5.

REFUGEE STATUS IN INDIA 9

6. UNCHR AND NHRC IN INDIA 12

7. INTERNATIONAL LAWS AND CONVENTIONS ON REFUGEE 13
8. CONCLUSION 14
HUMAN RIGHT LAWS NATIONAL AND INTERNATIONAL PERSPECTIVE

9. INTRODUCTION 15

10. THE INDIAN PERSPECTIVE ON HUMAN RIGHTS HUMAN RIGHTS 16

11. INTERNATIONAL HUMAN RIGHTS LAW 23

REFUGEE PROTECTION LAWS NATIONAL AND INTERNATIONAL PERSPECTIVE

INTRODUCTION

 Human Rights of Refugees are one of the major problems of the world. According to
Article 1 of United Nations Convention on Status of Refugees, refugees are those who
are “owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group, or political opinion, is outside the

1
 country of his nationality, and is unable to or, owing to such fear, is unwilling to avail
himself of the protection of that country.”1

 They move to other countries when their life is in constant threat due to various reasons
and not perfect for their healthy survival. Many countries in the world have a proper
rule governing refugees living in their country and the protection that should be given to
them but in India, there is no uniform legal framework.

 India is a country where there are many refugee groups from different countries,
majorly from its neighbouring countries. It doesn’t have any suitable refugee rules and
is neither a signatory to the 1951 UN Convention nor 1967 protocol on Status of
Refugees. Many countries have adopted binding regional instruments for the protection
of refugees, but there is no instrument to protect the refugees of the Asian region. 2India
has followed ad-hoc policies about refugee settlements since its independence. There
are a large number of refugees in India due to its geographic location, religious society,
vast culture. Currently, Rohingya refugees are a major concern to India. There are
numerous aspects pertaining to refugees which are of major importance both to India,
as a country and to the refugees, particularly in the context of law implementation.3
UNHRC and HNRC are the bodies of Human Rights of the UN and India respectively.
Major Refugee issue in India was because of the India-Pakistan partition of 1947, when
there were millions of population exchanges between these newly formed countries.
Some major Refugee groups in India are from Iran, Tibet, Bangladesh, Pakistan,
Afghanistan, Sri Lanka, Myanmar.

 Jordan, Pakistan, Ethiopia, Iran, Turkey host the largest number of refugees as of
2016.Refugee protection is a great concern to the international community ever since

1
Art. 1(A)(2) of Refugee Convention, 1951.
2
Patricia Hyndman, “Developing International Refugee Law in the Asian Pacific Region: Some Issues
and Prognoses”, Asian Year Book of International Law, Vol. I.
3
J. Fitzpatrick, “Revitalising the 1951 Refugee Convention”, Harvard Human Rights Journal, Vol. 9.

2
 the formation of the United Nations and the issue hasn’t been solved yet. Migration was
a problem ever since the ancient times. Tribal people migrated in search of food, water,
and resources, now the refugees migrate for safety and other reasons.There are 15.2
million refugees worldwide and 1 million are waiting for their asylum application
approvals face many problems in India as well as the whole world.4

HISTORY OF REFUGEES

o History of Refugees in the World

 Asylum seekers are existing from many years, the early man used to migrate for finding
food, shelter and other resources. Around AD 600, the right to seek asylum in a holy
place or a church was codified in law by King Ethelbert of Kent. Many such laws were
rising around Europe during the Medieval Period which was the start of such provisions.
But, it was the 18th century when it was required for people to show id verification to
cross borders in many countries.5

o Many wars in the past were the main reason for the refugees to leave their places. The
Balkan Wars caused 80,000 refugees to migrate. The Civil war of Spain, USA, Russian
Revolution of 1917 also caused people to become refugees. The League of Nations was the
body that caused the first international refugee affairs.6The biggest Refugee crises occurred
during the World Wars. The first world war lasted almost 4 years. One million refugees of
Belgium went to the Netherlands and there on transferred to the UK and other countries.
France, Germany were also the worst affected. When Russia attacked Prussia, 870000 fled
World War 2 was one such war which never happened in the history of the world. By 1959

4
Giselle Toledo, “The protection of refugees and their right to seek asylum in the European Union”,
InstitutEuropéen De L’Université de Genéve, Vol. 70.
5
https://legaldesire.com/human-rights-refugees-refugee-laws-india-globally/
6
Erik-Jan-Zürcher, “Greek and Turkish refugees and deportees 1912–1924”, Universiteit Leiden, 2003.

