UNIT -1

Meaning of Human Rights

Human: noun
A member of the Homo sapiens species; a man, woman or child; a person.

Rights: noun
Things to which you are entitled or allowed; freedoms that are guaranteed.

Human Rights: noun

The rights you have simply because you are human.

Human rights are the basic rights and freedoms that belong to every person in the world, from
birth until death. They apply regardless of where you are from, what you believe or how you
choose to live your life. They can never be taken away, although they can sometimes be
restricted – for example if a person breaks the law, or in the interests of national security. These
basic rights are based on shared values like dignity, fairness, equality, respect and
independence. These values are defined and protected by law.
Human beings are born equal in dignity and rights. These are moral claims which are inalienable
and inherent in all individuals by virtue of their humanity alone, irrespective of caste, colour,
creed, and place of birth, sex, cultural difference or any other consideration. These claims are
articulated and formulated in what is today known as human rights. Human rights are sometimes
referred to as fundamental rights, basic rights, inherent rights, natural rights and birth rights.

Definition of Human Rights

1. The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as
“rights derived from the inherent dignity of the human person.” Human rights when they
are guaranteed by a written constitution are known as “Fundamental Rights” because a
written constitution is the fundamental law of the state.
2. Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every
individual must have against the State, or other public authority, by virtue of his being a
‘member of human family’ irrespective of any consideration. Durga Das Basu’s
definition brings out the essence of human rights.
3. Section 2 of the Protection of Human Rights Act, 1993 (hereafter referred to as 'the Act'),
"human rights" means the rights relating to life, liberty, equality and dignity of the
individual guaranteed under the Constitution or embodied in the International Covenants
and enforceable by courts in India. "International Covenants" means the International
Covenant on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights adopted by the General Assembly of the United Nations on the
16th December, 1966.
 Nature of Human Rights

1. Human Rights are Inalienable - Human rights are conferred on an individual due to the very
nature of his existence. They are inherent in all individuals irrespective of their caste, creed,
religion, sex and nationality. Human rights are conferred to an individual even after his death.
The different rituals in different religions bear testimony to this fact.

2. Human Rights are Essential and Necessary - In the absence of human rights, the moral,
physical, social and spiritual welfare of an individual is impossible. Human rights are also
essential as they provide suitable conditions for material and moral upliftment of the people.

3. Human Rights are in connection with human dignity - To treat another individual with dignity
irrespective of the fact that the person is a male or female, rich or poor etc. is concerned with
human dignity. For eg. In 1993, India has enacted a law that forbids the practice of carrying
human excreta. This law is called Employment of Manual Scavengers and Dry Latrines
(Prohibition) Act.

4. Human Rights are Irrevocable: Human rights are irrevocable. They cannot be taken away by
any power or authority because these rights originate with the social nature of man in the society
of human beings and they belong to a person simply because he is a human being. As such
human rights have similarities to moral rights.

5. Human Rights are Necessary for the fulfillment of purpose of life: Human life has a purpose.
The term “human right” is applied to those conditions which are essential for the fulfillment of
this purpose. No government has the power to curtail or take away the rights which are
sacrosanct, inviolable and immutable.

6. Human Rights are Universal – Human rights are not a monopoly of any privileged class of
people. Human rights are universal in nature, without consideration and without exception. The
values such as divinity, dignity and equality which form the basis of these rights are inherent in
human nature.

7. Human Rights are never absolute – Man is a social animal and he lives in a civic society,
which always put certain restrictions on the enjoyment of his rights and freedoms. Human rights
as such are those limited powers or claims, which are contributory to the common good and
which are recognized and guaranteed by the State, through its laws to the individuals. As such
each right has certain limitations.

8. Human Rights are Dynamic - Human rights are not static, they are dynamic. Human rights go
on expanding with socio-eco-cultural and political developments within the State. Judges have to
interpret laws in such ways as are in tune with the changed social values. For eg. The right to be
cared for in sickness has now been extended to include free medical treatment in public hospitals
under the Public Health Scheme, free medical examinations in schools, and the provisions for
especially equipped schools for the physically handicapped.

9. Rights as limits to state power - Human rights imply that every individual has legitimate
claims upon his or her society for certain freedom and benefits. So human rights limit the state’s
power. These may be in the form of negative restrictions, on the powers of the State, from
violating the inalienable freedoms of the individuals, or in the nature of demands on the State,
i.e. positive obligations of the State. For eg. Six freedoms that are enumerated under the right to
liberty forbid the State from interfering with the individual.

Evolution of Human Rights

The evolutions of human rights have taken place over centuries. Man had to struggle hard in
order to achieve the ultimate goal – living with dignity – which still has to be realized in various
societies. India itself is an example where women, children, dalits, bonded labourers, etc, is
trying hard to be a part of mainstream. Inspite of all these, the world recognized the U.N.Charter
of 1945 which states that human rights are inalienable aspect of mankind. The origin of human
rights may be traced to the theory of Natural Rights derived from the concept of Natural Law, as
propounded by ancient Greek Stoic Philosophers and further developed by Thomas Hobbes and
John Locke. The American and French Revolution gave further impetus to the struggle of human
rights. The evolution and development of human rights in the international context can be traced
to the Magna Carta and the English Bill of Rights followed by the French Declaration and the
American Bill of Rights. The twentieth century witnessed the crystallization of the philosophy of
Human Rights when the United Nations adopted the UN Charter, 1945, The Universal
Declaration of Human Rights, 1948 and the International Covenants on Human Rights with
further emphasis to protection of rights of Women, Abolition of Slavery, Racial Discrimination,
Civil and Political Rights, Economic, Social and Cultural Rights and most importantly the Rights
of children. In India, the drafters of Constitution took care to incorporate Human Rights for its
own citizens as well as for the aliens.

The Cyrus Cylinder (539 B.C.)

In 539 B.C., the armies of Cyrus the Great, the first king of ancient Persia, conquered the city of
Babylon. But it was his next actions that marked a major advance for Man. He freed the slaves,
declared that all people had the right to choose their own religion, and established racial equality.
These and other decrees were recorded on a baked-clay cylinder in the Akkadian language with
cuneiform script.

Known today as the Cyrus Cylinder, this ancient record has now been recognized as the world’s
first charter of human rights. It is translated into all six official languages of the United Nations
and its provisions parallel the first four Articles of the Universal Declaration of Human Rights.
The Code of Hammurabi was one of the earliest and most complete wr itten legal
codes and was proclaimed by the Babylonian king Hammurabi, who reigned from
1792 to 1750 B.C. Hammurabi expanded the city-state of Babylon along the Euphrates
River to unite all of southern Mesopotamia. The Hammurabi code of laws, a collection
of 282 rules, established standards for commercial interactions and set fines and
punishments to meet the requirements of justice. Hammurabi’s Code was carved onto
a massive, finger-shaped black stone stele (pillar) that was looted by invaders and
finally rediscovered in 1901.

From Babylon, the idea of human rights spread quickly to India, Greece and eventually Rome.
There the concept of “natural law” arose, in observation of the fact that people tended to follow
certain unwritten laws in the course of life, and Roman law was based on rational ideas derived
from the nature of things.

Documents asserting individual rights, such as the Magna Carta (1215), the Petition of Right
(1628), the US Constitution (1787), the French Declaration of the Rights of Man and of the
Citizen (1789), and the US Bill of Rights (1791) are the written precursors to many of today’s
human rights documents.

The Magna Carta, 1215

The Magna Carta, also known as the Great Charter, of 1215 is the most significant constitutional
document of all human history. The main theme of it was protection against the arbitrary acts by
the king. The 63 clauses of the Charter guaranteed basic civic and legal rights to citizens, and
protected the barons from unjust taxes. The English Church too gained freedom from royal
interferences. King John of England granted the Magna Carta to the English barons on 15th June
1215. The king was compelled to grant the Charter, because the barons refused to pay heavy
taxes unless the king signed the Charter.

The English Bill of Rights, 1689

The next source and avenue of the development of the philosophy of human rights is the English
Bill of Rights, enacted on December 16, 1689, by the British Parliament. The British Parliament
declared its supremacy over the Crown in clear terms. The English Bill of Rights declared that
the king has no overriding authority. The Bill of Rights codified the customary laws, and
clarified the rights and liberties of the citizens. It lays down the twin foundations, viz., the
supremacy of the law, and the sovereignty of the nation, upon which, the English constitution
rests.

American Declaration of Independence, 1776

The first colonies to revolt against England were the thirteen States of America. These states
declared their independence from their mother country on 4th July 1776. The declaration charges
the king 7 with tyranny and affirms the independence of the American colonies. The declaration
of independence has great significance in the history of mankind as it justified the right to revolt
against a government that no longer guaranteed the man’s natural and inalienable rights.

The U.S. Bill of Rights, 1791

The U.S. Constitution was enacted on 17th September 1787. The most conspicuous defect of the
original constitution was the omission of a Bill of Rights concerning private rights and personal
liberties. Madison, therefore proposed as many as twelve amendments in the form of Bill of
Rights. Ten of these were ratified by the State legislatures. These ten constitutional amendments
came to be known as the Bill of Rights. The overall theme of the Bill of Rights is that the citizen
be protected against the abuse of power by the officials of the States. The Bill of Rights protects
freedom of speech, freedom of religion, the right to keep and bear arms, the freedom of assembly
and the freedom to petition. It also prohibits unreasonable search and seizure, cruel and unusual
punishment and compelled self-incrimination. Among the legal protections it affords, the Bill of
Rights prohibits Congress from making any law respecting establishment of religion and
prohibits the federal government from depriving any person of life, liberty or property without
due process of law. In federal criminal cases it requires indictment by a grand jury for any capital
offense, or infamous crime, guarantees a speedy public trial with an impartial jury in the district
in which the crime occurred, and prohibits double jeopardy.

The French Declaration of the Rights of Man and of the Citizen, 1789

The fall of Bastille and the abolition of feudalism, serfdom and class privileges by the National
Assembly ushered France into a new era. On 4th August 1789, the National Assembly
proclaimed the Rights of Man and of the Citizens. The Rights were formulated in 17 Articles.
The Declaration of the Rights of Man and of the Citizen has far reaching importance not only in
the history of France but also in the history of Europe and mankind. The declaration served as
the death warrant for the old regime and introduced a new social and political order, founded on
the noble and glittering principles. Further the declaration served as the basis for many
Constitutions, framed in different countries, where the framers gave top priority to human rights.

The First Geneva Convention (1864)

In 1864, sixteen European countries and several American states attended a conference in
Geneva, at the invitation of the Swiss Federal Council, on the initiative of the Geneva
Committee. The diplomatic conference was held for the purpose of adopting a convention for the
treatment of wounded soldiers in combat.
The main principles laid down in the Convention and maintained by the later Geneva
Conventions provided for the obligation to extend care without discrimination to wounded and
sick military personnel and respect for and marking of medical personnel transports and
equipment with the distinctive sign of the red cross on a white background.
Declaration of International Rights of Man, 1929

After World War I, questions about human rights and fundamental freedoms began to be raised.
In 1929, the Institute of International Law adopted the Declaration of International rights of Man.
The Declaration declared that fundamental rights of citizen, recognized and guaranteed by
several domestic constitutions, especially those of the French and the U.S.A constitutions, were
in reality meant not only for citizens of the states but for all men all over the world, without any
consideration.

Between World War I and World War II

The League of Nations was established in 1919 at the negotiations over the Treaty of
Versailles following the end of World War I. The League's goals included disarmament,
preventing war through collective security, settling disputes between countries through
negotiation, diplomacy and improving global welfare. Enshrined in its Charter was a mandate to
promote many of the rights which were later included in the Universal Declaration of Human
Rights.
The League of Nations had mandates to support many of the former colonies of the Western
European colonial powers during their transition from colony to independent state.
Established as an agency of the League of Nations, and now part of United Nations,
the International Labour Organization also had a mandate to promote and safeguard certain of
the rights later included in the UDHR: the primary goal of the ILO today is to promote
opportunities for women and men to obtain decent and productive work, in conditions of
freedom, equity, security and human dignity.

Modern Human Rights Movement

After World War II

The Geneva Conventions came into being between 1864 and 1949 as a result of efforts
by Henry Dunant, the founder of the International Committee of the Red Cross. The conventions
safeguard the human rights of individuals involved in conflict, and follow on from the 1899 and
1907 Hague Conventions, the international community's first attempt to define laws of war.
Despite first being framed before World War II, the conventions were revised as a result of
World War II and readopted by the international community in 1949.
In addition, there are three additional amendment protocols to the Geneva Convention:
All four conventions were last revised and ratified in 1949, based on previous revisions and
partly on some of the 1907 Hague Conventions. Later, conferences have added provisions
prohibiting certain methods of warfare and addressing issues of civil wars. Nearly all 200
countries of the world are "signatory" nations, in that they have ratified these conventions.
The International Committee of the Red Cross is the controlling body of the Geneva
conventions.
The UN Charter, 1945

The United Nations Charter was drafted, approved and unanimously adopted by all the delegates
of the 51 states, who attended the United Nations Conference at San Francisco. The UN Charter
contains provisions for the promotion and protection of 8 human rights. The importance of the
Charter lies in the fact that it is the first official document in which the use of ‘human rights’ is,
for the first time traceable and which also recognized the respect for fundamental freedom.

The Universal Declaration of Human Rights, 1948

The Universal Declaration of Human Rights was adopted by the General Assembly of the United
Nations on 10th December, 1948. The Declaration consists of thirty Articles and covers civil,
political, economic, social and cultural rights for all men, women and children. The declaration
however is not a legally binding document. It is an ideal for all mankind.

International Covenants on Human Rights

The Universal Declaration of Human Rights, 1948 was not a legally binding document. It lacked
enforcements. This deficiency was sought to be removed by the U.N. General Assembly by
adopting in December, 1966, the two Covenants, viz,

1. International Covenant on Civil and Political Rights and

2. International Covenant on Economic, Social and Cultural Rights.

The two International Covenants, together with the Universal Declaration and the Optional
Protocols, comprise the International Bill of Human Rights. The International Bill of Human
Rights represents a milestone in the history of human rights. It is a modern Magna Carta of
human rights. All states which have signed and ratified international instruments are under a
legal obligation to take legislative measures within their respective territories to incorporate and
legally enforce these international instruments and make local laws compatible with the
provisions of international human rights instruments.

Types of Human Rights

Although human rights have been classified in a number of different manners it is important to
note that international human rights law stresses that all human rights are universal, indivisible
and interrelated (e.g., Vienna Declaration and Programme of Action (1993), para. 5). The
indivisibility of human rights implies that no right is moreimportant than any other.

1. CLASSIC AND SOCIAL RIGHTS

One classification used is the division between ‘classic’ and ‘social’ rights. ‘Classic’ rights are
often seen to require the non-intervention of the state (negative obligation), and ‘social rights’
as requiring active intervention on the part of the state (positive obligations). In other words,
classic rights entail an obligation for the state to refrain from certain actions, while social rights
oblige it to provide certain guarantees. Lawyers often describe classic rights in terms of a duty to
achieve a given result (‘obligation of result’) and social rights in terms of a duty to provide the
means (‘obligations of conduct’). The evolution of international law, however, has lead to this
distinction between ‘classic’ and ‘social’ rights becoming increasingly awkward. Classic rights
such as civil and political rights often require considerable investment by the state. The state
does not merely have the obligation to respect these rights, but must also guarantee that people
can effectively enjoy them. Hence, the right to a fair trial, for instance,requires well-trained
judges, prosecutors, lawyers and police officers, as well as administrative support. Another
example is the organisation of elections, which also entails high costs.

On the other hand, most ‘social’ rights contain elements that require the state to abstain from
interfering with the individual’s exercise of the right. As several commentators note, the right to
food includes the right for everyone to procure their own food supply without interference; the
right to housing implies the right not to be a victim of forced eviction; the right to work
encompasses the individual’s right to choose his/her own work and also requires the state not to
hinder a person from working and to abstain from measures that would increase unemployment;
the right to education implies the freedom to establish and direct educational establishments; and
the right to the highest attainable standard of health implies the obligation not to interfere with
the provision of health care.

In sum, the differentiation of ‘classic’ rights from ‘social’ rights does not reflect the nature of the
obligations under each set of rights.

2, CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Civil rights
The term ‘civil rights’ is often used with reference to the rights set out in the first eighteen
articles of the UDHR, almost all of which are also set out as binding treaty norms in the ICCPR.
From this group, a further set of ‘physical integrity rights’ has been identified, which concern the
right to life, liberty and security of the person, and which offer protection from physical violence
against the person, torture and inhuman treatment, arbitrary arrest, detention, exile, slavery and
servitude, interference with one’s privacy and right of ownership, restriction of one’s freedom of
movement, and the freedom of thought, conscience and religion. The difference between ‘basic
rights’ (see below) and ‘physical integrity rights’ lies in the fact that the former include
economic and social rights, but do not include rights such as protection of privacy and
ownership.

Although not strictly an integrity right, the right to equal treatment and protection in law
certainly qualifies as a civil right. Moreover, this right plays an essential role in the realisation of
economic, social and cultural rights.
Another group of civil rights is referred to under the collective term ‘due process rights’. These
pertain, among other things, to the right to a public hearing by an independent and impartial
tribunal, the ‘presumption of innocence’, the ne bis in idem principle (freedom from double
jeopardy) and legal assistance (see, e.g., Articles 9, 10, 14 and 15 ICCPR).
Political rights
In general, political rights are those set out in Articles 19 to 21 UDHR and also codified in the
ICCPR. They include freedom of expression, freedom of association and assembly, the right to
take part in the government of one’s country and the right to vote and stand for election at
genuine periodic elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 ICCPR).

Economic and social rights

The economic and social rights are listed in Articles 22 to 26 UDHR, and further developed and
set out as binding treaty norms in the ICESCR. These rights provide the conditions necessary for
prosperity and wellbeing. Economic rights refer, for example, to the right to property, the right to
work, which one freely chooses or accepts, the right to a fair wage, a reasonable limitation of
working hours, and trade union rights. Social rights are those rights necessary for an adequate
standard of living, including rights to health, shelter, food, social care, and the right to education
(see Articles 6 to 14 ICESCR).

Cultural rights
The UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural
life of the community, the right to share in scientific advancement and the right to the protection
of the moral and material interests resulting from any scientific, literary or artistic production of
which one is the author (see also Article 15 ICESCR and Article 27 ICCPR).

3. FUNDAMENTAL AND BASIC RIGHTS

Fundamental rights are taken to mean such rights as the right to life and the inviolability of the
person. Within the UN, extensive standards have been developed which, particularly since the
1960s, have been laid down in numerous conventions, declarations and resolutions, and which
bring already recognised rights and matters of policy which affect human development into the
sphere of human rights. Concern that a broad definition of human rights may lead to the notion
of ‘violation of human rights’ losing some of its significance has generated a need to distinguish
a separate group within the broad category of human rights. Increasingly, the terms ‘elementary’,
‘essential’, ‘core’ and ‘fundamental’ human rights are being used.

Another approach is to distinguish a number of ‘basic rights’, which should be given absolute
priority in national and international policy. These include all the rights which concern people’s
primary material and non-material needs. If these are not provided, no human being can lead a
dignified existence. Basic rights include the right to life, the right to a minimum level of security,
the inviolability of the person, freedom from slavery and servitude, and freedom from torture,
unlawful deprivation of liberty, discrimination and other acts which impinge on human dignity.
They also include freedom of thought, conscience and religion, as well as the right to suitable
nutrition, clothing, shelter and medical care, and other essentials crucial to physical and mental
health.
Mention should also be made of so-called ‘participation rights’; for instance, the right to
participate in public life through elections (which is also a political right; see above) or to take
part in cultural life. These participation rights are generally considered to belong to the category
of fundamental rights, being essential preconditions for the protection of all kinds of basic
human rights.

