world community was that the United Nations Charter did not

sufficiently define the rights it referenced. A universal declaration that

75
specified the rights of individuals was necessary to give effect to the

Charter's provisions on human rights.

Adoption of Universal Declaration of Human Rights

The Universal Declaration was adopted by the General Assembly

on 10 December 1948 by a vote of 48 in favour, 0 against, with 8

abstentions (Byelorussian Social Secular Republic , Czechoslovakia,

Poland, Ukrainian SSR, USSR, as well as Yugoslavia, South Africa and

Saudi Arabia).

Structure of Universal Declaration of Human Rights

The underlying structure of the Universal Declaration was

introduced in its second draft which was prepared by Rene Cassin.

Cassin worked from a first draft prepared by John Peters Humphrey.

The structure was influenced by the Code Napoleon, including a

preamble and introductory general principles. Cassin compared the

Declaration to the portico of a Greek temple, with a foundation, steps,

four columns and a pediment. Articles 1 and 2 are the foundation

blocks, with their principles of dignity, liberty, equality and brotherhood.

The seven paragraphs of the preamble, setting out the reasons for the

Declaration, are represented by the steps. The main body of the

Declaration forms the four columns. The first column (Articles 3-11)

constitutes rights of the individual, such as the right to life and the

prohibition of slavery. The second column (Articles 12-17) constitutes

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the rights of the individual in civil and political society. The third column

(Articles 18-21) is concerned with spiritual, public and political freedoms

such as freedom of religion and freedom of association. The fourth

column (Articles 22-27) sets out social, economic and cultural rights. In

Cassin's model, the last three articles of the Declaration provide the

pediment which binds the structure together. These articles are

concerned with the duty of the individual to society and the prohibition of

use of rights in contravention of the purposes of the United Nations.

With regard to the Communist block's abstentions, the 9 December

Velodrome d'Hiver meeting of 20,000 Parisiens at the invitation of World

Citizen Garry Davis and his Conseil de Solidarity who had interrupted a

General Assembly session on 22 November to call for a world

government, provoked its abstention rather than voting against the

human rights document. Eleanor Roosevelt in her column My Day wrote

on 15 December that Garry Davis, the young man who in Paris as a

citizen of the world...has succeeded in getting the backing of a few

intellectuals and even has received a cablegram from Albert Einstein

telling him, from Professor Einstein's point of view, that the United

Nations has not yet achieved peace. The United Nations, of course, is

not set up to achieve peace. That the governments is supposed to do

themselves. But it is expected to help preserve peace, and it is doing

more effectively day by day. During a plenary session in the General

Assembly, this young man tried to make a speech from the balcony on

77
the subject of how incompetent the United Nations is to deal with the

questions before it. How much better it would be if Mr. Davis would set

up his own governmental organisation and start then and there a

worldwide international government. All who would join him would learn

that they had no nationality and, therefore, not being bothered by any

special interest in any one country, everyone would develop...a

completely cooperative feeling among all peoples and a willingness to

accept any laws passes by this super government.4

Commemoration: International Human Rights Day

The adoption of the Universal Declaration is a significant

international commemoration marked each year on 10 December and is

known as Human Rights Day or International Human Rights Day. The

commemoration is observed by individuals, community and religious

groups, human rights organisations, parliaments, governments and the

United Nations. Decadal commemorations are often accompanied by

campaigns to promote awareness of the Declaration and human rights.

2008 marked the 60th anniversary of the Declaration and was

accompanied by year long activities around the theme Dignity and

Justice for All.5

Significance of Universal Declaration of Human Rights

In the preamble, governments commit themselves and their

peoples to measures to secure the universal and effective recognition

78
and observance of the human rights set out in the Declaration. Eleanor

Roosevelt supported the adoption the UDHR as a declaration, rather

than as a treaty, because she believed that it would have the same kind

of influence on global society as the United States Declaration of

Independence had within the United States. In this she proved to be

correct. Even though not formally legally binding, the Declaration has

been adopted in or influenced most national constitutions since 1948. It

also serves as the foundation for a growing number of international

treaties and national laws and international, regional, national and sub

national institutions protecting and promoting human rights.

Legal effect of Universal Declaration of Human Rights

While not a treaty itself, the Declaration was explicitly adopted for

the purpose of defining the meaning of the words fundamental freedoms

and human rights appearing in the United Nations Charter, which is

binding on all member states.6 For this reason, the Universal

Declaration is a fundamental constitutive document of the United

Nations. Many international lawyers, in addition, believe that the

Declaration forms part of customary international law and is a powerful

tool in applying diplomatic and moral pressure to governments that

violate any of its articles. The 1968 United Nations International

Conference on Human Rights advised that it constitutes an obligation

for the members of the international community to all persons. The

declaration has served as the foundation for two binding UN human

79
rights covenants, the International Covenant on Civil and Political Rights

and the International Covenant on Economic, Social and Cultural Rights

and the principles of the Declaration are elaborated in international

treaties such as the International Convention on the Elimination of All

Forms of Racial Discrimination, the International Convention on the

Elimination of Discrimination Against Women, the United Nations

Convention on the Rights of the Child, the United Nations Convention

Against Torture and many more. The Declaration continues to be widely

cited by governments, academics, advocates and constitutional courts

and individual human beings who appeal to its principles for the

protection of their recognised human rights.7

American Declaration of the Rights and Duties of Man

The American Declaration of the Rights and Duties of Man was

the world's first international human rights instrument of a general

nature, predating the Universal Declaration of Human Rights by less

than a year.

The Declaration was adopted by the nations of the Americas at

the Ninth International Conference of American States in Bogota,

Colombia, in April 1948, the same meeting that adopted the Charter of

the Organization of American States and thereby created the OAS.

Chapter one of the Declaration sets forth a catalogue of civil and

political rights to be enjoyed by the citizens of the signatory nations,

80
together with additional economic, social, and cultural rights due to

them. As a corollary, its second chapter contains a list of corresponding

duties.

Although strictly speaking a declaration is not a legally binding

treaty, the jurisprudence of both the Inter-American Court of Human

Rights and the Inter-American Commission on Human Rights holds it to

be a source of binding international obligations for the OAS's member

states. While largely superseded in the current practice of the inter-

American human rights system by the more elaborate provisions of the

American Convention on Human Rights (in force since 18 July 1978),

the terms of the Declaration are still enforced with respect to those

states that have not ratified the Convention, such as Cuba and the

United States.8

The American peoples have acknowledged the dignity of the

individual, and their national constitutions recognize that juridical and

political institutions, which regulate life in human society, have as their

principal aim the protection of the essential rights of man and the

creation of circumstances that will permit him to achieve spiritual and

material progress and attain happiness. The American States have on

repeated occasions recognized that the essential rights of man are not

derived from the fact that he is a national of a certain state, but are

based upon attributes of his human personality. The international

81
protection of the rights of man should be the principal guide of an

evolving American law. The affirmation of essential human rights by the

American States together with the guarantees given by the internal

regimes of the states establish the initial system of protection

considered by the American States as being suited to the present social

and juridical conditions, not without a recognition on their part that they

should increasingly strengthen that system in the international field as

conditions become more favorable.

Cairo Declaration on Human Rights in Islam

The Cairo Declaration of Human Rights in Islam (CDHRI) is a

declaration of the member states of the Organisation of the Islamic

Conference adopted in Cairo in 1990, which provides an overview on

the Islamic perspective on human rights, and affirms Islamic Shari'ah as

its sole source. CDHRI declares its purpose to be general guidance for

Member States [of the OIC] in the Field of human rights. This

declaration is usually seen as an Islamic response to the post-World

War II United Nations Universal Declaration of Human Rights (UDHR)

of 1948.

Background

Predominantly Muslim countries, such as Sudan, Iran, and Saudi

Arabia, frequently criticized the Universal Declaration of Human Rights

for its perceived failure to take into account the cultural and religious

82
context of non-Western countries. The CDHRI was adopted on August

5, 1990 by 45 foreign ministers of the Organisation of the Islamic

Conference to serve as a guidance for the member states in the matters

of human rights.

The Declaration starts by forbidding any discrimination on the

basis of race, colour, language, belief, sex, religion, political affiliation,

social status or other considerations. It continues on to proclaim the

sanctity of life, and declares the preservation of human life as a duty

prescribed by the Shariath. In addition the CDHRI guarantees non

belligerents such as old men, women and children, wounded and the

sick and prisoners of war, the right to be fed, sheltered and access to

safety and medical treatment in times of war.10

The CDHRI gives men and women the right to marriage

regardless of their race, colour or nationality, but not religion. In addition

women are given equal human dignity, own rights to enjoy, duties to

perform, own civil entity, financial independence, and the right to retain

her name and lineage, though not equal rights in general. The

Declaration makes the husband responsible for the social and financial

protection of the family. The Declaration gives both parents the rights

over their children, and makes it incumbent upon both of them to protect

the child, before and after birth. The Declaration also entitles every

family the right to privacy. It also forbids the demolition, confiscation and

83
eviction of any family from their residence. Furthermore, should the

family get separated in times of war; it is the responsibility of the State

to arrange visits or reunions of families.

Article 10 of the Declaration states: Islam is the religion of

unspoiled nature. It is prohibited to exercise any form of compulsion on

man or to exploit his poverty or ignorance in order to convert him to

another religion or to atheism.11

The Declaration protects each individual from arbitrary arrest,

torture, maltreatment and/or indignity. Furthermore, no individual is to

be used for medical or scientific experiments. It also prohibits the taking

of hostages of any individual for any purpose whatsoever. Moreover,

the CDHRI guarantees the presumption of innocence; guilt is only to be

proven through a trial in which he [the defendant] shall be given all the

guarantees of defence. The Declaration also forbids the promulgation of

emergency laws that would provide executive authority for such actions.

Article 19 stipulates that there are no other crimes or punishments than

those mentioned in the Sharia, which include corporal punishment

(whippings, amputations) and capital punishment. The right to hold

public office can only be exercised in accordance with the Sharia, which

forbids Muslims to submit to the rule of non-Muslims.

The Declaration also emphasizes the full right to freedom and

self-determination, and its opposition to enslavement, oppression,

84
exploitation and colonialism. The CDHRI declares the rule of law,

establishing equality and justice for all. The CDHRI also guarantees all

individuals the right to participate, directly or indirectly in the

administration of his country's public affairs. The CDHRI also forbids

any abuse of authority 'subject to the Islamic Shariah.12

The CDHRI concludes in article 24 and 25 that all rights and

freedoms mentioned are subject to the Islamic Shariah, which is the

declaration's sole source. The CDHRI declares true religion to be the

guarantee for enhancing such dignity along the path to human integrity.

It also places the responsibility for defending those rights upon the

entire Ummah.

Declaration on the Rights of indigenous Peoples

The United Nations Declaration on the Rights of Indigenous

Peoples was adopted by the United Nations General Assembly during

its 62nd session at UN Headquarters in New York City on 13

September 2007.

While as a General Assembly Declaration it is not a legally

binding instrument under international law, according to a UN press

release, it does represent the dynamic development of international

legal norms and it reflects the commitment of the UN's member states

to move in certain directions. The UN describes it as setting an

important standard for the treatment of indigenous peoples that will

85
undoubtedly be a significant tool towards eliminating human rights

violations against the planet's 370 million indigenous people and

assisting them in combating discrimination and marginalisation.

The Declaration sets out the individual and collective rights of

indigenous peoples, as well as their rights to culture, identity, language,

employment, health, education and other issues. It also emphasizes the

rights of indigenous peoples to maintain and strengthen their own

institutions, cultures and traditions, and to pursue their development in

keeping with their own needs and aspirations. It prohibits discrimination

against indigenous peoples, and it promotes their full and effective

participation in all matters that concern them and their right to remain

distinct and to pursue their own visions of economic and social

development.13

The Declaration was then referred to the General Assembly,

which voted on the adoption of the proposal on 13 September 2007

during its 61st regular session. The vote was 143 countries in favour,

four against, and 11 abstaining. The four member states that voted

against were Australia, Canada, New Zealand and the United States, all

of which have their origins as colonies of the United Kingdom and have

large non-indigenous immigrant majorities and small remnant

indigenous populations. Australia and New Zealand have since

changed their votes in favour of the Declaration, in 2009 and 2010

86
respectively. The abstaining countries were Azerbaijan, Bangladesh,

Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian

Federation, Samoa and Ukraine; another 34 member states were

absent from the vote. Colombia and Samoa have since endorsed the

document.

UN Declaration on Sexual Orientation and Gender Identity

The United Nations Declaration on sexual orientation and gender

identity is a Dutch/French-initiated, European Union-backed statement

presented to the United Nations General Assembly on 18 December

2008. The statement, originally intended to be adopted as resolution,

prompted an Arab League-backed statement opposing it. Both

statements remain open for signatures and none of them has been

officially adopted by the United Nations General Assembly.

The declaration includes a condemnation of violence,

harassment, discrimination, exclusion, stigmatization, and prejudice

based on sexual orientation and gender identity. It also includes

condemnation of killings and executions, torture, arbitrary arrest, and

deprivation of economic, social, and cultural rights on those grounds.14

The declaration was praised as a breakthrough for human rights,

breaking the taboo against speaking about the rights in the United

Nations. Opponents criticized it as an attempt to legitimize same-sex

civil partnerships or marriage, adoption by same sex couples,

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pedophilia and other deplorable acts and curtail freedom of religious

expression against homosexual behavior.

As of December 2008, homosexuality is illegal in 77 countries and

punishable by death in seven. In its 1994 decision in Toonen vs

Australia, The UN Human Rights Committee, which is responsible for

the International Covenant on Civil and Political Rights (ICCPR),

declared that such laws are in violation of human rights law.

In 2003 a number of predominantly European countries put

forward the Brazilian Resolution at the UN Human Rights Commission

stating the intention that lesbian and gay rights be considered as

fundamental as the rights of all human beings.

In 2006, with the effort of its founder, Louis George Tin,

International Day Against Homophobia (IDAHO) launched a worldwide

campaign to end the criminalization of same-sex relationships. The

campaign was supported by dozens of international public figures

including Nobel laureates, academics, clergy and celebrities.

In 2008, the 34 member countries of the Organization of

American States unanimously approved a declaration affirming that

human rights protections extend to sexual orientation and gender

identity.15

88
Following meetings between Tin and French Minister of Human

Rights and Foreign Affairs Rama Yade in early 2008, Yade announced

that she would appeal at the UN for the universal decriminalization of

homosexuality; the appeal was quickly taken up as an international

concern.

Co-sponsored by France, which then held the rotating presidency

of the European Union, and The Netherlands on behalf of the European

Union, the declaration had been intended as a resolution; it was

decided to use the format of a declaration of a limited group of States

because there was not enough support for the adoption of an official

resolution by the General Assembly as a whole. The declaration was

read out by Ambassador Jorge Arguello of Argentina on 18 December

2008, and was the first declaration concerning gay rights read in the

General Assembly.

Conventions

The following are the important Conventions on human rights at

international level.

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR)

is a multilateral treaty adopted by the United Nations General Assembly

on December 16, 1966, and in force from March 23, 1976. It commits its

parties to abide by the civil and political rights of individuals, including

89
(among others) the right of self-determination; the right to life; the

prohibition of torture and cruel, inhuman, or degrading treatment or

punishment; the prohibition of slavery; the right to liberty and security of

person; treatment of prisoners aimed at reformation and social

rehabilitation; the right to freedom of movement; rights to fair and public

hearing by competent, independent, and impartial tribunal established

by law; the right to be presumed innocent until proved guilty according

to law; the right to be informed promptly and in detail in a language

which they understand of the nature and cause of the charge against

them; the right to not be held guilty of any criminal offense on account of

any act or omission which did not constitute a criminal offense under

national or international law at the time when it was committed; the right

to privacy; the right to freedom of thought, conscience, and religion; the

right to freedom of expression; the right to peaceful assembly; the right

of men and women of marriageable age to marry and to found a family;

equality before the law; the right of every child to such measures of

protection as are required by his status as a minor on the part of his

family, society and the State; the right of every citizen to vote and to be

elected at genuine periodic elections which shall be by universal and

equal suffrage and shall be held by secret ballot; the rights of ethnic,

religious or linguistic minorities to enjoy their own culture, to profess and

practise their own religion, or to use their own language. As of

September 2010, the Covenant had 72 signatories and 166 parties.16

90
The ICCPR is part of the International Bill of Human Rights, along

with the International Covenant on Economic, Social and Cultural Rights

(ICESCR) and the Universal Declaration of Human Rights (UDHR).

The ICCPR is monitored by the Human Rights Committee (a

separate body to the Human Rights Council), which reviews regular

reports of States parties on how the rights are being implemented.

States must report initially one year after acceding to the Covenant and

then whenever the Committee requests (usually every four years). The

Committee meets in Geneva or New York and normally holds three.

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The ICCPR has its roots in the same process that led to the

Universal Declaration of Human Rights. A Declaration on the Essential

Rights of Man had been proposed at the 1945 San Francisco

Conference which led to the founding of the United Nations, and the

Economic and Social Council was given the task of drafting it. Early on

in the process, the document was split into a declaration setting forth

general principles of human rights, and a convention or covenant

containing binding commitments. The former evolved into the UDHR

and was adopted on December 10,1948.

91
Drafting continued on the convention, but there remained

significant differences between UN members on the relative importance

of negative Civil and Political versus positive Economic, Social and

Cultural rights. These eventually caused the convention to be split into

two separate covenants, one to contain civil and political rights and the

other to contain economic, social and cultural rights. The two covenants

were to contain as many similar provisions as possible, and be opened

for signature simultaneously. Each would also contain an article on the

right of all peoples to self-determination.17

The first document became the International Covenant on Civil

and Political Rights, and the second the International Covenant on

Economic, Social and Cultural Rights. The drafts were presented to the

UN General Assembly for discussion in 1954, and adopted in 1966.

The Covenant follows the structure of the UDHR and ICESCR,

with a preamble and fifty-three articles, divided into six parts.18

Part 1 (Article 1) recognises the right of all peoples to self-

determination, including the right to freely determine their political

status, pursue their economic, social and cultural goals, and manage

and dispose of their own resources. It recognises a negative right of a

people not to be deprived of its means of subsistence, and imposes an

obligation on those parties still responsible for non-self governing and

92
trust territories (colonies) to encourage and respect their self-

determination.

Part 2 (Articles 2-5) obliges parties to legislate where necessary

to give effect to the rights recognised in the Covenant, and to provide an

effective legal remedy for any violation of those rights. It also requires

the rights be recognised 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, and to ensure that they are

enjoyed equally by women. The rights can only be limited in time of

public emergency which threatens the life of the nation, and even then

no derogation is permitted from the rights to life, freedom from torture

and slavery, the freedom from retrospective law, the right to

personhood, and freedom of thought, conscience and religion.

Part 3 (Articles 6-27) lists the rights themselves. These include

rights to:

physical integrity, in the form of the right to life and freedom from

torture and slavery (Articles 6, 7, and 8);

liberty and security of the person, in the form of freedom from

arbitrary arrest and detention and the right to habeas corpus

(Article 9);

procedural fairness in law, in the form of rights to due process, a

fair and impartial trial, the presumption of innocence, and

93
recognition as a person before the law (Articles 10, 11, 14, 15,

and 16);

individual liberty, in the form of the freedoms of movement,

thought, conscience and religion, speech, association and

assembly, family rights, the right to a nationality, and the right to

privacy (Articles 12,13, 17 - 24);

political participation, including the right to join a political party

and the right to vote (Article 25);

Non-discrimination and equality before the law (Articles 26 and

27).

Many of these rights include specific actions which must be

undertaken to realise them.

Part 4 (Articles 28 - 45) governs the establishment and operation

of the Human Rights Committee and the reporting and monitoring of the

Covenant. It also allows parties to recognise the competence of the

Committee to resolve disputes between parties on the implementation

of the Covenant (Articles 41 and 42).

Part 5 (Articles 46 - 47) clarifies that the Covenant shall not be

interpreted as interfering with the operation of the United Nations or the

inherent right of all peoples to enjoy and utilize fully and freely their

natural wealth and resources.

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Part 6 (Articles 48 - 53) governs ratification, entry into force, and

amendment of the Covenant.

Optional protocols

There are two Optional Protocols to the Covenant. The First

Optional Protocol establishes an individual complaints mechanism,

allowing individuals to complain to the Human Rights Committee about

violations of the Covenant. This has led to the creation of a complex

jurisprudence on the interpretation and implementation of the Covenant.

As of September 2009, the First Optional Protocol has 113 parties.19

The Second Optional Protocol abolishes the death penalty;

however, countries were permitted to make a reservation allowing for

use of death penalty for the most serious crimes of a military nature,

committed during wartime. As of October 2009, the Second Optional

Protocol had 72 parties.

International Convention on the Suppression and Punishment of

the Crime of Apartheid (ICSPCA)

The crime of apartheid is defined by the 2002 Rome Statute of

the International Criminal Court as inhumane acts of a character similar

to other crimes against humanity committed in the context of an

institutionalized regime of systematic oppression and domination by one

racial group over any other racial group or groups and committed with

the intention of maintaining that regime.

95
On 30 November 1973, the United Nations General Assembly

opened for signature and ratification the International Convention on the

Suppression and Punishment of the Crime of Apartheid (ICSPCA). It

defined the crime of apartheid as inhuman acts committed for the

purpose of establishing and maintaining domination by one racial group

of persons over any other racial group of persons and systematically

oppressing them.20

Background

The term apartheid, from Afrikaans for apartness, was the official

name of the South African system of racial segregation which existed

after 1948. Complaints about the system were brought to the United

Nations as early as 12 July 1948 when Dr. Padmanabha Pillai, the

representative of India to the United Nations, circulated a letter to the

Secretary-General expressing his concerns over treatment of ethnic

Indians within the Union of South Africa. As it became more widely

known, South African apartheid was condemned internationally as

unjust and racist and many decided that a formal legal framework was

needed in order to apply international pressure on the South African

government.

In 1971, the Union of Soviet Socialist Republics and Guinea

together submitted early drafts of a convention to deal with the

suppression and punishment of apartheid. In 1973, the General

96
Assembly of the United Nations agreed on the text of the International

Convention on the Suppression and Punishment of the Crime of

Apartheid (ICSPCA). The Convention has 31 signatories and 107

parties.21

As such, apartheid was declared to be a crime against humanity,

with a scope that went far beyond South Africa. While the crime of

apartheid is most often associated with the racist policies of South

Africa after 1948, the term more generally refers to racially based

policies in any state.

Seventy-six other countries subsequently signed on, but a

number of nations have neither signed nor ratified the ICSPCA,

including Canada, France, Germany, Israel, Italy, the Netherlands, the

United Kingdom, Australia, New Zealand and the United States. In

explanation of the US vote against the convention, US Ambassador

Clarence Clyde Ferguson Jr. said: we cannot...accept that apartheid

can in this manner be made a crime against humanity. Crimes against

humanity are so grave in nature that they must be meticulously

elaborated and strictly construed under existing international law.22

In 1977, Addition Protocol 1 to the Geneva Conventions

designated apartheid as a grave breach of the Protocol and a war

crime. There are 169 parties to the Protocol.

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The International Criminal Court provides for individual criminal

responsibility for crimes against humanity, including the crime of

apartheid.

The International Criminal Court (ICC) came into being on 1 July

2002, and can only prosecute crimes committed on or after that date.

The Court can generally only exercise jurisdiction in cases where the

accused is a national of a state party, the alleged crime took place on

the territory of a state party, or a situation is referred to the Court by the

United Nations Security Council. The ICC exercises complimentary

jurisdiction. Many of the member states have provided their own

national courts with universal jurisdiction over the same offenses and do

not recognize any statute of limitations for crimes against humanity. As

of July 2008, 106 countries are states parties (with Suriname and Cook

Islands set to join in October 2008), and a further 40 countries have

signed but not yet ratified the treaty. However, many of the world's most

populous nations, including China, India, the United States, Indonesia,

and Pakistan are not parties to the Court and therefore are not subject

to its jurisdiction, except by Security Council referral.

International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural

Rights (ICESCR) is a multilateral treaty adopted by the United Nations

General Assembly on December 16, 1966, and in force from January 3,

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1976. It commits its parties to work toward the granting of economic,

social, and cultural rights (ESCR) to individuals, including labour rights

and rights to health, education, and an adequate standard of living. As

of December, 2008, the Covenant had 160 parties. A further six

countries had signed, but not yet ratified the Covenant.

The ICESCR is part of the International Bill of Human Rights,

along with the Universal Declaration of Human Rights (UDHR) and the

International Covenant on Civil and Political Rights (ICCPR), including

the latter's first and second Optional Protocols. The Covenant is

monitored by the UN Committee on Economic, Social and Cultural

Rights. The Covenant follows the structure of the UDHR and ICCPR,

with a preamble and thirty-one articles, divided into five parts.23

Part 1 (Article 1) recognises the right of all peoples to self-

determination, including the right to freely determine their political

status, pursue their economic, social and cultural goals, and manage

and dispose of their own resources. It recognises a negative right of a

people not to be deprived of its means of subsistence, and imposes an

obligation on those parties still responsible for non-self governing and

trust territories (colonies) to encourage and respect their self-

determination.

Part 2 (Articles 2-5) establishes the principle of progressive

realisation. It also requires the rights be recognised without

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discrimination of any kind as to race, colour, sex, language, religion,

political or other opinion, national or social origin, property, birth or other

status. The rights can only be limited by law, in a manner compatible

with the nature of the rights, and only for the purpose of promoting the

general welfare in a democratic society.

Part 3 (Articles 6-15) lists the rights themselves. These include rights

to

work, under just and favourable conditions, with the right to form

and join trade unions (Articles 6, 7, and 8);

social security, including social insurance (Article 9);

family life, including paid parental leave and the protection of

children (Article 10);

an adequate standard of living, including adequate food, clothing

and housing, and the continuous improvement of living conditions

(Article 11);

health, specifically the highest attainable standard of physical and

mental health (Article 12);

education, including free universal primary education, generally

available secondary education, and equally accessible higher

education. This should be directed to the full development of the

human personality and the sense of its dignity, and enable all

persons to participate effectively in society (Articles 13 and 14);

participation in cultural life (Article 15).

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Many of these rights include specific actions which must be

undertaken to realise them.

Part 4 (Articles 16-25) governs reporting and monitoring of the

Covenant and the steps taken by the parties to implement it. It also

allows the monitoring body - originally the United Nations Economic and

Social Council - now the Committee on Economic, Social and Cultural

Rights to make general recommendations to the UN General Assembly

on appropriate measures to realise the rights (Article 21).

Part 5 (Articles 26-31) governs ratification, entry into force, and

amendment of the Covenant.

This is known as the principle of progressive realisation. It

acknowledges that some of the rights (for example, the right to health)

may be difficult in practice to achieve in a short period of time, and that

states may be subject to resource constraints, but requires them to act

as best they can within their means.

The principle differs from that of the ICCPR, which obliges parties

to respect and to ensure to all individuals within its territory and subject

to its jurisdiction the rights in that Convention. However, it does not

render the Covenant meaningless. The requirement to take steps

imposes a continuing obligation to work towards the realisation of the

rights. It also rules out deliberately regressive measures which impede

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that goal. The Committee on Economic, Social and Cultural Rights also

interprets the principle as imposing minimum core obligations to

provide, at the least, minimum essential levels of each of the rights. If

resources are highly constrained, this should include the use of targeted

programmes aimed at the vulnerable.24

The Committee on Economic, Social and Cultural Rights regards

legislation as an indispensable means for realising the rights which is

unlikely to be limited by resource constraints. The enacting of anti-

discrimination provisions and the establishment of enforceable rights

with judicial remedies within national legal systems are considered to be

appropriate means. Some provisions, such as anti-discrimination laws,

are already required under other human rights instruments, such as the

ICCPR.

Optional Protocol

The Optional Protocol to the International Covenant on Economic,

Social and Cultural Rights is a side-agreement to the Covenant which

allows its parties to recognise the competence of the Committee on

Economic Social and Cultural Rights to consider complaints from

individuals.

The Optional Protocol was adopted by the UN General Assembly

on 10 December 2008. It was opened for signature on 24 September

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2009, and as of July 2010 has been signed by 32 parties and ratified by

2. It will enter into force when ratified by 10 parties.25

Convention Relating to the Status of Refugees

The United Nations Convention Relating to the Status of

Refugees is an international convention that defines who is a refugee,

and sets out the rights of individuals who are granted asylum and the

responsibilities of nations that grant asylum. The convention also sets

out which people do not qualify as refugees, such as war criminals. The

Convention also provides for some visa-free travel for holders of travel

documents issued under the convention.

The convention was approved at a special United Nations

conference on 28 July 1951. It entered into force on 22 April 1954. It

was initially limited to protecting European refugees after World War II

but a 1967 Protocol removed the geographical and time limits,

expanding the Convention's scope. Because the convention was

approved in Geneva, it is often referred to as the Geneva Convention,

though it is not one of the Geneva Conventions specifically dealing with

allowable behavior in time of war.

Denmark was the first state to ratify the treaty (on 4 December

1952) and there are now 147 signatories to either the Convention or the

Protocol or to both.

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It is widely accepted that the prohibition of forcible return is part of

customary international law. This means that even States that are not

party to the 1951 Refugee Convention must respect the principle of

non-refoulement. Therefore, States are obligated under the Convention

and under customary international law to respect the principle of non

refoulement. If and when this principle is threatened, UNHCR can

respond by intervening with relevant authorities, and if it deems

necessary, will inform the public.

Protocol Relating to the Status of Refugees

The Protocol Relating to the Status of Refugees entered into

force on October 4, 1967. Where the United Nations 1951 Convention

relating to the Status of Refugees had restricted refugee status to those

whose circumstances had come about as a result of events occurring

before 1 January 1951, as well as giving States party to the Convention

the option of interpreting this as events occurring in Europe or events

occurring in Europe or elsewhere, the 1967 Protocol removed both the

temporal and geographic restrictions. However, it also gave those

States which had previously ratified the 1951 Convention and chosen to

use the geographically restricted definition the option to retain that

restriction. The English text is at Protocol relating to the Status of

Refugees of 31 January 1967.

