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COURSE STRUCTURE MODULE

SUBJECT- HUMAN RIGHTS


(PROTECTION AND ENFORCEMENT)
PROGRAMME- B.A,LL.B. IVth SEMESTER

Aims of the study


Human rights, basically focuses upon analytical approach to study the past and
prevailing practices and their cross currents with an aim to install a sound
mechanism founded upon well settled notions of checks and balances in order to
regulate practices of the States.

The approach should proceed through below stated threads--

A balanced exposition extracted out of a comparative analysis


A Theoretical analysis

Approaches demonstrating different aspects of recognized norms of


Human Rights in different Jurisdictions are usually based on classifical
universal pattern for the adoption or recognition but it becomes choice
based when enforceability is claimed through available litigative justice
mechanism.
The Study should be followed upon following lines

JUDICIAL INTRPRETATION
A universal normative analysis of Laws and Practices and the trends
of their judicial-executive functionaries
Teaching Methodology
With a view to pursue doctrinaire study of domestic and Global Spectrum
of rights of Humanity in general and rights of the Indian citizens in
particular, it becomes urgent to follow a case study approach, a recourse
towards analytical method to clear the doubts relating to conceptions and
Ultra Modern tools for the Empirical Research be applied. It therefore
requires that the teaching and learning should proceed into following
dimensions ---

Doctrinal Analysis
Logical deduction and induction methods
A comparative Analytical Approach.

Moreover, its needful to participate through observation / interviewing/


learning by doing with groups of those who have a first hand information
relating to execution, formulation and adjudication of the Human rights
Jurisprudence in order to develop a better understanding of the Subject.
Performance Evaluation Method

(a) Unit wise Written Tests


(b) Conducting Quiz and MCQ based Questioning after and during each Lecture
(c) Assigning some selective issues to groups of students and ask them to
explain the challenging aspects with suggestion of reforms
(d) A continuous Performance Evaluation Method should be adopted to
review the progress of students timely i.e. Arrangement of Internal
Descriptive Tests, Group Debates and Discussions.
MODULE 1 UNIT-I

ORIGIN AND DEVELOPMENT OF THE CONCEPT OF HUMAN


RIGHTS- ANALYSIS OF WESTERN AND EASTERN
TRADITIONS
Introduction
Like International Law, the development of Human Rights
Jurisprudence proceeds upon the lines of a Commity between the nations
and a practical exposure of the problems evidenced in the lives of
members of human society across the Globe. The origin therefore is not
in a way that could be travelled without no diversion or distortions. The
states initial unit of the International Law, have germen seeds of
recognition of rights of their individual according to their diverse
capacities and socio- ethnic needs.
Nature has made Human being with unquestionable intellect and its the
magic of this intellect which has given them not only a capacity for
social cohabitation with dignity and harmony but has landed on other
Planets as well. Divinity lies not in creation of the body but in the
creation of innately built and experimentally sharpen reason forming the
sensual appearance of human existence on Earth, Otherwise it is too an
exact say that man is an animal like others, what makes him different
and special from others is his cognitive potential credited him a
disciplined way of resolving all his curiosities in a concert and achieving
all that he dreamed. Law, among others is also a way for an end and the
end is social.
Primarily , International Law was concerned with sovereign States and
the Norms were not directly touching human concerns numerically.
Therefore the question of human rights did not arise ..Human Rights
found their fulcrum when Human civilizations embarked upon a
constitutional scheme to develop in co-operation not in isolation.
Verginian Declaration of Rights 1776 , American declaration of
Independence and first ten amendments to the American Constitution
were a Signal to the Feudal Monarchic Social set up that not only haves
but those who have nothing too count if the civilizations aspire to form a
rule based on permanent principles of Law. The declaration adopted by
the French National Assembly in 1789 for recognizing rights of man
and citizen appealed and inspired revolutionary and democratic
movements in almost each part of the world.
Meaning
Human rights have been defined differently. Some writers even question
the expression Human Rights because, to them, it is a sexiest version
since human is marked by the presence of man; so a person. Thus Prof
Bakshi prefers the word Huper in place of human. Therefore Human
rights become Huper Rights--- Upendra Bakshi: the future of human
rights,JILI 2002
Boutros Boutros Ghali----
Human rights constitute a common language of humanity.
Milne----
Human rights are simply what every human being owes to every other
human being and as such represent universal moral obligations. These
rights can be summarized as the right to life, to freedom from
unprovoked violence and arbitrary coercion, to be dealt with honestly, to
receive aid in distress and to be respected as a human person.
Susan Moller--- Human rights a claim to something which is of crucial
importance for human life
D.D.Basu--- Human rights are those minimum rights which every
individual must have against the State or other public Authority by
virtue of being a member of the Human family,irrespective of any other
considerations
Section 2 (1) (d) Protection of Human Rights Act 1993---
Human rights mean the rights relating to life, liberty , equality and
dignity of the individual guaranteed by the Constitution or embodied in
the International Covenants and enforceable by the Courts in India.
Nature of Human rights ---
Universal
Inalienable
Inherent
Periphery of human rights revolves in and around
Life , Equality, Liberty and Dignity