4. OTHER CLASSIFICATIONS

Freedoms
Preconditions for a dignified human existence have often been described in terms of freedoms
(e.g., freedom of movement, freedom from torture and freedom from arbitrary arrest). United
States President Franklin D. Roosevelt summarised these preconditions in his famous ‘Four
Freedoms Speech’ to the United States Congress on 26 January 1941:
 Freedom of speech and expression;
 Freedom of belief (the right of every person to worship God in his own way);
 Freedom from want (economic understandings which will secure to every nation
a healthy peace-time life for its inhabitants); and
 Freedom from fear (world-wide reduction of armaments to such a point and in such a
thorough fashion that no nation would be able to commit an act of physical
aggression against any neighbour).
Roosevelt implied that a dignified human existence requires not only protection from oppression
and arbitrariness, but also access to the primary necessities of life.

Civil liberties
The concept of ‘civil liberties’ is commonly known, particularly in the United States, where the
American Civil Liberties Union (a non-governmental organisation) has been active since the
1920s. Civil liberties refer primarily to those human rights which are laid down in the United
States Constitution: freedom of religion, freedom of the press, freedom of expression, freedom of
association and assembly, protection against interference with one’s privacy, protection against
torture, the right to a fair trial, and the rights of workers. This classification does not correspond
to the distinction between civil and political rights.

Individual and collective rights

Although the fundamental purpose of human rights is the protection and development of the
individual (individual rights), some of these rights are exercised by people in groups (collective
rights). Freedom of association and assembly, freedom of religion and, more especially, the
freedom to form or join a trade union, fall into this category. The collective element is even more
evident when human rights are linked specifically to membership of a certain group, such as the
right of members of ethnic and cultural minorities to preserve their own language and culture.
One must make a distinction between two types of rights, which are usually called collective
rights: individual rights enjoyed in association with others, and the rights of a collective.

The most notable example of a collective human right is the right to self-determination, which is
regarded as being vested in peoples rather than in individuals (see Articles 1 ICCPR and
ICESCR). The recognition of the right to self-determination as a human right is grounded in the
fact that it is seen as a necessary precondition for the development of the individual. It is
generally accepted that collective rights may not infringe on universally accepted individual
rights, such as the right to life and freedom from torture.

Three Generation of Human Rights

The division of human rights into three generations was initially proposed in 1979 by
the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg. He
used the term at least as early as November 1977. Vasak's theories have primarily taken root in
European law.His divisions follow the three watchwords of the French Revolution: Liberty,
Equality, and Fraternity. The three generations are reflected in some of the rubrics of the Charter
of Fundamental Rights of the European Union. The Universal Declaration of Human
Rights includes rights that are thought of as second generation as well as first generation ones,
but it does not make the distinction in itself
First generation rights are related to liberty and refer fundamentally to civil and political rights.
The second generation rights are related to equality, including economic, social and cultural
rights. Third generation or ‘solidarity rights’ cover group and collective rights, which
include, inter alia, the right to development, the right to peace and the right to a clean
environment. The only third generation right which so far has been given an official human
rights status - apart from the right to selfdetermination, which is of longer standing - is the right
to development (see the Declaration on the Right to Development, adopted by the UNGA on 4
December 1986, and the 1993 Vienna Declaration and Programme of Action (Paragraph I, 10)).
The Vienna Declaration confirms the right to development as a collective as well as an
individual right, individuals being regarded as the primary subjects of development. Recently,
the right to development has been given considerable attention in the activities of the High
Commissioner for Human Rights. Adoption of a set of criteria for the periodic evaluation of
global development partnerships from the perspective of the right to development by the
Working Group on the Right to Development, in January, 2006, evidence the concrete steps
being taken in this area. The EU and its member states also explicitly accept the right to
development as part of the human rights concept.
While the classification of rights into ‘generations’ has the virtue of incorporating communal and
collective rights, thereby overcoming the individualist moral theory in which human rights are
grounded, it has been criticised for not being historically accurate and for establishing a sharp
distinction between all human rights. Indeed, the concept of generations of rights is at odds with
the Teheran Proclamation and the Vienna Declaration and Programme of Action, which establish
that all rights are indivisible, interdependent and interrelated.

Human Rights and Domestic Jurisdiction

In earlier times, whenever human rights violations were openly condemned by third states, the
authorities concerned countered with references to ‘unacceptable interference in internal affairs’.
In more recent years, this argument has lost ground when human rights are at stake. The Second
World War constituted a turning point in the way the international community regards its
responsibility for the protection of and respect for human rights. The long-standing principle of
state sovereignty vis-à-vis one’s nationals has in the course of the years been eroded. The UN
Charter explicitly proclaimed human rights to be a matter of legitimate, international concern:
‘[...] the United Nations shall promote [...] universal respect for, and observance of, human rights
and fundamental freedoms for all without distinction as to race, sex, language or religion’
(Article 55); and ‘All Members pledge themselves to take joint and separate action in co-
operation with the Organisation for the achievement of the purposes set forth in Article 55’
(Article 56).
These commitments were reaffirmed in the Sixth and Seventh principles of the Helsinki Final
Act of the Conference on Security and Co-operation in Europe of 1975 (see II§5), and during the
Vienna World Conference on Human Rights of 1993. The traditional (broad) interpretation of the
principle of national sovereignty has thus been limited in two crucial, and related, respects.
Firstly, how a state treats its own subjects is nowadays considered a legitimate concern of the
international community. Secondly, there are now superior international standards, established
by common consent, which may be used for appraising domestic laws, and the actual conduct of
sovereign states within their own territories, and in the exercise of their internal jurisdiction.

Thus, whether a state has accepted international human rights norms, laid down in conventions,
is relevant but not the only decisive factor: human rights, as formulated in the UDHR, have
become a matter of international concern and do not fall within the exclusive jurisdiction of
states. As stated in the 1993 Vienna Declaration and Programme of Action: ‘[T]he promotion
and protection of all human rights is a legitimate concern of the international community’. In
other words: there is a right to interfere in case of human rights violations. Interference can be
defined, in this context, as any form of international involvement in the affairs of other states,
excluding involvement in which forms of coercion are used (‘intervention’). The distinction
between interference and intervention is relevant: the fact that the principle of noninterference
does not apply to human rights questions does not mean that states may react to human rights
violations by making use of military means. This could amount to a violation of the prohibition
of use of force, as laid down in the UN Charter (Article 2(4)). Some human rights experts claim
that the United Nations Security Council should decide that a certain human rights situation
poses a threat to international peace and security and on the basis of that decision authorise
military action for humanitarian purposes, undertaken under the auspices of the UN.

Unit 2

UN and Human Rights

International human rights law lays down the obligations of Governments to act in certain ways
or to refrain from certain acts, in order to promote and protect human rights and fundamental
freedoms of individuals or groups.

One of the great achievements of the United Nations is the creation of a comprehensive body of
human rights law—a universal and internationally protected code to which all nations can
subscribe and all people aspire. The United Nations has defined a broad range of internationally
accepted rights, including civil, cultural, economic, political and social rights. It has also
 established mechanisms to promote and protect these rights and to assist states in carrying out
their responsibilities.

The foundations of this body of law are the Charter of the United Nations and the Universal
Declaration of Human Rights, adopted by the General Assembly in 1945 and 1948,
respectively. Since then, the United Nations has gradually expanded human rights law to
encompass specific standards for women, children, persons with disabilities, minorities and other
vulnerable groups, who now possess rights that protect them from discrimination that had long
been common in many societies.

Economic, social and cultural rights

The International Covenant on Economic, Social and Cultural Rights entered into force in 1976.
The human rights that the Covenant seeks to promote and protect include:

 the right to work in just and favourable conditions;

 the right to social protection, to an adequate standard of living and to the highest attainable
standards of physical and mental well-being;
 the right to education and the enjoyment of benefits of cultural freedom and scientific
progress.

Civil and political rights

The International Covenant on Civil and Political Rights and its First Optional Protocol entered
into force in 1976. The Second Optional Protocol was adopted in 1989.

The Covenant deals with such rights as freedom of movement; equality before the law; the right
to a fair trial and presumption of innocence; freedom of thought, conscience and religion;
freedom of opinion and expression; peaceful assembly; freedom of association; participation in
public affairs and elections; and protection of minority rights. It prohibits arbitrary deprivation of
life; torture, cruel or degrading treatment or punishment; slavery and forced labour; arbitrary
arrest or detention; arbitrary interference with privacy; war propaganda; discrimination; and
advocacy of racial or religious hatred.

Human Rights Conventions

A series of international human rights treaties and other instruments adopted since 1945 have
expanded the body of international human rights law. They include the Convention on the
Prevention and Punishment of the Crime of Genocide (1948), the International Convention on
the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination
of All Forms of Discrimination against Women (1979), the Convention on the Rights of the
Child (1989) and the Convention on the Rights of Persons with Disabilities (2006), among
others.

Human Rights Council

The Human Rights Council, established on 15 March 2006 by the General Assembly and
reporting directly to it, replaced the 60-year-old UN Commission on Human Rights as the key
UN intergovernmental body responsible for human rights. The Council is made up of 47 State
representatives and is tasked with strengthening the promotion and protection of human rights
around the globe by addressing situations of human rights violations and making
recommendations on them, including responding to human rights emergencies.

The most innovative feature of the Human Rights Council is the Universal Periodic Review. This
unique mechanism involves a review of the human rights records of all 192 UN member states
once every four years. The Review is a cooperative, state-driven process, under the auspices of
the Council, which provides the opportunity for each state to present measures taken and
challenges to be met to improve the human rights situation in their country and to meet their
international obligations. The Review is designed to ensure universality and equality of treatment
for every country.

UN High Commissioner for Human Rights

The United Nations High Commissioner for Human Rights exercises principal responsibility for
UN human rights activities. The High Commissioner is mandated to respond to serious violations
of human rights and to undertake preventive action.

The Office of the High Commissioner for Human Rights (OHCHR) is the focal point for United
Nations human rights activities. It serves as the secretariat for the Human Rights Council, the
treaty bodies (expert committees that monitor treaty compliance) and other UN human rights
organs. It also undertakes human rights field activities.

Most of the core human rights treaties have an oversight body which is responsible for reviewing
the implementation of that treaty by the countries that have ratified it. Individuals, whose rights
have been violated, can file complaints directly to Committees overseeing human rights treaties.

Human Rights and the UN System

Human rights is a cross-cutting theme in all UN policies and programmes in the key areas of
peace and security, development, humanitarian assistance, and economic and social affairs. As a
result, virtually every UN body and specialized agency is involved to some degree in the
protection of human rights. Some examples are the right to development, which is at the core of
the Sustainable Development Goals; the right to food, championed by the UN Food and
Agriculture Organization, labour rights, defined and protected by the International Labour
Organization, gender equality, which is promulgated by UN Women, the rights of children,
indigenous peoples, and disabled persons.

Human rights day is observed every year on 10 December.

The Universal Declaration of Human Rights

UDHR is a milestone document in the history of human rights. Drafted by representatives with
different legal and cultural backgrounds from all regions of the world, the Declaration was
proclaimed by the United Nations General Assembly in Paris on 10 December 1948 by General
Assembly resolution 217 A (III) as a common standard of achievements for all peoples and all
nations. It sets out, for the first time, fundamental human rights to be universally protected. Since
its adoption in 1948, the UDHR has been translated into more than 500 languages - the most
translated document in the world - and has inspired the constitutions of many newly independent
States and many new democracies. The UDHR, together with the International Covenant on
Civil and Political Rights and its two Optional Protocols (on the complaints procedure and on
the death penalty) and the International Covenant on Economic, Social and Cultural Rights and
its Optional Protocol, form the so-called International Bill of Human Rights. It was the first time
in history that a document with universal value (it refers to “all members of the human family,”
which means all of us) was adopted by an international organisation.

The drafting commission was a suitably diverse bunch, with Eleanor Roosevelt (wife of US
President Franklin Delano Roosevelt) chairing, and various members from countries such as
Lebanon, China, France, Chile and the Philippines, to mention a few.

UDHR Preamble

The UDHR begins with a preamble. Think of a preamble in terms of a book’s introduction: it
explains the Declaration and sets out its underlying values. Rene Cassin, the French member of
the drafting commission, compared the Preamble to the steps leading up to a house.

It is a vital part of the UDHR because it places it within a historical context, and explains what it
meant to the 48 countries that ratified the document back in 1948 (the UN had 58 members at the
time).

The Universal Declaration of Human Rights

The UDHR contains 30 articles, and covers the most fundamental rights and freedoms of people
(collectively and individually) everywhere in the world. The articles can be divided into 6
groups. The Preamble, remember, is like the steps leading to a house.
 Articles 1 and 2 are the foundation blocks on which the UDHR is built. They reaffirm human
dignity, equality and brotherhood.

 Articles 3-11 are the house’s first column. They are the rights of the individual: the right to
life, outlawing of slavery or torture, equality before the law, the right to a fair trial etc.

 Articles 12-17 are the second column. These are the rights of individuals within civil and
political society. They include freedom of movement, the right to a nationality, the right to
marry and found a family, as well as the right to own property.

 Articles 18-21 are column number three. They are the spiritual and religious rights of
individuals, such as freedom of thought and conscience (i.e. religion), the right to your own
opinion, the right to peaceful assembly and association, and the right to vote and take part in
government.

 Articles 22-27 are the final column to the UDHR house. They are the social, economic and
cultural rights of the individual. They include the right to work, the right to rest and leisure, the
right to a decent standard of living, and the right to education.

 The final three articles, 28-30, are the pediment that binds these four columns together. They
remind us that rights come with obligations, and that none of the rights mentioned in the
UDHR can be used to violate the spirit of the United Nations(Remember: the Preamble, or
steps to the house, establishes this spirit).

Development of Human Rights in India

Protection of human rights is essential for the development of the people of the country, which
ultimately leads to development of the national as a whole. The Constitution of India guarantees
basic human rights to each and every citizen of the country. The framers of the Constitution have
put their best efforts in putting down the necessary provisions. However, with continuos
developments taking place, the horizon of human rights has also expanded. The parliamentarians
are now playing a great role in recognizing the rights of people and passing statues, amending
provisions etc. as and when required. The Human Rights in India originated long time ago. It can
easily be recognized from the principles of Buddhism, Jainism. Hindu religious books and
religious texts like Gita, Vedas, Arthasatra and Dharmashstra also contained provisions of human
rights. Muslim rulers like Akbar and Jahangir were also very much appreciated for his regard for
rights and justice. During the early British era, the people suffered a great violation of several
rights and this led to the birth of modern Human Rights jurisprudence in India.
On January 24, 1947, Constituent Assembly voted to form an advisory committee on
Fundamental Rights with Sardar Patel as the Chairman. Drafted list of rights were prepared by
Dr. B. R. Ambedkar, B. N. Rau, K. T. Shah, Harman Singh, K. M. Musnshi and the Congress
expert committee. Although there were few amendments proposed, there was almost no
disagreement on the principles incorporated. The rights in the Universal Declaration of Human
Rights were almost completely covered in the Indian Constitution either in Fundamental Rights
or Directive Principles of State Policy. Nineteen fundamental rights were covered in Motilal
Nehru Committee Report, 1928 out of which ten appear in the Fundamental Rights whereas
three of them appear as Fundamental Duties.

International Human Rights and Fundamental Rights (Part III of COI)

India had signed the Universal Declaration on Human Rights January 01, 1942. Part III of the
Constitution India ‘also referred as magna carta’ contains the Fundamental rights. These are the
rights which are directly enforceable against the state in case of any violation. Article
13(2) prohibits state from making any law in violation of the Fundamental Rights. It always
provides that if a part of law made is against the Fundamental Rights, that part would be declared
as void. If the void part cannot be separated from the main act, the whole act may be declared as
void.

In the case of Keshvanand Bharti v. State of Kerela, the apex court observed: “The Universal
Declaration of Human Rights may not be a legally binding instrument but it shows how India
understood the nature of human rights at the time the Constitution was adopted.”

In the case of Chairman, Railway Board & Ors. v. Chandrima Das & Ors., it was observed that
UDHR has been recognized as Model code of conduct adopted by United Nations General
Assembly. The principles may have to be read if needed in domestic jurisprudence.

Provisions of Universal Declaration of Human Rights along with corresponding provisions

in Constitution of India are as follows:
Brief Description of Provision UDHR COI

Equality and equal protection before law Article 7 Article 14

Remedies for violation of Fundamental Rights Article 8 Article 32

Right to Life and personal liberty Article 9 Article 21

Article
Protection in respect for conviction of offences Article 20(1)
11(2)

Earlier a Fundamental Right

Right to property Article 17
under Article 31

Right to freedom of conscience and to practice, profess

Article 18 Article 25(1)
and propagate any religion

Freedom of speech Article 19 Article 19(1)(a)

Article
Equality in opportunity of public service Article 16(1)
21(2)

Protection of minorities Article 22 Article 29(1)

Article
Right to education Article 21A
26(1)

Many of the civil and political rights contained in the International Covenant on Political and
Civil Rights, 1966 (ICCPR) are also contained in the Part III of the Constitution of India. India
has signed and ratified the ICCPR.
In the case of Jolly George Varghese & Anr. v. Bank of Cochin, J. Krishna Iyer observed that
though a provision is present in ICCPR but not in Indian Constitution, does not make the
covenant an enforceable part of ‘Corpus Juris’ in India.

Provisions of ICCPR along with corresponding provision of Constitution of India are as

follows:

Brief Description of Provision ICCPR COI

Article 6(1) &

Right to life and liberty Article 21
9(1)

Prohibition of trafficking and forced labour Article 8(3) Article 23

Article 9(2),
Protection against detention in certain cases Article 22
(3) and (4)

Article
Freedom of movement Article 12(1)
19(1)(d)

Right to equality Article 14(1) Article 14

Article
Right not to be compelled to be a witness against own self Article 20(3)
14(3)(g)

Protection against double jeopardy Article 14(7) Article 20(2)

Protection against ex-post facto law Article 15(1) Article 20(1)

Article 18(1)
Right to freedom of conscience and to practice, profess and propagate Article 25(1) &
any religion 25(2)(a)

Article 19(1) Article

Freedom of speech and expression
& (2) 19(1)(a)

Article
Right to assembly peacefully Article 21
19(1)(b)

Article
Right to form union/ association Article 22(1)
19(1)(c)

Equality in opportunity of public service Article 25(c) Article 16(1)

Equality and equal protection before law and no discrimination on the Article 14 &
Article 26
basis of any ground such as race, colour, sex, language, religion etc. 15(1)

Article 29(1) &

Protection of interests of minorities Article 27
30

Some of the rights which were not earlier included in Fundamental Rights but were available in
ICCPR. They were considered as Fundamental Rights by various judicial pronouncements. Some
of them are Right to fair trial, Right to privacy, Right to legal aid, Right to travel abroad. I will
be dealing with them in detail at the later part of this article.

International Covenant on Economic, Social and Cultural Rights (ICESCR) and Directive
Principles of State Policy (Part IV of COI)

The ICESCR is a multilateral treaty which mainly focuses on social and cultural rights like food,
health, education, shelter etc. India ratified this covenant on April 10, 1979. Most of the
provisions in this covenant are found in Part IV (DPSPs) of the Indian Constitution.
Provisions of ICESCR along with corresponding provision of Constitution of India are as
follows:

Brief Description of Provision ICESCR COI

Right to work Article 6(1) Article 41

Equal Pay for equal work Article 7(a)(i) Article 39(d)

Article 7(a)(ii) &

Right to living wage and descent standard for life. Article 43
(d)

Article 7(b) and

Humane conditions of work and maternity leave. Article 42
10(2)

Faculties and opportunities to children for prevention against

Article 10(3) Article 39(f)
exploitation.

Improving public health and raise level of nutrition and standard

Article 11 Article 47
of living.