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Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child

(commonly abbreviated as the CRC, CROC, or UNCRC) is a human

rights treaty setting out the civil, political, economic, social, and cultural

rights of children. The Convention generally defines a child as any

human being under the age of eighteen, unless an earlier age of

majority is recognized by a country's law.26

Nations that ratify this convention are bound to it by international

law. Compliance is monitored by the United Nations Committee on the

Rights of the Child which is composed of members from countries

around the world. Once a year, the Committee submits a report to the

Third Committee of the United Nations General Assembly, which also

hears a statement from the CRC Chair, and the Assembly adopts a

Resolution on the Rights of the Child.

Governments of countries that have ratified the Convention are

required to report to, and appear before, the United Nations Committee

on the Rights of the Child periodically to be examined on their progress

with regards to the advancement of the implementation of the

Convention and the status of child rights in their country.

The United Nations General Assembly adopted the Convention

and opened it for signature on 20 November 1989 (the 30th anniversary

of its Declaration of the Rights of the Child). It came into force on 2

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September 1990, after it was ratified by the required number of nations.

As of November 2009, 194 countries have ratified it, including every

member of the United Nations except Somalia and the United States.

Somalia's cabinet ministers have announced plans to ratify the treaty.27

The Convention deals with the child-specific needs and rights. It

requires that states act in the best interests of the child. This approach

is different from the common law approach found in many countries that

had previously treated children and wives as possessions or chattels,

ownership of which was often argued over in family disputes.

The Convention obliges states to allow parents to exercise their

parental responsibilities. The Convention also acknowledges that

children have the right to express their opinions and to have those

opinions heard and acted upon when appropriate, to be protected from

abuse or exploitation, to have their privacy protected and requires that

their lives not be subject to excessive interference.

Two optional protocols were adopted on 25 May 2000. The First

Optional Protocol restricts the involvement of children in military

conflicts, and the Second Optional Protocol prohibits the sale of

children, child prostitution and child pornography. Both protocols have

been ratified by more than 120 states.

In India, there is no outright ban on child labor, and the practice is

generally permitted in most industries except those deemed hazardous.

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Although a law in October 2006 banned child labor in hotels,

restaurants, and as domestic servants, there continues to be high

demand for children as hired help in the home. Current estimates as to

the number of child laborers in the country range from the government's

conservative estimate of 12 million children under 13 years of age to the

much higher estimates of children's rights activists, which hover around

60 million. Little is being done to address the problem since the

economy is booming and the nuclear family is spreading, thereby

increasing demand for child laborers. Under the auspices of the

UNICEF financed Udisha initiative the Government of India is specifying

the outline of a means of change and improvement in child care.28

United Nations Convention against Torture

The United Nations Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment is an international

human rights instrument, under the review of the United Nations, that

aims to prevent torture around the world.

The Convention requires states to take effective measures to

prevent torture within their borders, and forbids states to return people

to their home country if there is reason to believe they will be tortured.

The text of the Convention was adopted by the United Nations

General Assembly on 10 December 1984 and, following ratification by

the 20th state party, it came into force on 26 June 1987. Now 26th June

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is recognised as the International Day in Support of Torture Victims, in

honour of the Convention. As of January 2010, 146 nations are parties

to the treaty, and another ten countries have signed but not ratified it.

The Covenant follows the structure of the UDHR, ICCPR and the

ICESCR, with a preamble and 33 articles, divided in to three parts.29

Part I (Articles 1-16) defines torture (Article 1), and commits

parties to taking effective measures to prevent any act of torture in any

territory under their jurisdiction (Article 2). These include ensuring that

torture is a criminal offence (Article 4), establishing jurisdiction over acts

of torture committed by or against a party's citizens (Article 5), ensuring

that torture is an extraditable offence (Article 8), and establishing

universal jurisdiction to try cases of torture where an alleged torturer

cannot be extradited (Article 5). Parties must promptly investigate any

allegation of torture (Articles 12 and 13), and victims of torture must

have an enforceable right to compensation (Article 14). Parties must

also ban the use of evidence produced by torture in their courts (Article

15), and are barred from deporting, extraditing or refouling people

where there are substantial grounds for believing they will be tortured

(Article 3).

Part II (articles 17 - 24) governs reporting and monitoring of the

Convention and the steps taken by the parties to implement it. It

establishes the Committee against Torture (Article 17), and empowers it

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to investigate allegations of systematic torture (Article 20). It also

establishes an optional dispute-resolution mechanism between parties

(Article21) and allows parties to recognise the competence of the

Committee to hear complaints from individuals about violations of the

Convention by a party (Article 22).

Part III (Articles 25 - 33) governs ratification, entry into force, and

amendment of the Convention. It also includes an optional arbitration

mechanism for disputes between parties (Article 30). India signed on

the convention on 14th October 1997.

Optional Protocol

The Optional Protocol to the Convention against Torture and

other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT),

adopted by the General Assembly on 18 December 2002 and in force

since 22 June 2006, provides for the establishment of a system of

regular visits undertaken by independent international and national

bodies to places where people are deprived of their liberty, in order to

prevent torture and other cruel, inhuman or degrading treatment or

punishment, to be overseen by a Subcommittee on Prevention of

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.30

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Convention on the Elimination of All Forms of Racial

Discrimination

The International Convention on the Elimination of All Forms of

Racial Discrimination (ICERD) is a United Nations convention. A

second-generation human rights instrument, the Convention commits its

members to the elimination of racial discrimination and the promotion of

understanding among all races. Controversially, the Convention also

requires its parties to outlaw hate speech and criminalize membership

in racist organizations.

The Convention also includes an individual complaints

mechanism, effectively making it enforceable against its parties. This

has led to the development of a limited jurisprudence on the

interpretation and implementation of the Convention.

The convention was adopted and opened for signature by the

United Nations General Assembly on December 21, 1965, and entered

into force on January 4, 1969. As of October 2009, it had 85 signatories

and 173 parties. The Convention is monitored by the Committee on the

Elimination of Racial Discrimination (CERD).

The Convention follows the structure of the Universal Declaration

of Human Rights, International Covenant on Civil and Political Rights,

and International Covenant on Economic, Social and Cultural Rights,

with a preamble and twenty-five articles, divided into three parts.31

110
Part 1 (Articles'!-7) commits parties to the elimination of all forms

of racial discrimination and to promoting understanding among all races

(Article 2). Parties are obliged not to discriminate on the basis of race,

not to sponsor or defend racism, and to prohibit racial discrimination

within their jurisdictions. They must also review their laws and policies to

ensure that they do not discriminate on the basis of race, and commit to

amending or repealing those that do. Specific areas in which

discrimination must be eliminated are listed in Article 5.

The Convention imposes a specific commitment on parties to

eradicate racial segregation and the crime of apartheid within their

jurisdictions (Article 3). Parties are also required to criminalize the

incitement of racial hatred (Article 4), to ensure judicial remedies for

acts of racial discrimination (Article 6), and to engage in public

education to promote understanding and tolerance (Article 7).

Part 2 (Articles 8-16) governs reporting and monitoring of the

Convention and the steps taken by the parties to implement it. It

establishes the Committee on the Elimination of Racial Discrimination,

and empowers it to make general recommendations to the UN General

Assembly. It also establishes a dispute-resolution mechanism between

parties (Articlesl 1-13), and allows parties to recognise the competence

of the Committee to hear complaints from individuals about violations of

the rights protected by the Convention (Article 14).

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Part 3 (Articles 17-25) governs ratification, entry into force, and

amendment of the Convention.

Prevention of discrimination

Article 2 of the Convention condemns racial discrimination and

obliges parties to undertake to pursue by all appropriate means and

without delay a policy of eliminating racial discrimination in all its forms.

It also obliges parties to promote understanding among all races.

The signatories to the convention are obliged when the

circumstances so warrant to use affirmative action policies for specific

racial groups to guarantee the full and equal enjoyment of human rights

and fundamental freedoms. However, these measures must be finite,

and shall in no case entail as a consequence the maintenance of

unequal or separate rights for different racial groups after the objectives

for which they were taken have been achieved.32

The Convention condemns apartheid and racial segregation and

obliges parties to prevent, prohibit and eradicate these practices in

territories under their jurisdiction. This article has since been

strengthened by the recognition of apartheid as a crime against

humanity in the Rome Statute of the International Criminal Court.

The Committee on the Elimination of Racial Discrimination

regards this article as also entailing an obligation to eradicate the

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consequences of past policies of segregation, and to prevent racial

segregation arising from the actions of private individuals.

Convention on the Elimination of All Forms of Discrimination

against Women

The Convention on the Elimination of all Forms of Discrimination

against Women (CEDAW) is an international convention adopted in

1979 by the United Nations General Assembly. Described as an

international bill of rights for women, it came into force on 3 September

1981. The United States is the only developed nation that has not

ratified the CEDAW. Several countries have ratified the Convention

subject to certain declarations, reservations and objections.33

The Convention defines discrimination against women in the

following terms:

Any distinction, exclusion or restriction made on the basis of sex which

has the effect or purpose of impairing or nullifying the recognition,

enjoyment or exercise by women, irrespective of their marital status, on

a basis of equality of men and women, of human rights and

fundamental freedoms in the political, economic, social, cultural, civil or

any other field.34

It also establishes an agenda of action for putting an end to sex-

based discrimination: States ratifying the Convention are required to

enshrine gender equality into their domestic legislation, repeal all

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discriminatory provisions in their laws, and enact new provisions to

guard against discrimination against women. They must also establish

tribunals and public institutions to guarantee women effective protection

against discrimination, and take steps to eliminate all forms of

discrimination practiced against women by individuals, organizations,

and enterprises.

Convention oversight is the task of the Committee on the

Elimination of Discrimination against Women, which is made up of 23

experts on women's issues from different UN member states. The

Committee meets twice a year to review reports on compliance with the

Convention's provisions that the signatory nations are required to

submit every four years.

The Committee is one of the eight UN-related human rights treaty

bodies. The Committee's members, described as experts of high moral

standing and competence in the field covered by the Convention, are

elected to serve four-year terms in staggered elections held every two

years. Its officers are a chairperson, three vice-chairpersons, and a

rapporteur. Efforts are made to ensure balanced geographical

representation and the inclusion of the world's different forms of

civilization and legal systems.

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Optional Protocol

The Optional Protocol to the Convention on the Elimination of All

Forms of Discrimination against Women is a side-agreement to the

Convention which allows its parties to recognise the competence of the

Committee on the Elimination of Discrimination against Women to

consider complaints from individuals.35

The Optional Protocol was adopted by the UN General Assembly

on 6 October 1999 and entered into force on 22 December 2000.

Currently it has 79 signatories and 98 parties.

United Nations Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families

The International Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families is an international

agreement governing the matters described in the title. It was signed on

18 December 1990.

A Priority: The Human Rights of Migrants

On 1 July 2003, the United Nations Convention on the Protection

of the Rights of All Migrant Workers and Members of Their Families

entered into force, after the threshold of 20 ratifying States was reached

in March 2003. The Committee on Migrant Workers (CMW) monitors

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implementation of the convention, and is one of the seven UN-linked

Human Rights treaty bodies.36

In 2005, the number of international migrants is between 185 and

192 million. This represents approximately three per cent of the world

population, and is comparable to the population of Brazil. Nearly all

countries are concerned by migration, whether as sending, transit, or

receiving countries, or as a combination of these. International migration

has become an intrinsic feature of globalization.

It is time to take a more comprehensive look at the various

dimensions of the migration issue, which now involves hundreds of

millions of people, and affects countries of origin, transit and

destination. The people have to understand better the causes of

international flows of people and their complex interrelationship with

development. United Nations Secretary General, Kofi Annan, from his

report on strengthening the Organization, 9 November 2002.

The United Nations Convention constitutes a comprehensive

international treaty regarding the protection of migrant workers rights. It

emphasizes the connection between migration and human rights, which

is increasingly becoming a crucial policy topic worldwide. The

Convention aims at protecting migrant workers and members of their

families; its existence sets a moral standard, and serves as a guide and

stimulus for the promotion of migrant rights in each country.

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The primary objective of the Convention is to foster respect for

migrants human rights. Migrants are not only workers, they are also

human beings. The Convention does not create new rights for migrants

but aims at guaranteeing equality of treatment, and the same working

conditions for migrants and nationals. The Convention innovates

because it relies on the fundamental notion that all migrants should

have access to a minimum degree of protection. The Convention

recognizes that legal migrants have the legitimacy to claim more rights

than undocumented migrants, but it stresses that undocumented

migrants must see their fundamental human rights respected, like all

human beings.

In the meantime, the Convention proposes that actions be taken

to eradicate clandestine movements, notably through the fight against

misleading information inciting people to migrate irregularly, and

through sanctions against traffickers and employers of undocumented

migrants. India has not ratified the Convention.37

Convention on the Prevention and Punishment of the Crime of

Genocide

The Convention on the Prevention and Punishment of the Crime

of Genocide was adopted by the United Nations General Assembly on 9

December 1948 as General Assembly Resolution 260. The Convention

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entered into force on 12 January 1951. It defines genocide in legal

terms, and is the culmination of years of campaigning by lawyer

Raphael Lemkin, who coined the term by reference to the Simele

massacre, the Holocaust, and the Armenian Genocide. All participating

countries are advised to prevent and punish actions of genocide in war

and in peacetime. The number of states that have ratified the

convention is currently 140.

The convention was passed to outlaw actions similar to the

Holocaust by Nazi Germany during World War II. The first draft of the

Convention included political killings, but the USSR along with some

other nations would not accept that actions against groups identified as

holding similar political opinions or social status would constitute

genocide, so these stipulations were subsequently removed in a

political and diplomatic compromise.38

Convention on the Rights of Persons with Disabilities

The Convention on the Rights of Persons with Disabilities is an

international human rights instrument of the United Nations intended to

protect the rights and dignity of persons with disabilities. Parties to the

Convention are required to promote, protect, and ensure the full

enjoyment of human rights by persons with disabilities and ensure that

they enjoy full equality under the law.

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The text was adopted by the United Nations General Assembly

oh 13 December 2006 and opened for signature on 30 March 2007.

Following ratification by the 20th party, it came into force on 3 May

2008. As of December 2010, it has 147 signatories and 96 parties. The

Convention is monitored by the Committee on the Rights of Persons

with Disabilities.

The Convention follows the civil law tradition, with a preamble, in

which the principle that 'all human rights are universal, indivisible,

interdependent and interrelated of Vienna Declaration and Programme

of Action is cited, followed by 50 articles. Unlike many UN covenants

and conventions, it is not formally divided into parts.

Guiding principles of the Convention

There are eight guiding principles that underlie the Convention:39

1. Respect for inherent dignity, individual autonomy including the

freedom to make one's own choices, and independence of

persons.

2. Non-discrimination.

3. Full and effective participation and inclusion in society.

4. Respect for difference and acceptance of persons with disabilities

as part of human diversity and humanity.

5. Equality of opportunity.

6. Accessibility.

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7. Equality between men and women.

8. Respect for the evolving capacities of children with disabilities

and respect for the right of children with disabilities to preserve

their identities.

The Convention stresses that persons with disabilities should be

able to live independently and participate fully in all aspects of life. To

this end, States Parties should take appropriate measures to ensure

that persons with disabilities have access, to the physical environment,

to transportation, to information and communications technology, and to

other facilities and services open or provided to the public.

Optional protocol

The Optional Protocol to the Convention on the Rights of Persons

with Disabilities is a side-agreement to the Convention which allows its

parties to recognise the competence of the Committee on the Rights of

Persons with Disabilities to consider complaints from individuals. The

text is based heavily on the Optional Protocol to the Convention on the

Elimination of All Forms of Discrimination against Women. The Optional

Protocol entered into force with the Convention on 3 May 2008. As of

September 2010, it has 89 signatories and 57 parties.40

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International Convention for the Protection of All Persons from

Enforced Disappearance

The International Convention for the Protection of All Persons

from Enforced Disappearance is an international human rights

instrument of the United Nations and intended to prevent forced

disappearance. The text was adopted by the United Nations General

Assembly on 20 December 2006 and opened for signature on 6

February 2007. It came into force on 23 December 2010. As of

November 2010, 87 states have signed, and twenty have ratified or

acceded.

The convention is modelled heavily on the United Nations

Convention Against Torture. The widespread or systematic use of

enforced disappearance is further defined as a crime against humanity

in Article 6.

The Convention will be governed by a Committee on Enforced

Disappearances elected by its parties. Parties are obliged to report to

this committee on the steps they have taken to implement it within two

years of becoming subject to it.41

The Convention includes an optional complaints system whereby

citizens of parties may appeal to the Committee for assistance in

locating a disappeared person. Parties may join this system at any time,

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but may only opt out of it upon signature. India is a signatory to the

convention.

Indigenous and Tribal Peoples Convention, 1989

Indigenous and Tribal Peoples Convention, 1989 is an

International Labour Organization Convention, also known as ILO-

convention 169, or C169. It is the major binding international convention

concerning indigenous peoples, and a forerunner of the Declaration on

the Rights of Indigenous Peoples.

This Convention revised Convention C107, the Indigenous and

Tribal Populations Convention, 1957. Some of the nations ratifying the

1989 Convention denounced the 1957 Convention.

African Regional Conventions

The following are the important conventions of Africa

African Charter on Human and Peoples' Rights

The African Charter on Human and Peoples' Rights (also known

as the Banjul Charter) is an international human rights instrument that is

intended to promote and protect human rights and basic freedoms in

the African continent.

It emerged under the aegis of the Organisation of African Unity

(since replaced by the African Union) which, at its 1979 Assembly of

Heads of State and Government, adopted a resolution calling for the

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creation of a committee of experts to draft a continent-wide human

rights instrument, similar to those that already existed in Europe

(European Convention on Human Rights) and the Americas (American

Convention on Human Rights). This committee was duly set up, and it

produced a draft that was unanimously approved at the OAU's 1981

Assembly. Pursuant to its Article 63 (whereby it was to come into force

three months after the reception by the Secretary General of the

instruments of ratification or adherence of a simple majority of the

OAU's member states), the African Charter on Human and Peoples'

Rights came into effect on 21 October 1986- in honour of which 21

October was declared African Human Rights Day.42

Oversight and interpretation of the Charter is the task of the

African Commission on Human and Peoples' Rights, which was set up

in 1987 and is now headquartered in Banjul, Gambia. A protocol to the

Charter was subsequently adopted in 1998 whereby an African Court

on Human and Peoples' Rights was to be created. The protocol came

into effect on 25 January 2005.

In July 2004, the AU Assembly decided that the ACHP would be

incorporated into the African Court of Justice. In July 2005, the AU

Assembly then decided that the ACHP should be operationalised

despite the fact that the protocol establishing the African Court of

Justice had not yet come into effect. Accordingly, the Eighth Ordinary

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Session of the Executive Council of the African Union meeting in

Khartoum, Sudan, on 22 January 2006, elected the first judges of the

African Court on Human and Peoples' Rights. The relationship between

the newly created Court and the Commission is yet to be determined.

As of 15 June 2009, 53 countries have ratified the Charter.43

The African Charter on Human and People's Rights followed the

footsteps of the European and Inter-American systems by creating a

regional human rights system for Africa. The Charter shares many

features with other regional instruments, but also has notable unique

characteristics concerning the norms it recognizes and also its

supervisory mechanism.

The preamble commits to the elimination of Zionism, which it

compares with colonialism and apartheid, caused South Africa to qualify

its 1996 accession with the reservation that the Charter fall in line with

the UN's resolutions regarding the characterization of Zionism.44

African Charter on the Rights and Welfare of the Child

The African Charter on the Rights and Welfare of the Child (also

called the ACRWC or Children's Charter) was adopted by the

Organisation of African Unity (OAU) in 1990 (in 2001, the OAU legally

became the African Union) and was entered into force in 1999. Like the

United Nations Convention on the Rights of the Child (CRC), the

Children's Charter is a comprehensive instrument that sets out rights

124
and defines universal principles and norms for the status of children.

The ACRWC and the CRC are the only international and regional

human rights treaties that cover the whole spectrum of civil, political,

economic, social and cultural rights.

It calls for the creation of an African Committee of Experts on the

Rights and Welfare of the Child (Committee of Experts). Its mission is to

promote and protect the rights established by the ACRWC, to practice

applying these rights, and to interpret the disposition of the ACRWC as

required of party states, AU institutions, or all other institutions

recognized by AU or by a member state.

Focus on Childrens Right in Africa

Children in Africa are affected by many different types of abuse,

including economic and sexual exploitation, gender discrimination in

education and access to health, and their involvement in armed conflict.

Other factors affecting African children include migration, early

marriage, differences between urban and rural areas, child-headed

households, street children and poverty. Furthermore, child workers in

Sub-Saharan Africa account for about 80 million children or 4 out of

every 10 children under 14 years old which is the highest child labour

rate in the world.45

The ACRWC defines a child as a human being below the age of

18 years. It recognises the child's unique and privileged place in African

125
society and that African children need protection and special care. It

also acknowledges that children are entitled to the enjoyment of

freedom of expression, association, peaceful assembly, thought,

religion, and conscience. It aims to protect the private life of the child

and safeguard the child against all forms of economic exploitation and

against work that is hazardous, interferes with the child's education, or

compromises his or her health or physical, social, mental, spiritual, and

moral development. It calls for protection against abuse and bad

treatment, negative social and cultural practices, all forms of exploitation

or sexual abuse, including commercial sexual exploitation, and illegal

drug use. It aims to prevent the sale and trafficking of children,

kidnapping, and begging of children.

Maputo Protocol

The Protocol to the African Charter on Human and Peoples

Rights on the Rights of Women in Africa, better known as the Maputo

Protocol, guarantees comprehensive rights to women including the right

to take part in the political process, to social and political equality with

men, to control of their reproductive health, and an end to female genital

mutilation. As the name suggests, it was adopted by the African Union

in the form of a protocol to the African Charter on Human and Peoples'

Rights.

126
The protocol was adopted by the African Union on 11 July 2003

at its second summit in Maputo, Mozambique. On 25 November 2005,

having been ratified by the required 15 member nations of the African

Union, the protocol entered into force.

Of the 53 member countries in the African Union, the heads of

states of 45 countries signed the protocol, and as of December 2009,

27 of those countries had ratified and deposited the protocol.46

Opposition

There are two particularly contentious factors driving opposition to

the Protocol: its article on reproductive health, which is opposed mainly

by Catholics and other Christians, and its articles on female genital

mutilation, polygamous marriage and other traditional practices, which

are opposed mainly by Muslims.

Christian opposition

Pope Benedict XVI has described the Protocol as an attempt to

trivialize abortion surreptitiously. The Roman Catholic bishops of Africa

oppose the Maputo Protocol because it defines abortion as a human

right. The US-based pro-life advocacy organization, Human Life

International, describes it as a Trojan horse for a radical agenda.

In Uganda, the powerful Joint Christian Council has successfully

opposed moves to ratify the treaty on the grounds that Article 14, in

127
guaranteeing abortion "in cases of sexual assault, rape, incest, and

where the continued pregnancy endangers the mental and physical

health of the mother or the life of the mother or the foetus," is

incompatible with traditional Christian morality.47 In an open letter to the

government and people of Uganda in January, 2006, the Catholic

Bishops' Conference of Uganda set out their opposition to the

ratification of the Maputo Protocol.

Muslim opposition

In Niger, the Parliament voted 42 to 31, with 4 abstentions,

against ratifying it in June, 2006; in this Muslim country, several

traditions banned or deprecated by the Protocol are common. Nigerien

Muslim womens groups in 2009 gathered in Niamey to protest what

they called the satanic Maputo protocols, specifying limits to marriage

age of girls and abortion as objectionable.48

In Djibouti, however, the Protocol was ratified in February, 2005

after a sub-regional conference on female genital mutilation called by

the Djibouti government and No Peace Without Justice, at which the

Djibouti Declaration on female genital mutilation was adopted. The

document declares that the Koran does not support female genital

mutilation, and on the contrary practicing genital mutilation on women

goes against the precepts of Islam.

128
American Regional Conventions

The following are the important American Regional Conventions

American Convention on Human Rights

The American Convention on Human Rights (also known as the

Pact of San Jose) is an international human rights instrument. It was

adopted by the nations of the Americas meeting in San Jose, Costa

Rica, in 1969. It came into force after the eleventh instrument of

ratification (that of Grenada) was deposited on 18 July 1978.

The bodies responsible for overseeing compliance with the

Convention are the Inter-American Commission on Human Rights and

the Inter-American Court of Human Rights, both of which are organs of

the Organization of American States (OAS).49

According to its preamble, the purpose of the Convention is to

consolidate in this hemisphere, within the framework of democratic

institutions, a system of personal liberty and social justice based on

respect for the essential rights of man.

In the ensuing years, the states parties to the American

Convention have supplemented its provisions with two additional

protocols.

The first, the Additional Protocol to the American Convention on

Human Rights in the area of Economic, Social, and Cultural Rights

129
(more commonly known as the Protocol of San Salvador), was opened

for signature in the city of San Salvador, El Salvador, on 17 November

1988. It represented an attempt to take the inter-American human rights

system to a higher level by enshrining its protection of so-called second-

generation rights in the economic, social, and cultural spheres. The

protocol's provisions cover such areas as the right to work, the right to

health, the right to food, and the right to education. It came into effect on

16 November 1999 and has been ratified by 14 nations.

The second, the Protocol to the American Convention on Human

Rights to Abolish the Death Penalty, was adopted at Asuncion,

Paraguay, on 8 June 1990. While Article 4 of the American Convention

had already placed severe restrictions on the states' ability to impose

the death penalty-only applicable for the most serious crimes; no

reinstatement once abolished; not to be used for political offenses or

common crimes; not to be used against those aged under 18 or over

70, or against pregnant women-signing this protocol formalizes a state's

solemn commitment to refrain from using capital punishment in any

peacetime circumstance. To date it has been ratified by 11 nations.

As on 2010, 24 of the 35 OAS's member states have ratified the

Convention.50

130
Inter-American Convention to Prevent and Punish Torture

The Inter-American Convention to Prevent and Punish Torture

(IACPPT) is an international human rights instrument, created in 1985

within the Western Hemisphere Organization of American States and

intended to prevent torture and other similar activities.

The Inter-American Convention entered into force on February

28, 1987, and, as of 2010, 18 nations are party to it, with another two

having signed but not yet ratified.

The Inter-American Convention defines torture more expansively

than the United Nations Convention Against Torture, including the use

of methods upon a person intended to obliterate the personality of the

victim or to diminish his physical or mental capacities, even if they do

not cause physical pain or mental anguish. The Convention is one of a

series of OAS agreements that seek to protect human rights, within the

framework of the American Convention on Human Rights, which bans

torture in less detail.51

The Convention also requires states to take effective measures to

prevent torture within their borders, and creates an ability to extradite

persons accused of torture.

131
European Regional Conventions

The following are the important European Regional Conventions.

Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union

enshrines certain political, social, and economic rights for European

Union (EU) citizens and residents, into EU law. It was drafted by the

European Convention and solemnly proclaimed on 7 December 2000

by the European Parliament, the Council of Ministers and the European

Commission. However its then legal status was uncertain and it did not

have full legal effect until the entry into force of the Treaty of Lisbon on

1 December 2009.

Under the Charter, the European Union (EU) must act and

legislate consistently with the Charter and the EU's courts will strike

down EU legislation which contravenes it. The Charter only applies to

EU member states when they are implementing EU law and does not

extend the competences of the EU beyond the competences given to it

in the treaties.52

The Treaty establishing the European Economic Community did

not include any reference to fundamental or human rights. The EEC

Treaty was written a few years after the failure of the European Defence

Community Treaty and the European Political Community Treaty. This

latter treaty had included rights provisions and Craig and de Burca

132
argue that, in light of that failure, the drafters of the EEC Treaty wished

to eschew any implicitly political elements. However the idea that the

purely economic end of the new EEC Treaty would be unlikely to have

any implications for fundamental rights was soon to be tested.

The Convention adopted the draft on 2 October 2000 and it was

solemnly proclaimed by the European Parliament, the Council of

Ministers and the European Commission on 7 December 2000. It was at

the same time, however, decided to defer making a decision on the

Charter's legal status. However it did come with the political weight of

having been approved by three powerful institutions and as such was

regularly cited by the ECJ as a source of fundamental rights.

Legal force

A modified Charter formed part of the defunct European

Constitution. After that treaty's failure, its replacement, the Lisbon

Treaty, also gave force to the Charter albeit by referencing it an

independent document rather than by incorporating it into the treaty

itself. It should be noted, however, that both the version included in the

Constitution and the one referenced by the Lisbon Treaty were

amended versions.53

On its coming into force with the Lisbon Treaty on 1st December

2009, Justice Commissioner Viviane Reding proposed that

Commissioners should swear to uphold all EU treaties and the Charter.

133
On 3 May 2010, the European Commission swore a solemn declaration

at the European Court of Justice in Luxembourg, pledging to respect the

EU Treaties and to be completely independent in carrying out their

duties during their mandate. For the first time, the Commissioners also

explicitly pledged to respect the new Charter of Fundamental Rights.

Several states insisted upon an opt-out from national application of the

charter.

Convention on Action against Trafficking in Human Beings

The Convention on Action against Trafficking in Human Beings is

a regional human rights treaty of the Council of Europe. The Convention

aims to prevent and combat human trafficking for the purposes of

commercial sexual exploitation or forced labour; to protect and assist

victims and witnesses of trafficking; to ensure effective investigation and

prosecution, and to promote international cooperation against

trafficking. In particular, the Convention requires national co-ordination

measures, awareness raising, measures to identify and support victims

and a recovery and reflection period during which trafficked persons will

not be expelled from the receiving state.54

The Convention establishes a monitoring mechanism (the Group

of experts on action against trafficking in human beings, or GRETA)

consisting of 10 to 15 members elected by the states parties.

134
The Convention opened for signature on 16 May 2005, and

entered into force on 1 February 2008. It has been ratified (as of 30 May

2010) by 27 European states, while a further 16 have signed but not yet

ratified.