Origin and development of the Concept of Human Rights


I. Development of Human Rights in International Law
Jurisprudential movements of Positivism and Socialist theories
Promotion of Human Rights prior to United Nations -
The Magnarcarta declaration
The American Freedom and Constitution
Four Freedoms
French RevolutionA trinity of rights
World War First- Indignity of Human Life
Emergence of Socializm
An Unsuccessful Universal Commitment under the Umbrella
of League of Nations
The Human Rights movement after World War Second
Freedom movements in the Colonies
Indias tryst with destinyMovement for Independence

1. Promotion of Human Rights within the United Nations


The three Treaties Draft and Drafting Debates
(a) The U.N. Charter
(b) The CP Covenant
(c) The European Convention
(d) The American Convention

2. Non-derogable Rights- Universal, Regional and National


Levels

II. Promotion of Human Rights in India (Indian Tradition)---


The concepts of Dharma, Varna, Kingship and Prajatantra
during ancient Hindu Rule
Overseas cultural influx and the cross roads to The Human
Rights
Human rights under the Dark Ages
Human rights under the seal of British Crown
An Awakening in 1857
Realization of a tryst with destiny in 1947- Tragic Partition of
Indian human family
Making of the Indian Constitution
Preamble
Fundamental Rights
Directive Principles of State Policy
Fundamental Duties
Principles relating to derogation
1. Procedural Derogations
2. Substantial Derogations
National Emergency and A way forward

MODULE 2. UNIT I Continued

CONCEPT OF NATURAL RIGHTS


( Non-Derogable Rights )
Substantive description
1. Right to Life--- Person and Personality
I. Jurisprudential analysis of Right to Life and Liberty
II. Provisions in UN Charter
III. Covenant on Civil and Political Rights
IV. European Convention for the protection of Human Rights and
Fundamental Freedoms
V. American Convention on Human Rights
VI. African Commission on Human and Peoples Rights
VII. Jus Cogens- Contribution of International Law Commission
2. Right to Equality
I. Equality before law
II. Equal Protection of Laws
3. Freedom from restraints against Personal Liberty
I. CP Covenant
II. UN Instruments dealing with permissible restraints on
Individuals Liberty
III. European Convention for the protection of Human Rights and
Fundamental Rights
IV. American Convention on Human Rights
V. Article 19 and 21 of Indian Constitution
Right to Know
Right to Privacy
Procedure established by Law
Right to live life with Dignity
Actual Violation and Indirect violation
Reasonability of Restrictions-
Must be imposed by State Authority
Must be imposed only by Law
Law must be valid
Grounds of restriction must be Just, equitable and reasonable
No hard and fast test Need for an objective test
Reasonability of Substance as well as procedure
Reasonability of retrospective and anticipatory restrictions
Restriction and Prohibition
Reasonable restrictions and US concept of Due process
4. Right against Torture/ Degrading Treatment
I. International Covenant on Civil and Political Rights
II. Universal Declaration of Human Rights
III. European Convention for the protection of Human Rights and
Fundamental FreedomsDefinition of the term Torture and
Degrading treatment
IV. American Convention on Human Rights
V. International Legal Standards and Practice

5. Right against ExploitationProhibition of Slavery or Servitude


I. International Covenant of Civil and Political Rights
II. European Convention for the Protection of human rights and
fundamental freedoms
III. American Convention of Human Rights
6. Freedom from Retroactive criminal offences and Punishment
I. ICCPR
II. European Convention
III. American Convention
7. Prohibition of Imprisonment for non-fulfillment of Contractual
Obligations
I. International Covenant on Civil and Political Rights
8. Right to Legal Recognition
I. ICCPR
II. The American Convention-
Right to Juridical Personality
Right to a Name
Right to Nationality
Rights of the Family
Rights of The Child
9. Freedom of Thought, Conscience, and Religion
I. ICCPR
II. American Convention
10.Right to Participate in Government
I. American Convention
11.Right to Develop- A Fourth Generation Agenda for Human Rights