Compulsory education for children Article 13(2)(a) Article 45

Article 29(1) &

Protection of interests of minorities Article 27
30

Unremunerated Fundamental Rights

A number of rights that were available in the covenant were not available as fundamental rights
at the time of enactment of Constitution. The judicial interpretations have widened the scope of
fundamental rights available in the Indian Constitution.

In the court of A.D.M. Jabalpur v. Shivkant Shukla, the apex court had observed that the law of
land does not recognize any natural or common law rights other than specifically provided in the
Indian Constitution.

Later, in the case of Maneka Gandhi v. Union of India, J. Bhagwati observed; “The expression
’personal liberty’ in article 21 is of the widest amplitude and it covers a variety of rights, which
go to constitute the personal liberty of man and some of them have been raised to the status of
distinct fundamental rights and given additional protection under Article 19. No person can be
deprived of his right to go abroad unless there is a law made by the State prescribing the
procedure for so depriving him, and the deprivation is effected strictly in accordance with such
procedure.”

After the present case, the apex court came up with the “theory of emanation” in order to make
fundamental rights active and meaningful. Also, relaxation to the rule of ‘locus standi’ was given
by the court. Some of the major judicial interpretations of Fundamental Right are as follows:

Right Case Law

Right to live with Human Dignity PUCL & Anr. v. State of Maharstra & Ors.

Right to Clean Air M.C. Mehta (Taj Trapezium Matter) v. Union of India

Right to Clean Water M.C. Mehta v. Union of India & Ors

Right to freedom from Noise Pollution In Re: Noise Pollution

Right to Speedy Trial Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar
Right to Free Legal Aid Khatri And Others v. State of Bihar & Ors.

Right to Livelihood Olga Tellis & Ors. v. Bombay Municipal Corporation

Right to Food Kishen Patnayak v. State of Odisha

Right to Medical Care Pt. Parmanand Katara v. Union of India &Ors.

Right to Clean Environment Rural Litigation And Entitlement Kendra v. State Of U.P. & Ors

Right to Privacy K .S. Puttaswamy & Anr. v. Union of India & Ors

Human Rights are the basic rights which form the essential part of his/her development as human
being. Constitution acts as a protector of those basic rights as Fundamental Rights and DPSPs.
More emphasis has been given to the fundamental rights and they are directly enforceable in the
court of law. From a deep study of the Part III and Part IV of the Indian Constitution, it is easily
evident that almost all of the rights provided in UDHR (Universal Declaration on Human Rights)
are covered in these two parts.

Judiciary has also taken great steps such as relaxing rules of ‘locus standi’ and now any other
person in place of the ones affected can approach Court. The apex court has interpreted the
Fundamental Rights available to a citizen and now rights like right to privacy, right to clear
environment, right to free legal aid, right to fair trail etc. also find place in the Fundamental
Rights.

ICCPR

The International Covenant of Civil and Political Rights (ICCPR) attempts to ensure the
protection of civil and political rights. The International Covenant on Civil and Political
Rights (ICCPR) is a multilateral treaty adopted by United Nations General
Assembly Resolution 2200A (XXI) on 16 December 1966, and in force from 23 March 1976 in
accordance with Article 49 of the covenant. Article 49 allowed that the covenant would enter
into force three months after the date of the deposit of the thirty-fifth instrument of ratification or
accession. The covenant commits its parties to respect the civil and political rights of individuals,
including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral
rights and rights to due process and a fair trial.[3] As of September 2019, the Covenant has 173
parties and six more signatories without ratification.

The ICCPR recognizes the inherent dignity of each individual and undertakes to promote
conditions within states to allow the enjoyment of civil and political rights. Countries that have
ratified the Covenant are obligated “to protect and preserve basic human rights… [and]
“compel[ed] to take administrative, judicial, and legislative measures in order to protect the
rights enshrined in the treaty and to provide an effective remedy.” The unifying themes and
values of the ICCPR are found in Articles 2 and 3 and are based on the notion of non-
discrimination. Article 2 ensures that rights recognized in the ICCPR will be respected and be
available to everyone within the territory of those states who have ratified the Covenant (State
Party). Article 3 ensures the equal right of both men and women to the enjoyment of all civil and
political rights set out in the ICCPR.

The rights protected under the ICCPR include:

Article 6 – Right to life.

Article 7 – Freedom from torture.
Article 8 – Right to not be enslaved.
Article 9 – Right to liberty and security of the person.
Article 10 – Rights of detainees.
Article 11 – Right to not be imprisoned merely on the ground of inability to fulfil a contractual
obligation.
Article 12 – Freedom of movement and choice of residence for lawful residents.
Article 13 – Rights of aliens.
Article 14 – Equality before the courts and tribunals. Right to a fair trial.
Article 15 – No one can be guilty of an act of a criminal offence which did not constitute a
criminal offence.
Article 16 – Right to recognition as a person before the law.
Article 17 – Freedom from arbitrary or unlawful interference.
Article 18 – Right to freedom of thought, conscience and religion.
Article 19 – Right to hold opinions without interference.
Article 20 – Propaganda for war shall be prohibited by law.
Article 21 – Right of peaceful assembly.
Article 22 – Right to freedom of association with others.
Article 23 – Right to marry.
Article 24 – Children’s rights
Article 25 – Right to political participation.
Article 26 – Equality before the law.
Article 27 – Minority protection.

LIMITATIONS:

Article 4 of ICCPR allows for certain circumstances for States Parties to derogate from their
responsibilities under the Covenant, such as during times of public emergencies. However, State
Parties may not derogate from Articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18.

OPTIONAL PROTOCOLS:

There are two optional protocols to the ICCPR which gives additional human rights protections.
First Optional Protocol:

This protocol allows victims claiming to be victims of human rights violations to be heard. The
Human Rights Committee (Committee), which is established by the Covenant, has the
jurisdiction to receive, consider and hear communications from victims. The first Optional
Protocol came into force with the Covenant.

The United Nations Human Rights Committee is a United Nations body of 18 experts
established by a human rights treaty, the International Covenant on Civil and Political
Rights (ICCPR). The Committee meets for three four-week sessions per year to consider the
periodic reports submitted by the 172 States parties to the ICCPR on their compliance with the
treaty, and any individual petitions concerning the 116 States parties to the ICCPR's First
Optional Protocol. The Committee is one of ten UN human rights treaty bodies, each responsible
for overseeing the implementation of a particular treaty

The UN Human Rights Committee should not be confused with the more high-profile UN
Human Rights Council, or its predecessor, the UN Commission on Human Rights. Whereas the
Human Rights Council (since June 2006) and the Commission on Human Rights (before that
date) are UN political bodies: composed of states, established by a UN General Assembly
resolution and the UN Charter, and discussing the entire range of human rights concerns; the
Human Rights Committee is a UN expert body: composed of persons, established by the ICCPR,
and discussing matters pertaining only to that treaty.

Second Optional Protocol:

This protocol aims to abolish the death penalty. It was entered into force on July 11, 1991 and as
of DEC 2019 there are 39 signatories and 88 parties. It is the only international treaty that tackles
this issue globally and is on the frontline in the UN's struggle against the death penalty.

The Protocol is an extremely important tool at national as well as international level. Nationally,
when a State ratifies the protocol, it accepts that nobody can be executed in its jurisdiction, with
the possible and extremely restricted exception of those responsible for serious military crimes
committed during wartime. The Protocol goes further than enabling States to establish an
abolitionist stance through the use of international law: as it does not include a retraction
procedure, it guarantees the permanent non-reintroduction of the death penalty nationally.

Internationally, the Protocol will ensure that, in the long term, executions become definitively
illegal and asserts explicitly the principal that the death penalty is a violation of human rights
and, in particular, of the right to life. To achieve that, however, the number of States Parties must
reach a “critical mass”.

The Protocol’s preamble highlights the importance of the abolition of the death penalty for the
protection and development of human rights and assumes States’ adherence to this goal.
Article 1 covers the banning of executions and the abolition of the death penalty in the
jurisdiction of States Parties. Article 2 allows States to maintain the right to use the death penalty
for the most serious crimes of a military nature committed during wartime.
Article 6 states that States shall not be subject to any derogation to the ban on executions, even in
the event of exceptional public danger threatening the existence of the nation. Articles 3, 4 and 5
concern the obligations of States Parties regarding communications and explain how complaints
can be lodged under the Protocol. Finally, Articles 7 to 11 cover procedural issues.
International human rights law sets obligations that States must respect: by becoming party to an
international treaty, a State accepts the obligations and duties imposed by international law, i.e.
to respect, protect, and safeguard human rights.
Under the Second Protocol, a State's principal responsibility is to ban executions in its
jurisdiction and, immediately on ratifying the Protocol, to take the necessary measures to abolish
the death penalty if it is not already the case.
Given that the Protocol specifically bans executions, a signatory State must commute the
sentences of persons already condemned to death. The Protocol obliges States Parties not to
expose anyone to the actual risk of execution, whatever the circumstances.

The Protocol is monitored by the Human Rights Committee, one of the organs made up of
independent experts set up by the United Nations to supervise the application of its treaties.
States Parties are obliged to submit regular reports to the committee on the actual respect on their
territory of the rights contained in the treaty. In some cases, the committee can also examine
interstate complaints.
The ratification of a treaty has consequences for a State. If it breaks its obligations, it can be held
accountable. This is the case with the Second Protocol.

ENFORCEMENT

Article 2(2) of ICCPR provides that State Parties are to take the “necessary steps…. to adopt
such laws or other measures as may be necessary to give effect to the rights recognized in the
present Covenant.” Countries that have ratified the ICCPR must takes steps in their own
jurisdictions to recognize the acceptance of this international covenant because, in “international
law, a signature does not usually bind a State. The treaty is usually subject to a future ratification,
acceptance, approval or accession.” In Canada, the accession process involves a series of reviews
and consultation by the federal government and followed by a tabling of the treaty in Parliament.

In addition to State Parties’ formally adopting and recognizing the ICCPR in their jurisdiction,
Article 28 of ICCPR provides for a Human Rights Committee (Committee) to be established for
monitoring the State Parties’ implementation of the Covenant. State Parties are required to
submit reports to the Committee for review, on measures used to adopt and give effect to the
rights enshrined in the ICCPR.

As mentioned above, the First Optional Protocol allows victims of human rights violation to be
heard by the Committee. However the ICCPR also provides in Article 41 that a State Party who
claims another State Party is not fulfilling its obligations to implement ICCPR, may make
written submissions to the Committee for consideration. Also, non-governmental organizations
(NGOs) may also participate in ensuring that values under the ICCPR are protected by
submitting ‘shadow reports’ and highlight areas for consideration by the Committee.

ICESCR

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

multilateral treaty adopted by the United Nations General Assembly on 16 December 1966
through GA. Resolution 2200A (XXI), and came in force from 3 January 1976.It commits its
parties to work toward the granting of economic, social, and cultural rights (ESCR) to the Non-
Self-Governing and Trust Territories and individuals, including labour rights and the right to
health, the right to education, and the right to an adequate standard of living. As of July 2020,
the Covenant has 171 parties. A further four countries, including the United States, have signed
but not ratified the Covenant.

States parties to the ICESCR recognise that ‘freedom from fear and want can only be achieved if
conditions are created whereby everyone may enjoy [their] economic, social and cultural rights‘.
The ICESCR protects the right to an adequate standard of living, including adequate food,
clothing and housing (Article 11), the right to enjoy the ‘highest attainable standard’ of physical
and mental health (Article 12), the right of everyone to education (Article 13), including free and
compulsory primary education (Article 14), and the right to take part in cultural life (Article 15).

Under Article 2(1), states agree to take steps to the maximum of their available resources, to
achieve ‘progressive realization of the rights in the ICESCR. This means states have a duty to
move as quickly as possible towards the achievement of ICESCR rights, using their resources
fairly and effectively.

States also accept general duties which are commonly divided into three types – they agree:

1. to respect human rights – that is, not to violate the rights in the ICESCR;
2. to protect the enjoyment of rights – against violations by third parties, such as
other individuals or corporations; and
3. to fulfil individuals’ rights – to take steps to create an environment in which rights can be
fully achieved.

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
(OP-ICESCR)

Entered into force: 5 May 2013

The Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights (OP-ICESCR) was adopted by the United Nations General Assembly (Resolution
A/RES/63/117) on 10 December 2008. It establishes mechanisms for bringing violations of
economic, social and cultural rights before the UN Committee on Economic, Social and Cultural
Rights, specifically: an individual complaints mechanism, an inter-state complaint mechanism
and an inquiry procedure.

The Committee on Economic, Social and Cultural Rights oversees commitment to

the ICESCR by states parties. States parties have to submit reports on the steps they have taken
to give effect to ICESCR rights and part of the Committee’s job is looking at these reports to
make sure states are making progress.

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 UNIT 4

International Conventions on Inhuman Acts

1.Genocide

Genocide is a form of one-sided mass killing in which a state or other authority intends to
destroy a group, as that group and membership in it are defined by the perpetrator.” The
word Genocide is derived from the Greek word genos , meaning birth, race of a similar
kind -cide- from Latin cida, meaning to cut, kill.Genocide means any of the following
acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such: (a) Killing members of the group; b) Causing serious bodily or
mental harm to members of the group; (c) Deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction in whole or in part; (d) Imposing
measures intended to prevent births within the group; (e) Forcibly transferring children of
the group to another group.” The United Nations’ Definition

The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) was
adopted by the United Nations General Assembly on 9 December 1948 as General Assembly
Resolution 260. The convention entered into force on 12 January 1951.It defines genocide in
legal terms, and is the culmination of years of campaigning by lawyer Raphael Lemkin. All
participating countries are required to prevent and punish actions of genocide, whether carried
out in war or in peacetime. The number of states that have ratified the convention is currently
147.
The convention was passed to outlaw actions similar to the Armenian Genocide by the Ottoman
Empire during World War I and the Holocaust by Nazi Germany during World War II. Its first
draft included political killings, but the USSR,[3] along with some other nations, would not
accept that actions against groups identified as holding similar political opinions or social status
would constitute genocide,[4] so these stipulations were subsequently removed in a political and
diplomatic compromise. Genocide scholar William Schabas states: "Rigorous examination of the
travaux fails to confirm a popular impression in the literature that the opposition to inclusion of
political genocide was some Soviet machination. The Soviet views were also shared by a number
of other States for whom it is difficult to establish any geographic or social common
denominator: Lebanon, Sweden, Brazil, Peru, Venezuela, the Philippines, the Dominican
Republic, Iran, Egypt, Belgium, and Uruguay. The exclusion of political groups was in fact
originally promoted by a non-governmental organization, the World Jewish Congress, and it
corresponded to Raphael Lemkin's vision of the nature of the crime of genocide.

Article 3 defines the crimes that can be punished under the convention:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
— Convention on the Prevention and Punishment of the Crime of Genocide, Article 3
Obligation under the Convention on the States

The Convention under Article V places an obligation on the parties to the convention to enact
national legislation on genocide in accordance to their respective constitution to give effect to the
provisions of the Convention and to effectively punish and attach penalty under domestic
jurisdiction on persons guilty of genocide or the associated acts under Article II and III
respectively. Article VI provides that the persons charged with genocide shall be tried by a
competent tribunal of the State in whose territory the acts were committed and in cases where
two contracting parties are involved by such international penal tribunal to whose jurisdiction
both the parties submit themselves.16

The domestic prosecution of perpetrators of genocide has become the subject of International
interest and not merely matters of national significance. Failures to enact national legislations on
genocide have international impact. In April 1999, the Rwandan Mayor Fulgence Niyonteze
could not be held liable for genocide when he was tried in Swiss courts as Switzerland did not
recognise ‘genocide’ as a separate offence and had no national laws or legislations punishing the
acts of genocide.

Many states like United States have a domestic legislation or law for genocide. Under Chapter 50
A of the US Code Section 1091 defines the offence of genocide. It states that whoever, whether
in time of peace or in time of war and with the specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial, or religious group as such kills members of that group;
causes serious bodily injury to members of that group; causes the permanent impairment of the
mental faculties of members of the group through drugs, torture, or similar techniques; subjects
the group to conditions of life that are intended to cause the physical destruction of the group in
whole or in part; imposes measures intended to prevent births within the group; or transfers by
force children of the group to another group; or attempts to do so, shall be punished in case of
death by death or life imprisonment and in other cases, to an imprisonment of not more than
twenty years and with a fine or only with a fine of not more than $1,000,000. The law also
attaches penalty for direct and public incitement of genocide. The provision is applicable on
persons committing genocide within the United States or on the nationals of the United States
committing such offences elsewhere. Countries like Australia, Switzerland, and Bangladesh also
have special Act implementing the ratified Convention of Genocide in their domestic laws.

India ratified the Genocide Convention on August 27th, 1959. The International Court of
Justice (ICJ) in its Advisory Opinion on the Reservations to the Genocide Convention Case18,
1951 has ruled that the “principles underlying the Convention are principles which are
recognized by the civilized nations as binding on the states, even without any treaty or
conventional obligations”. The crimes like genocide, crimes against humanity and war crimes
have become part of the general international law. The ICJ in the Barcelona Traction Case19,
1970 stated that “By their very nature, the outlawing of genocide, aggression, slavery and racial
discrimination are concerns of all states”. All states have a legal interest in their protection and
their prevention is therefore obligation against the entire world . Prof. V. S. Mani in his article on
Needed, a Law on Genocide states that India is bound by the general principles of International
law and by its obligation as under the Genocide Convention to enact a national legislation on
genocide. He draws four reasons as to why it has become absolutely important to enact a
domestic law on genocide drawing a parallel analogy as to the reason for enacting laws on
terrorism. He states that India as a member of the United Nations had a legal obligation to enact
a specific law on terrorism, in accordance with the resolutions of the U.N. Security Council
adopted in 2001. Second, terrorism as a special category of crime required a special law to deal
with. Third, only a special enactment could have a deterrent effect on terrorism. Fourth, such a
law was necessary to protect the territorial integrity and moral fabric of the country. For the same
reasons a law to protect and prevent genocide should be immediately enacted in India. Firstly, as
India is a party to the Genocide Convention and is bound by the obligation to prevent and punish
genocide. Secondly, as per the obligations under the Convention India has a duty to enact
necessary legislation to give effect to the provisions of the Convention and to provide for
penalties to the persons guilty of genocide. Thirdly, it has a duty to punish the perpetrators of
genocide by creation of competent tribunals.

Inspite of ratifying the Convention in 1959 India has till date not enacted any law on genocide. It
has failed to fulfill its obligation under Article 51(c) of the Indian Constitution which “fosters
respect for international law and treaty obligations”. The non-self-executing treaties are to be
made part of the domestic law by enacting laws by the national legislatures to meet the treaty
obligation which India has failed to meet in respect of the Genocide Convention.

This failure implies that there can be no prosecution in domestic courts of India of any person
accused of committing genocide, as Indian law does not recognizes genocide as an offence.
Therefore, persons accused of perpetrating genocide in India or Indian citizen committing
genocide abroad cannot be tried by the national courts under the Convention. India not being a
signatory to International Criminal Court also protects such perpetrators of genocide residing
within its territory from the jurisdiction of the ICC. Therefore, the only remedy which could be
obtained is by filing a case in some other country which recognizes universal jurisdiction over
crimes of genocide. Like cases regarding 1984 and 2002 communal riots being filed in USA to
be recognized as crime of genocide. India has a list of communal violence like that of the 2002
Hindu Muslim riots in Gujarat, the 2012 killings of Assamese Muslims, Killing of Christians in
Odisha and the ethnic cleansing of the Kashmiri Pandits from the valley.

