Professional Documents
Culture Documents
Thesis
Submitted By
RADHtt KRISHNA
Doctor of Philosophy
In
Political Science
NOVEMBER-2011
DEDICATED
TO MY BELOVED
PARENTS
Smt. NARASAMMA,
Sri. OBANNA.
DECLARATION
in Political Science, and this has not been previously submitted for the
ANANTAPUR,
CERTIFICATE
NOVEMBER, 11 , 2011.
CONTENTS
TITLES PAGE NOs
ACKNOWLEDGEMENTS Ml
LIST OF ABBREVIATIONS III-IV
BIBLIOGRAPHY 295-307
ACKNOWLEDGEMENTS
perennial inspiration to me for undertaking this research and also for his
competing of my thesis.
i
I am also thankful to my friends for their help and support in my
studies.
completion of my task.
Sai Charan, and Kum. Sai Teja who has been guided and encouraged
(RADHA KRISHNA)
ii
LIST OF ABBREVIATIONS
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
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.
suddenly disappear and are never seen again. This vanishing act
have created more deaths and more human misery than have all the
have reached a stage when the only threat to man, left to be met, is
reads, The world's most dangerous animal. Inside the cage there is no
1
It is difficult to measure whether repression worldwide is
There are two gleams of hope. The concept of human rights the
consciousness with speed and strength, and has become one of the
great driving forces of our time. But one must be reconciled to the
begun to work. More and more people the world over realize, and
solidarity among the nations of the world who believe in freedom. The
2
genuinely worldwide. There is, as Jerome Shestack observed, "a moral
So much has been said about human rights lately that the term
and complex. Simple in the sense that one can argue that human rights
rights.2
rights. Keeping this aspect in mind one may conclude that human
rights are the basic rights of a person which are essential for the
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
the worth and dignity of the individual, and accords highest respect to
3
human personality without any discrimination on grounds of caste,
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
its friends and foes alike. India has always welcomed and
accommodated foreigners from alien societies. The very fact that Indian
day philosophy of human rights from time past, which can be evidenced
No one is superior or inferior. All are brother. All should strive for
4
appeal and Indian culture had tried to be so comprehensive as to suit
caste.
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
needs; and threats to the right to be human arising from civil society are
human.
Liberty excluded the backward nations, women and children from the
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
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
equal freedom. The account of the good enables the parties to work out
ends should be regulative in their rational plans of life. Until the basic
the claims of the least favoured as seen from the constitutional and
place."6
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
6
material means and amenities of office. The reasons for this state of
rises (as indicated by the index of primary goods the less favoured can
upon the right to pursue our spiritual and cultural interests asserts itself.
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
result could be a growing desire for material abundance all the same.
7
productivity and improving economic efficiency. And these objectives
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
not affected.
with the idea of pure procedural justice. Of course doing this assumes
inequalities so that excusable envy does not arise. Now this way of
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
Thus, not everyone can have the highest status, and to improve one
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
of this primary good, the parties in the original position surely do not
make the good of social union difficult if not impossible to achieve. If the
the same. But an equal division of all primary goods is irrational in view
liberties that can indeed be made equal, defining the same status for
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.
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
the difference principle, this index can allow for the effects of excusable
envy; the expectations of the less advantaged are lower the more
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
position should it ever occur to them to question it; and since all may
in thought the circumstances that gave rise to it. The basic structure is
suppose that the social order should match principles which they would
models of human rights thought and action. It often gets translated into
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)
sounds like empty rhetoric to people who live in economic chains below
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
full employment, vacations with pay, maternity leave, and free medical
specious claim that even totalitarian States respect human rights. They
of men are not only against the government but against the people
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
but whether the weak are helped by the strong. "The ultimate measure
how it treats those who are near the bottom of its human heap.8
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
14
continuing exercises of public power. As there is no assurance that
medium through which one can strike and maintain a balance between
present organization of the society, the state has the fundamental task
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
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
refine human life in all parts of the world. Without getting involved
been born a human being. With the individual as their point of reference
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
16
undertaking.11 According to A.A.Said, Human rights are concerned
have stated that human rights are those rights, which are considered to
capsule for those attributes; and those appeals for a deliberate action to
authority and indeed to the rest of the society. If one has a human right,
other part of the society, do or refrain from doing something that affects
17
Throughout history, every society has sought to define the
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
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,
but Gross National Poverty (the other GNP) has also simultaneously
impoverishing societies. Undoubtedly, the reasons for all, these are far
mean this: people will be given the right to be and remain human. Total
sub-human that is, when they perforce have to surrender even those
19
which biological entities are bestowed with the dignity of being called
survival.15
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,
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
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
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
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
from the very nature of man. The concept of natural rights found place
21
of 1689, Declaration of Rights (Virginia) of 1779 and the Declaration of
stated that, all men are by nature equally free and independent and
have certain inherent natural rights of which when they enter a society,
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
law of nature itself is not precisely clear. Different jurists have given
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
human rights is the social utility. The theory maintains that what
22
total sum of his happiness and that what conforms to the utility (or the
human rights, those rights are considered genuine human rights which
human happiness.
rights.
It is to be noted that the basis of human rights lies in the fact that
life in a dignified manner and also because they bring happiness to him.
human rights.18
23
Classification of Human Rights
life - social, economic, political, moral and civil; and secondly, from the
1. Natural Rights
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
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
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
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
detention.21
4. Legal 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
civil and political rights. These rights provide the basis for the fulfillment
not possible and they are, therefore, considered very essential for the
25
free and progressive life of man. Civil and political rights, however,
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
however, are bestowed by the State. The State is not bound to meet
assistance during old age and sickness, right to health care, right to
special care during childhood and during motherhood are some of the
important and which are less. The representatives of some states had
26
been asserting that civil and political rights are more important than
establish the fact that the ancient Indian had a definite knowledge of
The Indian culture has been the product of the assimilation of diverse
cultures and religions that came into contact in the enormous Indian
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
a citizen of the State and in that capacity he had both rights and
doctrine par excellence, dating back to the third century B.C. Both
In ancient times the first and foremost duty of the King was to
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
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
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,
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
29
persuasions, from towns, cities, villages. Our independence Movement
people of India.
place in the post-world war II period, ever since the adoption of the
30
Objectives
objectives:
Human Rights.
2. To trace the origin and development of Human Rights over the ages.
world.
Methodology
The source material has been collected from both primary and
purposefully.
31
Chapterisation
human rights and also contains theoretical frame work of the study.
which are functioning for the protection of human rights and their
32
REFERENCES
1973.p.21.
5. Ibid, p.16.
33
13. Human Rights Manual, Department of Foreign Affairs and Trade,
20. Ibid.p.12.
21. Ibid.p.16
24. Suptadas, Arjun Dev and Indira Arjun Dev, Human Rights: A
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
General Assembly, which are not legally binding although they may be
law.
global instruments, to which any state in the world can be a party, and
of the world.
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
69
mechanisms; under most, however (e.g. the UN conventions), individual
the last several decades. It has moved from a body of laws governing
International Declarations
2008).
70
International Conventions
(ICESCR)
(ICERD)
Women (CEDAW)
Genocide
Enforced Disappearance
71
Regional Conventions: Africa
(FCNM)
72
Declaration of the Rights of the Child
Welfare Charter.
Confederation.
The International Save the Children Union (SCIU) merged into the
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
1. The child must be given the means requisite for its normal
73
2. The child that is hungry must be fed, the child that is sick must be
child must be reclaimed, and the orphan and the waif must be
Declaration arose directly from the experience of the Second World War
and represents the first global expression of rights to which all human
International Covenant on Civil and Political Rights and its two Optional
74
Protocols. In 1966 the General Assembly adopted the two detailed
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.
rights had been building throughout World War II. In his 1941 State of
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
for, and observance of, human rights and fundamental freedoms for all
knowledge around the world after World War II, the consensus within
the world community was that the United Nations Charter did not
75
specified the rights of individuals was necessary to give effect to the
Saudi Arabia).
The seven paragraphs of the preamble, setting out the reasons for 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
76
the rights of the individual in civil and political society. The third column
column (Articles 22-27) sets out social, economic and cultural rights. In
Cassin's model, the last three articles of the Declaration provide the
concerned with the duty of the individual to society and the prohibition of
Citizen Garry Davis and his Conseil de Solidarity who had interrupted a
telling him, from Professor Einstein's point of view, that the United
Nations has not yet achieved peace. The United Nations, of course, is
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
worldwide international government. All who would join him would learn
that they had no nationality and, therefore, not being bothered by any
78
and observance of the human rights set out in the Declaration. Eleanor
than as a treaty, because she believed that it would have the same kind
correct. Even though not formally legally binding, the Declaration has
treaties and national laws and international, regional, national and sub
While not a treaty itself, the Declaration was explicitly adopted for
79
rights covenants, the International Covenant on Civil and Political Rights
and individual human beings who appeal to its principles for the
than a year.