Implementation of Non-Derogable Rights

I. International Level---

UDHR

ICCPRRole of Human Rights Committee

The Commission on Human Rights

The Human Rights Council

II. Regional Level---


A. European Convention for the Protection of Human Rights
1. European Commission of Human Rights
2. European Court of Human Rights

B. American Convention on Human Rights


Inter- American Commission of Human Rights
Inter- American Court of Human Rights
C. African Charter on Human and Peoples Rights-
Derogation Clauses
African Commission

D. Geneva Convention 1949 and Additional Protocols 1977


Non-Derogable Human Rights Framework
International fact-finding Mission
Human Rights during Non- International Armed Conflicts

E. Role of NGOs in implementation of Human Rights at International


and Regional Level

III. National Level---


The Constitutional Regime Art. 32 &226
Due Process of Law
The Writs
The PIL
Socialization of Compensation
The NHRC/ SHRC/Minority Commission/SC,ST Commission etc
N.G.Os
Media
MODULE III UNIT- II

Human Rights under United Nations Charter

Preamble to The CharterWe the peoples of U.N.

Sources of International Humanitarian Law- Article 38

Individual as a subject of International Law

Article 55 of The UN Charter

International Law Commission

Economic and Social Council- Article 61

Human Rights Agenda for ECOSOC- Article 62

The Commission on Human Rights- Article 68

----Constitution , Composition and Functioning

Contributions---

UDHR 1948

ICCPR

Convention on the Reduction of Statelessness

International Covenant on Economic, Social and Cultural Rights

Convention on the Status of Refugees

Convention on the elevation of all forms of racial discrimination against Women


Convention on the Suppression and Punishment of the crime of Apartheid

Convention against the Torture and other cruel , Inhuman and Degrading
treatment or Punishment

Sub-Commissions

Working Groups

Rapporteurs

UN High Commissioner for Human Rights( The High commissioner for Human
Rights( OHCHR) )

Role of the United Nations in the field of Human Rights

References

Al Hajjaji : Editorial of Lebyan Ambassador in UN Chronicle , Nov. 2004

The Hindu- A Glass at least half full ,Sept 2005

Oppenheim.s International Law


II.
Human Rights---International Organizations and
International Cooperation
A- The Economic, Social Council
B- The International Law Commission
C- The International Court of Justice
D- Amnesty International
E- Office of the High Commissioner of Human Rights
F- The Human Rights Committee under CP Covenant
1. Right to Life
2. Protection against Torture
3. Right to freedom of thought, conscience and religion
G- European Court of Human Rights and European Commission of Human
Rights
1. Right to Life
2. Right against Torture
3. Extradition
4. Racial Discrimination
5. Unlawful detention and Prevention

6. European Convention for Prevention of Torture 1987


7. Freedom from slavery, servitude, forced or compulsory Labour
8. Freedom from Retroactive Criminal Offences and Punishment
H- Inter-American Commission and Court of Human Rights
Advisory Opinions-----

1. Restrictions to death penalty- American Convention on Human Rights


2. Habeas Corpus in Emergency situationsAmerican Convention
3. Judicial Guarantee during Emergency
4. Compensation for deprivation of Rights

I- Jurisprudence of International Humanitarian Law


Cases referred
Eduerdo Beleir vs Uruguay
Hugo Dermit Barbato vs Uruguay
Guerorro vs Colombia
Baboeram and others vs Surinam
Herrera rubbio vs Colombia
Miango vs Zaire
Mbenge vs Zaire
Ambrosini vs Uruguay
Antonaccio vs Uruguay
J.L.Mussero vs Uruguay
Gilbo vs Uruguay
Valcado vs Uruguay
E.Quenteros and M.C. Almeidia de quenterroes vs Uruguay
Pratt and Morgan vs Jamaica
Paavo Muhonnon vs Finland
Viviano Gilliardo Case

III. UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948

Historical background
Main Provisions ---
1. Preamble
2. Right to life, liberty and security
3. Equality before Law and Equal Protection of Laws
4. Right to effective Judicial Remedy
5. Right to fair public hearing by an independent Tribunal
6. Right of innocent presumption in a penal offence till guilt is
proved.
7. Right against ex post facto criminal Laws
8. Right to Privacy, Marriage and Protection of Family
9. Right of freedom of movement and residence in his State
10. Right to seek Asylum
11. Right to Nationality
12. Right to Property
13. Right to freedom of religion, conscience and opinion.
14. Right to freedom of Assembly and Association
15. Right to participate in Governance and Right of access to
Public Service
16. Right to Social Security, work , favorable working conditions
and equal pay.
17. Right to form and join trade unions, to rest, standard of living
and security in sickness or other disability.
18. Right to children- Legitimate or illegitimate- to special care
and attention
19. Right to education aimed at full development of human
personality
20. Right to participate in cultural life of human personality
21. Right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of
which one is the author or inventor
22. Duty to feel obliged to create such a condition in which all the
members of community may ensure their free and full
development.