European Charter for Regional or Minority Languages

The European Charter for Regional or Minority Languages

(ECRML) is an European treaty (CETS 148) adopted in 1992 under the

auspices of the Council of Europe to protect and promote historical

regional and minority languages in Europe. It only applies to languages

traditionally used by the nationals of the State Parties (thus excluding

languages used by recent immigrants from other states), which

significantly differ from the majority or official language (thus excluding

what the state party wishes to consider as mere local dialects of the

official or majority language) and that either have a territorial basis (and

are therefore traditionally spoken by populations of regions or areas

within the State) or are used by linguistic minorities within the State as a

whole (thereby including such languages as Yiddish and Romani, which

are used over a wide geographic area).

Languages that are official within regions or provinces or federal

units within a State (for example Catalan in Spain) are not classified as

official languages of the State and may therefore benefit from the

Charter. On the other hand, the Republic of Ireland has not been able to

135
sign the Charter on behalf of the Irish language (although a minority

language) as it is defined as the first official language of the state. The

United Kingdom has, though, ratified the Charter in respect of (among

other languages) Welsh and Irish in Northern Ireland. France, although

a signatory, has been constitutionally blocked from ratifying the Charter

in respect of the languages of France.55

The charter provides a large number of different actions state

parties can take to protect and promote historical regional and minority

languages. There are two levels of protection-all signatories must apply

the lower level of protection to qualifying languages. Signatories may

further declare that a qualifying language or languages will benefit from

the higher level of protection, which lists a range of actions from which

states must agree to undertake at least 35.

European Convention on Human Rights

The European Convention on Human Rights (ECHR) (formally

the Convention for the Protection of Human Rights and Fundamental

Freedoms) is an international treaty to protect human rights and

fundamental freedoms in Europe. Drafted in 1950 by the then newly

formed Council of Europe, the convention entered into force on 3

September 1953. All Council of Europe member states are party to the

Convention and new members are expected to ratify the convention at

the earliest opportunity.

136
The Convention established the European Court of Human

Rights. Any person who feels his or her rights have been violated under

the Convention by a state party can take a case to the Court.

Judgments finding violations are binding on the States concerned and

they are obliged to execute them. The Committee of Ministers of the

Council of Europe monitors the execution of judgments, particularly to

ensure payment of the amounts awarded by the Court to the applicants

in compensation for the damage they have sustained. The

establishment of a Court to protect individuals from human rights

violations is an innovative feature for an international convention on

human rights, as it gives the individual an active role on the international

arena (traditionally, only states are considered actors in international

law). The European Convention is still the only international human

rights agreement providing such a high degree of individual protection.

State parties can also take cases against other state parties to the

Court, although this power is rarely used.

The Convention has several protocols. For example, Protocol 13

prohibits the death penalty. The protocols accepted vary from State

Party to State Party, though it is understood that state parties should be

party to as many protocols as possible.

137
European Convention for the Prevention of Torture and Inhuman

or Degrading Treatment or Punishment

The European Convention for the Prevention of Torture and

inhuman or Degrading Treatment or Punishment was adopted by the

member states of the Council of Europe, meeting at Strasbourg on 26

November 1987. It was subsequently amended by two Protocols that

entered into force on 1 March 2002. Overseeing compliance with its

provisions of the Convention is the task of the Committee for the

Prevention of Torture, which was set up by the Convention.56

After the European Convention on Human Rights, the Convention

for the Prevention of Torture is widely regarded as being one of the

most important of the Council of Europe's treaties. It has been ratified

by all 47 of the Council of Europe's member states, and ratification of

the Convention has been a pre-condition for all states who have Joined

the Council of Europe in the last few years.

European Social Charter

The European Social Charter is a Council of Europe treaty which

was adopted in 1961 and revised in 1996. The Revised Charter came

into force in 1999 and is gradually replacing the initial 1961 treaty.

The Charter sets out rights and freedoms and establishes a

supervisory mechanism guaranteeing their respect by the States

parties.

138
The Charter guarantees rights and freedoms which concern all

individuals in their daily existence. The basic rights set out in the

Charter are as follows: housing, health, education, employment, social

and legal protection, free movement of persons and non discrimination.

States Parties to the Charter must submit annual reports on a part

of the provisions of the Charter (be it the 1961 Charter or the 1996

Revised Charter), showing how they implement them in law and in

practice. The European Committee of Social Rights (ECSR) is the body

responsible for monitoring compliance in the States party to the Charter.

The ECSR is composed of 15 independent, impartial members

who are elected by the Council of Europes Committee of Ministers for a


period of six years, renewable once.57

Under the 1995 Additional Protocol providing for a system of

Collective Complaints which came into force in 1998, complaints of

violations of the Charter may be lodged with the ECSR.

Certain organisations are entitled to lodge complaints with the

ECSR (a special list of NGOs has been established, made up of NGOs

enjoying participatory status with the Council of Europe). The ECSR

examines the complaint and, if the formal requirements have been met,

declares it admissible.

139
Framework Convention for the Protection of National Minorities

The Framework Convention for the Protection of National

Minorities (FCNM) was signed on February 1995 by 22 member States

of the Council of Europe (not to be confused with similarly named

institutions of the European Union).

The Council of Europe first discussed according specific

protection for national minorities in 1949, but it was not until 1990 that

the Council of Europe made a firm commitment to protect these minority

groups. Recommendation 1134 (1990) contained a list of principles

which the Assembly considered necessary for this purpose.

The Framework was to become active in 1998. The broad aims of

the Convention are to ensure that the signatory states respect the rights

of national minorities, undertaking to combat discrimination, promote

equality, preserve and develop the culture and identity of national

minorities, guarantee certain freedoms in relation to access to the

media, minority languages and education and encourage the

participation of national minorities in public life.

140
INFERENCE

To protect and safeguard the human rights of the individual

several conventions and declarations were held. These can be broadly

divided into international and regional. A good number of these

conventions and declarations were aimed to oversee the

implementation of human rights. The impact and influence of these

declarations and conventions is vary from one another. The important

International Declarations includes Declarations of the Rights 1948,

American Declaration of the Rights and Duties Man 1948, Caniro

Declaration Human Rights in Islam 1990, Declaration on the Rights of

Indigenous peoples 2007 and UN Declaration on Sexual Orientation

and Gender Identity 2008 etc. Besides, there are 14 International

Conventions on the human rights. Coming to regional Declarations

there are 3 African, 5 American and 7 European human rights

declarations.

The Declaration of the Rights of the child was endorsed by the

General Assembly of League of Nations on 26th November 1924. The

draft was modified by the UN General Assembly on 20th November

1959. As such 20th November is observed as the Universal Childrens

Day. The Universal Declaration of Human Rights on December 10,

1948 in Paris is built on the inherent dignity of every person and is

rightly described as Magna Carta for all humanity. Since 1948, several

human rights treaties and declarations have been negotiated at the

141
United Nations. Among them are the convention on the Prevention and

Punishment of Crime of Genocide, Convention relating to the status of

Refugees, Convention on the Elimination of ail forms Racial

Discrimination, Convention on the Elimination of Discrimination Against

Women Convention against Torture and the Cruel, Inhuman or

Degrading Treatment or Punishment, Convention on the Right of

persons belonging to National or ethnic, Religions and Linguistic

Minorities etc. Apart from these declarations and convections of state of

African Charter on the Rights and Welfare of the child and Maputo

Protocol. The organisation of American states ratified, American

convention on Human Rights, Inter American Convention to prevent and

Punish Torture, Inter-American Convention Forced Disappearance of

Persons, Inter-American Convention on the prevention punishment and

Eradication of violence against Women and Inter American Convention

on the Elimination of all Forms of Discrimination against Persons with

Disabilities. The European Regional Conventions include Charter of

Fundamental Right of the European Union, European Convention of

Human Rights European Social Charter etc.

142
REFERENCES

1. http://treaties.un.ora/Paaes/ViewDetails.aspx?src=TREATY&mtdsq

no=IV-3&chapter=4&lanq=en, Retrieved 2009-02-25.

2. Fact Sheet No.2 (Rev.1), The International Bill of Human Rights.

UNOHCHR.June, 1996, http://www,unhchr.ch/html/menu6/2/fs2,

htm. Retrieved 2008-06-02.

3. Sieghart, Paul, The International Law of Human Rights. Oxford

University Press. 1983. p. 25.

4. Zdzislaw Kedzia United Nations Mechanism to promote and protect

Human Rights in Janusz symonides (Eds) Human Rights

International Protection, Monitoring, Enforcement, Rawat

Publications, New Delhi, 2005, p.9.

5. Opsahl, T., The Human Rights Committee, in P.AIston (ed.), The

United Nations and Human Rights-A Critical Appraisal, Oxford:

Clarendon Press, 1992, p.96.

6. United Nations, Year Book of the Human Rights Committee 1977-

1978, Geneva: United Nations, 1986, p.21.

7. Weissbrodt, David and Farely, Rose, The UNESCO human rights

procedures an evaluation, Human Rights Quarterly, 1994, Vol.16,

No.2, May, pp.391-392.

8. Zdzislaw Kedzia, Op.Cit. p.15.

143
9. Abdel Ghafar, Mostafa, Safeguards of human rights at the

regional level, Cairo Institute for Human Rights Studies, 2001,

pp.1-2.

10. Ibid, p.9

11. Ibid, p.12

12. Ibid, p.29

13. Hanski, R. and Suksi, M. (eds), An Introduction to the

international Protection of Human Rights, Turku/Abo: Institute

for Human Rights, Abo Akademic University, 1999, p.54.

14. Marks, Stephen, UNESCO and human rights; the

implementation of rights relating to education, science,

culture and information, Texas International Law Journal, 1977-

78, 13, pp.35-36.

15. www.aooale.com Human rights.

16. English, Kathryn and Stapleton, Adam, The Human Rights

Handbook, UK Human Rights Centre, 1995.p25.

17. Ramcharan, Bertrand, The United Nations High Commissioner

for Human Rights: The Challenges of International Protection,

Kluwer Law International, 2002, p.30.

18. Shelton, Dinah, Remedies in international Human Rights Law,

Oxford University Press, London, 1999, p.28.

19. Alston, Philip, ed. Human Rights Law. University Press, New

York, 1996. p.11.

144
20. Bayefskh, Anne, Report-the United Nations Human Rights

Treaty System: Universality at the Crossroads, Transitional

Publishers, 2001, p.31.

21. Ramcharan, Bertrand, G. Human Rights and Human Security,

Martinus Nijhoff, 2002, p.53.

22. Ibid, p.59.

23. United Nations, United Nations Action in the Field of Human

Rights, UN Centre for Human Rights, Geneva, 1994, p.59.

24. Dumot, Georges-Henri, UNESCO, the Quest for Human Rights:

UNESCOs Ultimate Goal, UNESCO Sources, 16(1), June, 1990,

p.11.

25. Alston, Philip (ed.), The United Nations and Human Rights - A

Critical Appraisal, Clarendon Press, Oxford, 1992.p.58.

26. Swepston, Lee, The Convention on the Rights of the Child and the

ILO, Nordic Journal of International Law Vols.61-62, 1994.p.56.

27. Ibid, p.58.

28. United Nations Treaty Collection. Convention on the Rights of the

Child, Article 49.

29. Cancado Trindade, A.A. The Application of the Rule of

Exhaustion of Local Remedies in International Law, Cambridge

University Press, Cambridge, 1983, p.25.

30. Bayefskh, Anne, Op.Cit, p.32.

31. Alston, Philip, Op.Cit.p.13.

145
32. Brett, R. Human rights and the OSCE, Human Rights Quarterly,

Vol. 19, 1996, pp.668-669.

33. Winston, S. The rights of women, the African Charter and the

economic development of Africa, Boston College Third World

Law Journal, 1987, Vol. 7, No.2, Spring, pp.215-216.

34. CEDAW, Article.12.

35. CEDAW, Article.18.

36. Ramcharan, Bertrand, G. p.54.

37. Casser Antari, Human Rights in Changing world, Temple

University Press, Philadelphia, 1990, p.51.

38. Brett, R.Op.Cit, 671.

39. Ibid, p.672.

40. Gentleman, Amelia,Children's domestic labor resists India's legal

efforts, New York Times, 18 February, 2007.

41. Alston, Philip, Op.Cit.p.59.

42. Danid D.C. Don Nanjira, The protection of Human Rights in Africa:

The African charter on Human and Peoples Rights, in Janusz

symonides (Eds) Human Rights International Protection,

Monitoring, Enforcement, Rawat Publications, New Delhi, 2005,

p.217.

43. Ibid, p.218.

44. Ibid, p.218.

146
45. Kodjo, Edem, The Africian Charter of Human and Peoples Rights,

Human Rights Law Journal, 1990, Vol.11, Nos.3-4, pp.271-272.

46. Ibid, p.279.

47. Ibid, p.281.

48. Welch Jr. Claude E. Human rights and African women: a

comparison of protection under two major treaties, Human Rights

Quarterly, 1993, Vol.15, No.3, August, pp.549-550.

49. Hugo Caminor, The European System for the protection of Human

Rights, in Janusz symonides (Eds) Human Rights International

Protection, Monitoring, Enforcement, Rawat Publications, New

Delhi, 2005, p.165.

50. Organization of American States (OAS), Inter American Year

book of Human Rights, 1968, Washington DC: OAS, 1973, p.2.

51. Shelton Dinah, Implementation procedures of the American

Convention on Human Rights, German Yearbook of

International Law, 1983, pp.238-239.

52. MacDonald, R. St. J., F.Matscher and H.Petzold, The European

System for the Protection of Human Rights, Dordrecht, Nijhoff,

1993, p.3.

53. Van Dijik, P. and Van Hoff, G.J.H., Theory and Practice of the

European Convention of Human Rights, Deventer: Kluwer,

1990. p.85.

147
54. Maxime Tardu, The European Systems for the protection of

Human Rights, in Janusz syrhonides (Eds) Human Rights

Internationa! Protection, Monitoring, Enforcement, Rawat

Publications, New Delhi, 2005, p.146.

55. Baheyel Din Hasan, Regional Protection of Human Rights in the

Arab States in statu Nar Candi, in Janusz symonides (Eds)

Human Rights International Protection, Monitoring,

Enforcement, Rawat Publications, New Delhi, 2005, p.239.

56. Maxime Tardu, Op. Cit.p.147.

57. Van Dijik, P. and Van Hoff, G.J.H, Op.Cit.p.86.

148
Chapter- 4

INDIAN CONSTITUTION AND


HUMAN RIGHTS
India became independent on August 15, 1947 in accordance

with the Independence of India Act, 1947. The Act was enacted by the

British Parliament. It made a provision for the setting up of two

independent dominions in India, which are known as India and

Pakistan. Thus India along with Pakistan acquired new international

personality. However, both the new states were continued to be

administered by the Government of India Act, 1935.1

The task for preparing the Constitution of India was entrusted to

the Constituent Assembly which met for the first time on December 9,

1946, i.e., before India became a Dominion, The Assembly appointed

various committees to draft the different articles of the Constitution. The

reports of these committees formed the basis on which a draft of the

new Constitution of India was prepared in February 1948. Its final

shape was given on November 26, 1949, and it came into force on

January 26, 1950. The Preamble of the Constitution declares India to

be a 'sovereign, socialist, secular, democratic republic.2

The term 'democratic' denotes that the Government gets its

authority from the will of the people. The Government is elected by the

people and it is a body of the representatives of the people. Thus the

power to exercise legal as well as political sovereignty vests in the

people. It gives a feeling that they all are equal irrespective of their

race, religion, language, sex and culture.3

149
Human Rights and Debates in the Constituent Assembly

A written guarantee of Fundamental Rights in the Constitution of

India, envisaging a Constituent Assembly for framing the constitution of

India was recognized by the Cabinet Mission in 1946. To this end, a

recommendation was made to set up an Advisory Committee for

reporting to the Assembly on Fundamental Rights. As per the

suggestion of the Cabinet Mission plan, the Constituent Assembly

voted to form the Advisory Committee on 24th January, 1947. Sardar

Patel was its Chairman. The committee was to report to the Assembly

on the list of Fundamental Rights, the clauses for the protection of

minorities etc. The sub-committee on Fundamental Rights with Acharya

Kripalani as the Chairman was one of the sub-committees set up by the

Advisory Committee. This sub-committee met for the first time on 24

February, 1947, to discuss the drafted list of rights prepared by B.N.

Rau, K.T. Shah, K.M. Munshi, Dr. B.R. Ambedkar, Harnam Singh and

the Congress Expert Committee, as well as miscellaneous notes and

memoranda on various aspects of rights. These lists were lengthy and

detailed, as they were accompanied by explanatory memoranda and

they contained both negative, as well as positive rights taken from

different sources, from both within the country and outside. Balancing

individual liberty with social control, the former for fulfilling individual

personality and the latter for the peace and stability of society was a

very tricky problem. Despite disagreement on technique, there was

150
hardly any difference on principles. So it was decided that the

Fundamental Rights should be justiceable. The Rights to Freedom,

provisions abolishing untouchability, protection against double

jeopardy, ex-post facto laws, equality before law, the right to freely

practice religion and the protection of minorities were all adopted. The

English device of prerogative writs, or directions in the form of writs was

the legal method, which was included within the rights to secure them.

Right to constitutional remedies was also adopted. Though a few

amendments were accepted, the content of rights and basic principles

remained intact. The rights were considered to be fundamental and

enforceable by courts but they could not be absolute. They could be

limited by attaching provision to the particular right and by providing for

the rights to be suspended in certain circumstances. Individual liberty,

right to equality, basic freedoms etc. were passed with certain

limitations. The seven Fundamental Rights had close resemblance with

human rights enshrined in various international human rights

documents. Members like K.M, Munshi, Ambedkar and K.T Shah were

in favour of a more vigorous social programme. So they insisted on a

specified time limit within which all the directive principles must be

made justiciable. During the debate on the Draft constitution (Nov-Dec,

1948) there were two types of opinions - that the directives did not go

far enough towards establishing a socialist state and that they should

have placed greater emphasis on certain institutions and principles,

151
central to Indian practice and to Hindu thought, particularly those

glorified by Gandhi's teaching. The amendments for development of

village life and economy and the panchayat system of village

organization, making the promotion of cottage industries a government

responsibility, making it incumbent upon the government to prevent the

slaughter of cattle and to improve the methods of animal husbandry

and agriculture, amendments calling for the nationalization of various

industries are evident of these opinions. However, most of these

amendments were voted down or withdrawn by their initiators.

Consequently, the directive principles of state policy were adopted as

part IV of the Indian Constitution by the Assembly.4

Fundamental human rights in the sense of civil liberties with their

modern attribute and overtone are a development more or less parallel

to the growth of constitutional government and parliamentary

institutions from the time of British rule in India. The impetus of their

development obviously came out of resistance to foreign rule when the

British resorted to arbitrary acts such as brutal assaults on unarmed

poor Indians. Nationalist Movement and the birth of the Indian National

Congress were the direct results. The freedom movement was largely

directed against racial discrimination and to securing basic human

rights for all the people irrespective of race, colour, creed, sex, place of

birth in the matter of access to public places, offices and services.

152
The history of national struggle for basic human rights can be

traced back to the formation of the Indian National Congress, which

endeavored to formulate the spectrum of human rights back in 1895,

when an unknown author drafted the Constitution of India Bill. However,

the first formal document came into existence in 1928, with the Report

of Motilal Nehru. The rights enumerated by the Motilal Nehru Report -

free elementary education, living wages, protection of motherhood,

welfare of children were a precursor of the fundamental Rights and

Directive Principles of State Policy, which were enshrined in the Indian

Constitution 22 years later. Most important pronouncement on human

rights came in the pages of Objectives Resolution moved by Jawaharlal

Nehru in 1946. In the Objective Resolution, it was pledged to draw up a

Constitution for the country wherein "shall be guaranteed and secured

to all the country wherein adequate safeguards would be provided for

the minorities, backward and tribal areas and depressed and other

classes".sThe Resolution also reflected the anxiety of the founding

fathers to incorporate and implement the basic principles enunciated in

the Universal Declaration of Human Rights, the Assembly incorporated

in the Constitution of India the substance of most of these rights. The

two parts-the Fundamental Rights and the Directive Principles of the

Constitution of India between them covered almost the entire field of the

Universal Declaration of Human Rights. In short, the Objective

153
Resolution forms the basis for the incorporation of various provisions of

the Constitution.

The Preamble and Human Rights

The Preamble to the Constitution is of supreme importance and

the Constitution should be read and interpreted in the light of the grand

and noble vision expressed in the preamble. The Preamble of the

Constitution declares: "We the people of India, having solemnly

resolved to constitute India into a sovereign, socialist, secular,

democratic republic and to secure to all citizens: Justice, social,

economic and political; Liberty of thoughts, expression, belief, faith and

worship; Equality of status and of opportunity; and to promote among

them all; Fraternity assuring the dignity of the individual and the unity

and integrity of the nation."6 In short, the Preamble concisely sets out

Quintessence of human rights, which represents the aspirations of the

people, who have established the Constitution.

Fundamental Rights and Human Rights

A unique feature of the Indian Constitution is that a large part of

human rights are named as Fundamental Rights, and the right to

enforce Fundamental Rights itself has been made a Fundamental

Right. The Fundamental Rights in the Indian Constitution constitute the

Magna Carta of individual liberty and human rights. The Fundamental

Rights under Articles 14-31 of the Constitution provide individual right

154
based on right to equality, right to freedom, right against exploitation,

right to freedom of religion, right to cultural and educational rights.

These are negative rights which are made enforceable against the

state, if violated. These rights can be summed up in to following

categories.7

Right to Equality (Art. 14-18)

Right to equality is the cornerstone of human rights in Indian

Constitution. While Article 14 states that "the state shall not deny to any

person equality before the law and equal protection of the laws within

the territory of India,"8 the Article 15 goes to much more specific details

that the state shall not discriminate against any citizen on grounds of

religion, race, caste, sex, place of birth or any of them be subject to any

disability, liability, restriction or condition with regard to access to shops,

public restaurants, hotels and places of public entertainment. Whereas,

Article 16 states that "there shall be equal opportunity for all citizens in

matters relating to employment or appointment to any office under the

state."9 Article 17 and Article 18 directs the state to abolish

untouchability and titles respectively.

Right to Freedom (Art. 19-22)

The rights to freedom under Articles 19-22, are the soul of the

human rights in India. Significantly, Article 19 states that "all citizens

shall have the right to freedom of speech and expression; to assemble

155
peacefully and without arms; to form associations or unions: to move

freely throughout the territory of India; to reside and settle in any part of

the territory of India; and to practice any profession or to carry on any

occupation, trade or business."10 Whereas, Article 20 says that "no

person shall be convicted of any offence except for violation of a law 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.11

However, the most important article of human freedom is stated in

Article 20, which says that "no person shall be deprived of his life or

personal liberty except according to the procedure established by

law."12

Right against Exploitation (Art. 23-24)

The Constitution under-Articles 23-24, enumerates a list of rights

that prohibits exploitation, human trafficking and similar such

exploitations. Article 23 prohibits traffic in human beings and beggar

and other forms of forced labour. Our Constitution, instead of using the

word 'slavery' used a more comprehensive expression "traffic in human

beings", which includes a prohibition not only of slavery but also of

traffic in women or children or crippled, for immoral or other purposes.

156
Article 24 of the Constitution prohibits the employment of the

children below 14 years of age in any factory or mine or in any other

hazardous employment.

Thus forced labour is prohibited and children have been protected

as a matter of fundamental rights.

Right to Freedom of Religion (Art. 25-28)

The Part 111 of the Constitution under Articles 25-28 prescribe for

certain religious freedoms for citizens. They include freedom of

conscience of free pursuit of profession, practice and propagation of

religion, freedom to manage religious affairs, freedom to payment of

taxes for promotion of any particular religion and freedom as to

attendance at religious instruction or religious worship in certain

educational institutions. In short, these are vital rights of religious


f

minorities in India.

Cultural and Educational Rights (Art. 29-30)

Article 29 and 30 of the Constitution guarantees certain cultural

and educational rights to the minority sections. While Article 29

guarantees the right of any section of the citizens residing in any part of

the country having a distinct language, script or culture of its own, and

to conserve the same, Article 30 provides that "all minorities, whether

based on religion or language, shall have the right to establish and

administer educational institutions of their choice''.13 In short, these are

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important rights, as far the protection of human rights of minority groups

in a majoritarian society as India.

Right to Constitutional Remedies

Chapter III of the Indian Constitution pertaining to Fundamental

Rights has a measure of judicial protection and sanctity in the matter of

enforcement of these rights. Under Article 32, every person has been

given a right to move to the Supreme Court by appropriate proceedings

for the enforcement of the rights conferred by Part III. Clause 2 of this

Article empowers the Supreme Court to issue directions, or writs,

including writs in the nature of Habeas Corpus, Mandamus, Prohibition,

Quo Warranto, and Certiorari. This right cannot be suspended except

when a proclamation of emergency is in force.

Directive Principles of State Policy

The Part IV of the Constitution popularly known as the Directive

Principles of State Policy provides a long list of human, civil and

economic rights for the people of India. They form the bedrock of

human rights in India. The main purpose of this charter of positive rights

is to ensure social, political and economic justice to all by laying down

basic principles of governance. These principles are intended to be kept

in mind both by the legislatures in enacting laws and by the executive

authorities in enforcing laws. Although these principles are not

enforceable by any Court yet they are fundamental in the governance of

158
the country and it shall be the duty of the State to apply these principles

in making laws for the general welfare of their men, women and

children. These rights are:14

> Providing adequate means of livelihood (Article 39 (a)).

> Equal pay for equal work for both men and women (Article 39(d))

> Adequate protection of the health and strength of workers, men and

women (Article 39(e)).

> Equal Justice and free legal aid (Article 39 A).

> Living wage, conditions of work ensuring a decent standard of life

and full enjoyment of leisure and social and cultural opportunities

(Article 43).

> Free and compulsory education for children (Article 45).

> Increasing the level of nutrition, the standard of living and improving

public health (Article 47).

> Prohibiting the slaughter of cows and calves and other milk and

draught cattle (Article 48).

A closer analysis of the Fundamental Rights and the Directive

Principles make it amply clear that between them, almost the entire field

of the Universal Declaration of Human Rights are covered. Besides, the

Indian Constitution, through these two parts (Part III and IV) has made

a novel attempt to balance between enforceable rights and non-

enforceable rights, allowing them to compliment each other on the

159
fundamental governance of the country. Finally, both these rights are

inter-related and indispensable for the Nourishment of others.

Mechanisms to Enforce Human Rights in India

Courts are the main mechanisms for the enforcement of human

rights. In fact, the Higher Courts in this country have played a crucial

role in not only protecting these inalienable rights, but also have played

significant role in broadening and strengthening the demands for these

rights in their several judgments. Apart from the key role being invested

on the National Human Rights Commission to deal with cases of human

rights violations, there are number of agencies being created to ensure

the protection of human rights for specific sections of populations.

Below is a brief scan of various important agencies involved in the

protection of human rights in India.

Civil and Political Rights-Vs Economic, Social and Cultural

Rights

Civil and political rights on the one hand and economic, social

and cultural rights on the other are reflected in the Constitution of India

to some extent. Both the categories of rights are two different but

inseparable aspects of human rights. The realization of the former was

considered as a goal within immediate reach, while the latter was

regarded as ideals for which the country should strive. But there is no

watertight compartment between them. So one can find some social,

160
economic and cultural rights even in part III of the Indian Constitution.

However, the distinction lies in their content, as well as modes of

enforcement. The civil and political rights are often expressed in

negative terms and are more in the nature of freedom from the power of

the state. The social and economic rights, on the other hand, have

positive content and are known as promotional or programmatic rights.

For the sake of convenience, some scholars divide these

constitutional rights into two categories, i.e. specifically Guaranteed

Rights and Impliedly Guaranteed Rights. The Fundamental Rights in

Part III and Directive Principles of State Policy in part IV of the Indian

Constitution come under the category of specifically Guaranteed Rights,

whereas those rights, which are available to all citizens the wider

interpretation of specifically Guaranteed Rights by the Supreme Court of

India, fall under the category of Impliedly Guaranteed Rights. The latter

though not incorporated in the Constitution, are also considered

fundamental by the Court and are available to us only due to judicial

activism.

Economic, Social and Cultural Rights

In the 18th and 19th centuries, civil and political rights were chiefly

enumerated in the constitutions and legislative acts. It was only in the

beginning of the 20,h century that the constitutions of a number of states

began to place an increasingly greater emphasis on socio-economic

161
rights. These rights now occupy an increasingly important place in the

legal systems and political aspirations of different countries of the world.

Economic, social and cultural rights are also given much attention in the

activities of the United Nations and other international organizations.

One view regarding the importance, utility, and implementation of such

rights is that human rights cannot be so classified as to represent a

hierarchy of values. So they constitute an inseparable entity and should

be promoted and protected at the same time. Civil and political rights

are purely nominal in character without economic, social and cultural

rights and on the other hand, the latter cannot be long ensured without

civil and political rights. There is also a second view regarding this,

which is very much opposed to the first one. According to this view, civil

and political rights are enforceable or justiciable and immediately

applicable, while economic, social and cultural rights are to be


*
progressively implemented. Secondly, civil and political rights are rights

of the individual against the state, i.e. against unlawful and unjust action

of the state, whereas economic, social and cultural rights, which the

state would have to take positive action to promote. Besides, civil and

political rights, legal rights, require different means and methods of

implementation.15 However there is wide agreement that "the enjoyment

of civil and political freedom and of economic, social and cultural rights

are inter connected and interdependent" and that "when deprived of

economic, social and cultural rights man, does not represent the human

162
person whom the Universal Declaration regards as the ideal of the free

man".16

The Directive Principles of State Policy find a place in Part-IV of

the Indian Constitution. These directives and instructions are declared

to be fundamental in the governance of the country, which reflect the

ambitions and aspirations of the framers of the constitution regarding

the welfare state in India based on social, economic and political justice.

Thus positive duties are entrusted upon the state to achieve the

aforesaid aims and objectives. Although Directive Principles of State

Policy unlike the Fundamental Rights are not enforceable by the court

of law, the courts are required to interpret the laws in the light of the

economic, social and cultural values set out by these directives. The

Parliament is empowered to amend the Fundamental Rights for

implementing the directives *so long as the amendment does not touch

the basic features of the constitution. Despite their being devoid of

direct legal sanction, the directives have the real sanction i.e. the

sanction of the people, which is the basis of democracy. For not

implementing the directives, the public opinion would go against the

government, which may result in ousting it in election.