3
 some 900,000 European refugees were taken by European countries. And 461,000 had been
accepted by the USA, and 523,000 by other countries World War 2 caused around
60,000,000 refugees in Europe itself.7

o History of Refugees in India

 India is a very vastly populated country and is one of the countries experiencing
refugees lately. Migrations in the past occurred due to the Hindukush Mountains in the
west and Patkoi ranges in the east. Partition of India–Pakistan resulted in a huge
number of people migrating. Almost 20 million came to India after India got its
Independence. It had to set up many relief camps addressing the huge number of
refugees. People started coming in from Bangladesh, Pakistan. It passed the
Rehabilitation Financial Administration Act in the year 1948 to address these issues with
funding. A Huge number were displaced from India to Pakistan and vice versa and the
problem was much similar to Refugees. Another instance was in 1959 when Dalai Lama
and his followers approached India as refugees and India provided them a Political
Asylum. The year of 1971 saw many refugees travelling from East Pakistan to India. In
1983 and 1986 India had refugees coming in from Sri Lanka and Bangladesh
respectively. At the end of 1992, India has hosted 2,000,000 migrants and 237,000
displaced persons. India always has some or the other Refugees coming in throughout
its history.8

.COUNTRIES PROVIDING SUPPORT TO REFUGEES

 Many countries are actively helping and safeguarding refugees by providing them
shelter, medical help, and many other necessities. Due to the war in Syria, almost 4
million people fled Syria since 2011 and 1 million settles in Lebanon. On the whole,
Germany has taken 1 million refugees in 2015 itself and provided them with all kinds of

7
Peter Gatrell,” Refugees and Forced Migrants during the First World War”, Immigrants & Minorities,
2008.
8
Prof. J.N. Saxena, “Legal Status of Refugees: Indian Position”, Indian Journal of Int. Law, Vol. 26.

4
 support. They welcomed them with open hearts and even hosted banners in football
stadiums stating “Welcome Refugees”. In Germany, Right to Asylum is a constitutional
right. The Asylum Act and Residence Act provide rules and procedure for taking
refugees. An in-person interview of the refugee is conducted and experts of that country
are consulted before accepting the application.9

 Sweden accepts refugees coming from the border and also accepts quota refugees from
UNHCR. In the year 2015, it took 160,000 applications for asylum and are given only
temporary residence, but before asylum seekers were given permanent residence.
Refugees are given many free services in the country. During the 2013 Iraq War, it took
more number of refugees than US and UK combined Monetary Aid, Health Care,
Schooling, Passports are all provided to the refugees.

 Brazil has a constitutional provision that grants asylum to aliens. The accepted refugees
are allowed to freely move in the country and also select their place of residence as per
the Convention on Territorial Asylum. It is also a signatory to the 1951 convention on
Refugees.10European Union objective was to establish a Common European Asylum
System (CEAS). Under CEAS, international protection is given to those who qualify as
refugees due to a well-founded fear of persecution. Right to Asylum and prohibition of
refoulment is guaranteed by the Charter of Fundamental Rights and 1951 Refugee
Convention and its 1967 Protocol. The CEAS is composed of a number of regulations and
directives that require action by the EU Member States. CEAS is composed of several
directives and regulations which have been recast previously. Many other countries
provide support for refugees – Australia, Canada, China, France, Italy, Kenya, Lebanon,
Turkey, United Kingdom and many other countries.11

9
Asylum Act, Germany.
10
Ivar Ekman, “Far from War, A Town with a Well-Used Welcome Mat”, The New York Times, 2000.
11
European Migration Network, EMN Annual Report on Immigration and Asylum 2014: A synthesis of
Annual Policy reports 2014, Submitted by EU member stated and Norway, June 2015.

5
 o Rohingya Refugee Group

Rohingya people are also known as Arakanese Indians who are stateless people from Myanmar.
They are declared by UN as the most persecuted minorities in the world.[15] The Rohingya
population was denied citizenship according to the 1982 Myanmar Nationality Law. They had to
flee due to the ongoing military crackdown by the Myanmar Army. More than 6700 Rohingya’s
were killed in August 2017.[12They are in heavy numbers in different cities in India, but the
government of India does not recognize them as refugees. Most of those refugees have
migrated to Bangladesh. There was a mass displacement of refugees and forced relocations.
Rohingya refugees face multiple protection risks as of December 2017. Though India refused to
let Rohingya refugees enter the country as it posed security threats, 40,000 refugees have
taken shelter in Assam and West Bengal. There’s a threat because the Rohingya Military group
has been declared terrorist by counter-terrorism authority of Myanmar. Many countries urged
Myanmar to end the violence against this minority to restore peace in the country. China
always stays away from internal interferences of other countries, but it mediated for Myanmar
and Bangladesh. Though Bangladesh has stood up to help those refugees, its falling short of
resources. In the case of Dongh Lian Khan v. Union of India the Delhi High Court held that the
principle of non-refoulment is part of the guarantee under Article 21 of the Constitution of
India irrespective of nationality. In the case of NHRC vs Arunachal Pradesh, the Supreme Court
held that the state is bound to protect the life and liberty of every human being, citizen or
otherwise. Even then India is not ready to take Rohingya refugees and help them. 13

PROBLEMS FACED BY REFUGEES

 Refugees who needed up in different refugee camps or different countries face any
problems with their life. They are subject to harsh living conditions. They have limited

McPherson, Poppy, “6,700 Rohingya Muslims killed in one month in Myanmar, MSF says”, The
12

Guardian. ISSN 0261-3077, 2017

13
Dongh Lian Khan v. Union of India, 2015 SCC Online Del 14338.

NHRC v. Arunachal Pradesh, 1996 SCC (1) 742.

