You are on page 1of 29









Man has the right to live. He has the right to bodily integrate and to the means necessary for proper development of life, particularly food, clothing, shelter, medical care, rest and finally necessary social services. Hence human rights are undeniable and inherent rights of every individual. The concept of human rights has its origin in humanism which recognizes the value and dignity of man and makes him the measure of all things or somehow takes human nature, its limits, or its interests as its theme. There are lot of international documents relating with human rights. Eg. UDHR, ICCPR, Optional Protocols etc,. The main object of all these documents is to protect human rights. So for achieving this purpose there are some complaints alleging mechanism like Human Right Committee which is established under First Optional Protocol of ICCPR. For understanding the First Optional Protocol of ICCPR, we have some idea about the historical background of the First Optional Protocol, how it relates with ICCPR and the obligations of State Parties under the Optional Protocol to the International Covenant on Civil and Political Rights. When we come to the implementation and enforcement part of the Optional Protocol of ICCPR, we can see that there is a complaint alleged mechanism i.e., Human Rights Committee. The First Optional Protocol of ICCPR is procedural and provides a mechanism for the Human Rights Committee to receive and consider individual complaints alleging a violation of the Covenant. As its name makes clear, the Protocol is not compulsory, but once a State party to the Covenant also becomes a party to the Protocol, any person subject to the jurisdiction of the State party may lodge a written complaint with the Human Rights Committee (subject to any permissible reservations). Although the Optional

economic. and cultural rights to all its citizens irrespective of caste. it is not automatically in force for all States parties to the Covenant. The significance of India‟s constitution is also immense for its mixed policy adoption on liberal and socialistic norms of governance. The sole object of the Article 32 and Article 226 of the Constitution of India is the enforcement of the fundamental rights guaranteed under Part III of the Constitution of India. the effect of First Optional Protocol is not identifiable even though we are party to the First Optional Protocol of ICCPR. religion or race. .Protocol is organically related to the Covenant. In Indian scenario. But we have The Constitution of India is distinctive for its commitment to provide full political.32 and Article. we can get remedy under Article. for the violation of fundamental rights. creed. According to Constitution of India. social.226.

a panel of 18 independent experts who meet three times a year to receive complaints from persons within their jurisdiction alleging violations of their rights under the Covenant. a separate treaty open to States parties to the Covenant. nominated and elected by States Parties to the Covenant. Individual rights that may be invoked before the Committee are set out in articles 6 to 27 inclusive. Implementation Article 28 of the Covenant provides for the establishment of a Human Rights Committee consisting of eighteen independent experts.ICCPR Meaning The International Covenant on Civil and Political Rights covers a broad range of civil and political rights ranging from the right to life to the right to a fair trial and the right to non-discrimination. States that have become a party to the Optional Protocol recognize the competence of the Human Rights Committee . The Committee examines periodic reports from States Parties to the Covenant on their compliance (Article 40). and thereafter whenever the Committee so determines. The Human Rights Committee monitors the implementation of the Covenant in a number of ways. Such a report must be submitted by each State within one year of becoming party to the Covenant. The complaint mechanism for alleged violations of those articles is contained in the First Optional Protocol to the Covenant. which means that they are not acting on behalf of their State. The reports are examined in public . comprising Part III of the Covenant. who serve in their personal capacities.

However. as well as suggestions and recommendations to the Government concerned on ways in which the Covenant could be better implemented. in the context of international law refers to the forms of ceremony and etiquette observed by diplomats and heads of state. A protocol is also used to add a procedure for the operation and enforcement of the treaty. The Human Rights Committee also interprets the content and meaning of specific articles of the Covenant in its „General Comments‟. the states must independently ratify a protocol. On completion of each State report. protocol is an agreement of a less formal nature than a treaty or convention. A protocol has similar legal characteristics as a treaty. no such complaints have been received. Generally.and in the presence of the representative of the State concerned. An example of a protocol is the Optional Protocols to the Convention on the Rights of the Child concern the . The Committee can consider complaints of one State against another. WHAT IS AN OPTIONAL PROTOCOL? The term protocol. supplements or clarifies a multilateral treaty. A protocol may be on any topic relevant to the original treaty and is used either to further address something in the original or parent treaty. or to address a new concern. who may be questioned. provided that both have made a special declaration recognizing this role of the Committee under Article 41. These establish the jurisprudence of the Covenant and thus guide the States Parties in their adherence to their obligations under the Covenant and in the preparation of State reports. The Committee reports annually on its work to the United Nations General Assembly through the Economic and Social Council (ECOSOC). A protocol is „optional‟ because it is not automatically binding on States that have already ratified the original treaty and in order to be binding. the Committee issues concluding observations which reflect the main points of discussion. a protocol amends. To date.