Articles 23, 24 and 39 (f) of the Indian Constitution provide

protection to children. Article 23 prohibits traffic in human beings.

Engagement of children below 14 years of age in hazardous jobs is

163
prohibited in Article 24. Child, as well as youth are protected against

exploitation and moral and material abandonment by Article 39 (f). But

unfortunately, the reality is that children have not been well-protected in

India. With a high rate of infant mortality and more than 50 percent of

children suffering from hunger, malnutrition and disease, the situation is

far from satisfactory. Besides, poverty is the major cause that compels

parents to send their children to work in whatever jobs available.17

Right to work is being treated as the most important of all

economic rights today. Article 41 of the Indian Constitution gives

directives to the State to make effective provisions for securing the right

to work, to education and to public assistance in cases of

unemployment, old age, sickness and disablement, and in other cases

of undeserved want. Recently there has been a strong agreement to

include right to work under Fundamental Rights in India but it has not

yet materialized. The problem of unemployment in India, being a

formidable and complex one, needs a dynamic approach for its

satisfactory solution. In the age of liberalization and globalization, the

situation is worsening with much more detrimental effects, especially on

the marginalized sections of the population.

Article 43 of the Indian Constitution directs the state to endeavour

to secure by suitable legislation or economic organization or in any

164
other way, to all workers, (agricultural, industrial or otherwise) work, a

living wage, and conditions of work ensuring a decent standard of life.

The standard of living of a person depends on his/her status in

society, the social environment one lives in and the climatic conditions

of the place. The amount of necessaries, comforts and luxuries, which a

person requires or consumes, determine his/her standard of living,

which, being relative terms, differ from place to place, from time to time

and from person to person. In view of the fact that workers in India do

not get sufficient food or clothing and their conditions of housing are

substandard, it cannot be said that they lead a life, which can be called

decent by modern standards. Article 43 directs the state to grant to all

workers the right to rest and leisure and social and cultural

opportunities. Keeping this in view the Indian government has enacted

various acts like Factories, Act, 1948, the mines Act, 1961, -the

Plantation Labour Act, 1951, etc. containing provisions in respect of

hours of work, rest and leisure, health, safety and welfare.

Human Rights and the Indian Judiciary

A law that is static can never ensure human rights. For achieving

the objective of a just society, law must constantly be on the move,

adapting itself to the changing needs of the society.18 The constitutional

law of India is no exception to it. In order to protect the human rights of

the person, it must, assume its dynamic role. While interpreting the

165
Constitution, judicial attitude has changed with the need of time and it

has gone beyond the traditional procedural obstruction. The Indian

Judiciary has taken very bold and innovative steps so far as human

rights are concerned. By its radical interpretation of Fundamental

Rights, it has defended the rights of the disadvantaged sections, such

as child, women, old or handicapped of the society. If the Directive

Principles have become almost justiciable rights today, the sole credit

must go to the dynamic reinterpretation of the Constitution by the

Judiciary. As a result, the difference between the Fundamental Rights

and the Directive principles of State Policy has got erased

progressively. For example, Article 21 of the Indian Constitution

guaranteeing the right to life and personal liberty has been, in recent

years, infused with infinite potential by the Indian Judiciary to sustain a

wide range of claims and interests, which has led to the development of

a new constitutional jurisprudence. In Maneka Gandhi Vs. Union of

India the Supreme Court of India, has expanded the scope of Article 21

by evolving the principle that the procedure for the deprivation of

personal liberty, had to be 'fair, just and reasonable.19 As a result,

certain rights, which are not specifically incorporated in the Constitution

of India, have also been included and are now available to the people

of India.

166
The right to life is a Fundamental Right under Article 21 of the

Indian Constitution. But right to livelihood finds a place in Part IV i.e.

Directive Principles of State Policy in Article 39 (a). This article gives

instructions to the state to 'direct its policy towards securing that the

citizens, men and women equally, have the right to an adequate means

of livelihood'. Besides, Article 41 focuses on the right to work, as

according to the founding fathers of the Constitution, right to work is

essential to earn livelihood. There are two viewpoints as to whether the

term 'life' includes right to livelihood. As per the first view, right to life

does not include right to livelihood. The second view is more prominent

in the judicial field at present, which holds that right to livelihood is

included in right to life. This view is evident in cases like the Asiad

Workers case, the Bandhu Mukti Morcha case and the Olga Tellis

case. In the Asiad Workers case it was held by the court that non

implementation and non-enforcement by the State of certain provisions

in labour laws resulting in non payment of minimum wages by

contractors to their workers amounted to the denial of their right to live

with human dignity. So it was violative of Article 21 of the Indian

Constitution. This wider and broader interpretation of the term 'life'

culminated in the revolutionary and realistic verdicts of the larger

constitutional bench of the Supreme Court of India in the Olga Tellis

case. In this, the court protected the pavement dwellers of Bombay

against the eviction from their 'squalid shelters' without affording

167
alternative accommodation. Since life is not possible without the means

of living i.e. the means of livelihood, the Supreme Court held it to be an

integral component of the right to life. However, the court has

considered only the negative aspect of not depriving of the right to

livelihood as a Fundamental Right under Article 21, but not its positive

aspect of guaranteeing the right to livelihood.20

The Supreme Court of India has also held that any form of torture

or degrading treatment would be offensive to human dignity and would,

therefore, be violative of Article 21 of the Indian constitution. In view of

the fact that a number of authoritarian governments have used torture

against their political opponents, it has emerged as a worldwide

phenomenon today.

Right to life is also a life of dignity, to be lived in a proper

environment, free from the danger of disease and infection. The quality

of life of the people depends on the environmental health of their

country. But the modern civilization with its technological advancement,

industrialization and urbanization has led to increasing degradation of

the human environment. Sustainable development is the need-of the

hour in the interest of the present, as well as future generation. As

environment was not such an issue at the time of the framing of the

Constitution, there was no direct provision in the Indian Constitution,

regarding environmental protection. Despite this some articles like

168
Article 47 (improvement of public health), Article 48 (Organization of

Agriculture and Animal Husbandry on modern and scientific lines) and

Article 49 (Protection of National Monuments from spoliation and

disfigurement) are related to environmental protection. All these articles

figure in the Part IV i.e. in the Directive Principles of State Policy. This

makes them non-enforceable but at the same time, fundamental in the

governance of the country. Growing awareness of the environment

crisis in recent times has prompted suitable amendments in the Indian

Constitution. Consequently, direct provisions for protection of

environment (Forty Second Amendment Act, 1976) in the form of

fundamental duties have been added to the constitution. Article 48 A,

states that the "State shall endeavour to protect and improve the

environment and to safeguard the forests and wildlife of the country.

Apart from this obligation on the State Article 51A(g) (Fundamental

Duties) makes it a duty of every citizen of India to "protect and improve

the natural environment including forests, lakes, rivers and wildlife and

to have compassion for living creatures".21

In this context, it is very encouraging to see the positive role of

judiciary in the form of judicial activism to make the life of the people

pollution free. One of the latest and prominent examples in this regard

is the role played by the highest court of the land in making CNG fuel

compulsory in public transport buses in Delhi. There are no two

opinions today that Delhi's air has become much cleaner due to this

169
decision, it is a very healthy trend to see that the Supreme Court of

India has held that pollution-free water and air for full enjoyment of life

of a person is now a fundamental right under Article 21 of the

Constitution. So, any person can make a petition directly to the

Supreme Court for the enforcement of this right.22

It is now amply clear that unlike the traditional notion of life being

confined to one's physical existence, the phrase 'Life and personal

Liberty' has come to be understood in a much wider sense, thanks to

judicial activism. The result has been the invention of a number of

impliedly guaranteed rights by the Indian Judiciary for upholding the

basic and sacred right to life and personal liberty. Judicial activism has

also been responsible for extending jurisdiction of courts in case of

Public Interest Litigations. Even a telegram by a prisoner, complaining

of violations of the rights of a co-prisoner sent to one of the judges has

been treated as a writ petition. Another positive trend in this regard is

Supreme Court's entertaining petition filed on the basis of newspaper

reports. The right to life and personal liberty under Article 21 of the

Constitution is qualified by the phrase 'procedure established by law'.

However the judges of the Supreme Court of India have reached a

consensus that this phrase connotes just, fair and reasonable

procedure established by a valid law. This progressive and dynamic

interpretation is taking it very close to the American Due process of

Law.23

170
Human Rights: Challenges and Prospects

Freedom of press has a vital role to play in a democracy. This is

guaranteed under the Rights to Freedom of Speech and Expression in

Articlel 9 of the Indian Constitution. In India, the government has no

control over the freedom of the press. The Press Council of India is only

a regulatory body, which has no power except censoring the journalists

who are violating the code of conduct. The independent Indian Judiciary

and a free and unbiased press are two important institutions, which

have played a significant role in defence of human rights. A very

positive development is the awakening and assertion of the

marginalized sections of the society in recent years. The Scheduled

Castes, the Scheduled Tribes, Other Backward Classes are, today,

more aware of their rights than they used to be earlier. In the

hierarchical caste-ridden Indian society, the marginalized sections such

as women, tribals and the people belonging to the lower castes were

denied equal rights. They are on the path of self-respect movement

today. This assertion can be seen among the tribals and Dalits in their

determination to have a share of power in every field. What is very

heartening is that they have succeeded in creating for themselves

public space, which was denied to them earlier. Articlel4 to Articlel 7 of

the Indian Constitution, which deal with right to equality has contributed

to this happening by giving a big blow to the old social order based on

caste. One of the important institutions to protect women's rights is the

171
National Women Commission, which is a statutory body. It looks into

complaints of violation of the rights of women. The Supreme Court has

also provided clear guidelines in protecting women in their work places

against sexual harassment. The apex court considers any form of

sexual discrimination as violation of human rights.24

However, the negative side should also not be overlooked. It is

the tendency of the government, which, more often than not, overrides

human rights under some pleas, or other. In recent years, governments

have taken advantage of the growth of terrorism. They have given

enormous power to the Indian police. Arresting people on mere

suspicion, using severe third degree methods of torture on them, fake

encounters, custodial deaths etc. are all glaring examples of human

rights violation by the law enforcement agency. Under the terrorist

prevention laws, the police have adequate powers to prevent or

suppress terrorist offences. But these draconian laws such as TADA

and POTA had been abrogated.

It is not by sheer coincidence that more often than not, it is the

poor, the illiterate, the underprivileged, and the member of the minority

group who becomes the victim of death penalty or capital punishment.

In this extreme penalty there seems to be a certain class complexion or

a class bias in as much as it is largely the poor and the downtrodden

who are the victims of such penalty. The rich or affluent persons, even

172
after committing heinous crimes, hardly get this penalty. Ironically,

death penalty, remains a privilege of the poor. Thus in its actual

operation it is discriminatory.25 The Indian Constitution provides

safeguards for every citizen, including a prisoner under Articles 20-22.

Every one has a chance to face a fair trial before getting punished. But

the judicial system is unable to provide speedy justice. A serious lacuna

in the judicial system is the court system being overloaded. The irony is

that it has resulted in detention of persons waiting trial for period longer

than they would receive if convicted.

Besides, prison facilities for class C prisoners are of poor quality

with over crowded cells and without proper sanitation. According to

Justice Krishna Iyer's report, nearly 2 to 6 percent of women prisoners

do not have separate jails. Despite the Parliament passing Children's

Act of 1960, to safeguard young prisoners against abuse and

exploitation, and the Juvenile justice Act of 1986. Providing remand

homes for the children who commit crimes, many of the states in India

have not implemented these Acts. Under Article 44 of the Indian

Constitution, the State has been given directives for framing uniform

civil code, which the state has not been able to do so far. Consequently,

women belonging to different religious communities are subject to

different laws, resulting in their exploitation. India's position in Human

Development Index remains very low due to the low status of women in

the Indian society.

173
The Indian government has prohibited child labour. It has also

brought an Act for abolition of child labour in 1986. According to the

Supreme Court, there is no place for child labour, except in a school. In

such judgment the Court has tried to blend Article 40 and Article 21 of

the Constitution. This is a very healthy trend. The Court has also added

that poor child who is forced to work due to poverty should be

compensated. Working hours have been limited to four and a half hours

per day for children by the Factories Act and the Child Labour

Registration Act. A cell for monitoring the rehabilitation of children who

are working in hazardous industries like glass, carpet and cracker has

been opened by the National Human Rights Commission. Despite all

this, it is alarming that according to ILO, there are 44 million child

labourers in India.26

Democracy without human rights is not possible. It is to be kept in

mind that democracy is not merely majority rule. It is majority rule

coupled with human rights. For maintaining democracy it is essential to

have liberty, freedom of dissent, rule of law etc. which constitute human

rights. However, the idea of human rights is not a static one. The

present idea is much wider than the earlier one. According to noted

human rights activist V.M.Tarkunde, human rights are the civic

counterpart of political power, which is vested in those who govern the

state. Both power of state, as well as power of the people arises from

human rights. What is required is to increase people power i.e. Lok

174
Shakti to make it more powerful than the Raj Shakti. This can only be

possible by propagation of human rights among the people and their

enforcement by them. Democracy becomes real when people's power

dominates over the power of the State. So the whole movement of

human rights is a people's movement - a non-official movement to be

generated by the people and developed by people's organizations. It

must be realized that human rights are essential and minimum

requirement for democracy and Indias progress in political, economic

and social life.27

175
INFERENCE

Many of the human rights and freedoms in the Universal

Declaration of Human Rights, 1948 and in the International Covenant

on Civil and Political Rights, 1966, are guaranteed in Part III of the

Indian Constitution as fundamental rights. Recognition of the human

dignity of the individual is elevated to the status of the fundamental

rights. In fact, Part III of the Constitution is characterised as the Magna

Carta of India. Part III embodies and sanctifies certain fundamental,

individual, justiciable rights which are primarily meant to protect and

promote the basic human rights of the people and protect the individual

against the state action by imposing negative obligations. The

provisions of Part III of the Constitution limit the sphere of state activity.

The declaration of fundamental rights in the Constitution serves as

reminder to the government in power that certain liberties and freedoms


<
essential for all the people and assured to them by the fundamental law

of the land are to be respected. The fundamental rights are guaranteed

in Part III of the Indian Constitution consisting of Articles 12 to 35. Since

these rights are a guarantee against state action, they have to be

distinguished from violation of such rights by the private parties. Private

action is protected by the ordinary law of the land.

In fact, both Parts III and IV are complementary and

supplementary to each other and integral component of the same

organic constitutional system. Fundamental rights can be made more

176
meaningful by implementing the directive principles, for, the directive

principles are intended to bring about socio-economic revolution and to

create a new socio-economic order wherein there will be social and

economic justice for all and everyone. If the State commits a breach of

its duty by acting contrary to the directive principles, the courts can

prevent it from doing so. A positive obligation has been put on the State

to promote the social welfare of the people by securing socio-economic

justice to all.

177
REFERENCES

1. Upendra Baxi (ed), The Right To be Human. India International

Centre, New Delhi, 1981, p.58.

2. A.R. Desai (ed). Violation of Democratic Rights in India, Popular

Prakashan, Bombay, 1986, p.129.

3. Rajni Kothari and Harsh Sethi (eds) Special Issue on the Politics of

Human Rights, Lokayan Bulletin, Vol. 5, Nos.4-5, 1997, p.33.

4. Ibid, p.35.

5. Lutz, Plannum and Burke (eds), New Directions in Human Rights,

University of Pennsylvania Press, Philadelphia, 1989, p.61.

6. D.D. Basu, Introduction to the Constitution of India S.Chand and

Company, 2007, p.98.

7. Ibid, p.99.

8. E. Welch, Jr, and V.A Leary (ed), Asian Perspective on Human

Rights, Western Press, Oxford, 1990,p.81.

9. D.D. Basu, Op. Cit, p.256.

10. P. Diwan, and P. Diwan, Human Rights and the Law-Universal

and Indian, Deep & Deep Publications Pvt. Ltd., New Delhi, 1998,

p.23.

11. P.L. Mehta, Verma, N. Human Rights Under the Indian

Constitution, Deep & Deep Publications Pvt. Ltd., New Delhi,

1999.p.56.

12. Ibid, p.58.

13. Ibid, p.59.

178
14. B.P.S. Sehgal, Human Rights in India: Problems and

Perspectives, Deep & Deep Publications Pvt. Ltd., New Delhi,

2004.p.23.

15. Ibid.p.24

16. Ibid, p.25.

17. G. Sharma, Human Rights and Legal Remedies, Deep & Deep

Publications Pvt. Ltd., New Delhi, 2003, p.27.

18. Diwan, and Diwan, Op.Cit. P.33.

19. G. Sharma, p.29.

20. S. Singh, Legal Aid: Human Rights to Equality, Deep & Deep

Publications Pvt. Ltd., New Delhi, 1998, p.101.

21. B.P.S. Sehgal, Op.Cit. p.28.

22. Steiner, Henry, and Philip Alston. International Human Rights in

Context: Law, Politics and Morals, Oxford University Press,

Oxford, 1996, p.111.

23. Nandita Haskar, Women and Justice for All", in A.R. Desai(ed),

Womens Liberation and Politics of Religious Personal Laws in

India, Popular Prakasan, New Delhi, 1991, p.159.

24. Bina Agarwal, A Field of One's Own, Gender and Land Rights in

South Asia, Oxford University Press, Oxford,1994, p.55.

25. Rajni Kothari and Harsh Sethi (ed).Op.Cit.36.

26. Ibid.p.56.

27. Flavia Agnes, (ed.) Family Courts: From the Frying Pan into the

Fire? In justice for Women, Popular Prakasan, New Delhi,

1996.p.28.

179
Chapter- 5

HUMAN RIGHTS AND


INDIA
It is a fact that the human rights laws and institutions that are

visible in todays India were an upshot of the social and cultural

renaissance that began in the 19th century British India. Yet, its genesis

can be traced from the ancient Indian history, through its sacred

scriptures, Puranas, Vedas and from the writings of Kautilya and Manu.

In fact, it was Rig Veda, which talked about three civil liberties more

than (5000) years back. Tana (body), Skridhi (dwelling place) and

Jibhasi (life) are vital to human existence was pronounced by Vedas.

Long before Hobbes, the Indian scriptures revealed about the

importance of the freedoms of the individuals in State. The concept of

Dharma made kings/ruler to act according to the established law and

ethics for the supreme benefits of individuals. Besides, the Arthasastra,

the greatest treatise written by Kautilya, clearly enumerated civil and

legal rights. Further, Manusmriti and Mahabharata happen to be the

great sources of human rights. While most of the human rights lost it's

track in the middle age, following frequent foreign conquests. It was

Raja Ram Mohan Roy's genius who brought life to these human rights

in modern India and subsequently, in the course of freedom movement,

the concept found its true expression.1

Although today India is a sovereign nation-state, juridically equal

to the other members of the United Nations, it is also the home of one

of the world's handful of great civilizations. Besides the Republic of

India, historic India includes the nations of Pakistan, Bangladesh,

180
Nepal, Bhutan, and at least parts of Afghanistan. The Republic of India

alone, with more people than Latin America and Africa combined, and

with more languages in official use than all the members of NATO,

contains regions larger than most nations. These regions possess

distinct social systems and different human rights practices, despite

their incorporation into a common administrative and legal framework.

This diversity has deep roots in Indian history and ecology. The

heart of the subcontinent is the Indo-Gangetic plain of the north,

watered by the immense snow-fed river systems of Punjab-lndus and

Ganges-Brahmaputra. Surrounding the plateaus, hills, and forests

south of these plains are the tropical coasts of Malabar and Madras.

Across the North, from the Khyber pass in the West across the peaks

of the Himalayas to the remote jungles of upper Burma, the world's

highest mountains largely cut off the region from land communications.

Only through the passes of the Northwest did the invaders continually

stream from Central Asia, and they, as well as the two great empires

that came by sea-the Arabs and the British-brought new races and

religions, which continually mixed with the indigenous to form the

spectrum of syncretisms that is Indian civilization.2

Cultural and Historical Background

The continuous process of syncretism and cultural transformation

been, and so great has the spectrum been at any one time, that cannot

181
easily speak of Indian culture or Indian values in general. Indian culture

owed its beginning to the synthesis that developed when the nomads

speaking an Indo Aryan language (Sanskrit), and worshipping a

pantheon akin to that of the ancient Hellenes, conquered a sedentary

population, apparently of Dravidian language (linked to the modern

languages of South India such as Tamil), that venerated the cow and

the lingam (phallus). Out of this synthesis developed the social

arrangements known as the caste system and the vast range of beliefs

and practices grouped together, initially by outside observers, as

Hinduism. The canons of Hinduism interpreted by the priestly stratum,

the Brahmans, sanctify inequity as institutionalized in caste.

According to the social teaching of the classic Brahmanical texts,

especially the Laws of Manu, society is based on legitimate human

inequality. Each person is first and foremost a member of one of the

four varnas, or strata (literally, colors); the Brahmans (priests),

Kshatriyas (warrior-rulers), Vaishyas (cultivators and traders), and

Shudras (servants of the other three twice-born strata). Membership

such a stratum derives primarily from birth, and confers a particular set

of duties-the dharma, or code for conduct, of a particular stratum. This

doctrine is known in Sanskrit as the varnashrama dharma.

These strata form a moral hierarchy continuous with the natural

world. Each living physical being is essentially a soul that is reborn

continually. The level of being into which the soul is reincarnated

182
depends on the objective moral law of karma, according to which the

better one fulfills one's dharma in this life, the higher one will be born

in the next life. The role of the just ruler is both to protect

Varnashrama Dharma by insuring that each stratum carries out its

role, and to carry dharma of ruler by expanding his kingdom.

At the popular level, however, Hinduism and the caste system

have born at most a family resemblance to the teachings of the

Brahmans. Furthermore, some of the spiritual teachings of

Brahmanical philosophy, in particular the doctrine that each soul

could potentially enter into unity with the absolute, contained the

seeds of heterodoxical, egalitarian movements.3

Finally, major variants of Indian civilization, including parts of

Hinduism, have been indelibly marked by Islam. Some popular religious

leaders, whether Muslim pirs or Hindu or Sikh gurus, have preached the

equality of men and women and the unity of all faiths, and their

followers have been from all origins. Mahatma Gandhi drew on this

tradition.

Within Indian society, even among Hindus, the Varnashrama

Dharma is thus but one of several sources of legitimacy. The actual

caste system varies by region and is far more complex than the fourfold

scheme of the laws of Manu. The actual unit of the caste system is the

jati, an endogamous unit all of whose members speaks the same

183
language and have a traditional occupation, which they may or may not

practice, A single village may have twenty or thirty jatis. Within each

village or region, it is clear which jatis are ranked high and which low,

but the middle area may be unclear. People believe that jatis either

belong to one of the four varnas or do not; in the latter case they are

untouchables or outcastes. Membership in a varna is a political claim;

jatis can try to change their status by claiming membership in a higher

varna and adopting an appropriate dharma. Jatis also join coalitions of

similar jatis for political purposes.

Modified forms of the caste system also exist among the 11

percent of Indias population who are Muslims and among other

minorities. The tribal population, largely in the hills, mountains, and

forests, is outside the caste system.

The institutionalized inequality of caste is obviously inimical to

human rights, but respect for human rights in India need not require the

abolition of caste per se. Caste, especially when articulated with class,

is also a basis for political mobilization, even empowerment, of

disadvantaged groups, who use the group identities inherent in the

system as resources to challenge its hierarchy. The plurality of dharma

can also legitimate rights to social and political pluralism. Probably the

biggest obstacle to human rights is not caste itself but untouchability,

184
which, while outlawed, is still widely practiced and relegates a whole

section of the community to unclean status.4

The basic unit of membership in a jati is not so much the

individual as the patriarchal, patrilineal family (although at least one

group of jatis, the Nayyars of Kerala, is matrilineal). As in other pre

modern societies, women belong first to their fathers and then to their

husbands. Women have a somewhat higher status in Hinduism than in

some cultures, as their participation is required in some rituals (not only

women's rituals) and some variants place great importance on shakti, or

female power, as incarnated in goddesses such as Kali and Durga.

Orthodox teachings of all religions firmly emphasize woman's

subordinate role within the family and the importance to male honor of

defending female chastity, but there are also cults and traditionally

recognized deviant groups of women, such as temple dancers, as well

as some mystic (Tantric) sexual practices, that provide elements on

which indigenous feminism can draw.

The ecological and cultural diversity of India has been reflected in

the weakness of state formation, especially as compared with the other

great Asian civilization, China. Accumulation of power has occurred at

roughly three levels in India: village, regional kingdom, and empire. The

life of the villages has been relatively independent of the higher levels

of state formation. Villages were patriarchal, oligarchical republics run

185
by the locally dominant castes, whose relations to states have been

mainly collective and external. Direct taxes, for instance, as in most

pre-capitalist states, were levied on the village as a whole through the

village's authorities.

The complex dynamics of regional kingdom and continental

empire have defined much of the large-scale political changes of Indian

history. Empires often emerged from the expansion of regional

kingdoms, and they fell as they disintegrated into such kingdoms.

Indian empires were ruled by pluralistic, multiethnic elites created from

alliances of regional rulers. Imperial officers, on the other hand, tried to

transform themselves into independent rulers. The Indian subcontinent

thus underwent cycles of imperial rule and dissolution into regional

kingships, punctuated by invasions from Central Asia. Today the

Republic of India continues the imperial tradition, and the revolts of

culturally distinct regions resemble processes that threatened imperial

unity in the past; Sikh leaders, for instance, challenged the centralizing

rule of the throne of Delhi under the Mughal Aurangzeb, as some do

today. Bangladesh and Nepal resemble regional kingdoms, while

Pakistan, with its four distinct regions dominated by Punjab, falls

somewhere in between, even as troops based in Central Asia, now part

of the Soviet Union, press against and sometimes violate its borders.5

186
Human Rights and the Indian Freedom Struggle

Colonialism reached India in force during a period of imperial

dissolution. Although they came to trade (or plunder, a distinction even

less clear then than now), the British East India Company found

themselves drawn into the battles among regional rulers as the Mughal

empire dissolved in the eighteenth and early nineteenth centuries.

Imposing central rule here, deputizing a Nawab, Nizam, or Maharaja

there, their office in Calcutta gradually displaced the decaying throne of

Delhi, whose suzerainty they nominally acknowledged.

The Constitution of India Bill, 1895, envisaged a Constitution for

India, guaranteeing every citizen freedom of expression, inviolability of

one's house, right to equality before law, right to property, right to

personal liberty and right to free education etc. Between 1917 and

1919, the demand for civil rights and equality of status with English men

were also repeated by a series of Congress resolutions. The demand

for equal terms and conditions in bearing arms, application of the

system of trial by jury and the right of Indians to claim that no less than

one-half of the jurors should be their own countrymen are some such

examples. There was also a demand that the Parliament should pass a

statute, guaranteeing The Civil Rights of His Majesty's Indian subjects,

which would embody provisions establishing equality before the law, a

free press and freedom of speech. There should be recognition by the

187
statute that political power belonged to the Indian people in the same

manner as to any other people or nation in the British Empire.

In the aftermath of the First World War, i.e., by the mid-twenties,

there came a significant change in the tone and form of demands for

the acceptance of civil rights for the Indian people.6 Their demands no

longer aimed at establishing the rights of Indians vis-a-vis English men;

the purpose now was to assure liberty among Indians. Widespread

disappointment over the Montague-Chelmsford reforms, the then

American President, Woodrow Wilson's support for the right to self

determination and many such factors contributed to this new

perspective.

The other major development in this direction was the drafting of

Mrs. Annie Besant's Common Wealth of India Bill of 1925. Common

Wealth of India Bill in its Article-4, contained a list of seven fundamental

rights. They are:

a) Liberty of person and security of one's dwelling and property;

b) Freedom of conscience and free profession and practice of religion;

c) Free expression of opinion and the right of assembling peacefully

and without arms and of forming associations or unions;

d) Free elementary education;

e) Use of roads public places , courts of justice and the like;

188
f) Equality before the law, irrespective of considerations of nationality,

and;

g) Equality of the sexes.

A resolution to set up a committee to draft a Swaraj constitution

on the basis of a declaration of rights was passed in 1927, at the 43rd

Annual session of the Indian National Congress held in Madras. This

Committee came into being in May 1928, with Motilal Nehru as its

chairman. The Committees report, popularly known as Nehru Report,

contained Fundamental Rights, which were reminiscent of those of the

American and Post-war European constitutions. They were also greatly

influenced by Mrs. Besant's Common Wealth of India Bill, 1925.

According to the Nehru Report, the first concern of Indians was to

secure the Fundamental Rights that had been denied to them. It also

insisted on their being guaranteed in a manner, which would not permit

their withdrawal under any circumstances.7

The Karachi Resolution adopted by the Congress session held in

March 1931, marks another landmark in the development of the

recognition of fundamental rights. The resolution held that the real

economic freedom of the starving millions must be included in political

freedom so as to make it meaningful to end the exploitation of the

masses. Prior to the making of Government of India Act, 1935, the

demand for a declaration of Fundamental Rights in constitutional

189
document was again emphasized by several Indian leaders at the

Round Table Conference,

The Indians were enthusiastic to have a list of fundamental rights

incorporated in their constitution. They believed that independence

meant liberty that could be expressed through rights. Thus they

demanded that rights, both in their positive and negative forms must be

enshrined in the constitution. There was resurgence of interest in

human rights in the 1940s, which gained momentum largely due to the

Atlantic Charter, the United Nations Charter and the activities of the

United Nations Human Rights Commission. The demand for negative

rights was primarily a product of the national revolution, whereas that of

positive rights came largely from the social revolution and reflected the

social consciousness that had increasingly characterized the 20th

century, both in India and abroad.8

The All Parties Conference in 1944-45, appointed the Sapru

Committee with Sir Tej Bahadur Sapru as its chairman. The committee

report was published at the end of 1945. It gave a standing warning to

all that what the constitution demanded and expected was perfect

equality between one section of the community and another in the

matter of political and civil rights, equality of liberty and security, in the

enjoyment of the freedom of religion, worship and the pursuit of

ordinary applications of life.