6
 resources, live in tents, have limited food, water, clothing. They live without adequate
shelter and face many difficulties. Those who do not join refugee camps and join
countries, often face unexpected hardships, they also face cultural, language problems.
The refugee children are the ones facing the most of the problems. They find it very
hard to continue with schooling and fail to understand and cope up. Most refugees take
up some or the other labour work in the country they are living and are exploited by the
recruiters. They feel unsafe in their country, because of which they come to the new
place, but feel unhappy and unsafe here as well. Different countries have different set
of rules handling refugees, some countries grant citizenship in less number of years than
the other. The perks of being a refugee in one country are different than the other. They
face discrimination, financial difficulties, and are psychologically affected.14

o India’s Stance In 1951 Convention

 There are 144 signatories to the 1951 Refugee Convention, and India is not one of them.
The Refugee Convention is about the rights of individuals who are refugees in other
countries and the responsibilities of the nation hosting them. India faces a lot of
pressure from International bodies about it not being a signatory to the Refugee
convention. Taking into consideration, the political, economic, ethical factors prevent
India from being a party to 1951 Refugee Convention. India is a developing country and
it would be a burden if it complies with the convention and becomes a signatory, and
affect the security laws of India. It felt the convention is not related to the problems
arising in India, but it is applying some articles from the 1951 convention. India believes
even if it’s not a signatory, it would provide minimum reeds for a refugee. India has
many problems with its border sharing countries, due to which it took that decision. If it
becomes a signatory, it will have to provide more and more resources and other things
for the refugees. After 1991, due to the execution of Rajiv Gandhi by a Sri Lankan
refugee, India supported its stance for the very same reason. Refugees damage the
economy of India as well, as many come to India in search of opportunitiesIt is afraid

14
https://legaldesire.com/human-rights-refugees-refugee-laws-india-globally

7
 that people may come to the country names as refugees for various reasons and misuse
the convention for better opportunities. Should India be a signatory to the Refugee
Convention or its Protocol is still a question that has both pros and cons. 15

REFUGEE STATUS IN INDIA

o Constitutional Protection

 A few articles of the Constitution of India are applicable to the refugees when they are
in India. The most important Article is Article 21 which deals with Right to Life and
personal liberty, it applies to everyone irrespective of whether they are a citizen of
India. Many judgements have been given based on Article 21 on refugees. Article 14
guarantees the person right to equality before the law. Article 5, 6, 7, 8, 9, 10,11,12, 20,
22,25-28, 32, 226 also available for non-citizens of India including Refugees.16 In the case
of Louis De Raedt v. Union of India, the court held that the fundamental rights to life,
liberty, dignity are available to non-citizens of India. In the case of Visakha v. State of
Rajasthan, the court has held that “International Conventions and norms are significant
for the purpose of interpretation of the guarantee of gender equality, right to work with
human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards
against sexual harassment implicit therein ”.Some fundamental rights are guaranteed to
non-citizens of India. In the case of NHRC v. State of Arunachal Pradesh, the government
was asked by the court to safeguard the life, health, of Chakmas that are in the state
and that their application for citizenship should be sent to the authorities concerned
immediately There are definitely a number of protections to the refugees living in India
according to the Constitution of India but are hardly in practice. The cases and the

15
RanabirSamaddar, “Refugees and the State, Practices of Asylum and Care in India 1947-2000”, SAGE
Publications, U,2003, “Status of Refugees in India”
16
RanabirSamaddar, “Refugees and the State, Practices of Asylum and Care in India 1947-2000”, SAGE
Publications, U,2003, “Status of Refugees in India”

8
 provisions of the Constitution gives a hint about intention to help refugees, but due to
India’s own reasons it doesn’t sign any Conventions related to it.

o Laws in India and Role of Judiciary

 We only have the Refugee and Asylum (Protection) Bill of 2009, no definite legislation
regarding Refugees is available in India but the main legislation that supports is the
Foreigners Act of 1946 which on the difference of Alien and Refugee create further
persecution of the Refugee. The laws related to refugees are:

Citizenship Act, 1955 (No.57 of 1955)

Extradition Act, 1962 (No. 34 of 1962)

Foreigners Act, 1946 (No.31 of 1946)

Illegal Migrant (Determination by Tribunals) Act, 1983 (No.39 of 1983)

India Penal Code Act, 1860 (No.45 of 1860)

Passport (Entry into India) Act, 1920 (No.34 of 1920)

Passport Act, 1967 (No.15 of 1967)

Protection of Human Rights Act, 1993 (No.10 of 1994)

Registration of Foreigners Act, 1939 (No.16 of 1939).17

 Refugees are considered under the term ‘alien’ in India. The term appears in
Constitution of India (Article 22), Section 83 of the Indian Civil Procedure Code, Section
3(2)(b) of the Indian Citizenship Act, 1955, as well as some other statutes. Most of the
acts cause further complications to the refugees. The Foreigners Act, 1946 give the
officials power to arrest or detain any foreigner on mere suspicion for non-