Colombia, in April 1948, the same meeting that adopted the Charter of
80
together with additional economic, social, and cultural rights due to
duties.
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
principal aim the protection of the essential rights of man and the
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
81
protection of the rights of man should be the principal guide of an
and juridical conditions, not without a recognition on their part that they
its sole source. CDHRI declares its purpose to be general guidance for
Member States [of the OIC] in the Field of human rights. This
of 1948.
Background
for its perceived failure to take into account the cultural and religious
82
context of non-Western countries. The CDHRI was adopted on August
of human rights.
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
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
proven through a trial in which he [the defendant] shall be given all the
emergency laws that would provide executive authority for such actions.
public office can only be exercised in accordance with the Sharia, which
84
exploitation and colonialism. The CDHRI declares the rule of law,
establishing equality and justice for all. The CDHRI also guarantees all
guarantee for enhancing such dignity along the path to human integrity.
It also places the responsibility for defending those rights upon the
entire Ummah.
September 2007.
legal norms and it reflects the commitment of the UN's member states
85
undoubtedly be a significant tool towards eliminating human rights
participation in all matters that concern them and their right to remain
development.13
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
86
respectively. The abstaining countries were Azerbaijan, Bangladesh,
absent from the vote. Colombia and Samoa have since endorsed the
document.
statements remain open for signatures and none of them has been
breaking the taboo against speaking about the rights in the United
87
pedophilia and other deplorable acts and curtail freedom of religious
identity.15
88
Following meetings between Tin and French Minister of Human
Rights and Foreign Affairs Rama Yade in early 2008, Yade announced
concern.
because there was not enough support for the adoption of an official
2008, and was the first declaration concerning gay rights read in the
General Assembly.
Conventions
international level.
on December 16, 1966, and in force from March 23, 1976. It commits its
89
(among others) the right of self-determination; the right to life; the
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
equality before the law; the right of every child to such measures of
family, society and the State; the right of every citizen to vote and to be
equal suffrage and shall be held by secret ballot; the rights of ethnic,
90
The ICCPR is part of the International Bill of Human Rights, along
States must report initially one year after acceding to the Covenant and
then whenever the Committee requests (usually every four years). The
The ICCPR has its roots in the same process that led to the
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
91
Drafting continued on the convention, but there remained
two separate covenants, one to contain civil and political rights and the
other to contain economic, social and cultural rights. The two covenants
Economic, Social and Cultural Rights. The drafts were presented to the
status, pursue their economic, social and cultural goals, and manage
92
trust territories (colonies) to encourage and respect their self-
determination.
effective legal remedy for any violation of those rights. It also requires
social origin, property, birth or other status, and to ensure that they are
public emergency which threatens the life of the nation, and even then
rights to:
physical integrity, in the form of the right to life and freedom from
(Article 9);
93
recognition as a person before the law (Articles 10, 11, 14, 15,
and 16);
27).
of the Human Rights Committee and the reporting and monitoring of the
inherent right of all peoples to enjoy and utilize fully and freely their
94
Part 6 (Articles 48 - 53) governs ratification, entry into force, and
Optional protocols
use of death penalty for the most serious crimes of a military nature,
racial group over any other racial group or groups and committed with
95
On 30 November 1973, the United Nations General Assembly
oppressing them.20
Background
The term apartheid, from Afrikaans for apartness, was the official
after 1948. Complaints about the system were brought to the United
unjust and racist and many decided that a formal legal framework was
government.
96
Assembly of the United Nations agreed on the text of the International
parties.21
with a scope that went far beyond South Africa. While the crime of
Africa after 1948, the term more generally refers to racially based
97
The International Criminal Court provides for individual criminal
apartheid.
2002, and can only prosecute crimes committed on or after that date.
The Court can generally only exercise jurisdiction in cases where the
national courts with universal jurisdiction over the same offenses and do
of July 2008, 106 countries are states parties (with Suriname and Cook
signed but not yet ratified the treaty. However, many of the world's most
and Pakistan are not parties to the Court and therefore are not subject
98
1976. It commits its parties to work toward the granting of economic,
along with the Universal Declaration of Human Rights (UDHR) and the
Rights. The Covenant follows the structure of the UDHR and ICCPR,
status, pursue their economic, social and cultural goals, and manage
determination.
99
discrimination of any kind as to race, colour, sex, language, religion,
with the nature of the rights, and only for the purpose of promoting the
Part 3 (Articles 6-15) lists the rights themselves. These include rights
to
work, under just and favourable conditions, with the right to form
(Article 11);
human personality and the sense of its dignity, and enable all
100
Many of these rights include specific actions which must be
Covenant and the steps taken by the parties to implement it. It also
allows the monitoring body - originally the United Nations Economic and
acknowledges that some of the rights (for example, the right to health)
The principle differs from that of the ICCPR, which obliges parties
to respect and to ensure to all individuals within its territory and subject
101
that goal. The Committee on Economic, Social and Cultural Rights also
resources are highly constrained, this should include the use of targeted
are already required under other human rights instruments, such as the
ICCPR.
Optional Protocol
individuals.
102
2009, and as of July 2010 has been signed by 32 parties and ratified by
and sets out the rights of individuals who are granted asylum and the
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
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.
103
It is widely accepted that the prohibition of forcible return is part of
customary international law. This means that even States that are not
States which had previously ratified the 1951 Convention and chosen to
104
Convention on the Rights of the Child
rights treaty setting out the civil, political, economic, social, and cultural
around the world. Once a year, the Committee submits a report to the
hears a statement from the CRC Chair, and the Assembly adopts a
required to report to, and appear before, the United Nations Committee
105
September 1990, after it was ratified by the required number of nations.
member of the United Nations except Somalia and the United States.
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
children have the right to express their opinions and to have those
106
Although a law in October 2006 banned child labor in hotels,
the number of child laborers in the country range from the government's
human rights instrument, under the review of the United Nations, that
prevent torture within their borders, and forbids states to return people
the 20th state party, it came into force on 26 June 1987. Now 26th June
107
is recognised as the International Day in Support of Torture Victims, in
to the treaty, and another ten countries have signed but not ratified it.
The Covenant follows the structure of the UDHR, ICCPR and the
territory under their jurisdiction (Article 2). These include ensuring that
also ban the use of evidence produced by torture in their courts (Article
where there are substantial grounds for believing they will be tortured
(Article 3).
108
to investigate allegations of systematic torture (Article 20). It also
Part III (Articles 25 - 33) governs ratification, entry into force, and
Optional Protocol
Punishment.30
109
Convention on the Elimination of All Forms of Racial
Discrimination
in racist organizations.
110
Part 1 (Articles'!-7) commits parties to the elimination of all forms
(Article 2). Parties are obliged not to discriminate on the basis of race,
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
111
Part 3 (Articles 17-25) governs ratification, entry into force, and
Prevention of discrimination
racial groups to guarantee the full and equal enjoyment of human rights
unequal or separate rights for different racial groups after the objectives
112
consequences of past policies of segregation, and to prevent racial
against Women
1981. The United States is the only developed nation that has not
following terms:
113
discriminatory provisions in their laws, and enact new provisions to
and enterprises.
114
Optional Protocol
18 December 1990.
entered into force, after the threshold of 20 ratifying States was reached
115
implementation of the convention, and is one of the seven UN-linked
192 million. This represents approximately three per cent of the world
families; its existence sets a moral standard, and serves as a guide and
116
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
recognizes that legal migrants have the legitimacy to claim more rights
migrants must see their fundamental human rights respected, like all
human beings.
Genocide
117
entered into force on 12 January 1951. It defines genocide in legal
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
protect the rights and dignity of persons with disabilities. Parties to the
118
The text was adopted by the United Nations General Assembly
with Disabilities.
which the principle that 'all human rights are universal, indivisible,
persons.
2. Non-discrimination.
5. Equality of opportunity.
6. Accessibility.
119
7. Equality between men and women.
their identities.
Optional protocol
120
International Convention for the Protection of All Persons from
Enforced Disappearance
acceded.
in Article 6.
this committee on the steps they have taken to implement it within two
locating a disappeared person. Parties may join this system at any time,
121
but may only opt out of it upon signature. India is a signatory to the
convention.
122
creation of a committee of experts to draft a continent-wide human
Convention on Human Rights). This committee was duly set up, and it
despite the fact that the protocol establishing the African Court of
Justice had not yet come into effect. Accordingly, the Eighth Ordinary
123
Session of the Executive Council of the African Union meeting in
regional human rights system for Africa. The Charter shares many
features with other regional instruments, but also has notable unique
supervisory mechanism.
its 1996 accession with the reservation that the Charter fall in line with
The African Charter on the Rights and Welfare of the Child (also
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
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,
every 10 children under 14 years old which is the highest child labour
125
society and that African children need protection and special care. It
religion, and conscience. It aims to protect the private life of the child
and safeguard the child against all forms of economic exploitation and
Maputo Protocol
to take part in the political process, to social and political equality with
Rights.