Since, there can be no retrospective effect of the genocide legislation. The least that can be done
to assuage the feelings of the victims is to establish such commission or independent tribunals to
accept and reconcile with what has happened. Though, the criminality of the offence of genocide
cannot be achieved, the retributive justice might fail. But, the reconciliation and truth which are
both elements of justice can lead to ground level assessing of situations and human resource
development that sees the idea of ‘us’ together rather than fragmented communities. The
establishment of a SIT by the Delhi Government is a step welcome towards investigating into
1984 incidents. But India fails to recognise the incidents as genocide which foreign governments
like the Californian Senate have done. India continues to evade its responsibility of recognizing
the horrendous acts of genocide that were committed against its victims in 1984 riots and unless
a law on genocide is passed which recognizes such horrors of the crimes of genocide, justice
shall remain elusive to all future victims of a new 1984, 2002 and more in future without any
deterrence.
2.Racial Discrimination

The International Convention on the Elimination of All Forms of Racial Discrimination

(ICERD) is a United Nations convention. A third-generation human rights instrument, the
Convention commits its members to the elimination of racial discrimination and the promotion
of understanding among all races.[6] Controversially, the Convention also requires its parties to
outlaw hate speech and criminalize membership in racist organizations.

The Convention also includes an individual complaints mechanism, effectively making it

enforceable against its parties. This has led to the development of a limited jurisprudence on the
interpretation and implementation of the Convention.

The convention was adopted and opened for signature by the United Nations General Assembly
on 21 December 1965, and entered into force on 4 January 1969. As of October 2015, it has 88
signatories and 177 parties

The Convention is monitored by the Committee on the Elimination of Racial Discrimination

(CERD)

The Declaration makes four principal points:

 Any doctrine of racial differentiation or superiority is scientifically false, morally

condemnable, socially unjust and dangerous and has no justification in theory or
practice;
 Racial discrimination -- and more so, government policies based on racial
superiority or hatred -- violate fundamental human rights, endanger friendly
relations among peoples, co-operation among nations, and international peace and
security;
 Racial discrimination harms not only those who are its objects but also those who
practise it;
 A world society free of racial segregation and discrimination, factors which create
hatred and division, is a fundamental aim of the United Nations.

Under the Convention, States parties are pledged:

 To engage in no act or practice of racial discrimination against individuals, groups

of persons or institutions, and to ensure that public authorities and institutions do
likewise;
 Not to sponsor, defend or support racial discrimination by persons or
organizations;
 To review government, national and local policies and to amend or repeal laws
and regulations which create or perpetuate racial discrimination;
 To prohibit and put a stop to racial discrimination by persons, groups and
organizations; and
To encourage integrationist or multiracial organizations and movements and other means of
eliminating barriers between races, as well as to discourage anything which tends to strengthen
racial division."

3.Apartheid

The Convention on the Suppression and Punishment of the Crime of Apartheid (hereinafter
Apartheid Convention) has it roots in the opposition of the United Nations to the discriminatory
racial policies of the South African Government – known as apartheid – which lasted from 1948
to 1990. Apartheid was annually condemned by the General Assembly as contrary to Articles 55
and 56 of the Charter of the United Nations from 1952 until 1990; and was regularly condemned
by the Security Council after 1960. In 1966, the General Assembly labelled apartheid as a crime
against humanity (resolution 2202 A (XXI) of 16 December 1966) and in 1984 the Security
Council endorsed this determination (resolution 556 (1984) of 23 October 1984). The Apartheid
Convention was the ultimate step in the condemnation of apartheid as it not only declared that
apartheid was unlawful because it violated the Charter of the United Nations, but in addition it
declared apartheid to be criminal. The Apartheid Convention was adopted by the General
Assembly on 30 November 1973, by 91 votes in favour, four against (Portugal, South Africa, the
United Kingdom and the United States) and 26 abstentions. It came into force on 18 July 1976.
As of October 2015, it has 88 signatories and 177 parties.

When the Apartheid Convention was being drafted in the Third Committee of the General
Assembly there was a division of opinion over the scope of the Convention. Most delegates saw
the Convention as an instrument to be employed only against South Africa. Others, however,
warned that the Convention was wide enough to cover other States that practised racial
discrimination (Twenty-eighth session of the General Assembly,

The Apartheid Convention declares that apartheid is a crime against humanity and that
“inhuman acts resulting from the policies and practices of apartheid and similar policies and
practices of racial segregation and discrimination” are international crimes (art. 1). Article 2
defines the crime of apartheid –“which shall include similar policies and practices of racial
segregation and discrimination as practised in southern Africa” – as covering “inhuman acts
committed for the purpose of establishing and maintaining domination by one racial group of
persons over any other racial group of persons and systematically oppressing them”. It then lists
the acts that fall within the ambit of the crime. These include murder, torture, inhuman treatment
and arbitrary arrest of members of a racial group; deliberate imposition on a racial group of
living conditions calculated to cause its physical destruction; legislative measures that
discriminate in the political, social, economic and cultural fields; measures that divide the
population along racial lines by the creation of separate residential areas for racial groups; the
prohibition of interracial marriages; and the persecution of persons opposed to apartheid.

International criminal responsibility is to apply to individuals, members of organizations and

representatives of the State who commit, incite or conspire to commit the crime of apartheid (art.
3).
 Although consideration was given in 1980 to the establishment of a special international
criminal court to try persons for the crime of apartheid (E/CN.4/1426 (1981)), no such court was
established. Instead it was left to States to enact legislation to enable them to prosecute apartheid
criminals on the basis of a form of universal jurisdiction. The Apartheid Convention allows State
parties to prosecute non-nationals for a crime committed in the territory of a non-State party
where the accused is physically within the jurisdiction of a State party (arts. 4 and 5).

No one was prosecuted for the crime of apartheid while apartheid lasted in South Africa. And
no one has since been prosecuted for the crime. Apartheid was abandoned in 1990 by the regime
that had introduced it and in 1994 a democratic South Africa came into being as a result of a
peaceful negotiated settlement between the apartheid regime and movements opposed to
apartheid. Consequently, there were no prosecutions of the leaders or agents of the apartheid
regime for crimes of apartheid. Instead a Truth and Reconciliation Commission was established
with the tasks of achieving reconciliation and supervising the granting of amnesty to those who
had committed serious violations of human rights during the apartheid years. Significantly, post-
apartheid South Africa has not become a party to the Apartheid Convention.

That the Apartheid Convention is intended to apply to situations other than South Africa is
confirmed by its endorsement in a wider context in instruments adopted before and after the fall
of apartheid. In 1977, Additional Protocol I of the Geneva Conventions of 1949 recognized
apartheid as a “grave breach” of the Protocol (art. 85, paragraph 4 (c)) without any geographical
limitation. Apartheid features as a crime in the Draft Code of Crimes against the Peace and
Security of Mankind adopted by the International Law Commission on first reading in 1991
without any reference to South Africa and in 1996 the Draft Code adopted on second reading
recognized institutionalized racial discrimination as species of crime against humanity in article
18 (f) and explained in its commentary that this “is in fact the crime of apartheid under a more
general denomination”(Report of the International Law Commission on the work of its forty-
eighth session (A/51/10), p. 49). In 1998, the Rome Statute of the International Criminal Court
included the “crime of apartheid” as a form of crime against humanity (art. 7). It may be
concluded that the Apartheid Convention is dead as far as the original cause for its creation –
apartheid in South Africa – is concerned, but that it lives on as a species of the crime against
humanity, under both customary international law and the Rome Statute of the International
Criminal Court.

The International Convention on the Suppression and Punishment of the Crime of Apartheid
(Apartheid Convention) was adopted shortly after ICERD to provide a universal instrument that
would make ‘it possible to take more effective measures at the international and national levels
with a view to the suppression and punishment of the crime of apartheid’. The Apartheid
Convention is thus intended to complement the requirements of Article 3 of ICERD, as its
chapeau suggests in referring to Article 3. The Apartheid Convention further declares that
apartheid is a crime against humanity and provides a definition of that crime in Article 2. It
consequently imposes obligations on States parties to adopt legislative measures to suppress,
discourage and punish the crime of apartheid and makes the offence an international crime which
is subject to universal jurisdiction.
Thus the Apartheid Convention supplements the general prohibition of apartheid in ICERD by
providing a detailed definition of the crime and by giving several examples of practices
amounting to apartheid when committed ‘for the purpose of establishing and maintaining
domination by one racial group of persons over any other racial group of persons and
systematically oppressing them’. Subsequent instruments elaborate the meaning of apartheid and
define what constitute the crime of apartheid.
The formulation used in the Apartheid Convention is very similar to that of the Rome Statute of
the International Criminal Court, adopted in 1998. The Convention defines the crime of
apartheid in Article 2 as ‘inhuman acts committed for the purpose of establishing and
maintaining domination by one racial group of persons over any other racial group of persons
and systematically oppressing them’, while the Rome Statute codifies apartheid crimes as certain
inhumane acts ‘committed in the context of an institutionalized regime of systematic oppression
and domination by one racial group over any other racial group and committed with the intention
of maintaining that regime’ (Article 7(2)(h)). Both instruments emphasise the systematic,
institutionalized, and oppressive character of the discrimination involved in apartheid, reflecting
the original reasoning for including it in ICERD as a distinct form of racial discrimination.
The customary status of the prohibition of apartheid is indicated by its configuration within
general United Nations efforts aimed at the eradication of racial discrimination more generally.
The practice of apartheid has been condemned in numerous United Nations resolutions and other
international treaties, and reaffirmed as constituting a crime against humanity in the Rome
Statute of the International Criminal Court (1998). As a particularly pernicious manifestation of
racial discrimination, the practice of apartheid is contrary to fundamental guiding principles of
international law including the protection of human rights and the self-determination of all
peoples. Article 55 of the United Nations Charter lays the foundation, when it requires Member
States to promote ‘universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion’.
Equally important is Article 2 of the Universal Declaration of Human Rights (1948) which states
that ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status’. The subsequent adoption of ICERD was
the more concerted effort under international law to address racial discrimination, including the
particular practice of apartheid.
State parties to the Convention on the Elimination of Discrimination Against Women emphasise
that ‘the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-
colonialism, aggression, foreign occupation and domination and interference in the internal
affairs of States is essential to the full enjoyment of the rights of men and women’. At the time of
writing, there are 173 States parties to ICERD and 185 States parties to the Convention on the
Elimination of Discrimination Against Women, demonstrating near-universal support and legal
commitment to the elimination of racial discrimination and the prohibition of apartheid.
Although the Russell Tribunal is not concerned with the question of individual criminal
responsibility for the crime of apartheid, establishing that apartheid is considered an international
offence affirms the seriousness with which it is viewed under international law and affirms the
international community’s commitment to its eradication. The United Nations General Assembly
first referred to apartheid as a crime against humanity in Resolution 2202 (1966), a statement that
was reiterated by the 1968 Proclamation of Tehran by the International Conference on Human
Rights. The enunciation of apartheid as a crime against humanity in the Apartheid Convention
supplemented the general prohibition in ICERD and was followed by inclusion of the crime of
apartheid in Additional Protocol I to the 1949 Geneva Conventions (1977) and the Rome Statute
of the International Criminal Court (1998).
Although the majority of States accept the prohibition in ICERD, fewer have ratified the
Apartheid Convention, given the heighted political disagreement at the time it was created and
due to concerns that the convention was seen as seeking to ‘extend international criminal
jurisdiction in a broad and ill-defined manner’. Currently, 107 States are parties to the Apartheid
Convention. A majority of States (168) have ratified Additional Protocol I to the Geneva
Conventions of 1949, and an ever-increasing number of States, currently standing at 117, have
become parties to the Rome Statute of the International Criminal Court, which gives the Court
jurisdiction over the crime of apartheid. There is no demonstrable hostility to the apartheid
provisions by non-States parties to the treaties, and several non-parties to the Apartheid
Convention have ratified the latter instruments (for example, the United Kingdom and South
Africa). The movement of the international crime of apartheid towards customary international
law reinforces the fact that the prohibition itself is clearly a rule of customary law.
The prohibition of apartheid can also be considered a norm of jus cogens which creates
obligations erga omnes. The International Law Commission has viewed the prohibition of
apartheid as a peremptory norm of general international law and contended that the practice of
apartheid would amount to ‘a serious breach on a widespread scale of an international obligation
of essential importance for safeguarding the human being’. The Commission noted that a general
agreement is shared by States as to the peremptory character of the prohibition on apartheid and
other norms at the Vienna Conference on the Law of Treaties and how apartheid has been
prohibited by a treaty admitting of no exception. With regard to the concept of erga omnes
obligations, the International Court of Justice identified these in the Barcelona Traction case:
‘…an essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature the former are the concern of all States. In view of
the importance of the rights concerned, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.
The Court has stated that such an obligation would arise, for example, ‘from the principles and
rules concerning the basic rights of the human person, including protection from slavery and
from racial discrimination.’ If the prohibition of racial discrimination is to be considered a rule of
jus cogens, then it follows that the prohibition of apartheid, which addresses a particularly severe
form of racial
discrimination, is even more so a rule of jus cogens entailing obligations erga omnes— that is,
obligations owed to the international community as a whole.
India was amongst the most outspoken critics of apartheid and racial discrimination in South
Africa. In fact, India was the first country to raise the issue in the UN (in 1946) and played a
leading role in the formation of a Sub-Committee against Apartheid set up by the General
Assembly. When the Convention on Elimination of all forms of Racial Discrimination was
adopted in 1965, India was among the earliest signatories.

4.TORTURE
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (commonly known as the United Nations Convention against Torture) is an
international human rights treaty, under the review of the United Nations, that aims to prevent
torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.
The Convention requires states to take effective measures to prevent torture in any territory
under their jurisdiction, and forbids states to transport people to any country where there is
reason to believe they will be tortured.The text of the Convention was adopted by the United
Nations General Assembly on 10 December 1984[1] and, following ratification by the 20th state
party,[2] it came into force on 26 June 1987.[1] 26 June is now recognized as the International
Day in Support of Victims of Torture, in honor of the Convention. Since the convention's entry
into force, the absolute prohibition against torture and other acts of cruel, inhuman, or degrading
treatment or punishment has become accepted as a principle of customary international law.[5]
As of March 2016, the Convention has 159 state parties.
The Covenant follows the structure of the Universal Declaration of Human Rights (UDHR),
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR), with a preamble and 33 articles, divided into
three parts:

Part I (Articles 1–16) contains a definition of torture (Article 1), and commits parties to taking
effective measures to prevent any act of torture in any territory under their jurisdiction (Article
2). These include ensuring that torture is a criminal offense under a party's municipal law
(Article 4), establishing jurisdiction over acts of torture committed by or against a party's
nationals (Article 5), ensuring that torture is an extraditable offense (Article 8), and establishing
universal jurisdiction to try cases of torture where an alleged torturer cannot be extradited
(Article 5). Parties must promptly investigate any allegation of torture (Articles 12 and 13), and
victims of torture, or their dependents in case victims died as a result of torture, must have an
enforceable right to compensation (Article 14). Parties must also ban the use of evidence
produced by torture in their courts (Article 15), and are barred from deporting, extraditing, or
refouling people where there are substantial grounds for believing they will be tortured (Article
3).

Parties are required to train and educate their law enforcement personnel, civilian or military
personnel, medical personnel, public officials, and other persons involved in the custody,
interrogation, or treatment of any individual subjected to any form of arrest, detention, or
imprisonment, regarding the prohibition against torture (Article 10). Parties also must keep
interrogation rules, instructions, methods, and practices under systematic review regarding
individuals who are under custody or physical control in any territory under their jurisdiction, in
order to prevent all acts of torture (Article 11).

Parties are also obliged to prevent all acts of cruel, inhuman, or degrading treatment or
punishment in any territory under their jurisdiction, and to investigate any allegation of such
treatment. (Article 16).

Part II (Articles 17–24) governs reporting and monitoring of the Convention and the steps taken
by the parties to implement it. It establishes the Committee against Torture (Article 17), and
empowers it to investigate allegations of systematic torture (Article 20). It also establishes an
optional dispute-resolution mechanism between parties (Article 21) and allows parties to
recognize the competence of the Committee to hear complaints from individuals about violations
of the Convention by a party (Article 22).

Part III (Articles 25–33) governs ratification, entry into force, and amendment of the
Convention. It also includes an optional arbitration mechanism for disputes between parties
(Article 30).

Main provisions

Definition of torture

Article 1.1 of the Convention defines torture as:

For the purpose of this Convention, the term "torture" means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him, or a third person, information or a confession, punishing him for an act he or
a third person has committed or is suspected of having committed, or intimidating or coercing
him or a third person, or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include pain or suffering arising
only from, inherent in, or incidental to, lawful sanctions.
The words "inherent in or incidental to lawful sanctions" remain vague and very broad. It is
extremely difficult to determine what sanctions are 'inherent in or incidental to lawful sanctions'
in a particular legal system and what are not. The drafters of the Convention neither provided
any criteria for making such determination nor did it define the terms. The nature of the findings
would so differ from one legal system to another that they would give rise to serious disputes
among the Parties to the Convention. It was suggested that the reference to such rules would
make the issue more complicated, for it would endow the rules with a semblance of legal binding
force. This allows state parties to pass domestic laws that permit acts of torture that they believe
are within the lawful sanctions clause. However, the most widely adopted interpretation of the
lawful sanctions clause is that it refers to sanctions authorized by international law. Pursuant to
this interpretation, only sanctions that are authorized by international law will fall within this
exclusion. The interpretation of the lawful sanctions clause leaves no scope of application and is
widely debated by authors, historians, and scholars alike.
Ban on torture
Article 2 prohibits torture, and requires parties to take effective measures to prevent it in any
territory under their jurisdiction. This prohibition is absolute and non-derogable. "No exceptional
circumstances whatsoever"may be invoked to justify torture, including war, threat of war,
internal political instability, public emergency, terrorist acts, violent crime, or any form of armed
conflicts.In other words, torture cannot be justified as a means to protect public safety or prevent
emergencies Subordinates who commits acts of torture cannot abstain themselves from legal
responsibility on the grounds that they were just following orders from their superiors.
The prohibition on torture applies to anywhere under a party's effective jurisdiction inside or
outside of its borders, whether on board its ships or aircraft or in its military occupations,
military bases, peacekeeping operations, health care industries, schools, day care centers,
detention centers, embassies, or any other of its areas, and protects all people under its effective
control, regardless of nationality or how that control is exercised.
The other articles of part I lay out specific obligations intended to implement this absolute
prohibition by preventing, investigating, and punishing acts of torture.
Ban on refoulement
Article 3 prohibits parties from returning, extraditing, or refouling any person to a state "where
there are substantial grounds for believing that he would be in danger of being subjected to
torture."The Committee against Torture has held that this danger must be assessed not just for
the initial receiving state, but also to states to which the person may be subsequently expelled,
returned or extradited.
Ban on cruel, inhuman, or degrading treatment or punishment
Article 16 requires parties to prevent "other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture as defined in article 1" in any territory under their
jurisdiction. Because it is often difficult to distinguish between cruel, inhuman, or degrading
treatment or punishment and torture, the Committee regards Article 16's prohibition of such act
as similarly absolute and non-derogable.

Optional Protocol

The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (OPCAT), adopted by the General Assembly on 18 December 2002
and in force since 22 June 2006, provides for the establishment of "a system of regular visits
undertaken by independent international and national bodies to places where people are deprived
of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or
punishment,"[ to be overseen by a Subcommittee on Prevention of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.

Signatories of the Optional Protocol

As of September 2015, the Protocol has 75 signatories and 80 parties.

Committee against Torture

The Committee against Torture (CAT) is a body of human rights experts that monitors
implementation of the Convention by State parties. The Committee is one of eight UN -linked
human rights treaty bodies. All state parties are obliged under the Convention to submit regular
reports to the CAT on how rights are being implemented. Upon ratifying the Convention, states
must submit a report within one year, after which they are obliged to report every four years. The
Committee examines each report and addresses its concerns and recommendations to the State
party in the form of "concluding observations." Under certain circumstances, the CAT may
consider complaints or communications from individuals claiming that their rights under the
Convention have been violated.