17
“Centre / State Acts and Rules on “Refugees””, http://nhrc.nic.in/documents/LibDoc/Refugees_A.pdf

9
 compliance.18The current laws in India are not sufficient in order to protect refugees
and need a much greater law for the protection of refugees. According to the Principle
of Non-Refoulment, no country shall deport, expel or forcefully return the refugee back
to his original territory against his will or if there is a reasonable threat to his life, liberty
and freedom.19

 Judiciary plays an important role in protecting refugees, many cases gave landmark
judgements regarding refugees. The judiciary has made it easy with the concepts of
Social Action Litigation and Public Interest Litigation.Right to basic amenities: In Digbijay
Mote v. Union of India, an NGO was running a school for the Sri Lankan refugees, When
PIL was made when the condition to run the school was difficult, Ministry of Women
and Social Welfare provided financial assistance to the school. In Majid Ahmed Abdul
Majid Mohd Jad Al Hak v. Union of India, basic amenities like food and medicines must
be provided to the refugees who are in detention.

 Non-Refoulment and Right to refugee Status: In Malvika Karelkar v. Union of India, the
deportation order issued against 21 Burmese refugees were stayed by the SC and
allowed them to seek refugee status under UNHCR.

UNCHR AND NHRC IN INDIA

 UNHCR in India is participating very actively as the number of cases regarding refugees
is increasing day by day. If some refugee goes back to his country after being a refugee
in India, UNHCR watches if the person is going back voluntarily. It performs the function
of determination of refugee along with providing resources to them. UNHCR got
involved since the issue of Tibetan refugees and the Bangladesh crisis in 1971. The Delhi
office of the UNHCR works to help refugees become self-sufficient with assistance and

18
Foreigners Act, 1946.
19
Art. 33, Refugee Convention, 1951.

10
 income-generating activates with the help of NGO’s. The main role of UNHCR in India is
to make sure that the refugees are not forced to go back to their country from which
they have fled until the issue rests in their country. 20

 NHRC i.e., National Human Rights Commission in 1994, gave directions to Tamil Nadu
Government to provide medical help to Sri Lankan refugees. In 1995, it filed a PIL on
Arunachal Pradesh Government regarding the government not supporting Chakmas,
and got the decision of the court ordering the government to provide necessary help to
the group. It gets involved in all the refugee issues in India and provides some or the
other help required.

Need for Domestic Law

India doesn’t have any separate law for the refugees, but it desperately needs one
considering the recent issues and many more issues that may come in the future. Until a law is
made, India continues to hold refugees depending on the country of them and political
considerations. Though NHRC has submitted many reports about the need for India to have a
Law based on Refugees but no response to them. A law is required so that all refugees will be
handled equally and correct provisions are made for them during the crisis. The law should also
include the provisions for internally displaced people as well. All existing acts that make the
refugees suffer more must be replaced with this new law, the law will make the procedure for
granting a refugee status easier. It will also help end the discrimination against refugees in
India, and help the Refugees in all ways possible for their development.21

Interplay of Human Rights Law, Refugee Law, Humanitarian Law

Both Refugee Law and Human Rights law often co-exist and overlap each other in several fields.
International Humanitarian Law and Human Rights law being the distinct branches of law

20
Christina Harrison, “UNHCR and the Protection of Refugees in India”, www.unhcr.org/en
21
V. Vijay Kumar, “The Need for a National Legislation on Refugees.” in roundtable workshop on
refugees in the SAARC region: National legislation on refugees, 30 April 1999, New Delhi.

11
overlap as well, as one deals with the protection or a person from abusive power and the other
one deals with the conduct of parties to an armed conflict. In the case of protection of the
person in the power of a party to the conflict both Humanitarian Law and Human Rights Law
reinforce each other mutually Humanitarian Law deals with the conflicts and while Refugee Law
deals with the people that flee due to the conflicts. They both go hand in hand due to that.
Coming to the Interplay of Human Rights Law and Refugee Law, both of them describe the
Principle of Non-Refoulment which prohibit forceful repatriation. On the whole none of the
Laws work independently but go hand in hand with each other. Some of the principles or ideas
are borrowed or adopted from each other as well.22

INTERNATIONAL LAWS AND CONVENTIONS ON REFUGEES

 There are many declarations, conventions, regarding refugees. Some of them are
Convention relating to the Status of Refugees (1951) and Protocol (1949), Convention
relating to the status of Stateless Persons (1954), UN Declaration on Territorial Asylum
(1948), Universal Declaration of Human Rights (1948), Convention on the Elimination of
Discrimination against Women (1979), International Convention on Civil and Political
Rights, Convention on the Reduction of Statelessness (1961), Guiding Principles on
Internal Displacement (1998). Some of the Regional Refugee Laws are Cartagena
Declaration (1984), Asian African Legal Consultative Committee Principles (1996).