A protocol may be on any topic relevant to the original treaty and is used either to further address something in the original treaty. it can sign the treaty. is equivalent to ratification.involvement of children in armed conflict and the sale of children. a State formally indicates its intent to be bound by the treaty. Firstly. address a new or emerging concern or add a procedure for the operation and enforcement of the treaty—such as adding an individual complaints procedure. Optional Protocols to human rights treaties are treaties in their own right. States must independently ratify or accede to a protocol. following which. A protocol is „optional‟ because it is not automatically binding on States that have already ratified the original treaty. Signature is followed by ratification. Accession. and are open to signature. . The first Optional Protocol sets out a system by which the Human Rights Committee can receive and consider complaints from individuals. In depositing an instrument of ratification. child prostitution and child pornography. according to the rules of international law. Alternatively. a State can accede to a treaty. the State may not act contrary to the objects and purposes of the treaty. In the case of the Covenant. The term „protocol‟ is used for an additional legal instrument that complements and add to a treaty. accession or ratification by countries who are party to the main treaty. this is three months Parties to the Covenant may also become parties to either or both of its two Optional Protocols. Very often. A State can become party to a treaty in one of two main ways. who allege that their human rights have been violated. human rights treaties are followed by "Optional Protocols" which may either provide for procedures with regard to the treaty or address a substantive area related to the treaty. whereby a State that has not signed a treaty agrees to be bound by it. The treaty in question typically provides a short period of time after the date of ratification or accession before the State is actually bound by the terms of the treaty.

The Charter contains references to human rights in the Preamble. a broad consensus emerged at the worldwide level demanding that the individual human being be placed under the protection of the international community. it became almost self-evident to entrust the planned new world organization with assuming the role of guarantor of human rights on a universal scale. since the lesson learned was that protective mechanisms at the domestic level alone did not provide sufficiently stable safeguards. Since such an initiative required careful preparation. However. among the purposes of the Organization and in several other provisions. never again should a holocaust occur. the new Commission on Human Rights began its work for the creation of an International Bill of Rights.THE ICCPR AND THE OPTIONAL PROTOCOL a) Historical Background After the horrors of World War II. the Universal Declaration of Human Rights was drafted. national governments could gravely fail in their duty to ensure the life and the liberty of their citizens. some Latin American countries requested that a full code of human rights be included in the Charter of the United Nations itself. . Immediately after the actual setting up of the institutional machinery provided for by the Charter. Some had even become murderous institutions. At the San Francisco Conference in 1945. human rights were embraced as a matter of principle. Nonetheless. Accordingly. In a first step. As particularly the atrocities committed against specific ethnic groups had shown. their motions could not be successful at that stage. which the General Assembly adopted on 10 December 1948.

The General Assembly reaffirmed the necessity of complementing. It is this latter view that eventually prevailed. the two comprehensive human rights instruments of the United Nations have sailed on different courses. whereas the International Covenant on Economic. the General Assembly directed the Commission on Human Rights to prepare. instead of just one Covenant. traditional civil and political rights with economic. more than just a political proclamation was needed. The only question was whether. economic and social rights partaking more of the nature of goals to be attained whereas civil and political rights had to be respected strictly and without any reservations. The . Since that time. social and cultural rights. contrary to many pessimistic expectations. Hence. it was eventually pressure brought to bear upon them from Third World countries which prompted them to approve the outcome of the protracted negotiating process. since both classes of rights were “interconnected and interdependent”. the International Covenant on Civil and Political Rights (ICCPR) comprises 161 States parties. social and cultural rights. As of June 2008.In order to make human rights an instrument effectively shaping the lives of individuals and nations. However. The difference in the circle of States parties is low. By resolution 543 (VI) of 4 February 1952. on 16 December 1966. the two Covenants were adopted by the General Assembly by consensus. without any abstentions. they have mostly been ratified simultaneously. Accordingly. Social and Cultural Rights (ICESCR) holds the second place with 158 ratifications. While both the Western and the Socialist States were still not fully convinced of their usefulness. a Covenant setting forth civil and political rights and a parallel Covenant providing for economic. Western nations in particular claimed that the implementation process could not be identical. as had already been done in the Universal Declaration. the new conventional rights should be encompassed in one international instrument or whether. following the concept of unity of all human rights. from the very outset there was general agreement to the effect that the substance of the Universal Declaration should be translated into the hard legal form of an international treaty. they should be arranged according to those specificities. on account of their different specificities. The Commission completed its work in 1954. Yet it took many years before eventually the political climate was ripe for the adoption of these two ambitious texts. two draft treaties.