190
When the displaced elites of Bengal and the United Provinces

revolted in what the British called the Sepoy Mutiny of 1857 (and which

modern Indians call the First War of Independence), the British first

repressed the revolt with the aid of allies, especially the Sikhs, who

relieved Delhi. Next, after officially deposing the last Mughal ruler the

British Indian Government ruled India by a Viceroy on behalf of that

Imperial Crown wherein it became the most precious jewel. The national

government of today's Republic is the direct institutional descendant of

that Government of India, whose name it retains.9

Thus in the train of the capitalist world market came the

sovereign, bounded, census-taking nation-state to the sub-continent of

India. In the struggle to make that state the expression of Indian

national identity rather than foreign domination, human rights entered

the political vocabulary of India. To understand how, one must

appreciate four effects of British rule: effective state-building, the growth

of an English-educated middle class oriented toward state employment,

the stymied growth of Indian manufactures, and the development of

parasitic landlordism and landlessness.

With their industrialized weaponry, railroads, and telegraph, the

British imposed on India the most extensive domestic peace it had

known. They established a bureaucratic apparatus of administration and

surveillance, headed by the Indian Civil Service. They created the

Indian Army and the Indian Police Service. In order to carry out its tasks

191
the administration needed information on its subjects and therefore,

from 1881, carried out the first censuses of the Indian population.

To run the state the British needed assistants and

intermediaries. They therefore began to propagate English education

among a limited class of Indians. On the basis of this education, used

for state service and the new liberal professions introduced by the

state (law, medicine, journalism) there developed a bi-cultural class,

more and more of whose members had travelled abroad. These

middleclass Indians learned of the philosophies of right legitimating

British legal practices even as they observed the wealth and power

produced by the industrial revolution.10

Members of this class, together with some reformist Englishmen,

founded the Indian National Congress in 1885, initially to campaign for

greater Indian participation in British rule. The leaders of the nationalist

and reformist movements that developed subsequently came almost

without exception from this class. Motilal Nehru, Jawaharlal Nehru, and

Mohandas Karamchand Gandhi, leaders of the Congress, and

Mohammad Ali Jinnah, leader of the Muslim League, all read law in

England, while Dr. Bhimrao Ambedkar, leader of the untouchables and

chief drafter of the Indian Constitution, studied at Columbia University.

The discourse these leaders shared with the state they opposed-or,

more accurately, wished to control for their national ends-led them to

192
articulate their nationalist claims in terms of rights unjustly denied on

the basis of race. They could oppose the British on the basis of ideals

the British claimed to represent. They were able to mobilize social

support from wider groups, however, only because Gandhi, in

particular, developed an indigenous cultural idiom for mass politics and

because of the economic grievances these groups had against

colonialism.11

The British imposed on India what some have called a policy of

one-way free trade. While British manufactures, especially textiles from

the Manchester mills, flooded the Indian market, fine Indian fabrics and

other products were kept out of world markets. As a result, the craft-

based manufacturing industries were largely destroyed. Indian

businessmen, mostly from the traditional trading castes of Western

India, did establish some modern industries, but they suffered from

restrictive trade and investment policies and lack of government

patronage and protection. This weak but growing bourgeoisie supported

the nationalist movement.

Finally, British policies of introducing full property in land and thus

capitalist relations of production in agriculture and of requiring that land

cess (tax) be paid in cash led to a growth in agrarian debt and

landlessness, and the concomitant accumulation of land in the hands

of those who had access to cash or state power. As peasants lost the

193
traditional rights that had guaranteed more of them access to land and

a chance at subsistence, they accumulated grievances that made them

potential, and at times actual, allies of the nationalist movement.

The nationalist movement thus claimed full civil and political

rights for the people of India, rights which would enable that people to

control the administrative apparatus of the (formerly) colonial state.

Such control would enable the new government to pursue policies

leading to both economic growth and protection of the economic rights

of the masses, both of which were ignored or trampled on by the

colonizer. Much of the Muslim minority feared that political rights

(democracy) would only empower the Hindu majority, and thus gave its

support to the establishment of the new nation of Pakistan. In the rest

of India, however, a new government came to power based on the

Indian National Congress, led by legal-minded high-caste

professionals, allied with rising industrialists (mostly from traditional

business castes) and supported by the upper peasantry.12 This

government appointed itself the task of framing a new constitution (in

the English language), under which India became a republic in January

1951.

India and Human Rights Conventions

A number of conventions have been concluded under the auspices

of the United Nations and other international organisations to protect

human rights of vulnerable groups and to prevent the commission of

194
inhuman acts. However, they shall be binding only on those States

which have become parties to the above treaties. In other words, rights

and obligations arising from a treaty are binding only to the parties to a

treaty and not to a third State without its consent.

The consent of a State to be bound by a treaty may be expressed

by signature, exchange of instrument constituting a treaty, ratification,

acceptance, approval or accession or by any other means if so agreed.

At present, generally, all the treaties are required to be ratified by the

States. The practice in the case of multilateral treaties including human

rights treaties is adopted uniformly. Ratification of a treaty is an internal

procedure which is determined by the internal laws and usage of each

State and therefore, the process of ratification of a treaty may be

different from State to State. For instance, in the United States of

America, a treaty must be ratified by the President with the advice and

consent of the Senate given by two-thirds of the Senators present. The

above provision is laid down under Para 2 of Article 2 of the

Constitution of the United States. In the United Kingdom, ratification is

done by the Crown on the advice of the minister concerned. In India,

President ratifies the treaty on the advice of the Central Cabinet.13

The Indian Constitution under Article 51 provides the general

obligation of India to the World which says that the State shall

endeavour to (a) to promote international peace and security; (b)

195
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. The above Article forms Part IV of

the Constitution which lays down the Directive Principles of State

Policy and as such they are not enforceable before any Court. It has

been addressed to executives and legislatures of the country. Thus,

the Indian Constitutional policy is committed to promote international

peace and security and also to foster respect for international law and

treaty obligations and to apply these principles in making laws.

It is to be noted that Article 51 is too general and no conclusion

can be drawn from the Article itself as to how far rules of international

law shall be applied by the Courts. Article 51 is simply a pledge that

India will work for the promotion of international peace and security,

enforcement of international law and treaty obligations and settlement

of international disputes by peaceful means. This Article is

implemented by the executives through the foreign policy of India.

However, wordings of Article 51 make thing clear, i.e., by referring the

words international law and treaty obligations separately, it is implied

that the former refers to customary international law. It may mean that

Article 51 treats customary law and treaty law at the same footing.

196
India has ratified the International Covenant on Civil and Political

Rights and International Covenant on Economic, Social and Cultural

Rights on March 27, 1979. By ratification, it has established on the

international plane its consent to be bound- by them. It has an obligation

to provide to the individuals the rights contained in the two Covenants.

A question arises as to how far the rights enshrined in the Covenants

are consistent with the rights stipulated in the Constitution. Provisions of

the two Covenants have been dealt separately with reference to the

Indian Constitution.14

Covenant on Civil and Political Rights and the Indian Constitution

The Constitution provides a number of rights to individuals in Part

III which have been termed as 'fundamental rights'. The expression

'fundamental' denotes that these rights are inherent in all the human

beings and are essential for the individuals for blossoming of the human

personality and soul. These rights represent the basic values of a

civilised society and the Constitution makers declared that they shall be

given a place of pride in the Constitution and therefore they elevated

them to the status of 'fundamental' rights. These rights are therefore

calculated to protect the dignity of the individuals and create conditions

in which every human being can develop his personality to the fullest

extent.

197
Fundamental rights differ from ordinary rights in a sense that the

former are inviolable. No law, ordinance, custom, usage or

administrative order can abridge or take them away. Any law which is

violative to any of the fundamental rights is void. These rights are

binding on the legislature as well as on the executive. In Jabalpur vs

Shukla, Beg, J., observed that the object of making certain general

aspects of rights fundamental is to guarantee them against illegal

invasion of these rights by executive, legislative or judicial organ of the

State.15 The founding fathers of the Constitution thought it necessary to

incorporate them for the welfare of the people. They were perhaps

moved by the atrocities committed on people during the World War II,

and were also influenced largely by the liberties granted in the Atlantic

Charter, the U.N. Charter and the Universal Declaration of Human

Rights.

The Supreme Court of India has recognised these fundamental

rights as 'natural rights' or 'human rights'. The Chief Justice Patanjali

Shastri has referred to fundamental rights as 'those great and basic

rights which are recognised and guaranteed as the natural rights

inherent in the status of a citizen of a free country.' Similarly, the Chief

Justice Subba Rao in L.C. Golakanath vs State of Punjab, has very

rightly observed that 'fundamental rights are the modern name for what

have been traditionally known as natural rights.'16 They are moral rights

which every human being everywhere at all times ought to have simply

198
because of the fact that in contradiction with other beings, he is rational

or moral. The rights enshrined in Part III are the rights which are

inherent in all the individuals. It hardly matters that by what name they

are known.

Fundamental rights guaranteed under the Indian Constitution may

be divided for the sake of convenience in two categories, viz.,

specified fundamental rights and other fundamental rights. The division

is helpful In order to make them comparable with the human rights

guaranteed to the individuals under the International Covenant on Civil

and Political Rights.

Specified Fundamental Rights

Many rights enshrined in the Covenant on Civil and Political

Rights have been recognised specifically in the Indian Constitution as

Fundamental Rights.' They may be referred to 'specified' fundamental

rights because they are mentioned in the Constitution by name. The

following Table 5.1 shows the different Articles of the Covenant and the

Constitution wherein identical rights are stipulated.

199
Table 5.1

Identical Rights in Indian Constitution and Covenant on Civil


& Political Rights
Covenant on Civil &
Rights Indian Constitution
Political Rights
Forced Labour Article 8(3) Article 23

Equality before Law Article 14(1) Article 14

Prohibition of discrimination Article 26 Article 15

Equality of opportunity to public service Article 25(c) Article 16 (1)

Freedom of speech and expression Article 19(1) & (2) Article 19 (1) (a)

Right for peaceful assembly Article 21 Article 19 (1) (b)

Right of freedom of association Article 22(1) Article 19 (1) (c)

Right to move freely within the territory Article 12(1) Article 19(1)(d)&(e)
of a State

Protection in respect of conviction for Article 15(1) Article 20(1)


offences

Protection from prosecution and Article 14(7) Article 20 (2)


punishment

Not to be compelled to testify against Article 14(3)(g) Article 20 (3)


himself

Right to life and liberty Articles 6(1) & 9(1) Article 21

Protection against arbitrary arrest and Article (23) & 23(4) Article 22
detention

Freedom of conscience and religion Article 18(1) Article 25

Source: H.O. Agarwal, Human Rights, Central Law Publications, Allahabad, 2008,
p.259.

The Table 5.1 shows that the 'right to liberty of movement

freedom to choose his residence', right to hold opinions', right to

freedom of expression', 'right of peaceful assembly, and 'right to

freedom of association with others' are provided in the Covenant on

200
Civil and Political Right and also guaranteed to the individuals in

different clauses of article 19 (1) of the Constitution. Further, prohibition

of forced or compulsory labour provided in the Covenant is laid down

under Article 23 of the Constitution.17 'Right of life and security of

person' and right of person to remain equal before the courts and

tribunalsare guaranteed respectively under Article 14 and Article 21 of

the Constitution. Any one who is arrested shall have a right to be

informed at the time of arrest is provided under Article 22. Equality

before the law and prohibition of the discrimination on the ground of

religion, rays, caste and sex, and equality of opportunity in matters of

public employment have been guaranteed under the Constitution

respectively under Articles 14, 15 and 16(1). Freedom from being

prosecuted and punished for the same offence more than once is

recognised under Article 20, Para (2). No person accused of any

offence shall be compelled to-be a witness against himself is

guaranteed under Article 20, Para (3).

The various rights embodied in the Constitution show that they

were available to all the citizens of the country much before India

ratified the Covenant on Civil and Political Rights. While these rights are

available to citizens only, some of them are available to all persons. The

term person includes the citizens of the country and non-citizens i,e.,

aliens both. For instance, Article 15 speaks only of citizens of the

country and it is specifically provided their in that there shall be no

201
discrimination against any citizen on the ground only on religion, race,

caste, sex, place of birth or any of them. Fundamental rights guaranteed

under Article 15 are, therefore, restricted to citizens only. Similarly,

Article 16 which guarantees equality of opportunity in matters of public

employment is applicable only to citizens. Fundamental rights contained

in Article 19 which contains the right to 'basic freedoms' are available to

citizens of the country. The word citizen in the above Article has not

been used in a sense different from that in which it has been used in

Part II of the Constitution dealing with Citizenship. In Hans Muller of

Nuremburg vs Superintendent, Presidency Jail, Calcutta, it was laid

down that Article 19 applies only to citizens. In Anwar vs State of

Jammu and Kashmir, it was held that non-citizens could not claim

fundamental rights provided under Article 19. Similarly, in Naziranbai vs

State and Lakshmi Prasad & others vs Shiv Pal and others it was held

that Article 19 does not apply to a foreigner and in S.K. Mohd Soleman

vs State of West Bengal and another, it was held that Article 19 does

not apply to a Commonwealth citizen. Similarly, rights stipulated under

Articles 29 and 30 to protect the interest of minorities are available to

citizens only. However, Article 14 which guarantees equality before law

or the equal protection of laws within the territory of India is applicable

to a person which would also include the citizen of the country and non

citizen both. Rights provided under Article 20 (right to protection in

respect of conviction for offences), Article 21 (right to life and personal

202
liberty) and under Article 22 (right to protection against arbitrary arrest

and detention) are available not only to citizens but also to persons

which would include non-citizens.18

As to right to life, it was held in the Chairman, Railway Board vs

Chandrima Das that: even those who are not citizens of this country

and come here merely as tourists or in any capacity will be entitled to

the protection of their lives in accordance with the Constitutional

provisions. They also have a right to life in this country. Thus, they

also have right to live as they are here with human dignity.

It is significant to note that the Forty-Fourth (Amendment) Act has

considerably changed the position as to the suspension of the

fundamental rights and their enforcement during the emergency time.

All though the changes were made to prevent the abuse of the

fundamental rights of the people by the executive, these changes have

also made the provisions of the Constitution consistent to a large extent

with the provisions of the Covenant on Civil and Political Rights. If in

future emergency is ever proclaimed, it has to abide by the measures

contained in Article 4 of the Covenant.

Covenant on Economic, Social and Cultural Rights and the Indian

Constitution

Economic, social and cultural rights of human beings are

contained in the Covenant on Economic, Social and Cultural Rights.

203
The Covenant has a significant feature which makes it different from the

Covenant on Civil and Political Rights. While in the latter, the States

Parties are under an obligation to respect and to ensure to all

individuals the rights stipulated therein, the former did not bind the

States to do so. Article 2, Para (I) of the Covenant on Economic, Social

and Cultural Rights lays down that each State Party 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 mentioned therein. It means that the States

Parties to the Covenant are not required to provide the rights to the

individuals from the time of ratification. However, they shall take such

steps so that these rights may be provided to them in future.

Rights stipulated in the Covenant on Economic, Social and

Cultural Rights do not find place in Part III of the Constitution. Such

rights are enshrined in Part IV of the Constitution which lays down the

'Directive Principles of State Policy'. The above Part contains a list of

directives and instructions to be followed by the present and future

governments of the country irrespective of their political complexion.

They depict the ambitions and aspirations of the framers of the

Constitution regarding the Welfare State in India based on social,

political and economic justice. They contain the aims and objectives

which are required to be achieved by the Government. The Directive

204
Principles are therefore fundamental in governance of the country.

Thus, Part IV deals with the positive duties cast upon the States to

achieve them. It is the duty of the executives and the legislatures of the

country to implement them by making laws with the object of achieving

social justice and to ameliorate the conditions of the citizens. These

principles cannot be ignored. In case the Government does so, Dr.

B.R. Ambedkar says, 'they will certainly have to answer them before

the electorate at the election time.'19

The significant difference between the 'fundamental rights' and

the 'directive principles' is that while the former is enforceable before

the Courts of law, the latter is not justifiable, and therefore

likely to remain unenforceable or ineffective. As such, no legal action

can be taken against the Government in a court of law if it fails to follow

any of these principles. However, the courts are required to interpret the

laws in the light of the social and economic values set out by these

directive principles. The directive principles might not be having legal

sanction behind them, but they have the sanction of the people which is

of utmost importance in the democracy. If the Directive Principles are

not implemented, the opinion of the public would be adverse against the

Government and it is very likely that they might be ousted in the

election by the public. Thus the extra-legal force which they carry with

themselves have made them nonetheless important than the

fundamental rights.

205
The 'directive principles' which broadly incorporates the economic

and social rights are as much as a part of human rights. Many rights

enshrined in the Covenant on Economic, Social and Cultural Rights are

incorporated in the directive principles is evident from the following

table 5.2.

Table 5.2

Identical Rights in Indian Constitution Covenant on Economic,


Social and Cultural Rights

Covenant on
Indian
Rights Economic, Social
Constitution
and Cultural Rights
Equal pay for equal work Article 7(a) (i) Article 39 (d)
Safe and humane condition of work Article (7) (b) Article 42
Maternity relief Article 10(2) Article 42
Right to work Article 6 (1) Article 41
Opportunities to children Article 10 (3) Article 39 (f)
Compulsory education to children Article 13 (2a) Article 45
Living wages Article (7) (a) (1) Article 43
Conditions of work Article 7 (d) Article 42
Adequate standard of living Article 11 Article 47
Right to Child Education Article 13(1) Article 21-A
Source: H.O. Agarwal, Human Rights, Central Law Publica tions,
Allahabad, 2008, p.290.

Thus the right to equal pay for equal work for both men and

women; the right to protect the childhood and youth from exploitation,

the right to secure just and human conditions of work and for maternity

relief, the right to work, the right to a decent standard of life and full

enjoyment of leisure and social and cultural opportunities and the right

206
to raise the level of standard of living and right to free and compulsory

education have been recognised in the Constitution as well as in the


Covenant.20

However, those rights which are not provided in the Constitution

but are stipulated in the Covenant are required to be included in the

Directive Principles by making amendments in view of India being a

party to the Covenant. It is also required that laws should be enacted at

the appropriate time in those directions to give effect to them.

However, these rights being stated in Part IV of the Constitution

are not enforceable before the Courts. But in recent past, some of these

rights have been regarded as fundamental by the Supreme Court by

enlarging the scope of the named fundamental rights stipulated in Part

III of the Constitution. This has been done so especially by broadening

the meaning of the term 'right to life' which has been regarded as 'heart

of fundamental rights'. Such rights are as follows:

Equal Pay for Equal Work

The Covenant on Economic, Social and Cultural Rights under

Article 7 (a) lays down that Remuneration which provides all workers,

as a minimum with; (i) fair wages and equal remuneration for work of

equal value without distinction of any kind in particular women being

guaranteed conditions of work not inferior to those enjoyed by men,

with equal pay for equal work. Under the Indian Constitution clause (d)

207
of Article 39 which is a part of Directive Principles of State Policy

provides equal pay for equal work for both men and women. The

Supreme Court in the State of Madhya Pradesh Vs P.V. Pramod

Bhartiya, stated that;

To say the rule having been stated as a Directive Principles of

State Policy is not enforceable in a Court of law is to indulge in

sophistry. Parts III and IV of the Constitution are not supposed to be

exclusionary of each other. They are complementary to each other. The

rule is as much a part of Article 14 as of clause (1) of Article 16. In

Randhir Singh Vs Union of India, the Supreme Court held that the

principle of equal pay for equal work though not a fundamental right is

certainly a Constitutional goal and, therefore, capable of enforcement

through Constitutional remedies under Article 32 of the Constitution.21

Right of Workmen to Medical Benefits

Safe and healthy working conditions and the creation of

conditions which would assure to all medical service and medical

attention in the event of sickness are the rights which are stated under

Article 7, Para (b) and Article 12, Para 2 (d) respectively under the

Covenant on Economic, Social and Cultural Rights. Right to workmen to

medical benefit under the Indian Constitution finds place under Articles

38 and 39 which are not enforceable before the Courts as they are the

parts of Directive Principles of State Policy. However, the Supreme

208
Court in Regional Director, E.S.I. Corporation and another V.Francis De

Costa and another, held that concomitant to Article 21 read in the light

of Articles 38 and 39, the right to medical and disability benefit to a

workman is his/her fundamental human right.

In C.E.S.C. Ltd. Vs Subhash Chandra Bose, it was observed by

the Supreme Court that the health and strength of a worker is an

integral facet of right to life. The right to health, a fundamental human

right stands enshrined in socio-economic justice of the Constitution and

the Universal Declaration of Human Rights. Concomitantly a right to

medical benefit to a workman is his/her fundamental right.

Right to Livelihood

Right to work including the right of everyone to the opportunity to

gain his living by work which he freely chooses or accepts, and will take

appropriate steps to safeguard this right is provided under Article 6 of

the Covenant on Economic, Social and Cultural Rights. But in the Indian

Constitution the above right is not mentioned as a fundamental right.

The right to livelihood has been incorporated under Article 39(a) and

Article 41 of the Constitution which are parts of Directive Principles of

State Policy. However, the Supreme Court in Olga Tellis Vs Bombay

Municipal Corporation, popularly known as the Pavement Dwellers'

case, held that right to livelihood is an integral facet of the right to life

guaranteed as a fundamental right under the Constitution. In D.K.

209
Yadav Vs J.M.A. Industries, the Supreme Court reiterated that right to

life enshrined under Article 21 includes the right to livelihood.22

Right to Shelter

The Covenant on the Economic, Social and Cultural Rights under

Article 7 Para (a) (ii) lays down that the States Parties recognise the

right of everyone for decent living for themselves and their families and

under Article 11 they recognise the right of everyone to an adequate

standard of living for himself and his family including housing. The

above implies that shelter is recognised as human right but this right

does not find place as a fundamental right in the Indian Constitution.

However, in Chameli Singh Vs State of Uttar Pradesh, it was held by

the Supreme Court that the right to live implies the right to food, water,

decent environment, education, medical care and shelter. These are

the basic human rights. As to the right to shelter the Court held that it

includes adequate living space, safe and decent structure, clean and

decent surroundings, sufficient light, pure air and water, electricity,

sanitation and other civil amenities like roads etc. so as to have easy

access to his daily avocation. The right to shelter, therefore, does not

mean a mere right to a roof over one's head but right to all the

infrastructure necessary to enable them to live and develop as a human

being. The Court held that it is the duty of the State to provide housing

facilities to Dalits and Tribes to enable them to come into the

mainstream of national life.

210
In addition to the above, a few other rights stipulated under

Chapter IV of the Constitution are not specifically recognized as an

enforceable right, they have been given status to enforceable right by

the Indian judiciary. The Supreme Court has held that social security,

just and human conditions of work and leisure to workmen are part of

his meaningful right to life and to achieve self-expression of his

personality and to enjoy the life with dignity. Meaning of the expression,

right to life as provided under Article 21 has been considerably

enlarged. In C.E.S.C. Ltd. Vs Subhash Chandra Bose, it was held that

right to social security is a fundamental right. It has been held that the

right to live with human dignity at least with minimum substance and

shelter and all those rights and aspects of life which would go to make a

man's life complete and worth living, would form part of the right to life.

In C.E.R.S. Ltd. Vs Union of India, the term life was given a very wide

meaning by stating that the expression life assumed in Article 21 of the

Constitution does not connote mere animal existence or continued

drudgery through life.23 It has a much wider meaning which includes

right to livelihood, better standard of living, hygienic conditions in the

work place and leisure.

It is indeed commendable that India has become a party to a

number of human rights conventions which are as follows:

211
1) International Convention on the Elimination of All Forms of Racial

Discrimination (1965) was signed on March 2, 1967 and ratified by

India on December 3, 1968. India ratified the Convention with a

reservation with regard to Article 22 of the Convention which relates

to the settlement of disputes by the International Court of Justice.

The reservation stated that: The Government of India declare that

for reference of any dispute to the International Court of Justice for

decision in terms of Article 22 of the International Convention on

the Elimination of All Forms of Racial Discrimination, the consent of

all parties to the dispute is necessary in each individual case.

2) International Convention on the Suppression and Punishment of the

Crime of Apartheid (1973) was ratified by India on September 22,

1977. Further, International Convention Against Apartheid in Sports

(1985) has been ratified on September 12,1990.

3) Convention on the Prevention and Punishment of Genocide (1948)

was ratified on August 27, 1959. The Genocide Convention was

ratified with a reservation with regard to Article IX of the Convention

relating to settlement of disputes by the International Court of

Justice. The reservation reads as: with reference to Article IX of the

Convention, the Government of India declares that, for the

submission of any dispute in terms of this Article to the Jurisdiction of

the International Court of Justice, the consent of all the parties to the

dispute is required in each case.

212
4) Convention on the Rights of the Child (1989) was acceded on

December 11, 1992. While acceding the Convention India made a

declaration which stated that while fully subscribing to the objectives

and purposes of the Convention, realising that certain rights of child,

namely those pertaining to the economic, social and cultural rights

can only be progressively implemented in the developing countries,

subject to the extent of available resources and within the

framework of international cooperation; recognising that the child

has to be protected from exploitation of all forms including economic

exploitation; noting that for several reasons children of different

ages do work in India; having prescribed minimum ages for

employment in hazardous occupations and in certain other areas;

having made regulatory provisions regarding hours and conditions

of employment; and being aware that it is not practical immediately

to prescribe minimum ages for admission to each and every area of

employment in India. The Government of India undertakes to take

measures to progressively implement the provisions of Article 32,

particularly paragraph 2(a), in accordance with its national

legislation and relevant international instruments to which it is a

State Party.

5) Convention on the Elimination of All Forms of Discrimination Against

Women (1979) was ratified on July 9, 1993. India while ratifying the

Convention made two declarations and a reservation. The first

213
declaration reads: with regard to Articles 5(a) and 16(1) of the

Convention on the Elimination of All Forms of Discriminatiori-Against

Women, the Government of the Republic of India declares that it

shall abide by and ensure those provisions in conformity with

its policy of non-interference in the personal affairs of any

community without its initiative and consent. The second declaration

states: with regard to Article 16(2) of the Convention on the

Elimination of All Forms of Discrimination Against Women, the

Government of the Republic of India declares that though in

principle it fully supports the principle of compulsory registration of

marriage, it is not practicable in a vast country like India with its

variety of customs, religions and level of literacy. However, the

Declaration has become meaningless in view of the judgment of the

Supreme Court in Seema Vs Ashwini Kumar. Later, the Supreme

Court on October 25, 2007 held for the compulsory registration of

marriages in respect of all persons who are citizens of India even if

they belonged to various religions. In addition to the above

declarations, India made a reservation by stating that it does not

consider itself bound by paragraph 1 of Article 29 of the

Convention which relates to settlement of disputes through

arbitration. The Convention on the Political Rights of Women (1952)

was ratified on November 2,1961.

214
6) Protocol of 1953 Amending the International Slave Convention

(1926) was ratified on March 12, 1954 and the Supplementary

Convention on the Abolition of Slavery, the Slave Trade and

Institutions and Practices Similar to Slaves was ratified on June 23,

1960.

7) Convention for the Suppression of the Traffic in Persons and of the

Exploitation of the Prostitution of Others (1949) was ratified on

January 9,1953.

In addition to the above, Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment was signed by

India on October 14, 1997. Further, Optional Protocol on the

Involvement of Children in Armed Conflict (2002) and Optional Protocol

on the Sale of Children, Child Prostitution and Child Pornography

(2000) were signed on November 15, 2004. They are however yet to be

ratified. India is neither a party to the Convention Relating to the Status

of Refugees of 1951 nor its Protocol of 1967 nor enacted any legislation

for the protection of refugees. However, it has provided refuge to

thousands of persons of other States particularly from Tibet,

Bangladesh, Afghanistan and Sri Lanka. In the absence of not being a

party to the Refugee Convention the legal status of such persons is not

clear.24

215
India by becoming a party to human rights conventions has shown

to the world community that it has faith in the promotion and protection

of human rights. The ratification of these conventions also signifies that

it intends to be in the forefront of the worldwide human rights

movement. The ratification of these conventions obliges India to honour

the obligations imposed by the conventions by virtue of Article 51 of the

Constitution of India which states that India shall endeavour to

foster respect for International Law and treaty obligations in the

dealings of organized peoples, with one another. The above Article

forms Part IV of the Constitution which lays down the Directive

Principles of State Policy and as such are not enforceable before any

court. It has been addressed to executives and legislatures of the

country. Thus, the Indian Constitutional policy is committed to foster

respect for treaty obligations and to apply the principles in making laws.

The ratification of these conventions therefore brought with it the

obligation to submit periodic reports to concerned bodies of the

conventions. The submission of reports in time is its obligation under

the provisions of the different conventions. It is required to be

performed in good faith. No reason including the provisions of the

internal law can be invoked as justification for its failure to perform

them. In case of failure to perform its obligation undertaken therein, its

international public opinion is likely to be considerably affected.

216
India in the past has not been prompt in fulfilling the above

obligations. In certain cases reports are overdue, in others they are

imminently required. For instance, India is a signatory to the

Convention on the Elimination of All Forms of Discrimination Against

Women and its first country report had become due for submission to

the Committee in 1994, however, the report was submitted in January,

2000. Further, India was required to place its first report before the

Committee of the Convention on the Rights of the Child in 1995,

however that report was filed on July 7, 1997. It is desirable that a

separate department is created for the promotion and protection of

human rights. The department will help the Government to discharge

its various duties including the submission of the reports to different

bodies of the conventions in an effective manner. For instance, the

department may;

1. Foreign affairs; all matters which bring the Union into relation

with any foreign country.

2. Diplomatic, consular and trade representation.

3. United Nations Organisation.

4. Participation in international conferences, associations, and other

bodies and implementing the decision made thereoff.

5. Entering into treaties and agreements with foreign countries and

implementing of treaties, agreements and conventions with foreign

countries.

6. War and peace.

217
The above provisions make it clear that treaties do not acquire

the same status and force as validly enacted laws.