 The UN Convention Relating to the Status of Refugee of 1951 was adopted on 28 July
1951 and entered into force on 22 April 1954. It erases previous laws and set a most
comprehensive codification of the rights of refugees. The Convention deals with General
Provisions, Juridical Status, Gainful Employment, Welfare, Administrative measures,
Executory and Transitory powers. These chapters are very well defined and the serve
the purpose of helping refugees. Article 1 gives the definition to the term ‘refugee’,
Article 12, 13 deal with Personal status and Movable and Immovable property

22
Droege, C, “The Interplay between International Humanitarian Law and International Human Rights
Law in Situations of Armed Conflict”, Israel Law Review, 2007.

12
 respectfully. Article 16 deals with Access to Courts. As the 1951 Convention covers only
those persons who have become refugees as a result of events occurring before 1951,
Protocol relating to the Status of Refugees was entered into force on 4 October 1967,
because new refugee situations have arisen after the convention and the new refugee
did not fall under the Convention. So, to ensure equality of all refugees, this protocol
covered that.23

CONCLUSION

In the whole world, though there are a number of conventions and laws governing refugees,
the refugees still keep facing problems. When a country as big as India doesn’t have a Refugee
Law, we can understand that many countries have the same face and are on the same boat. If
UNHCR and NHRC work together, there will be much more development in the field of Refugee
Law. There is definitely a need for India to set up a Law regarding Refugees, as in the future
there may be many more issues due to various reasons. Whenever UNHCR tries to do
something regarding refugees NGO’s should actively help them. Though protection to refugees
is given under various articles of the Constitution, there needs to be a uniform Law that give
equal rights to all the refugees. India continues to take the humanitarian view of the problem of
the refugees. Considering the security issues due to which India is not a signatory to the 1951
Convention, it should give due consideration to the same. It should also take care that the
refugee law is not mistreated and mis-utilized by persons who come to seek opportunities.
Many judgements in India support the refugees. India has done a very good work regarding
refugees, but needs to do much more. Many Rohingya refugees living in India are receiving
support, but India is planning to deport them to their territory. In the past NHRC submitted a
report for the ned for a Refuge law but didn’t receive a reply. If UNHCR and NHRC together do
the same, there may be an answer. The Refugee Convention and its Protocol of 1951 and 1967
are the Conventions that received global response with many countries signing the convention.
They consider most of the reasons of refugees and tell us the rights and other provisions that

23
Sinha, Manoj Kumar: “Handbook of Legal Instruments on International Human Rights and Refugee
Laws.”, Edition 2014.

13
they should be given. India on the whole, needs a refugee law for governing refugees entering
India.

HUMAN RIGHT LAWS NATIONAL AND INTERNATIONAL PERSPECTIVE

INTRODUCTION

 The concept of human right began the start of the civilization on this earth. The human
being in order to live happily, needs the rights to smooth his/her life. From the
beginning of human history man struggled for his existence against nature and for
liberty and freedom though these struggles for achieving basic freedom. This struggle
paved the way to the concept of human rights .The most unique feature of human rights
is that it is difficult to define but impossible to ignore. Human rights denotes all those
rights which are inherent in our nature and without which humans can’t live. These
rights are in dispensible for the human dignity which they can enjoy from birth to death.

MEANING

 Human rights are commonly understood as “inalienable fundamental rights to which a

person is inherently entitled simple because she or he is a human being”.Human rights
in the words of A.A. said, “ are concerned with the dignity of the individual, the level of
self-esteem that secures personal identity & promote human community”. According to
Scott Davidson, “The concept of human rights is closely connected with the protection
of individuals from the exercise of State, Government or authority in certain area of
their lives, it is also directed towards creation of societal condition by the state in which
individual are to develop their fullest potential”.Thus, from the above cited definitions,
it has been seen that human rights are the essential part for the every human in order
to live his/her life to the fullest .

THE INDIAN PERSPECTIVE ON HUMAN RIGHTS HUMAN RIGHTS

14
o In Ancient Times

 The concept of human right is not from western region. It is the crystallization of the
values which are common for all the mankind. The United Declaration of Human Rights
(1948) did not come from the leaved suddenly but its a milestone on the path on which
the concept of human right is already travelling for centuries. In fact, the language of
human right is the product of European countries but the concept of human rights is
asold as the Indian culture. The humans expressed their concern towards human rights
and fundamental freedom for all since the Vedic age.