True universality is within reach The First Optional Protocol of ICCPR is procedural and provides a mechanism for the Committee to receive and consider individual complaints alleging a violation of the Covenant. on the other hand. and China. Article 10. 2. Article 12 allows a State party to denounce the Optional Protocol. This is not limited to nationals. . which a complaint must satisfy before its substance. while articles 7 through 14 contain largely standard savings and technical provisions on the mechanics of becoming a party. 3 and 5 a series of admissibility requirements. the lacunae include only a small part of the world population. can be considered. the Committee reports annually to the General Assembly on its activities concerning complaints. notification. has not found it convenient to ratify the ICCPR. The Protocol sets out in articles 1. provides that the Protocol too extends without exception to all parts of federal States. amendment. for example. like the parent Covenant. a national of a State party residing abroad who was denied a passport by that State was able to bring a claim to the Committee.Russian Federation. the Protocol is not compulsory. that is to say of the substantive rights contained in Part III. or merits. is a party to both Covenants. but extends to all persons who are directly subject to a State‟s exercise of power through its authorities. if appropriate in conjunction with the provisions of Parts I and II. In general. As its name makes clear. entry into force. explicit and implicit. any person subject to the jurisdiction of the State party may lodge a written complaint with the Human Rights Committee (subject to any permissible reservations). but once a State party to the Covenant also becomes a party to the Protocol. Under article 6. denunciation and the like. however. or to persons within a State‟s territory. while the United States has left aside the ICESCR. for instance. Thus. Article 4 of the Protocol sets out basic procedural requirements for the treatment of a complaint.

An individual who claims that any of his rights enunciated in the Covenant has been violated and he had exhausted all available domestic remedies may submit a written communication to the Human Rights Committee for consideration. An individual may now lodge a complaint against a state violating human rights under the Covenant.HUMAN RIGHTS UNDER FIRST OPTIONAL PROTOCOL a. The same would be fate a complaint which is incompatible with the provisions of the Covenant. Implementation Under the Covenant on Civil and Political Rights it is only the State who have locus standi to file compliant or communication as the complaints are designated. Similarly. such a complaint can be lodged only against a State party to the Covenant. Article 2 of the Protocol runs: A State Party to the Covenant that becomes a party to the present protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to the jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the covenant. . a communication which the Committee considers as abuse of the right of submission of such communication will not be entertained. No Communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a party to the present protocol. However. Ni anonymous communication will be entertained. The individual has been conferred such a right under the first Optional Protocol to the Covenant on Civil and Political Rights.

The greatest relevance of this provision is that an individual can expose the delinquent state before the international community and people. the Human Rights Committee would bring it to the attention of the alleged delinquent State. if any within six months. Even if no direct benefit accrues to the individual addressing a communication to the . The Human Rights Committee includes these “views” in its annual report. The delinquency of the State will come under the gaze of everybody. Such would submit to the Committee its explanation clarifying the matter and the remedy. The Committee will consider such communication only after ascertaining that the same matter has not been examined under another procedure of international investigation or settlement and after ascertaining that the individual complaint had exhausted all domestic remedies available to him. Though virtually communication is nothing but a complaint. All states will know that the delinquent state is not adhering to the provision of the Covenant. In its annual Report. Its views are not binding on the state concerned. The Committee will consider the entire matter in closed door meetings and thereafter will communicate its views to the individual complainant and the State concerned. It should also be noticed that the Committee does not render “decision.Once a communication against a state is entertained.” Even the word “recommendation” has not been used. Thereafter the Human Rights Committee would proceed to consider communications in the light of all written information made available to it by both the parties. It will certainly gather public opinion. the Human Rights Committee will include a report of its activities under the protocol. This means that the activities of the alleged delinquent state will come before the international community. It should be noticed that the Protocol all along uses the expression “communication” and not complaint.” One may say what the value of mere “views” is when Committee is not competent even to make its recommendation much less to render a decision. The expression used is “views.