Legal status of UDHR

The contribution of UDHR

The Indian Constitution and UDHR

The UDHR AND International Customary Law


MODULE IV UNIT II Continued

The International Covenant of civil and political rights 1966

Historical Backdrop( first Generation Rights)

Preamble Resolution

Main Provisions---( Total 53 Articles divided into 6 Parts)

1. Right to life
2. Right against torture
3. Right against Slavery and Servitude
4. Right against Imprisonment in Contractual Obligations
5. Right against ex post facto criminal Laws
6. Right to recognition before Law
7. Right to freedom of thought, conscience and religion
8. Right of self determination
9. Prohibition against torture, cruel, inhuman and degrading punishment
10. Prohibition of arbitrary detention and arrest
11. Right to freedom of movement
12. Right to equality before courts of Law
13. Right to Privacy
14. Freedom of speech and expression
15. Right to peaceful assembly and association
16. Right to protect the family from society and state
17. Right of child to protection and nationality
18. Right to participate in the governance

First Optional 1966 with 14 Articles( In force from 1976)

Provision for complaint to the Human Rights Committee


Power and Procedure for making investigations and suggesting Recommendation
relating Fact Findings in complaints

Second Optional Protocol 1989 with 11 Articles( In force from 1991)

Provision for Abolition of Death Penalty

COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966

Historical background ( second generation rights)

Preamble

Main provisions ( total 31 Articles divided in 5 parts, came into force from 3rd
January 1976)

(1) Rights pledged-


I. Right to self determination for all peoples in order to determine their
political status, and persue their economic social and cultural
development.
II. Prohibition against deprival of means controlled ,owned or earned by
any person for his subsistence
III. States empowered to determine the limit of extent of the economic rights
for non- nationals.
IV. Right to work
V. Right to the enjoyment of just and fair conditions of work including fair
wages, equal remuneration for equal work.
VI. Right to a decent living for workers and their families
VII. Equal opportunity, rest, leisure and reasonable working hours with paid
public holidays
VIII. Right to form trade unions and to strike
IX. Right to social security with social insurance
X. Adequate standard of living with food , clothing and housing
XI. Right to attain highest possible standard of physical health
XII. Right to education including free compulsory basic education
XIII. Enjoyment of cultural rights including benefits from any scientific
progress
Machinery for implementation and monitoring---
Provision for periodic reporting by the party sates to the UN Secretary
General, ECOSOC and the Committee on Economic social and cultural
rights.
Indian Constitution and status of CESCR
EUROPEAN CONVENTION ON HUMAN RIGHTS
Title- European Convention for the protection of Human Rights and
Fundamental Freedoms
Background
European Commission of Human Rights
Procedure for approaching the Commission
European Court of Human Rights
Jurisprudence of European Commission and Court of Human Rights
1. The obligation to protect right to life by Law with reference to the
right to life of unborn child
2. Restrictions on taking of life
3. To effect an arrest or to prevent an escape
4. Inhuman treatment and medical facilities
5. Extradition
6. Racial discrimination
7. Degrading Punishment

Contribution to the development of International Human Rights


Jurisprudence
MODULE V UNIT III
HUMAN RIGHTS AND INDIAN CONSTITUTION

INTRODUCTION

The Indian experience in the promotion and protection of human rights at the
national level , despite numerous social and economic odds, may be of some
interest for the global policy framers ,particularly for the most poor countries
of least developed block of African and Asian Nations.

Indias experimentation with Human Rights postulates can sufficiently form


basis to contend strongly that Democracy, Freedom and Rule of Law are not
the luxuries which only western nations can afford.

Considering Indias extensive Geo-Political domain, the vastness and


heterogeneity of her populace and the complex structure of her society , cases
of violations may occur despite her best efforts.