 In ancient India, the trace of the concept of human rights can be paved back from the
Vedas period of the fifteen century B.C. There are wide range of stories,
pronouncements found which showed the way to the concept of human rights. In
Vedas, human right is signified with the concept of equality. The Charter of equality of
all as defined in the Vedas in the following words-No one is superior inferior allshould
strive for the interest of all and should progress collectively. Kautilya beautifully sum up
the concept of welfare state by saying that the happiness of the state lies in the
happiness of his subjects. Under the period, the civil and legal rights first formulated by
Manu but also added a number of economic rights. From the fact and stories, it is truly
revealed that the society under vedic period was well stimulated and organized and
committed towards human right. In fact, the importance of human rights were well
supported by Jainism, Buddhism and other minority religious group. No discussion of
human rights and their roots in the ancient period is left without giving the reference of
Ashoka. Ashoka inscribes, “All men are my children and just desire for my children that
they may enjoy every kind of prosperity and happiness with in this world and in the
next, as also as I desire the same for all men”. In fact, the king Ashoka worked day and
night for the protection of human rights. It’s unfortunate that the decline of human
rights were witnessed with the decline of Mauryan Empire.

o Human Rights in Medieval Times

15
  As medieval period signifies the Muslim era in India. In the pre- mughal period the series
of social, cultural, political and religious rights were existed but with the advent of
Mughal, the Hindus were stressed badly. The concept of human rights got lost in the
dark. But with the entry of Akbar’s (1526-1605) period , once again great regard 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 Empires like Aurangzeb, Babar, Humayun etc.

o Human Rights in Modern India

 This period starts from the advent of British empire. The process of Indian
administration started by the Britishers with the introduction of Regulating Act of 1773.
Under it, Indian were suppressed by the Britishers completely in context to social,
economical, political & religious rights in all the sphere of life. They were told that they
did not deserve any rights. Basic rights such as rights to life & livelihood, right to
freedom, right to expression, right to equality, right to preach etc were denied to
them.In such a atmosphere, the Indian leaders & people feel that their rights had been
lost in the hands of the colonial rule, so they thought of diverting back to fight for their
rights. Perhaps the first explicit demand for fundamentals rights appeared in the
Constitution of India Bill 1895. The Bill guaranted every Indian the right to expression,
right to equality before law, right to property, right to personal liberty, right to
education etc. A series of resolution were passed between 1917 & 1919 for demanding
civil rights & equality. Another major development was drafted by “Mrs. Besant ‘s
Common wealth of 1925.” The Bill contained a list of seven fundamental rights –

(i) Liberty of person.

(ii) Freedom of conscience & free profession & practice of religion.

(iii) Free expression of opinion.

16
(iv) Free elementary education.

(v) Use of roads, public places, courts of justice & the like.

(vi) Equality before the Law, irrespective of consideration of nationality.

(vii)Equality of the sexes.

 The resolution was passed in 1927 which came into effect in May 1928, Motilal Nehru as
its Chairman. It is known as Nehru Report which declared that its first concern of Indians
was “to secure the fundamental rights that had been denied to them.” Another
achievement came in context to fundamental right was the Karachi resolution adopted
by the congress session held in March 1931.The decade of 1940’s was generally marked
by the emergence of fundamental rights by the increased activities related to in by UN
Assembly. The further stage of development of fundamental rights in Indian context was
the “Sapra Committee Report” published at the end of 1945.So, after Independence,
time to time various laws made, suggestions came from the various committees to
enlarge the concept of fundamental rights by covering the entire human race.

HUMAN RIGHTS ENSHRINED IN INDIAN CONSTITUTION

Human Rights in the Indian Constitution can be found in the Preamble of the Constitution of
India. In addition to it, Part III- related to fundamental rights.

o THE FUNDAMENTAL RIGHTS

The rights that are basic for the freedom of humans so that they can live & enjoy as it for the
proper & harmonious development of their personality are known as fundamental rights.These
rights are applied universally irrespective of caste, race, creed, religion, color or gender. They
are enforced by the courts subject to certain articles. There are six fundamentals rights which
are as follows:

RIGHT TO EQUALITY

1. Equality before Law - Article 14

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2. Social Equality & equal access to public areas. - Article 15

3. Equality in matters of public employment - Article 16

4. Abolition of untouchability - Article 17

5. Abolition of titles - Article 18

.RIGHT TO FREEDOM

These rights are considered vital by the framers. It contains Articles 19 to Article 22 which are
as follows:

Name of the Rights Indian Constitution :- Article 19

1. (i) Freedom of speech & expression.

(ii) Freedom to assemble peacefully without arms.

(iii) Freedom to form associations or unions.

(iv) Freedom to move freely throughout the territory of India though

reasonable restrictions can be imposed on this right in the interest of the

general public.

(v) Freedom to reside & settle in any part of the territory of India.

(vi) Freedom to practice any profession or to carry on any occupation, trade or

business.

2.Article 20

(i) No one can be awarded punishment which is more than what the law prescribed.

(ii) No one can be convicted twice for the same offence.

(iii) Protection of life and personal liberty.

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3. Article 21 & Article 21A

(i)No citizen can be denied his life and liberty expect by law.

(ii) Every child has the right to get free and compulsory education.

4. Article 22

(i) No one can be arrested without being told the grounds for his arrest.

(ii) Arrested citizen has to be brought before the nearest magistrate within 24 hours.