the greatest gain is that individual has got locus standi to come before international forum. impart. but this shortcoming reflects the small number of African and Asian parties to the Covenant. It shall transmit its reports. Each state party may nominate not more than two of its nationals as candidates. The Committee consists of 18 members who are nationals of the States Parties. The members are elected by secret ballot of all the State Parties. Paragraph 2 of the Article states. The functions of the Committee and its implication its powers. Paragraph 4 of Article 40 amplifies this provision as follows: The Committee shall study the reports submitted by the states parties to the present Covenant. Consideration is given to the usefulness of legal expertise. There has been criticism of the lack of African and Asian experts. are contained in Article 40 of the Covenant. in particular in relation to the number of Eastern and Western Europeans. i) Human Rights Committee The Human Rights Committee was established on the basis of the Covenant and it considers periodic reports on the measures states have adopted to give effect to the rights guaranteed by the Covenant and on the progress made in the enjoyment of the rights. 41 of the Covenant. Equitable geographical distribution and representation of different forms of civilisation and of the principal legal system are taken into account. that “all reports shall be submitted to the Secretary-General of the United Nations. who shall transmit them to the Committee for consideration”. It also considers individual complaints received on the basis of the Optional Protocol and can receive inter-state complaints on the basis of an optional procedure based on Art. The Committee may also . They have to be “of high moral character and recognized competence in the field of human rights”.human rights committee about abuse of human rights. and such general comments as it may consider appropriate. to the State Parties.

The report has to be submitted within 12 months. The members cannot party to the Covenant. There is also the possibility of appointing an ad hoc Conciliation Commission with the prior consent of the State Parties involved. IN other words the Committee cannot express its opinion on whether there has been a violation or not. ii) Inter-state Complaints This procedure is optional and only applies to states which have expressly accepted it. if the matter is not resolved to the satisfaction of both State Parties. The exhaustion of domestic remedies is required.This possibility can be used. The parties have to inform the Committee within three months whether they accept the contents of the report on conciliation. if the matter is not settled to the satisfaction of both parties. . the report contains the facts and the solution achieved. or of a State which has not made a declaration under Art. if it would not unreasonably prolong the procedure. If friendly settlement is not possible. It can ask for all information from the parties. there are no other means available. If no settlement is reached. it only contains the facts. It includes three stages: bilateral negotiations between the states concerned. if a State Party finds that another state party has not fulfilled its obligations under the Covenant. It also insides the possibility of appointing an adhoc Conciliation Commission. The committee provides its good offices for a friendly settlement of the dispute. If friendly settlement is achieved. The Committee prepares a report which will be transmitted to the States Parties concerned.41. the good offices of the Human Rights Committee and reports by the Committee to the states concerned. The parties have the right to submit their observations orally or in a written form.transmit to the Economic Council these comments along with the copies of the reports it has received from State Parties to the present Covenant. The Commission will consist of five persons serving in their personal capacity.

no inter-State complaint has been submitted to the Committee.. only be made in respect of two States parties that have declared that they recognize the competence of the Committee to receive and consider such inter-State complaints. This reflects the dual understanding of a human rights treaty as not simply a contract between a State party and persons subject to its jurisdiction. If. it does not seem very probable in the opinion of some authors that the procedure will be used in the immediate future. may. which is provided for in article 41 of the Covenant. within a reasonable period of time. which may deal with it once satisfied that. it is instructive to outline the way in which this procedure would operate. it can be legally said that human rights violations in a State party are of direct concern to all other States parties.There was no doubt that the Committee of the Commission‟s draft was a specialized body: “a quasi-judicial organ setup for the very specific purpose of receiving complaints alleging non-observance of the Covenant.and that to transmit reports to the Committee might be to invite it to pass judgment without being seized of a complaint by a state party. although the procedure came into force in 1979. The first step would be for the State lodging the complaint to bring the matter to the attention of the State that is alleged not to be fulfilling its obligations. some 48 States had made such a declaration. in the form of a written explanation or clarification. To date. Nevertheless. Such a complaint. within six months.. . the matter is not settled to the satisfaction of both parties. In this fashion. Within three months. As of publication. Because both states involved must have made the declaration. but also a multilateral treaty in the traditional sense that all States parties to a treaty have an interest in the compliance of other States parties with their obligations. however.prejudice its autonomy and independence” Inter-state complaints have not occurred in practice. the latter should reply. either may refer it to the Committee.. however. Assessment of Inter-State Complaints A State party may submit a communication to the Committee alleging that another State party is not fulfilling its obligations under the Covenant.