The CAT usually meets in April/May and November each year in Geneva. Members are elected
to four-year terms by State parties and can be re-elected if nominated.
INDIA’s RESPONSE TO TORTURE

Article 7 of the ICCPR is reflected in Article 21 of the Indian Constitution which is a non-
derogable right. Article 21 was a derogable right until the 44 th Amendment to the Constitution,
1978. It includes right against torture and assault by State or other functionaries. This right is
even available to foreign citizens, under-trials, prisoners and detenues in custody. In recent times
there is an increasing concern of the international community about the practice of torture of
prisoners and detenues. Torture is a well established tool used by the Indian Police for
investigation.

In tune with international human rights instruments against torture, the Constitution also
emphasizes respect and honour of human dignity and fundamental rights. Torture has not been
defined in the Constitution or in other penal laws. Article 21 of Constitutional only provides “no
person shall be deprived of his life or personal liberty except according to procedure established
by law”. Life or personal liberty has been held to include the right to live with human dignity and
includes within its ambit a personal guarantee against torture or to cruel, inhuman or degrading
treatment or punishment, can move to the higher courts for judicial remedies under Article 32 &
226 for deprivation of Fundamental Rights. Article 22 guarantees protection against arrest and
detention in certain cases and declares that no person who is arrested shall be detained in custody
without being informed about the grounds of such arrest and cannot be denied to consult and
defend himself by legal practitioner of his choice. A22 directs that person arrested and detained
in custody shall be produced before nearest Magistrate within 24 hrs of such arrest. Article 20(3)
provides that accused shall not be compelled to witness against himself as this would amount to
self incrimination.

In early eighties were investigative journalism which exposed the practice of torture. The other
was public interest litigation, based on press reports. The process of accountability was
strengthened with the enactment of Protection of Human Rights Act, 1993. Sec 3 of the Act set
up National Human Rights Commission.

Judicial response:

India has signed but not ratified the UN Convention against Torture (CAT). There has been a
continuous effort of the National Human Rights Commission (NHRC) to pursue the
Government of India to ratify the Convention against Torture so that a new domestic legislation
thereafter can be brought into place. But the effort has gone till date without success. However,
absence of a specific law, the Supreme Court of India has condemned torture through various
judgments which have contributed to create a national jurisprudence in cases of combating
torture.

The practice of torture by police and other law enforcing officers is a matter of deep concern,
therefore it is the sacred duty of the state to protect these fundamental human rights of these
citizens. The problem of police torture and violence is of universal nature. The concern
regarding the problem was one of the reasons leading to provisions against torture and inhuman
and degrading treatment and punishments in the Magna Carta and Constitutions of U.S.A and
other countries of the world. Though there is no separate and specific protection in the Indian
Constitution against torture, the combined effect of rights against self incrimination and of life
and liberty is too evident.

In Nandini Satpati v. P.L Dani (AIR 1978 SC 1025), the Court held that not only physical
threats or violence but psychological torture, atmospheric pressure, environmental coercion,
tiring interrogation by police are violation of law.

The clear case of prohibition against torture was delivered by the Court in Sunil Batra v. Delhi
Administration (1978 (4) SCC 494). The Supreme Court did not find itself handicapped by
absence of specific provisions against torture in the Constitution and gathered support from
Article 14 & 19 in holding against the permissibility of torture vis-à-vis persons suspected and
accused of crime.

In Raghbir Singhv. State of Haryana (1980 ( 3) SCC 70), where the violence employed by the
police to extract a confession resulted in death of a person suspected of theft, the court observed
that the lives and liberty of citizens are at peril when the guardians of law stab human rights to
death. Vulnerability of human rights assumes a traumatic, torturesome poignancy, the violent
violence is perpetrated by the police arm of the State whose function is to protect the citizen and
not to commit gruesome offences against them. The court awarded life sentence to the police
officer responsible for the death of the suspect in police lock up.

Khatri v. State of Bihar (AIR 1981 SC 928)/ Bhagalpur Blinding case, was an example of cruel
and inhuman treatment to the prisoners which are insolating the spirit of Constitution and human
value as well as Article 21. Supreme Court in this case tackled the blinding of under-trial
prisoners by the police by piercing their eyeballs with needle and pouring acid in them. This case
shows the pattern of torture, the sanction of torture by state and local judicial authorities, the
routine concealment of torture.

Formidable problem in an alleged case of police torture is to establish the guilt of the
perpetrators of violence. The wrongdoers may either be able to escape conviction due to lack of
required degree of proof or maybe found guilty of lesser offence than the one warranted by the
actual facts. This is primarily due to the situation that the warranted by the actual facts. This is
primarily due to the situation that the offenders are the comrades and colleagues of the
prosecutors and the complete lack of neutral witness. State of U.P v. Ram Sagar Yadav (1985
(1) SCC 552 ), is a case indicative of extreme limits to which police violence and
highhandedness may extend. The victim made a compliant against a policeman who demanded
bribe from him. He was arrested for his ‘audacity’ and shortly afterwards while in custody was
found in a serious condition with 19 injuries on his body eventually causing his death. The
Supreme Court while affirming the punishment of 7years rigorous punishment for culpable
homicide not amounting to murder under Sec 304, expressed his regret that the trial judge did not
find policeman guilty of murder as indicated by the facts.

In D.K Basu v. State of West Bengal (AIR 1997 SC 610), the Court laid down 11 guidelines
(procedural measures) to be followed while, during and after arrest of person till he is in the
custody of police. This case came up before the Court through a petition under art 32 of the
Constitution by an NGO. The Executive Chairman of this NGO had written to Chief Justice of
India drawing his attention to news items published in a newspaper, regarding deaths in police
lock up and in jail in the State of West Bengal. Here the Court observed that Custodial Torture is
a naked violation of human dignity and degrading which destroys individual personality. It is a
calculated assault on human dignity and whenever human dignity is wounded the Civilization
takes a step backward.

However mere formulation of guidelines and safeguards would not be sufficient, therefore
Supreme Court in D.K Basu case warned that:

Failure to comply with the requirements mentioned shall apart from rendering the concerned
official liable for departmental action liable to be punished for contempt of Court may be
instituted in any High Court of the country, having territorial jurisdiction over the matter.

In Joginder Kumar v. State of U.P (1994 (4) SCC 260), Joginder Kumar was called to the police
station in connection with a case. Thereafter, his whereabouts became unknown to his family
members. His family members filed a writ of habeas corpus before the Supreme Court, pursuant
to which he was produced before the court.

Alarming increase in cases of torture, assault and death in police custody and non availability to
punish the culprits in such cases have been an vexed problem as the investigation into such
matters have been by the custodians themselves. It is therefore, of utmost necessity that an
objective and independent enquiry should be made. Keeping it in view, the Supreme Court in
Secretary, Hailakandi Bar Association v. State of Assam (1995) Supp (3) SCC 736, directed the
CBI to register and investigate the instant case of custodial death. Again in Supreme Court in
Ajab Singh v. State of UP (2000) 3 SCC 521, where the police examination of a custodial death
was a concocted story, directing the CBI to register the case and conduct an investigation into the
circumstances of custodial death. It also directed the CBI to complete investigation expeditiously
and file a copy of the investigation report in the court.

The UN Convention against Torture provides for redress and compensation to the tortured
victim. Article 14 of the convention categorically emphasizes that every State party to the
Convention must ensure that the tortured victim is provided fair & adequate compensation and
rehabilitation. If death results in the event of torture, the family is to be provided with
compensation. In Nelabati Behara v. State of Orissa (1993 (2) SCC 746); the principle of state
liability and the need for state to make reparations for such liability was recognized. It was
highlighted that court under Art 32 and 226 of the Constitution has wide amplitude to provide
any remedy under Public Law for any contravention of Fundamental Rights.

The Prevention of Torture Bill, 2010

The Prevention of Torture Bill introduced by the Minister for Home Affairs makes torture a
punishable offence. The Statement of Objects and Reasons of the Bill states that the Bill is being
introduced to ratify the UN Convention against Torture of 1975. India is a signatory of the
Convention but has not enacted a law on torture which would enable it to ratify the Convention.
The Bill defines torture and prescribes conditions under which torture is punishable.
Human Rights and Vulnerable Groups

Women

CEDAW

Adopted in 1979 by UN General Assembly.

International Bill of Rights for Women
“Defines what constitutes discrimination against women and sets out an agenda for national
action to end such discrimination”
A radical treaty that aims to: transform the structural barriers to equality address multifaceted
nature of problems women face.
CEDAW – core principles
Equality
Non-discrimination
Substantive Equality
Promoting
Equality of opportunity through law, policy,
programmes and institutional arrangements
Equality of access by eliminating all obstacles that prevent access to the opportunities & taking
positive steps to ensure goal of equality is achieved

Equality of results
Non-discrimination
Based on the principal that discrimination: is socially n
+constructed, Is not a natural principal of human interaction
Recognition of the need for concerted action against inequality and the institutional mechanisms
that perpetuate it

CEDAW works with the reporting process

When a a government ratifies CEDAW, it commits to put in place legislation & policy to ensure
women’s equality
Every 4 years government submit a ‘progress’ report to the CEDAW Committee
Government is then examined at a session of the CEDAW Committee

CEDAW Committee

 23 experts on women’s issues from

 around the world
 Meet twice annually at UN in New York
 8 governments report at a session
 After a government has been examined the Committee produce ‘Concluding Comments’
outlining concerns & recommendations
Child

The United Nations Convention on the Rights of the Child

An international instrument of law that defines the comprehensive sets of rights that ALL
children must enjoy. State parties should ensure that all appropriate measures are undertaken to
ensure enjoyment of childrights.1990TheConvention on the Rights of the Child. Every child has
the inherent right to life, and the State has an obligation to ensure the child’s survival and
development. They include rights to adequate food, shelter, clean water, and primary health care.
These are rights to the resources, skills and contributions necessary for the full development of
the child. They include rights to formal education, leisure and recreation, cultural activities and
information. These rights include protection from all forms of child abuse, neglect, exploitation
and cruelty, including the right to special protection in times of war and protection from abuse in
the criminal justice system. Children are entitled to the freedom to express opinions and to have
a say in matters affecting their social, economic, religious, cultural and political life.
Participation rights include the right to express opinions and be heard, the right to information
and freedom of association.

The UNCRC is an international agreement

across the world which sets out rights of children
between the age of 0 and 18.
• It has been in existence for 21 years following the adoption
by the UN General Committee in 1989 and it is the most widely adopted of all
international agreements.
• The UNCRC itself consists of 54 articles. There are two optional protocols which cover
specific issues and rights

The Convention is an international document negotiated by Member States at the United

Nations. Every Member State of the United Nations has ratified (or adopted) the treaty except the
United States and Somalia, who have only signed it. The Convention offers a vision of the child
as an individual and as a member of a family and community, with rights and responsibilities
appropriate to his or her age and stage of development. By recognizing children's rights in this
way, the Convention firmly sets the focus on the whole child. Madeline Albright, the United
States ambassador to the United Nations, signed the Convention in 1995. However, the United
States Constitution requires that such documents receive a two-thirds approval by the Senate to
be adopted. There are some articles in the Convention that the US Senate has yet to come to an
agreement on. Children in Danger 40 million children live on the streets of the world's cities. The
average age of the homeless in the US is 9 years gun takes the life of a child every 2 hours in the
US . In Liberia, children made up a quarter of all civil war combatant Children are tortured by
authorities in 11 countries More than a million children work in the Asian sex trade 4,000
children in the USA were murdered by their parents in 1998.

Children are used as soldiers because they are easily manipulated and are too young to
understand their actions. Child soldiers use AK-47s, M-16s and grenades because they are easy
to use. Orphans and refugees sometimes see their only hope for survival is by joining a militia.
Child soldiers are used to clear landmines and as human shields. Child soldiers are often given
drugs to help them cope with their emotions making it easier for them to kill. Girl soldiers are
often used as domestic sex slaves. Child soldiers are sometimes forced to commit atrocities
against their own families and villages. Children are the victims of conflict after witnessing or
participating in murder and rape, becoming disabled, homeless or psychologically traumatized.

The child shall enjoy all the rights set forth in this Declaration. Every child, without any
exception whatsoever, shall be entitled to these rights, without distinction or discrimination on
account of race, colour , sex,language, religion, political or other opinion, national or social
origin, property, birth or other status, whether of himself or of his family.

Refugees

A person who is outside their home country because they have suffered (or feared) persecution
on account of race, religion, nationality, or political opinion; because they are a member of a
persecuted social category of persons; or because they are fleeing a war.

An Asylum Seeker is someone who is seeking the refugee status. When people flee their own
country and seek sanctuary in another country, they apply for asylum – the right to be recognized
as a refugee and receive legal protection and material assistance. An asylum seeker must
demonstrate that his or her fear of persecution in his or her home country is well-founded

An Internally Displaced Person (IDP) is essentially a refugee inside their own country. Ex: A
certain city is unsafe for a certain religion, so those citizens move elsewhere within the same
country. Unlike refugees, IDPs are not protected by international law or eligible to receive many
types of aid. As the nature of war has changed in the last few decades, with more and more
internal conflicts replacing wars among countries, the number of IDPs has increased
significantly.

AGENCIES League of Nations Nansen International Office for Refugees Office of the
High Commissioner for Refugees under the Protection of the League United Nations Relief
and Rehabilitation Administration International Refugee Organization United Nations High
Commissioner for Refugees.

A Returnee is a refugee who has returned to his or her home country. The majority of refugees
prefer to return home as soon as it is safe to do so, after a conflict and the country is being
rebuilt. The UN High Commissioner for Refugees (UNHCR) encourages voluntary repatriation,
or return, as the best solution for displaced people. The agency often provides transportation and
other assistance, such as money, tools and seeds. Occasionally, UNHCR helps rebuild homes,
schools and roads.

A stateless person is someone who is not a citizen of any country. Citizenship is the legal bond
between a government and an individual, and allows for certain political, economic, social and
other rights of the individual, as well as the responsibilities of both government and citizen. A
person can become stateless due to a variety of reasons, including sovereign, legal, technical or
administrative decisions or oversights. The Universal Declaration of Human Rights underlines
that “Everyone has the right to a nationality.”

The 1951 Geneva Convention is the main international instrument of refugee law. The
Convention clearly spells out who a refugee is and the kind of legal protection, other assistance
and social rights he or she should receive from the countries who have signed the document. The
Convention also defines a refugee’s obligations to host governments and certain categories or
people, such as war criminals, who do not qualify for refugee status. The Convention was limited
to protecting mainly European refugees in the aftermath of World War II, but another document,
the 1967 Protocol, expanded the scope of the Convention as the problem of displacement spread
around the world. Refugee law and international human rights law are closely intertwined.
Refugees are fleeing governments that are either unable or unwilling to protect their basic human
rights. Additionally, in cases where the fear of persecution or threat to life or safety arises in the
context of an armed conflict, refugee law also intersects with international humanitarian law.The
basic principle of refugee law, non-refoulement refers to the obligation of States not to return, a
refugee to “the frontiers of territories where his life or freedom would be threatened on account
of his race, religion, nationality, membership of a particular social group or political opinion.”
Additionally, both regional and domestic courts have interpreted the rights to life and freedom
from torture to include a prohibition against refoulement. The principle of non-refoulement
prohibits not only the removal of individuals but also the mass expulsion of refugees.

Freedom of movement is also a key right for refugees within their host country. Article 26 of the
1951 Convention provides that States shall afford refugees the right to choose their place of
residence within the territory and to move freely within the State. Freedom of movement is an
especially important issue with regard to protracted refugee situations in countries with limited
national resources and/or limited legal frameworks for protecting refugees who nonetheless host
large refugee populations. In such countries, refugee warehousing – in which refugees are
confined to refugee camps, thereby restricting their access to employment and education – is
commonly practiced

Refugees get very little financial help because there isn't much available and so they must rely on
other sources and good hearted people to help them through. Not many people understand or
even care about them and so they are forgotten about and most don't even know how to speak the
language of the country in which they are seeking help! Some do get by better than others and
can speak several languages and this is a plus. Refugees are like us. They want the best for their
families and often become advocates of human relief efforts when they are in better living
situations.

World Conference on Human Rights, Vienna, 1993 Vienna, 14-25 June 1993

The World Conference on Human Rights took place in Vienna, Austria from 14-25 June 1993. A
pivotal moment, the conference's main outcome was the Vienna Declaration and Programme of
Action, a common plan for the strengthening of human rights work around the world.
The conference also made concrete recommendations for strengthening and harmonising the
monitoring capacity of the United Nations system. It called for the establishment of the post of
the High Commissioner for Human Rights by the General Assembly, which subsequently created
it on 20 December 1993.
Additionally, the Conference took new steps to promote and protect the rights of women,
children and indigenous peoples by, respectively:
 supporting the creation of a new mechanism, a Special Rapporteur on Violence against
Women, subsequently appointed in 1994;
 recommending the proclamation by the General Assembly of an International Decade of
the World's Indigenous People, which led to the proclamation of two decades (1995-2004
and 2005-2014);
 and calling for the universal ratification of the Convention on the Rights of the Child by
1995.
The Vienna Declaration and Programme of Action marked the culmination of a long process of
review and debate over the status of human rights machinery in the world. This process had
begun in 1961 with a General Assembly resolution designating 1968 as the International Year for
Human Rights. The International Conference on Human Rights was held in Teheran, Iran, that
same year (see timeline, From Teheran to Vienna).
Vienna also marked the beginning of a renewed effort to strengthen and further implement the
body of human rights instruments that had been painstakingly constructed on the foundation of
the Universal Declaration of Human Rights since 1948.

International Conference on Human Rights

Teheran, 22 April-13 May 1968

The first International Conference on Human Rights was held in Teheran from 22 April to 13
May 1968 to review the pr ogress made in the 20 years since the adoption of the Universal
Declaration of Human Rights and formulate an agenda for the future. Among other things, the
International Conference urged all peoples and Governments to dedicate themselves to the
principles enshrined in the Universal Declaration of Human Rights and to redouble their efforts
to provide for all human beings a life consonant with freedom and dignity and conducive to
physical, mental, social and spiritual welfare.
UNIT 3

Regional conventions on Human Rights

1. European convention on Human Rights,1950.

The European Convention on Human Rights (ECHR) (formally the Convention for the
Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect
human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed
Council of Europe, the convention entered into force on 3 September 1953. All Council of
Europe member states are party to the Convention and new members are expected to ratify the
convention at the earliest opportunity.

The Convention established the European Court of Human Rights (ECtHR). Any person who
feels his or her rights have been violated under the Convention by a state party can take a case to
the Court. Judgments finding violations are binding on the States concerned and they are obliged
to execute them. The Committee of Ministers of the Council of Europe monitors the execution of
judgements, particularly to ensure payment of the amounts awarded by the Court to the
applicants in compensation for the damage they have sustained.[3] The establishment of a Court
to protect individuals from human rights violations is an innovative feature for an international
convention on human rights, as it gives the individual an active role on the international arena
(traditionally, only states are considered actors in international law). The European Convention is
still the only international human rights agreement providing such a high degree of individual
protection.State parties can also take cases against other state parties to the Court, although this
power is rarely used.

On November 4, 1950, the Council of Europe agreed to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, the substantive provisions of which
were based on a draft of what is now the International Covenant on Civil and Political Rights.
Over the years, the enforcement mechanisms created by the convention have developed a
considerable body of case law on questions regulated by the convention, which the state parties
typically have honoured and respected. In some European states, the provisions of the
convention are deemed to be part of domestic constitutional or statutory law. Where that is not
the case, the state parties have taken other measures to make their domestic laws conform with
their obligations under the convention.

A significant streamlining of the European human rights regime took place on November 1,
1998, when Protocol No. 11 to the convention entered into force. Pursuant to the protocol, two of
the enforcement mechanisms created by the convention—the European Commission of Human
Rights and the European Court of Human Rights—were merged into a reconstituted court, which
is now empowered to hear individual (rather than only interstate) petitions or complaints without
the prior approval of the local government. The decisions of the court are final and binding on
the state parties to the convention.