RIGHT AGAINST EXPLOITATION

Under it, Article 23 & 24 has been given the provisions which are as follows:

Name of the Rights Indian Constitution

1.Article 23

Abolition of trafficking in human beings and begar (forced labor)

2. Article 24

Abolition of employment of children below the age of 14years in dangerous jobs like factories,
mines etc.

RIGHT TO FREEDOM OF RELIGION

Under it Article 25, 26, 27 and 28 are covered which are described as under:

1.Article 25

Religious freedom to all citizens of India

2. Article 26

Religious communities can setup charitable institution of their own.

3.Article 27

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No person shall be compressed to pay taxes for the promotion of a particular religion.

4.Article 28

State run institutions cannot impart education that is pro religious.

CULTURED & EDUCATIONAL RIGHTS

1.Article 29

No citizen can be discriminated against for admission in state or state aided institutions.

2. Article 30

All minorities, religions or linguistic can set up their own educational; institutions to preserve &
develop their own culture.

RIGHT TO CONSTITUTIONAL REMEDIES

This right covered under Article 32.

1. Article 32

It empowers the citizens to move a court of law in case of any denial of the fundamentals
rights.

Chronology of events/Indian Laws regarding human rights in India.

Following is a list of some of the important national statutes which have a bearing on the
promotion/ protection of human Rights in India.

1829 - The practice of sati was formally abolished.

1923 – Workmen’s Compensation Act.

1926 – Trade Unions Act.

1929 – Child Marriage Restraint Act.

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1933 – Children ( Pledging of Labor) Act.

1936 – Payment of Wages Act.

1946 – Industrial Employment Standing Orders Act.

1947 – Industrial Disputes Act.

1948 – Minimum Wages Act.

1950 – Caste Disabilities Removal Act.

1955 – Protection of Civil Rights Act.

1956 – Immoral Traffic Act.

1961 – Maternity Benefit Act.

1976 – Equal Remuneration Act.

1986 – Environmental Protection Act.

1986 – Juvenile Justice Act.

1987 – Commission Of Sati ( prevention) Act.

1990 – National Commission for Women Act.

1993 – Establishment of Human Rights Commission.

2005 – Right to Information Act passed.

2010 – The Right of Children to Free and Compulsory Education Act came into force etc. 24

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IOSR Journal Of Humanities And Social Science (IOSR-JHSS)

Volume 22, Issue 6, Ver. 9 (June. 2017) PP 01-06

e-ISSN: 2279-0837, p-ISSN: 2279-0845.

www.iosrjournals.org

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INTERNATIONAL HUMAN RIGHTS LAW

o The Universal Declaration of Human Rights (UDHR)

 It is a historic document that was adopted by the United Nations General Assembly at
its third session on 10/12/1948 as Resolution 217 at the Palais de Chaillot in Paris,
France. 58 members of the United Nations, - 48 voted in favor, - none against, -
eight abstained, and - two did not vote.The Declaration consists of 30 articles affirming
an individual's rights which, although not legally binding in themselves, have been
elaborated in subsequent international treaties, economic transfers, regional human
rights instruments, national constitutions, and other laws.

 The Declaration was the first step in the process of formulating the International Bill of
Human Rights, which was completed in 1966, and came into force in 1976, after a
sufficient number of countries had ratified them.Thus, 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 10th December 1948 (General Assembly resolution 217 A) 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 and it has been translated into over 500
languages.

Articles 1—2 established the basic concepts of dignity, liberty, equality, and brotherhood.

Articles 3—6 established other individual rights, such as the right to life and the prohibition
of slavery.

Articles 6—11 refer to the fundamental legality of human rights with specific remedies cited for
their defence when violated.

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Articles 12–17 established the rights of the individual towards the community (including such
things as freedom of movement).

Articles 18–21 sanctioned the so-called "constitutional liberties", and with spiritual, public, and
political freedoms, such as freedom of thought, opinion, religion and conscience, word,
and peaceful association of the individual.

Articles 22–27 sanctioned an individual's economic, social and cultural rights,

including healthcare.

Article 25 states: "Everyone has the right to a standard of living adequate for the health and
well-being of himself and of his family, including food, clothing, housing and medical care and
necessary social services." It also makes additional accommodations for security in case of
physical debilitation or disability, and makes special mention of care given to those in
motherhood or childhood.

Articles 28—30 established the general ways of using these rights, the areas in which these
rights of the individual can not be applied, and that they can not be overcome against the
individual.25

o The International Covenant on Civil and Political Rights (ICCPR)

 The International Covenant on Civil and Political Rights (ICCPR) was adopted by the
United Nations General Assembly on 16 December 1966. The ICCPR was to take effect
ten years later in all nations that had become state parties. A sufficient number of states
had become parties so the ICCPR took effect as planned in 1976.The United States
Senate ratified the ICCPR in June 1992. The Senate took exceptions to this treaty.
Amongst those exceptions are the provision that the human rights recognized by this
treaty shall not be enforcable in courts in the United States. Thus the United States

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The Universal Declaration of Human Rights (UDHR)

23
 Senate denied Americans the legal power to secure and enforce the human rights
recognized by this international covenant.