It can be submitted on behalf of an individual if he appears to be unable to submit it himself. through that person. The Communication must be submitted by the victim or by his appointed representative. unless this would” “unreasonably prolong” the procedure. with instructions to complete its business and submit a report to the Chairperson of the Committee and.all domestic remedies have been tried. within 12 months. in the Covenant. The Committee may then take the matter up and propose its good offices in the search for a friendly solution.  The communication must not be under examination by “another procedure of international investigation or settlement”.  Abuse of the right of submission constitutes a ground of admissibility  The communication must be compatible with the provisions of the Covenant. several countries have made reservations to bar consideration of any communications .  There has to be proof that the individual is a victim of a violation by that state party of one of the rights set forth. iii) Individual complaints Receivability of Complaints: The following grounds of admissibility are set in the Optional Protocol (Article 5) or in the provisional rules of procedure of the Committee.  It has to be submitted by an individual or individual‟s subject to the jurisdiction of a state is party to the Protocol. without success. when the competing procedure is completed. but not including their nationals among its members.  A communication must not be anonymous. the Committee may appoint a fiveperson conciliation commission. However. If there is still no agreement. to the parties in dispute.  Exhaustion of domestic remedies is required. with the agreement of the States parties directly concerned. Regarding Article 5(2a) it may be added that the Committee may proceed.

Substantial issues that have been examined by the Committee are the right to life. These are forwarded by the Committee to the complainant. 1976. who may submit any additional written information. But in practice. Under Article 5. The Committee has determined that the 1503 procedure cannot be considered as “the same matter” as an individual complaint under the Optional Protocol. paragraph 1. Under Article 4. the State Party has to submit to the Committee written explanations and statements clarifying the matter and the remedy within six months. the final views of the Committee are forwarded to the State Party and to the individual.that are being or have been considered in another forum in order to prevent an “appeal” to the Committee. After the decision on admissibility the decision and the text of relevant documents are communicated to the State Party. (1). There is also another exception to the requirement under Article 7 of the Optional Protocol. inhuman or . The violations must naturally also have occurred after the entry into force of the Covenant. that is. The author is also informed of the decision. Working methods and Practices: In 1977 the Committee decided to establish a working group to consider the communications in the light of all written information submitted to it by the individual and by the State Party concerned and to make recommendations to the Committee regarding admissibility. if there are no effective domestic remedies. Both parties may be requested to furnish relevant information and may be afforded an opportunity to comment on the information received from the other party. In contrast to the 1503 procedure the principle of equality of arms is typical of this procedure. the right not to be subjected to torture or to cruel. It is not valid. reference to violations before that date may be taken into consideration if the violations have continued or have had effects after ratification and entry into force.

This is reflected in many of the Government Communications addressed to the author.degrading treatment. the right to be treated humanely during imprisonment. There are no formal provisions for oversight or implementation of the Committee‟s decisions by other bodies. the right not to be subjected to discrimination on the grounds of sex and the rights of minorities. The Human Rights Committee. The Committee is not a court and has no power to enforce it decisions. The government can also see the advantages of modifying its behaviour in order to avoid future embarrassment. Sanctions and Follow-up: The Committee is not a UN body in the formal sense. during its three sessions endeavouring to enhance the follow-up to its recommendations announced some 60 significant decisions in individual cases. The views of the Committee are issue in press release for general distribution. the right to freedom of expression. The Committee‟s annual reports are submitted to the UN General Assembly and are made available for sale. the right of access to counsel and to fair trial without undue delay. The publishing of its finding is presumably the result of its hoping to encourage the government concerned to rectify the situation of the individual victim. . the right to engage in political activity. Publicity can be considered as a Sanction in the absence of judicial sanctions.

g) (Article 4. State. para.f.3. para 4 Optional Protocol Article 42 State concerned Ad hoc Conciliation Commission: Report Individual . 1h Formulation of views Article 5. Otional Protocol) Report Article 41. State Article 41 Optuional Jurisdiction Communication: Individual v.e.Scheme of the Implementation Machinery of the International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights Communication State v. Optional Protocol Article 1 HUMAN RIGHTS COMMITTEE Receiveability(Article 41.5 of Optional Protocol) Establishment of the facts Good officers (Article 41 para 1. para 1c) Receiveability (Article 2.