It is pertinent here to highlight the problems in implementation of human


rights. Some are noticed as follows-

1. Human rights are evolving ideals which the human society cherishes. No
Nation can claim to have lived exactly up to these ideals.
2. Records of individual Nations differ in the level of their performance
and often the level of rights performance is related to the level of
economic development they have achieved or aspire to achieve
according to the means they have in their hands.
3. Wild allegations of rights violations must be distinguished from those
supported by credible proofs.
4. The problems of Criminal Law overlap those of human rights.
Therefore, the measures adopted to cure crimes can not be equated to
the allegations indicating towards abridgment of Human Rights Issues.
5. Situations related to Terrorism and threats to Public peace and
tranquility along with territorial integrity, actively aided by alien
groups or Nations make it difficult to judge accurately the
proportionality of adequate use of force by the State .
This Chapter is going to examine the implementation mechanism both
in substantive and procedural forms, available under Indian
Constitution keeping in mind the above highlighted considerations. For
a proper understanding of the implementation mechanisms available
under Constitution ,it is essential to cover the crucial role played by
Judiciary, executive and Legislature in general and the active
participation of special Human Rights enforcement and vigilance
Agencies.
The important points to be identified are:-
A. What are the Non- Derogable Human Rights those are covered by
Indian Constitution?
B. What specific enforcement provisions are Constitutionally installed?
C. What crucial role has been played by non classical Human Rights
Protection Agencies i.e, NHRC , SHRC ,N.G.Os and The Media-
Fourth pillar of Modern Democracy?

The Constitution Regime


1. Preamble- embodiment of Human Rights Charter
We the peoples of India
India a Sovereign, secular, socialist, democratic , republic
A declaration to guarantee--
Justice
Equality
Liberty
Dignity of Individual
Fraternity and brotherhood among all them
2. Fundamental Rights
Right to Equality
Right to Liberty
Right to Life
Rights to religion
Rights of Cultural, Linguistic and Religious Minorities
Right to guaranteed enforcement of Fundamental Rights
3. Periphery of Fundamental Rights enumerated in Article 20 and
21.

4. The Emergency Provisions and Limits of Permissible


Derogations-
The Emergency and enforcement of Writ of Habeas Corpus

5. The Indian Constitution and a Judicial discourse from Procedure


established by Law to the Due Process of Law.
MODULE VI UNIT III

Fundamental Rights : Implementation Mechanism

A. Ordinary Constitutional Safeguards--


Laws inconsistent, abridging or taking away the Fundamental
rights declared VoidArticle 13
Fundamental Right to avail constitutional remedies- Article 32
Writs-
Mandamus
Habeas Corpus
Certiorari
Prohibition
Quo Warranto

Conflict of Laws arising out of the interpretation of Article 32 and


368
B. Extraordinary Constitutional Remedies - Article 226-32

Writs Jurisdiction of High Courts and Supreme Court-


Comparative analysis

C. PIL or Social Action Litigations

D. Preventive Detention
Relevancy of Grounds for preventive detention
Other Safeguards
E. Right to Compensation-
Ratification of Article 9 (5) of CP Covenant
Indias reservation as to limit the enforcement only up to the
violations falling within the ambit of Clause (3) to (7) of Article
22 of Constitution
Universal Judicial Activism applied by the Supreme Court-
Nilabeti Bahera vs Orissa
Rudal Shah vs Bihar
Sebastian M Hongray vs UOI

Jurisprudence of the Indian Judiciary for the promotion and


protection of Human Rights---
I. Substantive Rights
(a) Right to life ( Article 21)
ADM Jabalpur vs Shivkanta Shukla Case
Maneka Gandhi Case
(b) Death Penalty
Bachan Singh Case
Kehar Singh Case
( c) Torture

II. Procedural Rights


(a) Right to Human Dignity
(b) Handcuffing of Detenues
(c) Right to Bail
(d) Right to Speedy Trial
(e) Right to Free Legal Aid
(f) Freedom from Slavery or Exploitation
(g) Prohibition of Imprisonment to fulfill a Contractual
Obligation
(h) Not to be Punished under ex post facto criminal Laws
(i) Right to freedom of Thought, Conscience and
Religion
MODULE VII UNIT III
DIRECTIVE PRINCIPLES OF STATE POLICY