1.1 The Council of Europe - instruments

The Council of Europe is a regional intergovernmental organization whose main role is to

strengthen democracy, human rights and the rule of law throughout its Member States of 40
countries. The Council of Europe is also active in enhancing Europe's cultural heritage in all of
its diversity. Finally, it acts as a forum for examining a whole range of social problems, such as
social exclusion, intolerance, the integration of migrants, the threat to private life posed by new
technology, and bio-ethical issues.

The Council of Europe comprises:

 A decision making body: the Committee of Ministers

 A deliberative body: the Parliamentary Assembly
 A voice for local democracy: the Congress of Local and Regional Authorities of Europe.

More than 160 European Conventions serve as a basis for reforming and harmonising Member
States' legislation. For issues that do not lend themselves to conventions, the Committee of
Ministers adopts recommendations to Governments on what line of action to take.

The Council of Europe established the European Convention on Human Rights and
Fundamental Freedoms, which entered into force in 1953, and is the main European human
rights convention. It deals with civil and political rights, and is in that sense similar to the
ICCPR. Several additional Protocols have added to its substantive and procedural provisions.
The European Social Charter deals with economic and social rights.
Although these are the main European human rights conventions, the Council of Europe has
adopted numerous other conventions pertaining to human rights, covering a wide range of areas
including, migrant workers, torture, national minorities, and children, and gender equality.

The European Convention for the Protection of Human Rights and Fundamental Freedoms is
designed to protect individuals' fundamental rights and freedoms. This Convention contains the
classical human rights guarantees, including the right to life (article 2), the right not to be subject
to torture or to inhuman or degrading treatment or punishment (article 3), the right to liberty and
security of person (article 5), and the right to respect for private and family life, home and
correspondence (article 8). These rights apply to all persons, including disabled persons.

The European Social Charter has led to legal reforms in such areas as the family, the protection
of young workers, trade union rights and social insurance. It lays down twenty-three fundamental
rights. It contains in Part I, a declaration of aims which contracting states shall pursue by all
appropriate means. Each state party agrees to be bound by at least six of nine articles specified in
Part II of the Charter. The nine articles are: the right to work; the right to organize; the right to
bargain collectively; the right of children and young persons to protection; the right to social
security; the right to social and medical assistance; the right of the family to social, legal and
economic protection; the right of migrant workers and their families to protection and assistance;
and the right to equal opportunities and equal treatment in matters of employment and
occupation without discrimination on the grounds of sex.
Part II has a set of articles which to a large extent correspond to the provisions in the ICCPR.
States can choose from a menu of obligations (10 out of the 19 articles in Part II, or 45 out of the
72 numbered paragraphs of which the 19 articles consist). Furthermore, according to article 20
(Undertakings), "Each of the Contracting Parties undertakes: ( (b) To consider itself bound by at
least five of the following articles of Part II of this Charter: articles 1, 5, 6, 12, 13, 16 and 19."
Regarding the issue of disability, three articles are worth mentioning: article 11 (the right to
protection of health), article 13 (the right to social and medical assistance) and article 15 (the
right of physically or mentally disabled persons to vocational training, rehabilitation and social
resettlement). It is important to note that articles 11 and 15 are not part of the list of article 20
(b).

1.2 The Council of Europe - Remedies under the European conventions

The machinery for enforcement of human rights agreements under the European Convention is
the most developed in Europe and one of the most efficient human rights systems in the world.

Protocol 11 of the European Convention on the Protection of Human Rights and Fundamental
Freedoms, established a single permanent Court replacing and simplifying the previous
mechanism composed of the European Commission on Human Rights and the European Court of
Human Rights. The new machinery also abolished the Committee of Ministers' adjudicative role.
It oversees the implementation of the European Convention on Human Rights through State and
individual complaint systems. There is no periodic report mechanism for the European
Convention.

The European Court of Human Rights is a judicial body composed of a number of judges equal
to the number of states that are current members of the Council of Europe. There is no restriction
on the number of judges of the same nationality. Judges are elected by the Parliamentary
Assembly of the Council of Europe for a term of six years. Any Contracting State (State
application) or individual claiming to be a victim of a violation of the Convention (individual
application) may lodge directly with the Court an application alleging a breach by a State Party
of one of the Convention rights. The procedure before the Court is adversarial and public.
Hearings, which are held only in a minority of cases, are public, unless the Chamber decides
otherwise on account of exceptional circumstances. Individual applicants may submit
applications themselves, but legal representation is recommended, and even required for hearings
or once an application has been declared admissible. The Council of Europe has set up a legal aid
scheme for applicants who do not have sufficient means. The admissibility of each case is
decided by a Chamber of seven judges or a Committee of three judges. Chambers or the Grand
Chamber in serious cases decide on the merits of a case found admissible.
Decisions are taken by majority vote. Judgements of Chambers shall become final, unless a party
requests, within a period of three months from the date of the judgement, that the case be
referred to the Grand Chamber. A panel of five judges shall decide whether or not the case
should be examined by a Grand Chamber. The Court's decision "shall, if necessary, afford just
satisfaction to the injured party" (Article 50), if a state party is determined to have violated the
European Convention, and if the country's domestic laws do not provide for adequate redress.
The Court may thus issue a declaration and /or award monetary damages, including costs and
expenses or pecuniary and non-pecuniary damages. Final judgements are legally binding for
States Parties and their execution will be supervised by the Committee of Ministers.

The European Social Charter sets out its system of supervision and enforcement, providing for a
monitoring and reporting procedure and a system of collective complaints. The European
Committee of Social Rights is a committee of independent experts, which examines reports and
decides whether the situations in the countries concerned are in conformity with the Charter.
State parties are required to submit copies of their reports to "the international non-governmental
organizations which have consultative status with the Council of Europe and have particular
competence in the matters governed by". The Committee may also "hold, if necessary, a meeting
with the representative of a Contracting Party either on its own initiative or at the request of the
Contracting Party concerned"(Article 24(3)). The Committee's decisions ("conclusions") are
published every year.

The 1995 Additional Protocol allows the Committee also to consider collective complaints. The
Committee decides on the admissibility and merits of the case. Both the State and the
organisation concerned are asked to provide written explanations and information to the
Committee. A hearing, which is public, may be held at the request of one of the parties. The
Committee's decision is transmitted to the Committee of Ministers and the Parliamentary
Assembly, and it is made public.

The European Union

The European Union (EU) is a regional organisation with currently 15 democratic member States
voluntarily joined by a political desire to present a united front to the great challenges of our age.
These challenges include: promoting European unity, improving living and working conditions
of citizens, fostering economic development, balanced trade and fair competition, reducing
economic disparities between regions, helping developing countries, and preserving peace and
freedom. The EU institutions and bodies are the following: the European Parliament, the
Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social
Committee, the Committee of the Regions, the Central Bank of Europe and the European
Investment Bank.

Although the mandate of the organisation has been expanded by the Treaty on European Union
(Treaty of Maastricht), further amended by the Treaty of Amsterdam - the new Treaty for
Europe (signed in 1997, entered into force in 1999) the EU's main concern lies in the field of
economic, monetary and political issues. Accordingly, disability issues have been mostly dealt
with as a matter of social policy, the main emphasis being in the field of employment.
 2. The American convention in Human Rights,1969

The American Convention on Human Rights, also known as the Pact of San José, is an
international human rights instrument. It was adopted by many countries in the Western
Hemisphere in San José, Costa Rica, on 22 November 1969. It came into force after the eleventh
instrument of ratification (that of Grenada) was deposited on 18 July 1978.

The Charter of the Organisation of American States established the Organisation of American
States (OAS), which has among its principles and purposes the strengthening of peace and
security, ensuring peaceful settlement of disputes, providing for a common action in the event of
aggression, and promoting economic, social and cultural development.

It also proclaims the fundamental rights of the individual without distinction as to race,
nationality, creed or sex. It was within the framework of the OAS that the Inter-American
Commission on Human Rights was established, and that the 1948 American Declaration on the
Rights and Duties of Man, as well as the 1969 American Convention on Human Rights, were
elaborated.

The Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights (IACHR) is one of three bodies in the Inter -
American System for the promotion and protection of human rights. Its mandate is found in the
Charter of the Organisation of American States and the American Convention on Human
Rights. While the Charter applies to all members of the OAS, the Convention applies only to
those that have ratified it.

In 1965, the IACHR was expressly authorised to examine complaints or petitions regarding
specific cases of human rights violations. Up until 1997, the IACHR has received thousands of
petitions, which have resulted in 12,000 cases, which have been processed or are currently being
processed. The IACHR has the principal function of promoting the observance and the defence
of human rights.

The Commission receives a petition from any person, group of persons or non-governmental
organisations alleging violations of the rights protected in the American Convention on Human
Rights and / or the American Declaration on the Rights and Duties of Man. The Commission
may only process individual cases where it is alleged that one of the Member States of the OAS
is responsible for the human rights violation at issue. If domestic remedies were exhausted, the
petition must be presented within six months after the final decisions in the domestic
proceedings. When a case is opened and a number is assigned, the pertinent parts of the petition
are sent to the Government with a request for relevant information. During the processing of the
case, each Party is asked to comment on the responses of the other Party. The Commission also
may carry out its own investigations, conducting on-site visits or requesting specific information
from the parties. The Commission may also hold a hearing during the processing of the case.
When the processing of the case is completed, the Commission prepares a report, which includes
its conclusions, and also generally provides recommendations to the State concerned. This report
is not public. The Commission gives the State a period of time to resolve the situation and to
comply with the recommendations of the Commission.

Upon the expiration of this period of time granted to the State, the Commission has two options.
The Commission may prepare a second report and the State is given a second period of time to
resolve the situation. Rather than preparing a second report for publication, the Commission may
decide to take the case to the Inter-American Court. If it wishes to take the case to the Court, it
must do so within three months from the date in which it transmits its initial report to the State
concerned. The Commission will appear in all proceedings before the Court.

As detailed above, the Inter-American Commission can issue a recommendation to the offending
party to rectify the human rights situation. The Inter-American Commission also collects and
receives information about human rights violations in the country from individuals, human rights
groups and other groups, as well as the government. Every individual or human rights group in
the Americas has the right of access to this enforcement mechanism. Access is achieved through
participating in one of the Inter-American Commission's on-site visits to a country where it is
studying human rights violations; providing information to the Commission during its study; or
pressuring the Commission to conduct such a visit. Advocates can influence both the process and
the report by directly contacting the Commission and asking it to examine human rights
violations of disabled persons.

Some of the prominent attributes of this system include the principle derived from the
Velasquez- Rodriguez case, which provides that governments have an affirmative legal
obligation to investigate, prosecute and punish human rights violators (including persons who are
not agents of the government) through their national judicial apparatus. Secondly, under the
Inter-American system, the right to judicial enforcement of human rights violations can never be
derogated from.

2.4 The Inter-American Court of Human Rights

The Ninth International Conference of American States, held in Bogota, 1948, in its resolution
XXXI entitled "Inter-American Court to Protect the Rights of Man", considered that the
protection of these rights "…should be guaranteed by a juridical organ, in as much as no right is
genuinely assured unless it is safeguarded by a competent court." and that "…where
internationally recognised rights are concerned, juridical protection, to be effective, should
emanate from an international organ."
The OAS General Assembly, in 1979, approved the Statute of the Court (Resolution 448).
Article 1 defines the Court as "…an autonomous judicial institution whose purpose is the
application and interpretation of the American Convention on Human Rights." The Court has
adjudicatory and advisory jurisdiction. Regarding its adjudicatory jurisdiction, only the
Commission and the States Parties to the Convention are empowered to submit cases concerning
the interpretation and application of the Convention. In addition, in order for a case against a
State Party to be brought before the Court, the State Party must recognise the jurisdiction of the
Court.

3. The African charter on Human and people’s Rights,1981.

The African Charter on Human and Peoples' Rights (also known as the Banjul Charter) is
an international human rights instrument that is intended to promote and protect human rights
and basic freedoms in the African continent.

It emerged under the aegis of the Organisation of African Unity (since replaced by the African
Union) which, at its 1979 Assembly of Heads of State and Government, adopted a resolution
calling for the creation of a committee of experts to draft a continent-wide human rights
instrument, similar to those that already existed in Europe (European Convention on Human
Rights) and the Americas (American Convention on Human Rights). This committee was duly
set up, and it produced a draft that was unanimously approved at the OAU's 1981 Assembly.
Pursuant to its Article 63 (whereby it was to "come into force three months after the reception by
the Secretary General of the instruments of ratification or adherence of a simple majority" of the
OAU's member states), the African Charter on Human and Peoples' Rights came into effect on
21 October 1986– in honour of which 21 October was declared "African Human Rights Day".

Oversight and interpretation of the Charter is the task of the African Commission on Human and
Peoples' Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia. A
protocol to the Charter was subsequently adopted in 1998 whereby an African Court on Human
and Peoples' Rights was to be created. The protocol came into effect on 25 January 2004.

In July 2004, the AU Assembly decided that the ACHP would be incorporated into the African
Court of Justice. In July 2005, the AU Assembly then decided that the ACHP should be
operationalised despite the fact that the protocol establishing the African Court of Justice had not
yet come into effect. Accordingly, the Eighth Ordinary Session of the Executive Council of the
African Union meeting in Khartoum, Sudan, on 22 January 2006, elected the first judges of the
African Court on Human and Peoples' Rights. The relationship between the newly created Court
and the Commission is yet to be determined.
As of 2013, 53 states have ratified the Charter. [1] It has been ratified by every AU member state
with the exception of South Sudan.

The African human rights system is the "youngest" regional system. One of the most distinctive
features of the African Charter on Human and People's Rights is its recognition of collective
rights. It views individual and peoples rights as linked. The other distinctive feature is the
recognition of the right to development.

The African Charter on Human and Peoples' Rights was ratified by an absolute majority of
States after an energetic consciousness-raising campaign conducted by certain Heads of State of
the OAU and certain NGOs. The Charter contains a list of the prerogatives and obligations, and
also of the organs for the protection and defence of those same values. Part I includes rights and
duties applying to individuals and groups alike, e.g. the right to life (article 4). The Charter
places special emphasis on the rights and duties of the community, especially the fa mily, society
and nation. Lastly, the Charter accords a place to the so-called third generation rights, mainly the
rights to peace, solidarity, a healthy environment and development.

Article 18 (4) of the Charter provides that the disabled have the right to special measures of
protection in keeping with their physical or moral needs. Article 16 (1) provides that every
individual shall have the right to enjoy the best attainable state of physical and mental health.

The African Charter on the Rights and Welfare of the Child, ratified in 1999, also includes
special mention to persons with disabilities. Article 13 on Handicapped Children provides for
special measures of protection, together with principles of self-reliance, participation and access.
Most of the provisions of the African Children's Charter are modelled after the articles of the
CRC. The main difference lies in the existence of provisions concerning children's duties, in line
with the African Human Rights Charter.

3.2 The African Commission on Human and Peoples' Rights

Article 30 of the African Charter on Human and Peoples' Rights provides for the establishment
of an African Commission on Human Rights within the Organisation of African Unity. The
mandate of the Commission is to promote Human and Peoples' Rights. In particular, it collects
documents; undertakes studies and research on African problems in the field of human and
peoples' rights; organises seminars, symposia and conferences; disseminates information;
encourages national and local institutions concerned with human and peoples' rights; and make
recommendations to Governments (article 45, 1). The Commission also ensures the protection of
human and peoples' rights under conditions laid down by the African Charter on Human and
Peoples' Rights (article 45, 2).

The Commission receives communications from a State, when this State believes that another
State Party has violated the provisions of the Charter (article 49). The Commission can only deal
with a matter submitted to it after making sure that all local remedies, if they exist, have been
exhausted (article 50). The Commission shall prepare a report stating the facts and its findings.
This report shall be sent to the States concerned and communicated to the Assembly of Heads of
State and Government (article 52). The Commission also receives other communications, which
have to be brought to the knowledge of the State concerned. The Commission also makes a
report on the other communications, as well (article 55-59).

The applicable principles of Commission are as follows: "The Commission shall draw
inspiration from international law on human and peoples' rights, particularly from the provisions
of various African instruments on human and peoples' rights, the Charter of the United
Nations, the Charter of the Organisation of African Unity, the Universal Declaration of
Human Rights, other instruments adopted by the United Nations and by African countries in the
field of human and peoples' rights, as well as from the provisions of various instruments adopted
within the Specialised Agencies of the United Nations of which the parties to the (African
Charter) are Members."

For inter-state communications, the African Charter emphasizes the need to exhaust all domestic
remedies unless the Commission decides that local remedies either did not exist or the procedure
for achieving them is unduly long. A state can, by written communication, draw another state's
attention to the violation of the provisions of the African Charter by the state.

Individuals or groups submit written communications to the African Commission alleging

violation of the provisions of the African Charter by a state. When the Commission undertakes
an investigation, whether of an inter-state communication or other complaint, it has the right to
choose any appropriate method of investigation. This opens a channel for disability rights
advocates to educate the Commission on issues relating to disabled persons human rights.

Advocates can also bring any issues relating to human rights violations to the monitoring arm of
the African Commission. This may result in in-depth examination of issues relating to human
rights in a particular country and to recommendations to the government to the government to
improve the rights of disabled persons.

Since the adoption of the "African Children's Charter", the Commission has also been
mandated to receive reports and investigate violations with regards to rights protected by that
Charter. Originally a separate monitoring body was to be established, but this failed due to the
financial difficulties of the OAU.

A 1997 Protocol to the African Charter on the Establishment of the African Court on Human and
Peoples' Rights establishes a Court that would complement the mandate of the Commission, and
therefore resemble the Inter-American system of protection of human rights. The Protocol is not
yet in force.