 The covenant on Civil and Political Rights consists of 53 Articles and is divided into 6
parts. While in parts – I , II & III various rights and freedoms are enumerated, the other
three parts are devoted with implementations procedures for effective realization of
these rights along with the final clauses.

Part – I ( Article – 1) refers to the rights of peoples to self determination states that all people
have the right freely to determine their political status and freely peruse their economic, social
and cultural development and may, for their own ends, freely dispose off their natural wealth
and resource without prejudice to any obligations arising out of international economic co-
operation, based upon the principles of mutual benefit and international law.

Part – II (Article 2, 3, 4, 5) stipulates rights and obligations of the state parties to the covenant.
It includes the obligations of the States to take necessary steps to incorporate the provisions of
the covenant in the domestic lows and to the rights recognized in the covenant. The State
Parties ensure the equal rights of men and women to the enjoyment of all civil and political
rights.

Part – III deals with the specific rights of the individuals and obligation of the State Parties.

1 The Right to life ( Article – 6)

2 Freedom from inhuman or degrading treatment ( Article – 7)

3 Freedom from slavery, servitude and forced labour ( Article – 8)

4 Right to liberty and security ( Article – 9)

5 All persons shall be treated with humanity ( Article – 10)

6 Freedom from imprisonment for inability to fulfill a contractual obligation.

(Article – 11)

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7 Freedom of movement and to choose his residence ( Article – 12)

8 Freedom of aliens from arbitrary expulsion. ( Article – 13)

9 Right to a fair trial ( Article – 14)

10 Active Application of criminal law ( Article – 15)

11 Right to recognition as a person before the law ( Article – 16)

12 Right to privacy, Family, Home or correspondence ( Article – 17)

13 Freedom of thought, conscience and religion ( Article – 18)

14 Freedom of opinion and expression (Article – 19)

15 Prohibition of propaganda of war ( Article –20)

16 Right of peaceful assembly ( Article – 21)

17 Freedom of association ( Article – 22)

18 Right to marry and found a family ( Article – 23)

19 Right of the child ( Article – 24)

20 Right to take part in the conduct of public affairs, to vote and to be elected ( Article –
25)

21 Equality before the law ( Article – 26)

22 Rights of minority ( Article – 27)

The above rights set forth in the covenant are not absolute and are subject to certain
limitations. 26

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The International Covenant on Civil and Political Rights (ICCPR)

25
o The International Covenant on Economic, Social and Cultural Rights (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, and 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 labor rights and the right to health, the right
to education, and the right to an adequate standard of living. As of January 2018, the
Covenant has 166 parties. A further four countries, including the United States, have
signed but not ratified the Covenant.

 The ICESCR is part of the International Bill of Human Rights, along with the Universal
Declaration of Human Rights (UDHR) and the International Covenant on Civil and
Political Rights (ICCPR), including the latter's first and second Optional Protocols.

The Covenant follows the structure of the UDHR and the ICCPR, with a preamble and thirty-one
articles, divided into five parts.

Part 1 (Article 1) recognizes the right of all peoples to self-determination, including the right to
"freely determine their political status", pursue their economic, social and cultural goals, and
manage and dispose of their own resources. It recognizes a negative right of a people not to be
deprived of its means of subsistence, and imposes an obligation on those parties still
responsible for non-self governing and trust territories (colonies) to encourage and respect
their self-determination.

Part 2 (Articles 2–5) establishes the principle of "progressive realization"

It also requires the rights be recognized "without discrimination of any kind as to race, color,
sex, language, religion, political or other opinion, national or social origin, property, birth or
other status". The rights can only be limited by law, in a manner compatible with the nature of
the rights, and only for the purpose of "promoting the general welfare in a democratic society".

Part 3 (Articles 6–15) lists the rights themselves. These include rights to

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work, under "just and favorable conditions", with the right to form and join trade unions
(Articles 6, 7, and 8);

social security, including social insurance (Article 9);

family life, including paid parental leave and the protection of children (Article 10);

an adequate standard of living, including adequate food, clothing and housing, and the
"continuous improvement of living conditions" (Article 11);

health, specifically "the highest attainable standard of physical and mental health" (Article 12);

education, including free universal primary education, generally available secondary education
and equally accessible higher education. This should be directed to "the full development of the
human personality and the sense of its dignity", and enable all persons to participate effectively
in society (Articles 13 and 14);

participation in cultural life (Article 15).

Many of these rights include specific actions which must be undertaken to realize them.

Part 4 (Articles 16–25) governs reporting and monitoring of the Covenant and the steps taken
by the parties to implement it. It also allows the monitoring body – originally the United
Nations Economic and Social Council – now the Committee on Economic, Social and Cultural
Rights – see below – to make general recommendations to the UN General Assembly on
appropriate measures to realize the rights (Article 21)

Part 5 (Articles 26–31) governs ratification, entry into force, and amendment of the Covenant.27

27
The International Covenant on Economic, Social and Cultural Rights (ICESCR)

27