Human welfare aspects of Directives Directives for


socio- cultural and economic Advancement
Judiciously non-enforceable but Charter of Moral
Code of State ConductArticle 37
DPSP and harmony with International Humanitarian
LawsArticle 51
State shall Endeavour to:
(a) Promote international peace and Security
(b) Maintain Just and honourable relations among
nations
(c) Foster respect for International Law and Treaty
Obligations in the dealings of Organized Peoples
with one another
(d) Encourage settlement of International disputes
by arbitration
Directive Principals-Fundamental Rights- CP
Covenant- Covenant on economic, social and cultural rights An
analysis of Jural Inter-relationship--- A need to interpret
harmoniously
Main Directives----
(a) Dignity of Human Life
(b) Just, equitable work conditions
(c) Maternity Relief
(d) Health care, Protection against environment degradation
and conservation of natural resources i.e.. forest, waters and
environ
(e) Respect to international law and treaty obligations
(f) Special care to Child, Women and Physically Mentally
disabled peoples
(g) An Ideal for Establishment of a Public welfare State.
MODULE VIII UNIT III
PUBLIC INTEREST LITIGATION ( SOCIAL ACTION
LITIGATION)
Suo motu Action ( Epistolary Jurisdiction)

Petitions by social action groups

Petitions against State in-action or Lawlessness

Independence of Judiciary----( judicial activism) vs Judicial Tyranny (


Juedocracy)

Judicial directions relating to environmental jurisprudence

Merits-

Judiciary process becomes participatory

Public character of PIL

A Revolutionary shift in State liability ----

From strict to absolute liability approach

Constraints in Public Action Litigation

Implementation

Propriety ( merits)

Referred Case Study---


State of H.P vs Parent of a Student of a Medical College AIR 1985

Bandhua Mukti Morcha vs UOI,AIR 1984

M.C.Mehta vs UOI, AIR 1987

S.P.Gupta vs UOI,AIR 1981

Peoples Union for Democratic rights vs UOI,AIR 1982

Malik Bros vs Narendra Dadheech AIR 1999

Janta Dal vs H.S. Chaudhary AIR 1992

Dr. Meera Massey vs Dr. S R Mehrota AIR 1998

National Council for Civil Liberties vs UOI,AIR 2007

Pratap Singh vs Haryana AIR 2002

S.P.Anand vs H.D.Devegowda AIR 1996

Sheonanadan Paswan vs Bihar AIR 1987

Sachidanand Panday vs State of West Bengal AIR 1978

Sheela Barse II vs UOI,AIR 1986

Indian Council for Enviro- Legal Action vs Union of India AIR 1996

Vishakha vs State of Rajasthan AIR 1997

Padma vs Heera Lal Moti Lal Desarda AIR 2002

Mohd. Aslam vs UOI,AIR 2003

BALCO Employees Union vs UOI,AIR 2002

J.P.Sanghi vs Madhya Pradesh AIR 1985

Peoples Union for Democratic Rights vs UOI ,AIR 1982

D.S. Nakara vs UOI,AIR 1983

Municipal Council,Ratlam vs Vardi Chand AIR 1980


Banwasi Sewa aashram vs State of UP AIR 1993

Sampat Singh vs Haryana AIR 1993

Vellore citizens welfare Forum vs UOI,AIR 1996

Sudip Mazumdar vs State of MP AIR 1996

D.N.Thaware vs Maharastra AIR 2005

MODULE IX UNIT IV

THE PROTECTION OF HUMAN RIGHTS ACT 1993


I. Statement of Objects and Reasons
II. Short Tile , Extent and Commencement--
Intention of the Legislature
Strict and Liberal Construction
Hardship
Plain language of the Provision
Words and the Context
Mandatory Provisions
Contemporanea exposition
Administrative instructions
Artificial ambiguity
Court not concerned with wisdom of Legislature only
Larger national purpose
Application of the Act

III. Definitions
Armed Forces
Commission
Human Rights
Human Rights Court
International Covenants
National Commission for Minorities
National Commission for the scheduled castes and
scheduled tribes
National Commission for Women
Prescribed
Public Servant
State Commission
IV. The National Human Rights Commission
1. Constitution of the NHRC
2. Appointments/ Resignation and Removal of the
Chairperson and the Members
3. Term of Office
4. Circumstances when member to act as
Chairperson or discharge his functions
5. Terms and Conditions of Service of Chairperson
and Members
6. Vacancies and the validity of Proceedings
7. Procedural Autonomy

V. Function and Powers of the NHRC


Functions of the CommissionScope
Inquiry

Powers relating to Inquiry---


Summoning and enforcing the attendance of witness
Discovery and production of any document
Receiving evidence on affidavits
Issuing Commissions
Investigation
Statement made by persons to the Commission
Persons likely to be prejudicially affected to be heard