Communications addressed to the Human Rights Committee are processed by the Petitions Team of the Office of the United Nations High Commissioner for Human Rights (OHCHR). of the Optional Protocol). and who have exhausted all available domestic remedies. acceded to or succeeded to the Covenant. may submit written communications to the Human Rights Committee for consideration under the Optional Protocol. Consideration of communications under the Optional Protocol is confidential and takes place in closed meetings (Article 5. paragraph 3. No communication can be considered unless it concerns a State party to the Covenant that has recognized the competence of the Committee by becoming a party to the Optional Protocol. Under rule 102 of the Committee‟s rules of procedure.(b) Enforcement Individuals who claim that any of their rights under the International Covenant on Civil And Political Rights have been violated by a State party. all working documents issued for the Committee are confidential unless the Committee decides otherwise. The Committee‟s final decisions (Views. However. the author of a communication and the State party concerned may make public any submissions or information bearing on the proceedings. . Of the 160 States that have ratified. unless the Committee has requested the parties to respect confidentiality. decisions declaring a communication inadmissible. the names of the authors are disclosed unless the Committee decides otherwise. decisions to discontinue the consideration of a communication) are made public. 109 have accepted the Committee‟s competence to deal with individual complaints by becoming parties to the Optional Protocol.

If a person‟s human rights set out in the ICCPR is violated. he can submit a complaint to the Human Rights Committee. The exception to this lengthy time period is that the Committee can request a state to take interim measures.The mandate of the Human Rights Committee: The Human Rights Committee can investigate allegations of violations of the human rights set out in the ICCPR which are brought to its attention by the victims of violations or their representatives. The rights set out in the ICCPR include the following:  the right to life  the right to freedom from torture  the right to liberty and security  the right to a fair trial  the right to freedom of association and assembly  the right to freedom of expression  the right to an effective remedy  the right to privacy  the right to freedom from discrimination. An article is a paragraph in which a specific right and the manner in which the state must protect that right are described. These rights are described in articles 2 to 27 of the ICCPR. However. and. it can take action. . if it thinks that in this case the state concerned may be in violation of the ICCPR. The Human Rights Committee may decide to investigate that particular complaint. it is important to note that it can take from to 2 to 4 years for the Committee to investigate a case and take a decision.

the Committee can call upon a state to release a victim from detention. its decisions can carry political and moral force and many states do comply with .The range of actions that the Committee can take is described below:1 1. Although the state concerned is not legally bound to comply with the Committee‟s „views‟. Such a declaration can be politically very embarrassing for a state. Request interim measures When the Committee receives a complaint that a violation of the ICCPR is about to take place it can request the state concerned to take „interim measures‟ to prevent the violation taking place. „Interim measures‟ mean the Committee asks the state to take temporary action to prevent a violation before formal investigations into the complaint have been completed. which are made public. 2 Declare that the state has violated the ICCPR When the Committee‟s investigations into a complaint are completed the Committee can take a decision (called its „views‟) on the case. For instance. the Committee can ask to be informed of the action a state has taken to end or remedy a violation. In its „views‟. or to compensate a victim. 3 Call upon a state to end a violation of the ICCPR In its „views‟ the Committee can also call upon the state to take immediate action to end a violation of the ICCPR. the Committee can declare that the state concerned has violated the ICCPR. The Committee usually asks the state to provide this information within 90-180 days from the date on which it adopted its „views‟. to commute a death sentence imposed after an unfair trial. Although the Committee cannot force a state to right a wrong.