Implementation of the Rights Provided in the Conventions. India

has ratified many international conventions relating to human rights. It

has an obligation to implement the rights stipulated therein to the

individuals. The role of the government is therefore gigantic. It has to

chalk out its policies and enact laws in such a way so that the rights

provided therein may be available to the individuals.25

In order to implement the rights provided in the international

conventions municipal legislation of the country is required to be in

conformity with the provision of the international conventions. Treaties

may be transferred into the domestic laws so that individuals may

invoke them in securing or defending their rights in cases where this

does not automatically flow from ratification, thus, treaties are required

to be implemented through legislation.

D.D. Basu says that 'no treaty which has not been implemented by

legislation shall be binding on the municipal courts'. The above view is

based on Article 253 of the Constitution which says that Parliament has

power to make any law for the whole or any part of the territory of India

for implementing any treaty, agreement on convention with any country

or countries or any decision made at any international conference,

association or other body. In many cases it has been held by the Indian

218
courts that legislation would be expressly required to give effect to a

treaty. In Birma Vs. State of Rajasthan, the Court held that "Treaties

which are part of International Law do not form part of the law of the

land unless expressly made so by the legislative authority". National

Human Rights Commission of India, on a complaint made by Panun

Kashmir Movement and All India Kashmiri Samaj for the act of

genocide, stated that although India has acceded to the Genocide

Convention on August 27, 1959, it did not enact in accordance with the

Constitution the necessary legislation to give effect to the provisions

of the Convention and in particular, to provide effective penalties for the

persons guilty of genocide or of any other acts enumerated in Article III

of the Convention. Thus ratification of the human rights treaties alone is

not enough for the courts to enforce the provisions of the conventions.

They are required to be transformed into the law of the land. As long as

enactments do not take place conventions shall not be enforceable

before the courts. No doubt, India has ratified a number of human

rights conventions and thus has shown to the world its intention to

provide human rights to the people; it has not enacted enabling

legislation in respect of all the ratified Conventions. For instance, no

law has been enacted to give effect to the Suppression and

Punishment of the Crime of Apartheid, Genocide Convention,

Convention on the Elimination of All Forms of Discrimination Against

219
Women and Convention on the Elimination of All Forms of Racial

Discrimination.

If on a particular point legislation does not exist at all but at the

same time there is an international commitment of the country, it

becomes the duty of the judges to interpret the other existing

legislations in such a way so that the deficiencies in the domestic law

may be overcome. They are required not to wait for the new legislation

to be enacted. In Sunil Batra Vs Delhi Administration, Krishna Iyer, J.

observed that of course, new legislation is the best solution, but when

law makers take for too long for prepare reports which are required to

be submitted from time to time before the different committees. The

officials and members of the department may represent the country in

the meetings and conferences relating to human rights in a better way

as they would be supposed to have more equipped with the human

rights concepts than to other persons. The department can also assist

to incorporate the human rights values in the foreign policy making and

also in the national policies keeping in view the various considerations

including those of national security and economic considerations.

Restrictions on Rights

It is to be noted that India while acceding the Covenant on

Economic, Social and Cultural Rights had made certain reservations in

the application of certain provisions. Such provisions, of course, would

220
not apply to it. For instance, Article 1 of the Covenant which lays down

as to the right of self-determination shall apply only to the peoples

under foreign domination and not to sovereign Independent States or to

a section of a people or nation-which is the essence of national

integrity. Further, Articles 4 and 8 of the Covenant shall be so applied

as to be in conformity with the provisions of Article 19 of the

Constitution. Article 7(c) of the Covenant shall be so applied as to be in

conformity with the provisions of Article 16(4) of the Constitution. The

effect of the reservations would be that the Government is not required

to take any step beyond that what is guaranteed in the Constitution.

All the provisions of the Covenant on Economic, Social and

Cultural Rights are binding on India except those in respect of which

reservation has been made in the Instrument of Accession. It should be

the efforts of the Government to take steps with a view to provide them

to the individuals. It is shocking that in India, economic and social rights

have not been given right that much importance which the Civil and

Political rights have, perhaps because the former are not enforceable in

the court of law. But this attitude is not justifiable in view of the great

importance given to them by the Founding Fathers. It was their

aspiration to provide these rights to the individuals in a welfare State

based on social, political and economic justice. If the present or future

government fails to achieve them, it would be betraying the confidence

which the Founding Fathers, who acquired freedom for the people with

221
their very lifeblood, had reposed in the future leaders of the Country.

The great importance to these rights are also due because of their

close relationship with the civil and political rights. These two sets of

rights of the human beings cannot be divisible or separate from one

another. The full realization of the civil and political rights is impossible

without the enjoyment of economic, social and cultural rights. Justice

P.N.Bhagwati of the Supreme Court has very rightly said:

It is only through achievement of social and economic rights that

civil and political rights can become a practical reality for the entire

people of a country. Otherwise civil and political rights will remain

merely a teasing illusion and a promise of unreality, insincere and

hypocritical protestations of ideals intended to cheat and beguile the

masses.26

Enforcement of the Rights Provided in the Conventions

The Indian Constitution maintains the distinction between the

treaty making power and the implementation of the treaty obligations.

While the treaty making power is the executive power of the Union

Government, the Parliament has the 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 country or countries or any decision

made at any international conference, association or body. The power

222
of Parliament to legislate on subject areas cognate to the treaty making

power include.27

1) Foreign affairs; all matters which bring the Union into relation

with any foreign country.

2) Diplomatic, consular and trade representation.

3) United Nations Organisation.

4) Participation in international conferences, associations, and other

bodies and implementing the decision made thereat.

5) Entering into treaties and agreements with foreign countries

and implementing of treaties, agreements and conventions with

foreign countries.

6) War and peace.

The above provisions make it clear that treaties do not acquire

the same status and force as validly enacted laws.

Implementation of the Rights Provided in the Conventions

India has ratified many international conventions relating to

human rights. It has an obligation to implement the rights stipulated

therein to the individuals. The role of the government is therefore

gigantic. It has to chalk out its policies and enact laws in such a way so

that the rights provided therein may be available to the individuals.

In order to implement the rights provided in the international

conventions municipal legislation of the country is required to be in

223
conformity with the provision of the international conventions. Treaties

may be transferred into the domestic laws so that individuals may

invoke them in securing or defending their rights in cases where this

does not automatically flow from ratification, thus, treaties are required

to be implemented through legislation. D.D.Basu says that 'no treaty

which has not been implemented by legislation shall be binding on the

municipal courts'. The above view is based on Article 253 of the

Constitution which says that Parliament has power to make any law for

the whole or any part of the territory of India for implementing any

treaty, agreement on convention with any country or countries or any

decision made at any international conference, association or other

body. In many cases it has been held by the Indian courts that

legislation would be expressly required to give effect to a treaty. In

Birma v. State of Rajasthan, the Court held that Treaties which are part

of International Law do not form part of the law of the land unless

expressly made so by the legislative authority. National Human Rights

Commission of India, on a complaint made by Panun Kashmir

Movement and All India Kashmiri Samaj for the act of genocide, stated

that although India has acceded to the Genocide Convention on August

27, 1959, it did not enact in accordance with the Constitution the

necessary legislation to give effect to the provisions of the Convention

and in particular, to provide effective penalties for the persons guilty of

genocide or of any other acts enumerated in Article III of the

224
Convention.28 Thus ratification of the human rights treaties alone is not

enough for the courts to enforce the provisions of the conventions.

They are required to be transformed into the law of the land. As long as

enactments do not take place conventions shall not be enforceable

before the courts. No doubt, India has ratified a number of human rights

conventions and thus has shown to the world its intention to provide

human rights to the people; it has not enacted enabling legislation in

respect of all the ratified Conventions. For instance, no law has been

enacted to give effect to the Suppression and Punishment of the Crime

of Apartheid, Genocide Convention, Convention on the Elimination of

All Forms of Discrimination Against Women and Convention on the

Elimination of All Forms of Racial Discrimination.29

While commenting on a particular point of legislation the Judge

must keep in mind the international commitment of the country, so it

becomes the duty of the judges to interpret the other existing

legislations in such a way so that the deficiencies in the domestic law

may be overcome. They are required not to wait for the new legislation

to be enacted. In Sunil Batra vs Delhi Administration, Krishna Iyer, J.

observed that of course, new legislation is the best solution, but when

law makers take for too long for social patience to suffer, as in this very

case of prison, courts have to make do with interpretation and carve on

wood and sculpt on stone ready at hand and not wait for away marble

architecture.

225
INFERENCE

The declaration of fundamental rights in the Constitution serves as

reminder to the government in power that certain liberties and freedoms

essential for all the people and assured to them by the fundamental law

of the land are to be respected. These fundamental rights represent the

basic values cherished by the people of this country since the Vedic

times and they are considered to protect the dignity of the individual and

create conditions in which every human being can develop his

personality to the fullest extent. They weave a 'pattern of guarantees' on

the basic structure of human rights, and impose negative obligations on

the State not to encroach on individual liberty in the various dimensions.

However, absolute and unrestricted individual rights do not, and

cannot exist in any modern State. Unrestricted liberty and freedom

tends to become licence and jeopardises the liberty and freedom of

others. The result would be chaos, ruin anarchy.

On the other hand, if the State has the absolute power to

determine the extent of personal liberty the result would be tyranny.

Hence it is very important to make a just balance between the

conflicting interests of the individuals and of the society. The

Constitution of India permits the reasonable restrictions to be imposed

on individual's liberty in the interest of the society. Thus, the State can

limit the freedom and liberty of the individuals on those grounds which

are prescribed in the Constitution. Anything beyond that will be ultra

226
virus of the Constitution. The fundamental rights are guaranteed in Part

III of the Indian Constitution consisting of Articles 12 to 35. Since these

rights are guarantees against state action, they have to be distinguished

from violation of such rights by the private parties. Private action is

protected by the ordinary law of the land. The makers of the

Constitution were aware that in the context of socio-economic

conditions which existed at the time when the Constitution was framed,

it was not enough to guarantee the people mere civil and political rights.

Hence they incorporated certain socio-economic rights in Part IV of the

Constitution. The directive principles in Part IV have been made

unenforceable by any court. In this regard they also differ from the

fundamental rights of Part III which are enforceable in the court of law.

But the non-enforceability does not decrease their importance in the

constitutional scheme. Article 37 itself makes them fundamental in the

governance of the country. What is fundamental in the governance of

the country cannot be said to be of less fundamental importance than

the individual fundamental rights. Further, last part of article 37 provides

that it shall be the duty of the State to apply these principles in making

laws. Thus, all the three organs of the State, legislature, executive and

judiciary are duty bound to respect these directive principles and apply

them in the making of laws. They serve as the guidelines for the future

and they are equally fundamental with fundamental rights.

227
REFERENCES

1. J, Mohanty, Human Rights Education, Deep & Deep Publications

Pvt. Ltd., New Delhi, 2003, p.58.

2. A. Subbian, Human Rights Complaints Systems: International

and Regional, Deep & Deep Publications Pvt. Ltd., New Delhi,

2003, p.76.

3. Ibid, p.89.

4. Upendra Baxi, ed. Inhuman Wrongs and Human Rights:

Unconventional Essays, Har-Anand Publications, New Delhi, 1994,

p.54.

5. Beetham, David, ed. Politics and Human Rights, Blackwell

Publishers, Cambridge, 1955, p.106.

6. Ibid, p.108.

7. Ibid, p.109.

8. Chakraborty, M. Human Rights and Refugees, Deep & Deep

Publications Pvt. Ltd., New Delhi, 2001, p.68.

9. Upendra Baxi, Op.Cit.P.56.

10. Ibid,p.59.

11. Deshta, S., Deshta, K. Fundamental Human Rights, Deep &

Deep Publications Pvt. Ltd., New Delhi, 2003, p.168.

12. Ibid, p.169.

13. Ibid, pp.169-170.

228
14. H.O. Agarwal, Human Rights, Central Law Publications,

Allahabad, 2008, p.259.

15. Ibid, p.260.

16. Ibid, p.260.

17. Ibid, p.261.

18. Ibid, p.261.

19. Ibid, p.263.

20. Ibid, p.269.

21. Ibid, p.298.

22. Ibid, p.299.

23. Hasan, Ashraful. Human Rights Dilemmas in Contemporary

Times: Issues & Answers, Austin & Winfield, Publishers,

Bethesda, 1998, p.43.

24. Ibid, p.262.

25. Ibid, p.266.

26. H.O. Agarwal, Op. Cit, p.261.

27. Meron Theodor, ed. Human Rights in International Law: Legal

and Policy Issues. Clarendon Press, Oxford, 1984. p.21.

28. Ibid, p.21.

29. Ibid, p.22.

229
Chapter- 6

PROTECTIVE MECHANISMS
OF HUMAN RIGHTS
Vienna Declaration and Programme of Action adopted by the

World Conference on Human Rights on 25 June 1993 rightly stated

that every State should provide an effective framework of remedies to

redress human rights grievances or violations. The administration of

justice including law enforcement and prosecutorial agencies and,

especially an independent judiciary and legal profession in full

conformity with applicable standards contained in international human

rights instruments, are essential to the full and non-discriminatory

realisation of human rights and indispensable to the process of

democracy and sustainable development.1

National human rights institutions are a necessary corollary to the

democratic machinery of governments. They are a means of

democratic empowerment for those who are less powerful and less

advantaged. Given that in a democracy the majority rules, standard

government machinery and institutions are not always sufficient to

guarantee the protection of human rights. This becomes very much

relevant for those sections of people who are in minority and for those

without significant financial or intellectual resources, as well as for

section of society that are not as legally empowered as others (e.g.,

children). The national human rights institutions can complement

existing democratic bodies within the government. In fact national

human rights institutions are fundamental mechanism in protecting

people's rights. The establishment and maintenance of national human

230
rights institutions will depend on special settings. The most important

factor in this regard is the degree of commitment that the government

has in setting up human rights institution. Strong political is to be

exhibited from across the political spectrum, not only from those

holding power at particular point of time. It is necessary to stress the

philosophical reasoning behind the need for setting up national human

rights institutions and convince the government that such institutions

will actually help the government to govern. It is of utmost importance

to stress the link between human rights and development of the

nation.2 Placing emphasis on a state's obligations under international

law to observe human rights can be an effective means of persuasion

with government. The use of existing institutions in other countries as

models and the use of like-minded organisations with similar interests

can provide a foundation for the development of institutions.

Generally speaking, national human rights institutions can be

divided into two categories, i.e., (i) offices of the Ombudsman and (ii)

Human Rights Commissions.

Ombudsman

An Ombudsman in terms of utility means watchdog of the

administration or the protector of the little man. It is a unique institution

which leads to an open government by providing a democratic control

mechanism over the powers of the government. The institution of

231
Ombudsman plays an important role of bringing renaissance and

humanism in the working of the government. It is difficult to define

Ombudsman in precise term. According to Garner, he is "an officer of

Parliament, having as his primary function, the duty of acting as an

agent for Parliament, for purpose of safeguarding citizens against

abuse or misuse of administrative power by the executive."3 The

International Bar Association resolution of 1974 provided the following

definition of Ombudsman.

An office provided for by the Constitution or by action of the

legislature or parliament and headed by an independent high level

public official who is responsible to the legislature or parliament, who

receives complaints from aggrieved persons against government

agencies, officials and employees or who acts on his/her own motion,

and who has the power to investigate, recommend corrective action

and issue reports.4

Thus the Ombudsman enquires and investigates all complaints

made by citizens against abuse of discretionary powers,

maladministration or administrative inefficiency and takes appropriate

actions. He can even act suo moto. Generally, the Ombudsman is a

judge or a lawyer or a high officer of character, reputation and integrity

he is party politics and is a position to think and decide objectively. He

makes reports.

232
Parliament had pointed out the reactions of the citizens against

the administration. Very wide publicity is given to these reports. The

publication of his reports makes him the watch-dog of public safety

valve against maladministration and protects the people from violation

of their human rights. The wide-ranging investigative powers of the

Ombudsman make him very effective in discharge of his functions. He

has access even to the government files and documents. Sweden was

the first country to adopt the institution of Ombudsman in 1809. Finland

adopted in 1919, Denmark in 1953 and Norway in 1963. Amongst the

Common Law Countries, with Parliamentary form of government, New

Zealand was the first country to opt for it in 1962. In England it was

established in 1966.5

The importance of establishing and maintaining such institutions,

particularly in developing nations like India, can be best explained in

the words of Presidential Commission on the Establishment of One

Party State in Tanzania.

In a rapidly developing county, it is inevitable that many officials,

both of Government and of the ruling party, should be authorised to

exercise wide discretionary powers. Decisions taken by such officials

can, however, have the most serious consequences for the individual,

and the Commission is aware that there is already a good deal of public

concern about the danger of abuse of power. So India has given careful

233
thought to the possibility of providing some safeguards for the ordinary

citizen.6

There is one more importance of the office of the Ombudsman. It

protects the government officials against unfounded, malicious or unfair

attacks. In this regard the observations of the Mauritian Ombudsman

are of great relevance.

It must not be believed that every time the Ombudsman receives

a complaint this means that the administration has gone wrong

somewhere. The Ombudsman will certainly poke his nose into the

actions of the administration but he will definitely identify, after

investigation, which complaints are frivolous or unjustified and reject

them. Therefore, although the Ombudsman is often referred to as the

citizens defender, it would be wrong to call him the administration's

accuser.7

Similarly, in India, in the State of Gujarat, the Lokayukta Act

states:

Provision for the appointment of Lokayukta for the investigation

of allegations against public functionaries in the State of Gujarat and

also for safeguarding the dignity and prestige of public functionaries

against false and frivolous allegation.8

234
In India, the Administrative Reforms Commission in its interim

report dated 14 October 1966 suggested to the Government of India to

establish the institution similar to Ombudsman (Lokpal in the Centre

and Lokayukta in the States).Various abortive attempts were made

from 1968 to 2011 to establish the institution of Lokpal in the Centre by

introducing different Bills in the Parliament. However, no Bill became an

Act due to one reason or the other and thus no institution of Lokpal

could be created at the Centre. On the other hand, the institution of

Lokayukta was established in different states.9 The working of these

Lokayukta's in the different states has shown good results. Numerous

complaints of maladministration and abuse of power by the

administration have been investigated and the citizens have been

provided with various remedies.

However, in Orissa, where the office of the Lokayukta was

established by statute and it sought to investigate the activities of the

Ministers, the Chief Minister successfully obtained the repeal of the

statute establishing the institution. It is submitted that such an attempt

will defeat the very purpose for which such institutions are created. As

pointed out earlier that national human rights institutions, including the

office of the Ombudsman, are necessary corollary to the democratic

machinary of the government,and the government in order to show its

respect for international treaties and commitment to human rights, must

fully co-operate with such institutions so as to make them effective in

235
the real sense and protect the citizens from violation of human rights in

any form. It is of utmost importance that the institution must have

significant powers and be without any challenge from government or

private lobby group in order to provide the needed legitimacy when

carrying out investigation.10

Human Rights Commission

The other national human rights institution is Human Rights

Commission. Human Rights Commissions deal with the protection of

citizens against discrimination as well as with the protection of other

human rights. They are generally designed to hear and investigate

individual charges of human right violations or discriminatory acts

committed in violation of existing law. Most human rights Commissions

are collegial bodies comprised of members who, in most cases, are

selected by the Executive. In many cases the Commissions enjoy

statutory independence and are responsible for reporting on a regular

basis to the legislative body.

The Human Rights Commission can be domestic or international

depending upon their scope and jurisdiction. These national human

rights institutions may be the creation of national Constitutions or a

specific statute. There are some advantages in establishing these

institutions as a constitutional body. For example, the Constitution is a

supreme law and any change in the fundamental structure of the

236
institution would require the passing of a constitutional amendment Act

for which special procedure has to be followed. Thus, the integrity of the

institutions will be protected and it can work more effectively.

There are certain advantages of national human rights institutions

over the traditional means of protecting human rights. For example, in

courts, there is prohibitive cost of litigation, frequent delays and lengthy

hearing of cases. The courts can deal only with the specific issue raised

in the case and cannot go beyond that. Sometimes there is difficulty in

producing evidence. The complex procedure of the Courts keeps many

deserving cases out of it. Thus, the Courts play only a peripheral role

and do not provide for a review in depth of the entire administrative

field.11

The control by the administration over its own faults and lapses

suffer from official bias and it starts building up its own defence within

the department.

Similarly, the legislature lack lime to investigate complaints. It also

lacks ready access to information. The legislators are also unwilling to

investigate politically sensitive issue. There is also danger that an

investigation done by a member of the legislature is not impartial but

politically motivated. Otherwise also the legislative procedure is such

that there is not much room for ventilating individual grievances on the

floor of the House.

237
Hence it is felt that some independent machinery, falling outside

the control of administration, for the protection of human rights of the

people must be created. It is in this regard that the role played by the

institution of Ombudsman and Human Rights Commission becomes

very important.

The Protection of Human Rights Act, 1993

In order to meet the national as well international demand for the

constitution of National Human Rights Commission, State Human

Rights Commissions in States and Human Rights Court for better

protection of human rights and for matters connected therewith or

incidental thereto, the Human Rights Commission Bill, 1993 was

introduced in the Parliament on 14 May, 1993. Pending this Bill in the

Parliament, the President of India promulgated an Ordinance, i.e., "The

Protection of Human Rights Ordinance, 1993", on 28 September, 1993

under article 123(1) of the Constitution. Subsequently, the Ordinance

became as The Protection of Human Rights Act, 1993. The Act is

deemed to have come into force on 28th September 1993, i.e., the date

when The Protection of Human Rights Ordinance was promulgated.13 It

extends to the whole of India. However, it shall apply to the State of

Jammu and Kashmir only in so far as it pertains to the matters relatable

to any of the entries enumerated in List I or List III in the Seventh

Schedule to the Constitution as applicable to that State.

238
Human Rights and Human Rights Courts

Section 2(d) of the Act defines human rights to mean the rights

relating to life, liberty, equality and dignity of the individual guaranteed

by the Constitution or embodied in the International Covenants and

enforceable by courts in India. Further under section 2(f) International

Covenants mean the International Covenant on Civil and Political

Rights and International Covenant on Economic, Social and Cultural

Rights adopted by the General Assembly of the United Nations on the

16th December, 1966.

For the purpose of providing for speedy trial of offences arising

out of violation of human rights, the State Government may, with the

concurrence of the Chief Justice of the High Court, by notification,

specify for each district a Court of Session to be a Human Rights Court

to try the said offences. However, this shall not apply in two conditions,

i.e., (i) if a Court of Session is already specified as a special court; or (ii)

if a special court is already constituted.14 Thus, one find that it is not

mandatory but discretionary to specify any Court of Session to be a

Human Rights Courts for trying the offences dealing with human rights

violation. In other words, where no Human Rights Court is specified, the

Court of Session or any other Special Court already constituted shall

continue to try offences relating to violation of human rights.

239
The National Human Rights Commission

The Central Government has been empowered to constitute a

body to be known as the National Human Rights Commission.

According to the Statement of Objects and Reasons attached to the

Bill, reason for the establishment of a Commission includes the

following:

> India is a party to the International Covenant on Civil and Political

Rights and International Covenant on Economic, Social and Cultural

Rights. The human rights embodied in the aforesaid Covenants

stand substantially protected by the Constitution.

> However, there has been growing concern in the country and abroad

about issues relating to human rights. Having regard to this,

changing social realities and the emerging trends in the nature

of crime and violence, the Government has been reviewing

the existing laws, procedures and system of administration of justice

with a view to bringing about greater accountability and transparency

in them, and devising efficient and effective method of dealing with

the situation.

Accordingly, the National Human Rights Commission has been

constituted under the Protection of Human Rights Act, 1993. In the Act

it is provided that the Commission shall consist of:

> A Chairperson who has been a Chief Justice of the Supreme Court;

240
> One Member who is, or has been, a Judge of the Supreme Court;

> One Member who is, or has been, the Chief Justice of a High Court;

> Two Members to be appointed from amongst persons having

knowledge of, or practical experience in, matter relating to human

rights.15

In addition to this, there are three ex-officio members. They arc

the Chairpersons of the National Commission for Minorities, the

National Commission for Scheduled Castes and Scheduled Tribes and

the National Commission for Women. They shall also discharge all the

functions of the National Human Rights Commission except that they

will not inquire, suo moto or on a petition presented by a victim or any

person on his behalf, into complaint of violation of human rights or

abetment thereof or negligence in the prevention of such violation.16

An officer of the rank of the Secretary to the Government of India

is to be the Secretary-General of the Commission and he shall exercise

such powers and discharge such functions of the Commission as it may

delegate to him.

The Government of India has constituted the National Human

Rights Commission. Former Chief Justice of India, Mr. Justice R.N.

Misra is the Chairperson of the Commission. The Headquarters of the

Commission is at Delhi. However, the Commission may with the

241
previous approval of the Central Government, establish office at other

places in India.17

The appointment of Chairperson and other members of the

Commission is made by the President of India on the ecommendations

of a Committee which consists of following persons:

(i) The Prime Minister Chairperson

(ii) Speaker of the House of People Member

(iii) Minister in-charge of the Ministry of Home Affairs in Member


the Government of India

(iv) Leader of the opposition in the House of the People Member

(v) Leader of the opposition in the Council of States Member

(Vi) Deputy Chairman of the Council of States Member

If a sitting Judge of the Supreme Court or sitting Chief Justice of

the High Court is to be appointed to the Commission then it can be

done only after consultation with the Chief Justice of India.18

The Chairperson or any other Member of the Commission shall

only be removed from his office by order of the President on the

grounds of proved mis-behaviour or incapacity after the Supreme Court

on reference being made to it by the President, has, on inquiry held in

accordance with the procedure prescribed in that behalf by the

Supreme Court, reported that the Chairperson or such other Member,

as the case may be, ought on any such ground be removed.

242
Notwithstanding this, the President may by order remove from office

the Chairperson or any other member if the Chairperson or such other

Member, as the case may be-

i. is adjudged an insolvent; or

ii. engage during his term of office in any paid employment outside the

duties of his office; or

iii. is unfit to continue in office by reason of infirmity of mind or body; or

iv. is of unsound mind and stands so declared by a competent

court; or

v. is convicted and sentenced to imprisonment for an offence which in

the opinion of the President involves moral turpitude.19

The term of office of the Chairperson and other Members of the

Commission has been fixed. The Chairperson shall hold the office for a

term of five years from the date on which he enters upon his office or

until he attains the age of seventy years, whichever is earlier. Other

Members of the Commission shall hold the office for a term of five

years from the date on which they enter the office and shall be eligible

for re-appointment for another term of five years but subject to the

condition that no member shall hold the office after attaining the age of

seventy years. On ceasing to hold office, the Chairperson as well as

Members of the Commission is not eligible for further employment

under the Government of India or under the Government of any State.20

243
In the event of the occurrence of any vacancy in the office of the

Chairperson by reason of his death, resignation or otherwise, "the

President may, by notification, authorise one of the Members to act as

the Chairperson until the appointment of a new Chairperson to fill such

vacancy. The terms and conditions of service of Members including

their salary and allowances can not be varied to their disadvantage

after their appointment.21 This provision has been made to ensure

independence in their working.

Functions and Powers of the Commission

From the basic objectives of the Act it is evident that the Protection

of Human Rights Act, 1993 was enacted, inter alia, for better protection

of human rights and for matters connected therewith or incidental

thereto. Therefore, The Human Rights Commission has to discharge

such functions which are for better protection of human rights and

matters connected therewith or incidental thereto. In order to achieve

these objectives, section 12 of the Act provides that the Commission

shall perform all or any of the following functions, namely:

(i) inquire, suo moto or on a petition presented to it by a victim or any

person on his behalf, into complaint of -

- violation of human rights or abetment thereof; or

- negligence in the prevention of such violation, by a public servant;

244
(ii) intervene in any proceeding involving any allegation of violation of

human rights pending before a court with the approval of such

court;

(iii) visit, under intimation to the State Government, any jail or any

other institution under the control of the State Government, where

persons are detained or lodged for purposes of treatment,

reformation or protection to study the living conditions of the

inmates and make recommendations thereon;22

(iv) review the safeguards provided by or under the Commission or

any law for the time being in force for the protection of human

rights and recommend measures for their effective

implementation;

(v) review the factors, including acts of terrorism, that inhibit the

enjoyment of human rights and recommend appropriate remedial

measures;

(vi) study treaties and other international instruments on human rights

and make recommendations for their effective implementation;

(vii) undertake and promote research in the field of human

rights;

(viii) spread human rights literacy among various sections of society

and promote awareness of the safeguards available for the

protection of these rights through publications, the media,

seminars and other available means;

245
(ix) encourage the efforts of non-governmental organizations and

institutions working in the field of human rights; and

(x) such other functions as it may consider necessary for the

promotion of human rights.

However, the complaints relating to following matters shall not be

entertained by the Commission;

(i) complaint in regard to events which happened more than one year

before the making of the complaint;

(ii) complaint with regard to the matter which are sub-judice or pending

before a State Commission or any other Commission duly constituted

under any law for the time being in force;

(iii) complaints which are vague,anonymous pseudonymous;

(iv) complaints which are of frivolous nature; or

(v) the complaints which are outside the purview of the Commission.23

In order to enable the Commission to discharge the above

mentioned functions in an effective manner, it is necessary that the

Commission must be invested with powers of the Court. Section 13 of

the Act ensures this by providing that the Commission shall, while

enquiring into complaints under this Act, have all the powers of a civil

court trying a suit under the Code of Civil Procedure and particularly

in respect of the following matters namely

246
> summoning and enforcing the attendance of witnesses and

examining them on oath;

> discovery and production of any document;

> receiving evidence on affidavits;

> requisitioning any public record or copy (hereof from any court or

office;

> issuing commissions for the examination of witnesses or documents;

> any other matter which may be prescribed.

The Commission also has the power to enquire any person to

furnish information on such points or matters as, in the opinion of the

Commission, may be useful for, or relevant to, the subject matter of the

enquiry. Such person shall be deemed to be legally bound to furnish

information. The omission to furnish such information or furnishing

false information shall constitute offence under section 176 and 177 of

the Indian Penal Code.24 Every proceeding before the Commission shall

be deemed to be judicial proceeding for the purpose of considering

punishment for false evidence or using evidence known to be false.