So far, the African human rights monitoring system has been the less effective than the European
and Inter-American ones, partly because of the political climate and preference for diplomatic
solutions, and partly because of some weaknesses in the language used in the African Charter on
Human and Peoples Rights, and because of the focus on promotion of human rights instead of
monitoring by the Commission.
UNIT 5
INDIA AND HUMAN RIGHTS

• The history of human rights is contemporaneous to the development and evolution of

early man. The concept of human rights as it is understood today has evolved over the
centuries.
• Though the expression ''Human Rights" seems to have modern face, human rights are as
old as human civilization. Human rights have existed in however, nascent a form, ever
since man, as a gregarious animal, has lived in communities, family, clan, tribe village,
town or nation and now in an independent world community.
• Looking at the concept of human rights from a historical perspective, it would be seen
that it is neither entirely western nor so modern; rather it is the crystallization of values
that are common heritage of mankind.
• Kautilya in his famous and immortal work "Arthasastra" has defined and described the
human rights of war prisoners. The human rights were reformed to as civil rights,
political rights, personal rights, legal rights, natural or divine rights, economic and social
rights in ancient period. Hence, there is a variety of expression, like 'inherent rights,
'natural rights', 'inalienable rights', 'basic fundamental rights', which are interchangeable
terms to express the rights that a human being possess.
• While introducing the concept of human rights a well-known scholar says, “Human rights
are twentieth century name or what has been traditionally known as natural rights or in
more exhilarating phrase, the rights of man.
• The concept of human rights was first, reflected in ancient Greece and Rome, where it
was closely tied to Pre-modern natural law doctrine of Greek stoicism. The Greek idea of
divine law and freedom and the practice of Roman law are at the heart of today’s ideas of
human rights.
• During the 18th Century, the so called Age of Enlightenment, a growing confidence of
human reason and of course, the perfection of human affairs led it to become more
comprehensive one. John Locke in England, Montesquieu Voltaire and Jean Jacques
Rousseau in France and others supported human reason and also tried to prove the
superiority of natural law.
• The doctrine of natural rights influenced the English, French and American Revolutions.
The practical examples of England glorious revolution 1688 and resulting Bill of Rights
on 1689 as well provided rationale for the wave of revolutionary agitation which
influenced the West, most notably in North America and France. Certain historic texts
like Pennsylvania Declaration (1776) American Declaration (1787) French Declaration
(1789) reflected the intellectual milieu of the contemporary socio-political situations
spawning the struggle against political absolutism.
• In the words of Maurice Cranston, a leading human rights scholar, it is evident that these
struggles took place because the absolutism promoted men to claim their rights which
were denied to them.All those revolutions laid the foundation of human rights.
• In fact, Henry David Thoreau was first philosopher to have used the term "human rights"
in his treatise; civil disobedience, which influenced Leo Tolstoy,
• Mahatma Gandhi and Martin Luther King to develop and propagate the concept of non-
violent resistance to unethical governmental actions. Mahatma Gandhi said: "respect of
one, equally applies to the whole universe. All mankind in essence are alike, what is
therefore possible for one is possible for everybody.”
• The horrors of the Second World War led to the birth and recognition of the modern
human rights movement in the international sphere. President Roosevelt's proclamation in
1941 the four freedoms of speech and expression, of belief, freedom from fear and want-
as universally acceptable set of standards, along with the works of NGO's were some of
the significant developments in this directions.
• But it was the establishment of the United Nations in 1945, and the subsequent
international concern for the commitment of human rights that widened the scope of this
movement. A cornerstone of this post war human rights regime was the Universal
Declaration of Human Rights (UDHR) which was adopted on 10th December, 1948,
which is commonly known as “Human Rights Day”. The sources of this Declaration owe
much to the English Revolution, American Revolution, and French Revolution. The post-
war era heralded the adoption of equality, liberty and social justice as the cardinal
principles of human rights.
• The first documentary use of the expression of human rights took place in UDHR and
two other international covenants - International Covenant on Civil and Political Rights
(ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR)
of 1966 which came into force in 1976 with the consent and approval of the United
Nations.
• Global recognition for the human rights movement grew during the 1970s, when
Amnesty International gained permanent observer status as an NGO at the United
Nations. Its reports and Statement, and press releases about basic human rights received
respectful attention around the world.
• The U.N. Declaration 1948 caught the attention of civil society organization and
Individuals in the third world to fight precious rights. Hence numerous civil society
organization (Human Rights Watch, Amenity International) emerged in Asia, Africa and
Latin America fighting against oppressive State and basic human rights; be it the right to
life, right to free expression, right to work & better working condition and host of similar
rights.
• At last we can say, Amnesty and many of its sister organizations inspired a shape the later
course of civil liberties movements all over the world. The Amnesty International was
awarded Nobel Peace Prize for its contribution to the cause of human rights.
• Thus the historical perspective highlighted the realities of man's struggle for rights being
as old as the history of mankind itself. The concept of human rights was in a rudimentary
form in the ancient times, in formative stage in middle ages and had fully grown in the
20th Century with the formation of United Nations. The U.N. Charter, however, was not a
binding instrument, and merely stated the ideal which was to be later developed by
different agencies and organs.
• The first concrete step by way of formulating the various human rights was taken by the
U.N. General Assembly in December, 1948, by adopting the Universal Declaration of
Human Rights. It was intended to be followed by an International Bill of Rights which
could be legally binding on the Covenanting Parties.
• After all, Universal Declaration operated merely as a Statement of ideals which was not
of the nature of a legally binding covenant and had no machinery for its enforcement.
 That deficiency was sought to be removed by the U.N. General Assembly by adopting in
December, 1966, two Covenants for the observance of human rights:
• 1. The Covenant on Civil and Political rights.
• 2. The Covenant on Economic, Social and Cultural Rights.

• Indian Perspective on Human Rights

• If we look at the concept of human rights from Indian point of view we find that the
concept of human rights is not alien to the Indian Political thinkers and philosophers.
They have expressed concern to secure human rights and fundamental freedoms for all
human beings everywhere since the very early times of Vedic age. The Indian
philosophy characterizes the foundation of Human rights in ancient conception of
Dharma and Danda which regulated the governance of State and its citizens.
• The Concept of Sanatan Dharma which laid down the foundation of human rights in
ancient civilization is 2000 years older than western Christianity with a central theoretical
doctrine. It laid down the foundation of same society in ancient Indian civilization
encompassing a moral code, righteousness and responsibilities. It was certainly wider and
broader than the concept of religion as used in western historiography. It was on the basis
of those existing principles that detailed rules were laid down for the guidance, of the
King. It was his duty to uphold the law and he was as much subject to law as any other
person (equality before law and equal protection of law can be deduced from that
practice). One of his chief duties was the administration of justice according to the laws
of religious texts, local customs and usages and written codes. It was obligatory for him
to enforce not only the sacred laws of the existing texts but also the customary laws
(rights and claims) of the subjects.
• There was possibly the human rights enforcement situation in its embryonic stage. The
guiding principles for the kings were taken mainly from species of dharmic texts like
Vedas and Vedanta under the genus, Sanatan Dharam which enshrines „Truth is one‟ and
God resides in every human being.' Upanishads, emphasizing the individual self and its
truth say that “there is nothing high than the person”.
• Mahabharata also emphasises the point that "without ethical and moral principles, there is
no true happiness and a society cannot hold together; the principles such as truth, self-
 control asceticism, generosity, non-violence constancy in virtue should serve as the
means of one's success."
• However, even at the individual‟s level, there were some significant contributions by the
religious prophets with regard to the basis of human rights. Mahavir, the founder of
Jainism said that the foundation of human freedom in its deepest sense, advocated that
the truth known as Anekantavad which demonstrated the idea of the relative pluralism
and many sides of truth. This attitude towards truth gives profound implications for
various aspects of human life- personal and social.
• During the Chandra Gupta Maurya's regime, Kautilya in his Arthashastra, which depicted
political, social economic Codes of Conduct, laid down certain principles of the law of
punishment as the foundation of social existence. These principles then became the basis
of law against, interalia, illegal arrests and detention, custodial death, ill-treatment of
women such as rape, inequality of gender, corrupt judicial system etc.
• The legendary King Ashoka in the post-Kalinga regime had sown the seeds of a
humanitarian society and made various provision to ensure equality, fraternity and
happiness for all his subjects. In a way Ashoka was the most important architect of civil
liberties in Ancient India.
• Human Rights In Medieval India
• The Medieval period signifies the Muslim era in India. The Pre-Mughal period saw the
existence of social, political, cultural, religious rights. But with the advent of Mughals,
the concept of human rights got lost in the dark. But Akbar's period (1526-1605) showed
that the great regard was given to the social, religious and political rights.

In his religious policy Din-E-Ilahi (divine-religion), he tried to preach the idea of

secularism and religious tolerance. Similarly, various religious movements like Bhakti
(Hindu) and Sufi (Islamic) made remarkable contribution to the emergence of human
rights which at times suppressed by the other Mughal Emperors like Babar, Humayun,
and Aurangzeb.

• The modern version of human rights jurisprudence took a firm root during the
British rule in India. While the human rights struggle were mainly against the
 exploitative and oppressive rule by colonial power the movement was meant to restore
the lost Dharma of glorious past through internal reforms of Indian Society.
• When the religious bias was introduced to the judicial system in India by Britishers
(British Rule) by the Act 1827, Raja Ram Mohan Roy "The great social reformer of
Modern India" opposed the provisions of that Act. The provisions of the Act were that
natives, either Hindus or Muslims, are subject to judicial trial by Christians, either
European or native, while Christians are exempted from being tried either by a Hindu or
Muslim juror". His forsighting thought and meaningful actions made a valuable
contribution to improve the civil liberties of the native of that time.
• The reformist movement of human rights and dignity from Bengal slowly but spread
steadily, over to other parts of India. For instance, In Maharashtra,
MahadevGovindRanade, who was one of the founding members of Indian National
Congress, set up an all India Organizations, the Indian Social Conference in 1887, to
campaign against human rights abuses. Ranade was such a visionary that he could be able
to see the interdependence and indivisibility of what is now known as two generations of
human rights - civil and Political right, and economic social and cultural rights. He made
a very passionate plea that "you cannot have a good social system when you find yourself
low in the scale of political rights nor can you be fit to exercise political rights and
privileges, unless your social system is based on reason and justice. You cannot have a
good economic system when your social arrangements are imperfect. If your religious
ideas are low and grounding, you cannot succeed in the social, economic and political
spheres. This interdependence is not an accident but is the law of nature." finally found
its expression in the provisions of Universal Declaration of Human Rights in 1948.

• Constitutional & Conventional Contours of Human Rights

• The Constitutional Assembly accomplished the Herculean task of drafting the
Constitution which was enacted and adopted by the People of India on 26 January, 1950.
The genesis of the vision, need recognition, protection and enforcement of human rights
which lies in the freedom struggle of Indians for more than a century, culminated in the
form of Fundamental Rights and Directive Principles of State Policy in which mammoth
structure of Indian Republic stands today.
 • The aspirations of the people of India found expression in the Indian Constitution which
enacted a nearly complete catalogue of human rights around the time when international
scene was witnessing the framing of Universal Declaration of Human Rights.
The human rights content of the Indian Constitution is a complex amalgam of Civil and Political
Rights along with the economic social, religious and minority rights. Even prior to the framing of
the Constitution for free India, Mahatma Gandhi had announced before the Second Round Table
Conference that his aim was to establish a political society in India in which there would be no
distinction between high class and low class people, that women should enjoy the same rights as
men; and dignity and justice, social, economic and political, would be ensured to the teeming
millions of India.

• The Preamble, Fundamental Rights, Directive Principles of State Policy is important

Constitutional provisions from the human rights point of view. Now the concept of
human rights is no longer a philosophical conception, it has become a functional reality.
The study of human rights with reference to Indian Constitution reveals that the
Constitution enshrines almost all the human rights provided in the various international
Conventions, Covenants and treaties, such as Universal Declaration of the Human Rights,
1948, the International Covenant on Civil and Political Rights, 1966, the International
Covenant on Economic Social and Cultural Rights, 1966 etc.
The rights guaranteed and provided in the Constitution of India are required to be in conformity
with the Covenant on Civil and Political Rights and the Covenant on Economic, Social and
Cultural Rights in view of the fact that India has become a part to these Covenants by ratifying
them. Many rights enshrined in the Covenants on Civil and Political Rights have been
recognized.
• specifically in the Indian Constitution as Fundamental Rights under Part III and made
them justiciable i.e., judicially enforceable fundamental rights while Rights stipulated in
the Covenant Economic, Social and Cultural Rights are enshrined in part IV of the
Constitution which lay down the Directive Principles of State Policy and made them non-
justiciable (judicially non-enforceable rights).
• Civil, Political Rights and Fundamental Rights
• The rights cherished in the Covenant on Civil and Political Rights have been duly
protected under part III of the Indian Constitution as Fundamental Rights. These rights
include right to equality, right to freedom, right against exploitation, right to freedom of
religion, cultural and educational rights, and right to Constitutional remedies.
• It is very important to mention here that our Constitution makers having incorporated a
long list of fundamental rights have also provided effective remedies for the enforcement
of these rights. Articles 32 and 226 of the Constitution of India have adequate provisions
for the enforcement of fundamental as well as other rights of the individuals by way of
orders, directions and various writs such Habeas Corpus, Mandamus, Certiorari,
Prohibition and Quo Warranto. The Supreme Court as well as State High Courts exercises
their power under the head of „the right to Constitutional remedies‟ in case of violations
of the above mentioned fundamental rights. In this way these Articles are novel
provisions in the Constitution of India and have no parallel in the Constitution of any
other country.
• In Maneka Gandhi v. Union of India, Bhagwati J. has said that the expression personal
liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go
to constitute personal liberty of man and they have raised to the status of distinct
fundamental rights.
• In Unni Krishnan J.P. v State of Andhra Pradesh, the Supreme Court held that „personal
liberty takes all the rights of man‟ Hence it has the widest ambit and scope and is co-
extensive of Article 21 which includes both substantive right to personal liberty and
procedural safeguard to be observed for its deprivation.
• Again, the Supreme Court in S.R. Bommai v. Union of Indiacase had held that Preamble
of the Constitution is an integral part of the Constitution. Hence „personal liberty‟
 guaranteed under Article 21 must be interpreted in the light of personal liberty and
dignity promised in the Preamble. The Convention and the Constitution stand on equal
footing for the protection and promotion of these basic and fundamental rights.
• No narration of the Constitution can be complete without reference to A.K.
Gapalan,ManekaGandhi,Golaknath and KesavanandaBharti cases. The doctrine that the
basic Structure of the Constitution cannot be altered by amendment is a fundamental
original doctrine evolved by the Indian Judiciary. It is a singular contribution made by the
court for the protection of human rights in this country.
• Human Rights and Directive Principles of State Policy In India much importance has
been given to civil and political rights but not economic and social rights. However, in
real sense the realization of the civil and political rights is impossible without the
enjoyment of economic rights. P.N. Bhaghwati, J. rightly said that civil and political
rights become a practical reality for the people of the State only on the achievement of
economic and social rights. Thus the Economic and social rights are the medium to
achieve civil and political rights. Otherwise civil and political rights will remain merely a
leasing illusion and a simple promise. The rights postulated under the International
Covenant on Economic and Social Rights are incorporated in the Directive Principles of
State Policy under part IV of the Constitution of India. Though Part IV contain directives
to the State, it is intended to guarantee certain basic economic and social rights to the
citizens by the State. Judicially non-enforceable rights in part IV of the Constitution are
chiefly those economic and social in character. However, Article 37 makes it clear; their
judicial non-enforceability does not weaken the duty of the State to apply them in making
laws, since they are nevertheless fundamental in the governance of the country.
• Additionally, the innovative jurisprudence of the Supreme Court has now read into
Article 21 (the right to life and personal liberty) many of these principles and made them
enforceable. The idealism of the makers of our Constitution is proclaimed in the
Preamble which aims at creating a country where justicesocial, economic and political
will prevail, where there will be liberty of thought, expression belief, faith and worship;
equality of status and of opportunity and fraternity assuring the dignity of the individual.
Part III gives a practical shape to this vision by safeguarding the human rights and the
civil and political values proclaimed in the Preamble through justiciable fundamental
 rights. Economic and social rights which require policy initiatives from the State for their
realisation are part of the Directive Principle of State policy.

• If we examine the functioning of the Constitution in the area of human rights, we find
that the human rights jurisprudence has also been deeply influenced in interpreting these
two parts of the Constitution by the international human rights norms set out by the
United Nations in the Universal Declaration of Human Rights in 1948 and other
international Covenants, treaties and conventions. These human rights and freedoms
which we enjoy under the Constitution form the very essence of the civilized life of a
person.
• Knowing how fragile and nascent this freedom is, we have to be constantly vigilant to see
that our Constitutional structure is not eroded and we are ever vigilant to protect our
freedoms and our basic human rights. The spirit of liberty is an eternal flame which we
must keep burning with every means at our command if we are going to create the kind
of social, economic and political structure that was envisaged by our founding fathers.
• The Human rights as a construction that allows us to recognize the practical importance
of law, reason and social fact in bringing economic and social rights into reality. It is the
interchangeability of constitutional and human rights, in light of their normative emphasis
on individual freedom and dignity, and their shared conceptual treatment of the state. It
also suggests that extensive links between international human rights and constitutional
rights are established through trans judicial dialogue, borrowing, common structures of
reasoning and interpretation, and transnational movements. It argues that norm
divergence, and democratic concerns are not sufficient to warrant a separate analysis.

Protection of Human Rights Act, 1993

• India is a party to International covenant on civil and political rights and the International
Covenant on Economic, social and cultural rights adopted by the general assembly of
United Nations on 16 December,1966.India is a signatory to the aforesaid conventions
and the human rights embodied in the said conventions are substantially protected by the
constitution. However, there has been growing concern about issues relating to Human
Rights in India and abroad and having regard to the changing social realities and
 emerging trends in the nature of crime and violence, Government has been reviewing the
existing laws and system of administration of justice.
• Wide ranging discussions were held at various fora such as the chief minister’s
conference on Human Rights and seminars were organised in various parts of the country.
As a result of which the President promulgated the protection of human rights Ordinance,
1993 under article 123 of the Constitution of India on 28 th September ,1993 and further, it
was replaced by Protection of Human Rights Bill,1993 in the Lok Sabha which paved
way for the present act.
• The National Human Rights Commission in India is an autonomous public body
constituted on 12 October 1993 under the Protection of Human Rights Ordinance of 28
September 1993.
• The Act is legislated to establish the National and State Human Rights Commission. The
act gives immense powers to the Commission in furtherance of prevention of violation of
human rights.

• The Protection of Human Rights Act, 1993 was enforced on 28th January 1993. After
having a deliberate discussion on the subject of Human Rights Commission Bill, 1993
was introduced in the Lok Sabha on 14.05.93 and was referred to the standing committee
of Parliament on Home Affairs .In view of urgency of the matter, Protection of Human
Rights Ordinance,1993 was introduced on 28.09.93 by the President of India. Later, on
8.01.94, the Protection of Human Rights Act was enacted which extends to whole of
India.
• In terms of Section 2 of the Protection of Human Rights Act, 1993 -“Human Rights”
means the rights relating to life, liberty, equality and dignity of the individual guaranteed
by the constitution or embodied in the International covenants and enforceable by courts
in.
• The main objective of protection of Human Rights Act 1993 is protecting human
beings from violations. Without Human rights there would be either no if or a meaning
less life. The rights relating to life, liberty equality and dignity of the individual as
guaranteed by the constitution are also included in the category of “Human
Rights”. Human Rights are the rights and freedoms of all human beings.
• The purpose of securing human rights as such is to provide protection to these
rights against the abuse of power committed by the organs of state to establish
institution for the promotion of living condition beings and for the development of
their personality and at the same time to provide effective remedial measures for
obtaining redress in the event of those rights are violated. The act provides for
establishment of National Human Rights Commission,State Human right Commission
and Human Rights Courts which seeks to prevent and punish any gross violation of
human rights.
• The Western countries, America in particular, criticised lndia on the violation of human
rights by Indian armed forces and para-military forces, especially, in the State of Jammu
and Kashmir. In the early 1990's lndia , felt the need for establishing a ÿ commission as a
positive response to the criticisms of the foreign Governments in the context of political
unrest and violence in Punjab, Jammu and Kashmir, the North-East and Andhra Pradesh.
Though it is now a well-recognised fact that terrorism is a serious violation of human
rights. America, never missed the opportunity to criticize lndia, whenever Indian security
forces sought to deal sternly with extremists and ultras.
• In addition to the pressure from foreign countries, there was a strong demand from the
domestic front as well for the creation of a National Hunian Rights Commission. All
these led the Government to enact a law to establish a Human Rights Commission. The
Government's proposal to establish the Commission was of course sudden and without
due deliberations. The President of lndia on September 27, 1993 promulgated an
Ordinance for the creation of a National Human Rights Commission. Justice Ranganath
Mislra, the former Chief Justice of lndia, was appointed the Chairperson of the
Commission on October 12, 1993. Justice M.N. Venkatachaliah, the former Chief Justice
of lndia assumed office on November 26, 1996 :IS the Chairperson after the retirement of
Justice Rangnath Mishra. Justice J.S Verma, the former Chief Justice of lndia became the
Chairperson on November 4, 1999 when Justice Venkatachaliah attained the age of 70
years. After the retirement of Justice J.S. Verma on January 16, 2003, the former Chief
Justice of lndia Justice A.S. Anand was appointed the Chairperson of the Commission.
 • UN Commission on Human Rights formulated the Universal Declaration of Human
Rights on 10th December, 1948. ¢ The international community recognized the growing
importance of strengthening national human rights institutions and arranged a meeting of
representatives of national institutions in Paris. ¢ A detailed set of principles on the status
of national institutions was developed, these are commonly known as the Paris Principles
which became the foundation for the establishment and operation of national human
rights institutions. ¢ The National Human Rights Commission (NHRC) was established
on October 12, 1993. ¢ Its law is contained in the Protection of Human Rights Act, 1993
and is in conformity with the Paris Principles.