Step 2 Investigating a complaint Once a complaint has been declared „admissible‟ the state concerned is given a further 6 months to send written information to the Committee expressing its opinion on the complaint and describing any steps it may have taken to remedy the violation. nor can it visit a country or place to investigate a complaint. Its decision is based only on the written information it has received from the author and the state concerned. Step 3 The Committee adopts its views .its decisions. Any information received from the state is sent by the Committee to the author of the complaint. The Committee then looks at all the written information it has received from the author of the complaint and the state and makes a decision on the case. The author is then given 6 weeks to reply to the state‟s information. In addition. How the Committee investigates a complaint (the formal procedure): Step 1 Admissibility The first thing the Committee does when it receives a complaint is decide whether or not it will accept the complaint. This can put pressure on a state to comply with a decision of the Committee. The Committee cannot ask the author of the complaint or representatives of the state to appear before it to neither present their case. decisions of the Committee often attract attention from the international media. A complaint which the Committee decides to accept is called „admissible‟ and a complaint which the Committee decides not to accept is called „inadmissible‟.

How to submit an individual complaint: Only a person claiming to be a victim of a violation of the ICCPR or their representative. for example a close relative. Examples are the Panchayati Raj system. enhance and guarantee the peoples‟ rights.When the Committee‟s investigations are completed the Committee can take a decision (called „views‟) on the case. It can take 1 to 2 years for the Committee to adopt its „views‟ on a case. There continues to be violation of human rights and non-implementation of socio-economic programs. The Protection of Human Rights Act . the Committee can declare that the state concerned has violated the ICCPR. The complaint must allege a violation of one or more of the rights set out in articles 2-27 of the ICCPR. which are made public. HUMAN RIGHTS UNDER INDIAN CONSTITUTION b. there are several resultant limitations concerning the level of implementation of these rights. Since its independence. The significance of India‟s constitution is also immense for its mixed policy adoption on liberal and socialistic norms of governance. social. Implementation The Constitution of India is distinctive for its commitment to provide full political. and amendments have been passed to initiate. creed. Right to Information Act and Right to Education. economic. and cultural rights to all its citizens irrespective of caste. many acts. laws. However. A representative must show that they have a close connection with the victim. religion or race. The idea of the welfare state enshrined in the spirit of the Indian constitution‟s Preamble is another significant feature of Indian democracy. In its „views‟.

It should act as a national monitoring mechanism for human rights and serve the Indian public as a means to be protected from human rights abuses. as “the protector and guarantor of fundamental rights. liberty.2 Clauses (1) and (2) of Article 32 run as under: (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed. prohibition.The Protection on Human Rights Act was passed in September 1993 by the Indian Parliament. The Human Rights Act defines human rights as “rights relating to life. . State Human Rights Commission in States and Human Rights Courts for better protection of human rights in India. a set of international guidelines for national human rights institutions. which enshrines the remedial fundamental right. (2) The Supreme Court shall have power to issue directions or orders or writs. The Act was passed to provide an independent and autonomous National Human Rights Commission. mandamus. The Commission is in line with the Paris Principles. The enumerated and guaranteed fundamental rights would be no more than paper tigers. if the right to enforce fundamental rights is not made a fundamental right itself. and certiorari which may be appropriate for the enforcement of any of the rights conferred by this part. It is the remedial fundamental right which gives teeth to all fundamental rights. equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”. including writs in the nature of habeas corpus. Article 32 guarantees the right to move the Supreme Court by appropriate proceedings‟ for the enforcement of the fundamental rights guaranteed by Part III of the Constitution. It has been said repeatedly that it is the duty of the courts to guard the remedial fundamental right and to protect it „zealously and vigilantly‟. Article 32. The National Human Rights Commission is an autonomous statutory body which main task is to protect and promote human rights in India.” or as the “qui vive”. has been described as “the cornerstone of the democratic edifice”.