126
The protocol was adopted by the African Union on 11 July 2003
Opposition
Christian opposition
opposed moves to ratify the treaty on the grounds that Article 14, in
127
guaranteeing abortion "in cases of sexual assault, rape, incest, and
Muslim opposition
document declares that the Koran does not support female genital
128
American Regional Conventions
protocols.
129
(more commonly known as the Protocol of San Salvador), was opened
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
Convention.50
130
Inter-American Convention to Prevent and Punish Torture
28, 1987, and, as of 2010, 18 nations are party to it, with another two
than the United Nations Convention Against Torture, including the use
series of OAS agreements that seek to protect human rights, within the
131
European Regional Conventions
Union (EU) citizens and residents, into EU law. It was drafted by the
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
EU member states when they are implementing EU law and does not
in the treaties.52
Treaty was written a few years after the failure of the European Defence
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
Charter's legal status. However it did come with the political weight of
Legal force
itself. It should be noted, however, that both the version included in the
amended versions.53
On its coming into force with the Lisbon Treaty on 1st December
133
On 3 May 2010, the European Commission swore a solemn declaration
duties during their mandate. For the first time, the Commissioners also
charter.
and a recovery and reflection period during which trafficked persons will
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.
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
within the State) or are used by linguistic minorities within the State as a
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
parties can take to protect and promote historical regional and minority
the higher level of protection, which lists a range of actions from which
September 1953. All Council of Europe member states are party to the
136
The Convention established the European Court of Human
Rights. Any person who feels his or her rights have been violated under
State parties can also take cases against other state parties to the
prohibits the death penalty. The protocols accepted vary from State
137
European Convention for the Prevention of Torture and Inhuman
the Convention has been a pre-condition for all states who have Joined
was adopted in 1961 and revised in 1996. The Revised Charter came
into force in 1999 and is gradually replacing the initial 1961 treaty.
parties.
138
The Charter guarantees rights and freedoms which concern all
individuals in their daily existence. The basic rights set out in the
of the provisions of the Charter (be it the 1961 Charter or the 1996
examines the complaint and, if the formal requirements have been met,
declares it admissible.
139
Framework Convention for the Protection of National Minorities
protection for national minorities in 1949, but it was not until 1990 that
the Convention are to ensure that the signatory states respect the rights
140
INFERENCE
declarations.
rightly described as Magna Carta for all humanity. Since 1948, several
141
United Nations. Among them are the convention on the Prevention and
African Charter on the Rights and Welfare of the child and Maputo
142
REFERENCES
1. http://treaties.un.ora/Paaes/ViewDetails.aspx?src=TREATY&mtdsq
143
9. Abdel Ghafar, Mostafa, Safeguards of human rights at the
pp.1-2.
19. Alston, Philip, ed. Human Rights Law. University Press, New
144
20. Bayefskh, Anne, Report-the United Nations Human Rights
p.11.
25. Alston, Philip (ed.), The United Nations and Human Rights - A
26. Swepston, Lee, The Convention on the Rights of the Child and the
145
32. Brett, R. Human rights and the OSCE, Human Rights Quarterly,
33. Winston, S. The rights of women, the African Charter and the
42. Danid D.C. Don Nanjira, The protection of Human Rights in Africa:
p.217.
146
45. Kodjo, Edem, The Africian Charter of Human and Peoples Rights,
49. Hugo Caminor, The European System for the protection of Human
1993, p.3.
53. Van Dijik, P. and Van Hoff, G.J.H., Theory and Practice of the
1990. p.85.
147
54. Maxime Tardu, The European Systems for the protection of
148
The idea of human rights, that is the notion that anyone has a set
era.
between the rulers and the ruled, ancient traditions derived similar
natural law.
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
35
punishments if those rules are broken, on a variety of matters, including
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
Persian Empire
Cyrus the Great. After his conquest of Babylon in 539 BC, the king
today as the first human rights document. The Cyrus Cylinder declared
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
their land. The Cylinder now lies in the British Museum, and a replica is
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
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
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
in particular:
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
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
guiding principle not only for the behaviour of the individual, but also for
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.
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.
was that which nature not the State assures to all human beings,
man and they related what they considered to be the innate reason of
Mauryan Empire
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
his chief concern was the happiness of his subjects. The unnecessary
sport hunting and branding. The first welfare state was established.
one day each year, and offered common citizens free education at
39
religion, politics or caste, and constructed free hospitals for both
respect for teachers and priests, being liberal towards friends, humane
also had rights to freedom, tolerance, and equality. The need for
condemned by Ashoka. Some sources claim that slavery was also non
It was not until after the middle ages, however, that natural law
natural rights. One of the first attempts at codification of some thing like
40
conferred on the feudal Assembly of the kingdom of Leon. In the
among other things, that no noble would be arrested without first being
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),
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
what he saw as the social evils of his day, and that Islamic social
41
rejected hierarchy, and adopted a formula of the career open to the
the poor, usury, murder, false contracts, and theft. Bernard Lewis
Mosaic laws and customs of the time into his divine revelations.7
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
number of rights and responsibilities for the Muslim, Jewish and pagan
(barring all violence and weapons), the security of women, stable tribal
42
disputes, and aiso regulated the paying of blood-write (the payment
taxations).8
person, then the responsibility was on the individual. Lewis states that
Islam brought two major changes to ancient slavery which was to have
freedom; the other, the ban on the enslavement of free persons except
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.
divorce, and inheritance. Women were not accorded with such legal
status in other cultures, including the West, until centuries later. 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 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
explains: "At the time Islam began, the conditions of women were
property of the man, and if the man died everything went to his sons."
before Islam were more liberated drawing most often on the first
44
Sociologist Robert Bellah (Beyond belief) argues that Islam in its
seventh-century origins was, for its time and place, "remarkably modern
where leadership positions were open to all. Dale Eickelman writes that
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
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
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
which freedom of people was dealt with, for example, that nobody shall
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
were declared to be King and Queen and a clause was added that no
dispensing with laws as it has been exercised of late by the crown; (c)
Rights is concerned particularly with limiting, the powers of the King and
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
social contract writers revitalized the concept of natural rights and put
from 1550-1551 A.D between Las Casas and Juan Gines de Sepulveda
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,
48
Two major revolutions occurred that century in the United States
and famously states "that all men are created equal, that they are
these are life, liberty and the pursuit of happiness." Similarly, the French
and collective rights of the people. These are, in the document, held to
exception.17
We hold these truths to be self evident that all men are created
equal; that they are endowed with certain inalienable rights; that among
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 Rights, Thomas Jefferson was of the view that all people are entitled
to it.
Assembly declared the rights of man and citizen decreed by the French
rights are set forth in a state document and thus, in so far as that goes,
Men are born and remain free and equal in rights; social
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
against this ideology of natural law that reaction sets in with tremendous
The idea of human rights as natural rights was not without its
rights were found increasingly to come into conflict with one another.
philosophical and political attack from both the right and the left.
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
This assault upon natural law and natural rights thus began
during the 18th century and early 20th centuries. John Stuart Mill,
51
are founded on utility. The German Jurist Frederic Karl Van Savingnly
Englands Sir Henry Maine and other historians emphasized that rights
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
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
social changes over the course of the 20th century in the name of
52
brought about laws granting workers the right to strike, establishing
was Mahatma Gandhi's movement to free his native India from British
succeeded in many parts of the world, among them the civil rights
the 1864 Lieber Code and the first of the Geneva Conventions in 1864
Charter was a mandate to promote many of the rights which were later
53
The League of Nations had mandates to support many of the
there has developed, for economic and other reasons, a unique set of
54
International Law particularly Francisco Devitoria (1486-1546). Hugo
Vienna (1814-1815) and later between the two World Wars, a series of
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.
55
following observation of F.H.Bradlay, the British Idealist, made in 1894
ultimate standard.23
general provisions dealing with human rights and while failing to lay
goals; fair and humane working conditions far men, women and
the utmost the material and moral well-being and the social progress of
The covenant came into force on January 10, 1920 after obtaining the
56
These agreements did little to slow the descent toward World War
people to choose the form the government under which they will live to
see sovereign rights and self government restored to those who have
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
Geneva Conventions
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
Geneva Convention:25
58
Non-International Armed Conflicts. As of 12 January 2007 it had
additional 59 countries
All four conventions were last revised and ratified in 1949, based
all the members of UNO of the world are signatory nations, in that they
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
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
declarations and treaties that have given human rights a far stronger
Rights. Although that could not be done, it was well realised by the
determined that the promotion and respect for human rights which at
60
present constitute so important and so conspicuous be an integrated
The result was that the Charter contains provisions for the
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
person, in the equal rights of men and women and of nations large and
language or religion.
the human beings was the primary aim of the United Nations. The
General Assembly and the Economic and Social Council were given the
61
fundamental freedoms. By the terms of Article 13, the General
Nations shall promote, universal respect for and observance of, human
set forth in Article 55. Article 62 of the Charter authorizes the Economic
human rights, and such other Commissions as may be required for the
for human rights and for fundamental freedoms for all without distinction
The above provisions of the Charter make it clear that the States
62
Although there was no universal agreement as to the precise extent of
Charter, there is at present no dissent from the view that they have
between the states and also because they are indispensable for the
wordings of Article 55 of the Charter which lays down that the United
stability and well being which are necessary for peaceful and friendly
63
The Charter is dedicated to the achievement and observance of
these objectives for all men and women everywhere without regard to
nor they were enumerated therein. The guarantee for the protection of
human rights and fundamental freedoms was also not provided therein.