However, no statement made by a person in the course of giving

evidence before the Commission shall subject him to, or be used

against him, in any civil or criminal proceeding except a prosecution for

giving false evidence by such statement, provided that it is made in

reply to the question which is required by the Commission to answer; or

is relevant to the subject matter of the inquiry.25

247
Whenever the Commission has reasons to believe that any

document relating to the subject matter of the enquiry may be it hidden

in any building or place, the Commission or any other officer, not below

the rank of a Gazetted Officer specially authorised by the Commission

may enter such building or place and may seize such document or take

extracts or copies from the documents.

The Commission shall be deemed to be a civil court and

whenever any person omits to produce document which he is legally

bound to produce; or refuses oath or affirmation when duly required by

the Commission to make it; or refuses to answer any authorised

question to the Commission; or refuses to sign any statement; or

intentionally insults or causes any interruption to any public servant

sitting in judicial proceeding in the view or presence of the Commission,

such person deemed to have committed an offence under the relevant

provisions of the Indian Penal Code.26 The Commission may alter

recording the facts constituting the offence and the statement of the

accused forward the case to the Magistrate, having jurisdiction to try

the same, who shall proceed to hear the case against the accused.

Another very important power given to the Commission to

discharge its functions effectively is the power of investigation. Section

14 of the Act of 1993 permits the Commission to utilise the services of

any officer or agency of the Central or State Government with their

248
respective concurrence for the purpose of conducting any investigation

pertaining to the inquiry. For example, with the concurrence of the

Central Government, the Commission can utilise the services of Central

Bureau of Investigation (CBI). It is hoped that the Central and State

governments would always come forward to give their concurrence for

utilising the services of any of its officer or agency. The co-operation

and good working relationship between the Commission and

government officials is essential for carrying out smooth investigations.

It must be remembered that national human rights institutions (including

Commissions) not only assist complainants who might have suffered

some injustice, but also protect officials against unfounded, malacious

or unfair complaints against them.

The Commission or any officer or agency working on behalf of the

Commission for the purpose of investigation of a complaint has the

following powers:

(i) summon and enforce the attendance of any person and examine him;

(ii) require the discovery and production of any document; and

(iii) requisition of any public record or copy thereof from office.

Section 18 of the National Human Rights Commission

(Procedure) Regulations, 1994 provides for the investigating team of

the Commission. It is provided that the Commission shall have its own

team of investigation which is to be headed by a person not below the

249
rank of Director General of Police, The other members of the team of

investigation would be one Deputy Inspector General of Police, two

Superintendents of Police, six Deputy Superintendents of Police

and 24 Inspectors of Police and any other categories of officers as the

Commission may decide from time to time. Appropriate number of

outsiders, in a given case, can also be appointed by the Commission

who are to be associated with the investigation either as investigators

or observers. It is submitted that while appointing outsiders the role of

the Non-Governmental Organisations (NGO's) and community

leaders can be of considerable use.27

Any officer or agency, whose services are utilised by the

Commission in investigating a complaint, is required to submit a

report to the Commission within a period to be specified by the

Commission. It is submitted that the report of the investigation should

be submitted at the earliest.28 Because delay in the report of

investigation will further delay the Future course of action in providing

justice to the complainant. And justice delayed is justice denied.

Procedure for Dealing with the Complaints

Dealing with the complaints and grievances- from members of

the public is a basic function of the Commission. The manner in which

such complaints are received and processed is of great importance as

250
it will determine the effectivity of the institution. If the procedure is

simple, it provides more accessibility to the complainant.

Sections 17 to 20 of the Act of 1993 deal with the procedure in

dealing with the complaint. In addition to this section 10(2) of the Act of

1993 empowers the Commission to regulate its own procedure. In

exercise of the powers conferred by section 10(2) of the Act of 1993,

the National Human Rights Commission has made the National Human

Rights Commission (Procedure) Regulations, 1994 which have come

into force with effect from 1st March, 1994.29

The Commission normally has its regular sittings in the first and

third weeks of every month, excepting holidays. The Chairman himself

or at the instance of one or more of the members may direct a special

sitting of the Commission to consider specific matter of urgency.

All the complaints in whatever form received by the Commission

are registered and assigned a specific number. Then they are placed

before a Bench of two members, within the period of two weeks from

the receipt of the complaint, for the purpose of admission. No fee is

charged on the complaints. Every complaint should be made in such a

manner so as to disclose a complete picture of the matter leading to

the complaint. The complaint may be made in English or Hindi to

enable to Commission to take immediate action. However, the

Commission can entertain complaints in any of the eighteen languages

251
mentioned in the Eighth Schedule of the Constitution.30 The

Commission, if so desire, can further ask for any information and

affidavits in support of allegations made in the complaint. The

complaints sent telegraphically or conveyed through fax can also be

accepted by the Commission. If at the stage of admission of the

complaint, the Commission does not find any substance in it then the

same can be dismissed. Once the complaint is admitted, the

Commission shall decide and direct for further inquiry or investigation.

After the decision is taken by the Commission to hold inquiry

or investigation in regard to the allegations in the complaint, the

Secretariat calls for reports/ comments from the concerned

government/ authority. Such government/authority is given a

reasonable time to give its reports/ comments. If the report/ comments

of the concerned government authority are not received within the

stipulated time the Commission may proceed to enquire into the

complaint on its own. If the report/comments are received from the

concerned authority within the stipulated time, a detailed note on the

merit of the case is prepared for consideration of the Commission. If

the Commission is satisfied that either no further inquiry is required or

that the required action has been taken or initiated by the concerned

government authority, then it may not proceed further with the

complaint and the complainant is informed accordingly. However,

having regard to the nature of the complaint, if the Commission is

252
satisfied that it is necessary to inquire the matter further, it shall initiate

inquiry.

In case the investigation is undertaken by the team of the

Commission or by any other person under its direction, then the report

is required to be submitted within a week of its completion. If the

Commission finds that the investigation has not been made properly

or the matter requires further investigation; it may direct for further

investigation in that case. The Commission or any of its members can

make on the spot study. Whenever such study is undertaken by one

or more members, they are required to submit the report of such

study as early as possible.31

After the inquiry is completed the Commission may take any of

the following steps:

1. Where after the inquiry it is found that there was violation of human

rights or there was negligence in the prevention of violation of

human rights by a public servant, the Commission may recommend

to the concerned government/authority to initiate proceedings for

prosecution or take any other appropriate action against the

concerned person.

2. The Commission may approach the Supreme Court or the

concerned High Court for such directions, orders or writs as the

Courts may deem necessary.

253
3. The Commission may recommend to the concerned government/

authority for the grant of immediate interim relief to the Victim or to

the members of the family.

4. The Commission is required to send the report of the inquiry to the

concerned government/authority within one week of the completion

of the proceedings before it. The concerned government/authority

is required to give its comments on the report including the action

taken or proposed to be taken thereon to the Commission.

5. The copy of the inquiry report is also given to the petitioner or his

representatives.

6. The Commission is required to publish the inquiry report together

with comments of the concerned government/ authority and the

action taken or proposed to be taken by the government/authority

within the period of one week.32

Whenever the complaints regarding the violation of human rights

by the members of armed forces are received by the Commission, it

adopts the following procedure.

The Commission either on its own motion or on receipt of a petition

seeks the report from the Central Government. If the Commission is

satisfied with the report of the government, it will not proceed further

with the complaint. If the Commission is not satisfied with the report

of the government, it makes its recommendations to that government.

254
The Central Government required to inform the Commission of the

action taken on the recommendations within the period of three months

or such further time as the Commission may allow. Thereafter the

Commission is required to publish the report together with the

recommendations made to the Central Government and the Action

taken by the government on such recommendations, within the period

of one week. The Commission is also required to furnish the copy of the

published report to the petitioner or his representative.33

Finally, the Commission is required to submit an annual report to

the Central Government and to the State Government concerned.

However, the Commission may submit special reports on matters

which are of such urgency or importance that it should not be

deferred till the submission of the annual report.

The Central Government and the State Government concerned

shall place the annual report and special reports of the Commission

before each House of Parliament or the State Legislature respectively

along with the memorandum of action taken or proposed to be taken

on the recommendations of the Commission and the reasons for non

acceptance of the recommendations, if any.

This aspect of publication impels the government/authority to take

seriously the recommendations of the Human Rights Commission.

Otherwise, the government shall stand exposed before the members to

255
the legislature for its non-action. Therefore, if the government or the

authority wants to keep its image clean, as for as the violation of human

rights is concerned, then it will have to take action against the violation

of the human rights as recommended by the Commission after enquiry

or investigation in a particular complaint. However, one may notice that

Human Rights Commission does not have its own independent

mechanism for the enforcement of its findings. It only recommends to

the concerned government/authority as to what action should be; taken.

In certain cases it can intervene in any proceedings involving any

allegation of violation of human rights pending before a Court. But even

in that case it has to seek the approval of the Court. Once the enquiry is

completed, it can also approach the Supreme Court or the High Court

concerned for such directions, orders or writs as that court may deem fit

or necessary. Recently, when a lot of voice was being raised against

the Terrorist and Disruptive Activities (Prevention) Act (TADA), the

Chairman of the National Human Rights Commission Mr. Justice R.N.

Misra also publicly announced that the Commission is also in favour of

the repeal of TADA .In India most of the human rights violations have

been reported by the police forces or armed forces, particularly in those

states which affected by the terrorism problem. These forces are

Government forces. In such cases the Commission is required to follow

the procedure mentioned in section 19 of the Act of 1993 under which

the Commission seeks the report from that very government whose

256
forces have indulged in the human rights violation and after completing

inquiry or investigations, as the case may be, submits its

recommendations to the same very government for further action. It

remains to be seen that to what extent this kind of procedure can be an

effective instrument to provide remedy to the complainant or prevent

future violation of human rights by the forces of the government. If

some independent mechanism for the enforcement is provided with the

Commission then it can work more effectively.34

Role in Promoting Human Rights Education

One of the key roles of the Commission is to promote Human

Rights Education and awareness among large sections of population

who have little knowledge about such rights. In this regard, the

commission has devised a three-pronged strategy. Firstly, the

Commission sought the support of all political parties both at national

and regional levels to promote human rights. Secondly, it organized

meetings with the Chief Ministers to sensitize their civil Servants.

Thirdly, it organized dialogues with Human Resource Development

Ministry and NCERT at the centre and with competent educational

authorities at the state level to promote human rights education through

their text books. Besides, the Commission has prepared a source book

on human rights materials to guide teachers and other academics, as

far as schooling system is concerned. Further, at the suggestions of the

Commission, most of the universities have introduced human rights

257
courses at their post-graduate studies. This apart, the Commission has

been encouraging various organizations to organize seminars,

workshops and sensitization programmes on various aspects of human

rights.35 The most notable contribution has come with regard to make

police, military and para-military forces sensitive about human rights.

The Commission has called upon several meetings with Director

General of Police of various states to prepare model training syllabi for

all levels of police force. Most importantly, the Commission has ensured

in all educational institutions to observe 10 December, as Human Rights

Day.

Apart from promoting human rights education and awareness

among key stakeholders, the Commission has taken up impressive

array of research undertakings to deepen people's understanding on

critical issues of human rights. Since its inception, the NHRC has

initiated number of studies on issues of bonded labour, child labour, girl

child, prostitution, conditions in mental hospital and several areas often

overlooked by state agencies. Besides, The Commission has set up

several Chairs on human rights to encourage serious academic

persuasion on critical issues of human rights.

A Critical Appraisal of the Role of the NHRC

All this establishes that creation of National Human Rights

Commission has brought about a Qualitative change in the observance

258
of human rights in India. As a result of its consistent efforts, there is now

greater awareness to follow human rights principles among the police,

army and security forces. Yet there are number of constraints and

constitutional limitations that have made the NHRC look more like a

toothless body. For example, while the NHRC's role in probing Gujarat

riots issue created ripples, yet, a precious little has been done to act

upon its recommendations. This is basically because the Commission's

powers have been limited to recommendatory in nature. It is basically

an investigative and reporting body, imbued with powers of a civil court.

It lacks judicial power, so far as meeting out punishment to offenders

are concerned. Secondly, the Commissions investigating powers have

been restricted by the fact that if a state government institutes an

investigative commission on a case of human rights violation, the

Commission cannot carry any investigation on its own. Third, the NHRC

cannot investigate on cases of human rights violations, as far as the

Armed Forces are concerned. Fourth, the NHRC has no financial

independence of its own. it is dependant on central Government grants.

The grants are so limited that it most often restricts the Commissions

activities. Finally, the Commission functions in a situation of

interdependence. It functions along with other statutory bodies like

National Minorities Commission, National Commission for Women and

SC/ST Commission. Thus, its powers are limited in this way. Yet, with

all institutional and procedural limitations, the Commission has acquired

259
a status of focal point for enforcement of a new generation of human

rights while protecting the basic social order, threat perception and

integrity of the State. In short, the Commission's role, however

recommendatory may be in their application, has raised a new hope for

thousands, who earlier had no hope to get justice.36

State Human Rights Commission

Section 21 provides that the State Government may constitute a

body to be known as the State Human Rights Commission which may

inquire into violation of human rights only in respect of matters which

are related to any of the entries enumerated in the State List (List II)

and Concurrent List (List III) of the Seventh Schedule of the

Constitution. However, if such a matter is already being inquired into

by the Commission or any other Commission duly constituted under

any law, then such State Commission shall not inquire into said

matter.37

The State Commission shall consist of

i) a Chairperson who has been Chief Justice of a High Court;

ii) one member who is, or has been, a judge of a High Court;

iii) one Member who is, or has been, a district judge in that State; and

iv) two members to be appointed from amongst persons having

knowledge of, or practical experience in, matters relating to human

rights.

260
Every appointment of the State Commission is made on the

recommendations of a Committee which consists of the following

persons:

i) the Chief Minister;

ii) Speaker of the Legislative Assembly;

iii) Minister in-charge of the Department of Home in the State; and

iv) Leader of the Opposition in the Legislative Assembly.

In those states where Legislative Council also exists, the

Chairman of the Legislative Council and the Leader of the Opposition

in that Council shall also be the member of the Committee.

In case any sitting judge of a High Court or sitting district judge is

to be appointed, then such appointment can be made only after

consulting the Chief Justice of the High Court of concerned state.38

The Chairperson is appointed for the term of five years or till he

attains the age of seventy years, whichever is earlier. The other

members are appointed for five years and they are eligible for

reappointment for another term of five years. But no member shall hold

office after attaining the age of seventy years.

The Chairperson or any other member of the State Commission

may be removed from his office in the same manner and on the same

grounds as in case of the Chairperson and members of the National

Human Rights Commission.

261
In India so far some of the States have yet to constitute State

Human Rights Commission. Therefore, air the complaints of human

rights violations are being referred to the National Human Rights

Commission. In a country of India's size, territory wise as well as

population wise, it is difficult for any single institution to meet the crying

demand of protection of human rights of all persons. In a very short

span of time National Human Rights Commission has been receiving

many complaints of human rights violation from all parts of the country.

Thus, its work-load has increased beyond proportion. Therefore, it is

the need of the hour that every State must constitute its own Human

Rights Commission so as to provide speedy justice to the people and

protect them from the violation of their human rights. The National

Human Rights Commission has already started showing positive

results. It has investigated many complaints of human rights violations

and has recommended suitable action in each case. The people of

India have full faith in the working and independence of the National

Human Rights Commission. It is hoped by the people, that National

Human Rights Commission will achieve the purpose for which it has

been created.

262
INFERENCE

The Protection of Human Rights Act, 1993 established the National

Human Rights Commission (NHRC) in India. The Commission was

constituted with a former Chief Justice of India as the Chairperson and

other four members. One member was to be from Supreme Court and

another from a High Court. The presence of the members from higher

Judiciary gave a special status to the Commission even from its very

inception. Under the Protection of Human Rights Act, 1993 the

Commission was given all the powers of a Civil Court to inquire into

complaints. An investigation mechanism was constituted under the

NHRC.

Certain functions were envisaged to be performed by the

commission to protect and to enforce human rights. The Commission

inquired into incidents of human rights violations, either based on

complaints or'suo motu'. One major problem, which the Commission

faced regarding the inquiry, is that it: is not given adequate power to

take the necessary steps after the inquiry. The Commission could only

make recommendations to the concerned Government or to the

respective authority regarding the steps to be taken, or can approach

the Supreme Court or the High Court concerned for such directions,

orders or writs as that court may deem necessary. In spite of these

shortcomings, the Commission ventured to give adequate redressal in

instances of human rights violation. It utilized the 'compensatory

jurisprudence' in instances of violation affecting the right to life.

263
The Commission took initiative to review laws and to implement

international instruments on human rights. The recommendation of

NHRC to amend the Protection of Human Rights Act, 1993 was

intended to make the working of NHRC more effective. The

Government of India gave an assurance that those recommendations

shall be undertaken immediately. The limitation period under sec.36(2),

and the inadequate power to take necessary steps after inquiry were

some of the hindrances in the working of NHRC. In spite of the

inadequacies present, the Commission continued its efforts to fulfill its

objectives.

A major achievement of NHRC is that it created awareness among

the public about the necessity to protect human rights. It sensitized the

public about various human rights violations. Timely interference of the

Commission conveyed that the violation of human rights would be

seriously dealt with.

The National Human Rights Commission had realized the

importance of human rights literacy and awareness programmes. The

Commission gave high priority to the training and re-training of police

and para-military personnel. It convinced the Army Headquarters about

the necessity of training their personal with human rights orientation. It

solicited the help of political parties to create an awareness of human

rights among its members.

264
REFERENCES

1. Paramjit S, Jaswal and Nishtha Jaswal, Human Rights and the

Law, APH Publishers New Delhi, 1996, p.229.

2. Ibid, p.230.

3. Ibid, p.230.

4. John Hatchard, National Human Rights Institutions Manual, Vol.1,

1992, p.36.

5. Ibid.

6. Id. at 2.

7. Ibid.

8. Paramjit S. Jaswal and Nishtha Jaswal, Op. Cit., p.233.

9. Section 15 of the Act of 1993.

10. Sections 175,178,179,180 and 228 of Indian Penal Code, 1360

11. Paramjit S. Jaswal and Nishtha Jaswal, Op. Cit., p.233.

12. National Human Rights Commission, Notification No.A-

11031/1/94- NHRC, dated February 17,1994, published in the

Gazzette of India, Extra, Part II, Section 1, dated 26th February,

1994, pp. 1-5, SI.No.19.

13. Section 5 of the National Human Rights Commission (Procedure)

Regulations, 1994,

14. D.D. Basu, Introduction to the Constitution of India S.Chand

and Company, 2007, p.201.

265
15. Section 8(1) to 8(9) of (Procedure) Regulations, 1994 and section

17 of the Act of 199.1.

16. Section 8(] 1) and 8(12) of the (Procedure) Regulations, 1994.

17. Section 16 of the (Procedure) Regulations, 1994 and section 8 of

the Act of 1993.

18. Section 16 of the (Procedure) Regulations, 1994 and sec-tjon 19 of

the Act of 1993.

19. Paramjit S. Jaswal and Nishtha Jaswal, Op. Cit., p.233.

20. Section 21(2) of the Act of I993.

21. Ibid, section 22.

22. Ibid, section

23. Bishnu Satapathy and Shaheed Bhagat Singh, Human Rights of

Marginalised Groups: Dalits, Adivasis, Women, in Tapan Biswal

Human Rights, Gender and Environment, Viva Books, New

Delhi, 2006, pp.141-142.

24. H.O. Agarwal, Human Rights, Central Law Publications,

Allahabad, 2008, p.296.

25. Ibid, p.298.

26. Ibid, p.299.

27. Ibid, p.299.

28. Newman, Frank C., and David S. Weissbrodt. International

Human Rights: Law Policy, and Process. Anderson Publishing,

Ohio, 1996, p.57.

266
29. Falk Richard, Human Rights and State Sovereignty, Holmes and

Meier, New York, 1981, p.36.

30. John Hatchard, Op.Cit, p.37.

31. Ibid, P.38.

32. Ibid, p.42.

33. H.O. Agarwal, Op.Cit.p.299.

34. Sehgal, B.P.S. Human Rights in India: Problems and

Perspectives, Deep & Deep Publications Pvt. Ltd., New Delhi,

2004.p.45.

35. Sharma, G. Human Rights and Legal Remedies, Deep & Deep

Publications Pvt. Ltd., New Delhi, 2003.p.98.

36. Rajni Kothari and Harsh Sethi (ed). Special Issue on the Politics

of Human Rights, Lokayan Bulletin, Vol. 5, Nos. 4-5,1997, p.58.

37. K.K.Ghai, Indian Government and Politics Deep& Deep

Publications, New Delhi, 2007, p.356.

38. Ibid, p.357.

267
Chapter- 7

SUMMARY
AND
CONCLUSION
The concept of human rights, justice and of human dignity date

back to antiquity. The institutionalization of human rights in national and

international constitutional documents is a development which has

penetrated into the international system at the end of 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 Crown's claim to power. In Europe, the

French Declaration of the Rights of Man and of the Citizen of 1789 arid

other documents, made a distinction between, on the one hand, the

rights of man and, on the other, rights of the citizen. On 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 dependent upon them.

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, Greek and Roman, with 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.

268
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 detached natural law

from religion, laying the groundwork for the secular, rationalist version

of modern natural law.

The Natural law theory ultimately led to the natural rights theory-

the theory most closely associated with modern human rights. The

chief exponent of this theory was John Locke. The author of the Two

Treaties on Civil Government proved philosophically that the individual

possesses basic human rights inherent in his personality, independent

of whether these rights are recognised or not by the ruler. Intrinsic to

the human personality the individual's 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

269
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

hand, it constitutes the violation by the ruler of his duty of the protection

of the individual.

Locke asserted that the individual's 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.

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 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

270
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

which are therefore inalienable. 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. Due to

this and other difficulties, natural rights theory became unpopular

with legal scholars.

Human Rights: A Historical Perspective

Mankind aims at creating a humane society. This is an age old

desire and its roots are found in the ancient Indian Civilization-both in

vedic literature as well as in the prophecies of Buddha and his

contemporaries. There may be differences in the approach towards

analysing the concept of humaneness in the society, but the basic

protection of the human qualities remains common denominator in all

such analyses. In the contemporary world it is known as human rights.

Human rights are those rights which are considered to be absolutely

271
essential for the survival and personality development of all human

beings.

Through the course of its development, human society has

stratified itself into various sections, sectors and levels. They may be

differentiated on the basis of caste, colour, place of birth, sex,

occupation and of physical strength. Development of a proper and

egalitarian humane society, despite differences is what human rights

aim at achieving. These basic rights, which when denied to human

beings create immense sufferings for the individuals, and tensions in

the society. Being the basis of any humane society, they have also

been referred to as Fundamental Rights, Basic Rights, Natural

Rights and above all 'Human Rights.

The concept of human rights is necessarily evolving in nature

apace with the evolution of human civilization in the context of a

charging social, political, economic and cultural milieu. It is the product

of a given social order. The idea of inalienable rights of human being is,

however, much older and has found expression in the writings of poets,

philosophers and politicians in antiquity and in the middle ages.

Since the days of the Indus Valley civilization down to this day,

the Indian Culture has been the product of synthesis of diverse cultures

and religions that came into contact with the enormous Indian sub

continent over time.

272
When resistance to religious intolerance and politico-economic

bondage began, the transition to liberal notion of freedom and equality,

particularly in relation to the use and ownership of property, the

foundations of what today are called Human Rights were laid. The

origin and development of human rights has been on two bases, the

first is the national and second is the international.

The roots for the protection of the rights of man may be traced as

far back as in the Babylonian Laws. Assyrian Laws, Smriti Laws and in

the Dharma of the Vedic period in India. Writings of Plato and other

Greek and Roman Philosophers also depict for the protection of human

rights though they had a religious foundation. The City-State of Greece

gave equal freedom of speech, equality before law, right to vote, right to

be elected to public office, right to trade and the right of access to

justice to their citizens. Similar rights were secured to the Romans by

the Jus civile of the Roman Law.

The Magna Carta granted by King John of England to the English

baron on June 15, 1215 ensured feudal rights and dues and to

guarantee that the King would not encroach upon their privileges.

The Magna Carta implies that there were laws protecting the

rights of subjects and communities which the King is, bound to observe

and if he fails to do so, be compelled to observe by force. Thus the

Magna Carta set forth the principle that the power of the King was not

273
absolute. The Magna Cartas importance lies on the interpretations of

the principles by the succeeding generations. In 1216-17, during the

reign of Johns son, Henry III, the Magna Carta was confirmed by

Parliament, and in 1297 Edward I confirmed it in a modified from. The

Magna Carta was buttressed in 1628 by the Petition of Rights, and in

1689, by the Bill of Rights, to form the platform for Parliamentary

superiority over the Crown and to give documentary authority for the

rule of laws in England.

The expression fundamental rights of man find in the declarations

and constitutional instruments of many States. For instance, the

Declaration of independence of the thirteen colonies of America in

1776. The Virginia Bill of Rights, 1776, the Constitution of the United

States of 1787 with amendments in 1789, 1865, 1869 and 1919

included rights of man.

The French Declaration of the Rights of man of 1789 led other

European countries to include the provisions in their laws for the

protection of human rights. Since the beginning of the nineteenth

century it was recognized by most of the states that human beings

possess certain rights. Worth of the human personality began to be

realised.

274
International Declarations and Conventions on Human Rights

The human rights provisions run like a golden thread through the

entire UN Charter. And much of the credit for this goes to the various

determined non-governmental organisations at the San Francisco

Conference. The concern of the United Nations for the protection and

promotion of human rights is very much evident from the fact that

United Nations Charter makes repeated reference to human rights and

fundamental freedoms. In the Preamble, the people of the United

Nations expressed their determination to reaffirm faith in fundamental

human rights, in the dignity and worth of human person, in the equal

rights of men and women and of nations large and small. The protection

of human rights is one of the main objectives of the United Nations.

It is submitted that the repeated references to human rights and

fundamental freedoms in the various provisions of the U.N. Charter and

particularly in the preamble and purposes of the Charter, creates a

binding obligation on all the States to respect, protect and promote the

human rights and fundamental freedoms. The violation of human rights

and other fundamental freedoms is no longer a matter which is

essentially within the domestic jurisdiction of the concerned member

State. In the modern world it would be quite absurd to say or assert that

massive or systematic violation of human rights or fundamental

freedoms by the State of its own nationals is a matter within its

exclusive domestic jurisdiction. In other words, the U.N. Charter, by

275
incorporating the human rights clauses in it, has internationalised the

human rights issue. Any nation or member State violating the human

rights can be said to be violating the U.N. Charter.

However, the main drawback of the United Nations was that it did

not create any independent enforcement mechanism. Nor did it define

the human rights and fundamental freedoms. Though the International

Court of Justice is an integral part of the Charter, yet there is no

provision which grants any right to the individual to file a petition

against the violation of the human rights. To some extent this drawback

has been removed by adopting the 1503 procedure as a result of the

resolution of the Economic and Social Council in 1970. But the

confidentiality aspect of the 1503 procedure has been one of the

greatest defects.

The Universal Declaration of Human Rights was the first

landmark in contemporary history in the development of the concept of

human rights. The very fact that it was adopted by a big majority and

without any direct opposition shows that it was a remarkable

achievement. One of the most important features of the Universal

Declaration of Human Rights is that it not only gave contents to the

various human rights and fundamental freedoms, but it also contained

in it all the three generations of human rights, i.e., civil and political

rights; economic, social and cultural rights and the collective rights. It

276
also set forth, in general terms, the admissible limitations. This means

that if any State imposes any restrictions which are outside the scope of

the Declaration then that would amount to violation of the Declaration.

The omission of right to protection of minorities in the Declaration is a

surprising one.

As a result of the continued efforts of the competent organs of the

United Nations, the International Covenant on Economic, Social and

Cultural Rights, the International Covenant on Civil and Political Rights

and the Optional Protocol to the Covenant on Civil and Political Rights

were adopted on 16 December 1966.

It was rightly realised that economic, social and cultural rights

cannot be ensured without economic and technical assistance,

education and planning. Therefore, taking the realistic view, the State

Parties ratifying the International Covenant on Economic, Social and

Cultural Rights, undertook to take steps to the maximum of its

available resources in order to achieve progressively the full

realisation of these rights. Since each State will invariably face different

problems and since no two states are likely to have the same available

resources, different criteria will have to be applied to different states in

determining whether they are living up to their treaty obligation. The

Covenant not merely lists the economic, social and cultural rights, but it

also describes and defines them in considerable detail and set out the

277
steps that should be taken to achieve their realisation. Power has also

been given to the States to impose limitations on the enjoyment of

these economic, social and cultural rights but such limitations on the

enjoyment of these rights have to be compatible with the economic,

social and cultural rights and for promoting the general welfare of the

people.

The measure of implementation contained in Part IV of the

Covenant is periodic reports system. The Covenant does not establish

any inter-state or individual complaint system.

It is worth noting that the Covenant on Civil and Political Rights

imposes an immediate obligation on the State Parties ratifying it, to

respect and ensure the rights it proclaims and to take whatever other

measures are required to achieve that goal. The ensuring of civil and

political rights cannot be postponed indefinitely and as such there is no

difficulty which comes in the way of their implementation. Further,

merely declaring or announcing civil and political rights of the people

without an effective remedy will be like a rope of sand which in no way

can help in achieving the obligations of the States under the Charter of

the United Nations, i.e., to promote universal respect for, and

observance of human rights and freedoms. Therefore, the Covenant

rightly contains a provision under which the State Parties undertake to

ensure all persons effective remedy against violation of their rights or

278
freedoms notwithstanding that the violation has been committed by

persons acting in an official capacity.

The implementation measure provided under the Covenant is the

Reporting Procedure. The State Parties are required to submit their

reports to the Human Rights Committee on the progress they have

made in the employment of these rights. In this way, the measures

adopted by each State Party for ensuring civil and political rights to its

people, are brought to the notice of the international community.

However, no individual petition can be entertained under the

Covenant on Civil and Political Rights. To meet this requirement,

Optional Protocol to the Covenant on Civil and Political Rights has

been enacted and the individuals of those States Parties which have

ratified it can file the individual complaint as well.