Enforcement Scope of Article 32 of the Constitution of India The sole object of the Article 32 of the Constitution of India is the enforcement of the fundamental rights guaranteed under Part III of the Constitution of India. However. The power of High Court under Article 226 is confined to its territorial Jurisdiction. Other rights can also be enforced under Article 226. c. Whatever other remedies may be open to a person aggrieved. so that even where . The Supreme Court is competent to give relief under Article 32 against any authority within the territory of India. whereas the scope of Article 226 of the Constitution is much wider than Article 32 of the Constitution. the scope of Article 32 is limited to the extent of enforcement of the fundamental rights stated in the Part III of the Constitution. The High Court while exercising the Article 226 can give reliefs in case of quasiJudicial Tribunals and authorities or other acts by such lower authorities even though the acts of such authorities do not infringe the fundamental rights. A writ under the said Article 32 would not lie to enforce the Government policy or a Directive Principle.Article 32(4) lays down that this fundamental right cannot be suspended except as otherwise provided by the constitution. Articles 358 and 359 provide for the suspension of certain fundamental rights during the period of promulgation of Emergency. Under Article 226 also the fundamental rights can be enforced by moving the High Courts. he has no right to complain under Article 32 where no fundamental right has been infringed. Application under Article 32 and Article 226 Article 32 and Article 226 both deal with enforcement of right of the citizen against the Government or Governmental Authorities. It follows that no question other than relating to a fundamental right will be determined in a proceeding under the Article 32 including interlocutory reliefs.

and are not necessarily circumscribed by the conditions which limit the exercise of the prerogative writs. the widest and the most extensive known to the world of law. Amplitude of Supreme Court's jurisdiction under Article 32 The powers given to the Supreme Court under Article 32. The said Article is wide enough to consider even claims for compensation arising from the violation of fundamental rights. The power extends to the examining the validity to even an amendment to the Constitution. The range of judicial review recognised in the superior judiciary of India is. in whole or in part. . the High Court cannot grant reliefs against an authority located outside its territorial jurisdiction except in certain exceptional cases. are not confined to issuing prerogative writs only. for the enforcement of fundamental rights. namely where the causes of action arises.fundamental rights have been infringed. within territorial jurisdiction of that Court. perhaps.

g. since. paragraph 4. independence.. article 15. The Human Right Committee has also been praised for seriousness. fact-finding and conciliation elements in its functions.CONCLUSION It is at the national level that the ICCPR has exerted its greatest impact. When today anywhere in the world a national constitution is framed. the ICCPR serves as the natural yardstick for the drafting of a section on fundamental rights. article 10. In other countries. Thus. The Committee has emphasized that it should be mindful of judicial. In some countries. In most countries. the ICCPR has been made part and parcel of the national legal order although there is no general rule of international law that would enjoin States to embrace a specific method of implementation..g. courage and dedication. national judges are not very familiar with the guarantees laid down in international human rights instruments and are more often than not reluctant to accord them precedence over the applicable national laws and regulations. . These legal techniques are not automatically successful. the ICCPR has even been given the legal force of a provision of constitutional or quasi-constitutional rank (e. paragraph 2 of the Spanish Constitution). administrative authorities and the courts are specifically enjoined to follow the applicable international guarantees when interpreting the national constitution (e. of the Constitution of the Russian Federation). the United States has made a declaration according to which the ICCPR is not self-executing within its domestic legal system. as a rule. diplomatic.

. the Committee‟s discharge of the monitoring functions entrusted to it under the Covenant has improved the lives of individuals in countries in all parts of the world. both at the general national level and in the context of individual cases. In doing so. therefore. in full and without discrimination. but rather go deeper. In a direct sense. The Committee‟s members do not simply look at the formal legal position applicable in a particular State or case. a State Party to the ICCPR that becomes a Party to the Protocol recognizes the competence of the Human Rights Committee to receive. or its examination of complaints by individuals or States alleging violations of the Covenant. a legally binding international treaty. The Human Rights Committee performs the vital function of monitoring the enjoyment of the rights set out in the Covenant. to the practical realities on the ground in the States with which it is concerned. its adoption of general comments. communications from individuals subject to its jurisdiction. compliance by a State with the Committee‟s Views is evidence of a State‟s good faith attitude towards its Covenant obligations. consistent with its character as an instrument guaranteeing fundamental rights and freedoms. and consider. the Committee is the pre-eminent interpreter of the meaning of the International Covenant on Civil and Political Rights. Over the years.Under the Optional Protocol to the International Convention Civil and Political Rights. by all people. It is in this spirit that the Committee will continue to make its work relevant and applicable to all States parties. and to strive for the enjoyment of all civil and political rights guaranteed by the Covenant. who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. policy and practice. it seeks to give a full and generous interpretation to the meaning of the Covenant‟s provisions. Indeed. under certain conditions. Whether in its consideration of States parties‟ reports. the Committee‟s work has resulted in numerous changes of law. and issue findings with a view to achieving positive change.

. .