64
INFERENCE
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.
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
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.
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
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
world. Besides, the UNO also established several agencies to look after
66
REFERENCES
2. Ibid, p.2.
2001, p.3.
6. Ibid, pp.4-5.
8. Ibid, p.11.
9. Ibid, pp.11-12.
67
15. A.C.Kapur, Principles of Political Science, S.Chand Company
1999, p.71.
18. Paramjit S.Jaswal and Niswtha Jaswal, Human Rights and the
22. George Townsend Warner et.al. The New Ground Work of British
1984, p. 10.
p.42.
68
Chapter- 3
INTERNATIONAL DECLARATIONS
AND CONVENTIONS ON
HUMAN RIGHTS
International human rights instruments can be classified into two
General Assembly, which are not legally binding although they may be
law.
global instruments, to which any state in the world can be a party, and
of the world.
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
69
mechanisms; under most, however (e.g. the UN conventions), individual
the last several decades. It has moved from a body of laws governing
International Declarations
2008).
70
International Conventions
(ICESCR)
(ICERD)
Women (CEDAW)
Genocide
Enforced Disappearance
71
Regional Conventions: Africa
(FCNM)
72
Declaration of the Rights of the Child
Welfare Charter.
Confederation.
The International Save the Children Union (SCIU) merged into the
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
1. The child must be given the means requisite for its normal
73
2. The child that is hungry must be fed, the child that is sick must be
child must be reclaimed, and the orphan and the waif must be
Declaration arose directly from the experience of the Second World War
and represents the first global expression of rights to which all human
International Covenant on Civil and Political Rights and its two Optional
74
Protocols. In 1966 the General Assembly adopted the two detailed
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.
rights had been building throughout World War II. In his 1941 State of
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
for, and observance of, human rights and fundamental freedoms for all
knowledge around the world after World War II, the consensus within
the world community was that the United Nations Charter did not
75
specified the rights of individuals was necessary to give effect to the
Saudi Arabia).
The seven paragraphs of the preamble, setting out the reasons for 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
76
the rights of the individual in civil and political society. The third column
column (Articles 22-27) sets out social, economic and cultural rights. In
Cassin's model, the last three articles of the Declaration provide the
concerned with the duty of the individual to society and the prohibition of
Citizen Garry Davis and his Conseil de Solidarity who had interrupted a
telling him, from Professor Einstein's point of view, that the United
Nations has not yet achieved peace. The United Nations, of course, is
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
worldwide international government. All who would join him would learn
that they had no nationality and, therefore, not being bothered by any
78
and observance of the human rights set out in the Declaration. Eleanor
than as a treaty, because she believed that it would have the same kind
correct. Even though not formally legally binding, the Declaration has
treaties and national laws and international, regional, national and sub
While not a treaty itself, the Declaration was explicitly adopted for
79
rights covenants, the International Covenant on Civil and Political Rights
and individual human beings who appeal to its principles for the
than a year.
Colombia, in April 1948, the same meeting that adopted the Charter of
80
together with additional economic, social, and cultural rights due to
duties.
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
principal aim the protection of the essential rights of man and the
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
81
protection of the rights of man should be the principal guide of an
and juridical conditions, not without a recognition on their part that they
its sole source. CDHRI declares its purpose to be general guidance for
Member States [of the OIC] in the Field of human rights. This
of 1948.
Background
for its perceived failure to take into account the cultural and religious
82
context of non-Western countries. The CDHRI was adopted on August
of human rights.
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
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
proven through a trial in which he [the defendant] shall be given all the
emergency laws that would provide executive authority for such actions.
public office can only be exercised in accordance with the Sharia, which
84
exploitation and colonialism. The CDHRI declares the rule of law,
establishing equality and justice for all. The CDHRI also guarantees all
guarantee for enhancing such dignity along the path to human integrity.
It also places the responsibility for defending those rights upon the
entire Ummah.
September 2007.
legal norms and it reflects the commitment of the UN's member states
85
undoubtedly be a significant tool towards eliminating human rights
participation in all matters that concern them and their right to remain
development.13
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
86
respectively. The abstaining countries were Azerbaijan, Bangladesh,
absent from the vote. Colombia and Samoa have since endorsed the
document.
statements remain open for signatures and none of them has been
breaking the taboo against speaking about the rights in the United
87
pedophilia and other deplorable acts and curtail freedom of religious
identity.15
88
Following meetings between Tin and French Minister of Human
Rights and Foreign Affairs Rama Yade in early 2008, Yade announced
concern.
because there was not enough support for the adoption of an official
2008, and was the first declaration concerning gay rights read in the
General Assembly.
Conventions
international level.
on December 16, 1966, and in force from March 23, 1976. It commits its
89
(among others) the right of self-determination; the right to life; the
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
equality before the law; the right of every child to such measures of
family, society and the State; the right of every citizen to vote and to be
equal suffrage and shall be held by secret ballot; the rights of ethnic,
90
The ICCPR is part of the International Bill of Human Rights, along
States must report initially one year after acceding to the Covenant and
then whenever the Committee requests (usually every four years). The
The ICCPR has its roots in the same process that led to the
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
91
Drafting continued on the convention, but there remained
two separate covenants, one to contain civil and political rights and the
other to contain economic, social and cultural rights. The two covenants
Economic, Social and Cultural Rights. The drafts were presented to the
status, pursue their economic, social and cultural goals, and manage
92
trust territories (colonies) to encourage and respect their self-
determination.
effective legal remedy for any violation of those rights. It also requires
social origin, property, birth or other status, and to ensure that they are
public emergency which threatens the life of the nation, and even then
rights to:
physical integrity, in the form of the right to life and freedom from
(Article 9);
93
recognition as a person before the law (Articles 10, 11, 14, 15,
and 16);
27).
of the Human Rights Committee and the reporting and monitoring of the
inherent right of all peoples to enjoy and utilize fully and freely their
94
Part 6 (Articles 48 - 53) governs ratification, entry into force, and
Optional protocols
use of death penalty for the most serious crimes of a military nature,
racial group over any other racial group or groups and committed with
95
On 30 November 1973, the United Nations General Assembly
oppressing them.20
Background
The term apartheid, from Afrikaans for apartness, was the official
after 1948. Complaints about the system were brought to the United
unjust and racist and many decided that a formal legal framework was
government.
96
Assembly of the United Nations agreed on the text of the International
parties.21
with a scope that went far beyond South Africa. While the crime of
Africa after 1948, the term more generally refers to racially based
97
The International Criminal Court provides for individual criminal
apartheid.
2002, and can only prosecute crimes committed on or after that date.
The Court can generally only exercise jurisdiction in cases where the
national courts with universal jurisdiction over the same offenses and do
of July 2008, 106 countries are states parties (with Suriname and Cook
signed but not yet ratified the treaty. However, many of the world's most
and Pakistan are not parties to the Court and therefore are not subject
98
1976. It commits its parties to work toward the granting of economic,
along with the Universal Declaration of Human Rights (UDHR) and the
Rights. The Covenant follows the structure of the UDHR and ICCPR,
status, pursue their economic, social and cultural goals, and manage
determination.
99
discrimination of any kind as to race, colour, sex, language, religion,
with the nature of the rights, and only for the purpose of promoting the
Part 3 (Articles 6-15) lists the rights themselves. These include rights
to
work, under just and favourable conditions, with the right to form
(Article 11);
human personality and the sense of its dignity, and enable all
100
Many of these rights include specific actions which must be
Covenant and the steps taken by the parties to implement it. It also
allows the monitoring body - originally the United Nations Economic and
acknowledges that some of the rights (for example, the right to health)
The principle differs from that of the ICCPR, which obliges parties
to respect and to ensure to all individuals within its territory and subject
101
that goal. The Committee on Economic, Social and Cultural Rights also
resources are highly constrained, this should include the use of targeted
are already required under other human rights instruments, such as the
ICCPR.
Optional Protocol
individuals.
102
2009, and as of July 2010 has been signed by 32 parties and ratified by
and sets out the rights of individuals who are granted asylum and the
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
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.
103
It is widely accepted that the prohibition of forcible return is part of
customary international law. This means that even States that are not
States which had previously ratified the 1951 Convention and chosen to
104
Convention on the Rights of the Child
rights treaty setting out the civil, political, economic, social, and cultural
around the world. Once a year, the Committee submits a report to the
hears a statement from the CRC Chair, and the Assembly adopts a
required to report to, and appear before, the United Nations Committee
105
September 1990, after it was ratified by the required number of nations.
member of the United Nations except Somalia and the United States.