The Government of India have set up a forum for redressal of human rights violations by
constituting the National Human Rights Commission (NHRC) and provided for the setting up of
State Human Rights Commission (SHRC) under the Protection of Human Rights Act, 1993. The
Constitution of India has provisions and guarantees for safeguarding almost the entire gamut of
civil and political rights. Directive Principles of State Policy further require the States to ensure
the promotion and protection of social, cultural and economic rights, particularly of the weaker
sections of the society, so as to bring about a just and equitable social order, leading to an overall
improvement in the quality of life for all sections of the society. The civil and criminal laws of
our country have also in-built mechanism to safeguard the rights of the individuals and provide
special protection to the most vulnerable sections of the society.

The National Human Rights Commission (NHRC) of India is an autonomous public body
constituted on 12 October 1993 under the Protection of Human Rights Ordinance of 28
September 1993.It was given a statutory basis by the Protection of Human Rights Act, 1993
(TPHRA).The NHRC is the national human rights institution, responsible for the protection and
promotion of human rights, defined by the Act as "rights relating to life, liberty, equality and
dignity of the individual guaranteed by the Constitution or embodied in the International
Covenants".

"Human Rights" means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the constitution or embodied in the International covenants and
enforceable by courts in India. "Commission" means the National Human Rights Commission
constituted under section of All human beings are born free and equal in dignity and rights
known as Human rights, as commonly understood, are the rights that every human being is
entitled to enjoy freely irrespective of his religion, race, caste, sex and nationality, etc. In
Declaration of Independence acknowledged the fundamental human rights. Human right means
different thing to different people. Human Rights are not static. New rights are recognized and
enforced from time to time. Only persons fully conversant with the latest development about the
expanding horizons of Human Rights can promote their awareness better than others.

Function

TPHRA mandates the NHRC to perform the following functions

 proactively or reactively inquire into violations of human rights or negligence in the

prevention of such violation by a public servant.
 by leave of the court, to intervene in court proceeding relating to human rights
 to visit any jail or other institution under the control of the State Government, where
persons are detained or lodged for purposes of treatment, reformation or protection, for
the study of the living conditions of the inmates and make recommendations
 review the safeguards provided by or under the Constitution or any law for the time being
in force for the protection of human rights and recommend measures for their effective
implementation
 review the factors, including acts of terrorism that inhibit the enjoyment of human rights
and recommend appropriate remedial measures
 to study treaties and other international instruments on human rights and make
recommendations for their effective implementation
 undertake and promote research in the field of human rights
 engage in human rights education among various sections of society and promote
awareness of the safeguards available for the protection of these rights through
publications, the media, seminars and other available means
 encourage the efforts of Ngo’s and institutions working in the field of human rights
 such other function as it may consider it necessary for the protection of human rights.
 • DIVISION OF NHRC
• ¢ There are five divisions in NHRC as follows: — Training Division, spreading human
rights literacy among sections of the society — Law Division, handles registration and
disposal of around one lakh cases each year, registered on the complaints of human rights
violation. — Administration Division, looks after the establishment, administrative and
related requirements of the Chairperson and Members of the NHRC. — Policy Research
and Project Division, undertakes and promotes research on human rights and organizes
conferences, seminars and workshops on important human rights issues. — Investigation
Division, headed by an officer of the rank of Director General of Police, assisted by one
DIG and three Senior Superintendents of Police for Spot Enquiries, Custodial deaths, fact
finding cases.

APPOINTMENT AND REMOVAL OF MEMBERS

The Chairperson and the Members of the Commission are appointed by the President of India on
the recommendations of a Committee consisting of: ¢ The Prime Minister ¢ The Home Minister
¢ The Leader of the Opposition in the Lok Sabha ¢ The Leader of the Opposition in the Rajya
Sabha ¢ The Speaker of the Lok Sabha ¢ The Deputy Chairman of the Rajya Sabha
• APPOINTMENT AND REMOVAL OF MEMBERS

¢ The chairman and members hold office for a term of five years or until they attain the age of
70 years, whichever is earlier. ¢ After their tenure, the chairman and members are not eligible for
further employment under the central or state government. ¢ The president can remove the
chairman or any member from the office under certain circumstances.

Composition

The NHRC (National Human Rights Commission) consists of:

 A Chairperson, retired Chief Justice of India

 One Member who is, or has been, a Judge of the Supreme Court of India
 One Member who is, or has been, the Chief Justice of a High Court
  Two Members to be appointed from among persons having knowledge of, or practical
experience in, matters relating to human rights
 In addition, the Chairpersons of four National Commissions of ( 1.Minorities 2.SC and
ST 3.Women) serve as ex officio members
 LIMITATIONS OF THE COMMISSION
 NHRC can only make recommendations without the power to enforce decisions. ¢ This
lack of authority to ensure compliance can lead to outright rejection of its decision too. ¢
It is often viewed as a post-retirement destinations for judges, police officers and
bureaucrats with political clout. ¢ Bureaucratic functioning, inadequacy of funds also
hamper the working of the commission. ¢ Under the Protection of Human Rights Act,
1993, human rights commissions cannot investigate an event if the complaint was made
more than one year after the incident, therefore, a large number of genuine grievances go
unaddressed.

State Human Rights Commission

A State Government may constitute a body known as the Human Rights Commission of that
State to exercise the powers conferred upon, and to perform the functions assigned to, a State
Commission. About 26 states have constituted the State Human Rights Commission through
official Notification.
A State Human Rights Commission can inquire into violation of human rights only in respect of
subjects mentioned in the State List (List-II) and the Concurrent List (List-III) of the Seventh
Schedule of the Constitution of India.
The Central Government may confer upon the State Human Rights Commissions the functions
relating to Human Rights except the Union Territory of Delhi. Such functions for New Delhi are
dealt by the National Human Rights Commission.
Composition of the States Human Rights Commission
The State Human Rights Commission is a multi-member body consisting of a chairperson and
two members. The chairperson should be a retired Chief Justice or a Judge of a High Court and
members should be serving or retired judge of a High Court or a District Judge with a minimum
of seven years experience as District Judge and a person having knowledge or practical
experience with respect to human rights.

 The Chairperson and members are appointed by the Governor on the recommendations of
a committee consisting of the chief ministers as its head, the speaker of the Legislative
Assembly
  The chairperson and members hold office for a term of three years or until they attain the
age of 70 years, whichever comes first.
 Although the chairperson and members of a State Human Rights Commission are
appointed by the governor they can only be removed by the President (and not by the
Governor).
The Salaries, allowances and other conditions of service of the chairperson or a member are
determined by the state government. But they cannot be varied to his disadvantage after his
appointment.
Functions of the States Human Rights Commission:

 To inquire into any violation of human rights or negligence in the prevention of such
violation by a public servant, either suo motu or on a petition presented to it or on an
order of a court.
 To intervene in any proceedings involve allegations of violation of human rights pending
before a court.
 To visit jails and detention places to study the living condition of inmates and make
recommendations thereon.
 To review the constitutional and other legal safeguards for the protection of human rights
and recommend measures for their effective implementation.
 To review the factors including acts of terrorism that inhibit the enjoyment of human
rights and recommend remedial measures.
 To undertake and promote research in the field of human rights.
 To spread human rights literacy among the people and promote awareness of the
safeguards available for the protection of these rights.
Working of the States Human Rights CommissionThe Commission is vested with the power to
regulate its own procedure. It has all the powers of a civil court and its proceedings have a
judicial character. It may call for information or report from the state government or any other
authority subordinate hitherto.The Commission is not empowered to inquire into any matter after
the expiry of one year from the date on which the act constituting violation of human rights is
alleged to have been committed. In other words, it can look into a matter within one year of its
occurrence.The Commission may take any of the following steps during or upon the completion
of an inquiry:

 It may recommend the state government or authority to make payment of compensation

or damages to the victim.
 It may recommend to the state government or authority the initiation of proceedings for
prosecution or any other action against the state government.
 It may recommend the state government or authority for the grant of immediate interim
relief to the victim.
 It may approach the Supreme Court or state high court for the necessary direction, order
or writs.
The Commission submits its annual or special reports to the state government. These reports are
laid before the state legislature, along with a memorandum of action taken on the
recommendations of the Commission and the reasons for non-acceptance of any of such
recommendations.
International status

The NHRC has been accredited with "A status" by the International Coordinating Committee of
National Human Rights Institutions (the ICC), indicating that it is in conformity with the Paris
Principles – a broad set of principles agreed upon by a conference of experts on the promotion
and protection of human rights, in Paris in October 1991, and subsequently endorsed by the UN
General Assembly. The Commission is thus entitled to participate in the ICC and in its regional
sub-group, the Asia Pacific Forum, and may take part in certain sessions of the UN human rights
committees.

Human Rights Courts in DISTRICTS

One of the objects of the Protection of Human Rights Act, 1993 as stated in the preamble of the
Act, is the establishment of human rights courts at district level. The creation of Human Rights
Courts at the district level has a great potential to protect and realize human rights at the
grassroots.

The Protection of Human Rights Act, 1993 provides for establishment Human Rights Courts for
the purpose of providing speedy trial of offences arising out of violation of human rights. It
provides that the state Government may, with the concurrence of the Chief Justice of the High
Court, by notification, specify for each district a Court of Sessions to be a Human Rights Court
to try the said offences. The object of establishment of such Courts at district level is to ensure
speedy disposal of cases relating to offences arising out of violation of human rights

The Act refers to the offences arising out of violations of human rights. But it does not define or
explain the meaning of "offences arising out of violations of human rights". It is vague. The Act
dose not give any clear indication or clarification as to what type of offences actually are to be
tried by the Human Rights Courts. No efforts are made by the Central Government in this
direction. Unless the offence is not defined the courts cannot take cognizance of the offences and
try them. Till then the Human Rights Courts will remain only for namesake.
Even if "offences arising out of violations of human rights" are defined and clarified or
classified, another problem arises in the working of the Human Rights courts in India. The
problem is who can take cognizance of the offences. What the Act says is in each district, one
Sessions Court has to be specified for trying "offences arising out of human rights violation". It
is silent about taking of cognizance of the offence. The Prevention of Corruption Act, 1988 is
another law, which provides for appointment of a Sessions Judge in each district as Special
Judge to try the offence under the said Act. Provision has been made in section 5 of the
Prevention of Corruption Act, 1988 empowering the Special Judge to take cognizance of the
offences under the said Act. In the Protection of Human Rights Act, 1993 it is not so.

Sessions Court of the district concerned is considered as the Human Rights Court. Under the
Criminal Procedure Code, 1973 a Sessions Judge cannot take cognizance of the offence. He can
only try the cases committed to him by the magistrate under Section 193 of the Cr.P.C.

Similar problem had arisen in working of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 in the beginning. The Special Judges used to take
cognizance of the offences. In Potluri Purna Chandra Prabhakara Rao V. State of A.P., 2002(1)
Criminal Court cases 150, Ujjagar singh & others V. State of Haryana & another, 2003(1)
Criminal Court Cases 406 and some other cases it was held that the Special Court (Court of
Session) does not get jurisdiction to try the offence under the Act without committal by the
Magistrate. The Supreme Court also held same view in Moly & another V. State of Kerala,
2004(2) Criminal Court Cases 514. Consequently the trial of all the cases under the Prevention of
Atrocities Act were stopped and all the cases were sent to the Courts of jurisdictional
Magistrates. Thereafter the respective Magistrates took cognizance of the cases and committed
them to the Special Courts. The Special Courts started trying the cases after they were committed
o them. The Act was later amended giving the Special Courts the power to take cognizance of
the offences under Act.

The situation in respect of the Human Rights courts under the Protection of Human Rights Act,
1993 is not different.

Apart from the above, the Special Courts will face yet another question whether provisions of
Section 197 of Cr.P.C. are applicable for taking cognizance of the offences under the Protection
of Human Rights Act, 1993. In most of the cases of violation of human rights it is the police and
other public officers who will be accused. The offence relate to commission or omission of the
public servants in discharge of their duties. Definitely the accused facing the trial under the Act
raise the objection. There are plethora of precedents in favour of dispensing with the
applicability of Section 197 of Cr.P.C. on the ground that such acts (like the ones which result in
violation of human rights) do not come within the purview of the duties of public servants. But
there is scope for speculation as long as there is no specific provision in the Act dispensing with
the applicability of Section 197 of Cr.P.C.

The object of establishment of such Courts at district level is to ensure speedy disposal of cases
relating to offences arising out of violation of human rights. Unless the lawmakers take note of
the above anomalies and remove them by proper amendments the aim for which provisions are
made for establishment of special courts will not be achieved.

Human Rights Commission Complaint

Following are the points that are to be kept in mind while filing a complaint with the National
Human Rights Commission.

Who can file a complaint?

Complaints can be filed by the victim by himself/herself or on his behalf by someone else.

On what grounds can a complaint be filed?

Complain can be filled on two grounds:

1. Violation of any human rights, or

2. There is negligence on the part of police servant in preventing the violation of human
rights.

Language of the complaint

According to the 8th Schedule of the Constitution of India, complaints can be filed in English,
Hindi, Bengali, Gujrati or any other language as mentioned in the schedule.

Is there any time frame in which a complaint can be filled?

In order to seek remedy against the violation of human rights, the complaint has to be filed
within a time span of one year from the date on which the violation of human rights occurred.

What is the fee for filing a complaint?

No fee is charged for filing the complaint in the National Human Rights Commission.

By which mode the complaint can be sent?

Complain can be sent in the following ways:

On the office address

By posting it on this address of the National Human Rights Commission that is :

National Human Rights Commission

Manav Adhikar Bhawan Block-C

GPO Complex, INA, New Delhi – 110023

Through Fax

A complaint can be filed by faxing it to the office. The fax number is:

(011) 23386521

Through Email

A complaint can be filed by emailing it to [email protected]

On-Call

A complaint can be filed by calling on – 91 9810298900

What must the complaint contain

The complaint must provide a clear picture of the matter. Each and everything should be
mentioned in the complaint. The documents that are also enclosed in the complaint should be
easy to read. The complaint must contain the following:

The complainant should fill in the following details:

1. Name of the complainant.

2. Sex of the complainant.
3. Address of the complainant.
4. State of the complainant.
5. District of the complainant.
 6. Pin code of his/her locality, email address and mobile number of the complainant.
Following are the details of the victim that the complainant has to provide while filing a
complaint with the National Human Rights Commission :

1. Name of the victim.

2. Address of the victim.
3. State of the victim.
4. District of the victim.
5. Sex of the victim.
6. Pin code, if available.
7. Disability of the victim.
8. Age of the victim.
9. The religion of the victim.
10. Caste of the victim.
The complaint also contains the details of the incident such as:

1. Place of the incident.

2. State where the incident happened.
3. District where the incident happened.
4. Date of the incident.
5. Category of the incident.
6. Subcategory of the incident.
7. A brief summary of the complaint.
8. One has to mention in the complaint whether this complaint has been filed before any
court or commission.
The column is for relief details which include:

1. Name, designation and address of the public servant against whom the complaint is
being made and,
2. Full details of the relief that one wants should be mentioned.

NHRC online complaint

Human Rights Complaint procedure

How to file an online complaint?

A complaint can be filed online by following these steps:

STEP 1: Click on this link www.hrcnet.nic.in/HRCNet/public/webcomplaint.aspx

STEP 2: Fill the mandatory fields and then click on “ Next”. On your mobile number that you
have mentioned an OTP will be sent

STEP 3: Enter OTP and click Validate OTP Button.

STEP 4: After validation of OTP click next or if OTP is not validated then click the Resend
Button to request OTP once again.

STEP 5: After the validation of OTP, the complainant needs to fill Incident details and Victim
details. In victim details, the complainant has an option to select ‘NO’ if he/she doesn’t want to
show the details of the victim. Similarly, the complainant can select ‘NO” if he/she doesn’t want
to show his/her details.

STEP 6: Fill in the incident details

STEP 7: Complainant has to fill in relief details

STEP 8: After this, the last step is to save and submit the form then the complaint will be
submitted online.

Human rights complaint number

The helpline number of the National Human Rights Commission is known as MADAD.

For Complaints status, General queries:-

Phone No.: 91-11-24651330, 91-11-24663333

Email id (for Complaints only): [email protected]

For lodge complaint/ track status: click on nhrc.nic.in/lodge-complaint-track-status

Focal points for human rights defenders: +919810298900

Fax Numbers: Law Division(for complaints- filing): 91-11-24651332

Administration Division: 91-11-24651329

Investigation Division: 91-11-24663304 (Group I), 91-11-2466312 (Group II)

NHRC TOLL-FREE HELPLINE NUMBER – 14433

Human rights email

A person can email on the following address:

[email protected] (general)

[email protected] (for complaints)

Parliament Passes the Protection of Human Rights (AMENDMENT)

Act, 2019

Need for the amendment in the existing Act

 The NHRC was denied A-grade accreditation in 2017 by the Global Alliance of National
Human Rights Institutions (GANHRI), a UN body based in Geneva, due Commission’s
failure in ensuring gender balance and pluralism in its staff and lack of transparency in
selecting its members and rising political interference.
 Demand from the certain State Governments has also proposed for amendment of the
Act, as they have been facing difficulties in finding suitable candidates to the post of
Chairperson of the respective State Commissions owing to the existing eligibility criteria
to the said post.

Significance of the recent amendment

The proposed amendments will enable both the National Commission as well as the State
Commissions to be more compliant with the Paris Principles concerning its autonomy,
independence, pluralism and wide-ranging functions in order to effectively protect and promote
human rights.
  Filling up the Vacancies: The age limit for appointment to the panel has been reduced to
fill the vacancies. The amendment has ensured transparency in the appointment of
Chairman and members of the Commission.
 Enabling conditions to incorporate Civil Society: Effort is also to increase the presence
of civil Society in the composition of the Commission.
 Ease of accessibility: The applicants in Union Territories can now appeal to the Human
Rights Commission of nearby states instead of coming all the way to Delhi.

Amendments to the original Act of 1993

Provisions Original Act of 1993 Amended Act of 2019

Under the Act, the chairperson of

the NHRC is a person who has
been a Chief Justice of the
Supreme Court.
The Bill amends this to provide that a person who has been
Justice of the Supreme Court, or a Judge of the Supreme Court w
The Act provides for two persons the chairperson of the NHRC.
having knowledge of human
rights to be appointed as members
The Bill amends this to allow three members to be appointed, of
Composition of the NHRC.
at least one will be a woman.
of NHRC
Under the Act, chairpersons of
The Bill provides for including the chairpersons of the Na
various commissions such as the
Commission for Backward Classes, the National Commission f
National Commission for
Protection of Child Rights, and the Chief Commissioner for P
Scheduled Castes, National
with Disabilities as members of the NHRC.
Commission for Scheduled
Tribes, and National Commission
for Women are members of the
NHRC.

Under the Act, the chairperson of

Chairperson an SHRC is a person who has The Bill amends this to provide that a person who has been
of SHRC been a Chief Justice of a High Justice or Judge of a High Court will be chairperson of an SHRC
Court.

The Act states that the The Bill reduces the term of office to three years or till the a
chairperson and members of the seventy years, whichever is earlier.
Term of office
NHRC and SHRC will hold office
for five years or till the age of
 seventy years, whichever is The Bill removes the five-year limit for reappointment.
earlier.

Further, the Act allows for the

reappointment of members of the
NHRC and SHRCs for a period of
five years.

The Bill provides that the central government may confer on an S

Union human rights functions being discharged by Union Terri
Territories Functions relating to human rights in the case of Delhi will be
with by the NHRC.