It is submitted that it is beyond any doubt that all the civil and

political rights are inherent important rights of the people which must be

ensured to them. Therefore, it is desirable that the Optional Protocol

should not remain merely as Optional but it should be ratified by all the

State Parties to the Covenant on Civil and Political Rights.

Similarly, the Second Optional Protocol to the Covenant on Civil

and Political Rights aiming at the abolition of death penalty should also

be ratified by all the State Parties to the Covenant. In India death

279
sentence is imposed under the law only in rarest of rare cases and at

different times the Courts have also shown trends for its abolition. It is,

therefore, suggested that India too should ratify this. Whatever may be

the status of the Covenants and the Optional Protocols, they remain

the most important international instruments relating to human

rights.

Reforms aimed at enhancing the effectiveness of treaties

through stronger monitoring provisions or tighter membership policies

must of course be made with great caution. To the extent that such

changes would increase the costs associated with joining treaties, it is

possible that states will respond by simply opting out of the

international human rights treaty system altogether. It is clear that

human rights treaties need not be entirely toothless in order for

countries to join them: Although they all have relatively stringent

enforcement provisions, well over 100 countries have ratified the

Optional Protocol to the Covenant on Civil and Political Rights, nearly

fifty have ratified Articles 21 and 22 to the Torture Convention, and all

the members of the Council of Europe have ratified the European

Convention on Human Rights. Indeed, it is possible that the greater

expressive value of membership in a treaty with strict monitoring would

offset some of the additional costs associated with membership.

Nonetheless, significant changes may provoke reactions that could

harm, rather than enhance, the human rights treaty system, and hence

reformers should proceed carefully.

280
in recent decades, faith in the power of international law to shape

nations' actions has led to a focus on the creation of international law

as a means to achieve human rights objectives. The treaties that have

resulted may have played a role in changing discourse and

expectations about rights, thereby improving the practices of all

nations. Yet, based on the present analysis, ratification of the treaties

by individual countries appears more likely to offset pressure for

change in human rights practices than to augment it. The solution to

this dilemma is not the abandonment of human rights treaties, but a

renewed effort to enhance the monitoring and enforcement of treaty

obligations to reduce opportunities for countries to use ratification as a

symbolic substitute for real improvements in their citizens' lives.

Indian Constitution and Human Rights

The preamble to the Constitution of India concisely sets out

quintessence of human rights which represents the aspiration of the

people, who have established the Constitution. From the preamble to

the Constitution, it is evident that India is a sovereign, socialist, secular,

democratic Republic. It contains the objectives of securing every citizen:

Justice-social, economic and political; Liberty-of thought, expression,

belief, faith and worship; Equality of status and opportunity; and to

promote among them all Fraternity-assuring the dignity of the individual

and unity and integrity of the Nation. The spirit of brotherhood assuring

the dignity of the individual and unity and integrity of the nation is sought

281
to be achieved by abolition of untouchability, abolition of titles,

prohibition of traffic in human beings and many other provisions.

It may be noted that the preamble to the Constitution of India

assures all among other things dignity of the individual. Human rights

are part and parcel of human dignity. The importance of the human

dignity as an essential aspect of the human rights is well exemplified by

its inclusion in the Universal Declaration of Human Rights as well as in

the two Covenants.

Part III of the Constitution contains a long list of Fundamental Rights

given to the people in India which represent the basic rights of the

people. Most of the human rights which find their reflection in the Indian

Constitution, such as, right to equality, right to freedoms and right to life

constitute the basic structure of the Indian Constitution and hence they

can not be abrogated even by a constitutional amendment. The

principle of reasonableness, which is an essential element of equality or

non-arbitrariness, pervades Article 14 of the Constitution, like a

brooding omnipresence. Article 14 strikes at arbitrariness in State

action and ensures fairness and equal treatment to all which is an

essential aspect of human rights.

The right to life and personal liberty is most fundamental of all basic

human rights. It has been assured to all persons in India under Article

21 of the Constitution. It can be taken away only by procedure

282
established by law. Through the dynamics of judicial mutation in the

interpretation of Article 21 of the Constitution, it has been given the

widest possible meaning. It is now well-established that law as well as

the procedure must be just, fair and reasonable before a person could

be deprived of his life or personal liberty. In other words, through judicial

interpretation, substantive due process as well as procedural due

process has become an integral part of the Indian Constitution. The

right to live does not mean merely physical existence but it includes

within its ambit the right to live with human dignity. In order to make

human rights a living reality for the people of India, the judiciary has

interpreted in Article 21 various un-enumerated rights. The essence of

all these developments has been succinctly enunciated by the Supreme

Court.

The preamble sets the human tone and temper of the Founding

Document and highlights justice, equality and the dignity of the

individual. Article 14 interdicts arbitrary treatment, discriminatory

dealings and capricious cruelty. Article 19 prescribes restrictions on free

movement unless in the interests of the general public. Article 21 after

the landmark case in Maneka Gandhi (A.I.R. 1978 S.C. 597), followed

by Sunil Batra (A.I.R. 1978 S.C. 1675) is the sanctuary of human

values, prescribes fair procedure and forbids barbarities, punitive

punishments.

283
Article 22 provides protection against arrest and detention in certain

cases. It prescribes the minimum procedure which must be followed

whenever any person is arrested or detained. The Indian Constitution

permits the enactment of preventive detention laws in certain

circumstances. However, the protections are also provided in article

22(4) to (7) of the Constitution in case a person is detained under any

preventive detention law.

Freedom from exploitation, right to freedom of religion, and

protection to the minorities by protecting their cultural and educational

rights, has also been guaranteed by the Constitution.

The bonded labour is still found in different parts of the country.

However, the steps taken by the government and the judicial attitude in

their identification, liberation and rehabilitation are on the happy note.

The talk of human rights and declaring them as fundamental rights

will be meaningless unless they can be enforced by an effective

machinery. If there is no effective remedy against the violation of

human rights, there are no effective human rights in the real sense.

Article 32 of the Constitution provides an effective remedy against the

violation of any of the fundamental rights. The Supreme Court has been

conferred with the power to issue any order, direction or writ for the

enforcement of the fundamental right. Thus, this constitutes a very

important provision of the Indian Constitution.

284
Another positive feature of the Indian Constitution is that even

during the emergency, the right to move to the Court for the

enforcement of Articles 20 and 21, which confer the basic human

rights, cannot be suspended. This safeguard is against the possibility

of misuse of the power during the period of emergency.

The Indian Constitution also contains a separate Part IV dealing

with Directive Principles of State Policy. This part of the Constitution

represents the second generation of human rights, i.e., economic,

social and cultural rights. Though these directive principles of state

policy are not enforceable yet it is the duty of all the three organs of the

state to apply them in the making of laws. They serve as the guidelines

for actions on the part of all the three organs of the State. If the state

takes any action which is contrary to the directive principles of state

policy then the same may be declared as unconstitutional. Though the

Constitution contains a specific provision for free and compulsory

education for children until they complete the age of fourteen years

and this provision was supposed to be implemented within ten years

from the commencement of the Constitution, yet it has not been

implemented in its true spirit. It is suggested that this provision should

be implemented in its true spirit and primary education must contain

topics about the human rights, because education lend dignity to a

man. It seeks to build up the personality of the pupil by assisting his

physical, intellectual, moral and emotional development. If the children

285
are made aware about the human rights then it will help in protecting

and promoting the human rights of the future generation.

It is worth noting that the Indian Constitution also put certain

fundamental duties on the citizens of the country. The basic aim of

these duties is to protect the human rights of the people and to enable

other people to enjoy the benefit of Part III of the Constitution.

India can feel proud of its independent judicial system. In fact, the

independence of judiciary is the live wire of our judicial system. The

Indian Judiciary, particularly the Apex Court, has shown a lot of judicial

activism and it has been performing positive and creative function in the

securing and promoting human rights to the people. The Supreme Court

and the High Courts can pass any order, direction or issue writ of any

kind in appropriate cases. The Supreme Court can pass an order or

decree which may be necessary for doing complete justice in any cause

or matter before it. The judiciary has used these powers and interpreted

the various constitutional provisions so as to ensure the protection of

human rights to the people.

Human Rights and India

The preamble of our Constitution affirms our belief in the dignity

of individual and integrity of the Nation. The rights of human beings

have a central place in our efforts to build a polity sustained by law. Our

constitution guarantees fundamental rights to all citizens right to equality

286
and freedom, right to exploitation, freedom of religion, cultural and

educational rights and right to constitutional remedies. The observance

of these rights can strengthen our democracy-the part and parcel of

human rights.

Progress does not mean the mere possession of wealth by the

elite but by the welfare of the masses. The Indians, always nurture a

vision of humane society.

The Constitution of the Republic of India, which came into force

on 26th January, 1950 is an eloquent testimony of the nations deep

commitment to human rights. The Preamble to the Constitution pledges

to secure to all the citizens of India, social, economic and political

justice.

The establishment of a democratic and secular political system

and the reconstruction and modernizing of society and the principles of

egalitarian and respect for Indias cultural diversity were central to the

vision of Independence struggle. In 1931, the Indian National Congress

adopted a resolution on Fundamental Rights and Economic

Programme. This resolution expressed solidarity with anti-colonial

struggles and movements of social progress and democracy in other

countries and with the victims of fascist agrarian.

287
In recent years, however the question of human rights has

assumed global significance, particularly after the end of the cold war

and thereby democratization of world order. A genuine concern is

witnessed in favour of the enforcement of human rights norms, and also

the establishment of various governmental and non-governmental

agencies for the promotion and protection of such norms. In fact,

prescription of human rights norms find expression when it is enforced

by an independent, competent and impartial authority, though upholding

and promoting human rights is a responsibility and of every individual,

every group, every institution and every organ in the society, the

practical task of protection and promotion of human rights is primarily a

national one because state is known as the sole guardian, guaranteer

and protector of human rights. Towards this end every country has its

proper institutions supervising the relation between individuals and the

authority.

In recent years many countries have established national

institutions with the sole purpose of protecting and promoting human

rights; the specific tasks of such institutions may vary considerably from

country to country but they share a common purpose, and for this

reason they are referred to collectively as National institutions for the

promotion and protection of human rights. These institutions have a

very unique role in translating international human rights standards as

mentioned in the Universal Declaration of Human Rights and other

28S
international treaties on human rights and giving them an indigenous

favour and acceptability without diluting their essential universal

characteristics.

India is bestowed with all principles and institutions of democratic

governance and is also a signatory to the UDHR and other international

covenants on human rights, which fortify Indias commitment to and

respect for human rights. Recently, it has taken a significant initiative

for the protection and promotion of human rights by enacting the

protection of Human Rights Act, 1993, which gives a concrete shape to

the National Human Rights Commission. The Indian Government has

constituted a National Human Rights Commission, under the

Chairmanship of Mr. Justice Ranganath Misra. This is a welcome step

to prevent the infringement of human rights by an authority, including

government. The Commission has the power to inquire suo-motu or on

a complaint of human rights violation or abetment and negligence in

prevention of such violation by a public servant. India is a vast country,

the Commission at the district level or State level should work under the

supervision of the National Human Rights Commission.

The National Human Rights Commission is playing a significant

role in creating mass-awareness and building mass-opinion against the

human rights violations in India. National Human Rights Commission

which sets a hallmark in the Indian civil liberties movement was not a

289
sudden development, rather than its necessity was felt on various

grounds. It is hoped that the divine gift of an innocent smile may be

restored to every human face.

Protective Mechanisms of Human Rights

The announcement of the creation of the Commission and the

adoption of the Protection of Human Rights Act, 1993 which contains

the provisions on which it is based, was initially received with mixed

reviews. While many had an open mind on how the Commission would

fare and were prepared to withhold judgment, a significant number-and

among them many who were strongly committed to the promotion and

protection of human rights-felt that the Statute was fatally flawed, that

the Commission would be a toothless tiger, that it would function as a

post office and that, as a government body it would, in the final analysis,

invariably choose to provide the seal of good-housekeeping to

governmental wrong-doing rather than ensure the better protection of

human rights in the country-which was the avowed intention of the

Protection of Human Rights Act, 1993, at least as stated in its Objects

and Reasons. Some went so far as to argue that the establishment of

the Commission would actually setback the movement for human rights

in the country, as the Commission would distract activists from fighting

the real fight for rights, while offering them instead a placable, a

spurious cure connected for political and psychological reasons with no

real capacity to heal or remedy.

290
The Commission, therefore, had a great deal of friendly fire to

deal with and much to disprove to the critics and skeptics alike. But far

more importantly, it had much to prove to itself - and to the people of

India, many of whom chose to repose their trust in it, the number of

those addressing complaints to the Commission increasing

exponentially with each passing year. By way of illustration: in the first

six months of the Commissions existence, October 1993- 31 March

1994, the Commission received 486 complaints seeking its assistance

for the redressal of grievances. This number is growing year by year.

No other national institution in the country, having a statutory basis, has

functions of the diversity or order of magnitude of the National Human

Rights Commission. No other national institution for human rights in the

world has a remotely comparable case-load.

For the Commission, the defence of human rights has become

the defence of democracy itself, a democracy that is inclusive in

character and caring in respect of its most vulnerable citizens. That

democracy, in turn, has enabled the Commission to function without

fear or hesitation and to draw attention to those acts of the State and its

agents that can or do result in the violation of human rights-whether

through acts of commission, omission, abetment or negligence. In the

past 19 years, in the fulfillment of its duties the Commission has

frequently had to take positions at variance with those of the Central

and State Governments even on matters of great sensitivity to the

country. It is a tribute to the strength and resilience of the Indian polity

291
that the Commission has never lacked the democratic space in which to

function or to express its views as it thought fit and appropriate. Those

views have been listened to with respect, even if not always with

agreement. But at all times the dialogue for the better protection of

human rights has been sustained, involving all elements of the State

and civil society. In the process, the Commission has evolved from a

body whose establishment was initially viewed with unconcealed

skepticism, to an instrument of good governance, on which increasing

reliance is being placed by the citizens of India to ensure the defence of

their rights and the verities of the Constitution of their Republic.

The NHRCs suffer from different limitations that hinder their

independent functioning. It is in this context that the internal reforms

initiated by different NHRCs through their recommendation to the

particular government assume significance. These reforms may be in

the nature of granting more enforcement powers to the commissions so

that their recommendations are taken seriously. The NHRCs are

undoubtedly unique institutions that are envisaged to perform important

roles in the promotion and protection of human rights. These have

become increasingly popular in recent times in most parts of the world

and there have been conscious efforts on the part of UN to promote

them in every country. These are indeed appreciable, but it needs to be

remembered that the nature of NHRCs is such that they essentially play

a catalytic role when other basic institutions of democracy are

functioning in an appropriate manner. The NHRCs are truly successful

292
and vibrant to create a space within democracy for the civil society to

perform its best possible role. This role of the NHRCs should not be

confused, equated or even compared with the role performed by the

legislature, executive, judiciary, press, or even for that matter NGOs.

The NHRCs have grown in different countries, jurisdictions and regions

with different mandates and functions depending upon the enacting

statute and the foundationaj-pri^i^ipjes. There have been international

initiatives in the direction of maintaining universally accepted standards

for NHRCs in the form of Paris Principles. Much as they are very useful

and can promote an effective institutional environment within and

without the NHRCs, the nations must have enough flexibility and liberty

to have their own models for NHRCs without, however, affecting ihe
principles of independent lirtcf effective enforcement of human rights

norms within the country. Another important objective that could be best

fulfilled by NHRCs is that relating to their contribution in promoting

international human rights norms in the national context. There is no

other national institution, including the judiciary that is as well suited as

the NHRC to promote these international human rights norms so as to

lobby for amendments in national legislation as well as new laws, rules

and regulation in consonance with the international treaty norms relating

to human rights.

The NHRCs need to function in a manner that obtains

extraordinary credibility from the institutions itself and whatever

legitimacy they acquire is through their actions and the functions that

293
are performed by its members. This moral legitimacy needs to be built

upon the institutional framework upon which NHRCs exist and would

eventually help in promoting an effective human rights community

involving partners from all the sectors within a society. It is indeed a

very difficult role and a lot will depend upon the members and staff of

the NHRC in inculcating a sense of purpose and belongingness to the

human rights fraternity.


- .

. :* t

Human growth, welfare and development are the basic aims of

human rights. The people in a particular country really enjoy the

human rights only,. when, they are vigilant of their rights. The

enjoyment of rights by the citizens also depends on the nature of


./.I 5f '
.1

government in which they are living. In a denlocfatic system, rights are


*r -
very important for perfect civil life and integrated/social progress. In

authoritarian governments, the enjoyment of rights is infringed by the

decrees or orders of the rulers. In fact, the revolts against imperialism,

dictatorship and totalitarianism have been struggles for the protection

of human rights. The movements for the proper enjoyment of human

rights still continuing and will continue in future, until the under

privileged sections of the society enjoys basic human rights without

any discrimination.

294
BIBLIOGRAPHY
Abaikkalam Subbaian, Human Rights Philosophy Promotion

Protection and Perspectives, The Associative Publishers Ambala,

2006.

Agarwal, H.O. Human Rights, Central Law Publications, Allahabad,

2008.

Alston, Philip, ed. Human Rights Law, New York University Press, New

York, 1996.

Balam Singh Aswal, Human Rights: Select International Instruments,

Rawath Publications, New Delhi, 2007.

Baxi, Upendra, ed. Inhuman Wrongs and Human Rights:

Unconventional Essays, Har-Anand Publications, New Delhi: 1994.

Beetham, David, ed. Politics and Human Rights, Mass.: Blackwell

Publishers, Cambridge, 1955.

Berger T.R. Fragile Freedoms: Human Rights and Dissent in Cananda.

Vancouver, Irwan, 1982.

Bishnu Satapathy and Shaheed Bhagat Singh, Human Rights of

Marginalised Groups: Dalits, Adivasis, Women, in Tapan Biswal

Human Rights, Gender and Environment, Viva Books, New Delhi,

2006.

Black W.W. Employment Equality: A Systemic Approach, Human

Rights Research and Education Centre, Ottawa, 1985.

295
Bohlman, Otto, Human Rights Watch World Report 1998, Yale

University Press, New Haven, 1998.

Boven, Theo C. Van, United Nations Policies and Strategies : Global

Perspective? in B.G. Ramcharan (Ed.) Human Rights : Thirty

Years After the Universal Declaration, Martinus Nijhoff, London,

1979.

Brown Peter G. and Douglas Maclean, eds. Human Rights and US

Foreign Policy, Lexington Books, Lexington, 1979.

Buergenthal, Thomas, International Human Rights in Nutshell, Second

ed. West Publishing, St. Paul, Minn, 1995.

Chakraborty, M. Human Rights and Refugees, Deep & Deep

Publications Pvt. Ltd., New Delhi, 2001.

De Schutter, Olivier, Transnational Corporation and Human Rights,

Hart Publishing Ltd., New York, 2006.

Deshta, S., Deshta, K. Fundamental Human Rights, Deep & Deep

Publications Pvt. Ltd., New Delhi, 2003.

Dine, Janet, International trade and Human Rights,. Cambridge

University Press, Cambridge, 2005.

Diwan, P. and Diwan, P. Human Rights and the Law-Universal and

Indian, Deep & Deep Publications Pvt. Ltd., New Delhi, 1998.

296
Donnelly Jack. The Concept of Human Rights, St. Martins, New York,

1985.

Eide, Asbjorn, et al, eds. The Universal Declaration of Human Rights: A

Commentary, University of Scandinavia Press North America, New

York, 1992.

Falk Richard. Human Rights and State Sovereignty. Holmes and Meier,

New York, 1981.

Forsythe David P. Human Rights and World Politics, University of

Nebraska Press, Lincoln, 1983.

Gearty, Conor and Adam Tomkins, eds. Understanding Human Rights,

Mansell, New York, 1996.

Gibson, John S. Dictionary of International Human Rights Law,

Scarecrow Press, Lanham, 1996.

Hasan, Ashrafui . Human Rights Dilemmas in Contemporary Times:

Issues & Answers, Austin & Winfield Publishers, Bethesda, 1998.

Howard Rhoda E. Human Rights in Commonwealth Africa, N.J.

Rowman and Littlefield, Totowa, 1986.

Humana, Charles. World Human Rights Guide, Oxford University Press,

New York, 1992.

Hurst, Hannum, ed. Guide to International Human Rights Practice,

University of Pennsylvania Press, Philadelphia, 1994.

297
Ishay, Micheline R,, ed. The Human Rights Reader: Major Political

Writings, Essays, Speeches, and Documents from the Bible to

the Present, Routledge, New York and London 2007.

Keene J. Human Rights in Ontario, Carswell, Toronto, 1983.

Konvitz, Milton, ed. Judaism and Human Rights, W.W.Norton and Co,

New York, 1972.

Lampe, Gerlad E. Justice and Human Rights in Islamic Law,

International Law Institute, Washington, D.C, 1997.

Liilich, Richard, B : Civil Rights in Theodor Meron (Ed.), Human Rights

International : Law Legal and Policy Issues, Clarendon Press,

Oxford, 1984.

Magill, Frank N. Great Events from History, II, Human Rights Series,

Volume 2,3,4,5. Salem Press, California, 1992.

Maxwell, John A., and James J. Friedberg, eds. Human Rights in

Western Civilisation: 1600 to the President, Kendall/Hunt,

Dubuque, Iowa, 1994.

McNeill, William, The Rise of the West: A History of the Human

Community, The University of Chicago Press, Chicago, 1963.

Mehta, P.L., Verma, N. Human Rights Under the Indian Constitution,

Deep & Deep Publications Pvt. Ltd., New Delhi, 1999.

Meron, Theodor, ed. Human Rights in International Law: Legal and

Policy Issues, Clarendon Press, Oxford, 1984.

298
Mohanty, J. Human Rights Education, Deep & Deep Publications Pvt.

Ltd., New Delhi, 2003.

Naseema, C. Human Rights Education: Conceptual and Pedagogical

Aspects, Kanishka Publishers, New Delhi, 2003.

Newman, Frank C., and David S. Weissbrodt, International Human

Rights: Law Policy, and Process, Second ed. Anderson

Publishing, Cincinnati, Ohio, 1996.

Perry, Michael J. The Idea of Human Rights, Oxford University Press,

Oxford, 1998.

Poliis Adamantia and Peter Schwab, eds. Human Rights Cultural and

Ideological Perspectives, Praeger New York, 1980.

Poliis Adamantia and Peter Schwab, eds. Human Rights Cultural and

Ideological Perspectives, Praeger Publishers, New York, 1979.

Poulter, Sebastian. Ethnicity, Law & Human Rights, Oxford University

Press, Oxford, 1998.

Ratner, Steven R., and Jason S. Abrams. Accountability for Human

Rights Atrocities in International Law, Oxford University Press,

Oxford, 1998.

Sanjay Pandey Institutional Approach to Human Rights Protection: Indian

experience in V.B.Malleswari (Ed) Human Rights: International

Perspectives, The ICFAI University Press, Hyderabad, 2007.

299
Sehgal, B.P.S. Human Rights in India: Problems and Perspectives,

Deep & Deep Publications Pvt. Ltd., New Delhi, 2004.

Shashi K. Sharma, Paramjith, S.Jaswal, Devendra Singh, Protection and

Promotion of Human Rights in India, Central Law Publication, 107

Darbanga castle, Allahabad, 2010.

Sharma, G. Human Rights and Legal Remedies, Deep & Deep

Publications Pvt. Ltd., New Delhi, 2003.

Shestack, Jerome, J.: The Jurisprudence of Human Rights" in Theodor

Meron (Ed.) Human Rights in International Law: Legal and

Policy Issues, 69-113, Claredon Press, Oxford, 1984.

Shweta Mehara, Human Rights : A Gandhian presepective, Sarup and

Sons, New Delhi-2, 2006.

Singh, S. Legal Aid: Human Rights to Equality, Deep & Deep

Publications Pvt. Ltd., New Delhi, 1998.

Smith L., G. Cote-Harper R. Elliot, and M.Seydegart. Righting the

Balance: Canadas New Equality Rights, Canadian Human Rights

Reporter, Saskatoon and Vancouver, 1986.'

Snider, Don M., and Stuart J. Schwartzstein, eds. The United Nations at

Fifty: Sovereignty, Peacekeepmg, and Human Rights, Centre for

Strategic and International Studies, Washington, D.C. 1995.

300
Steiner, Henry, and Philip Alston, International Human Rights in

Context, Law, Politics and Morals, Oxford University Press,

Oxford, 1996.

Subbian, A. Human Rights Complaints Systems: International and

Regional, Deep & Deep Publications Pvt. Ltd., New Delhi, 2003.

Thompson Kenneth W., ed The Moral Imperatives of Human Rights : A

World Survey, University Press of America, Washington, D.C, 1980.

Tobin, Jack. Guide to Human Rights Research, Harvard Law School,

Human Rights Program, Cambridge, 1994.

Vasak Karel and Philip Alston, eds. The International Dimensions of

Human Rights, Greenwood Press, Westport, 1982.

ARTICLES

Anthony DAmato, The Concept of Human Rights in International Law

Columbia Law Review, 82,1982.

Baxi Upendra Taking Suffering Seriously: Social Action Litigation in the

Supreme Court of India, Delhi Law Review, Vol.8, No.91, 1979,

pp.102-115.

Bhagwati, P.N. Legal Aid in India in Dr L.M. Singhvi and Others (Eds.)

Law and Common Wealth, 206, National, Delhi, 1971, pp.18-26.

Biradara, M.B. The Universal Declaration of Human Rights Karnataka

Law Journal, Voi.2, No.8, January, 2008, pp25-32.

301
Blacksheild, A.R. Fundamental Rights and the Economic Viability of the

Indian Nation, Journal of Indian Law Institute, 1968, pp.1-120.

Catarina de Albuquerque Chronicle of an Announced Birth: The Coming

into Life of the Optional Protocol to the international Covenant on

Economic, Social and Cultural Rights-The Missing Piece of the

international Bill of Human Rights Human Rights Quarterly,

Vol.32, 2010, pp.144-186.

Chandrasekhara Menon T. Protection of Human Rights in India Cochin

Law University Law Review, Vol.24, Nos.1-4, 2000, pp.1-8.

Chaudhry D.R., Human rights- Rhetoric and Reality Mainstream, Vol.

XLVIII, No. 25, June 11-17, 2010, pp.9-12.

Chhabra, K.S. Legal Aid in Criminal Proceedings Journal of Indian Law

Institute, 1983, pp. 871-879.

Danny Nicol Original Intent and the European Convention on Human

Rights Public Law, Spring, 2005, pp.152-172.

Dubey R. B. Poverty and Human Rights in India Central India Law

Quarterly, Vol. XV, 2002, pp.339-342.

Gledhill, A. Life and Liberty in Republican India Journal of Indian Law

Institute, 1960, pp. 21-41.

Haragopal G. and Jagannatham B. Terrorism and Human Rights Indian

Experience with Repressive Laws Economic and Political

Weekly, Vol. XLIV, No. 8, July 11, 2009, pp.76-85.

302
Hingorani, R.C. Human Rights in Developing Countries, Indian Bar

Review, Vol. X, 1983.

Hoe Wim Trade and Human Rights: Whats at Issue? Journal of World

Trade, Vol.35, No.2, May 2001, pp.275-300.

Howard Rhoda E. and Jack Donnelly. Human Dignity, Human Rights and

Political Regimes American Political Science Review, September

1986, Vol, 51, No.63, pp.15-22.

Jain, S.N. Money, Compensation For Administrative Wrongs Through

Article 32 Journal of Indian Law Institute, 118-26,1983.

Jane Wright Interpreting Section 2 of the Human flights Act 1998: Towards

an indigenous Jurisprudence of Human Rights Public Law, Vol.3,

July, 2009, pp.595-616.

Jaswal, P.S. and Jaswal Nishtha, Delay in Execution of Death Sentence:

A Study of Judicial Behaviour, , Social Defence, Vol. XXI, 1986, pp.

30-35.

Josht K.G. Impact of International Law on Human Rights in India Indian

Bar Review, Vol. XXXIV, Nos. 1-4, 2007, pp.31-50.

Maruthi T.R. International Human Rights Karnataka Law Journal, Vol.4,

No.15, 2007, pp.49-59.

McDougal, M.S. and Gerhard, Bebr, Human Rights in the United Nations

American Journal of International Law, 1964, pp. 58-63.

303
Noorani, A.G. Civil Liberties: Indias Report to UN on Human Rights

Economic and Political Weekly, Vol. XIX, 1984, pp.91-105.

Paige Arthur How "Transitions" Reshaped Human Rights: A Conceptual

History of Transitional justice Human Rights Quarterly, Vol. 31 ,

2009, pp. 321-367 .

Pavani, Parveen. Indian Supreme Court and Worker Oriented Industrial

Jurisprudence, Journal of Indian Law Institute, 1985, Vol.27,

1985, pp.128-160.

Prasad Rao C.R. The NGO Linkage of National Human Rights

Commission, Indian Journal of Public Administration, Vol.LII,

No.2, April-June, 2006, pp.175-182.

Robert R. and Goldman K. History and Action: The Inter-American

Human Rights System and the Role of the Inter-American

Commission on Human Rights Human Rights Quarterly, Vol. 31,

2009, pp. 856-887

Roy Kadichini Enforcing Human Rights in India" Cochin Law University

Law Review, 2001, pp.363-373.

Schwelb, Egon, International Conventions on Human Rights Indian

Council Law Quarterly, Vol. 9, 1963, pp.9-18.

Sharma M.L. Human Rights: A Gandhian Perspective, Gandhi Marg,

Vol.23, No.1, April-June 2001, pp.87-97.

304
Sheela Reddy C. Globalisation - A Human Right Perspective, World

Affairs, Vol.12, No.2, Summer 2008, pp.84-95.

Singh, Chhatrapati, Right to Life: Legal Activism or Legal Escapism 28

Journal of Indian Law Institute, 1956, pp.249-57.

Sona Dixit and Arun Kumar Dixit, Gandhi and Human Rights, Yojana,

Vol.42, No.6, October 2004, pp.5-7.

305
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