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
children have the right to express their opinions and to have those
106
Although a law in October 2006 banned child labor in hotels,
the number of child laborers in the country range from the government's
human rights instrument, under the review of the United Nations, that
prevent torture within their borders, and forbids states to return people
the 20th state party, it came into force on 26 June 1987. Now 26th June
107
is recognised as the International Day in Support of Torture Victims, in
to the treaty, and another ten countries have signed but not ratified it.
The Covenant follows the structure of the UDHR, ICCPR and the
territory under their jurisdiction (Article 2). These include ensuring that
also ban the use of evidence produced by torture in their courts (Article
where there are substantial grounds for believing they will be tortured
(Article 3).
108
to investigate allegations of systematic torture (Article 20). It also
Part III (Articles 25 - 33) governs ratification, entry into force, and
Optional Protocol
Punishment.30
109
Convention on the Elimination of All Forms of Racial
Discrimination
in racist organizations.
110
Part 1 (Articles'!-7) commits parties to the elimination of all forms
(Article 2). Parties are obliged not to discriminate on the basis of race,
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
111
Part 3 (Articles 17-25) governs ratification, entry into force, and
Prevention of discrimination
racial groups to guarantee the full and equal enjoyment of human rights
unequal or separate rights for different racial groups after the objectives
112
consequences of past policies of segregation, and to prevent racial
against Women
1981. The United States is the only developed nation that has not
following terms:
113
discriminatory provisions in their laws, and enact new provisions to
and enterprises.
114
Optional Protocol
18 December 1990.
entered into force, after the threshold of 20 ratifying States was reached
115
implementation of the convention, and is one of the seven UN-linked
192 million. This represents approximately three per cent of the world
families; its existence sets a moral standard, and serves as a guide and
116
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
recognizes that legal migrants have the legitimacy to claim more rights
migrants must see their fundamental human rights respected, like all
human beings.
Genocide
117
entered into force on 12 January 1951. It defines genocide in legal
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
protect the rights and dignity of persons with disabilities. Parties to the
118
The text was adopted by the United Nations General Assembly
with Disabilities.
which the principle that 'all human rights are universal, indivisible,
persons.
2. Non-discrimination.
5. Equality of opportunity.
6. Accessibility.
119
7. Equality between men and women.
their identities.
Optional protocol
120
International Convention for the Protection of All Persons from
Enforced Disappearance
acceded.
in Article 6.
this committee on the steps they have taken to implement it within two
locating a disappeared person. Parties may join this system at any time,
121
but may only opt out of it upon signature. India is a signatory to the
convention.
122
creation of a committee of experts to draft a continent-wide human
Convention on Human Rights). This committee was duly set up, and it
despite the fact that the protocol establishing the African Court of
Justice had not yet come into effect. Accordingly, the Eighth Ordinary
123
Session of the Executive Council of the African Union meeting in
regional human rights system for Africa. The Charter shares many
features with other regional instruments, but also has notable unique
supervisory mechanism.
its 1996 accession with the reservation that the Charter fall in line with
The African Charter on the Rights and Welfare of the Child (also
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
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,
every 10 children under 14 years old which is the highest child labour
125
society and that African children need protection and special care. It
religion, and conscience. It aims to protect the private life of the child
and safeguard the child against all forms of economic exploitation and
Maputo Protocol
to take part in the political process, to social and political equality with
Rights.
126
The protocol was adopted by the African Union on 11 July 2003
Opposition
Christian opposition
opposed moves to ratify the treaty on the grounds that Article 14, in
127
guaranteeing abortion "in cases of sexual assault, rape, incest, and
Muslim opposition
document declares that the Koran does not support female genital
128
American Regional Conventions
protocols.
129
(more commonly known as the Protocol of San Salvador), was opened
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
Convention.50
130
Inter-American Convention to Prevent and Punish Torture
28, 1987, and, as of 2010, 18 nations are party to it, with another two
than the United Nations Convention Against Torture, including the use
series of OAS agreements that seek to protect human rights, within the
131
European Regional Conventions
Union (EU) citizens and residents, into EU law. It was drafted by the
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
EU member states when they are implementing EU law and does not
in the treaties.52
Treaty was written a few years after the failure of the European Defence
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
Charter's legal status. However it did come with the political weight of
Legal force
itself. It should be noted, however, that both the version included in the
amended versions.53
On its coming into force with the Lisbon Treaty on 1st December
133
On 3 May 2010, the European Commission swore a solemn declaration
duties during their mandate. For the first time, the Commissioners also
charter.
and a recovery and reflection period during which trafficked persons will
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.
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
within the State) or are used by linguistic minorities within the State as a
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
parties can take to protect and promote historical regional and minority
the higher level of protection, which lists a range of actions from which
September 1953. All Council of Europe member states are party to the
136
The Convention established the European Court of Human
Rights. Any person who feels his or her rights have been violated under
State parties can also take cases against other state parties to the
prohibits the death penalty. The protocols accepted vary from State
137
European Convention for the Prevention of Torture and Inhuman
the Convention has been a pre-condition for all states who have Joined
was adopted in 1961 and revised in 1996. The Revised Charter came
into force in 1999 and is gradually replacing the initial 1961 treaty.
parties.
138
The Charter guarantees rights and freedoms which concern all
individuals in their daily existence. The basic rights set out in the
of the provisions of the Charter (be it the 1961 Charter or the 1996
examines the complaint and, if the formal requirements have been met,
declares it admissible.
139
Framework Convention for the Protection of National Minorities
protection for national minorities in 1949, but it was not until 1990 that
the Convention are to ensure that the signatory states respect the rights
140
INFERENCE
declarations.
rightly described as Magna Carta for all humanity. Since 1948, several
141
United Nations. Among them are the convention on the Prevention and
African Charter on the Rights and Welfare of the child and Maputo
142
REFERENCES
1. http://treaties.un.ora/Paaes/ViewDetails.aspx?src=TREATY&mtdsq
143
9. Abdel Ghafar, Mostafa, Safeguards of human rights at the
pp.1-2.
19. Alston, Philip, ed. Human Rights Law. University Press, New
144
20. Bayefskh, Anne, Report-the United Nations Human Rights
p.11.
25. Alston, Philip (ed.), The United Nations and Human Rights - A
26. Swepston, Lee, The Convention on the Rights of the Child and the
145
32. Brett, R. Human rights and the OSCE, Human Rights Quarterly,
33. Winston, S. The rights of women, the African Charter and the
42. Danid D.C. Don Nanjira, The protection of Human Rights in Africa:
p.217.
146
45. Kodjo, Edem, The Africian Charter of Human and Peoples Rights,
49. Hugo Caminor, The European System for the protection of Human
1993, p.3.
53. Van Dijik, P. and Van Hoff, G.J.H., Theory and Practice of the
1990. p.85.
147
54. Maxime Tardu, The European Systems for the protection of
148
Chapter- 4
with the Independence of India Act, 1947. The Act was enacted by the
the Constituent Assembly which met for the first time on December 9,
shape was given on November 26, 1949, and it came into force on
authority from the will of the people. The Government is elected by the
people. It gives a feeling that they all are equal irrespective of their
149
Human Rights and Debates in the Constituent Assembly
Patel was its Chairman. The committee was to report to the Assembly
Rau, K.T. Shah, K.M. Munshi, Dr. B.R. Ambedkar, Harnam Singh and
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
150
hardly any difference on principles. So it was decided that the
jeopardy, ex-post facto laws, equality before law, the right to freely
practice religion and the protection of minorities were all adopted. The
the legal method, which was included within the rights to secure them.
documents. Members like K.M, Munshi, Ambedkar and K.T Shah were
specified time limit within which all the directive principles must be
1948) there were two types of opinions - that the directives did not go
far enough towards establishing a socialist state and that they should
151
central to Indian practice and to Hindu thought, particularly those
institutions from the time of British rule in India. The impetus of their
poor Indians. Nationalist Movement and the birth of the Indian National
Congress were the direct results. The freedom movement was largely
rights for all the people irrespective of race, colour, creed, sex, place of
152
The history of national struggle for basic human rights can be
the first formal document came into existence in 1928, with the Report
the minorities, backward and tribal areas and depressed and other
Constitution of India between them covered almost the entire field of the
153
Resolution forms the basis for the incorporation of various provisions of
the Constitution.
the Constitution should be read and interpreted in the light of the grand
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
154
based on right to equality, right to freedom, right against exploitation,
These are negative rights which are made enforceable against the
categories.7
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
Article 16 states that "there shall be equal opportunity for all citizens in
The rights to freedom under Articles 19-22, are the soul of the
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
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
Article 20, which says that "no person shall be deprived of his life or
law."12
and other forms of forced labour. Our Constitution, instead of using the
156
Article 24 of the Constitution prohibits the employment of the
hazardous employment.
The Part 111 of the Constitution under Articles 25-28 prescribe for
minorities in India.