VI. Procedure of the Commission


1. Inquiry into Complaints- Scope
2. Steps during and after Inquiry
3. Procedure with respect to Armed Forces
4. Reporting System- Annual and Special Reports

JURISPRUDENCE OF THE NATIONAL HUMAN RIGHTS COMMISSION

I. Individual Complaints and Suo Motu Actions


(a) Bijbehara Case ( BSF Atrocities against Kashmiri Civilians)
(b) Alleged custodial death of Shri Shankshem Kharsaiot
Meghalaya Case
(c) Custodial death of Chandra Shekharan in Pondicherry
(d) Alleged Extra judicial murder of Mr. Mohammad Akbar Shaikh
A resident of District Baramulla , Kashmir
(e) Alleged hunger death of 125 Children in Orissa ( Phoolbani ) due
to Malnutrition and disease
(f) Robin Pal Case
(g) Gujarat Communal Riots
II. Intervention in Judicial Proceedings
(a) Harjeet Singh Case
(b) Chakma Refugees Case
(c) Zalil Ahmad Andrabi Case
III. The Judiciary utilizing Commissions Investigation Reports
(a) Indian Council for Legal Aid and Advice and others
(b) Punjab Mass Cremation Order
(c) Death of Agum Kasem of Nadia ( West Bengal )

MODULE X UNIT IV

STATE HUMAN RIGHTS COMMISSION

I. Constitution of State Human Rights Commission


II. Appointment of Chairperson and Other Members
III. Removal
IV. Term and Service Condition
V. Officers and other Staff of the Commission
VI. Annual and Special Reporting System
VII. Enlargement of Jurisdiction and Application of certain
provisions of NHRC to State Commissions
VIII. Human Rights Courts
IX. Special Public Prosecutor
THE MINORITY COMMISSION

The National Commission for Minorities Act 1992


I. Aims ,Objects and Reasons
II. Short Title, Extent and Commencement
III. Constitution of the National Commission for Minorities
IV. Terms of office and conditions of Service
V. Officers and other employees of the Commission
VI. Salaries and Allowances
VII. Vacancies
VIII. Procedure to be regulated by Commission
IX. Functions of the Commission
X. Finance, Account, Audit and Report
XI. Other Miscellaneous Powers
Chairman and Members to be Public Servants
Power to make rules for internal functioning
Power to make rules in order to remove difficulties
Contribution by National Commission for Minorities

MODULE XI UNIT IV

Commission for Schedule Caste and Schedule Tribes


Aim , Objects and Reasons

Constitution of the Commission

Appointment . Removal and Resignation of and by the Chairperson, Vice


Chairperson and Members

Term and Service Conditions


Officers and Staff of the Commission

Powers of the Commission

Duties and Functioning

Commission to enjoy powers of a Civil Court

Finance . Account , Audit and Report

Role played by the Commission


MODULE XII UNIT V

ORIGIN- NATIONAL AND INTERNATIONAL---


REMEDIES

I. NATIONALITY
Importance of Nationality
Nationality and Citizenship
Acquisition of Nationality
(a) Jus Soli
(b) Jus sanguinis
(c) Other methods

Loss of Nationality

Double Nationality

Nationality of Married Woman

Nationality in India

II. Stateless Persons


Meaning
Causes of Statelessness
Conflict of Nationality Laws
Change of Sovereignity over territory
Denationalization of the State of Nationality
Consequences of Statelessness
No diplomatic protection
No State Assistance
Non- mantainability of International Claims if damages suffered at
the hands of a State
Measures to tackle the Problem---
Convention on the Conflict of Nationalities Laws 1930
Convention on the Reduction of Statelessness 1961

III. ALIENS
Meaning
Practices of the States
Expulsion and Reconstruction of Aliens
Article 13 Covenant on Civil and Political Rights, 1966
UN Declaration on Human Rights of individuals who are not
Nationals of a Country in which they live ,1985
Article 14 & 21 of Indian Constitution
Chairman Railway Board vs Chandrima Das 2000