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
157
important rights, as far the protection of human rights of minority groups
enforcement of these rights. Under Article 32, every person has been
for the enforcement of the rights conferred by Part III. Clause 2 of this
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
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
> Equal pay for equal work for both men and women (Article 39(d))
> Adequate protection of the health and strength of workers, men and
(Article 43).
> Increasing the level of nutrition, the standard of living and improving
> Prohibiting the slaughter of cows and calves and other milk and
Principles make it amply clear that between them, almost the entire field
Indian Constitution, through these two parts (Part III and IV) has made
159
fundamental governance of the country. Finally, both these rights are
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
rights in their several judgments. Apart from the key role being invested
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
regarded as ideals for which the country should strive. But there is no
160
economic and cultural rights even in part III of the Indian Constitution.
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
Part III and Directive Principles of State Policy in part IV of the Indian
whereas those rights, which are available to all citizens the wider
India, fall under the category of Impliedly Guaranteed Rights. The latter
activism.
In the 18th and 19th centuries, civil and political rights were chiefly
161
rights. These rights now occupy an increasingly important place in the
Economic, social and cultural rights are also given much attention in the
be promoted and protected at the same time. Civil and political rights
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
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
of civil and political freedom and of economic, social and cultural rights
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 welfare state in India based on social, economic and political justice.
Thus positive duties are entrusted upon the state to achieve the
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
implementing the directives *so long as the amendment does not touch
direct legal sanction, the directives have the real sanction i.e. the
163
prohibited in Article 24. Child, as well as youth are protected against
India. With a high rate of infant mortality and more than 50 percent of
far from satisfactory. Besides, poverty is the major cause that compels
directives to the State to make effective provisions for securing the right
include right to work under Fundamental Rights in India but it has not
164
other way, to all workers, (agricultural, industrial or otherwise) work, a
society, the social environment one lives in and the climatic conditions
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
workers the right to rest and leisure and social and cultural
various acts like Factories, Act, 1948, the mines Act, 1961, -the
A law that is static can never ensure human rights. For achieving
the person, it must, assume its dynamic role. While interpreting the
165
Constitution, judicial attitude has changed with the need of time and it
Judiciary has taken very bold and innovative steps so far as human
Principles have become almost justiciable rights today, the sole credit
guaranteeing the right to life and personal liberty has been, in recent
wide range of claims and interests, which has led to the development of
India the Supreme Court of India, has expanded the scope of Article 21
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
instructions to the state to 'direct its policy towards securing that the
citizens, men and women equally, have the right to an adequate means
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
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
167
alternative accommodation. Since life is not possible without the means
livelihood as a Fundamental Right under Article 21, but not its positive
The Supreme Court of India has also held that any form of torture
phenomenon today.
environment, free from the danger of disease and infection. The quality
environment was not such an issue at the time of the framing of the
168
Article 47 (improvement of public health), Article 48 (Organization of
figure in the Part IV i.e. in the Directive Principles of State Policy. This
states that the "State shall endeavour to protect and improve the
the natural environment including forests, lakes, rivers and wildlife and
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
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
It is now amply clear that unlike the traditional notion of life being
basic and sacred right to life and personal liberty. Judicial activism has
reports. The right to life and personal liberty under Article 21 of the
Law.23
170
Human Rights: Challenges and Prospects
control over the freedom of the press. The Press Council of India is only
who are violating the code of conduct. The independent Indian Judiciary
and a free and unbiased press are two important institutions, which
as women, tribals and the people belonging to the lower castes were
today. This assertion can be seen among the tribals and Dalits in their
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
171
National Women Commission, which is a statutory body. It looks into
the tendency of the government, which, more often than not, overrides
poor, the illiterate, the underprivileged, and the member of the minority
who are the victims of such penalty. The rich or affluent persons, even
172
after committing heinous crimes, hardly get this penalty. Ironically,
Every one has a chance to face a fair trial before getting punished. But
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
homes for the children who commit crimes, many of the states in India
Constitution, the State has been given directives for framing uniform
civil code, which the state has not been able to do so far. Consequently,
Development Index remains very low due to the low status of women in
173
The Indian government has prohibited child labour. It has also
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
compensated. Working hours have been limited to four and a half hours
per day for children by the Factories Act and the Child Labour
are working in hazardous industries like glass, carpet and cracker has
labourers in India.26
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
state. Both power of state, as well as power of the people arises from
174
Shakti to make it more powerful than the Raj Shakti. This can only be
175
INFERENCE
on Civil and Political Rights, 1966, are guaranteed in Part III of the
promote the basic human rights of the people and protect the individual
provisions of Part III of the Constitution limit the sphere of state activity.
176
meaningful by implementing the directive principles, for, the directive
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
justice to all.
177
REFERENCES
3. Rajni Kothari and Harsh Sethi (eds) Special Issue on the Politics of
4. Ibid, p.35.
7. Ibid, p.99.
and Indian, Deep & Deep Publications Pvt. Ltd., New Delhi, 1998,
p.23.
1999.p.56.
178
14. B.P.S. Sehgal, Human Rights in India: Problems and
2004.p.23.
15. Ibid.p.24
17. G. Sharma, Human Rights and Legal Remedies, Deep & Deep
20. S. Singh, Legal Aid: Human Rights to Equality, Deep & Deep
23. Nandita Haskar, Women and Justice for All", in A.R. Desai(ed),
24. Bina Agarwal, A Field of One's Own, Gender and Land Rights in
26. Ibid.p.56.
27. Flavia Agnes, (ed.) Family Courts: From the Frying Pan into the
1996.p.28.
179
Chapter- 5
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
great sources of human rights. While most of the human rights lost it's
Raja Ram Mohan Roy's genius who brought life to these human rights
to the other members of the United Nations, it is also the home of one
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,
This diversity has deep roots in Indian history and ecology. The
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
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
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
languages of South India such as Tamil), that venerated the cow and
arrangements known as the caste system and the vast range of beliefs
such a stratum derives primarily from birth, and confers a particular set
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
could potentially enter into unity with the absolute, contained the
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.
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
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
human rights, but respect for human rights in India need not require the
abolition of caste per se. Caste, especially when articulated with class,
can also legitimate rights to social and political pluralism. Probably the
184
which, while outlawed, is still widely practiced and relegates a whole
modern societies, women belong first to their fathers and then to their
subordinate role within the family and the importance to male honor of
defending female chastity, but there are also cults and traditionally
roughly three levels in India: village, regional kingdom, and empire. The
life of the villages has been relatively independent of the higher levels
185
by the locally dominant castes, whose relations to states have been
village's authorities.
unity in the past; Sikh leaders, for instance, challenged the centralizing
of the Soviet Union, press against and sometimes violate its borders.5
186
Human Rights and the Indian Freedom Struggle
less clear then than now), the British East India Company found
themselves drawn into the battles among regional rulers as the Mughal
personal liberty and right to free education etc. Between 1917 and
1919, the demand for civil rights and equality of status with English men
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
187
statute that political power belonged to the Indian people in the same
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
perspective.
188
f) Equality before the law, irrespective of considerations of nationality,
and;
Committee came into being in May 1928, with Motilal Nehru as its
secure the Fundamental Rights that had been denied to them. It also
189
document was again emphasized by several Indian leaders at the
demanded that rights, both in their positive and negative forms must be
human rights in the 1940s, which gained momentum largely due to the
Atlantic Charter, the United Nations Charter and the activities of the
positive rights came largely from the social revolution and reflected the
Committee with Sir Tej Bahadur Sapru as its chairman. The committee
all that what the constitution demanded and expected was perfect
matter of political and civil rights, equality of liberty and security, in the
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
Imperial Crown wherein it became the most precious jewel. The national
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.
for state service and the new liberal professions introduced by the
British legal practices even as they observed the wealth and power
without exception from this class. Motilal Nehru, Jawaharlal Nehru, and
Mohammad Ali Jinnah, leader of the Muslim League, all read law in
The discourse these leaders shared with the state they opposed-or,
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
colonialism.11
the Manchester mills, flooded the Indian market, fine Indian fabrics and
other products were kept out of world markets. As a result, the craft-
India, did establish some modern industries, but they suffered from
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
rights for the people of India, rights which would enable that people to
(democracy) would only empower the Hindu majority, and thus gave its
1951.
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
America, a treaty must be ratified by the President with the advice and
obligation of India to the World which says that the State shall
195
maintain just and honourable relations between nations; (c) foster
Policy and as such they are not enforceable before any Court. It has
peace and security and also to foster respect for international law and
can be drawn from the Article itself as to how far rules of international
India will work for the promotion of international peace and security,
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
the two Covenants have been dealt separately with reference to the
Indian Constitution.14
'fundamental' denotes that these rights are inherent in all the human
beings and are essential for the individuals for blossoming of the human
civilised society and the Constitution makers declared that they shall be
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
administrative order can abridge or take them away. Any law which is
Shukla, Beg, J., observed that the object of making certain general
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
Rights.
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.
following Table 5.1 shows the different Articles of the Covenant and the
199
Table 5.1
Freedom of speech and expression Article 19(1) & (2) Article 19 (1) (a)
Right to move freely within the territory Article 12(1) Article 19(1)(d)&(e)
of a State
Protection against arbitrary arrest and Article (23) & 23(4) Article 22
detention
Source: H.O. Agarwal, Human Rights, Central Law Publications, Allahabad, 2008,
p.259.
200
Civil and Political Right and also guaranteed to the individuals in
person' and right of person to remain equal before the courts and
prosecuted and punished for the same offence more than once is
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.,
201
discrimination against any citizen on the ground only on religion, race,
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
Jammu and Kashmir, it was held that non-citizens could not claim
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
to a person which would also include the citizen of the country and non
202
liberty) and under Article 22 (right to protection against arbitrary arrest
and detention) are available not only to citizens but also to persons
Chandrima Das that: even those who are not citizens of this country
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.
All though the changes were made to prevent the abuse of the
Constitution
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
individuals the rights stipulated therein, the former did not bind the
and Cultural Rights lays down that each State Party undertakes to take
Parties to the Covenant are not required to provide the rights to the
individuals from the time of ratification. However, they shall take such
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
political and economic justice. They contain the aims and objectives
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
B.R. Ambedkar says, 'they will certainly have to answer them before
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
sanction behind them, but they have the sanction of the people which is
not implemented, the opinion of the public would be adverse against the
election by the public. Thus the extra-legal force which they carry with
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
table 5.2.
Table 5.2
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
are not enforceable before the Courts. But in recent past, some of these
the meaning of the term 'right to life' which has been regarded as 'heart
Article 7 (a) lays down that Remuneration which provides all workers,
as a minimum with; (i) fair wages and equal remuneration for work of
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
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
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
medical benefit under the Indian Constitution finds place under Articles
38 and 39 which are not enforceable before the Courts as they are the
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
Right to Livelihood
gain his living by work which he freely chooses or accepts, and will take
the Covenant on Economic, Social and Cultural Rights. But in the Indian
The right to livelihood has been incorporated under Article 39(a) and
case, held that right to livelihood is an integral facet of the right to life
209
Yadav Vs J.M.A. Industries, the Supreme Court reiterated that right to
Right to Shelter
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
standard of living for himself and his family including housing. The
above implies that shelter is recognised as human right but this right
the Supreme Court that the right to live implies the right to food, water,
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
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
being. The Court held that it is the duty of the State to provide housing
210
In addition to the above, a few other rights stipulated under
the Indian judiciary. The Supreme Court has held that social security,
just and human conditions of work and leisure to workmen are part of
personality and to enjoy the life with dignity. Meaning of the expression,
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
211
1) International Convention on the Elimination of All Forms of Racial
the International Court of Justice, the consent of all the parties to the
212
4) Convention on the Rights of the Child (1989) was acceded on
State Party.
Women (1979) was ratified on July 9, 1993. India while ratifying the
213
declaration reads: with regard to Articles 5(a) and 16(1) of the
214
6) Protocol of 1953 Amending the International Slave Convention
1960.
January 9,1953.
(2000) were signed on November 15, 2004. They are however yet to be
of Refugees of 1951 nor its Protocol of 1967 nor enacted any legislation
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
Principles of State Policy and as such are not enforceable before any
respect for treaty obligations and to apply the principles in making laws.
216
India in the past has not been prompt in fulfilling the above
Women and its first country report had become due for submission to
2000. Further, India was required to place its first report before the
department may;
1. Foreign affairs; all matters which bring the Union into relation
countries.
217
The above provisions make it clear that treaties do not acquire
chalk out its policies and enact laws in such a way so that the rights
does not automatically flow from ratification, thus, treaties are required
D.D. Basu says that 'no treaty which has not been implemented by
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
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
Kashmir Movement and All India Kashmiri Samaj for the act of
Convention on August 27, 1959, it did not enact in accordance with the
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
rights conventions and thus has shown to the world its intention to
219
Women and Convention on the Elimination of All Forms of Racial
Discrimination.
may be overcome. They are required not to wait for the new legislation
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
rights concepts than to other persons. The department can also assist
to incorporate the human rights values in the foreign policy making and
Restrictions on Rights
220
not apply to it. For instance, Article 1 of the Covenant which lays down
the efforts of the Government to take steps with a view to provide them
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
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
another. The full realization of the civil and political rights is impossible
civil and political rights can become a practical reality for the entire
masses.26
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,
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
foreign countries.
gigantic. It has to chalk out its policies and enact laws in such a way so
223
conformity with the provision of the international conventions. Treaties
does not automatically flow from ratification, thus, treaties are required
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
body. In many cases it has been held by the Indian courts that
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
Movement and All India Kashmiri Samaj for the act of genocide, stated
27, 1959, it did not enact in accordance with the Constitution the
224
Convention.28 Thus ratification of the human rights treaties alone is not
They are required to be transformed into the law of the land. As long as
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
respect of all the ratified Conventions. For instance, no law has been
may be overcome. They are required not to wait for the new legislation
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
wood and sculpt on stone ready at hand and not wait for away marble
architecture.
225
INFERENCE
essential for all the people and assured to them by the fundamental law
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
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
226
virus of the Constitution. The fundamental rights are guaranteed in Part
conditions which existed at the time when the Constitution was framed,
it was not enough to guarantee the people mere civil and political rights.
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.
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
227
REFERENCES
and Regional, Deep & Deep Publications Pvt. Ltd., New Delhi,
2003, p.76.
3. Ibid, p.89.
p.54.
6. Ibid, p.108.
7. Ibid, p.109.
10. Ibid,p.59.
228
14. H.O. Agarwal, Human Rights, Central Law Publications,
229
Chapter- 6
PROTECTIVE MECHANISMS
OF HUMAN RIGHTS
Vienna Declaration and Programme of Action adopted by the
democratic empowerment for those who are less powerful and less
relevant for those sections of people who are in minority and for those
230
rights institutions will depend on special settings. The most important
exhibited from across the political spectrum, not only from those
divided into two categories, i.e., (i) offices of the Ombudsman and (ii)
Ombudsman
231
Ombudsman plays an important role of bringing renaissance and
definition of Ombudsman.
makes reports.
232
Parliament had pointed out the reactions of the citizens against
has access even to the government files and documents. Sweden was
Zealand was the first country to opt for it in 1962. In England it was
established in 1966.5
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
somewhere. The Ombudsman will certainly poke his nose into the
accuser.7
states:
234
In India, the Administrative Reforms Commission in its interim
Act due to one reason or the other and thus no institution of Lokpal
will defeat the very purpose for which such institutions are created. As
pointed out earlier that national human rights institutions, including the
235
the real sense and protect the citizens from violation of human rights in
236
institution would require the passing of a constitutional amendment Act
for which special procedure has to be followed. Thus, the integrity of the
hearing of cases. The courts can deal only with the specific issue raised
deserving cases out of it. Thus, the Courts play only a peripheral role
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.
that there is not much room for ventilating individual grievances on the
237
Hence it is felt that some independent machinery, falling outside
people must be created. It is in this regard that the role played by the
very important.
deemed to have come into force on 28th September 1993, i.e., the date
238
Human Rights and Human Rights Courts
Section 2(d) of the Act defines human rights to mean the rights
out of violation of human rights, the State Government may, with the
to try the said offences. However, this shall not apply in two conditions,
Human Rights Courts for trying the offences dealing with human rights
239
The National Human Rights Commission
following:
> However, there has been growing concern in the country and abroad
the situation.
constituted under the Protection of Human Rights Act, 1993. In the Act
> 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;
rights.15
the National Commission for Women. They shall also discharge all the
delegate to him.
241
previous approval of the Central Government, establish office at other
places in India.17
242
Notwithstanding this, the President may by order remove from office
i. is adjudged an insolvent; or
ii. engage during his term of office in any paid employment outside the
court; or
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
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
243
In the event of the occurrence of any vacancy in the office of the
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
such functions which are for better protection of human rights and
244
(ii) intervene in any proceeding involving any allegation of violation of
court;
(iii) visit, under intimation to the State Government, any jail or any
any law for the time being in force for the protection of human
implementation;
(v) review the factors, including acts of terrorism, that inhibit the
measures;
rights;
245
(ix) encourage the efforts of non-governmental organizations and
(i) complaint in regard to events which happened more than one year
(ii) complaint with regard to the matter which are sub-judice or pending
(v) the complaints which are outside the purview of the Commission.23
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
246
> summoning and enforcing the attendance of witnesses and
> requisitioning any public record or copy (hereof from any court or
office;
Commission, may be useful for, or relevant to, the subject matter of the
false information shall constitute offence under section 176 and 177 of
the Indian Penal Code.24 Every proceeding before the Commission shall
247
Whenever the Commission has reasons to believe that any
in any building or place, the Commission or any other officer, not below
may enter such building or place and may seize such document or take
recording the facts constituting the offence and the statement of the
the same, who shall proceed to hear the case against the accused.