IV. RIGHTS OF REFUGEES


Meaning of a Refugee
Definition- Article 1 of the Convention on the Status of Refugees,
1951
Refuge before Second World War
Agreement for the settlement of Russian Refugees, 1926
Agreement for the settlement of Armenian Refugees, 1928
Convention on the international status of Refugees, 1933
UN International Refugee Law after World War Second
UN Convention on the Status of Refugees , 1951
Duties and Rights of the Refugee under UN Convention,1951
Obligations of the Party States Under UN Convention
Office of the UN High commissioner for Refugees( UNHCR)
Protocol relating to the Status of Refugees , 1967
Role of UN General Assembly, ECOSOC , UNHCR and UN Deputy
High Commissioner in protection and promotion of Rights of the
Refugees
International Refugee Law developed out of the UN Jurisdiction
Organization of African Unity
Convention governing the specific aspects of Refugee problems in
Africa, 1969
Asian- African Legal Consultative Organization ,1966
June 20 International Refugee Day
International Refugee Law and Position of India
MODULE XIII UNIT V

I. INDIGENIOUS PEOPLES

Indigenous and Tribals as a subject of International Law


International concern for Indigenous peoples---
ILO Convention on integration and protection of Indigenous peoples,
1957
UN Initiatives for Indigenous Peoples
Sub- Commission on the prevention of discrimination and protection
of Minorities, 1970
Special Rapporteur for the study of conditions of Indigenous
Peoples,1971
ECOSOC Working Group for Indigenous Peoples
Declaration on the rights of Indigenous peoples adopted by Sub
Commission on prevention of discrimination and protection of
Minorities, 1993
International decade of Worlds Indigenous Peoples ( 1995-2004)
UN Voluntary Fund for Indigenous Population
ECOSOC Authorized Sub Commission on prevention of
discrimination and protection of Minorities to conduct pilot study of
treaties between the Governments and Groups of Indigenous
Peoples.
International Day of Worlds Indigenous Peoples09 August,
during the Decade..
II. EXTRADITION
Definition of Extradition
Extradition Treaties-
Bilateral
Multilateral
Municipal Legislation
Extraditable Person
Extraditable Crimes
Political Crimes
International efforts to restrict political crimes
Rule of Double Criminality
Rule of Speciality
Rendition

III. ASYLUM
Meaning of Asylum
Circumstances making Asylum legal
Kinds of Asylum
Territorial Asylum
Extra-territorial Asylum

Referred Readings
1. K.C. Joshi : International Law and Human Rights
2. Manoj Kumar Sinha : Implementation of Basic Human
Rights
3. A. N. Sen : Human Rights
4. Dr. V. Nirmala : Law relating to Human Rights
5. Oppenheims International Law
6. H.O. Aggarwal : International Law and Human
Rights

EXERCISE-
1. Unit based Written tests
2. A project on Public Interest Litigation and its Role in the
Protection of Human Rights in environmental concerns
3. Debate Refugee should be accorded treatment not as an
Alien but as a Permanent Resident.
4. Sessional Exam
5. A poster making Competition to highlight a need to invoke
Fourth Generation Tradition of Human Rights
MODEL EXERCISE

(1) Write a critical essay on Universal Declaration of Human Rights,


1948?
(2) Discuss the provisions contained in Covenant of Economic,
Social and Cultural Human Rights?
(3) Write a Note on International Covenant on Civil and
Political Rights,1966??
(4) How far various human rights have been included in the
Constitution of India?
(5) Discuss the composition, powers and functions of National
Human Rights Commission. Can any person make
complaint to the NHRC for the violation of His/ Her
Human rights directly without seeking any remedy in the
State Human Rights Commission?
(6) How the Constitution of India safeguards the human rights
of women, children and persons involved in security of the
country?
(7) What are the functions of National Commission for
Minorities?
(8) Write a short note on Terrorism and Human Rights?
(9) How the chairperson and members of National Human
Rights Commission are appointed?
(10) Write a short note on UN Commission on Human Rights?
(11) Evaluate the work of National Human Rights
Commission?
(12) Write a short note on Amnesty International?
(13) State the objects of Protection of Human Rights Act?
(14) What measures can be taken by the UN for peaceful
settlement of disputes? Also discuss Compulsive and
Coercive means of dispute settlement?
(15) What rules are laid down for the treatment of prisonerss
of War by Geneva Convention 1949?
(16) Write short notes on following
1. Categories of War Crimes
2. War crimes and the Role of UN
3. International Court of Justice
(17) What are the salient feature of the Protection of Human
Rights Act, 1993?
(18) Explain the minority rights and scope of their protection
in India?
(19) What do you understand by the Public Interest Litigation
relating to Human Rights?
(20) Write a detailed note on European Convention on Human
Rights , 1950?
(21) Write short notes
Human Rights
Human Rights Courts
UN Commission for Human Rights
Human Rights under UN Charter

Asylum
Refugees under International Law
Statelessness