248
respective concurrence for the purpose of conducting any investigation
following powers:
(i) summon and enforce the attendance of any person and examine him;
the Commission. It is provided that the Commission shall have its own
249
rank of Director General of Police, The other members of the team of
250
it will determine the effectivity of the institution. If the procedure is
dealing with the complaint. In addition to this section 10(2) of the Act of
the National Human Rights Commission has made the National Human
The Commission normally has its regular sittings in the first and
are registered and assigned a specific number. Then they are placed
before a Bench of two members, within the period of two weeks from
251
mentioned in the Eighth Schedule of the Constitution.30 The
complaint, the Commission does not find any substance in it then the
that the required action has been taken or initiated by the concerned
252
satisfied that it is necessary to inquire the matter further, it shall initiate
inquiry.
Commission or by any other person under its direction, then the report
Commission finds that the investigation has not been made properly
1. Where after the inquiry it is found that there was violation of human
concerned person.
253
3. The Commission may recommend to the concerned government/
5. The copy of the inquiry report is also given to the petitioner or his
representatives.
satisfied with the report of the government, it will not proceed further
with the complaint. If the Commission is not satisfied with the report
254
The Central Government required to inform the Commission of the
of one week. The Commission is also required to furnish the copy of the
shall place the annual report and special reports of the Commission
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
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
the repeal of TADA .In India most of the human rights violations have
the Commission seeks the report from that very government whose
256
forces have indulged in the human rights violation and after completing
who have little knowledge about such rights. In this regard, the
their text books. Besides, the Commission has prepared a source book
257
courses at their post-graduate studies. This apart, the Commission has
rights.35 The most notable contribution has come with regard to make
all levels of police force. Most importantly, the Commission has ensured
Day.
critical issues of human rights. Since its inception, the NHRC has
258
of human rights in India. As a result of its consistent efforts, there is now
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
Commission cannot carry any investigation on its own. Third, the NHRC
The grants are so limited that it most often restricts the Commissions
SC/ST Commission. Thus, its powers are limited in this way. Yet, with
259
a status of focal point for enforcement of a new generation of human
rights while protecting the basic social order, threat perception and
are related to any of the entries enumerated in the State List (List II)
any law, then such State Commission shall not inquire into said
matter.37
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
rights.
260
Every appointment of the State Commission is made on the
persons:
members are appointed for five years and they are eligible for
reappointment for another term of five years. But no member shall hold
may be removed from his office in the same manner and on the same
261
In India so far some of the States have yet to constitute State
population wise, it is difficult for any single institution to meet the crying
many complaints of human rights violation from all parts of the country.
the need of the hour that every State must constitute its own Human
protect them from the violation of their human rights. The National
India have full faith in the working and independence of the National
Human Rights Commission will achieve the purpose for which it has
been created.
262
INFERENCE
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
Commission was given all the powers of a Civil Court to inquire into
NHRC.
faced regarding the inquiry, is that it: is not given adequate power to
take the necessary steps after the inquiry. The Commission could only
the Supreme Court or the High Court concerned for such directions,
263
The Commission took initiative to review laws and to implement
and the inadequate power to take necessary steps after inquiry were
objectives.
the public about the necessity to protect human rights. It sensitized the
264
REFERENCES
2. Ibid, p.230.
3. Ibid, p.230.
1992, p.36.
5. Ibid.
6. Id. at 2.
7. Ibid.
Regulations, 1994,
265
15. Section 8(1) to 8(9) of (Procedure) Regulations, 1994 and section
266
29. Falk Richard, Human Rights and State Sovereignty, Holmes and
2004.p.45.
35. Sharma, G. Human Rights and Legal Remedies, Deep & Deep
36. Rajni Kothari and Harsh Sethi (ed). Special Issue on the Politics
267
Chapter- 7
SUMMARY
AND
CONCLUSION
The concept of human rights, justice and of human dignity date
century. During this period, fundamental rights were for the first time
The first legal act of this kind to gain justifiable renown was the Virginia
French Declaration of the Rights of Man and of the Citizen of 1789 arid
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
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
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
in particular St. Thomas Aquinas, who put great stress on natural law,
it, however, as part of the law of God. The modern secular theories of
from religion, laying the groundwork for the secular, rationalist version
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
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
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.
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
rights of life, liberty and property which were their own. The
270
prove how right Locke was when he expounded the principle that
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
desire and its roots are found in the ancient Indian Civilization-both in
271
essential for the survival and personality development of all human
beings.
stratified itself into various sections, sectors and levels. They may be
the society. Being the basis of any humane society, they have also
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,
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
272
When resistance to religious intolerance and politico-economic
foundations of what today are called Human Rights were laid. The
origin and development of human rights has been on two bases, the
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
gave equal freedom of speech, equality before law, right to vote, right to
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
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
reign of Johns son, Henry III, the Magna Carta was confirmed by
superiority over the Crown and to give documentary authority for the
1776. The Virginia Bill of Rights, 1776, the Constitution of the United
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
Conference. The concern of the United Nations for the protection and
promotion of human rights is very much evident from the fact that
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
binding obligation on all the States to respect, protect and promote the
State. In the modern world it would be quite absurd to say or assert that
275
incorporating the human rights clauses in it, has internationalised the
human rights issue. Any nation or member State violating the human
However, the main drawback of the United Nations was that it did
against the violation of the human rights. To some extent this drawback
greatest defects.
human rights. The very fact that it was adopted by a big majority and
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
surprising one.
and the Optional Protocol to the Covenant on Civil and Political Rights
education and planning. Therefore, taking the realistic view, the State
realisation of these rights. Since each State will invariably face different
problems and since no two states are likely to have the same available
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
these economic, social and cultural rights but such limitations on the
social and cultural rights and for promoting the general welfare of the
people.
respect and ensure the rights it proclaims and to take whatever other
measures are required to achieve that goal. The ensuring of civil and
can help in achieving the obligations of the States under the Charter of
278
freedoms notwithstanding that the violation has been committed by
adopted by each State Party for ensuring civil and political rights to its
been enacted and the individuals of those States Parties which have
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
should not remain merely as Optional but it should be ratified by all the
and Political Rights aiming at the abolition of death penalty should also
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
rights.
must of course be made with great caution. To the extent that such
fifty have ratified Articles 21 and 22 to the Torture Convention, and all
harm, rather than enhance, the human rights treaty system, and hence
280
in recent decades, faith in the power of international law to shape
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,
assures all among other things dignity of the individual. Human rights
are part and parcel of human dignity. The importance of the human
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
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
282
established by law. Through the dynamics of judicial mutation in the
the procedure must be just, fair and reasonable before a person could
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
Court.
The preamble sets the human tone and temper of the Founding
the landmark case in Maneka Gandhi (A.I.R. 1978 S.C. 597), followed
punishments.
283
Article 22 provides protection against arrest and detention in certain
However, the steps taken by the government and the judicial attitude in
human rights, there are no effective human rights in the real sense.
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
284
Another positive feature of the Indian Constitution is that even
during the emergency, the right to move to the Court for the
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
education for children until they complete the age of fourteen years
285
are made aware about the human rights then it will help in protecting
these duties is to protect the human rights of the people and to enable
India can feel proud of its independent judicial system. In fact, 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
decree which may be necessary for doing complete justice in any cause
or matter before it. The judiciary has used these powers and interpreted
have a central place in our efforts to build a polity sustained by law. Our
286
and freedom, right to exploitation, freedom of religion, cultural and
human rights.
elite but by the welfare of the masses. The Indians, always nurture a
justice.
egalitarian and respect for Indias cultural diversity were central to the
287
In recent years, however the question of human rights has
assumed global significance, particularly after the end of the cold war
every group, every institution and every organ in the society, the
and protector of human rights. Towards this end every country has its
authority.
rights; the specific tasks of such institutions may vary considerably from
country to country but they share a common purpose, and for this
28S
international treaties on human rights and giving them an indigenous
characteristics.
the Commission at the district level or State level should work under the
which sets a hallmark in the Indian civil liberties movement was not a
289
sudden development, rather than its necessity was felt on various
reviews. While many had an open mind on how the Commission would
among them many who were strongly committed to the promotion and
protection of human rights-felt that the Statute was fatally flawed, that
post office and that, as a government body it would, in the final analysis,
the Commission would actually setback the movement for human rights
the real fight for rights, while offering them instead a placable, a
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
India, many of whom chose to repose their trust in it, the number of
fear or hesitation and to draw attention to those acts of the State and its
291
that the Commission has never lacked the democratic space in which to
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
remembered that the nature of NHRCs is such that they essentially play
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
for NHRCs in the form of Paris Principles. Much as they are very useful
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
to human rights.
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
very difficult role and a lot will depend upon the members and staff of
. :* t
human rights only,. when, they are vigilant of their rights. The
rights still continuing and will continue in future, until the under
any discrimination.
294
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